SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 26,
1997
AMERICAN INDUSTRIAL PROPERTIES REIT
(Exact name of registrant as specified in its charter)
Texas 1-9016 75-6335572
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) Number)
6220 North Beltline, Suite 205, Irving, Texas
(Address of principal executive offices)
75063
(zip code)
(972) 550-6053
(Registrant's telephone number, including area code)
Item 5. Other Events
On February 27, 1997, American Industrial Properties REIT
(the "Trust") announced that USAA Real Estate Company ("USAA
REALCO"), a 31.82% shareholder of the Trust, has acquired the
Trust's outstanding 8.8% notes (the "Notes") from The
Manufacturers Life Insurance Company and The Manufacturers Life
Insurance Company (U.S.A.), Inc. (collectively, "MLI").
Background.
On May 22, 1996, the Trust and certain of its affiliates
entered into a settlement agreement (the "Settlement Agreement")
to repay the Notes to MLI at a substantial discount in connection
with the settlement of the Trust's litigation with MLI and
Fidelity Management and Research Company and certain of its
affiliates.
Pursuant to the Settlement Agreement, the Trust was granted
the option to repay the approximately $45,239,000 principal
amount of the Notes for $36,800,000 (the "Option Price"). In
order to achieve this discount, the Trust was required to pay at
least $25,000,000 to MLI by November 23, 1996, such amount to be
applied pro rata to the outstanding principal balance of the
Notes and dollar-for-dollar to the Option Price. The Trust
utilized the proceeds of a $26,452,500 loan from Life Investors
Insurance Company of America, an affiliate of AEGON USA Realty
Advisors, Inc., secured by first liens on nine of the Trust's
properties, and the sale of two of the Trust's properties to
satisfy the first portion of the Option Price. In order to
achieve the remaining discount, the Trust would have been
required to pay $5,449,618 (the remaining amount of the Option
Price) by March 31, 1997 (or June 30, 1997, subject to the
payment of an additional principal payment in the amount of
$150,000, such amount to be applied pro rata to the outstanding
principal balance of the Notes, but not the Option Price).
Purchase of Notes.
On December 18, 1996, the Trust executed a letter
agreement with USAA REALCO wherein, among other things, USAA
REALCO agreed to commence negotiations to purchase or repay the
Notes. As a result of these negotiations, USAA REALCO has
acquired the Notes and, pursuant to the Renewal, Extension,
Modification and Amendment Agreement dated as of February 26,
1997, the Notes have been modified to incorporate various
amendments described below (the "Modified Notes"). The aggregate
principal balance of the Notes of approximately $9,419,213 was
amended, resulting in an aggregate principal balance of the
Modified Notes of $7,040,721. The maturity date of the Notes has
been extended from March 31, 1997 to December 31, 2000 and the
existing security for the Notes has been released. The Trust
also made a $1,591,103 principal payment on the Modified Notes,
resulting in a current principal balance on the Modified Notes of
approximately $5,449,618.
Subject to shareholder approval of the conversion right
hereinafter described and shareholder approval of an increase in
the authorized Shares of the Trust, the Modified Notes will be
convertible (in whole or in part) at USAA REALCO's option, at any
time, into a number of Shares determined as follows:
P / C = S
For this purpose: (i) "P" equals the aggregate principal
balance of the Modified Notes at the date of conversion; and (ii)
"S" equals such number of converted Shares. If the conversion of
the Modified Notes occurs on or before December 31, 1997, the
conversion price "C" per share will be $2.00. If the conversion
of the Modified Notes occurs after December 31, 1997, but on or
before December 31, 2000, the conversion price "C" per share will
be $2.25.
If the shareholders approve the conversion right of the
Modified Notes by June 30, 1997 and approve an increase in the
authorized Shares of the Trust, the Modified Notes will continue
to accrue interest at a non-default rate of 8.8% per annum, with
accrued interest payable monthly in arrears. If the shareholders
do not approve the conversion right of the Modified Notes by June
30, 1997, the interest rate applicable to the Modified Notes will
increase to 18% (but in no event will exceed the highest lawful
rate), and the Trust will be required to pay the outstanding
principal balance of the Modified Notes, plus accrued and unpaid
interest, by October 31, 1997. The Modified Notes do not contain
the discounted prepayments contemplated by the Settlement
Agreement and, except for a payment of $1,591,103 made by the
Trust at the time USAA REALCO acquired the Notes, the Modified
Notes are not prepayable.
If the shareholders approve the conversion right of the
Modified Notes and approve an increase in the authorized Shares
of the Trust, and USAA REALCO converts the Modified Notes into
Shares prior to December 31, 1997 at $2.00 per Share (assuming a
principal balance of $5,449,618), USAA REALCO will receive
approximately 2,724,809 Shares upon conversion, or approximately
21.41% of the outstanding Shares (assuming no other issuances of
Shares). Upon such an event, USAA REALCO will own approximately
46.42% of the outstanding Shares.
As with the Notes, the Modified Notes provide that the Trust
may not pay dividends until the debt is paid in full; however,
the Modified Notes also allow dividends to be paid in the event
the shareholders approve the conversion right of the Modified
Notes and approve an increase in the authorized Shares of the
Trust, or if USAA REALCO, in its sole discretion, permits
dividends to be paid prior to the Modified Notes being fully
paid.
Upon conversion of the Modified Notes into Shares, the Trust
is required to enter into a registration rights agreement with
USAA REALCO granting USAA REALCO the right to demand that the
Trust register the converted Shares or, if the Trust is
registering Shares for its own account, that the Trust also
register the converted Shares.
Amendment to Share Purchase Agreement.
On February 24, 1997, the Trust and USAA REALCO also
executed Amendment No. 1 (the "Amendment") dated as of December
13, 1996 to the Share Purchase Agreement between the Trust and
USAA REALCO (the "Share Purchase Agreement"), which Amendment
amends the Share Purchase Agreement regarding the right of USAA
REALCO under the Share Purchase Agreement to require the Trust to
increase the number of Trust Managers on the Board of Trust
Managers and to require the Board of Trust Managers to fill such
vacancies with designees of USAA REALCO. Under the Amendment,
the vacancies created by such an increase in the Board of Trust
Managers shall not be filled by the Board, but may only be filled
by a vote of the Trust's shareholders. The Trust is still
required under the Amendment to nominate persons designated by
USAA REALCO for election by the shareholders at any special
meeting to consider the filling of these vacancies.
Item 7. Financial Statements and Exhibits
The following are filed herewith as Exhibits to this Form 8-K:
10.1 Renewal, Extension, Modification and Amendment
Agreement dated as of February 26, 1997, by and between American
Industrial Properties REIT and USAA Real Estate Company.
10.2 Amendment No. 1 to Share Purchase Agreement dated as of
December 13, 1996, between American Industrial Properties REIT
and USAA Real Estate Company.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
AMERICAN INDUSTRIAL PROPERTIES REIT
/s/ Charles W. Wolcott
Charles W. Wolcott
President and Chief Executive Officer
DATE: February 26, 1997
Index to Exhibits
Exhibit No. Description Sequentially
Numbered Page
10.1* Renewal, Extension, Modification and
Amendment Agreement dated as of February 26, 1997, by and between
American Industrial Properties REIT and USAA Real Estate Company.
10.2* Amendment No. 1 to Share Purchase Agreement
dated as of December 13, 1996, between American Industrial
Properties REIT and USAA Real Estate Company.
* Filed herewith.
Exhibit 10.1
RENEWAL, EXTENSION, MODIFICATION AND
AMENDMENT AGREEMENT
THIS RENEWAL, EXTENSION, MODIFICATION AND AMENDMENT
AGREEMENT (this "Agreement") is dated effective as of February
26, 1997. The parties hereto are AMERICAN INDUSTRIAL PROPERTIES
REIT (formerly known as Trammell Crow Real Estate Investors)
("Borrower"), whose address is 6220 North Beltline, Suite 205,
Irving, Texas 75063-2656, Attention: Mr. Charles Wolcott, and
USAA REAL ESTATE COMPANY ("Lender"), whose address is 8000 Robert
F. McDermott Freeway, Suite 600, San Antonio, Texas 78730,
Attention: Mr. T. Patrick Duncan.
RECITALS:
Borrower executed and delivered to The Manufacturers Life
Insurance Company (the "Original Note Holder"): (i) a promissory
note dated February 27, 1992 ("Note A"), in the original
principal sum of Twenty-Three Million Two Hundred Sixty-One
Thousand Three Hundred Seventeen and 66/100 Dollars
($23,261,317.66) bearing interest on the unpaid balance thereof
at the rate or rates therein stated, with a final stated maturity
of November 27, 1997, and (ii) a promissory note dated February
27, 1992 ("Note B"), in the original principal sum of Nineteen
Million One Hundred Forty-Three Thousand Six Hundred Forty-Six
and 92/100 Dollars ($19,143,646.92), bearing interest on the
unpaid balance thereof at the rate or rates therein stated, with
a final stated maturity of November 27, 1997.
Note A and Note B were issued pursuant to that certain Note
Purchase Agreement dated February 27, 1992 (the "Note Purchase
Agreement") between Borrower and the Original Note Holder. Note
A and Note B were subsequently assigned by the Original Note
Holder to The Manufacturers Life Insurance Company (U.S.A.) ("MLI
USA"). Note A, Note B and the Note Purchase Agreement were
amended in certain respects pursuant to: (i) that certain
Settlement Agreement (the "Settlement Agreement") dated May 22,
1996, executed by and between Borrower, Patapsco #1 Limited
Partnership, Patapsco #2 Limited Partnership, the Original Note
Holder and MLI USA, and (ii) that certain Option Agreement (the
"Option Agreement") dated May 22, 1996, executed by and between
Borrower, the Original Note Holder and MLI USA. The liens,
security interests and assignments created by all documents and
instruments now or hereafter governing, evidencing, or securing
or otherwise relating to payment of all or any part of the
indebtedness evidenced by Note A and Note B (collectively, the
"Credit Documents") are hereinafter collectively called the
"Liens".
Note A, Note B, the Liens and MLI USA's rights under the
Note Purchase Agreement, the Settlement Agreement and the Option
Agreement were acquired by Lender pursuant to separate Assignment
of Note and Transfer of Liens dated of even effective date
herewith from MLI USA in favor of Lender.
Borrower and Lender now agree to, among other matters
specified herein, renew, extend and rearrange Note A and Note B,
make certain other changes to Note A and Note B, to terminate the
Note Purchase Agreement, the Settlement Agreement and the Option
Agreement and to release the Liens and confirm that they no
longer secure Note A and Note B, as renewed, extended and
rearranged, all as set forth in the succeeding provisions of this
Agreement (which shall control over any conflicting or
inconsistent recitals above).
AGREEMENTS:
In consideration of the premises and the mutual agreements
herein set forth, Borrower and Lender hereby agree as follows:
1. Certain Definitions. The following words and terms
shall, unless the context otherwise requires, have the meanings
provided below:
(a) "Chapter One" means Chapter One of Title 79, Texas
Revised Civil Statutes, 1925, as amended.
(b) "Ceiling Rate" means, on any day, the maximum
nonusurious rate of interest permitted for that day by whichever
of applicable federal or Texas laws permits the higher interest
rate, stated as a rate per annum. On each day, if any, that
Chapter One establishes the Ceiling Rate, the Ceiling Rate shall
be the "indicated rate ceiling" (as defined in Chapter One) for
that day. Lender may from time to time, as to current and future
balances, implement any other ceiling permitted under Chapter One
by notice to Borrower, if and to the extent permitted by, Chapter
One. Without notice to Borrower or any other person or entity,
the Ceiling Rate shall automatically fluctuate upward and
downward as and in the amount by which such maximum nonusurious
rate of interest permitted by applicable law fluctuates.
(c) "Maturity Date" means the amended and extended
maturity date for the Renewal note (as hereinafter defined),
December 31, 2000, as the same may hereafter be accelerated
pursuant to the provisions of the Renewal Note, any of the other
Credit Documents or this Agreement.
(d) "Past Due Rate" means, on any day, a rate per annum
equal to the Ceiling Rate for that day, or only if applicable law
imposes no maximum nonusurious rate of interest for that day,
then the Past Due Rate for that day shall be a rate per annum
equal to eighteen percent (18%) per annum.
2. Note Purchase Agreement Terminated. Borrower and Lender
hereby agree that Note Purchase Agreement is hereby terminated
and of no continuing force and effect effective as of the
effective date of this agreement.
3. Settlement Agreement Terminated. Borrower and Lender
(Patapsco #1 Limited Partnership and Patapsco #2 Limited
Partnership currently in the process of being dissolved) hereby
agree that the Settlement Agreement is hereby terminated and of
no continuing force and effect effective as of the effective date
of this Agreement.
4. Option Agreement Terminated. Borrower and Lender hereby
agree that the Option Agreement is hereby terminated and of no
continuing force and effect effective as of the effective date of
this Agreement.
5. AIP Partnership Interest Pledge Terminated. Borrower
and Lender hereby agree that the AIP Partnership Interest Pledge
(as defined in the Settlement Agreement) is hereby terminated and
of no continuing force and effect effective as of the effective
date of this Agreement.
6. Stock Pledge Agreement Terminated. Borrower and Lender
hereby agree that the Stock Pledge Agreement (as defined in the
Settlement Agreement) is hereby terminated and of no continuing
force and effect effective as of the effective date.
7. Balance. Borrower and Lender hereby agree that
notwithstanding the unpaid principal balances of Note A and Note
B reflected in the books and records of MLI USA, the present
unpaid principal balance of Note A is Three Million One Hundred
Seventy-Eight Thousand Five Hundred Twenty-One and 66/100 Dollars
($3,178,521.66) and the present unpaid principal balance of Note
B is Three Million Eight Hundred Sixty-Two Thousand One Hundred
Ninety-Nine and 71/100 Dollars ($3,862,199.71). No amounts
remain unadvanced against Note A or Note B, and Lender shall have
no obligation to make any advances under Note A, Note B or any of
the other Credit Documents.
8. Renewal Note. To facilitate the administration of Note
A and Note B, Borrower has contemporaneously with the execution
of this Agreement executed a new promissory note (the "Renewal
Note") in favor of Lender in the original principal amount of
Seven Million Forty Thousand Seven Hundred Twenty-One and 37/100
Dollars ($7,040,721.37) in the form attached hereto as Exhibit A
which is given to the full extent thereof in renewal, extension
and rearrangement (but not extinguishment) of the remaining
principal balances Note A and Note B referenced in Paragraph 7
immediately above.
9. Loan Covenants.
(a) Borrower will deliver, or cause to be delivered, to
Lender:
(i) Borrower shall furnish or cause to be
furnished to Lender within five (5) business days after Borrower
is required to file the same with the Securities and Exchange
Commission ("Commission"), copies of the periodic information,
documents and other reports which Borrower is required to file
with the Commission pursuant to Section 13(a) of the Exchange
Act. If Borrower ceases to be required to file information,
documents and other reports pursuant to Section 13 of the
Exchange Act, it shall remain obligated to furnish the same
information, documents and reports otherwise required under
Section 13(a) of the Exchange Act to Lender within five (5)
business days after Borrower would have been required to file the
same with the Commission; and
(ii) Borrower shall furnish or cause to be
furnished to Lender, within five (5) business days after the
effective date thereof, copies of any amendment or modification
to its By-Laws and Declaration of Trust.
(b) Borrower will at all times before the satisfaction
of the Renewal Note maintain and keep in force substantially
similar insurance coverages relating to its real property assets
as maintained by Borrower as of the date of this Agreement,
including but not limited to liability coverage of at least
$2,000,000.00.
(c) Borrower shall pay, when due, all taxes,
assessments and governmental charges or levies imposed upon it
and all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and any other like person or entity
which, if unpaid, might result in the creation of a lien upon the
income of Borrower or its assets; provided that items of the
foregoing description need not be paid while being contested in
good faith and by appropriate proceedings.
(d) Borrower shall not make distributions to
shareholders until such time as: (i) the Renewal Note is
satisfied in full; (ii) Borrower obtains the Shareholder Approval
described in Paragraph 10 immediately below; or (iii) Lender
otherwise grants its prior written approval thereto.
(e) Borrower shall promptly pay and discharge when due
all debts, claims, liabilities and obligations with respect to
any clean-up measures necessary for Borrower to comply with
Applicable Environmental Laws. Borrower hereby indemnifies and
agrees to defend and hold Lender and its successors and assigns
harmless from and against any and all third party claims,
demands, causes of action, loss, damage, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs)
of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Lender at any time
and from time to time including, without limitation, those
asserted or arising subsequent to the payment or other
satisfaction of the Renewal Note, by reason of or arising out of
the ownership, construction, occupancy, operation, use and
maintenance of any of Borrower's real property assets, INCLUDING
MATTERS ARISING OUT OF THE NEGLIGENCE OF LENDER; provided,
however this indemnity shall not apply with respect to matters
caused by or arising out of (i) the gross negligence or willful
misconduct of Lender (it being the express intention of the
parties hereto that Lender shall be indemnified from the
consequences of their negligence; and (ii) the construction,
occupancy, operation, use and maintenance of Borrower's real
property assets by any lessee or party in possession of any such
asset subsequent to the ownership of such asset by Borrower. The
foregoing indemnity and agreement applies to the violation of any
Applicable Environmental Law prior to the payment or other
satisfaction of the Renewal Note and any act, omission, event of
circumstance existing or occurring on or about Borrower's real
property assets (including without limitation the presence on
such assets or release from such assets of asbestos or other
hazardous substances or solid waste disposed of or otherwise
presenting or released prior to the payment or other satisfaction
of the Renewal Note. It shall not be a defense to the covenant
of Borrower to indemnify that the act, omission, event or
circumstance did not constitute a violation of any Applicable
Environmental Law at the time of its existence or occurrence.
The terms "hazardous substance" and "release" shall have the
meanings specified in the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), and the terms "solid waste"
and "disposed" shall have the meanings specified in the Resource
Conservation and Recovery Act of 1976 ("RCRA"); provided, to the
extent that any other applicable laws of the United States of
America or political subdivision thereof establish a meaning for
"hazardous substance", "release", "solid waste", or "disposed"
which is broader than that specified in either SARA or RCRA, such
broader meaning shall apply. As used in this Agreement,
"Applicable Environmental Law" shall mean and include the
singular, and "Applicable Environmental Laws" shall mean and
include the collective aggregate of the following: Any law,
statute, ordinance, rule, regulation, order or determination of
any governmental authority or any board of fire underwriters (or
other body exercising similar functions), or any restrictive
covenant or deed restriction (recorded or otherwise) affecting
any of Borrower's real property assets pertaining to health,
safety or the environment, including, without limitation, all
applicable zoning ordinances and building codes, flood disaster
laws and health, safety or the environment, including without
limitation, the comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, the Superfund Amendments
and Reauthorization Act of 1986, the Occupational Safety and
Health Act and any federal, state or municipal laws, ordinances,
regulations or law which may now or hereafter require removal of
asbestos or other hazardous wastes from any of Borrower's real
property assets or impose any liability on Lender related to
asbestos or other hazardous wastes in any such assets. The
provisions of this Paragraph 9(e) shall survive the repayment or
conversion of the Renewal Note, and shall continue thereafter in
full force and effect. In the event of the transfer of the
Renewal Note or any portion thereof, in accordance with this
Agreement, Lender or any prior holder of the Renewal Note and any
participants permitted under this Agreement shall continue to be
benefitted by this indemnity and agreement with respect to the
period of such holding of the Renewal Note.
(f) Borrower shall execute and deliver or cause to be
executed and delivered to Lender upon Lender's reasonable request
such other and further instruments or documents as in the
reasonable judgment of Lender to conform, create, evidence,
preserve or maintain Lender's rights hereunder or under the
Renewal Note, and Borrower shall do all such additional acts,
give such assurances and execute such instruments as Lender may
reasonably require to vest more completely in and assure to
Lender its rights under this Agreement and the Renewal Note.
10. Recapitalization Plan; Shareholder Approval. Borrower
covenants and agrees to promptly commence and thereafter use
Borrower's best efforts to secure appropriate and required
approval of Borrower's shareholders ("Shareholder Approval") of
the following:
(a) Subject to Shareholder Approval, Borrower hereby
grants Lender the option and right at any time prior to the
Maturity Date upon written notice to Borrower to convert all or
any part of the principal balance of the Renewal Note into a
number of common shares of beneficial interest, $.10 par value
per share, of Borrower (the "Shares") determined as follows:
P / C = S
where: (i) "P" equals the aggregate principal balance of the
Renewal Note subject to the conversion by Lender; (ii) "C" equals
the applicable conversion price, being either (x) $2.00 if the
conversion occurs on or before December 31, 1997, or (y) $2.25 if
the conversion occurs on or after January 1, 1998 but before the
Maturity Date; and (iii) "S" equals the applicable number of
Shares.
(b) In the event Borrower fails to obtain Shareholder
Approval of the conversion option specified in subparagraph (a)
immediately above on or before June 30, 1997, the following shall
be applicable to the Renewal Note notwithstanding any contrary
provisions contained in this Agreement:
(i) Commencing July 1, 1997 the unpaid principal
balance of the Renewal Note from time to time outstanding shall
bear interest at the Past Due Rate; and
(ii) The Maturity Date shall automatically be
amended and accelerated to be October 31, 1997.
(c) Lender and Borrower acknowledge and agree that upon
Lender's conversion of all or a portion of the principal balance
of the Renewal Note into Shares after Shareholder Approval,
Borrower and Lender shall execute a Registration Rights Agreement
relating to the resale of the applicable Shares. Such
Registration Rights Agreement shall be in substantially the same
form as the Registration Rights Agreement executed by and between
Borrower and Lender dated December 13, 1996, to which reference
is hereby made for all purposes.
11. Lien Release; Miscellaneous. The Liens are hereby
terminated and released, and no longer continue to secure the
payment of the Renewal Note, and Lender shall execute such other
documents as Borrower shall reasonably request to further
evidence the termination and release of the Liens. To the extent
of any conflict between the Renewal Note or any of the other
Credit Documents (or any earlier modification of any of them) and
this Agreement, this Agreement shall control. This Agreement (a)
shall bind and benefit Borrower, and, except as herein expressly
limited, Lender and their respective heirs, beneficiaries,
administrators, executors, receivers, trustees, successors and
assigns (provided, that Borrower shall not assign its rights
hereunder without the prior written consent of Lender); (b) may
be modified or amended only by a writing signed by each party;
(c) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
APPLICABLE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF
AMERICA FROM TIME TO TIME IN EFFECT; (d) may be executed in
several counterparts, and by the parties hereto in separate
counterparts, and each counterpart, when executed and delivered,
shall constitute an original agreement enforceable against all
who signed it without production of or accounting for any other
counterpart, and all separate counterparts shall constitute the
same agreement and (e) embodies the entire agreement and
understanding between the parties with respect to modifications
of instruments provided for herein and supersedes all prior
conflicting or inconsistent agreements, consents and
understandings relating to such subject matter. Borrower
acknowledges and agrees that there are no oral agreements between
Borrower and Lender which have not been incorporated in this
Agreement. If any provision of this Agreement should be
determined by any court of competent jurisdiction to be illegal,
invalid or unenforceable under present or future laws, the
legality, validity and enforceability of the remaining provisions
of this Agreement shall not be affected thereby. Each waiver in
this Agreement is subject to the overriding and controlling rule
that it shall be effective only if and to the extent that (a) it
is not prohibited by applicable law and (b) applicable law
neither provides for nor allows any material sanctions to be
imposed against Lender for having bargained for and obtained it.
Wherever the term "including" or a similar term is used in this
Agreement, it shall be read as if it were "including by way of
example only and without in any way limiting the generality of
the clause or concept referred to." Any exhibits, appendices and
annexes described in this Agreement as being attached to it are
hereby incorporated into it. The headings in this Agreement
shall be accorded no significance in interpreting it.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE 26.02
THIS AGREEMENT, THE RENEWAL NOTE AND ALL OTHER CREDIT
DOCUMENTS EXECUTED BY ANY OF THE PARTIES BEFORE OR SUBSTANTIALLY
CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF, TOGETHER CONSTITUTE
A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
EXECUTED effective as of the date first set forth above.
BORROWER:
AMERICAN INDUSTRIAL PROPERTIES REIT
By: /s/
LENDER:
USAA REAL ESTATE COMPANY
By: /s/
Exhibit 10.2
AMENDMENT NO. 1
to
SHARE PURCHASE AGREEMENT
dated as of December 13, 1996
between
AMERICAN INDUSTRIAL PROPERTIES REIT
and
USAA REAL ESTATE COMPANY
THIS AMENDMENT NO. 1 to the
Share Purchase Agreement, dated as of December 13, 1996 (the
"Initial Agreement"), by and between American Industrial
Properties REIT, a Texas real estate investment trust ("Seller"),
and USAA Real Estate Company, a Delaware corporation ("Buyer"),
is hereby made and entered into effective for all purposes as of
December 13, 1996.
RECITALS
WHEREAS, it was and remains
the intention of the parties hereto that Seller not be
consolidated with Buyer under U.S. generally accepted accounting
principles and other purposes;
WHEREAS, the Initial Agreement
originally executed by the parties contained in Section 6.2(b)
provisions contrary to the intent of the parties at the time of
the execution and delivery of the Initial Agreement;
AGREEMENT
NOW THEREFORE, in
consideration of the premises and the mutual covenants and
agreements set forth in the initial Agreement and this Amendment
No. 1 thereto, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. The first sentence of
Section 6.2(b) of the Initial Agreement is hereby amended and
restated, and an additional second sentence is hereby added, to
read as follows:
In addition to Buyer's
rights under Section 6.2(a), at any time during the three (3)
year period commencing on the Closing Date, Buyer may, by notice
in writing to Seller, require Seller to increase the number of
Trust Managers from five (5) to seven (7), which initial
resulting vacancies shall be filled only by vote of the
shareholders of Seller and not by the Trust Managers. If a
special meeting of shareholders is called to fill the two (2)
initial resulting vacancies prior to an annual meeting of
shareholders after notice by Buyer pursuant to the first sentence
of this Section 6.2(b), Seller shall nominate each of the two (2)
designees of Buyer as Trust Managers.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be executed by
its duly authorized officers on this 26th day of February, 1997,
but effective for all purposes as of December 13, 1996.
USAA REAL ESTATE COMPANY
By: /s/ T. Patrick Duncan
T. Patrick Duncan
Senior Vice President - Operations
AMERICAN INDUSTRIAL PROPERTIES REIT
By: /s/ Charles W. Wolcott
Charles W. Wolcott
President and Chief Executive Officer
