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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 [Fee Required]
For the fiscal year ended December 31, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 [No Fee Required]
Commission File No. 0-28378
AMERICAN ASSET ADVISERS, TRUST, INC.
(Exact name of Registrant as specified in its charter)
Maryland 76-0410050
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
8 Greenway Plaza, Suite 824
Houston, Texas 77046
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (713) 850-1400
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Shares of
Common Stock
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days: Yes X No_____
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Registration S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or informative
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
Aggregate market value of the voting stock held by non-affiliates of the
Registrant:
No Established Trading Market
Indicate the number of shares outstanding of each of the Registrant's classes
of Common Stock, as of the latest practicable date:
1,336,282 shares of Common Stock as of March 18, 1997
DOCUMENTS INCORPORATED BY REFERENCE
1. Portions of the Prospectus of Registrant dated June 18, 1996 (included in
Registration Statement No. 0-28378 of Registrant) and as supplemented
February 6, 1997 and February 28, 1997 are incorporated by reference into
Part III.
PART I
Item 1. Business
American Asset Advisers Trust, Inc. ("Registrant" or "Company") was incorporated
in the state of Maryland on August 17, 1993. Commencing March 17, 1994, the
Company offered up to 2,000,000 shares of Common Stock at $10 per share together
with 1,000,000 warrants exercisable at $9 per share, with one warrant issued
with each two shares purchased. The Company is in the process of registering
shares of Common Stock for issuance upon the exercise of the outstanding
warrants. The warrants are exercisable between March 17, 1997 and March 16,
1998. As of December 31, 1996, 504,126 warrants were outstanding. The shares
and warrants are separately transferable. The initial offering period
terminated on March 15, 1996 with gross proceeds totaling $10,082,520 (1,008,252
shares). In addition, $200,010 (20,001 shares) had previously been purchased
by American Asset Advisers Realty Corporation, ("AAA"). On June 18, 1996, the
Company commenced a follow-on offering of up to $29,250,000 (2,853,659 shares)
of additional shares of its Common Stock. The offering will terminate on
June 17, 1998, unless terminated earlier. As of December 31, 1996, gross
proceeds had been received for $1,810,886 (176,672 shares) in this second
offering bringing the total gross proceeds to $12,093,416 (1,204,925 shares).
The Company focuses on acquiring freestanding properties that are located
primarily on corner or out-parcel locations in strong commercial corridors
near traffic generators, such as major regional malls. These properties are
net-leased to tenants whose net worth is equal to or greater than $40
million. These properties, which attract a wide array of established retail
tenants, offer attractive opportunities for stable current return and potential
capital appreciation. In addition, management believes that the location and
design of properties in this niche provide flexibility in use and tenant
selection and an increased likelihood of advantageous re-lease terms.
The Company has been successful in attracting tenants that operate in
different retail segments, including Radio Shack (leased to the Tandy
Corporation), Blockbuster Music (lease guaranteed by Viacom, Inc.), Popeye's
Famous Chicken (leases guaranteed by AFC, Inc.), OneCare Health Industries,
Inc., Just For Feet, Inc. and Bank United, a Federal Savings Bank.
Properties acquired by the Company are generally newly constructed or recently
constructed as of the time of acquisition. In addition, the Company acquires
only properties that are subject to a lease in order to avoid the risks
inherent in initial leasing. The Company's leases typically provide that the
tenant bears responsibility for substantially all property costs and expenses
associated with ongoing maintenance and operation such as utilities, property
taxes and insurance. Some of the tenants' leases require that the Company is
responsible for roof and structural repairs. In these instances, the
Company normally requires warranties and/or guarantees to mitigate the potential
costs of repairs during the primary terms of the leases.
The Company's leases typically do not limit the Company's recourse against the
tenant and any guarantor in the event of a default, and for this reason are
considered "full-credit" leases. All of the Company's properties have been 100
percent leased since they were acquired by the Company.
All of the Company's business is generated from real estate operations;
therefore, the presentation of industry segment information is not applicable.
During 1996, 63% of the Company's rental income was received from three
properties, each of which individually contributed more than 15% of the rental
income for the year. During 1995, 77% of the Company's rental income was
received from three properties, each of which individually contributed more
than 15% of the rental income for the year. During 1994, each of the three
properties owned by the Company contributed more than 15% of the rental income
for the year. A breakdown of rental income by tenant is included in Note 5 to
the financial statements.
A further description of the Company's business is included in
Management's Discussion and Analysis of Financial Condition and
Results of Operations included in Item 7 of this Form 10-K.
The Objectives of the Company are:
(1) to provide regular distributions to Shareholders. The
Company has paid quarterly distributions to Shareholders since
July 1994 and intends to continue paying quarterly
distributions to Shareholders. Distribution payments may
fluctuate during the life of the Company.
(2) to provide distributions that are partially free from
current taxation. So long as the Company qualifies as a REIT,
it will generally not be taxed on taxable income to the extent
it pays distributions to the Shareholders. Company
distributions will not be currently taxable to Shareholders to
the extent the distributions exceed Company taxable income.
The Company expects to incur less taxable income (and thus
greater cash flow) because of its non-cash deductions for
depreciation. However, depreciation deductions decrease the
Company's tax basis in its properties and thus, will increase
the Company's taxable income when the Company sells these
properties.
(3) to provide Shareholders with long-term appreciation on
their investment. Management believes that the Company can
realize its objective of long-term appreciation of its
property portfolio based on the fact that most of the leases
on the properties in which the Company presently holds
interests contain, and the Company expects that most of the
leases on the additional properties that it will acquire will
contain, periodic rent escalation provisions over the original
and renewal terms of such leases. Because the Company's
properties are and are expected to continue to be valued on
the basis of their ability to produce income, the Company
believes that successive periodic rental income increases
resulting from such escalation provisions should increase the
value of the Company's properties over the long term. There
is of course no assurance the Company will in fact realize
portfolio appreciation.
(4) to provide investors with an inflation hedge. During
times of inflation, it is management's experience that
commodities such as real estate experience price increases
commensurate with increases in inflation. However, inflation
has become a less significant factor in recent years as rates
of inflation have been low. Also, real property which is
subject to long-term leases requiring fixed rents over future
years may not experience an increase in price commensurate
with inflation or commensurate with similar properties which
are not subject to such leases.
(5) to conserve capital. The Company will attempt to conserve
capital by endeavoring to continue to invest in a diversified
portfolio of quality real estate under long-term leases to
creditworthy tenants. The amount of money raised in the
offering will affect the number of properties the Company will
be able to purchase. The more properties the Company
acquires, the more diversified it will be and the less it will
be affected by any single property that does not perform as
expected.
There is no assurance these objectives can be achieved.
Properties
At December 31, 1996, the Partnership owned eight properties, four
directly and four through joint ventures, all in fee simple. Four
of these properties are located in Texas and one each in Arizona,
Georgia, Kansas and Missouri. Although the specific terms of each lease
vary, a summary of the terms of the leases is as follows:
The primary term of the leases ranges from ten to twenty years.
Five of the leases also provide for two to four five-year renewal
options. The leases are all "triple-net" leases whereby the
tenants are responsible for the property taxes, insurance and
operating costs. Annual rental income ranges from $54,056 to
$380,964. Seven of the leases provide for either percentage rents
based on sales in excess of certain amounts, periodic escalations
in the annual rental rates or both.
During 1996, three of the Company's leases each contributed more
than 15% of the Partnership's total rental income. Summarized as
follows are the significant items pertaining to each of these
leases:
OneCare Health Blockbuster Music Blockbuster Music
Industries, Inc. Retail, Inc. Retail, Inc.
Lease Term 10 Years 10 Years 10 Years
Expiration Date of Primary
Term July 2005 December 2004 April 2004
Renewal Options 2 Terms of 5 3 Terms of 5 3 Terms of 5
years each years each years each
Square Footage of
Improvements 14,000 14,047 15,158
Base Annual Rental $ 180,600 $ 187,968 $ 170,527
All of the Company's leases specify a minimum amount of insurance
coverage required to be carried by each tenant. Management of the
Company believes that the insurance policies required to be carried
by the tenants will adequately cover the replacement cost of the
properties and any personal liability losses which the tenants may
sustain.
Property Management
AAA provides management advisory services to the Company. Three of
AAA's five executive officers have an average of over 20 years of
experience in the commercial real estate business. Three of AAA's
five executive officers have worked together for over a decade in
various aspects of net-lease acquisition, funding, leasing and
management. Under the direction of the Company's Board of
Directors, AAA has responsibility for day-to-day operations of the
Company, including investment analysis, acquisitions, due
diligence, asset management and accounting services. The Company's
President and Chief Executive Officer is H. Kerr Taylor, who has
served AAA and its predecessor (H. Kerr Taylor Company) and its
affiliates for over 20 years.
The Company's Board of Directors has maximized the Company's cash
distributions to shareholders by avoiding a relatively fixed
overhead cost structure and, instead, contracting to receive
services from AAA. AAA has provided administrative staff and
facilities to the Company at a cost less than the Company would
incur in providing such personnel and administrative services
itself. At the Company's current asset and revenue levels, the
Company's Board of Directors remains of the view that it is more
economical to employ AAA to provide comprehensive advisory services
than to incur the significant personnel and administrative overhead
required to support the Company's current and anticipated
operations.
Financing - Borrowing Policies
The Company has not yet utilized any debt in connection with the
acquisition or operation of the properties, although the Board of
Directors are permitted to do so at their descretion. In no event,
however, will any borrowings exceed 50% of the fair market value of
a property at the time it is encumbered.
Sale of Properties
The Company expects to sell some or all of its properties over
time. The determination of whether a particular property should be
sold or otherwise disposed of will be made after consideration of
performance of the property and market conditions and will depend,
in part, on the economic benefits of continued ownership. In
deciding whether to sell properties, the Directors will consider
factors such as potential capital appreciation, cash flow and
federal income tax consequences. Affiliates of one or more
Directors may be selected to perform various substantial real
estate brokerage functions in connection with the sales of
properties by the Company. The Company will not sell or lease any
property to the Directors or their Affiliates.
Any net proceeds from the sale of any property may, at the election
of the Directors based upon their then current evaluation of the
real estate market conditions, either be distributed to the
Shareholders or be reinvested in other properties. A reinvestment
in other properties would be feasible only if it can be
accomplished on a tax deferred basis so that the Company will not
suffer any significant adverse tax consequences. Any properties in
which net proceeds from a sale are reinvested will be subject to
the same acquisition guidelines as properties initially acquired by
the Company.
Competitive Conditions
The properties owned by the Company are leased to fast-food and
family style restaurants, retail businesses, banks and to a medical
facility. These businesses face competition from similar
establishments within the surrounding areas.
At the time a property is sold or otherwise disposed of, the
Company will be in competition with others who are also seeking
buyers for their properties.
Employees
The overall management decisions for the day-to-day business
affairs of the Company are made by AAA under the direction of the
Board of Directors. The Company itself has officers and directors,
but no other employees.
Item 2. Properties
At March 18, 1997, the Company owned eight properties in fee
simple, four directly and four through joint ventures with related
parties. Properties are located in Texas, Georgia, Arizona,
Missouri and Kansas. In addition, the Company has entered into an
agreement for the purchase of a property to be constructed in Baton
Rouge, Louisiana. Properties are operated as retail stores, banks,
a fast food and family style restaurant and a medical facility.
Land - The Company's property sites range from approximately 34,000
to 125,000 square feet, depending upon building size and local
demographic factors. Sites purchased by the Company are in high
traffic corridors and have been reviewed for traffic and
demographic pattern and history.
Buildings - The buildings are all single tenant and are generally
rectangular. They are positioned for good exposure to traffic flow
and are constructed from various combinations of stucco, steel,
wood, brick and tile. Buildings range from approximately 2,350 to
15,000 square feet. Buildings are suitable for possible conversion
to various uses, although modifications may be required prior to
use for other operations. There are no plans for renovations or
improvements.
Leases - Tenants are companies whose net worth exceeds a minimum of
$40,000,000. Tenants are diversified by business type and are
represented by the following types of business: consumer
electronics, food, banking, consumer retail and a medical
facility.
Geographic Location - The properties are located within major
metropolitan areas-Standard Metropolitan Statistical Areas -- with
populations that exceed 250,000.
As of December 31, 1996, a total of $12,227,746 has been invested
in properties by the Company on a consolidated basis. This includes
land, building and acquisition costs. A further description of the
Company properties, including acquisition fees and certain
acquisition expenses, is included in Item 1 and in Schedule
III-Real Estate Owned and Accumulated Depreciation of this Form
10-K.
Item 3. Legal Proceedings
The Company does not have any material legal proceedings pending.
Item 4. Submission of Matters to a Vote of Security Holders
During the fiscal year ended December 31, 1996, the election of the
following directors was submitted to a vote of security holders
through the solicitation of proxies or otherwise:
Robert S. Cartwright, Jr., George A. McCanse, Jr., and H. Kerr Taylor.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
As of March 18, 1997, there were approximately 791 record holders
of 1,336,282 shares of the Company's Common Stock. No established
public trading market currently exists for the stock.
For the years ended December 31, 1996, 1995 and 1994, the Company
paid distributions of $737,277, $419,085, and $126,235,
respectively. A summary of the distributions by quarter is as
follows:
Quarter Ended 1996 1995 1994
March 31 $162,725 $ 84,500 $ 0
June 30 180,921 97,306 10,533
September 30 186,453 107,803 47,351
December 31 207,178 129,476 68,351
The second quarter of 1994 marked the beginning of the Company's
regular operations and, consequently, the beginning of regular
quarterly distribution payments. The Company intends to continue
the payment of regular quarterly distributions. There are currently
no material legal restrictions that would limit the Company's
ability to pay distributions.
For every two shares of stock acquired pursuant to the Company's
initial public offering, an investor also received one warrant.
These warrants are exercisable at $9 per share between March
17,1997 and March 16, 1998. At December 31, 1996, 504,126 warrants
were outstanding.
Item 6. Selected Financial Data
1996 1995 1994 1993(1)
Operating revenue $ 924,788 $ 495,137 $ 121,642 $ -
Net income (loss) $ 542,807 $ 163,446 $ 79,545 $ (1,325)
Per share data:
Net income (loss) $ .50 $ .24 $ .32 $ (.07)
Income before depreciation,
amortization and special
compensation (2) $ .64 $ .66 $ .51 $ .005
Distributions $ .71 $ .64 $ .35 $ .005
Total assets $ 14,126,834 $ 8,970,623 $ 5,109,739 $ 197,615
Long-term obligations $ 0 $ 0 $ 0 $ 0
(1) Represents the period from August 17, 1993, to December 31, 1993.
(2) This per share amount reflects the Company's operating
profit before deductions for depreciation, amortization and
special compensation. The special compensation authorized
in 1995 for the president (See "Management's Discussion and
Analysis of Financial Condition and Results of Operations")
has not yet been paid. Although the special compensation
is now payable, the president has not requested payment.
At the time of such request, payment will be made in cash
or shares, depending upon the availability of cash for such
payment, at the discretion of the Board of Directors.
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
The Company was organized on August 17, 1993 to acquire, either
directly or through joint venture arrangements, undeveloped, newly
constructed and existing net-lease real estate that is located
primarily on corner or out-parcel locations in strong commercial
corridors, to lease on a net-lease basis to tenants having a
minimum net worth of $40 million and to hold the properties with
the expectation of equity appreciation producing a steadily rising
income stream for its Shareholders.
Liquidity and Capital Resources
The initial issuance of 20,001 shares of stock for $200,010 was to
AAA. On March 17, 1994, the Company commenced an offering of
2,000,000 Shares of Common Stock, together with 1,000,000 Warrants
(collectively "Securities"). Until the completion of the offering
in March 1996, the Securities were offered on the basis of two (2)
Shares of Common Stock and one (1) Warrant for a total purchase
price of $20.00. The Shares and Warrants are separately
transferable by an investor. The Company is in the process of
registering shares of Common Stock for issuance upon the exercise
of the outstanding warrants. Each Warrant entitles the holder to
purchase one Share for $9.00 during the period which is between
March 17, 1997 and March 16, 1998. As of December 31, 1996,
504,126 warrants were outstanding. The offering period for the
initial public offering terminated on March 15, 1996 with gross
proceeds totaling $10,082,520 (1,008,252 shares). On June 18,
1996, the Company commenced a follow-on offering of up to
$29,250,000 (2,853,659 shares) of additional shares of its common
stock. The offering will terminate June 17, 1998 unless terminated
earlier. As of December 31, 1996, gross proceeds had been received
for $1,810,886 (176,672 shares) in this second offering bringing
the total gross proceeds to $12,093,416 (1,204,925 shares).
The Company has an investment strategy of acquiring properties and
leasing them under net-leases to corporations having a minimum net
worth of $40 million, which strategy minimizes the Company's
operating expenses. The Company believes that the leases will
continue to generate cash flow in excess of operating expenses. Due
to low operating expenses and ongoing cash flow, the Company does
not believe that large working capital reserves are necessary at
this time. In addition, because all leases of the Company's
Properties are and are intended to continue to be on a net-lease
basis, it is not anticipated that a large reserve for maintenance
and repairs will be necessary. The Company intends to distribute
a significant portion of its funds from operations unless it
becomes necessary to maintain additional reserves.
On August 22, 1995, the Board of Directors approved a special
compensation payment for the president in the amount of $150,000
for services provided from August 1993 through August 1995. The
president has received no other compensation from the Company for
serving as its president. In connection with the special
compensation payment, the Company executed a demand note in the
amount of $150,000, the payment of which could not be demanded
prior to the earlier of July 15, 1996 or the receipt of $10,000,000
from the Company's initial public offering. The note is payable in
cash or shares depending on the availability of cash for such
payment. No compensation arrangements were considered by the
Directors prior to August 22, 1995, because in their judgement, the
Company had not raised sufficient funds to award such compensation.
The compensation had not been accrued prior to August 22, 1995
because its payment was uncertain and the level of compensation had
not been determined until the August 1995 meeting of the Board of
Directors. As of the termination of the initial public offering in
March 1996, the Company had raised in excess of $10,000,000.
Although the president can demand payment on the note, such demand
has not been made. The decision regarding the nature of the
payment, whether in stock or cash, will be made by the Board of
Directors at the time the president demands payment. In
consideration that no payment has been demanded by the president
for the special compensation payment, the Board of Directors
approved at its August 1, 1996 meeting the payment of interest to
the president on the outstanding note at an annual rate of 8%. This
interest payment will be paid in cash or in stock. As of December
31, 1996, $5,000 of interest has been accrued related to this note.
Should the note and interest be paid in cash, such payment would
reduce the funds from operations available for distribution and,
therefore, would decrease the distributions to shareholders.
No decisions as yet have been made with respect to any additional
compensation for any period after August 1995. The Board of
Directors commissioned an external study with respect to the amount
and type of compensation which could be paid in the future to
officers and/or directors, as well as the contingencies and
performance standards on which compensation will be determined.
The compensation portion of the study has been completed and will
be considered at such time as the Board determines in the future to
consider a new compensation arrangement. Accordingly, the financial
statements do not include any accruals for compensation subsequent
to August 1995.
As of December 31, 1996, the Company had acquired four Properties
directly and four Properties through joint ventures with related
parties and had invested $8,602,293, including certain acquisition
expenses related to the Company's investment in these properties.
These expenditures resulted in a corresponding decrease in the
Company's liquidity. On December 11, 1996, the Company entered
into an agreement for the purchase of a property to be constructed
in Baton Rouge, Louisiana. The purchase price for the property
totals approximately $2,670,000 and will be paid with funds raised
from the public offering and through a joint venture with a related
party. The Company's interest in the joint venture is 51%.
Until Properties are acquired by the Company, proceeds are held in
short-term, highly liquid investments which the Company believes to
have appropriate safety of principal. This investment strategy has
allowed, and continues to allow, high liquidity to facilitate the
Company's use of these funds to acquire properties at such time as
properties suitable for acquisition are located. At December 31,
1996, the Company's cash and cash equivalents totaled $1,616,311.
The Company made cash distributions to the Shareholders during each
quarter of 1996 and 1995 and during the last three quarters of
1994, distributing a total of $737,277, $419,085, and $126,235,
respectively, for each such fiscal year to the investors.
Inflation has had very little effect on income from operations.
Management expects that increases in store sales volumes due to
inflation as well as increases in the Consumer Price Index
(C.P.I.), may contribute to capital appreciation of the Company
Properties. These factors, however, also may have an adverse impact
on the operating margins of the tenants of the Properties.
Results of Operations
Years Ended December 31, 1996 and 1995:
During 1996, the Company acquired three Properties at an aggregate price of
$3,037,951 and also received $3,346,249 in net proceeds from the public
offering. Both of these factors contributed to an increase in total revenues
to $1,062,316 in 1996 from $623,084 in 1995. $429,651 of this increase
came from rental activities and the remaining $9,581 came from interest income.
Income from rental activities included income from the three new acquisitions
in 1996 and also included a full year of income from two Properties which were
acquired in the third quarter of 1995. Interest income resulted from earnings
on the Company's short-term money market investments.
The Company's operating expenses decreased from $367,260 in 1995 to $302,857
in 1996 primarily from a decrease in executive compensation of $150,000
discussed above partially offset by an increase in administrative expenses and
depreciation which resulted from the overall increase in the activity of the
Company.
Years Ended December 31, 1995 and 1994:
During 1995, the Company acquired its fourth and fifth Properties at an
aggregate price of $2,716,768 and also received $3,022,733 in net proceeds
from the initial public offering. Both of these factors contributed to an
increase in total revenues to $623,084 in 1995 from $159,206 in 1994.
$373,495 of this increase came from rental activities and the remaining
$90,383 came from interest income. Income from rental activities included
income from the two new acquisitions in 1995 and also included a full year of
income from three Properties which were acquired throughout the last seven
months of 1994. Each of the three Properties acquired in 1994 contributed
more than 15% of the Company's total rental income in 1995. Interest income
included $41,040 of interest received on a short-term construction loan in
addition to the income earned on the Company's short-term money market
investments.
Corresponding to the increase in revenues, expenses also increased in 1995 by
$295,966. This is attributable to an overall increase in the administrative
expenses of the Company as 1995 was the first full year of operation. In
addition, the $150,000 of compensation discussed in preceding paragraphs is
reflected in 1995 operating results.
Item 8. Financial Statements and Supplementary Data.
The response to this item is submitted in Item 14(a) of this report and is
incorporated herein by reference.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
PART III
Item 10. Directors and Executive Officers
The directors and executive officers of the Company are as follows:
Name Age Position Held Officer Since
H. Kerr Taylor 46 President 1993
Chief Executive Officer
Director
Robert S. Cartwright, Jr. 47 Director 1993
George A. McCanse, Jr. 43 Director 1993
Phil P. Moss 66 Executive Vice President 1993
L. Larry Mangum 32 Vice President and Treasurer 1996
H. Kerr Taylor, age 46, serves as the President and Chairman of the Board of
Directors of the Company. Mr. Taylor has been an attorney since 1979, has
earned an M.B.A. at Southern Methodist University, is a real estate broker and
has over twenty years of experience as a specialist in acquiring and operating
income-producing real properties. He has been involved in the development,
analysis, marketing and management of private investment programs investing
in properties since 1975. Mr. Taylor is the president, the sole director and
the sole shareholder of AAA, a Company he founded under a predecessor name in
1983 to own and operate the net lease properties formerly owned and operated
by Mr. Taylor and Taylor affiliates.
From 1995, Mr. Taylor served as a director, and, then, as a non-voting advisory
director, of Park National Bank of Houston until February 1996, at which time
Park National Bank of Houston was purchased by Frost Bank. Mr. Taylor also has
served on the board of directors of a charitable institution. Mr. Taylor is
currently a General Partner or principal of a General Partner of eleven
limited partnerships. Mr. Taylor is a member of the Texas Association of
Realtors and the Texas Bar Association and a former member of the American Bar
Association. Mr. Taylor holds the Series 7,22,24,39 and 63 securities licenses.
Robert S. Cartwright, Jr., age 47, is currently a Professor of Computer Science
at Rice University. Professor Cartwright earned a bachelor's degree magna cum
laude in Applied Mathematics from Harvard College in 1971 and a doctoral degree
in Computer Science from Stanford University in 1977. From September 1976
until June 1980, he served as Assistant Professor of Computer Science at Cornell
University. In July 1980, he joined the faculty of Rice University as Associate
Professor of Computer Science. He was promoted to the rank of Professor in
July 1986. During his sixteen years as a faculty member at Rice University,
he has twice served as Chairman of the Computer Science Department during
1985-1986 and 1989-1990.
Professor Cartwright has compiled an extensive record of professional service.
He was a charter member of the editorial boards of LISP and Symbolic
Computation: An International Journal and ACM Letters on Programming Languages
and Systems. He has served as Program Chair of the ACM Conference on LISP and
Functional Programming and ACM Symposium on Principles of Programming Languages
and as a General Chair for the SIGPLAN Conference on Programming Language
Design and Implementation. He is currently a member of the ACM Turing Award
Committee, which selects the annual recipient of the most prestigious
international prize for computer science research. He is also a member of the
Board of Directors of the Computing Research Association and a former member
of the Computer Science Advanced Placement Committee for the Educational
Testing Service.
Professor Cartwright is an active private investor in equities, bonds, mutual
funds, and real estate. He has also served for two terms on the Rice University
Committee on Fringe Benefits, which advises the University President on
retirement plans.
George A. McCanse, Jr. , age 43, is the President of Value OnLine, Inc., an
online computer communications and data access service for the commercial
real estate valuation industry.
Mr. McCanse is a member of the Appraisal Institute (MAI designation), the
Pension Real Estate Association, and the International Council of Shopping
Centers. He is also a participating member of the Valuation
Committee of the National Council of Real Estate Investment Fiduciaries.
Mr. McCanse resides in New Canaan, Connecticut. He holds a BBA degree from
the University of Texas and has pursued graduate level study in real estate,
architecture and finance. He has also been involved in real estate investing
and development, including the acquisition and sale of over $150,000,000 of
real estate during the 1970s and 1980s.
Phil P. Moss, age 66, is the Executive Vice President of the Company and AAA.
Mr. Moss has been involved as a real estate investor in owning, operating and
managing shopping centers, office buildings, apartment projects, retail outlets
and various other properties for the past 26 years. Specifically in his
capacity with AAA, Mr. Moss has been involved in leasing and property
acquisitions for various companies since 1988. He received his B.B.A. degree
from and did graduate work at the University of Texas. He is a retired Major
in the United States Air Force.
L. Larry Mangum, age 32, serves as Vice President and Treasurer of the Company.
Mr. Mangum is the Vice President of Finance of AAA. Mr. Mangum is responsible
for the financial accounting and reporting relating to the AAA-sponsored
partnerships and their properties. He has over 9 years of accounting
experience, including four years with a public accounting firm. He previously
worked for American General Corporation, a national insurance company, from
1991-1996 as part of a team responsible for supervising their reporting
activities. Mr. Mangum received a B.B.A. degree in accounting from Stephen F.
Austin State University and subsequently earned the CPA designation.
Other individuals who are specialists in their respective fields are utilized
by AAA to perform services on behalf of the twelve Taylor sponsored public and
private real estate limited partnerships and on behalf of the Company.
These individuals are not employees of the Company nor are they employees of
the Taylor-sponsored partnerships, although they do perform various services
and activities for those partnerships.
These individuals are:
Joe Mayer, age 41, is the Chief Operating Officer of AAA. Mr. Mayer has over
twenty years of experience in business, accounting, investments and real estate
transactions. Mr. Mayer is a certified public accountant and worked for a
national public accounting firm. Mr. Mayer received his B.B.A. degree in
accounting from the University of Kentucky.
Jane Costello, age 40, is a certified public accountant and is responsible for
the tax accounting relating to the AAA-sponsored partnerships, the Company and
their properties. She has over 17 years experience as an accountant, including
over 4 years with a national public accounting firm. She has been engaged in
her own accounting practice for the past 7 years. Costello received a B.B.A.
degree in accounting from the University of Texas.
Based on a review of Forms 3 and 4 and amendments thereto furnished to
Registrant pursuant to Rule 16A-3(e) under the Securities Exchange Act of
1934 (the "Exchange Act") during its most recent fiscal year and
Form 5 and amendments thereto furnished to Registrant with respect to its
most recent fiscal year and written representations received pursuant to
Item 405(b)(2)(i) of Regulation S-K, none of the directors or officers of
Registrant or beneficial owners of more than 10% of the shares failed to file
on a timely basis reports required by Section 16(a) of the Exchange Act during
the most recent fiscal year.
Item 11. Executive Compensation
On August 22, 1995, the Board of Directors approved a special compensation
payment for the president in the amount of $150,000 for services provided from
August 1993 through August 1995. The president has received no other
compensation from the Company for serving as its president. In connection
therewith, the Company executed a demand note in the amount of $150,000, the
payment of which could not be demanded prior to the earlier of July 15, 1996,
or the receipt of $10,000,000 from the Company's initial public offering.
The note is payable in cash or stock depending on the availability of cash for
such payment. No compensation arrangements were considered by the Board prior
to this time because the Company had not raised sufficient funds through its
stock offering, as determined by the judgment of the Board, considered
necessary for any compensation to be granted. The compensation had not been
accrued prior to August 22, 1995 because its payment was uncertain and the
level of compensation had not been determined until the August 1995 Board
meeting. As of the termination of the initial public offering in March 1996,
the Company had raised in excess of $10,000,000. Although the president can
demand payment on the note, such demand has not been made. The decision
regarding the nature of the payment, whether in stock or cash, will be made by
the Board of Directors at the time the president demands payment. In
consideration that no payment has been demanded by the president for the
special compensation payment, the Board of Directors approved at its August 1,
1996 meeting the payment of interest to the president on the outstanding note
at an annual rate of 8%. This interest payment will be paid in cash or in
stock. As of December 31, 1996, $5,000 of interest has been accrued
related to this note.
No decisions as yet have been made with respect to any additional compensation
for any period after August 1995. The Board of Directors commissioned an
external study with respect to the amount and type of compensation which
could be paid in the future to officers and/or directors, as well as the
contingencies and performance standards of which compensation will be
determined. The compensation portion of the study has been completed and
will be considered at such time as the Board determines in the future to
consider a new compensation arrangement. Accordingly, the financial statements
do not include any accruals for compensation subsequent to August 1995.
The Company paid each Director a fee of $500 for each meeting in which they
participated and, where applicable, reimbursed directors for travel expenses.
There is no other basis of compensation for the Directors. During 1996, a
total of $15,000 was paid as Directors' Fees.
Item 12. Security Ownership of Certain Beneficial Owners and Management
As of March 18, 1997, no person was known by the Registrant to be the
beneficial owner of more than 5% of the Units of the Registrant.
The following table sets forth, as of March 18, 1997, the beneficial ownership
interest of the Executive Officers and Directors of the Company:
Title of Class Name & Address of Amount & Nature of Percentage of Class
Beneficial Owner Beneficial Ownership
H. Kerr Taylor
5300 Mercer
Common Stock Houston, TX 77005 20,201 Shares * Less than 2%
George McCanse, Jr.
128 Orchard Street
Common Stock New Canaan, CT 06840 500 Shares Less than 1%
Robert S. Cartwright,Jr.
3310 Underwood
Common Stock Houston, TX 77025 1,250 Shares Less than 1%
Officers & Directors 21,951 Shares Less than 2%
* 200 Shares are owned directly and 20,001 Shares are beneficially owned by
AAA. The Common Stock of AAA is wholly owned by H. Kerr Taylor.
Item 13. Certain Relationships and Related Transactions
20,001 Shares of the Company's stock are owned by AAA. The Common Stock of
AAA is wholly owned by H. Kerr Taylor, President and Director of the Company.
Distributions paid to AAA totaled $14,156, $12,903 and $7,877 in 1996, 1995
and 1994, respectively.
In addition, the Company has entered into an Omnibus Services Agreement with
AAA whereby AAA provides property acquisition, leasing, administrative and
management services for the Company. $37,910, and $2,954 were incurred and
paid to AAA during 1996 and 1994, respectively, for such services.
Certain costs have been incurred by AAA in connection with the organization
and syndication of the Company. Reimbursement of these costs become obligations
of the Company in accordance with the terms of the offering. The costs to
organize the Company have been capitalized as Organization Costs. For the year
ended December 31, 1994, $58,110 in reimbursements had been incurred and paid
to AAA. In addition, $98,494 and $64,848 of costs were incurred by AAA in 1996
and 1995, respectively in connection with the issuance and marketing of the
Company's stock. These costs are reflected as issuance costs. $9,256 of these
costs were owed to AAA at December 31, 1995.
In accordance with the terms of the offering, AAA is entitled to receive
property management fees ranging from 2% to 4% of rental income from each of
the Company's properties. No payments have been made to AAA in 1996, 1995
or 1994 for property management fees and the Company has no future
obligations related to these costs.
Acquisition fees, including real estate commissions, finders fees, consulting
fees and any other non-recurring fees incurred in connection with locating,
evaluating and selecting properties and structuring and negotiating
the acquisition of properties are included in the basis of the properties.
Acquisition fees of $222,785, $232,378 and $131,077 were incurred and paid to
AAA during 1996, 1995 and 1994, respectively.
For further information see Notes 4, 7 and 8 to the financial statements and
see the MANAGEMENT AND AFFILIATE COMPENSATION section of the Company's
Prospectus dated June 18, 1996.
PART IV
Item 14. Exhibits, Financial Statements, Schedules and Reports on Form 8-K.
(a) (1) Financial Statements
Independent Auditors' Report
Consolidated Balance Sheets, December 31, 1996 and 1995
Consolidated Statements of Operations for the Years Ended December
31, 1996, 1995 and 1994
Consolidated Statements of Shareholders' Equity for the Years Ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flows for the Years Ended December
31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements for the Years Ended
December 31, 1996, 1995 and 1994
(2) Financial Statement Schedules: See (d) below
(3) Exhibits See (c) below
(b) Reports on Form 8-K filed after September 30, 1996:
(1) February 26, 1997 to report the formation of a joint venture to
acquire a property subject to lease with Just For Feet, Inc.
(c) Exhibits
3 (i) Articles of Incorporation (included as Exhibit 3.1 of the Exhibits
to Registration Statement No. 33-70654 of the Company and
incorporated herein by reference).
3 (ii) Articles of Amendment to the Articles of Incorporation (included
as Exhibit 3 (ii) of the Company's Annual Report on Form 10-K for
the year ended December 31, 1994 and incorporated herein by
reference).
3 (iii) Amended and Restated By-Laws (included as Exhibit 3 (iii) of the
Exhibits to the Company's Annual Report on Form 10-K for the year
ended December 31, 1994 and incorporated herein by reference).
3 (iv) Amended and Restated By-Laws, dated August 1, 1996.
4 (a) Subscription Agreement and Signature Page-Order Form (included
in Exhibit B to the Prospectus of Company dated March 17, 1994,
contained in Registration Statement No. 33-70654 of Company and
incorporated herein by reference).
4 (b) Form of Sales Warrant (included as Exhibit 4.3 to Registration
Statement No. 33-70654 of Company and incorporated herein by
reference).
10 (a) Omnibus Service Agreement by and between Company and American Asset
Advisers Realty Corporation (included as Exhibit 10.2 of the
Exhibits to Registration Statement No. 33-70654 of Company and
incorporated herein by reference).
10(b)(2) Lease between Ironwood Development Corporation, as landlord and
Tandy Corporation, a Delaware corporation, dated August, 1991
(included as Exhibit 10 (b) (2) of the Exhibits to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
and incorporated herein by reference).
10(b)(3) Assignment and Assumption of the Lease between Ironwood Development
Corporation and American Asset Advisers Trust, Inc., dated June 14,
1994 (included as Exhibit 10 (b) (1) of the Exhibits to the
Company's Annual Report on Form 10-K for the year ended December
31, 1994, and incorporated herein by reference).
10(b)(4) Assignment of Guaranties and Warranties from Ironwood Development
Corporation to American Asset Advisers Trust, Inc., dated June 14,
1994 (included as Exhibit 10 (b) (4) of the Exhibits to the
Company's Annual Report on Form 10-K for the year ended December
31, 1995 and incorporated herein by reference).
10(b)(5) Real Estate Sales Agreement between America's Favorite Chicken
Company and AAA Net Realty Fund X, Ltd., dated June 13, 1994
(included as Exhibit 10 (b) (5) of the Exhibits to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
and incorporated herein by reference).
10(b)(6) Lease (the "AFCC Lease") between AAA Net Realty Fund X, Ltd., as
landlord and America's Favorite Chicken Company, as tenant, dated
June 13, 1994 (included as Exhibit 10 (b) (6) of the Exhibits to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and incorporated herein by reference).
10(b)(7) Assignment of the Agreement and the Lease form AAA Net Realty
Fund X, Ltd. to American Asset Advisers Trust, Inc (included as
Exhibit 10 (b) (7) of the Exhibits to the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(8) First Amendment to AFCC Lease, dated July 22, 1994 (included as
Exhibit 10 (b) (8) of the Exhibits to the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(9) Agreement for Purchase and Sale of Real Estate (the "KCBB
Contract") between KCBB, Inc. and AAA Net Realty Fund X, Ltd.,
dated October 12, 1994 (included as Exhibit 10 (b) (9) of the
Exhibits to the Company's Annual Report on Form 10-K
for the year ended December 31, 1995 and incorporated herein by
reference).
10(b)(10) Lease (the "KCBB Lease") between KCBB, Inc., as landlord and Sound
Warehouse, Inc., as tenant, dated November 19, 1993 (included as
Exhibit 10 (b) (10) of the Exhibits to the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(11) Guaranty of KCBB Lease by Blockbuster Entertainment Corporation
(included as Exhibit 10 (b) (11) of the Exhibits to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
and incorporated herein by reference).
10(b)(12) Amendment to the KCBB Contract (included as Exhibit 10 (b) (12)
of the Exhibits to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995 and incorporated herein by
reference).
10(b)(13) Joint Venture Agreement between the Company and AAA Net Realty
Fund X, Ltd., dated October 27, 1994 (included as Exhibit 10 (b)
(3) of the Exhibits to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994, and incorporated herein by
reference).
10(b)(14) Assignment and Assumption of the Lease between KCBB, Inc. and AAA
Joint Venture 94-1, dated November 11, 1994 (included as Exhibit
10 (b) (4) of the Exhibits to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994, and incorporated
herein by reference).
10(b)(15) Assignment from KCBB, Inc. to AAA Joint Venture 94-1, dated
November 11, 1994 (included as Exhibit 10 (b) (15) of the Exhibits
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and incorporated herein by reference).
10(b)(16) Assignment from KCBB, Inc., to AAA Joint Venture 94-1 of
warranties, dated November 11, 1994 (included as Exhibit 10 (b)
(16) of the Exhibits to the Company's Annual Report on Form 10-K
for the year ended December 31, 1995 and incorporated herein by
reference).
10(b)(17) Agreement for Purchase and Sale of Real Estate (the KCBB
Contract II") between KCBB, Inc. and the Company, dated August 9,
1995 (included as Exhibit 10 (b) (17) of the Exhibits to the
Company's Annual Report on Form 10-K for the year ended December
31, 1995 and incorporated herein by reference).
10(b)(18) Lease (the "KCBB Lease II") between KCBB, Inc., as landlord and
Blockbuster Music Retail, Inc., as tenant, dated August 9, 1995
(included as Exhibit 10 (b) (18) of the Exhibits to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
and incorporated herein by reference).
10(b)(19) Amendment to Agreement for Purchase and Sale of Real Estate
Assigning Agreement to AAA Joint Venture 95-2 (included as Exhibit
10 (b) (19) of the Exhibits to the Company's Annual Report on
Form 10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(20) Joint Venture Agreement between the Company and AAA Net Realty
Fund XI, Ltd., dated August 24, 1995 (included as Exhibit 10 (b)
(20) of the Exhibits to the Company's Annual Report on Form 10-K
for the year ended December 31, 1995 and incorporated herein by
reference).
10(b)(21) Assignment and Assumption of the KCBB Lease II between KCBB, Inc.
and AAA Joint Venture 95-2, dated September 12, 1995 (included as
Exhibit 10 (b) (21) of the Exhibits to the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(22) Assignment from KCBB, Inc. to AAA Joint Venture 95-2 of Contracts
and Warranties, dated September 12, 1995 (included as Exhibit 10
(b) (22) of the Exhibits to the Company's Annual Report on Form
10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(23) Agreement for the Purchase and Sale of Real Estate between Turner
Adreac, L.C. and the Company, dated March 31, 1995 (included as
Exhibit 10 (b) (23) of the Exhibits to the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated
herein by reference).
10(b)(24) Assignment of Rents, Leases and Profits from Turner Adreac, L.C.
to American Asset Advisers Trust, Inc., dated March 31, 1995
(included as Exhibit 10 (b) (24) of the Exhibits to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
and incorporated herein by reference).
10(b)(25) Lease (the "OneCare Lease") between Turner Adreac, L.C. and
OneCare Health Industries, Inc., a Texas non-profit corporation,
dated February 17, 1995 (included as Exhibit 10 (b) (25) of the
Exhibits to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 and incorporated herein by reference).
10(b)(26) Assignment and Assumption of the OneCare Lease between Turner
Adreac, L.C. and American Asset Advisers Trust, Inc., dated
September 26, 1995 (included as Exhibit 10 (b) (26) of the Exhibits
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and incorporated herein by reference).
10(b)(27) Assignment of Warranties from Turner Adreac, L.C. to the Company,
dated September 26, 1995 (included as Exhibit 10 (b) (27) of the
Exhibits to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 and incorporated herein by reference).
10(b)(28) Agreement for Purchase and Sale of Real Estate between Company
and Tucson Oracle Limited Partnership (AZ LP), dated January 19,
1996 (included as Exhibit 10 (b) (28) of the Exhibits to the
Company's Annual Report on Form 10-K for the year ended December
31, 1995 and incorporated herein by reference).
10(b)(29) First Amendment to Agreement for the Purchase and Sale of Real
Estate between Company and Tucson Oracle Limited Partnership (AZ
LP), dated June 10, 1996.
10(b)(30) Lease (the "Just For Feet Lease") between Cumberland America
Development Company,Inc. and Just for Feet, Inc., dated August
10, 1995.
10(b)(31) First Amendment to Just For Feet Lease, dated February 29, 1996.
10(b)(32) Second Amendment to Just For Feet Lease, dated May 29, 1996.
10(b)(33) Third Amendment to Just For Feet Lease, dated January, 1997.
10(b)(34) Joint Venture Agreement between the Company and AAA Net Realty Fund
X, Ltd. and AAA Net Realty Fund XI, Ltd., dated April 5, 1996.
10(b)(35) Bill of Sale and Assignment between Tucson Oracle Limited
Partnership and AAA Joint Venture 96-1, dated September 6, 1996.
10(b)(36) Joint Venture Agreement between the Company and AAA Net Realty
Fund XI, Ltd., dated August 8, 1996.
11 Statement regarding computation of per share earnings.
27 Financial Data Schedule.
Items 5, 6, 7 and 8 of Part II and Item 14 of Part IV of this Form 10-K contain
the financial statements, financial statement schedule and other financial
information. No Annual Report or proxy material has yet been provided to
security holders with respect to 1997.
(d) Financial Statements Schedules
Schedule III - Real Estate Owned and Accumulated Depreciation
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf on the 25th of March 1997 by the undersigned, thereunto duly authorized.
American Asset Advisers Trust, Inc.
/s/ H. Kerr Taylor
H. Kerr Taylor, President and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
/s/ H. Kerr Taylor March 25, 1997
H. KERR TAYLOR
President, Chairman of the Board (Chief Executive
Officer and Chief Financial Officer) and Director
/s/ Robert S. Cartwright, Jr. March 25, 1997
ROBERT S. CARTWRIGHT, JR., Director
/s/ George A. McCanse, Jr. March 25, 1997
GEORGE A. McCANSE, JR., Director
/s/ L. Larry Mangum March 25, 1997
L. LARRY MANGUM, Vice President and
Treasurer (Principal Accounting Officer)
ANNUAL REPORT ON FORM 10-K
ITEMS 8, 14(a)(1) AND (2) AND 14(d)
CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995
AND 1994
AND FINANCIAL STATEMENT SCHEDULE
FOR THE YEAR ENDED DECEMBER 31, 1996
AMERICAN ASSET ADVISERS TRUST, INC.
F-1
AMERICAN ASSET ADVISERS TRUST, INC.
INDEX TO FINANCIAL STATEMENTS
Page
FINANCIAL STATEMENTS:
Independent Auditors' Report F-3
Consolidated Balance Sheets, December 31, 1996 and 1995 F-4
Consolidated Statements of Operations for the Years Ended F-5
December 31, 1996, 1995 and 1994
Consolidated Statements of Shareholders' Equity F-6
for the Years Ended December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flows for the Years Ended F-7 to F-8
December 31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements for the Years F-9 to F-14
Ended December 31, 1996, 1995 and 1994
FINANCIAL STATEMENT SCHEDULE:
Schedule III Consolidated Real Estate Owned and Accumulated F-15
Depreciation for the Year Ended December 31, 1996
All other financial statement schedules are omitted as the
required information is either inapplicable or is included in the
financial statements or relates notes.
F-2
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
American Asset Advisers Trust, Inc.
We have audited the accompanying consolidated balance sheets of
American Asset Advisers Trust, Inc. (the "Company") as of
December 31, 1996 and 1995 and the related consolidated
statements of operations, shareholders' equity and cash flows for
each of the three years in the period ended December 31, 1996.
Our audits also included the financial statement schedule listed
in the Index. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an
opinion on the financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present
fairly, in all material respects, the financial position of the
Company as of December 31, 1996 and 1995 and the results of their
operations and their cash flows for each of the three years in
the period ended December 31, 1996 in conformity with generally
accepted accounting principles. Also, in our opinion, such
financial statement schedule, when considered in relation to the
basic financial statements taken as a whole, present fairly in
all material respects the information set forth therein.
DELOITTE & TOUCHE LLP
Houston, Texas
February 14, 1997
F-3
AMERICAN ASSET ADVISERS TRUST, INC.
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
ASSETS 1996 1995
CASH AND CASH EQUIVALENTS $ 1,616,311 $ 1,564,961
ACCOUNTS RECEIVABLE 5,119 -
PROPERTY:
Escrow deposits 75,000 -
Land 4,634,941 2,152,103
Buildings 4,435,713 4,436,074
9,145,654 6,588,177
Accumulated depreciation (195,256) (81,512)
TOTAL PROPERTY 8,950,398 6,506,665
NET INVESTMENT IN DIRECT FINANCING LEASES 3,151,797 582,753
OTHER ASSETS:
Prepaid acquisition costs 74,336 77,761
Prepaid issuance costs 101,399 -
Accrued rental income 74,625 23,845
Organization costs, net of accumulated
amortization of $160,919 and $99,130,
respectively 152,849 214,638
TOTAL OTHER ASSETS 403,209 316,244
TOTAL ASSETS $ 14,126,834 $ 8,970,623
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Accounts payable $ 36,235 $ 67,481
Compensation payable 150,000 150,000
Security deposit 15,050 15,050
TOTAL LIABILITIES 201,285 232,531
MINORITY INTEREST 3,631,847 1,596,169
SHAREHOLDERS' EQUITY
Common stock, $.01 par value,
25,000,000 shares authorized,
1,204,925 and 827,876 shares issued
and outstanding, respectively 12,049 8,279
Additional paid-in capital 10,780,847 7,438,368
Accumulated distributions in excess
of earnings (499,194) (304,724)
TOTAL SHAREHOLDERS' EQUITY 10,293,702 7,141,923
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 14,126,834 $ 8,970,623
See Notes to Consolidated Financial Statements
F-4
AMERICAN ASSET ADVISERS TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1996 1995 1994
REVENUES
RENTAL INCOME FROM OPERATING
LEASES $ 780,768 $ 434,563 $ 93,552
EARNED INCOME FROM DIRECT
FINANCING LEASES 144,020 60,574 28,090
INTEREST INCOME 137,528 127,947 37,564
TOTAL REVENUES 1,062,316 623,084 159,206
EXPENSES
ADMINISTRATIVE 37,910 - 2,954
AMORTIZATION 61,789 61,470 35,265
COMPENSATION - 150,000 -
DEPRECIATION 113,744 66,966 14,546
DIRECTORS' FEES 15,000 16,500 10,500
INTEREST 5,000 - -
LEGAL AND PROFESSIONAL FEES 41,060 49,863 5,531
PRINTING 4,089 7,835 -
OTHER 24,265 14,626 2,498
TOTAL EXPENSES 302,857 367,260 71,294
INCOME BEFORE MINORITY
INTEREST IN NET INCOME OF
CONSOLIDATED JOINT VENTURES 759,459 255,824 87,912
MINORITY INTEREST IN NET INCOME
OF CONSOLIDATED JOINT VENTURES (216,652) (92,378) (8,367)
NET INCOME $ 542,807 $ 163,446 $ 79,545
NET INCOME PER SHARE:
PRIMARY $ .51 $ .24 $ .32
FULLY DILUTED $ .50
WEIGHTED AVERAGE COMMON &
COMMON EQUIVALENT SHARES:
PRIMARY 1,066,353 672,794 251,768
FULLY DILUTED 1,329,494
See Notes to Consolidated Financial Statements
F-5
AMERICAN ASSET ADVISERS TRUST, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
Accumulated
Distributions
Common Additional In Excess of
Stock Paid-In-Capital Earnings Total
Balance at December 31, 1993 $ 200 $ 199,810 $ (2,395) $ 197,615
Issuance of common stock 4,709 4,704,495 - 4,709,204
Issuance costs - (485,300) - (485,300)
Distributions ($.35 per share) - - (126,235) (126,235)
Net income - - 79,545 79,545
Balance at December 31, 1994 4,909 4,419,005 (49,085) 4,374,829
Issuance of common stock 3,370 3,366,175 - 3,369,545
Issuance costs - (346,812) - (346,812)
Distributions ($.64 per share) - - (419,085) (419,085)
Net income - - 163,446 163,446
Balance at December 31, 1995 8,279 7,438,368 (304,724) 7,141,923
Issuance of common stock 3,770 3,810,883 - 3,814,653
Issuance costs - (468,404) - (468,404)
Distributions ($.71 per share) - - (737,277) (737,277)
Net income - - 542,807 542,807
Balance at December 31, 1996 $ 12,049 $10,780,847 $ (499,194) $ 10,293,702
See Notes to Consolidated Financial Statements
F-6
AMERICAN ASSET ADVISERS TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1996 1995 1994
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 542,807 $ 163,446 $ 79,545
Adjustments to reconcile net income
to net cash flows from operating
activities:
Amortization 61,789 61,470 35,265
Depreciation 113,744 66,966 14,546
Increase in minority interest 216,652 92,378 8,367
Decrease (increase) in accounts
receivable (5,119) 69 (69)
Increase (decrease) in accounts
payable (31,246) 66,058 1,423
Increase in compensation payable - 150,000 -
Increase in security deposits - 15,050 -
Cash receipts from direct financing
lease in excess of income recognized 1,017 2,980 100
Increase in escrow deposits (38,250) - -
Increase in accrued rental income (50,780) (23,845) -
Increase in organization costs - (20,355) (234,595)
NET CASH FLOWS PROVIDED BY (USED IN)
OPERATING ACTIVITIES 810,614 574,217 (95,418)
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisitions of real estate:
Accounted for under the operating
lease method (1,695,146) (2,715,431) (2,262,667)
Accounted for under the direct
financing lease method (1,342,805) (1,337) (584,496)
Change in prepaid acquisition costs 3,425 (77,084) (677)
NET CASH FLOWS USED IN INVESTING
ACTIVITIES (3,034,526) (2,793,852) (2,847,840)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common
stock, net 3,346,249 3,022,733 4,223,904
Prepaid issuance costs (101,399) - -
Distributions paid to shareholders (737,277) (419,085) (126,235)
Distributions to minority interest
partners (232,311) (104,639) (10,016)
NET CASH FLOWS PROVIDED BY FINANCING
ACTIVITIES 2,275,262 2,499,009 4,087,653
NET INCREASE IN CASH & CASH EQUIVALENTS 51,350 279,374 1,144,395
CASH & CASH EQUIVALENTS, beginning of
period 1,564,961 1,285,587 141,192
CASH & CASH EQUIVALENTS, end of period $ 1,616,311 $ 1,564,961 $ 1,285,587
See Notes to Consolidated Financial Statements
F-7
AMERICAN ASSET ADVISERS TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1996 1995 1994
SUPPLEMENTAL SCHEDULE OF NON-CASH
FINANCING ACTIVITIES:
Escrow deposit contributed by
partner of the consolidated
joint ventures $ 36,750 $ - $ -
Minority owners share of real
estate acquired:
Accounted for under the
operating lease method $ 787,331 $ 874,943 $ 735,136
Accounted for under the
direct financing lease
method 1,227,256 - -
Total minority owners
share of real estate
acquired $2,014,587 $ 874,943 $ 735,136
See notes to Consolidated Financial Statements.
F-8
AMERICAN ASSET ADVISERS TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS AND NATURE OF OPERATIONS
American Asset Advisers Trust, Inc. ("the Company") was
incorporated on August 17, 1993 as a Maryland corporation. The
initial issuance of 20,001 shares of stock for $200,010 was to
American Asset Advisers Realty Corporation ("AAA"). Commencing
March 17, 1994, the Company offered up to 2,000,000 additional
shares of common stock together with 1,000,000 warrants. The
Company is in the process of registering shares of common stock
for issuance upon the exercise of the outstanding warrants. The
warrants are exercisable at $9 per share between March 17, 1997
and March 16, 1998. As of December 31, 1996, 504,126 warrants
were outstanding. The offering period of the initial public
offering terminated on March 15, 1996 with 1,008,252 shares being
issued. On June 18, 1996, the Company commenced a follow-on
offering of up to 2,853,659 additional shares of its common
stock. The offering will terminate June 17, 1998, unless
terminated earlier. As of December 31, 1996, 176,672 shares in
this second offering were issued, bringing the total shares
issued and outstanding to 1,204,925 shares.
The Company was formed to acquire commercial and industrial real
estate properties using invested and borrowed funds. The
selection, acquisition and supervision of the operation of the
properties is managed by AAA, a related party.
BASIS OF CONSOLIDATION
The consolidated financial statements include the accounts of
American Asset Advisers Trust, Inc. and its four controlled joint
ventures with related parties.
BASIS OF ACCOUNTING
The financial records of the Company are maintained on the
accrual basis of accounting whereby revenues are recognized when
earned and expenses are recorded when incurred.
CASH AND CASH EQUIVALENTS
For purposes of the statement of cash flows, the Company
considers all highly liquid debt instruments purchased with an
original maturity of three months or less to be cash equivalents.
Cash and cash equivalents consist of demand deposits at
commercial banks and money market funds.
REAL ESTATE
Real estate is leased to others on a net lease basis whereby all
operating expenses related to the properties, including property
taxes, insurance and common area maintenance are the
responsibility of the tenant. The leases are accounted for under
the operating lease method or the direct financing lease method.
Under the operating lease method, the properties are recorded at
cost. Rental income is recognized ratably over the life of the
lease and depreciation is charged based upon the estimated useful
life of the property. Under the direct financing lease method,
properties are recorded at their net investment (see Note 3).
Unearned income is deferred and amortized to income over the life
of the lease so as to produce a constant periodic rate of return.
F-9
The Company's lease agreements do not provide for contingent rentals.
The Company obtains an appraisal on each property prior to a property's
acquisition and also performs an annual valuation update to evaluate potential
impairment for each property for which an appraisal is older than twelve months.
This valuation is based on capitalization of income for each property, a review
of current market conditions and any significant events or factors which
would indicate a potential impairment to the value of a property.
DEPRECIATION
Buildings are depreciated using the straight-line method over an
estimated useful life of 39 years.
ORGANIZATION COSTS
Organization costs incurred in the formation of the Company are
amortized on a straight-line basis over five years.
STATEMENT OF CASH FLOWS - SUPPLEMENTAL INFORMATION
No cash was paid for interest during 1996, 1995 or 1994.
FEDERAL INCOME TAXES
The Company is qualified as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, and is,
therefore, not subject to Federal income taxes provided it meets
all conditions specified by the Internal Revenue Code for
retaining its REIT status, including the requirement that at
least 95% of its real estate investment trust taxable income is
distributed by March 15 of the following year.
NET INCOME PER SHARE
The number of shares used in primary net income per share
calculations are based on the weighted average number of shares
of common stock outstanding. The number of shares used in the
fully diluted net income per share calculations are based on the
weighted average number of shares of common stock outstanding and
the assumption that the warrants were exercised using the
treasury stock method.
USE OF ESTIMATES
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company believes the carrying value of financial instruments
consisting of cash, cash equivalents, accounts receivable and
liabilities approximates their fair value.
F-10
2. OPERATING LEASES
A summary of minimum future rentals, exclusive of any renewals,
under noncancellable operating leases in existence at December
31, 1996 is as follows:
1997 $ 932,543
1998 $ 936,961
1999 $ 963,178
2000 $ 988,006
2001 $ 997,043
2002-2016 $ 6,469,568
3. NET INVESTMENT IN DIRECT FINANCING LEASES
The Company's net investment in its direct financing leases at
December 31, 1996 and 1995 included:
1996 1995
Minimum lease payments receivable $ 7,441,043 $ 1,383,086
Unguaranteed residual value 1,557,904 289,209
Less: Unearned income 5,847,150 1,089,542
$ 3,151,797 $ 582,753
A summary of minimum future rentals, exclusive of any renewals,
under the noncancellable direct financing leases are summarized
as follows:
1997 $ 330,229
1998 $ 330,229
1999 $ 333,165
2000 $ 336,590
2001 $ 343,251
2002-2016 $ 5,767,559
4. MINORITY INTEREST
On September 23, 1996, the Company formed a joint venture, AAA
Joint Venture 96-2, with AAA Net Realty Fund XI, Ltd., an
affiliated partnership. The joint venture was formed for the
purpose of acquiring a parcel of land in The Woodlands, Texas
upon which the tenant, Bank United, will construct a branch bank
building at its cost. At the termination of the lease the
improvements will be owned by the joint venture. The Company's
interest in the joint venture is 51%. The minority interest is
49%.
On April 5, 1996, the Company formed a joint venture, AAA Joint
Venture 96-1, with AAA Net Realty Fund XI, Ltd. and AAA Net
Realty Fund X, Ltd., affiliated partnerships, for the purpose of
acquiring a property which is being operated as a Just For Feet
retail store in Tucson, Arizona. The property was purchased on
September 11, 1996 after construction was completed. The
Company's interest in the joint venture is 51.9%. The minority
interest is 48.1%.
On September 12, 1995, the Company formed a joint venture, AAA
Joint Venture 95-2, with AAA Net Realty Fund XI, Ltd., an
affiliated partnership, for the purpose of acquiring a property
in Wichita, Kansas on lease to Blockbuster Music Retail, Inc.
The Company's interest in the joint venture is 51%. The minority
interest is 49%.
F-11
On October 27, 1994, the Company formed a joint venture,
AAA Joint Venture 94-1, with AAA Net Realty Fund X, Ltd., an
affiliated partnership, for the purpose of acquiring a property
in Independence, Missouri on lease to Blockbuster Music Retail,
Inc. The Company's interest in the joint venture is 54.84%. The
minority interest is 45.16%.
5. MAJOR TENANTS
The Company's operations are all related to the acquisition and
leasing of commercial real estate properties. The following
schedule summarizes rental income by lessee for 1996, 1995 and
1994 under both operating lease and direct financing lease
methods of accounting:
1996 1995 1994
Tandy Corporation
(Mesquite, Texas) $ 108,900 $ 108,903 $ 59,290
America's Favorite Chicken
Company (Smyrna, Georgia) $ 91,875* $ 94,118 $ 40,173
Blockbuster Music Retail, Inc.
(Independence, Missouri
and Wichita, Kansas) $ 377,901 $ 238,906 $ 22,179
OneCare Health Industries, Inc.
(Houston, Texas) $ 201,638 $ 53,210 $ -
Just For Feet, Inc.
(Tucson, Arizona) $ 123,244 $ - $ -
Bank United (The Woodlands,
Texas and Houston, Texas) $ 21,230 $ - $ -
Total $ 924,788 $ 495,137 $ 121,642
* Decrease resulted from recognition of earned income
under the direct financing lease method of accounting.
Rental payments received remained unchanged from 1995.
6. FEDERAL INCOME TAXES
The differences between net income for financial reporting
purposes and taxable income before distribution deductions relate
primarily to temporary differences and to certain organization
costs which are amortized for financial reporting purposes only.
For income tax purposes, distributions paid to shareholders
consist of ordinary income, capital gains and return of capital
as follows:
1996 1995 1994
Ordinary Income $ 545,967 $ 342,210 $ 105,456
Capital gains - - -
Return of capital 191,310 76,875 20,779
$ 737,277 $ 419,085 $ 126,235
7. RELATED PARTY TRANSACTIONS
20,001 Shares of the Company's stock are owned by AAA. The
common stock of AAA is wholly owned by the president and director
of the Company. In addition, the Company has entered into an
Omnibus Services Agreement with AAA whereby AAA provides property
acquisition, leasing, administrative and management services for
the Company. $37,910 and $2,954 were incurred and paid to AAA
during 1996 and 1994, respectively, for such services.
F-12
Certain costs have been incurred by AAA in connection with the
organization and syndication of the Company. Reimbursement of
these costs become obligations of the Company in accordance with
the terms of the offering. The costs to organize the Company
have been capitalized as Organization Costs. For the year ended
December 31, 1994, $58,110 in reimbursements had been incurred
and paid to AAA. In addition, $98,494 and $64,848 of costs were
incurred by AAA in 1996 and 1995, respectively, in connection
with the issuance and marketing of the Company's stock. These
costs are reflected as issuance costs. $9,256 of these costs were
owed to AAA at December 31, 1995.
Acquisition fees, including real estate commissions, finders
fees, consulting fees and any other non-recurring fees incurred
in connection with locating, evaluating and selecting properties
and structuring and negotiating the acquisition of properties are
included in the basis of the properties. Acquisition fees of
$222,785, $232,378 and $131,077 were incurred and paid to AAA
during 1996, 1995 and 1994, respectively.
On August 22, 1995, the Board of Directors approved a special
compensation payment for the president in the amount of $150,000
for services provided from August 1993 through August 1995. In
connection therewith, the Company executed a demand note payable
at the earlier of July 15, 1996 or the receipt of $10,000,000
from the Company's stock offering. The note shall be payable in
cash or stock depending on the availability of cash for such
payment. No compensation arrangements were considered by the
Board prior to this time because the Company had not raised
sufficient funds through its stock offering, as determined by the
judgment of the Board, considered necessary for any compensation
to be granted. The compensation had not been accrued prior to
August 22, 1995 because its payment was uncertain and the level
of compensation had not been determined until the August 1995
Board meeting. As of the termination of the initial public
offering in March 1996, the Company had sold in excess of
$10,000,000. Although the president can demand payment on the
note, such demand has not been made. The decision regarding the
nature of the payment, whether in stock or cash, will be made by
the Board of Directors at the time the president demands payment.
In consideration that no payment has been demanded by the
president for the special compensation payment, the Board of
Directors approved at its August 1, 1996 meeting the payment of
interest to the president at an annual rate of 8%. This interest
payment will be paid in cash or in stock. As of December 31,
1996, $5,000 of interest has been accrued related to this note.
No decisions as yet have been made with respect to any additional
compensation for any period after August 1995. The Board of
Directors commissioned an external study with respect to the
amount and type of compensation which could be paid in the future
to officers and/or directors, as well as the contingencies and
performance standards on which compensation will be determined.
The compensation portion of the study has been completed and will
be considered at such time as the Board determines in the future
to consider a new compensation arrangement. Accordingly, the
financial statements do not include any accruals for compensation
subsequent to August 1995.
In accordance with the terms of the Company's public offering, up
to 15% of the gross offering proceeds will be used to pay
aggregate selling commissions and other issuance costs incurred
by the Company. Any excess costs incurred by the Company are the
obligation of AAA. At December 31, 1996, $101,399 of such costs
had been incurred by the Company in excess of the amount allowed
from the offering proceeds. AAA's obligation to fund such costs
is dependent upon future proceeds from the public offering.
See Note 4 for joint venture agreements with related parties.
F-13
8. PROPERTY ACQUISITIONS IN 1996
On December 11, 1996, the Company purchased real estate located
in Houston, Texas for $849,462. The property is a tract of
undeveloped land on which the tenant, Bank United, intends to
construct a branch bank. The lease agreement is for fifteen
years, however the tenant has the option to renew the lease for
one additional term of five years. The lease has provisions for
an escalation in the rent after the fifth and tenth years of the
lease. The Company recorded $5,119 of rental income from Bank
United for 1996.
On December 11, 1996, the Company entered into an agreement with
SCC Baton Rouge JFF, Ltd. for the purchase of a property to be
constructed in Baton Rouge, Louisiana. The property will be
acquired subject to a lease with Just For Feet, Inc. The
purchase price for the property will total approximately
$2,670,000 and will be paid with funds raised from the Company's
stock offering (See Note 1) and through a joint venture with a
related party.
On September 23, 1996, the Company purchased a 51% interest in
real estate located in The Woodlands, Texas through a joint
venture with a related party for the purchase price of $270,300.
The property is a tract of undeveloped land on which the tenant,
Bank United, will construct a branch bank. The lease agreement
extends for fifteen years, however the tenant has the option to
renew the lease for one additional term of five years. The lease
has provisions for an escalation in the rent after the fifth and
tenth years of the lease. The Company recorded $16,111 of rental
income from Bank United for 1996.
On September 11, 1996, the Company acquired a 51.9% interest in
a newly constructed property on lease to Just For Feet, Inc.
through a joint venture with two related parties for the purchase
price of $1,918,189. The lease agreement extends for twenty
years, however the tenant has the option to renew the lease for
two additional terms of five years each. The lease has
provisions for an escalation in the rent after the fifth, tenth,
and fifteenth years of the lease. The Company recorded $123,244
of income from Just For Feet for 1996.
As no buildings had previously been constructed on any of the
properties acquired by the Company during 1996, the rental income
received by the Company from these properties represents the
initial results of operations. Consequently, no pro-forma
information is presented.
F-14
AMERICAN ASSET ADVISERS TRUST, INC.
SCHEDULE III - CONSOLIDATED REAL ESTATE OWNED AND ACCUMULATED DEPRECIATION
FOR THE YEAR ENDED DECEMBER 31, 1996
LIFE ON WHICH
DEPRECIATION
COST AT IN LATEST
PROPERTY ENCUM- IMPROVE- LOSE OF YEAR ACCUMULATED DATE OF DATE INCOME STMT.
DESCRIPTION BRANCES BUILDING LAND MENTS BUILDING LAND DEPRECIATION CONSTR. ACQUIRED IS COMPUTED
PROPERTIES INVESTED IN
UNDER OPERATING LEASES
Radio Shack
Retail Store, Texas $0 $788,330 $337,856 $0 $788,330 $337,856 $51,324 N/A 06-15-94 39 Years
Church's Chicken
Restaurant, Georgia $0 $0 $251,071 $0 $0 $251,071 N/A N/A 07-22-94 N/A
Blockbuster Music
Store, Missouri $0 $490,747 $1,145,410 $0 $490,747 $1,145,410 $62,388 N/A 11-14-94 39 Years
OneCare Health
Industries, Inc., Texas $0 $1,246,560 $534,240 $0 $1,246,560 $534,240 $39,954 N/A 09-26-95 39 Years
Blockbuster Music
Store, Kansas $0 $1,255,774 $538,189 $0 $1,255,774 $538,189 $41,590 N/A 09-12-95 39 Years
Just For Feet
Store, Arizona $0 $0 $1,100,910 $0 $0 $1,100,910 N/A N/A 09-11-96 N/A
Bank United,
Woodlands, Texas $0 $0 $531,693 $0 $0 $531,693 N/A N/A 09-23-96 N/A
Bank United,
Houston, Texas $0 $0 $849,874 $0 $0 $849,874 N/A N/A 12-11-96 N/A
Total $0 $3,781,411 $5,289,243 $0 $3,781,411 $5,289,243 $195,256
PROPERTY INVESTED IN UNDER
DIRECT FINANCING LEASE
Church's Chicken
Restaurant, Georgia $0 $585,833 $0 $0 $585,833 $0 (2) N/A 07-22-94 N/A
Just For Feet
Store, Arizona $0 $2,571,259 $0 $0 $2,571,259 $0 (2) N/A 09-11-96 N/A
Total $0 $3,157,092 $0 $0 $3,157,092 $0 (2)
DIRECT
OPERATING FINANCING
(1)Balance at LEASES LEASE
December 31, 1995 $6,588,177 $585,833
Additions during 1996:
Acquisitions through
foreclosure $0 $0
Other acquisitions $2,482,477 $2,571,259
Improvements $0 $0
Deductions during 1996:
Cost of real estate sold $0 $0
Other $0 $0
Balance at
December 31, 1996 $9,070,654 $3,157,092
(2) The portion of the lease relating to the building of this property has
been recorded as a direct financing lease for financial reporting
purposes. Consequently, depreciation is not applicable.
(3) The aggregate cost of all properties for Federal Income Tax purposes is
$12,227,746 at December 31, 1996.
F-15
Exhibit 3 (iv)
AMENDED AND RESTATED BYLAWS
OF
AMERICAN ASSET ADVISERS TRUST, INC.
ARTICLE I
Offices
Section 1.01 Principal Office. The Company's principal office in the
State of Maryland shall be in the City of Baltimore, State of Maryland.
Section 1.02 Principal Executive Office. Unless otherwise determined
from time to time by the Board of Directors, the principal executive office
of the Company shall be in the City of Houston, State of Texas.
Section 1.03 Other Offices. The Company may also have offices at such
other places both in and out of the State of Maryland as the Board of
Directors may from time to time determine or the business of the Company may
require.
ARTICLE II
Meetings of Stockholders
Section 2.01 Place of Meetings. Meetings of the stockholders shall be
held at the office of the Company in the City of Houston and State of Texas,
or at any other place within the United States as shall be designated from
time to time by the Board of Directors and stated in the notice of meeting
or in a duly executed waiver of notice hereof.
Section 2.02 Annual Meetings. Annual meetings of Stockholders shall
be held on such date and time as shall be fixed by the Board of Directors
and stated in the notice of meeting, but in no event less than thirty (30)
days nor more than sixty-one (61) days following the distribution of the
Annual Report to the Stockholders of the Company pursuant to Section 7.03
hereof, at which the Stockholders shall elect a Board of Directors and may
transact any business within the powers of the Company. Any business of the
Company may be transacted at the annual meeting without being specially
designated in the notice, except such business as is specifically required
by law to be stated in the notice.
Section 2.03 Special Meetings. At any time in the interval between
annual meetings, special meetings of the Stockholders, unless otherwise
provided by law or by the Charter, may be called by a majority of the Board
of Directors, a majority of the Independent Directors (as defined in Section
3.01 hereof), or the President or upon the written request of the holders of
shares representing not less than ten percent (10%) of the outstanding shares
entitled to vote at the meeting. Such written request shall be given in
person or by mail and state the purpose or purposes of the proposed meeting,
and the matters proposed to be acted upon at such meeting. No special
meeting need be called upon the request of the holders of less than a
majority of all votes entitled to be cast at such meeting to consider any
matter which is substantially the same as a matter voted upon at any special
meeting of the Stockholders held during the preceding twelve (12) months.
Business transacted at any special meeting of Stockholders shall be limited
to the purposes stated in the notice.
Section 2.04 Notice of Meetings. Not less than ten (10) nor more than
ninety (90) days before the date of every meeting of Stockholders, the
Secretary shall give to each Stockholder entitled to vote at such meeting,
and to each Stockholder not entitled to vote who is entitled by law to
notice, written or printed notice stating the time and place of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, either by mail or by delivering it to him personally or by
leaving it at his residence or usual place of business. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, addressed to the Stockholder at his post office address as
it appears on the records of the Company.
In the case of a special meeting of Stockholders convened at the request
of Stockholders, as provided for in Section 2.03 above, the notice herein
provided for shall be given by the Secretary, in the manner herein provided,
within ten (10) days after receipt of such request of Stockholders. Such a
special meeting shall be held not less than fifteen (15) nor more than sixty
(60) days after receipt of the request of Stockholders. Such meeting shall
be held at the place and time specified in the request or, if none is
specified, at a place and time reasonably believed by the Directors to be
convenient to a majority of the Stockholders.
Section 2.05 Quorum. At any meeting of Stockholders, the presence in
person or by proxy of Stockholders entitled to cast a majority of the votes
shall constitute a quorum; but this Section shall not affect any requirement
of law or under the Company's Charter for the vote necessary for the adoption
of any measure. If, however, such quorum shall not be present or represented
at any meeting of the Stockholders, a majority of the Stockholders entitled
to vote thereat, present in person or represented by proxy, shall have the
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or represented
any business may be transacted which might have been transacted at the meeting
as originally notified.
Section 2.06 Voting. A majority of the votes cast at a meeting of
Stockholders, duly called and in which a quorum is present, shall be
sufficient to take or authorize action upon any matter which may properly
come before the meeting, unless more than a majority of the votes cast
is required by law or by the Company's Charter or by these By-Laws. Except
in the election of Directors, which shall be by written ballot, or unless
required by statute or by these Bylaws or demanded by Stockholders present in
person or represented by proxy entitled to cast twenty-five percent (25%) of
the votes entitled to be cast at a meeting, any vote of Stockholders need not be
by written ballot. On a vote by written ballot, each ballot shall be signed
by the Stockholder or his proxy and shall state the number of shares voted.
Unless any statute or the Company's Charter provide otherwise, each
outstanding share of stock having voting power shall be entitled to one vote
on each matter submitted to a vote at a meeting of Stockholders and will be
fully paid and non-assessable by the Company when the share is issued and
paid for. A Stockholder may vote only the shares owned by him as shown on
the record of Stockholders of the Company as of the record date determined
pursuant to Section 6.05 hereof or pursuant to applicable law. All persons
who were holders of record of shares at such time, and no others, shall be
entitled to vote at such meeting and any adjournment thereof. A Stockholder
may vote the shares owned of record by him either in person or by proxy executed
in writing by the Stockholder or by his duly authorized attorney-in-fact. No
proxy shall be valid after eleven (11) months from its date, unless otherwise
provided in the proxy. At all meetings of Stockholders, unless the voting is
conducted by inspectors, all questions relating to the qualification of voters
and the validity of proxies and the acceptance or rejection of votes shall be
decided by the Chairman of the meeting.
A majority of the then outstanding shares may, without the necessity for
concurrence by the Directors, vote to:
(a) amend the Bylaws;
(b) terminate the Company;
(c) remove the Directors.
With respect to shares owned by the Advisor, the Directors, or any
Affiliates, neither the Advisor, nor the Directors, nor any Affiliate may
vote or consent on matters submitted to the Stockholders regarding the
removal of the Advisor, Directors, or any Affiliate or any transaction between
the Company and any of them. In determining the requisite percentage in
interest of Shares necessary to approve a matter on which the Advisor,
Director and any Affiliate may not vote or consent, any Shares owned by any
of them shall not be included.
Section 2.07 Organization and Order of Business. At each meeting of the
Stockholders, the Chairman of the Board of Directors, or in his absence or
inability to act, the President, or in the absence or inability to act of the
Chairman of the Board and the President, a Vice President, shall act as
Chairman of the meeting. The Secretary, or in his absence or inability to act,
any person appointed by the Chairman of the meeting, shall act as Secretary of
the meeting and keep the minutes thereof. The order of business at all
meetings of the Stockholders shall be as determined by the Chairman of the
meeting.
Section 2.08 Inspectors. The Board of Directors may, in advance of any
meeting of Stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If the inspectors shall not be so appointed or if
any of them shall fail to appear or act, the Chairman of the meeting may, and
at the request of any Stockholder entitled to vote thereat shall, appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath to execute faithfully the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election of a vote with fairness to all Stockholders. On
request of the Chairman of the meeting, any Stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any
fact found by them. No Director or candidate for the office of Director
shall act as inspector of an election of Directors. Inspectors need not be
Stockholders.
Section 2.09 Action Without Meeting. Except as otherwise provided by
statute or the Charter, any action required or permitted to be taken at any
meeting of Stockholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth such action, is
signed by all the Stockholders entitled to notice of a meeting of Stockholders
but not to vote thereat have waived in writing any rights which they may have
to dissent from such action, and such consent and waiver are filed with the
records of Stockholders' meetings.
ARTICLE III
Directors
Section 3.01 Number, Election and Term. The number of Directors of the
Company shall be three (3). By vote of a majority of the entire Board of
Directors, the number of Directors fixed by the Company's Charter or by these
Bylaws may from time to time be increased or decreased, but may not at any time
exceed nine (9) nor be less than three (3); provided, however, that the tenure
of office of a Director shall not be affected by any decrease or increase in
the number of Directors so made by the Board. At all times that the Company
intends to be qualified as a real estate investment trust under the Internal
Revenue Code, a majority of the Board of Directors shall be Independent
Directors (as hereinafter defined). Each Director shall have had at least
three (3) years of relevant experience demonstrating the knowledge and
expedience required to acquire and manage the Company's properties. At least
one (1) of the Independent Directors shall have three (3) years actual direct
experience in acquiring or managing properties similar to those acquired
by the Company for his own account or as an agent. For purposes of these
Bylaws, "Independent Director" shall mean a Director of the Company who is not
employed by, or receiving any compensation (other than Director's fees and
reimbursed expenses) from or otherwise affiliated with, the Company and any
affiliate, and who is not affiliated, directly or indirectly, with any
person(s) or entity, if any, responsible for directing and performing the
day-to-day business affairs of the Company (the "Advisor"), whether by
ownership of, ownership interest in, employment by, any material business or
professional relationship with, or by serving as an officer or Director
of, such Advisor or an affiliated business entity of such Advisor. A Director
shall not be considered independent who serves as a Director of more than three
(3) real estate investment trusts organized by the Company or its affiliates or
has been associated with the Company or its Advisor or Affiliates directly or
indirectly, within the previous two (2) years. Until the first annual meeting
of Stockholders or until successors are duly elected and qualified, the Board
shall consist of the persons named as such in the Company's Charter. At the
first annual meeting of Stockholders and at each annual meeting thereafter, the
Stockholders shall elect Directors to hold office until the next annual meeting
or until their successors are elected and qualify. Directors may be re-elected
by the Stockholders. Directors need not be Stockholders in the Company.
Stockholders wanting to nominate a person for election as a Director shall
deliver written notice of such nomination at least ninety (90) days prior to
an annual meeting of Stockholders and within seven (7) days following the date
on which notice of a special meeting of Stockholders to elect Directors is first
given to Stockholders.
Section 3.02 Powers. The business and affairs of the Company shall be
managed in accordance with the Charter and these Bylaws under the direction of
its Board of Directors and where applicable, the Independent Directors, which
may exercise all of the powers of the Company, except such as are by law or
by the Company's Charter or by these Bylaws conferred upon or reserved to the
Stockholders. At, or before, the first meeting of Directors, the Bylaws of the
Company shall be reviewed and ratified by a majority of the Directors and
Independent Directors.
Section 3.03 Vacancies. Any vacancy occurring in the Board of Directors
for any cause other than by reason of an increase in the number of Directors,
may subject to the provisions of Section 3.08, be filled by a majority of the
remaining members of the Board of Directors, although such majority is less
than a quorum; provided, however, that if the Company has sought to qualify as
a real estate investment trust and in accordance with Section 3.01, a majority
of the Board of Directors are required to be Independent Directors, then
Independent Directors shall nominate replacements for vacancies among the
Independent Directors. Any vacancy occurring by reason of the removal of a
Director by the Stockholders may be filled by a vote of the holders of a
majority of the shares entitled to vote for the election of Directors. Any
vacancy occurring by reason of an increase in the number of Directors may be
filled by action of a majority of the entire Board of Directors. If the
Stockholders of any class or series are entitled separately to elect one or
more Directors, a majority of the remaining Directors elected by that class or
series or the sole remaining Director elected by that class or series may fill
any vacancy among the number of Directors elected by that class or series. A
Director elected by the Board of Directors to fill a vacancy shall be elected
to hold office until the next annual meeting of Stockholders or until his
successor is elected and qualifies.
Section 3.04 Resignations. Any Director or member of a committee may
resign at any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or if no time is specified, at the time
of the receipt by the Chairman of the Board, the President or the Secretary.
The acceptance of a resignation shall not be necessary to make it effective.
Section 3.05 Fiduciary Duty of the Directors. The Directors shall be
charged with a fiduciary duty to the Company and Stockholders and shall also
have a fiduciary duty to the Stockholders to supervise the relationship of
the Company with the Advisor. The Directors shall devote such time to the
affairs of the Company as they, within their sole discretion, exercised in
good faith, determine to be necessary for the benefit of the Company and the
Stockholders of the Company.
Section 3.06 The Board of Directors may appoint from among its members
an Executive Committee, an Audit Committee and other committees comprised of one
(1) or more Directors. In the case of any committee comprised of less than three
(3) individuals, such individuals must all be Independent Directors (as defined
in Section 3.01). In the case of any committee comprised of three or more
individuals, a majority of the members of any committees so appointed shall be
Independent Directors. The Board of Directors may delegate to any committee of
the powers of the Board of Directors except the power to declare dividends or
distributions on stock, recommend to the Stockholders any action which requires
Stockholder approval, amend the By-Laws, approve any merger or share exchange or
issue stock. However, if the Board of Directors is given general authorization
for the issuance of stock, a committee of the Board, in accordance with the
general formula or method specified by the Board of Directors by resolution or
by adoption of stock option plan, may fix the terms of stock subject to
classification or reclassification and the terms on which any stock may be
issued. Notice of committee meetings shall be given in the same manner as
notice for special meetings of Board of Directors.
For any committee comprised of less than three (3) individuals, all of the
members of any such committee shall be present in person at any meeting of
such committee in order to constitute a quorum for the transaction of business
at such meeting, and the unanimous act of those present shall be the act of such
committee. For any committee comprised of three or more individuals, one-third
(1/3), but not less than two (2), of the members of any committee shall be
present in person at any meeting of such committee in order to constitute a
quorum for the transaction of business at such meeting, and the act of a
majority of those present shall be the act of such committee. The Board of
Directors may designate a Chairman of any committee and such Chairman, or, in
the case of a committee with two or more members, any two (2) members of any
such committee may fix the time and place of its meetings unless the Board shall
otherwise provide. In the absence or disqualification of any member of any
such committee, the members thereof present at any meeting any not disqualified
from voting, whether or not they constitute a quorum, may unanimously appoint
another Director to act at the meeting in the place of such absent or
disqualified member; provided, however, that in the event of the absence or
disqualification of an Independent Director, such appointee shall be an
Independent Director.
Each committee shall keep minutes of its proceedings and shall report the same
to the Board of Directors at the meeting next succeeding and any action taken by
the committees shall be subject to revision and alteration by the Board of
Directors, provided that no rights of third persons shall be affected by any
such revision or alteration.
Subject to the provisions hereof, the Board of Directors shall have the power at
any time to change the membership of any committee, to fill all vacancies, to
designate alternate members, to replace any absent or disqualified member, or
to dissolve any committee.
Section 3.07 Meetings of the Board of Directors. Meetings of the Board of
Directors, regular or special, may be held at any place in or out of the State
of Maryland as the Board may from time to time determine or shall be specified
in the notice of such meeting.
The initial meeting of the Board of Directors shall be held as soon as
practicable after the Company has been duly formed in accordance with Maryland
law. The first meeting of each newly elected Board of Directors shall be held
as soon as practicable after the annual meeting of the Stockholders at which the
Directors were elected. The meeting may be held at such time and place as shall
be specified in a notice given as hereinafter provided for special meetings of
the Board of Directors, or as shall be specified in a written waiver signed by
all of the Directors as provided in Article IV, except that no notice shall be
necessary if such meeting is held immediately after the adjournment and at the
site of the annual meeting of Stockholders.
Regular meetings of the Board of Directors may be held without notice at
such time and place as shall from time to time be determined by the Board of
Directors.
Special meetings of the Board of Directors may be called at any time by two
(2) or more Directors or by a majority of the members of the executive
committee, if one be constituted, in writing with or without a meeting of such
committee or by the Chairman of the Board or the President.
Notice of the place and time of every special meeting of the Board of
Directors shall be delivered by the Secretary to each Director either personally
or by telephone, telegram or telegraph, or by leaving the same at his residence
or usual place of business at least forty-eight (48) hours before the time at
which such meeting is to be held, or by first class mail, at least three (3)
days before the day on which such meeting is to be held. If mailed, such
notice shall be deemed to be given when deposited in the United States mail
addressed to the Director at his post office address as it appears on the
records of the Company, with postage thereon prepaid. For purposes of the
Notice requirements provided for herein, the initial meeting of the Board of
Directors following the formation of the Company shall be deemed to be a
special meeting of the Board of Directors.
Section 3.08 Quorum and Voting. At all meetings of the Board, a majority
of the entire Board of Directors shall constitute a quorum for the transaction
of business and the action of a majority of the Directors present at any meeting
at which a quorum is present shall be the action of the Board of Directors
unless the concurrence of a greater proportion, or the concurrence of a majority
of the Independent Directors is required for such action by law, the Company's
Charter or these Bylaws. If a quorum shall not be present at any meeting of
Directors, the Directors present may, by a majority vote, adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Without concurrence of a majority of the outstanding Shares entitled to
vote, the Directors may not:
(a) amend the Bylaws, except for amendments which do not adversely affect
the rights, preferences and privileges of Stockholders including
amendments to provisions relating to, Director qualifications,
fiduciary duty, liability and indemnification, conflicts of interest,
investment policies or investment restrictions;
(b) sell all or substantially all of the Company's assets other than in
the ordinary course of the Company's business or in connection with
liquidation and dissolution;
(c) cause the merger or other reorganization of the Company; or
(d) dissolve or liquidate the Company, other than before the initial
investment in property.
Notwithstanding the first paragraph of this Section 3.08, any action
pertaining to a transaction involving the Company in which any Advisor, any
Director or officer of the Company or any affiliate or any of the foregoing
persons has an interest ("Inside Transaction") shall specifically be approved
with respect to any isolated transactions or generally be approved with respect
to any series of similar transactions, by a majority of the members of the Board
of Directors, including a majority of the Independent Directors who are not
parties to and have no financial interest in such Inside Transaction and who are
not affiliates of such interested party, even if such Directors constitute less
than a quorum. Any deadlock in voting by the Independent Directors shall result
in disapproval of the Inside Transaction with respect to which the voting was
conducted.
Subject to the provisions contained in Section 3.13(o), in approving any
contract, joint venture or other transaction or series of transactions between
the Company and the Advisor, any Director or officer of the Company or any
affiliate of such persons, a majority of the Directors including a majority of
the Independent Directors must determine that:
(a) the contract, joint venture or other transaction as contemplated is
fair and reasonable to the Company and its Stockholders and on terms
and conditions no less favorable to the Company than those available
from unaffiliated third parties;
(b) if an acquisition of property other than mortgage loans is involved,
the total consideration for the property being acquired is not in
excess of the appraised value of such property as stated in an
appraisal by a qualified independent real estate appraiser selected
by the Independent Directors, which shall be obtained by the Company
prior to any such acquisition, and if the price is in excess of the
cost of the asset to such seller thereof, the Independent Directors
shall determine that substantial justification for such excess exists
and that such excess is not unreasonable;
(c) if the transaction involves compensation to any Advisor or its
affiliates for services rendered in a capacity other than contemplated
by the Advisory arrangements, such compensation, to the knowledge of
the Directors, is not greater than the customary charges for
comparable services between unaffiliated persons; and
(d) if the transaction involves the making of loans or the borrowing of
money, the transaction is fair, competitive, and commercially
reasonable and no less favorable to the Company than loans between
unaffiliated lenders and borrowers under the same circumstances.
The foregoing voting provisions shall not be changed without the approval
of the holders of a majority of outstanding shares.
Section 3.09 Organization. The Chairman of the Board shall preside at
each meeting of the Board of Directors, or in the absence or inability of the
Chairman of the Board to preside at a meeting, the Vice-Chairman, or in his
absence or inability to act, another Director chosen by a majority of the
Directors present, shall act as Chairman of the meeting and preside thereat.
The Secretary (or, in his absence or inability to act, any person appointed by
the Chairman of the meeting) shall act as Secretary of the meeting and keep the
minutes thereof.
Section 3.10 Meeting by Conference Telephone. Members of the Board of
Directors may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these
means constitutes presence in person at a meeting.
Section 3.11 Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if a written consent to such action is signed by
all members of the Board of Directors or of such committee, as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
or committee.
Section 3.12 Compensation of Directors. The Company shall pay each
Director a fee of $500 for attendance in person or by telephone at each regular
or special meeting of the Board of Directors. In addition, the Company shall
reimburse the Directors for their actual costs and travel expenses incurred in
connection with their duties as Directors of the Company.
Section 3.13 Investment Policies and Restrictions. It shall be the duty
of the Board of Directors to ensure that the purchase, sale, retention and
disposal of the Company's assets, and the investment policies of the Company and
the limitations thereon or amendments thereto are at all times:
(a) consistent with such policies, limitations and restrictions as are
contained in this Section 3.13, or recited in the Registration
Statement on Form S-11 (the "Registration Statement") filed with the
Securities and Exchange Commission in connection with this Company's
initial offering of common stock (the "Initial Offering"); and
(b) in compliance with the restrictions applicable to real estate
investment trusts pursuant to the Internal Revenue Code of 1954, as
amended.
The Company shall not:
(a) Invest more than ten percent (10%) of its total assets in unimproved
real property or mortgage loans on unimproved real property.
(b) Invest in commodities or commodity future contracts. Such limitation
is not intended to apply to future contracts, when used solely for
hedging purposes.
(c) Make or invest in loans to the Sponsor, Advisor, Director, or any
affiliate thereof, except to wholly owned subsidiaries of the Company
or except as provided for as follows: The Company may not make or
invest in mortgage loans unless an appraisal is obtained concerning
the underlying property except for construction loans for the
construction of improvements on properties acquired by the Company
that are already leased to qualifying tenants and those loans insured
or guaranteed by a government or government agency. In cases in which
a majority of the Independent Directors so determine, and in all cases
in which the transaction is with the Advisor, Directors or affiliates
thereof, such an appraisal must be obtained from an independent expert
concerning the underlying property. This appraisal shall be
maintained in the Company's records for at least five years, and shall
be available for inspection and duplication by any Stockholder. In
addition to the appraisal, a mortgagee's or owner's title insurance
policy or commitment as to the priority of the mortgage or the
condition of the title must be obtained. Further, the Advisor and
Stockholders shall observe the following policies in connection with
investing in or making mortgage loans:
(1) The Company shall not invest in real estate contracts of sale,
otherwise known as land sale contracts, unless such contracts of
sale are in recordable form and appropriately recorded in the
chain of title.
(2) The Company shall not make or invest in mortgage loans, including
construction loans, on any one property if the aggregate amount
of all mortgage loans outstanding on the property, including the
loans of the Company, would exceed an amount equal to eighty-five
percent (85%) of the appraised value of the property as
determined by appraisal unless substantial justification exists
because of the presence of other underwriting criteria. For
purposes of this subsection, the "aggregate amount of all
mortgage loans outstanding on the property, including the loans
of the Company," shall include all interest (excluding contingent
participation in income and/or appreciation in value of the
mortgaged property), the current payment of which may be deferred
pursuant to the terms of such loans, to the extent that deferred
interest on each loan exceeds five percent (5%) per annum of the
principal balance of the loan.
(3) The Company shall not make or invest in any mortgage loans that
are subordinate to any mortgage or equity interest of an Advisor,
Directors or any affiliate of the Company.
(4) The Company shall not invest in real estate mortgages, other than
purchase money mortgages acquired by the Company in connection
with one or more of its properties.
(d) Issue redeemable equity securities.
(e) Issue debt securities unless the historical debt service coverage (in
the most recently completed fiscal year) as adjusted for known changes
is sufficient to properly service that higher level of debt.
(f) Issue warrants options, or similar evidences of a right to buy its
securities, unless (i) issued to all of its security holders ratably,
(ii) as part of a financing arrangement, or (iii) as part of a stock
option plan to directors, officers or employees of the Company which
meets the conditions of Section 260.140.41, Title 10, California Code
of Regulations.
(g) Issue of its shares on a deferred payment basis or other similar
arrangement.
(h) Invest in any mortgage loans that are subordinate to any liens or
other indebtedness on a property if the effect of such mortgage loans
would be to cause the aggregate value of all such subordinated
indebtedness to exceed twenty-five percent (25%) of the Company's
tangible assets.
(i) Invest in the equity securities of any non-governmental issue,
including other real estate investment trusts or limited partnerships
for a period in excess of eighteen (18) months, unless approved by
a majority of the Directors, including a majority of the Independent
Directors.
(j) Sell any of its properties to the Advisor, affiliates of the Advisor
or any Director or affiliates of the Company.
(k) Engage in any short sales of securities or trading, as distinguished
from investment activities.
(l) Engage in underwriting or the agency distribution of securities issued
by others.
(m) Acquire securities in any company holding investment or engaging in
activities in which the Company is prohibited to invest or engage.
(n) Invest more than ten percent (10%) of its total assets in second
mortgages, excluding wrap-around type second mortgage loans.
(o) Without the approval of a majority of the Directors, including a
majority of the Independent Directors, enter into joint contracts
with third parties. If a joint venture is entered into with another
publicly registered entity sponsored by the Advisor or affiliates of
the Advisor, the following conditions must be satisfied:
(i) The Company will invest only in a joint venture having investment
objectives comparable to the Company's and the investment by each
party to the joint venture must be on substantially the same
terms and conditions; provided, however, the Company shall own
more than fifty percent (50%) of any joint venture between it
and its Sponsor or Affiliate;
(ii) The Company may not pay more than once, directly or indirectly,
for the same services and may not act indirectly through any such
joint venture if the Company would be prohibited from doing so
directly because of restrictions contained herein; and
(iii) In the event of a proposed sale of the property initiated by the
other joint venture partner, the Company must have a right of
first refusal to purchase the other party's interest.
(p) Issue securities senior to the common stock of the Company.
(q) Invest in the securities of other issuers for the purpose of
exercising control.
(r) Invest in the securities of or interests in persons or other entities
engaged in real estate activities, except as otherwise permitted in
connection with permissible joint venture investments with another
entity.
(s) Invest in equity securities unless a majority of Directors, including
a majority of Independent Directors, not otherwise interested in such
transaction approve the transaction as being fair, competitive and
commercially reasonable.
The Company does not intend to invest in the securities of other issuers
for the purposes of exercising control, to offer securities in exchange for
property unless deemed prudent by a majority of the Directors, to repurchase or
otherwise reacquire shares of the Company except as may be necessary to maintain
qualification as a real estate investment trust, to issue senior securities or
to make loans to other persons except tenants (typically for improvements to
leased premises).
The Directors shall review the borrowings of the Company quarterly for
reasonableness in relation to the Company's net assets. The Company shall not
incur indebtedness if, after giving effect to the incurrence thereof, aggregate
indebtedness, secured and unsecured, would exceed three hundred percent (300%)
of the Company's Net Assets on a consolidated basis. For this purpose, the term
"Net Assets" means the total assets (less intangibles) of the Company at cost,
before deducting depreciation or other non-cash reserves, less total
liabilities, as calculated at the end of each quarter on a basis consistently
applied. The Company shall not borrow on an unsecured basis if such borrowing
will result in an asset coverage of less than three hundred percent (300%).
"Asset Coverage" means the ratio which the value of the total assets less
liabilities, except indebtedness for unsecured borrowings, bears to the
aggregate amount of all unsecured borrowings.
The Company shall not borrow an amount in excess of 50 percent of the
purchase price for the purpose of acquiring a property. The Company shall not
borrow in order to distribute the proceeds to Stockholders and thereby offset
under-performance by properties owned by the Company. However, the Company
shall be entitled to borrow in order to distribute proceeds to its shareholders
if determined to be necessary by its tax advisors in order to maintain REIT
status under the federal tax laws. The first $5 million in net offering
proceeds from the Company's first public offering shall be used to acquire
properties on a debt-free basis.
The Directors, including the Independent Directors, shall establish
written policies on investments and borrowing which are not inconsistent with
the Bylaws and shall monitor and review at least annually, the administrative
procedures, investment operations and performance of the Company and the Advisor
to assure and determine that such policies are carried out and are in the best
interests of the Stockholders. Each such determination and the basis therefore
shall be set forth in the minutes of the Board of Directors. No material change
in the investment policies prohibitions or restrictions of the Company shall
be made without the written consent or approval of Stockholders owning in the
aggregate more than 50% of the then outstanding Shares, excluding Shares held
by officers, Directors and their affiliates.
The Company may not borrow money from the Advisor, any Directors, or any
Affiliate thereof, unless a majority of the Directors, including a majority of
the Independent Directors, not otherwise interested in such transaction approve
the transaction as being fair, competitive, and commercially reasonable and no
less favorable to the Company than loans between unaffiliated parties under the
same circumstances.
In the event the Advisor may recommend acquisition of the same property to
the Company and one or more Affiliates of the Advisor, it shall be required to
review the investment portfolio of each program and will make decisions as to
which program will acquire a particular property on the basis of several
factors, including each program's investment objectives, each program's cash
flow requirements, the affect of the acquisition on the diversification of each
program's real estate portfolio, the projected cash flow and economic affects
of the investment, the estimated tax consequences of the acquisition on the
respective programs, and the amount of each program's available funds. If the
Company and one or more of such programs have funds available to purchase the
specific property and, after evaluation of the factors enumerated above,
investment is deemed equally appropriate for each program, the Advisor will
offer the investment opportunity to the program which has had uncommitted funds
available for the longest period of time. In any event, it shall be the duty
of the Directors to determine independently that the Advisor is applying
the foregoing conditions and standards fairly with respect to the Company.
All other transactions between the Company and the Sponsor, Advisor, a
Director, or any Affiliate thereof, shall require approval by a majority of the
Directors (including a majority of the Independent Directors) not otherwise
interested in such transactions as being fair and reasonable to the Company and
on terms and conditions not less favorable to the Company than those available
from unaffiliated third parties.
The consideration paid for real property acquired by the Company shall
ordinarily be based on the fair market value of the property as determined by
a majority of the Directors. In cases in which a majority of the Independent
Directors so determine, and in all cases in which assets are acquired from the
Advisor, Trust or Directors, Sponsors or Affiliates thereof, such fair market
values shall be as determined by an Independent Expert selected by the
Independent Directors. Neither the Sponsor, Advisor, nor Affiliates thereof
shall originate loans or provide loan security.
Section 3.14 Advisory Arrangements. The Board of Directors may cause
the Company to engage an Advisor to furnish advice and recommendations
concerning the affairs of the Company, provide administrative services to the
Company and manage the Company's day-to-day affairs pursuant to a written
contract or contracts, or any renewal thereof, which have obtained the requisite
approvals of the Board of Directors, including a majority of the Independent
Directors. In the event of the termination of such contract, the Advisor shall
be required to cooperate with the Company and take all reasonable steps
requested to assist the Directors in making an orderly transition of the
Advisory function.
If such an Advisor is engaged, the Board of Directors shall evaluate the
performance of the Advisor and its key personnel before entering into or
renewing an Advisory arrangement. The minutes of meetings with respect to
such evaluation shall reflect the criteria used by the Board of Directors in
making such evaluation. Prior to entering into a contract with any Advisor or
any successor Advisor, the Board of Directors shall determine that such Advisor
possesses sufficient qualifications (a) to perform the Advisory function for
the Company and (b) to justify the compensation provided for in its contract
with the Company. Each contract for the services of an Advisor entered into by
the Board of Directors shall have a term of no more than one (1) year, but may
be renewed annually at or prior to the expiration of the contract. Each
contract shall be terminable by a majority of the Independent Directors or the
Advisor on sixty (60) days written notice without cause or immediately by mutual
consent of the parties thereto.
If an Advisor is engaged, the Independent Directors shall determine at
least annually that the compensation which the Company contracts to pay the
Advisor is reasonable in relation to the nature and quality of services
performed and also shall supervise the performance of the Advisor and the
compensation paid to it by the Company to determine that the provisions of such
contract are being carried out. Each such determination shall be based upon
the following factors and all other factors the Independent Directors may deem
relevant and the findings of the Independent Directors on each of such factors
shall be recorded in the minutes of the Board of Directors:
(a) the size of the Advisory fee and expense reimbursement in relation to
the size, composition and profitability of the investment portfolio
of the Company;
(b) the success of the Advisor in generating opportunities that meet the
investment objectives of the Company;
(c) the rates charged to other companies similar to the Company and to
other investors by advisors performing comparable services in the
same geographical location;
(d) additional revenues realized by the Advisor and its affiliates through
their relationship with the Company or by others with whom the Company
does business;
(e) the quality and extent of service and advice furnished to the Company,
including the frequency of problem investments and competence in
dealing with distress situations;
(f) the performance of the investment portfolio of the Company, including
income, conservation or appreciation of capital; and
(g) the quality of the investment portfolio of the Company in relationship
to the investments generated by the Advisor for its own account.
The qualifications of the Advisor shall be set forth in the Prospectus
relating to the initial public offering of the Shares of the Company.
Section 3.15 Property Management Arrangements. The Board of Directors
shall cause the Company to engage a property manager who will be responsible
for the day-to-day operations of the Company's properties, including leasing,
rent collection and maintenance pursuant to a written contract or contracts, or
any renewal thereof subject to overall review and supervision by the Board of
Directors. The Board of Directors shall evaluate the performance of the
management company before entering into or renewing any management arrangement.
Section 3.16 Total Expenses. The Independent Directors shall determine,
from time to time but at least annually, that the total fees and expenses of
the Company are reasonable in light of the Company's investment experience, net
assets, net income and all other relevant factors, and each such determination
and the factors in support thereof shall be recorded in the minutes of the
next meeting of the Board of Directors. The Independent Directors shall have
a fiduciary duty to limit the "Total Operating Expenses" to amounts that do not
exceed (for the twelve (12) months ending with the end of each fiscal quarter
of the Company) the greater of (a) two percent (2%) of the "Average Invested
Assets" or (b) twenty five percent (25%) of the Company's Net Income (the
"Limitation").
Within sixty (60) days after the end of any fiscal quarter of the Company
for which Total Operating Expenses (for the twelve (12) months then ended)
exceed 2% of the Average Invested Assets or 25% of Net Income, whichever is
greater, there shall be sent to the Stockholders of the Company a written
disclosure of such fact, together with an explanation of the factors the
Independent Directors considered in arriving at the conclusion that such higher
operating expenses were justified. In the event the Independent Directors do
not determine such expenses are justified, the Independent Directors shall cause
all Company personnel performing Advisor activities to reduce immediately their
compensation by the amount by which the aggregate annual expenses paid for
Advisor activities exceed the limitations herein provided.
The foregoing provisions shall not be changed without the approval of the
holders of a majority of the outstanding shares.
Section 3.17 Real Estate Commissions on Resale of Property. If an
Advisor, Director, or any Affiliate provides a substantial amount of the
services in the effort to sell the property of the Company, then that Person
may receive up to one-half of the brokerage commission paid but in no event to
exceed an amount equal to 3% of the Contract Price for the Property. In
addition, the amount paid when added to the sums paid to unaffiliated parties
in such a capacity shall not exceed the lesser of the Competitive Real Estate
Commission or an amount equal to 6% of the Contract Price for the Property.
As used herein, the term Competitive Real Estate Commission shall mean the real
estate or brokerage commission paid for the purchase or sale of a property
which is reasonable, customary and competitive in light of the size, type and
location of such property. The term Contract Price for the Property shall mean
the amount actually paid or allocated to the purchase, development, or
construction or improvement of a property exclusive of the Acquisition Fees and
Acquisition Expenses.
Section 3.18 Business Activities. Each Director may engage in other
business activities of types conducted by the Company and, except as otherwise
provided herein, is not required to present to the Company any investment
opportunities which becomes available to him regardless of whether the
opportunities are within the Company's permissible investment policies.
Section 3.19 Acquisition Fees and Acquisition Expenses. The Independent
Directors shall ensure that the total of all "Acquisition Fees" and "Acquisition
Expenses" shall be reasonable, and shall not exceed an amount equal to 6% of
the Contract Price of the Property, or in the case of a mortgage loan, 6% of
the funds advanced. Notwithstanding the foregoing, a majority of the
Directors, including a majority of the Independent Directors, not otherwise
interested in the transaction may approve fees in excess of these limits if they
determine the transaction to be commercially competitive, fair and reasonable
to the Company.
Section 3.20 Roll-Up Transactions. In connection with a proposed Roll-Up,
the Company shall obtain an appraisal of all of its assets from a competent
Independent Expert. If the appraisal will be included in a prospectus used to
offer the securities of a Roll-Up Entity, the appraisal shall be filed with the
Securities Exchange Commission ("SEC") and the states as an Exhibit to the
Registration Statement for the offering. Accordingly, an issuer using the
appraisal shall be subject to liability for violation of Section 11 of the
Securities Act of 1933 and comparable provisions under state laws for any
material misrepresentations or material omissions in the appraisal. Company
assets shall be appraised on a consistent basis. The appraisal shall be based
on an evaluation of all relevant information, and shall indicate the value of
the Company's assets as of a date immediately prior to the announcement of the
proposed Roll-Up transaction. The appraisal shall assume an orderly liquidation
of Company assets over a 12-month period. The terms of the engagement of the
Independent Expert shall clearly state that the engagement is for the benefit of
the Company and its investors. A summary of the independent appraisal,
indicating all material assumptions underlying the appraisal, shall be included
in a report to the investors in connection with a proposed Roll-Up.
In connection with a proposed Roll-Up, the Person sponsoring the Roll-Up
shall offer to Stockholders who vote "no" on the proposal the choice of:
(a) accepting the securities of the Roll-Up Entity offered in the proposed
Roll-Up; or
(b) one of the following:
(i) remaining as Stockholders of the Company and preserving their
interests on the same terms and conditions as existed previously;
or
(ii) receiving cash in an amount equal to the Stockholders' pro rata
share of the appraised value of the net assets of the Company.
The Company shall not participate in any proposed Roll-Up which would
result in Stockholders having democracy rights in the Roll-Up Entity that are \
less than those provided for under the Company's Bylaws.
The Company shall not participate in any proposed Roll-Up which includes
provisions which would operate to materially impede or frustrate the
accumulation of shares by any purchaser of the securities of the Roll-Up Entity
(except to the minimum extent necessary to preserve the tax status of the
Roll-Up Entity). The Company shall not participate in any proposed Roll-Up
which would limit the ability of an investor to exercise the voting rights of
its securities of the Roll-Up Entity on the basis of the number of Company
Shares held by that investor.
The Company shall not participate in any proposed Roll-Up in which
investors' rights of access to the records of the Roll-Up Entity will be less
than those provided for under the Company's Bylaws.
The Company shall not participate in any proposed Roll-Up in which any of
the costs of the transaction would be borne by the Company if the Roll-Up is
not approved by the Stockholders.
ARTICLE IV
Waivers of Notice
Section 4.01 Whenever any notice of the time, place or purpose of any
meeting of Stockholders, Directors or committee is required to be given under
law or under the provisions of the Company's Charter or these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to such notice and
filed with the records of the meeting, whether before or after the holding
thereof, or actual attendance at the meeting of Stockholders in person or by
proxy, or at the meeting of Directors or committee in person, shall be deemed
equivalent to the giving of such notice to such persons. When a meeting of
Stockholders is adjourned to another time and place, unless the Board of
Directors after the adjournment is for more than thirty (30) days, notice
of such adjourned meeting need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting at which the
adjournment was taken.
ARTICLE V
Officers
Section 5.01 Officers. The officers of the Company shall be chosen by the
Board of Directors and shall be a President, a Secretary and a Treasurer. The
Board of Directors may also choose a Chairman of the Board, one (1) or more Vice
Presidents, and one or more Assistant Secretaries and Treasurers (also from time
to time referred to by the Company as Financial Officers). Two (2) or more
offices, except those of President and Vice President may be held by the same
person but no officer shall execute, acknowledge or verify any instrument in
more than one (1) capacity, if such instrument is required by law, the Company's
Charter or these Bylaws to be executed, acknowledged or verified by two (2) or
more officers.
The Board of Directors at its first meeting after each annual meeting of
Stockholders shall choose a President, a Secretary and a Treasurer, none of whom
need to be a member of the Board.
Section 5.02 Other Officers and Agents. The Board of Directors may
appoint such other officers and agents as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors.
Section 5.03 Compensation. The salaries of all officers and agents of the
Company shall be fixed by the Board of Directors.
Section 5.04 Removal; Resignation. The officers of the Company shall
serve at the pleasure of the Board of Directors, and until their successors are
chosen and qualified. Any officer or agent may be removed by the Board of
Directors whenever, in its judgment, the best interests of the Company will be
served thereby, but such removal shall be without prejudice to the contractual
rights, if any, of the person so removed. Any officer may resign at any time.
Such resignation shall be made in writing, and shall take effect at the time
specified therein, and if time not be specified, at the time of its receipt by
the Chairman of the Board, the President or the Secretary. The acceptance of
a resignation shall not be necessary to make it effective. If the office of any
officer becomes vacant for any reason, the vacancy shall be filled by the Board
of Directors.
Section 5.05 Chairman. The Chairman of the Board, if one shall be
elected, shall, if present, preside at all meetings of the Board of Directors
and Stockholders and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed
by these Bylaws and as may be set forth herein.
Section 5.06 President. The President shall be the chief executive
officer of the Company. The President shall have general and active control
of the business, finances and affairs, subject to the control of the Board of
Directors. Except as may otherwise be provided by the Board of Directors from
time to time, the President shall have general power to execute bonds, deeds,
contracts, conveyances and other instruments in the name of the Company and to
affix the corporate seal, to appoint all employees and agents of the Company
whose appointment is not otherwise provided for and to fix the compensation
thereof subject to the provisions of these Bylaws and subject to the approval
of the Board of Directors; to remove or suspend any employee or agent who shall
not have been appointed by the Board of Directors to suspend for cause, pending
final action by the body which shall have appointed him, any officer other than
an elected officer, or any employee or agent who shall have been appointed by
the Board of Directors. In the absence of the Chairman of the Board to act,
the President shall have authority to exercise the power and perform the duties
of the Chairman of the Board. He shall have such further powers and duties as\
may be conferred on him by the Board of Directors.
Section 5.07 Vice President. The Vice President, or if there shall be
more than one, the Vice Presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President, and shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
Section 5.08 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the Stockholders and record all the
proceedings of the meetings of the Stockholders and record all the proceedings
of the meetings of the Company and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. The Secretary shall give, or cause to be given, notice of all
meetings of the Stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, under whose supervision the Secretary shall be. The Secretary
shall keep in safe custody the seal of the Company, and, when authorized by the
Board of Directors, affix the same to any instrument requiring it and, when so
affixed, it shall be attested by the Secretary's signature or by the signature
of an Assistant Secretary.
Section 5.09 Assistant Secretary. The Assistant Secretary or if there
be more than one, the Assistant Secretaries in the order determined by the Board
of Directors, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 5.10 Treasurer and Assistant Treasurer. The Treasurer shall have
the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all monies and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of the Company as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account
of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Board of Directors, the Treasurer shall give the
Company a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Company.
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors, shall, in the
absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 5.11 Delegation of Duties. In the case of the absence of any
officer of the Company, or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may confer for the time being the
powers or duties, or any of them, of such officer upon any other officer or
upon any director.
Section 5.12 Liability and Indemnification. No indemnification of
Directors, Advisors or Affiliates shall be allowed for any liability or loss
suffered by the Directors, Advisors or Affiliates, nor shall the Directors,
Advisors or Affiliates be held harmless for any loss or liability suffered by
the Company, unless all of the following conditions are met:
(a) The Directors, Advisors or Affiliates have determined, in good faith,
that the course of conduct which caused the loss or liability was
in the best interests of the Company.
(b) The Directors, Advisors or Affiliates were acting on behalf of or
performing services for the Company.
(c) Such liability or loss was not the result of:
(1) negligence or misconduct by the Directors, excluding the
Independent Directors, Advisors or Affiliates; or
(2) gross negligence or willful misconduct by the Independent
Directors.
(d) Such indemnification or agreement to hold harmless is recoverable only
out of Company net assets and not from Stockholders.
Notwithstanding anything to the contrary contained in this Section 5.12,
the Directors, Advisors or Affiliates and any persons acting as a broker-dealer
shall not be indemnified by the Company for any losses, liabilities or expenses
arising from or out of an alleged violation of federal or state securities laws
by such party unless one or more of the following conditions are met:
(a) There has been a successful adjudication on the merits of each count
involving alleged securities law violations as to the particular
indemnitee.
(b) Such claims have been dismissed with prejudice on the merits by a
court of competent jurisdiction as to the particular indemnitee.
(c) A court of competent jurisdiction approves a settlement of the claims
against a particular indemnitee and finds that indemnification of the
settlement and the related costs should be made, and the court
considering the request for indemnification has been advised of the
position of the Securities and Exchange Commission and of the
published position of any state securities regulatory authority in
which securities of the Company were offered or sold as to
indemnification for violations of securities laws.
The advancement of Company funds to the Directors, Advisors or Affiliates
for legal expenses and other costs incurred as a result of any legal action
for which indemnification is being sought is permissible only if all of the
following conditions are satisfied:
(a) The legal action relates to acts or omissions with respect to the
performance of duties or services on behalf of the Company.
(b) The legal action is initiated by a third party who is not a
Stockholder or the legal action is initiated by a Stockholder acting
in his or her capacity as such and a court of competent jurisdiction
specifically approves such advancement.
(c) The Directors, Advisors or Affiliates undertake to repay the advanced
funds to the Company, together with the applicable legal rate of
interest thereon, in cases in which such Directors, Advisors or
Affiliates are found not to be entitled to indemnification.
Subject to the foregoing limitations and restrictions, each Director or
employee of the Company shall be indemnified by the Company to the full extent
permitted under the General Laws of the State of Maryland and other applicable
law, provided that such person determined in good faith, that the course of
conduct which caused the loss or liability was in the best interests of the
Company and such liability or loss was not the result of negligence or
misconduct by such person.
Section 5.13 Business Activities. Each officer may engage in other
business activities of types conducted by the Company and, except as otherwise
provided herein, is not required to present to the Company any investment
opportunities which becomes available to him regardless of whether the
opportunities are within the Company's permissible investment policies. The
Officers shall devote such time to the affairs of the Company as they, within
their sole discretion, exercised in good faith, determine to be necessary for
the benefit of the Company and the Stockholders of the Company.
ARTICLE VI
Certificates of Stock
Section 6.01 Certificates. Actual issuance of a certificate or
certificates evidencing the number and kind and class of shares owned by a
Stockholder is optional. The Company may not issue certificates unless it
receives a request in writing to do so (together with payment of a Five Dollar
($5.00) administrative charge, to the extent permitted by law). The Company
may not issue certificates unless it receives a request in writing to do so
together with payment of a Five Dollar ($5.00) administrative charge.
Stockholders who do not elect to receive certificates will own stock in
"uncertificated" or "book entry" form and will be treated in a like manner as
those who do receive a certificate.
Although stock certificates may not be issued by the Company without an
affirmative election by a Stockholder, each Stockholder shall be entitled to
elect to receive a certificate or certificates which shall represent and
certify the number and kind and class of shares owned by him in the Company.
Each certificate shall be signed by the Chairman of the Board or the President
or a Vice President and countersigned by the Secretary or the Treasurer or an
Assistant Treasurer and may be sealed with the corporate seal.
The signatures may be either manual or facsimile signatures and the seal
may be either facsimile or any other form of seal. In cases any officer who
has signed any certificate ceases to be an officer of the Company before the
certificate is issued, the certificate may nevertheless be issued by the Company
with the same effect as if the officer has not ceased to be such officer as
of the date of its issue. Each stock certificate shall include on its face the
name of the Company, the name of the Stockholder and the class of stock and
number of shares represented by the certificate. If the Company has authority
to issue stock of more than one class, the stock certificate shall contain on
its face or back a full statement or summary of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions or
redemption of the stock of each class which the Company is authorized to issue
and, if the Company is authorized to issue any preferred or special class in
series, the differences in the relative rights and preferences between the
shares of each series to the extent they have been set, and the authority of
the Board of Directors to set the relative rights and preferences of subsequent
series. In lieu of such full statement or summary, there may be set forth upon
the face or back of the certificate a statement that the Company will furnish
to any Stockholder upon request and without charge, a full statement of such
information. A summary of such information included in a registration statement
permitted to become effective under the Federal Securities Act of 1933, as now
or hereafter amended, shall be an acceptable summary for purposes of this
Section. Every stock certificate representing shares of stock which
are restricted as to the transferability by the Company shall contain a full
statement of the restriction or state that the Company will furnish information
about the restriction to the Stockholder on request and without charge. A
stock certificate may not be issued until the stock represented by it is fully
paid, except in the case of stock purchased under an option plan as permitted
by law.
Section 6.02 Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been stolen,
lost or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be stolen, lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such stolen, lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and to give the Company a bond, with sufficient surety, to
the Company to indemnify it against any loss or claim which may arise by
reason of the issuance of a new certificate.
Section 6.03 Transfer Agents and Registrars. The Board of Directors may
in its discretion, appoint one or more banks or trust companies in such city or
cities as the Board of Directors may deem advisable, from time to time, to act
as transfer agents and/or registrars of the shares of stock of the Company; and
upon such appointments being made, no certificate representing shares shall be
valid until countersigned by one of such transfer agents and/or registered by
one of such registrars.
Section 6.04 Transfer of Stock. No transfers of shares of stock of the
Company shall be made if (i) void ab initio pursuant to Article VII of the
Company's Charter, or (ii) the Board of Directors, pursuant to such Article VII,
shall have refused to transfer such shares. The Board of Directors of the
Company may:
(a) Redeem the outstanding shares of stock of the Company or restrict the
transfer of such shares to the extent necessary to prevent the
concentration of ownership of more than fifty percent (50%) of the
outstanding shares of the Company in the hands of five (5) or fewer
individuals or entities and to ensure that the Company always has at
least one hundred (100) Stockholders;
(b) Refuse to effect a transfer of shares of stock of the Company to any
person who as a result would beneficially own shares in excess of nine
and eight tenths percent (9.8%) of the outstanding shares of the
Company ("Excess Shares"); and
(c) Redeem Excess Shares held by any Stockholder of the Company.
Permitted transfers of shares of stock of the Company shall be made on the
stock records of the Company only upon the instruction of the registered holder
thereof, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary or with a transfer agent or transfer
clerk, and upon surrender of the certificate or certificates, if issued for
such shares properly endorsed or accompanied by a duly executed stock transfer
power and the payment of all taxes thereon. Upon surrender to the Company or
the transfer agent of the Company of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, as to any transfers not prohibited by the Company's Charter, these
Bylaws, or by action of the Board of Directors thereunder, it shall be
the duty of the Company to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 6.05 Fixing of Record Dates; Closing of Transfer Books. The
Board of Directors may fix, in advance, a date as the record date for the
purpose of determining Stockholders entitled to notice of, or to vote at, any
meeting of Stockholders, or Stockholders entitled to receive payment of any
dividend or the allotment of any rights, or in order to make a determination of
Stockholders for any other proper purpose. Such date, in any case, shall be not
more than ninety (90) days, and in case of meeting of Stockholders not less than
ten (10) days, prior to the date on which the particular action requiring such
determination of Stockholders is to be taken.
Section 6.06 Registered Stockholders. The Company shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and to hold liable
for calls, if any, a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
Section 6.07 Regulations. The Board of Directors may make such additional
rules and regulations, not inconsistent with these Bylaws, as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of stock of the Company.
ARTICLE VII
General Provisions
Section 7.01 Dividends. Subject to the provisions of the Company's
Charter and any requirements of applicable law, quarterly dividends of
substantially all of the Company's available cash flow from operation of its
properties, may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in its own shares, or in other
marketable securities, subject to the provisions of law and of the Company's
Charter. Before payment of any dividend, there may be set aside out of any
funds of the Company available for dividends such sums as the Directors from
time to time, in their absolute discretion, think proper as a reserve fund to
meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Company, or for such other purpose as the Board
of Directors shall deem conducive to the interests of the Company, and the Board
of Directors may modify or abolish any such reserve in the manner in which it
was created. The Company shall disclose in a written statement accompanying
each payment the source or sources of such payment to the extent such source
or sources is or are other than from current operations.
In no event shall dividends be made from any source of funds borrowed by
Company. No dividends shall be made in kind.
Section 7.02 Minimum Capitalization Requirement. Prior to any initial
public offering by the Company, the Company's Advisors shall contribute to the
Company an amount not less than the lesser of:
(a) ten percent (10%) of the total net assets upon completion of the
offering; or
(b) $200,000 as an Initial Investment.
The Advisors shall not sell said Initial Investment while the Company operates
the REIT but may transfer its shares to other affiliates.
Section 7.03 Annual Report. The President or a Vice President or the
Treasurer shall prepare or cause to be prepared annually a full and correct
report of the affairs of the Company, including financial statements for the
preceding fiscal year, which shall be prepared in accordance with generally
accepted accounting principles, audited and certified by independent certified
public accountants and distributed to Stockholders within one hundred twenty
(120) days after the close of the Company's fiscal year and a reasonable period
of time (not less than thirty (30) days) prior to the annual meeting of
Stockholders. Such report shall also be submitted at the annual meeting
and shall be filed within twenty (20) days thereafter at the principal office
of the Company in the State of Maryland. The annual report shall also include
a separately stated, full disclosure of all material terms, factors and
circumstances surrounding any transactions between the Company and
the Advisor, any Director, or any affiliates of the Advisor or such Director
occurring during the year for which the annual report is made. The Independent
Directors will comment on the fairness of such transactions in the annual
report.
The Company shall also publish in the annual report (i) the ratio of the
cost of raising capital during the year to the capital raised; (ii) the
aggregate amount of Advisory fees and the aggregate amount of other fees paid
to the Advisor and all affiliates of the Advisor by the Company, including fees
or charges paid to such Advisor and all affiliates of the Advisor by third
parties doing business with the Company; (iii) the total operating expenses of
the Company stated as a percentage of average invested assets and as a
percentage of its net income; (iv) a report from the Independent Directors that
the policies being followed by the Company are in the best interests of its
Stockholders and the basis for such determination; (v) separately stated,
full disclosure of all material items, factors, and circumstances surrounding
any and all transactions involving the Company, Directors, Advisors, Sponsors
and any Affiliates thereof occurring in the year for which the annual report
is made. The Independent Directors shall be specifically charged with
a duty to examine and comment in the report on the fairness of such
transactions.
Section 7.04 Quarterly Report. The President or a Vice President or the
Treasurer shall also prepare or cause to be prepared quarterly for each of the
first three (3) quarters of each fiscal year, a full and correct report of the
affairs of the Company, including a balance sheet and financial statement of
operations for the preceding fiscal quarter, which need not be certified by
independent certified public accountants and shall be distributed to
Stockholders within forty-five (45) days after the close of the Company's
preceding fiscal quarter.
Section 7.05 Checks. All checks, drafts and orders for the payment of
money, notes and other evidences of indebtedness, issued in the name of the
Company shall be signed by the President or the Treasurer or by such officer
or officers as the Board of Directors may from time to time designate.
Section 7.06 Depositories and Custodians. The funds of the Company shall
be deposited with such banks or other depositories as the Board of Directors
of the Company may from time to time determine. All securities and other
investments shall be deposited in the safekeeping of such banks or other
companies as the Board of Directors of the Company may from time to time
determine.
Section 7.07 Books of Account and Records. The Company shall maintain at
its office in the City of Houston and State of Texas correct and complete books
and records of account of all the business and transactions of the Company.
Upon request of any Stockholder; there shall be made available in accordance
with the provisions of Maryland law, a record containing the number of shares
of stock issued during a specified period not to exceed twelve (12) months and
the consideration received by the Company for each such share.
Section 7.08 Information for Inspection. Any Stockholder and any
designated representative thereof shall be permitted access to all records of
the Company at all reasonable times, and may inspect and copy any of them.
Inspection of the Company books and records by the Administrator shall be
provided upon reasonable notice and during normal business hours. Any
Stockholder shall have access to shareholder information as follows:
(a) An alphabetical list of the names, addresses and telephone numbers of
the Stockholders of the Company along with the number of shares held
by each of them (the "Stockholder List") shall be maintained as part
of the books and records of the Company and shall be available for
inspection by any Stockholder or the Stockholder's designated agent
at the home office of the Company upon the request of the Stockholder.
(b) The Stockholder List shall be updated at least quarterly to reflect
changes in the information contained therein.
(c) A copy of the Stockholder List shall be mailed to any Stockholder
requesting the Stockholder List within ten (10) days of the request.
The copy of the Stockholder List shall be printed in alphabetical
order, on white paper, and in a readily readable type size (in no
event smaller than 10-point type). A reasonable charge for copy
work may be charged by the Company.
(d) The purposes for which a Stockholder may request a copy of the
Stockholder List include, without limitation, matters relating to
Stockholders' voting rights under the Company agreement, and the
exercise of Stockholders' rights under federal proxy laws.
(e) If the Advisor or Directors of the Company neglect or refuse to
exhibit, produce or mail a copy of the Stockholder List as requested,
the Advisor and the Directors shall be liable to any Stockholder
requesting the list for the costs, including attorneys' fees, incurred
by that Stockholder for compelling the production of the Stockholder
List, and for actual damages suffered by any Stockholder by reason
of such refusal or neglect. It shall be a defense that the actual
purpose and reason for the requests for inspection or for a copy of
the Stockholder List is to secure such list of Stockholders or other
information for the purpose of selling such list or copies thereof,
or of using the same for a commercial purpose other than in the
interest of the applicant as a Stockholder relative to the affairs
of the Company. The Company may require the Stockholder requesting
the Stockholder List to represent that the list is not requested for
a commercial purpose unrelated to the Stockholder's interest in the
Company. The remedies provided hereunder to Stockholders requesting
copies of the Stockholder List are in addition to, and shall
not in any way limit, other remedies available to Stockholders under
federal law, or the laws of any state.
Section 7.09 Fiscal Year. The fiscal year of the Company shall be the
calendar year.
Section 7.10 Seal. The corporate seal shall have inscribed thereon the
name of the Company and the year and state of its organization. The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 7.11 Stock Ledger. The Company shall maintain at its office in
the City of Houston and State of Texas an original stock ledger containing the
names and addresses of all Stockholders and the number of shares of each class
held by each Stockholder. Such stock ledger may be in written form or any other
form capable of being converted into written form within a reasonable time for
visual inspection.
ARTICLE VIII
Amendments
Section 8.01 Stockholders. The Stockholders shall have the power, at any
annual meeting or at any special meeting if notice thereof be included in the
notice of such special meeting, to alter, modify or repeal any Bylaws of the
Company and to adopt new Bylaws by a vote of a majority of the Stockholder votes
entitled to be cast thereon. Notwithstanding the foregoing, any amendment,
alteration, modification or repeal of the provisions in Section 6.04 hereof, or
which would change any rights of a Stockholder by reducing the amount payable
on the class of stock or other securities of the Company held by such
Stockholder upon liquidation of the Company, or by diminishing or eliminating
any voting rights of that class, shall require an affirmative vote of not less
than sixty six and two-thirds percent (66 2/3%) of the Stockholder votes
entitled to be cast thereon.
ARTICLE IX
Definitions
As used herein, the following terms shall have the following meanings and,
to the extent of inconsistencies, if any, contained within the Bylaws, the
definitions contained in this Article IX shall be controlling.
(a) "Administrator" shall mean the official or agency administering the
Securities laws of a jurisdiction.
(b) "Acquisition Expenses" shall mean expenses including but not limited
to legal fees and expenses, travel and communications expenses, costs
of appraisals, nonrefundable option payments on property not acquired,
accounting fees and expenses, title insurance, and miscellaneous
expenses related to selection and acquisition of properties, whether
or not acquired.
(c) "Acquisition Fee" shall mean the total of all fees and commissions
paid by any party to any party in connection with making or investing
in mortgage loans or the purchase, development or construction of
property by the Company. Included in the computation of such fees or
commissions shall be any real estate commission, selection fee,
Development Fee, Construction Fees, nonrecurring management fee,
loan fees or points or any fee of a similar nature, however
designated. Excluded shall be Development Fees and Construction Fees
paid to Persons not affiliated with the Sponsor in connection with the
actual development and construction of a project.
(d) "Advisor" shall mean the Person responsible for directing or
performing the day-to-day business affairs of the Company, including a
Person to which an Advisor subcontracts substantially all such
functions.
(e) "Affiliate" shall mean an Affiliate of another Person includes any of
the following:
(i) any Person directly or indirectly owning, controlling, or
holding, with power to vote ten percent or more of the
outstanding voting securities of such other Person.
(ii) any Person ten percent or more of whose outstanding voting
securities are directly or indirectly owned, controlled, or
held, with power to vote, by such other Person.
(iii) any Person directly or indirectly controlling, controlled by,
or under common control with such other Person.
(iv) any executive officer, director, or general partner of such other
Person.
(v) any legal entity for which such Person acts as an executive
officer, director or general partner.
(f) "Average Invested Assets" shall mean for any period the average of
the aggregate book value of the assets of the Company invested,
directly or indirectly, in equity interests in and loans secured by
real estate, before reserves for depreciation or bad debts or other
similar non-cash reserves computed by taking the average of such
values at the end of each month during such period.
(g) "Competitive Real Estate Commission" shall mean real estate or
brokerage commission paid for the purchase or sale of a property which
is reasonable,customary and competitive in light of the size, type and
location of such property.
(h) "Contract Price for the Property" shall mean the amount actually paid
or allocated to the purchase, development, construction or improvement
of a property exclusive of Acquisition Fees and Acquisition Expenses.
(i) "Construction Fee" shall mean a fee or other remuneration for acting
as general contractor and/or construction manager to construct
improvements, supervise and coordinate projects or to provide Major
Repairs or Rehabilitation on a Company property.
(j) "Declaration of Trust" shall mean the declaration of trust, bylaws,
certificate, articles of incorporation or other governing instrument
pursuant to which the Company is organized.
(k) "Development Fee" shall mean a fee for the packaging of the Company's
property, including negotiating and approving plans, and undertaking
to assist in obtaining zoning and necessary variances and necessary
financing for the specific property, either initially or at a later
date.
(l) "Director" shall mean the members of the Board of trustees or
directors or other body which manages the Company.
(m) "Independent Director" shall mean the Directors of the Company who
are not associated and have not been associated within the last two
years, directly or indirectly, with the Sponsor or Advisor of the
Company.
(i) a Director shall be deemed to be associated with the Sponsor or
Advisor is he or she:
(1) owns an interest in the Sponsor, Advisor, or any of their
Affiliates; or
(2) is employed by the Sponsor, Advisor, or any of their
Affiliates; or
(3) is an officer or director of the Sponsor, Advisor, or any
of their Affiliates; or
(4) performs services, other than as a Director, for the
Company; or
(5) is a Director for more than three Companies organized by the
Sponsor or advised by the Advisor; or
(6) has any material business or professional relationship with
the Sponsor, Advisor, or any of their Affiliates.
(ii) for purposes of determining whether or not the business or
professional relationship is material, the gross revenue derived
by the prospective Independent Director from the Sponsor and
Advisor and Affiliates shall be deemed material per se if it
exceeds 5% of the prospective Independent Director:
(1) annual gross revenue, derived from all sources, during
either of the last two years; or
(2) net worth, on a fair market value basis.
(iii) an indirect relationship shall include circumstances in which
a Director's spouse, parents, children, siblings, mothers- or
fathers-in-law, sons- or daughters-in-law, or brothers- or
sisters-in-law is or has been associated with the Sponsor,
Advisor, any of their Affiliates, or the Company.
(n) "Independent Expert" shall mean a person with no material current or
prior business or personal relationship with the Advisor or Director
who is engaged to a substantial extent in the business of rendering
opinions regarding the value of the assets of the type held by the
Company.
(o) "Initial Investment" shall mean that portion of the initial
capitalization of the Company contributed by the Sponsor or its
Affiliates pursuant to Section II.A of the NASAA Statement of Policy
Regarding Real Estate Investment Trusts, as amended from time to time
("NASAA Policy").
(p) "Leverage" shall mean the aggregate amount of indebtedness of the
Company for money borrowed (including purchase money mortgage loans)
outstanding at any time, both secured and unsecured.
(q) "Net Assets" shall mean the total assets (other than intangibles) at
cost before deducting depreciation or other non-cash reserves less
total liabilities, calculated at least quarterly on a basis
consistently applied.
(r) "Net Income" shall mean for any period total revenues applicable to
such period, less the expenses applicable to such period other than
additions to reserves for depreciation or bad debts or other similar
non-cash reserves.
(s) "Organization and Offering Expenses" shall mean all expenses incurred
by and to be paid from the assets of the Company in connection with
and in preparing the Company for registration and subsequently
offering and distributing it to the public, including, but not limited
to, total underwriting and brokerage discounts and commissions
(including fees of the underwriters' attorneys), expenses for
printing, engraving, mailing, salaries of employees while engaged
in sales activity, charges of transfer agents, registrars, trustees,
escrow holders, depositaries, experts, expenses of qualification of
the sale of the securities under Federal and State laws, including
taxes and fees, accountants' and attorneys' fees.
(t) "Person" shall mean any natural persons, partnership, corporation,
association, trust, limited liability company or other legal entity.
(u) "Prospectus" shall have the meaning given to that term by Section
2(10) of the Securities Act of 1933, including a preliminary
Prospectus; provided, however, that such term as used herein shall
also include an offering circular as described in Rule 256 of the
General Rules and Regulations under the Securities Act of 1933,
or, in the case of an intrastate offering, any document by whatever
name known, utilized for the purpose of offering and selling
securities to the public.
(v) "Real Estate Investment Trust (REIT)" shall mean a corporation,
trust, association or other legal entity (other than a real estate
syndication) which is engaged primarily in investing in equity
interests in real estate (including fee ownership and
leasehold interests) or in loans secured by real estate or both.
(w) "Roll-Up" shall mean a transaction involving the acquisition, merger,
conversion, or consolidation either directly or indirectly of the
Company and the issuance of securities of a Roll-Up Entity. Such
term does not include:
(i) a transaction involving securities of the Company that have been
for at least 12 months listed on a national securities exchange
or traded through the National Association of Securities Dealers
Automated Quotation National Market System; or
(ii) a transaction involving the conversion to corporate, trust, or
association form of only the Company if, as a consequence of
the transaction there will be no significant adverse change in
any of the following:
(1) Stockholders' voting rights;
(2) the term of existence of the Company;
(3) Sponsor or Advisor compensation; or
(4) the Company investment objectives.
(x) "Roll-Up Entity" shall mean a partnership, real estate investment
trust, corporation, trust, or other entity that would be created or
would survive after the successful completion of a proposed Roll-Up
transaction.
(y) "Shares" shall mean shares of beneficial interest or of common stock
of the Company of the class that has the right to elect the Directors
of such Company.
(z) "Specified Asset Reit" shall mean a Program where, at the time a
securities registration is ordered effective, at least 75% of the
net proceeds from the sale of Shares are allocable to the purchase,
construction, renovation, or improvement of individually identified
assets. Reserves shall not be included in the 75%.
(aa) "Sponsor" shall mean any Person directly or indirectly instrumental
in organizing, wholly or in part, the Company or any Person who will
control, manage or participate in the management of the Company, and
any Affiliate of such Person. Not included in any Person whose only
relationship with the Company is as that of an independent property
manager of Company assets, and whose only compensation is as such.
Sponsor does not include wholly independent third parties such as
attorneys, accountants and underwriters whose only compensation
is for professional services. A Person may also be deemed a Sponsor
of the Company by:
(i) taking the initiative, directly or indirectly, in founding or
organizing the business or enterprise of the Company; either
alone or in conjunction with one or more other Persons;
(ii) receiving a material participation in the Company in connection
with the founding or organizing of the business of the Company,
in consideration of services or property, or both services and
property;
(iii) having a substantial number of relationships and contacts with
the Company;
(iv) possessing significant rights to control Company properties;
(v) receiving fees for providing services to the Company which are
paid on a basis that is not customary in the industry; or
(vi) providing goods or services to the Company on a basis which was
not negotiated at arms length with the Company.
(bb) "Stockholder" shall mean the registered holders of the Company Shares.
(cc) "Total Operating Expenses" shall mean aggregate expenses of every
character paid or incurred by the Company as determined under
Generally Accepted Accounting Principles, including Advisors' fees,
but excluding:
(i) the expenses of raising capital such as Organization and Offering
Expenses, legal, audit, accounting, underwriting, brokerage,
listing, registration and other fees, printing and other such
expenses, and tax incurred in connection with the issuance,
distribution, transfer, registration, and stock exchange
listing of the Company's shares;
(ii) interest payments;
(iii) taxes;
(iv) non-cash expenditures such as depreciation, amortization and bad
debt reserves;
(v) incentive fees paid in compliance with Section IV.F. of NASAA
Policy, notwithstanding Section I.B.29(i) of NASAA Policy;
(vi) Acquisition Fees, Acquisition Expenses, real estate commissions
on resale of property and other expenses connected with the
acquisition, disposition, and ownership of real estate interests,
mortgage loans, or other property, (such as the costs of
foreclosure, insurance premiums, legal services, maintenance,
repair, and improvement of property).
(dd) "Unimproved Real Property" shall mean the real property of the
Company which has the following three characteristics:
(i) an equity interest in real property which was not acquired for
the purpose of producing rental or other operating income;
(ii) has no development or construction in process on such land; and
(iii) no development or construction on such land is planned in good
faith to commerce on such land within one year.
These Bylaws were adopted by a duly authorized vote of the Board of
Directors of the Company at a regular meeting of the Directors on August 1,
1996, and are hereby certified as true and correct.
/s/ H. Kerr Taylor
H. Kerr Taylor, President
Exhibit 10 (b) (29)
FIRST AMENDMENT TO AGREEMENT FOR THE
PURCHASE AND SALE OF REAL ESTATE
THIS FIRST AMENDMENT TO AGREEMENT FOR THE PURCHASE AND SALE OF
REAL ESTATE (this "Amendment") is made and entered into to be
effective as of the 10th day of June, 1996, by and between TUCSON
ORACLE LIMITED PARTNERSHIP, an Arizona limited partnership
("Seller"), and AMERICAN ASSET ADVISORS TRUST, INC., a Maryland
corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser are parties to that certain
Agreement for the Purchase and Sale of Real Estate entered into as
of January 19, 1996 (the "Original Agreement"), pursuant to which
Seller agreed to sell to Purchaser, and Purchaser agreed to
purchase from Seller, the Property (as defined in the Original
Agreement); and
WHEREAS, Seller and Purchaser now desire to amend the Original
Agreement pursuant to the terms and provisions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and
mutual agreements contained herein, the payment of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller
and Purchaser agree that the Original Agreement is amended as
follows:
1. All capitalized terms used in this Amendment, to the
extent not otherwise expressly defined herein, shall have the same
meanings ascribed to such terms in the Original Agreement.
2. The Purchase Price is hereby increased to and shall be
Three Million Four Hundred Eighty-Six Thousand Seven Hundred
Twenty-Eight and No/100 Dollars ($3,486,728.00).
3. The Closing Date is hereby extended to and shall occur on
or before two (2) days after the later to occur of (a) September 9,
1996, or (b) the date Tenant commences paying Basic Rent (as
defined in the Lease) under the Lease, without any right of set-off
or abatement.
4. Except as amended herein, the terms and conditions of the
Original Agreement shall continue in full force and effect and are
hereby ratified in their entirety.
Executed to be effective as of the date first written above.
SELLER:
TUCSON ORACLE LIMITED PARTNERSHIP,
an Arizona limited partnership
By: Cumberland America Development Company, Inc.,
a Texas corporation
By: /s/ Bradford B. Beck
Bradford B. Beck, President
PURCHASER:
AMERICAN ASSET ADVISORS TRUST, INC.,
a Maryland corporation
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
Exhibit 10 (b) (30)
LEASE
BY AND BETWEEN
CUMBERLAND AMERICA DEVELOPMENT COMPANY, INC.,
a Texas corporation
("Landlord")
and
JUST FOR FEET, INC.,
an Alabama corporation
("Tenant")
TABLE OF CONTENTS
Page
ARTICLE I - GRANT OF LEASE OF PREMISES. . . . . . . . . . . 1
1.1 Lease of Premises. . . . . . . . . . . . . . . . . . 1
1.2 Habendum . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - USE OF PREMISES . . . . . . . . . . . . . . . . 1
2.1 Use of Premises. . . . . . . . . . . . . . . . . . . 1
2.2 Continuous Occupancy and Operations. . . . . . . . . 2
2.3 Title and Condition of Land and Improvements . . . . 2
ARTICLE III - CONSTRUCTION OF IMPROVEMENTS. . . . . . . . . . 3
3.1 Construction of Improvements . . . . . . . . . . . . 3
ARTICLE IV - TERM. . . . . . . . . . . . . . . . . . . . . . 3
4.1 Commencement Date. . . . . . . . . . . . . . . . . . 3
4.2 Original Term of Lease . . . . . . . . . . . . . . . 3
4.3 Renewal Options. . . . . . . . . . . . . . . . . . . 3
ARTICLE V - BASIC RENT AND ADDITIONAL RENT. . . . . . . . . 4
5.1 Basic Rent . . . . . . . . . . . . . . . . . . . . . 4
5.2 Additional Rent. . . . . . . . . . . . . . . . . . . 4
5.3 Net Lease; Non-Terminability . . . . . . . . . . . . 5
5.4 Place of Rent Payment. . . . . . . . . . . . . . . . 5
5.5 Late Payment Charge and Interest . . . . . . . . . . 5
ARTICLE VI - PAYMENT OF IMPOSITIONS, TAXES AND ASSESSMENTS;
COMPLIANCE WITH LAWS AND ENVIRONMENTAL MATTERS. 6
6.1 Payment of Impositions . . . . . . . . . . . . . . . 6
6.2 Compliance with Laws . . . . . . . . . . . . . . . . 7
6.3 Permitted Contests . . . . . . . . . . . . . . . . . 7
6.4 Hazardous Materials. . . . . . . . . . . . . . . . . 7
ARTICLE VII - MAINTENANCE, REPAIR AND ALTERATIONS . . . . . . 8
7.1 Maintenance and Repair . . . . . . . . . . . . . . . 8
7.2 Alterations. . . . . . . . . . . . . . . . . . . . . 9
7.3 No Liens . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VIII - INSURANCE AND INDEMNIFICATION . . . . . . . . . 10
8.1 Insurance. . . . . . . . . . . . . . . . . . . . . . 10
8.2 Permitted Insurers . . . . . . . . . . . . . . . . . 10
8.3 Insurance Claims . . . . . . . . . . . . . . . . . . 11
8.4 Insured Parties. . . . . . . . . . . . . . . . . . . 11
8.5 Delivery of Policies . . . . . . . . . . . . . . . . 11
8.6 No Double Coverage . . . . . . . . . . . . . . . . . 11
8.7 Blanket Insurance. . . . . . . . . . . . . . . . . . 11
8.8 Damages for Tenant's Failure to Properly Insure. . . 12
8.9 Casualty . . . . . . . . . . . . . . . . . . . . . . 12
8.10 Indemnification. . . . . . . . . . . . . . . . . . . 13
8.11 Waiver of Subrogation. . . . . . . . . . . . . . . . 13
ARTICLE IX - EMINENT DOMAIN. . . . . . . . . . . . . . . . . 14
9.1 Definitions. . . . . . . . . . . . . . . . . . . . . 14
9.2 Total Condemnation . . . . . . . . . . . . . . . . . 14
9.3 Partial Condemnation . . . . . . . . . . . . . . . . 14
9.4 Award. . . . . . . . . . . . . . . . . . . . . . . . 15
9.5 Temporary Taking . . . . . . . . . . . . . . . . . . 15
ARTICLE X - ASSIGNMENT AND SUBLETTING . . . . . . . . . . . 16
10.1 Assignment and Subletting by Tenant. . . . . . . . . 16
10.2 Assignment by Landlord . . . . . . . . . . . . . . . 16
ARTICLE XI - DEFAULT . . . . . . . . . . . . . . . . . . . . 16
11.1 Events of Default. . . . . . . . . . . . . . . . . . 16
11.2 Landlord's Remedies. . . . . . . . . . . . . . . . . 18
11.3 Additional Rights of Landlord. . . . . . . . . . . . 19
11.4 Waivers by Tenant. . . . . . . . . . . . . . . . . . 19
ARTICLE XII - MISCELLANEOUS . . . . . . . . . . . . . . . . . 20
12.1 Notices, Demands and Other Instruments. . . . . 20
12.2 Estoppel Certificates . . . . . . . . . . . . . 20
12.3 Holding Over by Tenant. . . . . . . . . . . . . 21
12.4 Parties Bound . . . . . . . . . . . . . . . . . 21
12.5 No Merger . . . . . . . . . . . . . . . . . . . 21
12.6 Surrender . . . . . . . . . . . . . . . . . . . 21
12.7 Severability. . . . . . . . . . . . . . . . . . 21
12.8 Attorney's Fees . . . . . . . . . . . . . . . . 22
12.9 Savings Clause. . . . . . . . . . . . . . . . . 22
12.10 Force Majeure . . . . . . . . . . . . . . . . . 22
12.11 Recording - Memorandum of Lease . . . . . . . . 22
12.12 Time of the Essence . . . . . . . . . . . . . . 22
12.13 Transfer of Landlord's Interest . . . . . . . . 22
12.14 Subordination . . . . . . . . . . . . . . . . . 22
12.15 Table of Contents and Headings. . . . . . . . . 23
12.16 Governing Law . . . . . . . . . . . . . . . . . 23
12.17 Certain Definitions . . . . . . . . . . . . . . 23
12.18 Entry by Landlord . . . . . . . . . . . . . . . 23
12.19 Relationship of Landlord and Tenant . . . . . . 24
12.20 Integration . . . . . . . . . . . . . . . . . . 24
12.21 Brokers . . . . . . . . . . . . . . . . . . . . 24
12.22 Acknowledgement of Status of Title to Land. . . 24
12.23 Interest. . . . . . . . . . . . . . . . . . . . 24
12.24 Quiet Possession. . . . . . . . . . . . . . . . 24
12.25 Complete Agreement. . . . . . . . . . . . . . . 25
Exhibit A - Legal Description of the Land
Exhibit B - Construction of Premises
LEASE
THIS LEASE (this "Lease") is made and entered into as of the
10th day of August, 1995 (the "Effective Date"), by and between
CUMBERLAND AMERICA DEVELOPMENT COMPANY, INC., a Texas corporation
("Landlord"), and JUST FOR FEET, INC., an Alabama corporation
("Tenant").
WITNESSETH:
WHEREAS, Landlord is or shall be the owner of the Premises (as
hereinafter defined) located in the City of Tucson, County of Pima,
State of Arizona;
WHEREAS, pursuant to the terms and provisions contained
herein, Landlord desires to lease to Tenant, and Tenant desires to
lease from Landlord, the Premises.
NOW, THEREFORE, for and in consideration of the premises, the
rents and covenants to be paid and performed by Tenant hereunder,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties covenant
and agree as follows:
ARTICLE I
LEASE OF PREMISES
1.1 Lease of Premises. Subject to the terms and conditions
of this Lease, Landlord does hereby lease unto Tenant, and Tenant
does hereby lease from Landlord, those certain premises (the
"Premises") consisting of (a) the real property containing
approximately 2.9 acres located in the City of Tucson, County of
Pima, State of Arizona, which is described in Exhibit A attached
hereto and incorporated herein by reference for all purposes,
together with all of Landlord's rights, privileges, easements and
appurtenances pertaining to such real property (such real property,
rights, privileges, easements and appurtenances being collectively
hereinafter called the "Land"), and (b) a retail building (the
"Building") containing approximately 15,200 square feet of gross
leasable area and other improvements (such Building and other
improvements are hereinafter called the "Improvements") now located
or to be erected by Landlord on the Land in accordance with the
Final Plans (as hereinafter defined).
1.2 Habendum. TO HAVE AND TO HOLD the Premises for use by
Tenant, its permitted successors and assigns, for the Term (as
hereinafter defined) subject to termination as herein provided and
subject to and upon the terms, conditions, covenants, agreements,
provisions and limitations agreed to and imposed upon Tenant
hereunder.
ARTICLE II
USE OF PREMISES
2.1 Use of Premises. (a) Subject to the terms and provisions
hereof, Tenant shall have the right to use and enjoy the Premises
in a lawful manner for the following purposes only: the display and
sale at retail of men's, women's and children's athletic footwear
and athletic apparel; and incidental thereto and in combination
therewith, the sale at retail of related athletic accessories; and
in addition thereto, a facility (not to exceed 10% of the Building
floor area) for the preparation and sale of food products in
combination of beverages, cookies, hamburgers, frankfurters,
sandwiches, ice cream, donuts, popcorn, nachos, carbonated drinks,
coffee and tea; a shoe repair service (not to exceed 10% of the
Building floor area); and entertainment facilities in connection
with the selling of the foregoing products.
(b) Notwithstanding the foregoing, Tenant shall not use or
occupy, or permit the Premises to be used or occupied, nor do or
permit anything to be done in or on the Premises in a manner which
would (i) in any way make void or voidable any insurance then in
force on the Premises, (ii) make it impossible to obtain the
insurance required to be furnished by Tenant under this Lease,
(iii) constitute a public nuisance, or (iv) violate any deed
restrictions affecting the Premises or any present or future,
ordinary or extraordinary, foreseen or unforeseen, laws,
regulations, ordinances or requirements of any governmental
authority.
2.2 Continuous Occupancy and Operations. Tenant covenants
and agrees to occupy and use the entire Improvements continuously
during the entire term of this Lease for the purposes provided in
Section 2.1(a) above, and will operate such business during such
period with diligence under the trade name "Just For Feet," and in
accordance with the best standards of operation of such business.
Notwithstanding the foregoing, Tenant may at any time notify
Landlord that Tenant intends to cease operating its business in the
Improvements as of a date specified in such notice, which date may
not be earlier than ninety (90) days after the date of such notice
(the "Occupancy Termination Date"). Following the Occupancy
Termination Date, Tenant shall continue to pay and perform all of
the other obligations of Tenant hereunder including, without
limitation Tenant's obligation to timely pay until expiration of
the Lease Term of this Lease all Rent (as hereinafter defined) and
all other charges provided under this Lease. At any time after the
Occupancy Termination Date, Landlord may terminate this Lease by
written notice to Tenant specifying a termination date not less
than sixty (60) days thereafter, and Tenant shall deliver
possession of the Premises to Landlord on such termination date in
accordance with the provisions of this Lease, provided that Tenant
shall have the right to reopen its business on the Premises prior
to the specified termination date established under this Section if
Tenant has given Landlord thirty (30) days prior written notice.
Failure of Tenant to timely deliver such notice or to reopen its
business on the Premises prior to the termination date specified by
Landlord shall be deemed a waiver of Tenant's right to reopen as
provided in this Section 2.2.
2.3 Title and Condition of Land and Improvements. Landlord
demises and lets to Tenant the Land subject to all easements,
encumbrances, zoning regulations, restrictions, rules and
ordinances, building restrictions and other laws and regulations,
without representation or warranty as to such matters by Landlord.
Except as expressly provided elsewhere in this Lease (including,
without limitation, in those provisions dealing with Landlord's
construction obligations and certain repair obligations), Tenant
acknowledges that it is fully familiar with the condition of the
Land and hereby accepts the Land in its present, "as-is" condition,
such condition being satisfactory to Tenant. TENANT HEREBY
ACKNOWLEDGES AND AGREES THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN THIS LEASE, (a) NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO THE CONDITION OF THE LAND OR THE
HABITABILITY OR SUITABILITY OF THE SAME FOR TENANT'S BUSINESS
OPERATIONS OR ANY OTHER PURPOSE, OR OTHERWISE, HAVE BEEN MADE TO
TENANT BY LANDLORD OR ANYONE ACTING FOR OR ON BEHALF OF LANDLORD,
AND ANY WARRANTY OF HABITABILITY, SUITABILITY OR FITNESS OF THE
LAND FOR A PARTICULAR USE OR PURPOSE, EITHER EXPRESS OR IMPLIED, IF
ANY, IS HEREBY DISCLAIMED BY LANDLORD AND IRREVOCABLY WAIVED BY
TENANT, AND (b) LANDLORD SHALL BE UNDER NO OBLIGATION AND HAS MADE
NO PROMISES OF ANY KIND TO REPAIR, REMODEL OR MAKE ANY ALTERATIONS
OR IMPROVEMENTS TO THE LAND. EXCEPT AS EXPRESSLY PROVIDED TO THE
CONTRARY IN THIS LEASE, THE OCCUPANCY OF THE PREMISES BY TENANT
SHALL BE DEEMED TO BE AN ACCEPTANCE BY TENANT OF THE PREMISES IN
THEIR THEN PRESENT, "AS-IS" CONDITION, SUCH CONDITION BEING
SATISFACTORY TO TENANT. NOTWITHSTANDING THE FOREGOING TERMS OF
THIS SECTION 2.3, WITHIN SIXTY (60) DAYS AFTER THE EFFECTIVE DATE
LANDLORD SHALL DELIVER TO TENANT COPIES OF ANY RESTRICTIONS FILED
AGAINST THE PROPERTY AND REFLECTED IN LANDLORD'S COMMITMENT FOR
OWNER'S POLICY OF TITLE INSURANCE WHICH LANDLORD SHALL OBTAIN IN
CONNECTION WITH ITS ATTEMPT TO ACQUIRE THE PROPERTY. IF ANY SUCH
RESTRICTIONS CONTAIN TERMS WHICH PROHIBIT USE OF THE PROPERTY FOR
THE PURPOSES PROVIDED IN SECTION 2.1 ABOVE, THEN TENANT MAY
TERMINATE THIS LEASE BY WRITTEN NOTICE DELIVERED TO LANDLORD WITHIN
FIVE (5) DAYS OF RECEIVING SUCH RESTRICTIONS.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
3.1 Construction of Improvements. Landlord and Tenant
acknowledge and agree that the Land is presently vacant land and
that it shall be Landlord's responsibility to construct the entire
Premises. Landlord hereby covenants and agrees to construct the
Building (the "Building Construction") and the other Improvements
on the Land in a good and workmanlike manner using new materials
and substantially in accordance with "Landlord's Work" described on
Exhibit B attached hereto and incorporated herein by reference for
all purposes, with such minor variations as Landlord may deem
advisable.
ARTICLE IV
TERM
4.1 Commencement Date. As used herein, the "Commencement
Date" shall mean the date which is ninety (90) days after the
Substantial Completion Date (as hereinafter defined).
4.2 Original Term of Lease. The "Original Term" of this
Lease shall commence upon 12:01 a.m. on the Substantial Completion
Date and shall end at 11:59 p.m. on the last day of the calendar
month in which the day immediately preceding the twentieth (20th)
anniversary of the Commencement Date occurs, unless sooner
terminated or extended as set forth herein. Tenant hereby
acknowledges that all obligations of Tenant under this Lease
including Tenant's obligation to pay all Additional Rent (as
hereinafter defined) hereunder (excluding only Tenant's obligation
to pay Basic Rent hereunder) shall commence on the Substantial
Completion Date. Tenant's obligation to pay Basic Rent shall
commence on the Commencement Date as provided in Section 5.1 below.
4.3 Renewal Options. Subject to the conditions hereinafter
set forth and provided this Lease is then in effect, Tenant shall
have the right to renew the term of this Lease for two (2)
consecutive renewal terms of five (5) years each (each, a "Renewal
Term"), by delivering written notice to Landlord of its exercise of
such right at least one hundred eighty (180) days before the end of
the Original Term or any Renewal Term, as the case may be. The
first such Renewal Term shall begin upon the expiration of the
Original Term and the second Renewal Term shall begin upon the
expiration of the first Renewal Term. All of the terms, provisions
and covenants of this Lease shall apply to each Renewal Term except
that the Basic Rent (as hereinafter defined) for each Renewal Term
shall be as provided in Article V below. Tenant shall have no
right to exercise any option under this Section 4.3 if any Event of
Default (as hereinafter defined) exists at the time of electing a
renewal option or at the time any Renewal Term would commence. If
Tenant fails to timely give notice of Tenant's intention to renew
this Lease, the Term of this Lease shall expire on the scheduled
expiration date, and Tenant shall have no further option to renew
this Lease. If Tenant does not exercise any such option in a
timely manner, then Landlord shall have the right during the
remainder of the Term of this Lease to advertise the availability
of the Premises for sale or lease. In this Lease the phrases "term
of this Lease," "term hereof," "Lease Term," and "Term" mean the
Original Term and any Renewal Term that may become effective
pursuant to this Section 4.3.
ARTICLE V
BASIC RENT AND ADDITIONAL RENT
5.1 Basic Rent. Tenant covenants to pay to Landlord, without
any prior demand therefor and without any deduction or set-off
whatsoever (except as expressly provided by the terms of this
Lease), as basic rent (the "Basic Rent"), the following sums during
each Lease Year (as hereinafter defined) of the Lease Term (such
annual amounts being calculated by multiplying the rent per square
foot set forth below by the total number of square feet in the
Building):
Lease Year Annual Basic Rent PSF Annual Basic Rent
Original Term:
Years 1-5 $23.29 $354,008.00
Years 6-10 $25.62 $389,424.00
Years 11-15 $28.18 $428,366.00
Years 16-20 $31.00 $471,203.00
Renewal Term(s):
Years 21-25 $34.10 $518,320.00
Years 26-30 $37.51 $570,152.00
The foregoing annual Basic Rent figures are based upon an estimated
total square footage of 15,200. In the event the actual gross
square footage contained within the Building on the Substantial
Completion Date is greater or less than 15,200 square feet, the
actual annual Basic Rent to be paid by Tenant under this Lease
shall be adjusted, based on the figures established above, which
shall be confirmed in writing by Landlord and Tenant by execution
of a Memorandum of Lease as hereinafter provided. The applicable
annual Basic Rent stated above shall be payable in monthly
installments equal to 1/12th of the applicable annual Basic Rent,
each such monthly installment payable in advance on the first day
of each calendar month of each Lease Year during the Lease Term.
The monthly installment of Basic Rent for the first month of the
Lease Term shall be paid by Tenant to Landlord on or before the
Commencement Date. Rent for any fractional calendar month in which
the Lease Term begins or terminates shall be prorated on a per diem
basis, based on the number of days in such month with respect to
such fractional calendar month. The term "Lease Year", as used
herein, shall, in the case of the first Lease Year, mean the period
that begins on the Commencement Date and ends on the last day of
the month in which the day immediately preceding the first
anniversary of the Commencement Date occurs. Each subsequent
"Lease Year" shall mean a period of twelve (12) full calendar
months beginning on the day after the expiration of the first Lease
Year, and each subsequent annual anniversary of such day, except
that the last Lease Year shall end on the last day of the Lease
Term and may be less than twelve (12) full calendar months.
5.2 Additional Rent. Tenant covenants that all other
amounts, liabilities and obligations which Tenant assumes or agrees
to pay or discharge pursuant to this Lease together with every
fine, penalty, interest and cost which may be added for nonpayment
or late payment thereof, shall constitute additional rent
("Additional Rent") hereunder (whether or not the same be
designated as "Additional Rent"). The term "Rent", as used herein,
shall collectively mean and refer to Basic Rent and all other
Additional Rent hereunder.
5.3 Net Lease; Non-Terminability. Except as expressly set
forth to the contrary in this Lease:
(a) This is an absolutely net lease to Landlord. It is the
intent of the parties hereto that the Rent payable under this Lease
shall be an absolutely net return to Landlord and that Tenant shall
pay all costs and expenses relating to the Premises and the
business operated thereon. Any amount or obligation set forth in
this Lease and relating to the Premises which is not expressly
declared to be that of Landlord shall be deemed to be an obligation
of Tenant to be performed by Tenant at Tenant's expense. Basic
Rent, Additional Rent and all other sums payable hereunder by
Tenant, shall be paid without notice, demand, setoff, counterclaim,
abatement, suspension, deduction or defense.
(b) This Lease shall not terminate, nor shall Tenant have any
right to terminate this Lease, nor shall Tenant be entitled to any
abatement or reduction of Rent hereunder, nor shall the obligations
of Tenant under this Lease be affected by reason of (i) any damage
to or destruction of all or any part of the Premises from whatever
cause; (ii) the taking of the Premises or any portion thereof by
condemnation, requisition or otherwise; (iii) the prohibition,
limitation or restriction of Tenant's use of all or any part of the
Premises, or any interference with such use; (iv) any eviction by
paramount title or otherwise; (v) Tenant's acquisition or ownership
of all or any part of the Premises; (vi) any default on the part of
Landlord under this Lease, or under any other agreement to which
Landlord and Tenant may be parties; (vii) the failure of Landlord
to deliver possession of the Premises; or (viii) any other cause
whether similar or dissimilar to the foregoing, any present or
future law to the contrary notwithstanding.
(c) Tenant agrees that it will remain obligated under this
Lease in accordance with its terms, and it will not take any action
to terminate, rescind or avoid this Lease, notwithstanding (i) the
bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding affecting
Landlord or its successors-in-interest, or (ii) any action with
respect to this Lease which may be taken by any trustee or receiver
of Landlord or its successors-in-interest or by any court in any
such proceeding.
(d) Tenant waives all rights which may now or hereafter be
conferred by law (i) to quit, terminate or surrender this Lease or
the Premises or any part thereof, or (ii) to any abatement,
suspension, deferment or reduction of the Basic Rent, Additional
Rent or any other sums payable under this Lease.
(e) It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent
covenants and agreements, that the Basic Rent, the Additional Rent
and all other sums payable by Tenant hereunder shall continue to be
payable in all events and that the obligations of Tenant hereunder
shall continue unaffected, unless the requirement to pay or perform
the same shall have been terminated pursuant to an express
provision of this Lease.
5.4 Place of Rent Payment. All payments of Rent hereunder
shall be made to Landlord as the same become due and payable in
lawful money of the United States of America at the address of
Landlord specified in Section 12.1 hereof or at such other address
as Landlord may designate in accordance with the provisions of said
Section 12.1.
5.5 Late Payment Charge and Interest. Tenant hereby
acknowledges that late payment by Tenant to Landlord of Rent under
this Lease will cause Landlord to incur various expenses not
contemplated by this Lease, the exact amount of which are presently
difficult to ascertain. Accordingly, if any payment of Rent shall
not be received by Landlord within ten (10) days after the due date
thereof, then, in addition to such required payment, Tenant shall
also pay Landlord a late charge equal to $500.00 for each month in
which any Rent or other payment for such month is not timely paid,
which late charge shall constitute Additional Rent hereunder.
Landlord and Tenant agree that such late charge represents a fair
and reasonable estimate of the expenses that Landlord will incur by
reason of such late payment by Tenant. Acceptance of such late
charge by Landlord shall not constitute a waiver of Tenant's
default with respect to any such past due amounts, nor prevent
Landlord from exercising any other rights or remedies granted to
Landlord under this Lease or at law or in equity. In addition, any
Rent or any other sum required to be paid by Tenant under this
Lease which is not paid within ten (10) days after the same is due,
shall bear interest, commencing on the eleventh (11th) day after
the due date thereof and continuing until paid, at the lesser of
(a) the maximum rate permitted by applicable law, or (b) eighteen
percent (18%) per annum.
ARTICLE VI
PAYMENT OF IMPOSITIONS, TAXES AND ASSESSMENTS;
COMPLIANCE WITH LAWS AND ENVIRONMENTAL MATTERS
6.1 Payment of Impositions. (a) Tenant shall pay, discharge
and satisfy the following charges (the "Impositions") when due:
(i) all taxes, assessments (including assessments for
benefits from public works or improvements, whether or not
begun or completed prior to the Commencement Date and whether
or not to be completed within the Term), levies, fees, water
and sewer rents and charges, and all other governmental
charges of every kind, general and special, ordinary and
extraordinary, together with, subject to the succeeding
provisions of this Section 6.1, any interest and penalties
thereon, which accrue or are payable during the Lease Term and
which are imposed or levied upon or assessed against (A) the
Premises or any part thereof, (B) any Basic Rent or any
Additional Rent reserved or payable hereunder, and (C) this
Lease or the leasehold estate hereby created or which arises
in respect of the operation, possession, occupancy or use of
the Premises;
(ii) any gross receipts or similar taxes imposed or
levied upon, assessed against or measured by the Basic Rent or
Additional Rent payable by Tenant hereunder or levied upon or
assessed against the Premises;
(iii) all sales and use taxes which are levied or
assessed against or payable by Landlord and Tenant on account
of the acquisition, leasing or use of the Premises or any
portion thereof; and
(iv) all charges for water, gas, light, heat,
telephone, electricity, power and other utilities and
communications services rendered or used on or about the
Premises.
(b) Tenant agrees to furnish to Landlord, within thirty (30)
days after written demand therefor, evidence of the payment of all
Impositions. In the event that any Imposition levied or assessed
against the Premises becomes due and payable during the Term hereof
and may be legally paid in installments, Tenant shall have the
option to pay such Imposition in installments. Tenant shall
request the appropriate taxing and assessing authorities having
jurisdiction over the Premises to send directly to Tenant all tax
bills, assessments and notices pertaining to the Premises.
Notwithstanding the foregoing, for any such tax bills, assessments
and notices that are not sent directly to Tenant but are sent to
Landlord, Landlord hereby covenants and agrees to forward to Tenant
all such tax bills, assessments and notices pertaining to the
Premises within ten (10) business days after Landlord receives
same, but Tenant's obligation to timely pay any amount that was the
subject of such tax bill, assessment and notice shall not be
conditioned upon Landlord's delivery of such item to Tenant within
such time period.
6.2 Compliance with Laws. Except for those obligations that
are expressly stated in this Lease as being the obligation of
Landlord, Tenant shall, at its own cost and expense, obtain any and
all business licenses necessary for the operation of Tenant's
business on the Premises and shall comply with all governmental
statutes, laws, orders, ordinances, rules and regulations
applicable to the use of the Premises and all requirements of the
Fire Insurance Rating Organization, Board of Fire Insurance
Underwriters and any similar bodies having jurisdiction thereof,
including those which require the making of any structural,
unforeseen or extraordinary changes to the Premises, whether or not
any of the same involve a change of policy on the part of the body
enacting the same, and shall promptly comply with all governmental
orders and directives and/or demands from Landlord for the
correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises. Without limiting the foregoing,
Tenant shall, at its expense, comply with all changes required in
order to obtain and/or maintain the Required Insurance (as
hereinafter defined), and with the provisions of all contracts,
agreements, instruments and restrictions existing on the
Substantial Completion Date or thereafter suffered or permitted by
Tenant affecting the Premises or any part thereof relating to the
ownership, occupancy or use thereof.
6.3 Permitted Contests. Tenant shall not be required to (a)
pay any Imposition, (b) comply with any statute, law, rule, order,
regulation or ordinance, or (c) discharge or remove any lien,
encumbrance or charge against the Premises, so long as Tenant shall
contest, in good faith and at its sole expense, the existence, the
amount or the validity thereof, the amount of the damages caused
thereby or the extent of its liability therefor, by appropriate
proceedings during the pendency of which there is prevented (i) the
collection of, or other realization upon, the tax, assessment,
levy, fee, rent, charge, lien or encumbrance so contested; (ii) the
sale, forfeiture or loss of the Premises, or any part thereof, or
the Basic Rent or any Additional Rent, or any portion thereof;
(iii) any interference with the use or occupancy of the Premises or
any part thereof; and (iv) any interference with the payment of the
Basic Rent or any Additional Rent, or any portion thereof. Tenant
further agrees that each such contest shall be diligently and
continuously prosecuted to a final conclusion. Tenant shall defend
(with counsel reasonably acceptable to Landlord), indemnify and
hold Landlord harmless against, any and all losses, judgments,
decrees and costs (including all attorneys' fees, appearance costs
and expenses) in connection with any such contest and shall,
promptly after the final settlement, compromise or determination of
such contest, fully pay and discharge the amounts which shall be
levied, assessed, charged or imposed or be determined to be payable
in connection therewith, together with all penalties, fines,
interests, costs and expenses thereof or in connection therewith,
and perform all acts, the performance of which shall be ordered or
decreed as a result thereof. Notwithstanding the foregoing, no
such contest shall be pursued by Tenant if doing so would subject
Landlord or any Fee Mortgagee to the risk of any criminal
liability.
6.4 Hazardous Materials. (a) Tenant shall not cause, or
suffer or permit Tenant's agents, contractors, employees, customers
or persons receiving or delivering goods or services to or from the
Premises to cause, any Hazardous Material (as hereinafter defined)
to exist on or be discharged from the Premises (whether originating
thereon or migrating to the Premises from other property), and
Tenant shall promptly (i) remove any charge or lien upon any of the
Premises, and (ii) defend (with counsel reasonably acceptable to
Landlord), indemnify and hold Landlord, Fee Mortgagee and all of
their successors and assigns, harmless from and against any and all
claims, expenses, liabilities, losses or damages to or threatened
against the Property, Landlord, Fee Mortgagee or any third party,
resulting from any Hazardous Material that is placed, generated or
created in, on or under the Premises or is discharged from the
Premises, after the Substantial Completion Date.
(b) Tenant shall notify Landlord and Fee Mortgagee of any
Hazardous Material that exists on or is discharged from or onto the
Premises (whether originating thereon or migrating to the Premises
from other property) within ten (10) days after Tenant first has
knowledge of the existence or discharge of such Hazardous Material.
(c) Throughout the Term, Tenant shall comply, and cause the
Premises to comply, with all statutes, laws, ordinances, rules and
regulations of all local, state or federal authorities having
authority over the Premises or any portion thereof or their use,
including, without limitation, those relative to any Hazardous
Material, petroleum products, asbestos containing materials or
PCB's.
(d) "Hazardous Material" means any hazardous or toxic
material, substance or waste which is defined by those or similar
terms or is regulated as such under any Environmental Laws.
"Environmental Laws" means any statute, law, ordinance, rule or
regulation of any local, county, state or federal authority having
jurisdiction over the Premises or any portion thereof or its use,
including, but not limited to: (i) the Federal Water Pollution
Control Act (33 U.S.C. Section 1317) as amended; (ii) the Federal
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.) as amended; (iii) the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) as
amended; (iv) the Toxic Substance Control Act (15 U.S.C. Section
2601) as amended; and (v) the Clean Air Act (42 U.S.C. Section
7401), as amended.
(e) Tenant's obligations and liabilities under this Section
6.4 shall survive the expiration or any termination of this Lease.
ARTICLE VII
MAINTENANCE, REPAIR AND ALTERATIONS
7.1 Maintenance and Repair. If Tenant becomes aware of
latent or patent defects in materials or workmanship in the
construction of the Premises, then with respect to such defects,
Landlord hereby authorizes Tenant to assert, and hereby assigns to
Tenant (to the extent assignable), any and all warranties and other
claims that Landlord may now or hereafter have against the
contractors, subcontractors and suppliers that furnished labor or
materials for the construction of the Improvements. In no event
shall Tenant have any right to seek recourse for such latent or
patent defects against Landlord and Tenant hereby waives all such
rights. Tenant agrees to, at its sole expense, (a) keep and
maintain the Premises, including any altered, rebuilt, additional
or substituted buildings, structures and other improvements
thereto, in good repair and appearance, except for ordinary wear
and tear, and (b) promptly make all structural and nonstructural,
foreseen and unforeseen, ordinary and extraordinary changes and
repairs of every kind which may be required to keep the Premises in
such good condition, repair and appearance. Except for Landlord's
Work, Landlord shall not be required to maintain, repair or rebuild
or make any alterations, replacements or renewals of any nature to
the Premises, or any part thereof, whether ordinary or
extraordinary, structural or nonstructural, foreseen or unforeseen.
Tenant hereby expressly waives the right to make repairs at the
expense of Landlord which may be provided for in any law in effect
at the time of the commencement of the Term of this Lease or which
may thereafter be enacted, but the foregoing waiver shall not be a
waiver of rights expressly granted to Tenant by the terms of this
Lease. Tenant shall, at its own cost and expense, care for and
maintain the grounds around the Improvements, including the regular
mowing of grass, care of shrubs and general landscaping, and the
maintenance of the parking areas, driveways and alleys on the Land,
and shall maintain the whole of the Premises in a clean and
sanitary condition.
7.2 Alterations. (a) Tenant shall not make any alterations,
additions or modifications to the Premises without the prior
written consent of Landlord (which consent shall not be
unreasonably withheld), except for installation of unattached,
movable trade fixtures in the Building which may be installed
without drilling, cutting or otherwise defacing any part of the
Premises. All alterations, additions and modifications made to the
Premises by Tenant other than unattached, movable trade fixtures
shall remain upon the Premises and become the property of Landlord
upon the expiration or termination of this Lease, unless Landlord
requests their removal in which event Tenant shall, at Tenant's
expense, remove the same and restore the Premises to their original
condition as of the Commencement Date. If Tenant fails to repair
any damage to the Premises caused by any removal of any
alterations, additions or modifications to the Premises, then
Landlord shall have the right, but not the obligation, to repair
any such damage to the Premises and thereafter Tenant will be
obligated to reimburse Landlord for the reasonable costs of
repairing such damage. All plumbing or electrical wiring
connections exposed as a result of the removal of any alterations,
additions or modifications shall be capped by Tenant in a safe and
workmanlike manner.
(b) Notwithstanding anything contained in paragraph (a) above
to the contrary, before approving any alterations, additions or
modifications for which Landlord's consent is required, Landlord
may require Tenant to furnish it with (i) plans and specifications
detailing the work to be completed, (ii) the names and addresses of
the contractors to complete such work and copies of the contracts
entered into with such contractors, (iii) all permits necessary for
the construction of such alterations, additions or modifications,
and (iv) evidence of any insurance reasonably requested by Landlord
in connection with such alterations, additions and modifications,
which insurance shall name Landlord and Fee Mortgagee as additional
insureds.
(c) All construction work done by Tenant within or upon the
Premises shall be performed in a good and workmanlike manner, in
compliance with all governmental requirements, and the requirements
of any contract or deed of trust to which Landlord may be a party
and in such manner as to cause a minimum of interference with other
construction in progress.
(d) Tenant agrees that all improvements, alterations, repairs
or other work performed upon the Premises under any provision of
this Lease including, without limitation, any venting, opening,
sealing, water proofing or any altering of the roof of the Building
shall be performed under the direction of a general contractor
approved by Landlord in advance and that when completed Tenant
shall furnish to Landlord a certificate from such contractor
stating that all such alterations approved by Landlord have been
completed in accordance with plans and specifications previously
approved by Landlord. Without limiting the foregoing, the plans
and drawings for installation or revision of mechanical, electrical
or plumbing systems shall be designed by an engineer approved by
Landlord in advance, such design work to be done at Tenant's
expense. Tenant shall defend (with counsel reasonably acceptable
to Landlord), indemnify and hold Landlord and Fee Mortgagee
harmless from and against all claims, liens, costs, damages and
expenses that may arise out of or in connection with any changes,
additions, alterations or modifications made to the Premises by
Tenant.
7.3 No Liens. Tenant will not, directly or indirectly,
create or permit to be created or to remain, and will promptly
discharge, at its expense, any mortgage, lien, encumbrance or
charge on, pledge of or conditional sale or other title retention
agreement with respect to, the Premises or any part thereof or
Tenant's interest therein or the Basic Rent, Additional Rent or
other sums payable by Tenant under this Lease, other than a Fee
Mortgage. Nothing contained in this Lease shall be construed as
constituting the consent or request, expressed or implied, by
Landlord to the performance of any labor or services or of the
furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to the Premises or any part
thereof by any contractor, subcontractor, laborer, materialman or
vendor. Notice is hereby given that Landlord will not be liable
for any labor, services or materials furnished or to be furnished
to Tenant, or to anyone holding the Premises or any part thereof,
and that no mechanic's or other liens for any such labor, services
or materials shall attach to or affect the interest of Landlord in
and to the Premises.
ARTICLE VIII
INSURANCE AND INDEMNIFICATION
8.1 Insurance. Tenant shall throughout the Term maintain, or
cause to be maintained, at its sole expense, the following
insurance (herein called the "Required Insurance"), which shall
have deductible amounts to be approved by Landlord in writing:
(a) Insurance against loss or damage by fire, lightning and
other risks from time to time included under "all risk" policies,
including, without limitation, vandalism and malicious mischief
coverage, in amounts sufficient to prevent Landlord or Tenant from
becoming a coinsurer of any loss under the applicable policies but
in any event in amounts not less than the actual replacement value
of the Improvements.
(b) General public liability insurance for the benefit of
Landlord, Tenant and any Fee Mortgagee against claims for damages
to person or property occurring on, in or about the Premises and
the adjoining streets, sidewalks, gutters, curbs, passageways and
other areas adjacent thereto, if any, of at least Two Million
Dollars ($2,000,000) single limit with respect to bodily injury or
death to any one person, at least Three Million Dollars
($3,000,000) with respect to any one accident, and at least One
Million Dollars ($1,000,000) with respect to property damage, such
insurance to include full coverage of the indemnity set forth in
Section 8.10. Tenant shall also maintain in force an "umbrella" or
excess policy of liability insurance having limits of at least
Three Million Dollars ($3,000,000) in excess of the limits of
liability insurance required above. All policies for liability
insurance required by this Lease shall name Landlord and any Fee
Mortgagee as additional insureds, as their respective interests may
appear.
(c) Workers' compensation insurance covering all persons
employed in connection with any work done on or about the Premises
with respect to which claims for death or bodily injury could be
asserted against Landlord, Tenant or the Premises, complying with
the laws of the state in which the Premises is located.
(d) At any time when any portion of the Premises are being
altered or replaced, builder's risk insurance (in completed value
nonreporting form) in an amount not less than the actual
replacement value of the Improvements.
8.2 Permitted Insurers. Tenant's Required Insurance shall be
issued by insurance companies having a financial rating of at least
"X" and a general policy holders rating of "A+", as rated in the
most recent Best's Insurance Reports. In the event Tenant fails to
obtain and maintain the Required Insurance, Landlord may, in
addition to Landlord's other remedies, obtain such insurance on
behalf of and for the account of Tenant, and Tenant shall reimburse
Landlord on demand for the actual costs incurred by Landlord in
obtaining such insurance. The Required Insurance shall name as the
insured parties thereunder Landlord and Tenant, as their interests
may appear, and any Fee Mortgagee as an additional insured under a
standard "noncontributory mortgagee" endorsement or its equivalent.
Landlord shall not be required to prosecute any claim against, or
to contest any settlement proposed by, an insurer. Tenant may, at
its expense, prosecute any such claim or contest any such
settlement in the name of Landlord, Tenant or both, and Landlord
will join therein at Tenant's written request upon the receipt by
Landlord of an indemnity from Tenant against all costs, liabilities
and expenses in connection therewith.
8.3 Insurance Claims. Insurance claims by reason of damage
to or destruction of any portion of the Premises shall be adjusted
by Landlord and Tenant, but any Fee Mortgagee shall have the right
to join with Landlord and Tenant in adjusting any such loss.
Insurance proceeds shall be placed in an account controlled by
Landlord or Fee Mortgagee and shall be disbursed in the manner
provided in Section 8.9. For insured losses occurring during the
first ten (10) Lease Years, any insurance proceeds remaining after
Tenant has repaired the Premises pursuant to Section 8.9 shall be
paid to and shall be the property of Fee Mortgage, if Fee
Mortgagee's lien documents require. For insured losses occurring
after the first ten (10) Lease Years, any insurance proceeds
remaining after Tenant has repaired the Premises pursuant to
Section 8.9 shall be paid to and shall be the property of Tenant.
Notwithstanding the foregoing, no payment shall be made to Tenant
pursuant to this Section 8.3 or Section 8.9 if any default or Event
of Default shall have happened and be continuing under this Lease.
8.4 Insured Parties. Every policy referred to in paragraphs
(a) - (d) of Section 8.1 shall bear a first mortgagee endorsement
in favor of Fee Mortgagee (if any); and any loss under any such
policy shall be made payable to such Fee Mortgagee, provided that
any recovery under any such policy shall be applied by such Fee
Mortgagee in the manner provided in Section 8.9. All policies of
Required Insurance to be obtained by Tenant hereunder shall be
promptly delivered to Landlord and renewals thereof as required
shall be delivered to Landlord at least thirty (30) days prior to
the expiration of such policies, which policies shall bear the
endorsement that the subject policies will not be cancelled or
reduced in scope of coverage or amount of coverage until thirty
(30) days' prior written notice thereof has been given to Landlord.
8.5 Delivery of Policies. If Tenant fails to maintain or
renew any Required Insurance, or to pay the premium therefor, or to
deliver any such policy or certificate, then Landlord, at its
option, but without obligation to do so, may, upon five (5) days'
notice to Tenant, procure such insurance. Any sums so expended by
Landlord shall be Additional Rent hereunder and shall be repaid by
Tenant to Landlord on the date the next installment of Basic Rent
is due.
8.6 No Double Coverage. Neither Tenant nor Landlord shall
obtain or carry separate insurance covering the same risks as any
Required Insurance unless Tenant, Landlord and Fee Mortgagee are
included therein as named insured, with loss payable as provided in
this Lease and the policy contains a first mortgagee endorsement in
favor of Fee Mortgagee. Tenant and Landlord shall immediately
notify each other whenever any such separate insurance is obtained
and shall deliver to each other the policies or certificates
evidencing the same.
8.7 Blanket Insurance. Anything contained in this Article
VIII to the contrary notwithstanding, all Required Insurance may be
carried under a "blanket" or "umbrella" policy or policies covering
other properties or liabilities of Tenant, provided that such
policies otherwise comply with the provisions of this Lease and
specify the coverage and amounts thereof with respect to the
Premises.
8.8 Damages for Tenant's Failure to Properly Insure.
Landlord or Fee Mortgagee shall not be limited in the proof of any
damages which Landlord or Fee Mortgage may claim against Tenant
arising out of or by reason of Tenant's failure to provide and keep
in force insurance, as provided above, to the amount of the
insurance premium or premiums not paid or incurred by Tenant and
which would have been payable under such insurance; but Landlord
and Fee Mortgagee shall also be entitled to recover as damages for
such breach, the uninsured amount of any loss, to the extent of any
deficiency in the Required Insurance and damages, costs and
expenses of suit suffered or incurred by reason of or damage to, or
destruction of, the Premises, occurring during any period when
Tenant shall have failed or neglected to provide the Required
Insurance. Tenant shall defend (with counsel reasonably acceptable
to Landlord), indemnify and hold harmless Landlord and Fee
Mortgagee for any liability incurred by Landlord or Fee Mortgagee
for or arising out of the failure to pay any deductibles for the
Required Insurance.
8.9 Casualty. (a) If the Premises or any part thereof shall
be damaged or destroyed by casualty, Tenant shall promptly notify
Landlord thereof, and, except as provided in this Section 8.9,
Tenant shall, with reasonable promptness and diligence, rebuild,
replace and repair any damage or destruction to the Premises, at
its expense, in conformity with the requirements of Section 7.5 in
such manner as to restore the same to the same condition, as nearly
as possible, as existed prior to such casualty, and there shall be
no abatement of Basic Rent or Additional Rent.
(b) Before Tenant commences such repairing, restoration or
rebuilding, plans and specifications therefor, prepared by a
licensed architect reasonably satisfactory to Landlord (the
"Approved Architect"), shall be submitted to Landlord for approval,
and Tenant shall furnish to Landlord (i) an estimate of the cost of
the proposed work, certified to by the Approved Architect, it being
agreed that the cost of repairing, restoring and reconstructing the
Premises shall include any and all costs and expenses for labor,
materials, engineering, design and architectural fees to be
incurred in connection with such repair, restoration or rebuilding
of the Premises, (ii) names and addresses of Tenant's proposed
general contractors, (iii) copies of proposed contracts with
general contractors and the necessary permits, (iv) evidence of
builder's risk, liability and property damage insurance of the
general contractor naming Landlord and Fee Mortgagee as additional
insureds in limits reasonably acceptable to Landlord and Fee
Mortgagee, and (v) if required by Fee Mortgagee, payment and
performance bonds covering the full amount of the proposed
contracts, all in form and substance reasonably satisfactory to
Fee Mortgagee. Tenant shall defend (with counsel reasonably
acceptable to Landlord), indemnify and hold Landlord harmless from
and against all claims, liens, costs, damages and expenses that may
arise out of or in connection with any changes, additions,
alterations or improvements to the Premises by Tenant.
(c) Within thirty (30) days from the date of the
determination of the cost of the work by the Approved Architect,
Tenant shall deposit with the party holding the insurance proceeds,
any excess in the estimated cost of the work over the insurance
proceeds held in an account pursuant to Section 8.3. Tenant shall
diligently and continuously pursue the repair, restoration or
rebuilding of the improvements in a good and workmanlike manner,
using only high quality materials. Proceeds of such insurance
shall be made available to Tenant against Tenant's applications for
payment delivered to Landlord from time to time as such work or
repair progresses. In each application, Tenant shall (i) describe
the work or repair for which Tenant is requesting payment, (ii)
confirm that the work to date has been performed in accordance with
the approved plans and specifications relating thereto, (iii)
confirm the costs incurred by Tenant in connection therewith, (iv)
confirm that except for bills for which Tenant is requesting
reimbursement pursuant to the current application, all bills for
work and materials have been paid in full, (v) state that Tenant
has not theretofore received payment for such work, (vi) confirm
that the undisbursed funds in the account are sufficient to pay in
full the cost of completing the work free of liens or claims, and
(vii) include any lien waivers reasonably requested by Landlord or
Fee Mortgagee.
(d) In the event of damage to, or destruction of more than
thirty percent (30%) of the then replacement cost of the
Improvements on the Premises (as determined by the Approved
Architect) during the final twelve (12) months of the term of this
Lease, and such damage is not caused by the negligence or willful
act or omission of Tenant or Tenant's employees, agents, invitees,
independent contractors, customers or licensees, Tenant may, but
shall not be obligated to, repair, restore or rebuild such
Improvements. If Tenant elects not to so repair, restore or
rebuild, Tenant shall notify Landlord of such election within
thirty (30) days after such casualty, and either party may
thereafter terminate this Lease upon thirty (30) days' written
notice thereof to the other. In the event of such termination of
this Lease, Landlord shall retain all insurance proceeds payable
under the insurance policies referred to in Section 8.1. If this
Lease is not terminated under this Section 8.9(d), Tenant shall
proceed to rebuild or repair the Improvements according to the
other provisions of this Section 8.9.
(e) Subject to the provisions of Section 8.3 and this Section
8.9, Landlord hereby covenants and agrees to deliver to Tenant, to
the extent available, any and all amounts requested by Tenant
within twenty (20) days after the date Tenant makes request
therefor pursuant to the application for payment described above.
8.10 Indemnification. Tenant agrees to pay and to protect,
defend (with counsel reasonably acceptable to Landlord), indemnify
and hold harmless Landlord, Fee Mortgagee and their agents,
successors and assigns from and against any and all liabilities,
losses, damages, costs, expenses (including all reasonable
attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature whatsoever arising out of (a)
any injury to, or the death of, any person or any damage to
property on the Premises or upon adjoining sidewalks, streets or
ways, or (b) the violation by Tenant of this Lease or any contract
or agreement to which Tenant is a party or any restriction, law,
ordinance or regulation to which Tenant or the Premises are
subject. If Landlord, Fee Mortgagee or any agent of Landlord or
Fee Mortgagee shall be made a party to any litigation commenced
against Tenant for which Tenant is obligated to provide
indemnification pursuant to the terms of this Lease, and if Tenant,
at its expense, shall fail to provide Landlord, Fee Mortgagee or
their agents with counsel approved by Landlord, Tenant shall pay
all reasonable costs and reasonable attorneys' fees and expenses
incurred or paid by Landlord, Fee Mortgagee or their agents in
connection with such litigation. Tenant's obligations and
liabilities under this Section 8.10 shall survive the expiration or
any termination of this Lease.
8.11 Waiver of Subrogation. Notwithstanding any provision
contained herein to the contrary, Landlord and Tenant, for
themselves and their respective insurers or any other party
claiming through or under them by way of subrogation or otherwise,
each hereby waives any and all rights of recovery, claim, action,
or cause of action, against the other, its agents, servants,
partners, shareholders, officers or employees for any loss or
damage that may occur to the Premises, or any improvements thereto,
or any of its property located in, upon or constituting a part of
the Premises, which loss or damage is covered by valid and
collectible fire and extended coverage policies, to the extent that
such loss or damage is recoverable thereunder. Inasmuch as the
above mutual waivers will preclude the assignment of any aforesaid
claim by way of subrogation (or otherwise) to an insurance company
(or any other person), Landlord and Tenant severally agree
immediately to give each insurance company which has issued to it
policies of insurance, written notice of the terms of said mutual
waivers, and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of such insurance coverages
by reason of said waivers.
ARTICLE IX
EMINENT DOMAIN
9.1 Definitions. As used in this Lease, the following words
shall have the following meanings:
(a) "Condemnation proceedings" means any action or proceeding
brought for the purpose of any taking of property or any property
interest by competent authority as a result of the exercise of the
power of eminent domain, condemnation or purchase under threat
thereof or in lieu thereof.
(b) "Taking" or "taken" means the taking of, or damage to,
property or any property interest pursuant to condemnation
proceedings.
(c) "Date of taking" means the date on which a condemning
authority rightfully obtains physical possession of property
pursuant to a taking.
9.2 Total Condemnation. If all of the Premises should be
taken, this Lease shall terminate as of the date of taking of the
Premises.
9.3 Partial Condemnation. (a) If more than twenty percent
(20%) of the floor area of the Building should be permanently taken
for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or by private
purchase in lieu thereof, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease,
effective on the date physical possession is taken by the
condemning authority.
(b) If less than twenty percent (20%) of the floor area of
the Building should be permanently taken as aforesaid, this Lease
shall not terminate; however, the Basic Rent payable hereunder
during the unexpired portion of this Lease shall be reduced in
proportion to the Building floor area taken, effective on the date
physical possession is taken by the condemning authority.
Following such partial taking, Tenant shall make all necessary
repairs or alterations necessary to make the Building an
architectural whole as provided in paragraph (d) below.
(c) If any part of the parking area of the Premises is
permanently taken as aforesaid, this Lease shall not terminate, nor
shall the Rent payable hereunder be reduced, except that either
Landlord or Tenant may terminate this Lease if the parking area
remaining following such taking plus any additional parking
provided by Landlord in reasonable proximity to the Premises shall
be less than the amount of parking required by applicable laws and
ordinances. Any election to terminate this Lease in accordance
with this paragraph (c) shall be evidenced by written notice
delivered to the other party within thirty (30) days after the date
physical possession is taken by the condemning authority.
(d) If this Lease is terminated as provided in this Article
IX, all compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Premises shall be the property
of Landlord and Tenant hereby assigns its interest in any such
award to Landlord. If this Lease is not terminated as provided in
this Article IX, then all compensation awarded for any taking (or
the proceeds of private sale in lieu thereof) of the Premises shall
be held by Landlord for the account of Tenant and Tenant shall use
such compensation to promptly restore the remainder of the Premises
and the Improvements to a complete unit of like quality, character
and condition as that which existed immediately prior to the
taking. In this regard, before commencing any restoration, Tenant
must submit to Landlord, for approval, which approval shall not be
unreasonably withheld or delayed, (i) plans and specifications for
such restoration prepared by an Approved Architect; (ii) an
estimate of the cost of proposed restoration, certified to by the
Approved Architect, it being agreed that the cost of restoration
includes any and all costs and expenses for labor, materials,
engineering, design, and architectural fees incurred in connection
with such restoration; (iii) copies of proposed contracts with
general contractors; (iv) evidence of builder's risk, liability,
and property damage insurance of the general contractor naming
Landlord and any Fee Mortgagee, as additional insureds in limits
reasonably acceptable to Landlord and such Fee Mortgagee; and (v)
if required by Fee Mortgagee, payment and performance bonds
covering the full amount of the proposed contract, all in form and
substance reasonably satisfactory to Fee Mortgagee. Within thirty
(30) days after determination by the Approved Architect of the cost
of any restoration work performed under this Article IX, Tenant
shall deposit into an account controlled by Landlord or Fee
Mortgagee any excess in the estimated cost of the restoration work
of the compensation awarded in connection with the taking and all
funds held in said account shall be distributed in the same manner
as insurance proceeds are to be distributed under Section 8.9(c).
If Tenant does not complete the restoration within one hundred
eighty (180) days after the date of taking, then, unless the delay
is for reasons not within the reasonable control of Tenant, in
addition to whatever other remedies Landlord may have either under
this Lease, at law or in equity, Landlord may retain the entire
award or the balance thereof remaining in the custody of Landlord,
as the case may be, as liquidated damages resulting from the
failure of Tenant to comply with the provisions of this Section
9.3. Any portion of such award as may not have to be expended for
such repairing or restoration shall be paid to Landlord.
9.4 Award. All compensation awarded for any taking (or the
proceeds of private sale in lieu thereof) of all or any part of the
Premises shall be the property of Landlord, whether such damage
shall be awarded as compensation for diminution in the value of the
leasehold or to the fee of the Premises or otherwise, subject to
disbursement to Tenant in accordance with the provisions of this
Lease, and Tenant hereby assigns to Landlord all of Tenant's right,
title and interest in and to any such compensation; provided that
Tenant shall be entitled to pursue a separate claim for damages to
Tenant's personal property, leasehold improvements, trade fixtures
and equipment to the full extent permitted under the laws of the
state in which the Premises are situated. In no event shall Tenant
be entitled to any award for the value of the unexpired term of
this Lease. The termination of this Lease shall not affect the
rights of the respective parties to such awards.
9.5 Temporary Taking. If any of the events described in
Sections 9.2 or 9.3 occur as a result of a taking for temporary
use, then, except as hereinafter provided, this Lease shall
continue in full force and effect, except that Tenant shall not be
obligated to comply with any covenant or provision of this Lease to
the extent such compliance is rendered impossible or impracticable
by reason of the taking. In no event shall the Rent payable
hereunder abate or be reduced by reason of any such temporary
taking. If the duration of a taking of all or any part of the
Premises for temporary use, or a taking of the parking areas for
temporary use to the extent provided in Section 9.3(c), exceeds one
hundred eighty (180) days, and if the nature of the taking is such
that, if it were permanent, Tenant would have the right to
terminate this Lease in accordance with the provisions of Section
9.3, then Tenant shall have the right to terminate this Lease by
written notice given to Landlord not later than thirty (30) days
after the expiration of such one hundred eighty (180) day period.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.1 Assignment and Subletting by Tenant. (a) Tenant shall
not and may not assign or in any manner transfer this Lease or any
estate or interest therein, or sublet the Premises or any part
thereof, or grant any license, concession or other right to occupy
any portion of the Premises without the prior written consent of
Landlord, except that Tenant shall have the right to grant a shoe
repair concession and a food operation concession within the
Premises, provided that neither such concession exceeds more than
ten percent (10%) of the floor area of the Building. Landlord
agrees not to unreasonably withhold its consent hereunder provided
that the proposed assignee agrees to comply with the permitted uses
specified in Section 2.1 and no uncured Event of Default exists.
Notwithstanding the foregoing, in no event shall an assignment or
subletting by Tenant hereunder relieve Tenant of any of its
obligations under this Lease and Tenant shall be responsible for
causing the assignee or subtenant, as the case may be, to comply
with all of the terms and conditions of this Lease.
(b) Tenant shall give Landlord at least sixty (60) days
advance written notice of any proposed assignment or subletting,
such notice to be accompanied by a copy of the proposed sublease or
assignment. Landlord shall have the right to terminate this Lease
effective as of the proposed effective date of the assignment or
subletting (except in the case of assignments or subletting to an
affiliate of Tenant as defined in the Securities Act of 1933 or as
otherwise provided above by giving Tenant notice thereof within
thirty (30) days after Landlord's receipt of said notice from
Tenant. Upon any such termination, the parties shall have no
further obligation or liabilities to the other hereunder, except
for obligations and liabilities which accrued prior to the date of
such termination. Should Landlord elect not to so terminate this
Lease in connection with any proposed assignment or subletting,
Landlord shall continue to have the right to disapprove same.
(c) Tenant shall not mortgage, pledge or otherwise encumber
its interest in this Lease or in the Premises, except as otherwise
expressly provided herein.
10.2 Assignment by Landlord. In the event of the transfer and
assignment by Landlord of its interests in this Lease and in the
Premises to a person or entity expressly assuming Landlord's
obligations under this Lease, Landlord shall automatically be
released from any further obligations hereunder, and Tenant agrees
to accept such successor in interest and to look solely to such
successor in interest for performance of Landlord's obligations.
ARTICLE XI
DEFAULT
11.1 Events of Default. Any of the following occurrences or
acts shall constitute an event of default (herein called an "Event
of Default") under this Lease:
(a) Tenant shall fail to make any payment when due of Basic
Rent, Additional Rent or other sum herein required to be paid by
Tenant hereunder and such failure continues for ten (10) days after
Landlord has given notice to Tenant thereof (provided, if in any
calendar year, Landlord has on two (2) or more occasions, given
Tenant notice of Tenant's failure to timely pay rental hereunder,
then during the remainder of such calendar year, if Tenant again
fails to pay rent within ten (10) days after its due date, such
failure shall be a default hereunder, without the necessity of
giving Tenant any further notice of default or opportunity to cure
such default).
(b) Tenant shall fail to observe or perform any other
provision or obligation hereof and such failure continues for
thirty (30) days after Landlord has given notice thereof to Tenant
(provided, that in the event of such default cannot with diligence
be cured within such thirty (30) day period, if Tenant shall
proceed promptly and continuously to cure the same and thereafter
shall prosecute the curing of such default with diligence, the time
within which such failure may be cured shall be extended for such
period as may be necessary to complete the curing of the same with
diligence, provided further, that upon request by Landlord, Tenant
shall from time to time sign and deliver to Landlord a certificate
stating the reason such default cannot be cured within thirty (30)
days and stating that Tenant is proceeding with due diligence to
cure such default).
(c) Any representation or warranty of Tenant set forth in any
notice, certificate, demand, request or other instrument delivered
pursuant to, or in connection with, this Lease, shall either prove
to be false or misleading in any material respect as of the time
when the same shall have been made.
(d) Tenant shall (i) apply for or consent to the appointment
of, or the taking of possession by, any receiver, custodian,
trustee, United States Trustee or liquidator (or other similar
official) of the Premises or any part thereof or of any substantial
portion of Tenant's property, or (ii) make a general assignment for
the benefit of its creditors, or (iii) file petition commencing a
voluntary case under or seeking to take advantage of any Federal
Bankruptcy Code or any other federal or state law (as now or
hereafter in effect) relating to bankruptcy, insolvency,
reorganization, winding-up or adjustment of debts (hereinafter
collectively called "Bankruptcy Law"), or (v) take any action in
furtherance of any of the foregoing.
(e) If an order for relief against Tenant shall be entered in
any involuntary case under the Federal Bankruptcy Code or any
similar order against Tenant shall be entered pursuant to any other
Bankruptcy Law, or if a petition commencing an involuntary case
against Tenant or proposing the reorganization of Tenant under any
Bankruptcy Law shall be filed and not be discharged or denied
within sixty (60) days after such filing (or such longer period of
time as may be reasonably necessary, in Landlord's sole discretion,
to obtain such discharge or denial and Tenant is pursuing same with
diligence), or if a proceeding or case shall be commenced in any
court of competent jurisdiction seeking (i) the liquidation,
reorganization, dissolution, winding-up or adjustment of debts of
Tenant, or (ii) the appointment of a receiver, custodian, trustee,
United States Trustee or liquidator (or any similar official) of
the Premises or any part thereof or of Tenant or of any substantial
portion of Tenant's property, or (iii) any similar relief as to
Tenant pursuant to any Bankruptcy Law, and any such proceeding or
case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect for sixty (60) days (or such longer
period of time as may be reasonably necessary, in Landlord's sole
discretion, to obtain such stay and Tenant is pursuing same with
diligence).
(f) Tenant shall desert or vacate any portion of the
Premises.
(g) The business operated by Tenant shall be closed for
failure to pay any state sales tax as required or for any other
reason.
11.2 Landlord's Remedies. Upon the occurrence of any Event of
Default, Landlord shall have the option to pursue any one or more
of the following remedies:
(a) Terminate this Lease by notice to Tenant, in which event
Tenant shall immediately surrender the Premises to Landlord, and if
Tenant fails to do so, Landlord may, without prejudice to any other
remedy which Landlord may have under this Lease or applicable law,
enter upon and take possession of the Premises and expel or remove
Tenant and any other persons who may be occupying the Premises or
any part thereof, by force if necessary, without being liable for
prosecution or any claim of damages therefor.
(b) Enter upon and take possession of the Premises and expel
or remove Tenant and other person who may be occupying the Premises
or any part thereof, by force if necessary, without being liable
for prosecution or any claim for damages therefor, and no such
action by Landlord shall be construed as an election on Landlord's
part to terminate the Term of this Lease unless a written notice of
such intention is given to Tenant as provided in paragraph (a)
above.
(c) At any time or from time to time after the repossession
of the Premises or any part thereof pursuant to paragraph (b)
above, whether or not the Term of this Lease shall have been
terminated pursuant to paragraph (a) above, Landlord may (but shall
be under no obligation to) relet the Premises or any part thereof
for the account of Tenant, in the name of Tenant or Landlord or
otherwise, without notice to Tenant, for such term or terms (which
may be greater or less than the period which would otherwise have
constituted the balance of the Term of this Lease) and on such
conditions (which may include concessions or free rent) and for
such uses Landlord, in its sole and absolute discretion, may
determine, and Landlord may collect and receive any rents payable
by reason of such reletting and such rents so received shall first
be applied to additional costs incurred by Landlord in reletting
(including tenant finish expenses incurred by Landlord in preparing
the Premises for a new tenant) and then credited against amounts
otherwise owed to Landlord hereunder. Landlord shall not be
responsible or liable for any failure to relet the Premises or any
part thereof or for any failure to collect any rent due upon any
such reletting.
(d) No termination of this Lease pursuant to paragraph (a)
above, by operation of law or otherwise, and no repossession of the
Premises or any part thereof pursuant to paragraph (b) above or
otherwise, and no reletting of the Premises or any part thereof
pursuant to paragraph (c) above, shall relieve Tenant of its
liabilities and obligations hereunder, all of which shall survive
such expiration, termination, repossession or reletting.
(e) In the event of any such termination or repossession,
Tenant will pay to Landlord the Basic Rent, Additional Rent and
other sums required to be paid by Tenant to and including the date
of such termination or repossession and, thereafter, Tenant shall,
until the end of what would have been the Term of this Lease in the
absence of such termination or repossession, and whether or not the
Premises or any part thereof shall have been relet, be liable to
Landlord for, and shall pay to Landlord (i) the Basic Rent,
Additional Rent and other sums which would be payable under this
Lease by Tenant in the absence of such termination or repossession,
less (ii) the net proceeds, if any, of any reletting effected for
the account of Tenant pursuant to paragraph (c) above, after
deducting from such proceeds all Landlord's expenses incurred in
connection with such reletting (including, without limitation, all
repossession costs, new tenant finish-out expenses, brokerage
commissions, legal expenses, attorneys' fees and employees'
expenses). Tenant will pay such current damages on the days on
which the Basic Rent would have been payable under this Lease in
the absence of such termination or repossession, and Landlord shall
be entitled to recover the same from Tenant on each such day.
(f) In addition to any other remedy available to Landlord, in
the event Tenant should neglect to perform the maintenance required
of it pursuant to the terms of this Lease, and such failure shall
not be cured after notice to Tenant and expiration of any
applicable curative period (including any applicable right to
extend the curative period) set forth herein (except Tenant shall
have no grace or curative period to correct any condition that
poses an imminent danger to persons or property), Landlord shall
have the right, but not the obligation, to cause repairs or
corrections to be made, in which event the cost of such repairs
shall be reimbursed by Tenant to Landlord within thirty (30) days
after Tenant receives written demand therefor from Landlord
together with copies of itemized invoices reflecting the cost of
such repairs.
(g) In the event of any termination of this Lease by Tenant
pursuant to a right granted by this Lease or by operation of law,
Tenant's liability for the payment and performance of all
covenants, debts, indemnities and other obligations of Tenant under
this Lease accrued through the date of termination shall be
unaffected by such termination and shall be enforceable against
Tenant in the same manner as if this Lease continued to be in full
force and effect.
11.3 Additional Rights of Landlord. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive
of any other right or remedy, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing at law or in equity or
by statute, unless expressly excluded by the terms of this Lease.
The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement or to exercise any option,
right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof for the future.
A receipt by Landlord of any Basic Rent, any Additional Rent or any
other sum payable hereunder with knowledge of the breach of any
covenant or agreement contained in this Lease shall not be deemed
a waiver of such breach, and no waiver by Landlord of any provision
of this Lease shall be deemed to have been made unless expressed in
writing and signed by Landlord. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief in case of the
violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions or provisions of this Lease, or
to decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any other
remedy allowed to Landlord at law or in equity.
11.4 Waivers by Tenant. Tenant hereby waives and surrenders
for itself and all those claiming under it, including creditors of
all kinds, any right of privilege which it or any of them may have
under any present or future construction, statute or rule of law to
redeem the Premises or to have a continuance of this Lease for the
Term hereby demised after termination of Tenant's right of
occupancy by order or judgment of any court or by any legal process
or writ, or under the terms of this Lease or after the termination
of the term of this Lease as herein provided.
ARTICLE XII
MISCELLANEOUS
12.1 Notices, Demands and Other Instruments. All notices,
correspondence, documents or requests given, sent or required to be
given with respect to any matter pertaining to this Lease shall be
in writing. Any notices, correspondence, documents or requests
required or permitted to be delivered under this Lease shall be
addressed to the applicable party at the addresses set forth below,
or to such other address as Landlord or Tenant may designate in
writing, and deemed delivered or received (a) regardless of whether
actually received or not, upon deposit in the United States mail,
postage prepaid, certified mail, return receipt requested, or
(b) when actually received if sent other than by certified mail.
If to Tenant: Just For Feet, Inc.
153 Cahaba Valley Parkway North
Pelham, Alabama 35124
Attention: Harold Ruttenberg
(205) 403-8000 (Telephone)
(205) 403-8200 (Facsimile)
With a copy to:
Karl B. Friedman, Esq.
Sirote & Permutt
2222 Arlington Avenue South
P.O. Box 55727
Birmingham, Alabama 35255
(205) 930-5117 (Telephone)
(205) 930-5301 (Facsimile)
If to Landlord: Cumberland America Development Company, Inc.
2607 Walnut Hill Lane, Suite 111
Dallas, Texas 75229
Attention: Bradford Beck
(214) 351-0100 (Telephone)
(214) 357-5546 (Facsimile)
With a copy to:
Walter A. Suberg, Esq.
McManemin & Smith, P.C.
600 North Pearl Street
L.B. 175, Suite 1600
Dallas, Texas 75201-2809
(214) 953-1321 (Telephone)
(214) 953-0695 (Facsimile)
Landlord and Tenant shall each have the right from time to
time to specify as its address for purposes of this Lease any other
address in the United States of America upon giving written notice
thereof, similarly given, to the other party.
12.2 Estoppel Certificates. Tenant and Landlord will, at any
time and from time to time, upon not less than twenty (20) days'
prior request by the other party, execute, acknowledge and deliver
to the requesting party a certificate certifying, to the extent
correct, (a) that this Lease is unmodified and in full effect (or
setting forth any modifications and that this Lease is in full
effect as modified); (b) the amount of Basic Rent and Additional
Rent payable and the dates to which the Basic Rent, Additional Rent
and other sums payable hereunder have been paid; (c) that, to its
knowledge, no default exists hereunder on the part of the
requesting party and that there are no rental abatements,
termination rights, defenses or offsets hereunder (or stating those
rental abatements, termination rights, defaults, defenses or
offsets claimed by the recipient of the request); (d) the
commencement and expiration dates of this Lease; (e) the amount of
any security or other deposits; (f) that Tenant is in possession of
the Premises, and (g) such other matters as may reasonably be
required by the requesting party. Any such certificate may be
relied upon by any Fee Mortgagee or other mortgagee or prospective
purchaser or prospective mortgagee of the Premises.
12.3 Holding Over by Tenant. It is covenanted and agreed that
in the event that Tenant remains in possession of the Premises
after the expiration of the Term of this Lease, without the
execution of a new lease or of an agreement extending the term
hereof but is engaged in good faith negotiations with Landlord for
a new lease or extension, Tenant shall be deemed to be occupying
the Premises as a Tenant from month to month, subject to all of the
terms of this Lease as may be applicable to a month to month
tenancy, and at the Rent and other charges provided for in the last
preceding year, prorated on a monthly basis. If, however, Tenant
has no agreement and is not negotiating with Landlord in good
faith, or if Landlord has notified Tenant in writing that it is
unwilling to negotiate with Tenant for a new lease, Tenant shall
pay as Basic Rent an amount equal to one hundred fifty percent
(150%) of the Basic Rent provided for in the last preceding year,
plus all Additional Rent. Nothing contained herein shall require
either Landlord or Tenant to engage in such negotiations.
12.4 Parties Bound. This Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives,
successors, and assigns where permitted by this Lease.
12.5 No Merger. There shall be no merger of this Lease or the
leasehold estate hereby created with the fee estate in the Premises
or any part thereof by reason of the same person acquiring or
holding, directly or indirectly, this Lease or the leasehold estate
hereby created or any interest in this Lease or in such leasehold
estate as well as the fee estate in the Premises or any portion
thereof.
12.6 Surrender. Upon the termination of this Lease, Tenant
shall peaceably surrender the Premises to Landlord in the same
condition in which they were received from Landlord at the
commencement of this Lease, except as altered as permitted or
required by this Lease, except for ordinary wear and tear and
except to the extent that the terms of this Lease expressly relieve
Tenant from the obligation to repair, restore or rebuild the
Premises following the occurrence of any casualty or condemnation.
Provided that Tenant is not in default hereunder, Tenant shall
remove from the Premises prior to or within a reasonable time (not
to exceed thirty (30) days) after such termination all property not
owned by Landlord, and, at Tenant's expense, shall at such times of
removal, repair any damage caused by such removal. Property not so
removed shall become the property of Landlord. Landlord may
thereafter remove and dispose of such property, and the cost of
removing and disposing of the property, together with the cost of
repairing any damage caused by such removal shall be borne by
Tenant. Notwithstanding anything to the contrary contained herein,
upon termination of this Lease pursuant to a default by Tenant, the
heating, ventilation and air conditioning systems shall remain on
the Premises and shall become the property of Landlord.
12.7 Severability. Each and every covenant and agreement
contained in this Lease is separate and independent, and the breach
of any thereof by Landlord shall not discharge or relieve Tenant
from any obligation hereunder. If any term or provision of this
Lease or the application thereof to any person or circumstances or
at any time to any extent be invalid and unenforceable, the
remainder of this Lease, or the application of such term or
provision to persons or circumstances or at any time other than
those to which it is invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall
be valid and shall be enforced to the extent permitted by law.
12.8 Attorney's Fees. In the event either party brings any
action or proceeding against the other party under this Lease to
enforce the terms and provisions of this Lease, the party losing in
such action or proceeding shall pay the reasonable attorneys' fees
and expenses of the party prevailing in such action or proceeding.
12.9 Savings Clause. No provision contained in this Lease
which purports to obligate Tenant to pay any amount of interest or
any fees, costs or expenses which are in excess of the maximum
permitted by applicable law, shall be effective to the extent that
it calls for payment of any interest or other sums in excess of
such maximum rate.
12.10 Force Majeure. Whenever a period of time is herein
prescribed for action to be taken by Landlord or Tenant, such party
shall not be liable or responsible for, and there shall be excluded
from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other causes
of any kind whatsoever which are beyond the reasonable control of
such party. The provisions of this section shall not operate to
excuse Tenant from the prompt payment of Rent or any other payments
required by the terms of this Lease. Notwithstanding anything to
the contrary contained herein, the circumstances contemplated by
this section shall not entitle Landlord to extend the Substantial
Completion Date.
12.11 Recording - Memorandum of Lease. Landlord and Tenant
agree to execute, acknowledge and deliver at any time after the
date of this Lease, at the request of the other party, a short-form
Memorandum of Lease in a form reasonably acceptable to Landlord and
Tenant, setting forth the Commencement Date and Term hereof, the
renewal options, the final measured floor area of the Building and
such other provisions hereof (except those specifying the Basic
Rent payable hereunder) as Landlord and Tenant shall reasonably
deem appropriate, and such Memorandum of Lease may be recorded at
Landlord's or Tenant's option.
12.12 Time of the Essence. Time is of the essence of this
Lease and the provisions relating thereto shall be strictly
construed.
12.13 Transfer of Landlord's Interest. The term "Landlord", as
used in this Lease, so far as covenants or obligations on the part
of Landlord are concerned, shall be limited to mean and include
only the owner or owners at the time in question of the fee of the
Premises, and in the event of any transfer or transfers of the
title to such fee, (a) Landlord herein named (and in case of any
subsequent transfer or conveyance, the then grantor) shall be
automatically freed, released and relieved, from and after the date
of such transfer or conveyance, of all liability as respects the
performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed; and (b) Tenant
shall attorn to the then current owner of the fee as provided
below. Notwithstanding any other provisions hereof, in the event
of any breach or default by Landlord in any term or provision of
this Lease, Tenant agrees to look solely to the equity or interest
then owned by Landlord in the Premises, and in no event shall any
money judgment, deficiency or otherwise, be sought, obtained or
enforced against Landlord.
12.14 Subordination. (a) Tenant accepts this lease subject and
subordinate to any Fee Mortgage presently existing or hereafter
created upon the Premises, and to any renewals and extensions
thereof, but Tenant agrees that any such Fee Mortgagee shall have
the right at any time to subordinate such Fee Mortgage to this
Lease. Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any Fee Mortgage hereafter
placed upon the Premises, and Tenant agrees upon demand to execute
such further instruments subordinating this Lease as Landlord may
request, and, upon any failure of Tenant to do so, without
limitation of Landlord's other available remedies, Landlord shall
have the right to execute same as attorney-in-fact for Tenant.
Notwithstanding the foregoing, as a condition to Tenant's
obligation to subordinate hereunder (except as to Landlord's
initial construction mortgage), Landlord shall obtain and furnish
to Tenant a subordination, non-disturbance and attornment agreement
(the "Non-Disturbance Agreement") executed by Fee Mortgagee
providing that Tenant's possession of the Premises will not be
disturbed so long as Tenant continues to perform its obligations
under this Lease and accept Fee Mortgagee as its landlord as
provided below.
(b) Subject to the terms of the Non-Disturbance Agreement,
Tenant confirms that if by reason of a default under any Fee
Mortgage, Fee Mortgagee or its successor or assignee in interest
becomes Landlord hereunder, Tenant shall attorn to and shall
recognize such Fee Mortgagee or its successor or assignee as
Tenant's landlord under this Lease, provided that such successor in
interest shall not (i) be bound by any payment of Rent for more
than the current month to any prior landlord; (ii) be bound by any
amendment or modification of this Lease made without the written
consent of Fee Mortgagee or such successor or assignee in interest;
(iii) be liable in damages for any previous act or omission by any
prior landlord under this Lease; and (iv) have any obligation with
respect to any security deposited under this Lease unless such
security has been physically delivered to the party succeeding to
the interest of Landlord. Tenant shall execute and deliver, at any
time and from time to time, upon request of Landlord or of Fee
Mortgagee, an instrument which may be reasonably necessary or
appropriate to evidence such attornment. Tenant waives the
provisions of any statute or rule of law now or hereafter in effect
which may give or propose to give Tenant any right or election to
terminate this Lease or to surrender possession of the Premises in
the event any proceeding is brought by Fee Mortgagee to acquire
Landlord's interest hereunder
12.15 Table of Contents and Headings. The table of contents
and headings used in this Lease are for convenient reference only
and shall not to any extent have the effect of modifying, amending
or changing the provisions of this Lease.
12.16 Governing Law. This Lease shall be governed by and
interpreted under the laws of the State of Arizona, and all
obligations of the parties hereto are performable in Pima County,
Arizona.
12.17 Certain Definitions. (a) The term "Tenant's Certificate"
means a written certificate signed by the Chairman of the Board,
the President or any Vice President of Tenant.
(b) The term "Fee Mortgage" means any ground lease, mortgage,
deed of trust, security agreement, assignment of lease or other
security instrument encumbering the Premises, and all renewals,
modifications, consolidations, replacements and extensions thereof.
(c) The term "Fee Mortgagee" means any ground lessor,
mortgagee or beneficiary under a Fee Mortgage, and its successors
and assigns.
(d) The term "Records" means the office of the County Clerk
of Pima County, Arizona.
12.18 Entry by Landlord. Tenant shall permit Landlord and its
agents to enter upon the Premises at all reasonable times and upon
no less than one (1) day's written notice to inspect and examine
the Premises, to show the Premises to prospective purchasers,
mortgagees or tenants or to make repairs. If Tenant is not present
to open and permit an entry by Landlord into the Building at any
time when entry therein is necessary because of an emergency,
Landlord or its agents shall not be liable for damages to property
arising as a result of such entry unless such damage is due to the
gross negligence or willful misconduct of Landlord.
12.19 Relationship of Landlord and Tenant. Nothing herein
contained shall be deemed or construed by the parties hereto, nor
by any third party, as creating the relationship of principal and
agent, partnership or joint venture, between the parties hereto, it
being understood and agreed that neither the method for computation
of Rent, nor any other provisions contained herein, nor any act of
the parties hereto, shall be deemed to create any relationship
between the parties hereto other than the relationship of landlord
and tenant.
12.20 Integration. This Lease contains the entire agreement
between the parties hereto with regard to the subject matter
hereof, and supersedes any prior understandings, agreements or
negotiations. This Lease may not be amended or modified except by
a writing executed by both parties hereto.
12.21 Brokers. (a) If, but only if, this Lease has not been
terminated by either party, Landlord shall pay The Mayford Group
(the "Agent"), for negotiating this Lease, a commission in cash as
agreed upon in a separate written agreement between Landlord and
the Agent.
(b) Except for the Agent, Tenant and Landlord represent and
warrant to each other that neither has had any contacts or engaged
in any actions which would give rise to any claim from any broker
in connection with the negotiation or execution of this Lease, and
hereby agree to indemnify and hold each other harmless from any
claim for a commission or fee by any party making such claim upon
the basis of any alleged contract or agreement with the
indemnifying party.
12.22 Acknowledgement of Status of Title to Land. TENANT
HEREBY EXPRESSLY ACKNOWLEDGES THAT LANDLORD DOES NOT OWN THE LAND
AS OF THE EFFECTIVE DATE AND THAT LANDLORD'S OBLIGATIONS UNDER THIS
LEASE ARE SUBJECT TO AND CONDITIONED UPON LANDLORD'S ACQUISITION OF
FEE SIMPLE TITLE TO THE LAND. Tenant and Landlord agree that if,
for any reason, Landlord has not acquired the Land on or before
June 1, 1996, then Landlord may terminate this Lease by written
notice given to Tenant on or before 5:00 p.m. on June 1, 1996,
unless Landlord has then actually acquired the Land. If this Lease
is so terminated, this Lease shall cease to be of any further force
or effect, and Landlord and Tenant shall have no further rights or
obligations hereunder. If Landlord acquires title to the Land,
Landlord shall deliver evidence of such title to Tenant on or
before the Substantial Completion Date.
12.23 Interest. In the event either party fails to pay the
other any amount under this Lease when due (after expiration of any
applicable notice and grace period), such amount shall bear
interest at the lesser of eighteen percent (18%) per annum or the
maximum non-usurious rate of interest permitted under applicable
law.
12.24 Quiet Possession. Subject to the terms and provisions of
this Lease, Landlord hereby grants to Tenant lawful, peaceable and
quiet occupancy, possession and enjoyment of the Premises and all
appurtenances and rights granted to Tenant under this Lease during
the Term of this Lease without hindrance or ejection by Landlord or
the successors or assigns of Landlord or anyone acting by, through
or under Landlord (including, without limitation, any Fee
Mortgagee).
12.25 Complete Agreement. This Lease contains the entire
agreement between the parties hereto, and no agent, representative,
salesman or officer of Landlord has authority to make, or has made,
any statement, agreement or representation, either oral or written,
in connection herewith, modifying, adding or changing the terms and
conditions herein set forth. Further, Tenant acknowledges and
agrees that neither Landlord nor any agent or representative of
Landlord, including any leasing agent acting on behalf of Landlord,
has made, and Tenant has not relied upon, any representations or
assurances as to Tenant's projected or likely sales volume,
customer traffic or profitability. Tenant also acknowledges and
agrees that, to the extent any projections, materials or
discussions have related to Tenant's projected or likely sales
volume, customer traffic or profitability, Tenant understands that
any and all such projections, materials and discussion are based
solely upon Landlord's experiences at other properties or upon
standardized marketing studies, and that such projections,
materials and discussions shall not be construed as a promise or
guarantee that Tenant will realize the same or similar results.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Lease as of the day and year first above set forth.
LANDLORD:
CUMBERLAND AMERICA DEVELOPMENT
COMPANY, INC., a Texas corporation
By: /s/ Bradford B. Beck
Bradford B. Beck,
President
TENANT:
JUST FOR FEET, INC.,
an Alabama corporation
By: /s/ Harold Ruttenberg
Harold Ruttenberg,
Vice President
EXHIBIT A
Legal Description of Land
(to be attached)
EXHIBIT B
CONSTRUCTION OF PREMISES
Except as expressly defined in this Exhibit C, all capitalized
items in this Exhibit C shall have the same meanings assigned to
such terms in the lease (the "Lease") by and between Cumberland
America Development Company, Inc. ("Landlord") and Just For Feet,
Inc., to which this Exhibit C is attached and forms a part of.
1. Construction of Premises.
1.01. Landlord agrees, at Landlord's sole cost and expense
(except as otherwise provided herein), to construct the
Improvements in accordance with the Final Plans, together with any
and all modifications thereto, to be agreed upon by and between
Landlord and Tenant as hereinafter set forth. The Building shall
consist of approximately 15,200 square feet of floor area and be
constructed in accordance with all governmental requirements
applicable to such construction. In addition, Landlord shall, at
Landlord's sole expense, provide all surveys, soils reports, civil
engineering, site utility engineering, and all other documents and
materials relating to and/or necessary for the construction of the
Premises as are described and/or provided for below.
1.02. The approved Final Plans for the Premises shall set
forth in detail the work required to be performed by Landlord
("Landlord's Work"), which work shall include without limitation,
the following items:
(a) construction of the Building shell and interior finish,
including:
(i) all concrete foundations and slabs
(ii) all exterior walls and service areas;
(iii) roof, canopies and sidewalks, as applicable; and
(iv) all interior finish out, including among others all
floors and floor coverings, walls and wall
coverings, and interior partition walls;
(b) installation and connection of all utilities with service
available from such utility companies such as domestic water, fire
water, sanitary sewer, storm sewer, electrical, natural gas and
telephone;
(c) installation of an automatic fire sprinkler protection
system with a water supply adequate to service that system, in
compliance with applicable law, ordinance and building
specifications, as well as in compliance with any and all then
existing requirements of Tenant's applicable insurance carrier;
(d) installation of a complete electrical distribution system
(with voltage and capacity in amounts set forth in the Final
Plans), including main panels, branch circuits, control panels,
switches and convenience outlets;
(e) installation of store lighting complete with fixtures and
lamps;
(f) installation of an HVAC system;
(g) installation of a complete plumbing system, including
piping, valves, control devices and all fixtures (such as water
heaters, sinks, toilets, urinals and drinking fountains);
(h) installation of rest room accessories such as hand driers,
toilet partitions, towel and toilet paper dispensers, and all
necessary handicap facilities, all as may be required by the Final
Plans and/or under applicable law or ordinance;
(i) construction of the parking lot (which shall contain 120
spaces for automobiles), dumpster enclosures, loading docks, access
road(s) and the site utilities, together with landscaping thereof,
all as provided in the Final Plans and under applicable laws and
ordinances;
(j) installation of the trade fixtures and cash stands, and
all electrical connections to Tenant's trade fixtures and
equipment;
(k) all landscaping;
(l) construction of loading areas and service roads in
accordance with the Final Plans; and
(m) construction of a roof warranted as to labor and materials
by the manufacturer thereof for a period of not less than fifteen
(15) years following the date of full and complete installation
thereof.
1.03. Tenant shall be responsible for the following matters
("Tenant's Work"):
(a) supply (but not install) all trade fixtures, cash stands
and equipment;
(b) supply and install Tenant's pylon and other signage; and
(c) supply and install all materials and perform all work and
services not to be supplied, installed or performed by Landlord as
a part of Landlord's Work under the Final Plans.
2. Plans and Specifications.
2.01. The Premises shall be constructed in accordance with
plans and specifications ("Final Plans") prepared by Enviroplan
("Project Architect") from Tenant's Prototype Plans and
Specifications (herein so called) for Store No. 4, Version 4.1,
Title Sheet (A-1.0) dated February 28, 1995, as adapted to the site
plan attached to the Final Plans, which Prototype Plans and
Specifications must be furnished by Tenant to Landlord upon
execution of the Lease. The Final Plans shall be mutually and
reasonably approved by Tenant and Landlord in a timely manner as
hereinafter set forth.
2.02. Landlord shall be responsible for obtaining such data
and any other information as the Project Architect reasonably may
need to prepare the Final Plans for the construction of the
Premises, including, but not limited to, the aforementioned
surveys, soils reports, civil engineering, site utility engineering
and related construction materials (including any existing
topographical site plans).
2.03. The Final Plans shall be drawn to a scale of 1/8th or
3/32nds inch equals one foot, shall show the locations and
dimensions of all fixed facilities (including, but not limited to,
entrances and exits, show windows, stairways, equipment rooms and
trash rooms), and shall be in compliance with all applicable
building code and legal requirements. Such Final Plans shall be
executed under seal by engineers and architects duly licensed to do
business in the state where the Premises are located and shall be
in compliance with the requirements of all local governmental and
other authorities responsible for approving or issuing permits in
respect to the proposed construction.
2.04. Landlord will not commence the construction work
contemplated hereunder until Tenant and Landlord shall have
approved and agreed to the Final Plans.
2.05. As set forth in Section 3.04 below, Tenant shall have
the right at any time or times either prior to or during the
progress of Landlord's Work to eliminate any feature, item or
detail provided or to be provided for in the Final Plans and/or to
substitute and/or to add other features, items or details for which
provision has not been made, in which event Landlord shall make
such changes, at Tenant's sole cost and expense.
2.06. Upon completion of the Premises, the General Contractor
(as hereinafter defined) shall provide to Landlord and Tenant one
(1) set each of the Final Plans, which shall be marked to indicate
"as-built' conditions as part of, and as a condition prerequisite
to, the issuance of the Certificate of Substantial Completion (as
hereinafter defined).
3. General Contracting and Budget.
3.01. Landlord shall submit for bid to CD Henderson
Construction, Inc. ("Henderson Construction") a copy of the Final
Plans promptly upon receipt thereof. Landlord shall deliver to
Tenant a copy of the bid submitted by Henderson Construction
("Henderson's Bid") within two (2) business days after receipt
thereof for review and approval by Tenant, provided that if
Henderson's Bid to complete construction of the Building ("Building
Construction") in accordance with the Final Plans is Nine Hundred
Thousand and No/100 Dollars ($900,000.00) or less, then Henderson's
Bid shall automatically be deemed approved by and acceptable to
Tenant, and provided further that in all other instances, Tenant's
approval of Henderson's Bid shall not be unreasonably withheld or
delayed. Henderson's Bid shall be deemed approved by Tenant if
Tenant does not deliver to Landlord a written rejection of
Henderson's Bid within five (5) days after receipt thereof.
Notwithstanding the foregoing, if Henderson's Bid exceeds Nine
Hundred Thousand and No/100 Dollars ($900,000.00) and is rejected
in writing by Tenant as provided above, then Landlord shall
simultaneously (a) submit the Final Plans for bid to Brasfield &
Gorrie (herein so called), and (b) resubmit the Final Plans for bid
to Henderson. Thereafter, Landlord and Tenant shall use good faith
efforts to agree upon and mutually accept the most desirable bid.
The Contractor who submits the bid that is finally accepted by
Landlord and Tenant is hereinafter referred to as the "General
Contractor". The construction contract for the construction of the
Premises pursuant to the Final Plans shall be mutually and
reasonably approved by Tenant and Landlord, and prior to the
commencement of construction, Landlord shall furnish Tenant with a
copy of the construction contract executed by Landlord and the
General Contractor (the "Construction Contract").
3.02. The Construction Contract shall be a fixed price
contract and shall establish the budget ("Construction Budget") for
the Building Construction. Changes may be made to the Construction
Budget only upon change orders approved in writing by both Landlord
and Tenant, which approval shall not be unreasonably withheld or
delayed by either party. Landlord and Tenant acknowledge and agree
that the costs associated with development and construction of the
Premises pursuant to the Final Plans shall be paid by Landlord and
Tenant as provided in Section 3.04 below.
3.03. Landlord shall be responsible for the payment of (a)
the first Nine Hundred Thousand and No/100 Dollars ($900,000.00) of
the Building Costs (as hereinafter defined) ("Landlord's Building
Contribution"), and (b) all the Other Landlord Work Costs (as
hereinafter defined); provided, however, that in no event shall
Landlord's total contribution towards completion of all of
Landlord's Work (including construction of the Building) exceed Two
Million Nine Hundred Forty-Nine Thousand Six Hundred Twenty-Two and
63/100 Dollars ($2,949,622.63) ("Landlord's Total Contribution").
The term "Building Costs" means all of Landlord's or the General
Contractor's costs to complete the Building Construction
substantially in accordance with the Final Plans, including all
architectural, design and engineering fees and all overtime costs
as are agreed to in written change orders executed by both Landlord
and Tenant, provided that Tenant shall be solely responsible for
any overtime costs attributable to either (a) the failure of Tenant
to comply with its obligations of performance hereunder, or (b)
interference by Tenant or Tenant's agents, employees or
representatives with the performance of construction by or on
behalf of Landlord hereunder. The phrase "Other Landlord Work
Costs" means all of Landlord's or the General Contractor's costs to
complete all of Landlord's Work (other than construction of the
Building) substantially in accordance with the Final Plans,
including, without limitation, all site preparation and soil
stabilization costs and all overtime costs as provided above.
Tenant shall be responsible for paying (a) all Building Costs in
excess of Landlord's Building Contribution, and (b) all costs of
completing all of Landlord's Work in excess of Landlord's Total
Contribution (the sum of such amounts is hereinafter referred to as
"Tenant's Contribution").
3.04. (a) If the Construction Budget established by the
Construction Contract exceeds Landlord's Building Contribution with
respect to the Building Construction or Landlord's Total
Contribution with respect to completion of all of Landlord's Work,
then within five (5) days after Landlord's request, Tenant shall
deliver to Landlord and any Fee Mortgagee a letter addressed
jointly to Landlord and Fee Mortgagee wherein Tenant agrees to pay
Tenant's Contribution in accordance with the terms hereof. In no
event shall Landlord be obligated to commence any portion of the
contemplated construction unless and until Landlord and Fee
Mortgagee receive such letter. Thereafter, at least sixty (60)
days prior to the date when Landlord's Building Contribution or
Landlord's Total Contribution, whichever applies, is anticipated to
be fully disbursed (except for statutory retainage), but only after
Landlord has given Tenant at least thirty (30) days' advance notice
of such sixtieth (60th) day, Tenant shall deposit the applicable
portion of Tenant's Contribution in an account ("Tenant's Cost
Account") with Fee Mortgagee pursuant to an agreement reasonably
acceptable to Landlord, Tenant and Fee Mortgagee which will provide
that following full disbursement of Landlord's Building
Contribution or Landlord's Total Contribution (except for statutory
retainage), whichever applies, Landlord or Fee Mortgagee shall be
permitted to draw from Tenant's Cost Account to pay the remaining
portion of construction.
(b) Upon substantial completion of all of Landlord's Work,
Landlord shall deliver to Tenant a certification and itemization as
to the actual total construction costs (the "Cost Information
Notice"). If (i) the Building Costs exceed the amount of
Landlord's Building Contribution plus the amount of all deposits
paid by Tenant pursuant to paragraph (a) above with respect to the
Building Construction, or (ii) the total construction costs exceed
the amount of Landlord's Total Contribution plus the amount of all
deposits paid by Tenant pursuant to paragraph (a) above with
respect to all the Improvements on the Land, then Tenant shall pay
Landlord the amount of such excess within thirty (30) days after
Tenant receives the Cost Information Notice. If the actual cost of
completing all of Landlord's Work is less than Two Million Nine
Hundred Forty-Nine Thousand Six Hundred Twenty-Two and 63/100
Dollars ($2,949,622.63), then Tenant's Basic Rent under the Lease
shall be abated until Tenant has received a credit equal to fifty
percent (50%) of such difference. Notwithstanding the foregoing,
in lieu of receiving all or any part of the Tenant's Contribution,
Landlord may, at its sole option, advance funds on behalf of Tenant
necessary to substantially complete the Building Construction, the
repayment of such funds to Landlord by Tenant being fully due and
payable to Landlord upon the Substantial Completion Date.
4. Construction.
4.01. Landlord shall apply for all required building permits
and other governmental permits or approvals required in connection
with the construction of the Premises as contemplated hereunder.
Tenant shall assist and cooperate with Landlord in obtaining all
necessary governmental permits and any other approvals with respect
to the construction contemplated hereunder. Upon issuance of all
such required building permits and approvals, Landlord shall
proceed to diligently construct the Premises substantially in
accordance with the Final Plans, to the end that the Premises shall
be constructed and placed in a condition to permit Tenant's
acceptance and occupancy thereof as described in Section 5 below.
4.02. The General Contractor shall not commence construction
work until Landlord and Tenant shall have approved the Final Plans.
4.03. During construction of the Premises, Tenant and its
respective agents, representatives and employees, shall at all
reasonable times have reasonable access to the Premises for the
purpose of inspecting the work in progress.
4.04. Landlord agrees to carry, or to require the General
Contractor to carry, Builder's Risk Insurance for the value of the
Premises, Workmen's Compensation Insurance in compliance with
applicable statutory limits, Comprehensive General Liability
Insurance and Automobile Liability Insurance in amounts customarily
maintained in construction projects of a similar nature to that
provided hereunder and upon the request of Tenant therefor,
Landlord shall furnish to the Tenant evidence of the above
insurance coverage by insurers reasonably acceptable to Tenant.
4.05. Concurrently with Tenant's acceptance of the Premises
(which shall conclusively be deemed to have occurred on the
Substantial Completion Date), or as soon thereafter as is
reasonably possible, Landlord shall assign and deliver to Tenant
all warranties and guaranties which Landlord may acquire from its
building contractors, and/or from its subcontractors or suppliers
or otherwise, with respect to the Premises and construction
thereof; provided, however, that Landlord itself makes no warranty
or representation that with respect to the construction of the
Premises or that any of such warranties or guaranties will be
assignable (provided further, that to the extent that any such
warranties or guaranties are not assignable, Landlord then further
agrees to diligently endeavor to enforce or cause to be enforced
any and all rights or remedies under any such warranties and
guaranties as may be applicable from time to time or at any time
during the term of any such warranty or guaranty). Landlord agrees
to reasonably cooperate with Tenant in enforcing such guaranties
and warranties. Notwithstanding any provisions contained herein to
the contrary, Landlord agrees that Landlord shall, until the first
anniversary of the Commencement Date under the Lease, correct all
latent defects in the performance of Landlord's Work hereunder for
which Tenant has given Landlord prior written notice, which notice
must include a detailed description of such defects.
5. Substantial Completion of Building Construction.
5.01 The "Substantial Completion Date" shall be the date when
all of the following events have occurred: (a) the General
Contractor delivers to Tenant a certificate (the "Certificate of
Substantial Completion") stating that the Building Construction is
substantially complete according to the Final Plans (except for
minor items of construction, decoration and mechanical adjustment
which do not, in the aggregate, materially interfere with Tenant's
use or operation of the Premises); (b) a certificate of occupancy
for the Premises has been issued by the local governmental
authority; (c) Landlord has tendered possession of the Premises to
Tenant by delivery of the keys to the Premises; and (d) Landlord
shall have obtained a measurement of the Building pursuant to
Section 5.03 below.
5.02 Within thirty (30) days after the Substantial Completion
Date, Tenant shall prepare and deliver to Landlord a list (the
"Punch List") of those items ("Punch List Items") of the Building
Construction that were not completed. Landlord shall promptly
complete, repair or replace any and all Punch List Items. Landlord
shall assign to Tenant all assignable warranties and guaranties
relating to the Premises, including a warranty from the General
Contractor that performed the Building Construction wherein such
General Contractor agrees that, for a period of one (1) year after
the Substantial Completion Date, it shall make all repairs and
replace all materials and workmanship that are defective (the
"Contractor's Warranty"). If Tenant makes a claim under the
Contractor's Warranty which is not satisfied within thirty (30)
days after the date Tenant makes such claim (or such longer time as
may be reasonable, provided the contractor is diligently attempting
to satisfy the claim), then Landlord shall make the repairs and
replace all materials and workmanship that the General Contractor
was required to do and make under the terms of the Contractor's
Warranty. Landlord shall make such repairs and replacements within
thirty (30) days (or such longer time as may be reasonable,
provided Landlord is diligently attempting to satisfy the claim)
after Tenant delivers notice to Landlord that the General
Contractor has not satisfied Tenant's claim. In addition, with
respect to all "latent defects" (that is, defects in materials or
workmanship in the foundation, structural elements, the roof, the
electrical work and the plumbing due to the failure of such items
to be constructed substantially in accordance with the Final Plans,
that are not discovered by Tenant within one (1) year after the
Substantial Completion Date), Tenant, shall first use best efforts
to cause the General Contractor that constructed the Improvements
to repair or correct such defects. If and to the extent Tenant is
unable to cause the General Contractor to do so, then within sixty
(60) days after Landlord's receipt of written notice from Tenant of
such inability, Landlord will commence and thereafter use good
faith efforts to diligently prosecute to completion the repair and
correction of such latent defect. In no event shall Landlord be
obligated to repair or pay for any latent defects which are
attributable to wear and tear, use or misuse, aging or natural
deterioration, inadequate or improper maintenance, casualty, or
other acts, omissions or occurrences, directly or indirectly,
caused by Tenant after the Substantial Completion Date.
5.03 Landlord shall, on or prior to the Substantial Completion
Date, cause the Improvements to be measured by a licensed architect
of good reputation reasonably acceptable to Tenant and any
adjustments to Basic Rent provided in Section 5.1 of the Lease
shall be made at such time.
6. Time Deadlines.
6.01 (a) Notwithstanding anything to the contrary contained
herein or in the Lease, in the event the following matters are not
satisfied on or before the indicated date (or such later date as
Landlord and Tenant shall designate in writing), Landlord shall
have the right to, in Landlord's sole discretion, by written notice
delivered to Tenant, terminate the Lease:
(i) Landlord's and Tenant's written approval of the
Final Plans by September 15, 1995; and
(ii) Landlord's and Tenant's written approval of the
Construction Contract by October 2, 1995.
(b) Without limiting the terms of paragraph (a) above and
notwithstanding anything to the contrary contained in Section 6.02
below, the Substantial Completion Date may be extended by Landlord
if any delays in completion of the Improvements are due to the
actions of Tenant, its agents, employees, contractors or
subcontractors, including, without limitation, the failure of
Tenant to timely approve any documents or other matters over which
Tenant has approval rights hereunder (collectively "Unavoidable
Delay").
6.02 Subject to Section 6.01(b) above, if for any reason
whatsoever the Substantial Completion Date has not occurred on or
before June 1, 1996, Tenant may, at its option, terminate this
Lease by written notice to Landlord delivered within ten (10) days
after the Substantial Completion Date, in which event Landlord
shall return all amounts paid by Tenant to Landlord pursuant to
this Lease, including, without limitation, Tenant's Contribution,
and thereafter neither party shall have any further liabilities or
obligations hereunder. If Tenant does not so terminate the Lease,
the Substantial Completion Date will automatically be extended for
successive thirty (30) day periods unless and until the Substantial
Completion Date occurs or the Lease is terminated by Tenant as
provided above.
7. Approvals.
Tenant's approval of all items required hereunder to be
approved by Tenant shall be conclusively evidenced by the signature
of any officer and/or authorized employee of Tenant. Furthermore,
notwithstanding anything contained herein to the contrary, Tenant's
approval of all items required hereunder to be approved by Tenant
shall not be unreasonably withheld or delayed, and in all
circumstances Tenant shall be deemed to have approved such items if
Landlord has not received in writing Tenant's reasons for
disapproval within five (5) days after such items have been
submitted to Tenant. Landlord's approval of all items required
hereunder to be approved by Landlord shall be conclusively
evidenced by the signature of any officer of Landlord.
Initialed for identification Initialed for
for Landlord: identification for Tenant:
By: /s/Bradford B. Beck By: /s/ Harold Ruttenberg
Exhibit 10 (b) (31)
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made and
entered into to be effective as of the 29th day of February, 1996,
by and between TUCSON ORACLE LIMITED PARTNERSHIP, an Arizona
limited partnership ("Landlord"), and JUST FOR FEET, INC., an
Alabama corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Lease
executed to be effective as of August 10, 1995 ("the Lease"),
pursuant to which Landlord agreed to lease to Tenant, and Tenant
agreed to lease from Landlord, the Premises (as defined in the
Lease); and
WHEREAS, Landlord and Tenant now desire to amend the Lease
pursuant to the terms and provisions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and
mutual agreements contained herein, the payment of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord
and Tenant agree that the Lease is amended as follows:
1. All capitalized terms used in this Amendment, to the
extent not otherwise expressly defined herein, shall have the same
meanings ascribed to such terms in the Lease.
2. The legal description of the Land described in Exhibit A
to the Lease is hereby deleted and replaced with the legal
description set forth in Exhibit A attached hereto and incorporated
herein by reference for all purposes.
3. All references to Exhibit C in the preamble of Exhibit B
to the Lease are hereby amended to read Exhibit B, Landlord and
Tenant acknowledging that the previous references to Exhibit C were
typographical errors.
4. The following language is hereby added to the end of
Section 4.05 of Exhibit B to the lease.
"Notwithstanding the foregoing, Landlord and Tenant
acknowledge and agree that any assignment by Landlord to
Tenant of the warranties and/or guaranties which Landlord
may acquire from its building contractors, any
subcontractors, suppliers or otherwise with respect to
the Premises and the construction thereof is not intended
to nor shall it diminish the rights of Landlord to
enforce such warranties of guaranties."
5. Except as amended herein, the terms and conditions of the
Lease shall continue in full force and effect and are hereby
ratified in their entirety.
6. This Amendment may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
7. This Amendment and the Lease, as amended hereby, shall be
binding upon and shall be inure to the benefit of the parties
hereto and their respective representatives, successors and
assigns.
Executed on the dated stated below to be effective as of the
date first written above.
LANDLORD:
TUSCON ORACLE LIMITED
PARTNERSHIP,
an Arizona limited partnership
By: CUMBERLAND AMERICA
DEVELOPMENT COMPANY, INC.,
a Texas Corporation,
General Partner
By: /s/ Bradford B. Beck
Bradford B. Beck, President
Date: 2/29/96
TENANT:
JUST FOR FEET, INC.
an Alabama corporation
By: /s/ Harold Ruttenberg
Name: Harold Ruttenberg
Title: President
Date: February 27, 1996
EXHIBIT "A"
All that part of the Northeast Quarter of the Northeast Quarter of
Section 23, Township 13 South, Range 13 East, of the Gila and Salt
River Base and Meridian, Pima County, Arizona, described as
follows:
COMMENCING at the point of intersection of the North line of said
Section 23 with the West right-of-way line of the Tucson-Oracle
Jct.-Globe Highway, Project No. F031-1-807, which right-of-way line
is parallel with and 100 feet Westerly from the survey center
lines, which center line crosses said North line of Section 23
North 88 degrees 37 minutes 50 seconds West (record), North 89
degrees 27 minutes 15 seconds West (measured) 7.60 feet from the
Northeast corner of said Section 23;
THENCE South 00 degrees 24 minutes 30 seconds East (record), South
00 degrees 33 minutes 57 seconds East (measured), along said West
right-of-way line, 45.75 feet to the TRUE POINT OF BEGINNING;
THENCE continuing South 00 degrees 24 minutes 30 seconds East
(record), South 00 degrees 33 minutes 57 seconds East (measured),
along said West right-of-way line 506.37 feet (record), 504.94 feet
(measured) to its intersection with a line parallel with and 30
feet Easterly from the center line of Old Oracle Road as determined
by the center line of the existing concrete pavement;
THENCE North 44 degrees 02 minutes 25 seconds West (record), North
44 degrees 11 minutes 51 seconds West (measured), along said
parallel line 439.53 feet (record), 439.08 feet (measured, to a
point of curve);
THENCE Northwesterly along the arc of a 290.62 foot radius curve to
the right in said parallel line, thru a central angle of 52 degrees
35 minutes 25 seconds (record), 51 degrees 29 minutes 28 seconds
(measured), 266.75 feet (record), 261.18 feet (measured), to a
point in the North line of said Section 23, which point is North 88
degrees 37 minutes 50 seconds West (record), North 89 degrees 27
minutes 15 seconds West (measured), along said North line 487.85
feet from the Northeast corner of said Section 23;
THENCE South 88 degrees 37 minutes 50 seconds East (record), South
89 degrees 27 minutes 15 seconds East (measured), East along said
North line 124.79 feet (record), 125.49 feet (measured);
THENCE South 78 degrees 32 minutes 02 seconds East (record), South
79 degrees 19 minutes 24 seconds East (measured), 260.87 feet
(record), 260.04 feet (measured) to the TRUE POINT OF BEGINNING.
Exhibit 10 (b) (32)
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Amendment") is made and
entered into to be effective as of the 29th day of May, 1996, by
and between TUCSON ORACLE LIMITED PARTNERSHIP, an Arizona limited
partnership ("Landlord"), and JUST FOR FEET, INC., an Alabama
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Lease
executed to be effective as of August l0, 1995 (the "Original
Lease"), pursuant to which Landlord agreed to lease to Tenant, and
Tenant agreed to lease from Landlord, the Premises (as defined in
the Original Lease);
WHEREAS, Landlord and Tenant amended the Original Lease
pursuant to that certain First Amendment to Lease dated to be
effective as of February 29, 1996 (the "First Amendment"; the
Original Lease and the First Amendment are collectively referred to
as the "Lease"); and
WHEREAS, Landlord and Tenant now desire to amend the Lease
pursuant to the terms and provisions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and
mutual agreements contained herein, the payment of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord
and Tenant agree that the Lease is amended as follows:
1. All capitalized terms used in this Amendment, to the
extent not otherwise expressly defined herein, shall have the same
meanings ascribed to such terms in the Lease.
2. Section 5.1 of the Original Lease, as amended, is hereby
deleted and replaced with the following:
5.1 Basic Rent. Tenant covenants to pay to Landlord, without
any prior demand therefor and without any deduction or set-off
whatsoever (except as expressly provided by the terms of this
Lease), as basic rent (the "Basic Rent"), the following sums during
each Lease Year (as hereinafter defined) of the Lease Term (such
annual amounts being calculated by multiplying the rent per square
foot set forth below by the total number of square feet in the
Building):
Lease Year Annual Basic Rent PSF Annual Basic Rent
Original Term:
Years 1-5 $24.82 $377,264.00
Years 6-10 $27.30 $414,960.00
Years 11-15 $30.03 $456,456.00
Years 16-20 $33.04 $502,256.00
Renewal Term(s):
Years 21-25 $36.34 $552,429.00
Years 26-30 $39.98 $607,672.00
The foregoing annual Basic Rent figures are based upon an estimated
total square footage of 15,200. In the event the actual square
footage contained within the Building on the Substantial Completion
Date is greater or less than 15,200 square feet, the actual annual
Basic Rent to be paid by Tenant under this Lease shall be adjusted,
based on the figures established above, which shall be confirmed in
writing by Landlord and Tenant by execution of a Memorandum of
Lease as hereinafter provided. The applicable annual Basic Rent
stated above shall be payable in monthly installments equal to
1/12th of the applicable annual Basic Rent, each such monthly
installment payable in advance on the first day of each calendar
month of each Lease Year during the Lease Term. The monthly
installment of Basic Rent for the first month of the Lease Term
shall be paid by Tenant to Landlord on or before the Commencement
Date. Rent for any fractional calendar month in which the Lease
Term begins or terminates shall be prorated on a per diem basis,
based on the number of days in such month with respect to such
fractional calendar month. The term "Lease Year", as used herein,
shall, in the case of the first Lease Year, mean the period that
begins on the Commencement Date and ends on the last day of the
month in which the day immediately preceding the first anniversary
of the Commencement Date occurs. Each subsequent "Lease Year"
shall mean a period of twelve (12) full calendar months beginning
on the day after the expiration of the first Lease Year, and each
subsequent annual anniversary of such day, except that the last
Lease Year shall end on the last day of the Lease Term and may be
less than twelve (12) full calendar months.
3. All references to the amount of "Nine Hundred Thousand
and 00/100 Dollars ($900,000.00)" in Section 3.03 of Exhibit B to
the Original Lease are hereby deleted and replaced with "One
Million Eleven Thousand Two Hundred Forty-Six and 00/100 Dollars
($1,011,246.00)." Without limiting the foregoing, Landlord and
Tenant acknowledge and agree that Landlord's Building Contribution
shall equal One Million Eleven Thousand Two Hundred Forty-Six and
00/100 Dollars ($1,011,246.00) for all purposes of the Lease, as
amended hereby.
4. All references to the sum of Two Million Nine Hundred
Forty-Nine Thousand Six Hundred Twenty-Two and 64/100 Dollars
($2,949,622.64) in Section 3.03 and Section 3.04(b) of Exhibit B to
the Original Lease are hereby deleted and replaced with "Three
Million One Hundred Fifty-Five Thousand Four Hundred Fifty-Six and
64/100 Dollars ($3,155,456.64)". Without limiting the foregoing,
Landlord and Tenant acknowledge and agree that Landlord's Total
Contribution shall equal Three Million One Hundred Fifty-Five
Thousand Four Hundred Fifty-Six and 64/100 Dollars ($3,155,456.64)
for all purposes of the Lease, as amended hereby.
5. Section 6.02 of Exhibit B to the Original Lease, as
amended, is hereby deleted in its entirety and replaced with the
following:
Section 6.02. Subject to Section 6.01(b) above, if for
any reason whatsoever the Substantial Completion Date has not
occurred on or before June 10, 1996, Tenant shall have the
following rights under this Lease, as its sole and exclusive
remedies:
(a) If the Substantial Completion Date occurs on or after
June 11, 1996 but before June 18, 1996, then Tenant
shall receive a credit of one (1) day's Basic Rent,
commencing on the Rent Commencement Date, for each day
that elapses after June 10, 1996 before the Substantial
Completion Date has occurred.
(b) If the Substantial Completion Date occurs on or after
June 18, 1996 but before June 25, 1996, then Tenant shall
receive a credit of one (1) month's Basic Rent commencing
on the Rent Commencement Date.
(c) If the Substantial Completion Date has not occurred on or
before June 24, 1996, Tenant may, at its option,
terminate this Lease by written notice to Landlord
delivered within ten (10) days thereafter, in which event
Landlord shall return all amounts paid by Tenant to
Landlord pursuant to this Lease including, without
limitation, Tenant's Contribution, and thereafter neither
party shall have any further liabilities or obligations
hereunder.
6. The Construction Budget (as defined in the Lease) shall
be as set forth on Exhibit A attached hereto and incorporated
herein by reference for all purposes of the Lease. The
Construction Budget attached hereto reflects all costs approved by
the parties in connection with Landlord's construction of the
Improvements as of the date of this Amendment. If any additional
costs of construction are approved by the parties after the date
hereof pursuant to any change order(s) approved by the parties as
provided in the Lease, Tenant shall pay to Landlord in cash the
full amount of such approved additional costs on or before June 10,
1996.
7. Except as amended herein, the terms and conditions of the
Lease shall continue in full force and effect and are hereby
ratified in their entirety.
8. This Amendment may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
9. This Amendment and the Lease, as amended hereby, shall be
binding upon and shall be inure to the benefit of the paries hereto
and their respective representatives, successors and assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
Executed on the dates stated below to be effective as of the date first
written above.
LANDLORD:
TUCSON ORACLE LIMITED
PARTNERSHIP,
an Arizona limited partnership
By: CUMBERLAND AMERICA
DEVELOPMENT COMPANY, INC.,
a Texas corporation,
General Partner
By: /s/ Bradford B. Beck
Bradford B. Beck, President
Date: 5/31/96
TENANT:
JUST FOR FEET, INC.,
an Alabama corporation
By: /s/ Harold Ruttenberg
Name: Harold Ruttenberg
Title: President
Date: 5/30/96
EXHIBIT A
Construction Budget
Just for Feet 29-May-96
Cumberland America Development
15,200 sq. ft. Build to Suit
Tucson, Arizona
Cost Adjusted
Budget Adjustment Budget Actual Difference
HARD COSTS: RATE SIZE
LAND @ 10.82 129,373 S.F. 1,400,000.00 1,400,000.00 0.00
SITE WORK 184,000.00 187,045.00 3,045.00
Pad Preparation 20,000.00 19,400.00 (600.00)
LANDSCAPE 20,000.00 19,300.00 (700.00)
CONTINGENCY 25,000.00 25,000.00 0.00
$1,649,000.00 $1,650,745.00 $1,745.00
SUB TOTAL
CONST. COSTS: RATE SIZE
Just For Feet 59.21 15,200 S.F. $900,000.00 $50,000.00 $950,000.00 $1,011,246.00 61,246.00
Change Order #2 (Tenant's Architect) $0.00 $10,000.00 10,000.00
Change Order #3 (engineering charges per $0.00 $40,068.00 40,068.00
Tenant Changes)
TOTAL HARD COSTS $2,549,000.00 $2,599,000.00 $2,712,059.00 $113,059.00
Contingency
Used
SOFT COSTS:
ARCH. $17,500.00 $14,000.00 $31,500.00 $38,000.00 $6,500.00
ENGINEERING 12,000.00 12,000.00 0.00
LEGAL 15,000.00 2,000.00 17,000.00 20,000.00 3,000.00
TITLE 14,514.50 14,514.50 0.00
MORTGAGE TAX 0.00 / $1,000 0.00 0.00 0.00
EXCISE TAX 0.00 / $1,000 0.00 0.00 0.00
CONSTR. MGMT. 9,000.00 9,000.00 0.00
SOILS TEST 2,000.00 1,700.00 (300.00)
ENV.TEST 2,000.00 2,025.00 25.00
BANK INSP.FEE 3,500.00 2,500.00 (1,000.00)
MATERIALS TEST 2,500.00 5,500.00 3,000.00
APPRAISAL 6,000.00 6,500.00 500.00
DEV. OVERHEAD & FEE 75,000.00 75,000.00 0.00
INTEREST CARRY 112,970.38 132,970.38 20,000.00
COMMISSION 30,400.00 30,400.00 0.00
CONST. LOAN FEE 26,500.00 26,500.00 0.00
CONST. LOAN LEGAL 8,000.00 5,200.00 (2,800.00)
PERM.LOAN FEE 0.00 0.00 0.00
PERM.LOAN LEGAL 0.00 0.00 0.00
LOAN BROKER 0.00 0.00 0.00
ACCOUNTING 12,000.00 12,000.00 0.00
TRAVEL 5,000.00 2,800.00 (2,200.00)
MISC. 4,487.76 4,487.76 0.00
TAXES 21,000.00 21,000.00 0.00
CITY FEES (EST.) 16,250.00 13,300.00 (2,950.00)
SIGNS 2,000.00 500.00 (1,500.00)
INS. 3,000.00 7,500.00 4,500.00
SUB TOTAL $400,622.64 $16,000.00 $443,397.64 $26,775.00
TOTAL COST $2,949,622.64 $3,022,122.64 $3,155,456.64 $139,834.00
Actual Cost over the Landlord Contribution (paid thru amortization) $139,834.00
Exhibit 10 (b) (33)
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE ("Third Amendment") entered into this
29th day of January, 1997, between AAA Joint Venture 96-1("Landlord")and JUST
FOR FEET, INC. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated August 10, 1995, as amended and clarified by the First Amendment to
Lease dated February 29, 1996, Second Amendment to Lease dated May 29, 1996,
and Memorandum of Lease dated September 11, 1996, for that certain premises
consisting of approximately 15,349 sq. ft., located in the City of Tucson,
County of Pima, State of Arizona; and
WHEREAS, Landlord and Tenant now desire to modify and amend the Lease
to their mutual benefit and advantage.
NOW THEREFORE, in consideration of the premises, the promises and
covenants of the parties hereto, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree that effective as of the date hereof, the Lease shall be and is hereby
modified and amended as follows:
1. Section 5.1 of the Lease is hereby deleted and substituting the
following in lieu thereof:
Basic Rent. Tenant covenants to pay Landlord, without any prior demand
therefore and without any deduction or set-off whatsoever (except as expressly
provided by the terms of this Lease), as basic rent ("Basic Rent"), the
following sums during such Lease Year (as hereinafter defined) of the Lease
Term:
LEASE YEAR BASE ANNUAL RENT
Original Term:
Years 1 - 5 $380,962.18
Years 6 - 10 as described below
Years 11 - 15 as described below
Years 16 - 20 as described below
Renewal Term(s):
Years 21 - 25 $557,782.66
Years 26 - 30 $613,653.02
The foregoing Basic Rent shall increase (but never decrease) on the
first day of the sixth (6th) , eleventh (llth) , and sixteenth (16th) Lease
Years by five (5) times the increase in the "CPI-U" (as defined below) during
the previous five (5) year period ending on September 30, 2001, 2006 or 2011,
as applicable; provided that (i) the increase in any five (5) year period will
be subject to a maximum increase of ten (10%) percent over the prior year's
Basic Rent (but if such prior year's Basic Rent shall be less than 110% of the
Basic Rent for the year ending five (5) years earlier, than the maximum Basic
Rent in the current year shall be 110% of the amount that would have been the
maximum Basic Rent in the prior year) and (ii) if by virtue of the maximum
increase in (i) a portion of the potential increase is not permitted to be added
to the Basic Rent, such unused portion shall accrue and be added to the
increase for the next succeeding five (5) year period again, however, still
subject to the maximum set forth in (i).
As used herein, the term "CPI-U" shall mean the United States
Department of Labor, Bureau of Labor Statistics Consumer Price Index for All
Urban Consumers, U.S. City Average. If at any time during the Term the CPI-U
shall be discontinued, or the manner in which the CPI-U is computed is
significantly altered, Landlord and Tenant shall mutually and reasonably
agree to substitute an existing official index published by the Bureau of Labor
Statistics or its successor or another similar index most nearly equivalent to
the CPI-U.
The applicable annual Basic Rent stated above shall be payable in
monthly installments equal to 1/12th of the applicable annual Basic Rent, each
such monthly installment payable in advance on the first day of each calendar
month of each Lease Year during the Lease Term. The monthly installment of
Basic Rent for the first month of the Lease Term shall be paid by Tenant to
Landlord on or before the Commencement Date. Rent for any fractional calendar
month in which the Lease Term begins or terminates shall be prorated on a per
diem basis, based on the number of days in such month with respect to such
fractional month.
The term "Lease Year", as used herein, shall, in the case of the first
Lease Year, mean the period that begins on the Commencement Date and ends on the
last day of the month in which the day immediately preceding the first
anniversary of the Commencement Date occurs. Each subsequent "Lease Year" shall
mean a period of twelve (12) full calendar months beginning on the day after the
expiration of the first Lease Year, and each subsequent annual anniversary of
such date, except that the last Lease Year shall end on the last day of the
Lease Term and may be less than twelve (12) full calendar months.
2. Except as herein specifically modified and amended, the Lease
shall be and remain in full force and effect, and the parties hereby ratify and
affirm the terms, covenants and conditions thereof.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have entered in this Fourth
Amendment as of the day and year first above written.
LANDLORD:
AAA JOINT VENTURE 96-1
a Texas joint venture
By: AAA Net Realty Fund X, Ltd.,
a Nebraska limited partnership
By: American Asset Advisers
Management Corp. X, its
Managing General Partner
ATTEST: By: /s/ H. Kerr Taylor
_____________________ H. Kerr Taylor, President
By: AAA Net Realty Fund XI, Ltd., a
Texas limited partnership
By: American Asset Advisers
Management Corp. XI, its
Managing General Partner
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
TENANT:
JUST FOR FEET, INC.
ATTEST:
/s/ Scott W. By: /s/ Harold Ruttenberg
Harold Ruttenberg, President
STATE OF TEXAS )
) SS.:
COUNTY OF HARRIS)
Before me, Notary Public in and for the State and County aforesaid,
appeared the above named H. KERR TAYLOR, known to me to be President of American
Asset Advisers Management Corp. X and American Asset Advisers Management Corp.
XI, the corporations which executed the foregoing instrument as the respective
Managing General Partners of AAA Net Realty Fund X, Ltd. and AAA Net Realty Fund
XI, Ltd., the joint venturers of AAA Joint Venture 96-1, who acknowledged that
he did sign such instrument for and on behalf of said corporations and said
joint venture, that the same is his free act and deed and the free act and deed
of said corporations and said joint venture.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal
this 7th day of February, 1997.
/s/ Traci P. Barrientos
Notary Public, in and for the State of
Texas
My commission expires:
07-20-2000
STATE OF ALABAMA )
) SS.:
COUNTY OF SHELBY )
Before me, a Notary Public in and for the State and County aforesaid,
personally appeared the above named Harold Ruttenberg, known to me to be the
President of JUST FOR FEET, INC., the Alabama corporation which executed the
foregoing instrument, who acknowledged that he did sign such instrument for
and on behalf of said corporation, being thereunto duly authorized by said
corporation, that the same is his free act and deed and the free act and deed
of said corporation.
IN TESTIMONY WHEREOF I have hereunto set my hand and official seal
this 13th day of February, 1997.
/s/ Doris Lee Sewell
Notary Public, in and for the State of
Alabama
My commission expires:
Aug. 30, 1999
Exhibit 10 (b) (34)
AGREEMENT OF AAA JOINT VENTURE 96-1
THIS AGREEMENT made and effective as of the 5th day of April,
1996, by and among AAA NET REALTY FUND X, LTD., a limited
partnership organized under the laws of the State of Nebraska
(herein sometimes referred to as the "AAA X"), AAA NET REALTY FUND
XI, LTD., a limited partnership organized under the laws of the
State of Texas (herein sometimes referred to as the "AAA XI") and
AMERICAN ASSET ADVISERS TRUST, INC., a Maryland corporation
conducting business in the State of Texas under the name American
Asset Advisers, Inc. (herein sometimes referred to as "American"),
collectively referred to herein as the "Venturers" and individually
referred to herein as "Venturer".
W I T N E S S E T H:
WHEREAS, the Venturers have agreed and do hereby agree to form
a joint venture under the laws of the State of Texas for the
purpose of acquiring, owning, leasing, maintaining, operating,
repairing, improving, and otherwise using and dealing with the real
property, together with the improvements thereon, described on
Exhibit A attached hereto and made a part hereof (the "Property");
NOW, THEREFORE, for and in consideration of the premises, the
Venturers do hereby covenant and agree, each with the other, as
follows:
ARTICLE 1
FORMATION OF JOINT VENTURE
1.1 The Venturers hereby enter into and form a joint venture
(the "Joint Venture") under the laws of the State of Texas for the
limited purposes herein set forth and upon the terms and provisions
set out herein.
1.2 The name of the Joint Venture shall be "AAA Joint Venture
96-1".
1.3 The Venturers shall execute all assumed and fictitious
name certificates and take all other action required by law to
comply with the Texas Revised Partnership Act and the assumed name
act, fictitious name act or similar statute in effect in each
jurisdiction or political subdivision in which the Joint Venture
proposes to do business. Furthermore, the Venturers shall execute
such other documents or supplements to this Agreement as may be
necessary to more fully express the intent and desire of the
Venturers with respect to the Joint Venture.
1.4 The business and purpose of the Joint Venture shall be
limited strictly to (i) acquiring, owning, leasing, maintaining,
operating, repairing, improving, and otherwise using and dealing
with the Property for profit; and (ii) engaging in any and all
activities related or incident to the foregoing business and
purpose, including, without limitation, the acquisition, ownership,
improvement, sale, lease, mortgage, hypothecation, encumbrance or
other use of or dealing with all types and kinds of property,
whether real, personal or mixed property.
1.5 The principal office of the Joint Venture shall be Eight
Greenway Plaza, Suite 824, Houston, Texas 77046.
ARTICLE 2
TERM
2.1 The terms of the Joint Venture shall be for a period of
twenty (20) years commencing on the date hereof, unless otherwise
agreed by the Venturers. The foregoing sentence notwithstanding,
the Joint Venture shall terminate upon the sale of all property
owned by the Joint Venture.
ARTICLE 3
DISTRIBUTIVE SHARES OF VENTURE
3.1 The distributive shares of the Venturers in the Joint
Venture are as follows:
Venturer Distributive Share
AAA X 18.25%
AAA XI 29.85%
American 51.90%
TOTAL: 100.00%
3.2 The distributive share (the "Distributive Share") of each
Venturer is the degree of ownership, expressed as a percentage,
which determines, among other things, the extent to which the
Venturer shall share in Joint Venture profits and surplus, and bear
Joint Venture expenses, losses and liabilities.
ARTICLE 4
OTHER PROVISIONS
4.1 In the event of a proposed sale of property held in the
Joint Venture by one of the Venturers, the other Venturer shall
have the right to purchase the other Venturer's interest. The sale
price of a Venturer's interest shall be the fair market value of
the property multiplied by the Distributive Share of the purchasing
Venturer. In the event that the Venturers are unable to agree upon
the fair market value of the property, the Venturers shall agree
upon and appoint an appraiser to determine the fair market value of
the property. The fair market value of the property as determined
by the appraiser shall be binding on both parties. Each Venturer
shall pay the amount of the appraiser's fee equal to the total fee
multiplied by the Venturer's Distributive Share.
4.2 Except as otherwise provided herein, the rights and
liabilities of the Venturers and the relations of the Venturers
shall be set forth in or provided under the Texas Revised
Partnership Act (Vernon's Ann.Civ.St. art. 6132b-1.01 et seq.), as
amended.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the dates of the respective acknowledgments
hereinbelow, to be effective as the day and in the year first above
written.
AAA NET REALTY FUND X, LTD.,
a Nebraska limited partnership
By: AMERICAN ASSET ADVISERS MANAGE-
MENT CORP. X, its Managing General Partner
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
AAA NET REALTY FUND XI, LTD.,
a Texas limited partnership
By: AMERICAN ASSET ADVISERS MANAGE-
MENT CORP. XI, its Managing
General Partner
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
AMERICAN ASSET ADVISERS TRUST, INC.,
a Maryland corporation
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
THE STATE OF TEXAS )
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 24th day of
April, 1996, by H. Kerr Taylor, as President of American Asset
Advisers Management Corp. X, a Nebraska corporation, Managing
General Partner of AAA Net Realty Fund X, Ltd., a Nebraska limited
partnership, on behalf of said corporation and limited partnership.
/s/ Traci Parker Barrientos
Notary Public, State of Texas
My Commission Expires: Notary's Name Printed or Typed:
July 20, 1996 _______________________________
THE STATE OF TEXAS )
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 24th day of
April, 1996, by H. Kerr Taylor, as President of American Asset
Advisers Management Corp. XI, a Texas corporation, Managing General
Partner of AAA Net Realty Fund XI, Ltd., a Texas limited
partnership, on behalf of said corporation and limited partnership.
/s/ Traci Parker Barrientos
Notary Public, State of Texas
My Commission Expires: Notary's Name Printed or Typed:
July 20, 1996 _______________________________
THE STATE OF TEXAS )
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 24th day of
April, 1996, by H. Kerr Taylor, as President of American Asset
Advisers Trust, Inc., a Maryland corporation, on behalf of said
corporation.
/s/ Traci Parker Barrientos
Notary Public, State of Texas
My Commission Expires: Notary's Name Printed or Typed:
July 20, 1996 _______________________________
EXHIBIT "A"
LEGAL DESCRIPTION
All that part of the Northeast Quarter of the Northeast Quarter of Section 23,
Township 13 South, Range 13 East, of the Gila and Salt River Base and Meridian,
Pima County, Arizona, described as follows:
COMMENCING at the point of intersection of the North line of said Section 23
with the West right-of-way line of the Tucson-Oracle Jct.-Globe Highway,
Project No. F031-1-807, which right-of-way line is parallel with and 100 feet
Westerly from the survey center lines, which center line crosses said
North line of Section 23 North 88 degrees 37 minutes 50 seconds West (record),
North 89 degrees 27 minutes 15 seconds West (measured) 7.60 feet from the
Northeast corner of said Section 23;
THENCE South 00 degrees 24 minutes 30 seconds East (record), South 00 degrees
33 minutes 57 seconds East (measured), along said West right-of-way line, 45.75
feet to the TRUE POINT OF BEGINNING;
THENCE continuing South 00 degrees 24 minutes 30 seconds East (record), South
00 degrees 33 minutes 57 seconds East (measured), along said West right-of-way
line 506.37 feet (record), 504.94 feet (measured) to its intersection with a
line parallel with and 30 feet Easterly from the center line of Old Oracle Road
as determined by the center line of the existing concrete pavement;
THENCE North 44 degrees 02 minutes 25 seconds West (record), North 44 degrees
11 minutes 51 seconds West (measured), along said parallel line 439.53 feet
(record), 439.08 feet (measured, to a point of curve);
THENCE Northwesterly along the arc of a 290.62 foot radius curve to the right
in said parallel line, thru a central angle of 52 degrees 35 minutes 25 seconds
(record), 51 degrees 29 minutes 28 seconds (measured), 266.75 feet (record),
261.18 feet (measured), to a point in the North line of said Section 23, which
point is North 88 degrees 37 minutes 50 seconds West (record), North 89 degrees
27 minutes 15 seconds West (measured), along said North line 487.85 feet from
the Northeast corner of said Section 23;
THENCE South 88 degrees 37 minutes 50 seconds East (record), South 89 degrees
27 minutes 15 seconds East (measured), East along said North line 124.79 feet
(record), 125.49 feet (measured);
THENCE South 78 degrees 32 minutes 02 seconds East (record), South 79 degrees
19 minutes 24 seconds East (measured), 260.87 feet (record), 260.04 feet
(measured) to the TRUE POINT OF BEGINNING.
Exhibit 10 (b) (35)
BILL OF SALE AND ASSIGNMENT
STATE OF ARIZONA )
) KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF PIMA )
WHEREAS, by special warranty deed of even date herewith,
TUCSON ORACLE LIMITED PARTNERSHIP, an Arizona Limited Partnership
("Seller"), conveyed to AAA JOINT VENTURE 96-1, a Texas joint
venture ("Buyer"), whose mailing address is 8 Greenway Plaza, Suite
824, Houston, Texas, 77046, that certain parcel of land located in
Pima County, Arizona, at 4848 N. Old Oracle Road, Tucson, Arizona,
85705, legally and more particularly described on Exhibit A
attached hereto and made a part hereof, together with all
improvements located thereon (the "Real Property"); and
WHEREAS, in connection with the above described conveyance,
Seller desires to sell, transfer and convey to Buyer certain items
of tangible personal property and certain other assets as
hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN and
NO/100 DOLLARS ($10.00) and other good and valuable consideration
paid in hand by Buyer to Seller, the receipt and sufficiency of
which are hereby acknowledged, Seller has GRANTED, CONVEYED, SOLD,
TRANSFERRED, ASSIGNED, SET OVER and DELIVERED and by these presents
does hereby GRANT, CONVEY, SELL, TRANSFER, ASSIGN, SET OVER and
DELIVER to Buyer, its legal representatives, successors and
assigns, all of the following described properties, rights and
interests (collectively, the "Property"):
1. All of the fixtures, equipment and articles of personal
property, if any, owned by Seller and located on, attached to
and/or used in connection with the operation of the Real Property
(collectively, the "Personal Property").
2. All of Seller's rights, title and interests in and to
that certain Lease dated August 10, 1995, by and between Seller (as
successor-in-interest to Cumberland America Development Company,
Inc.) and Just For Feet, Inc., an Alabama corporation ("Tenant"),
as amended (the "Lease"), a true and correct copy of which Lease is
attached hereto as Exhibit B and incorporated herein by reference
for all purposes, including the right to receive all rents, issues
and profits accruing under the Lease from and after the date
hereof.
3. All of Seller's rights, title and interests in and to all
guaranties, warranties, permits, plans, specifications and
approvals relating the Real Property or the Lease, including,
without limitation, any guarantees and warranties issued by C.D.
Henderson, Inc. ("Henderson") in connection with all work
performed or materials furnished by or on behalf of Henderson under
that certain Standard Form of Agreement between Owner and
Contractor dated January 12, 1996, by and between Seller (as
successor-in-interest to Cumberland America Development Company,
Inc.) and Henderson (collectively, the "Plans and Warranties");
subject, however, to any rights Tenant may have in such Plans and
Warranties pursuant to the terms of the Lease. All rents
receivable from Tenant pursuant to the Lease, earned and
attributable to the period prior to the date hereof, shall be paid
to Seller to the extent that such rents have been collected prior
to the date hereof. Rents under the Lease earned and attributable
to the period beginning on the date hereof and thereafter shall
belong to Buyer. Upon receipt by Buyer of rents due under the
Lease and attributable to periods prior to the date hereof, all of
such rents shall be paid to Seller.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE
CONDITION OF THE PROPERTY, ITS MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY
WRITTEN INSTRUMENT OR DOCUMENT EXECUTED IN CONNECTION WITH THIS
TRANSACTION. BUYER, BY ACCEPTANCE OF THIS BILL OF SALE, AND
ASSIGNMENT ACKNOWLEDGES THAT BUYER HAS FULLY INSPECTED THE PERSONAL
PROPERTY, BUYER ACCEPTS THE PERSONAL PROPERTY IN ITS PRESENT "AS
IS" CONDITION. IN ADDITION, THE ASSIGNMENT OF THE LEASE AND THE
INTANGIBLE PROPERTY IS MADE AND DELIVERED WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND.
TO HAVE AND TO HOLD the Personal Property, the Lease and the
Plans and Warranties unto Buyer, its successors and assigns,
forever.
It is understood and agreed that, by its execution hereof,
Buyer hereby assumes and agrees to perform all of Seller's
obligations and covenants contained or arising under the Lease
after the date hereof. Seller hereby agrees to indemnify and hold
Buyer harmless from and against all liabilities, damages, costs and
expenses (including, without limitation, reasonable attorneys'
fees, disbursements and amounts paid in settlement of claims)
directly caused by the failure of Seller or Seller's predecessors
in interest to fulfill their respective obligations under the
Lease, which accrued prior to the date hereof. Buyer hereby agrees
to indemnify and hold Seller harmless from and against all
liabilities, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees, disbursements and amounts
paid in settlement of claims) directly caused by the failure of
Buyer or its successors in interest to fulfill their respective
obligations under the Lease, which accrue on or after the date
hereof.
Buyer executes this Bill of Sale and assignment for the
purpose of evidencing its agreement to the assumption and terms
provided herein.
This Bill of Sale and Assignment may be executed in one or
more counterparts each of which shall be deemed to be an original
and all of which, when taken together, shall constitute one and the
same instrument.
EXECUTED effective as of the 11th day of September, 1996.
SELLER:
TUCSON ORACLE LIMITED PARTNERSHIP,
an Arizona limited partnership
By: CUMBERLAND AMERICA DEVELOPMENT COMPANY, INC.,
a Texas Corporation, General Partner
By: /s/ Bradford B. Beck
Bradford B. Beck, President
BUYER:
AAA JOINT VENTURE 96-1,
a Texas joint venture
By: AAA NET REALTY FUND X, LTD.,
a Nebraska limited partnership,
Venturer
By: AMERICAN ASSET ADVISERS
MANAGEMENT CORP. X,
Managing General Partner
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
By: AAA NET REALTY FUND XI, LTD.,
a Texas limited partnership,
Venturer
By: AMERICAN ASSET ADVISERS
MANAGEMENT CORP. XI,
Managing General Partner
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
By: AMERICAN ASSET ADVISERS TRUST, INC.,
a Maryland corporation,
Venturer
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
THE STATE OF TEXAS )
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public, on this
day personally appeared Bradford B. Beck, President of Cumberland
America Development Company, Inc., a Texas corporation, known to me
to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed, as the act and
deed of the corporation, as General Partner of Tucson Oracle
Limited Partnership, an Arizona limited partnership, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 10th day of
September, 1996.
/s/ Deborah Danese
Notary Public in and for
the State of Texas
My commission expires:
8-09-97
THE STATE OF TEXAS )
COUNTY OF HARRIS )
BEFORE ME, the undersigned authority, a Notary Public, on this
day personally appeared H. Kerr Taylor, President of American Asset
Advisers Management Corp. X, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same for the purposes and consideration
therein expressed, as the act and deed of the corporation, in its
capacity as Managing General Partner of AAA Net Realty Fund X,
Ltd., a Nebraska limited partnership, in its capacity as a venturer
of AAA Joint Venture 96-1, a Texas joint venture, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 6th day of
September, 1996.
/s/ Traci P. Barrientos
Notary Public in and for
the State of Texas
My commission expires:
7-20-2000
THE STATE OF TEXAS )
COUNTY OF HARRIS )
BEFORE ME, the undersigned authority, a Notary Public, on this
day personally appeared H. Kerr Taylor, President of American Asset
Advisers Management Corp. XI, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same for the purposes and consideration
therein expressed, as the act and deed of the corporation, in its
capacity as Managing General Partner of AAA Net Realty Fund XI,
Ltd., a Texas limited partnership, in its capacity as a venturer of
AAA Joint Venture 96-1, a Texas joint venture, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 6th day of
September, 1996.
/s/ Traci P. Barrientos
Notary Public in and for
the State of Texas
My commission expires:
7-20-2000
THE STATE OF TEXAS )
COUNTY OF HARRIS )
BEFORE ME, the undersigned authority, a Notary Public, on this
day personally appeared H. Kerr Taylor, President of American Asset
Advisers Trust, Inc., a Maryland corporation, known to me to be the
person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, as the act and deed of the
corporation, in its capacity as a venturer of AAA Joint Venture 96-1,
a Texas joint venture, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 6th day of
September, 1996.
/s/ Traci P. Barrientos
Notary Public in and for
the State of Texas
My commission expires:
7-20-2000
EXHIBIT A
TO
BILL OF SALE AND ASSIGNMENT
LEGAL DESCRIPTION
All that part of the Northeast Quarter of the Northeast Quarter of Section 23,
Township 13 South, Range 13 East, of the Gila and Salt River Base and Meridian,
Pima County, Arizona, described as follows:
COMMENCING at the point of intersection of the North line of said Section 23
with the West right-of-way line of the Tucson-Oracle Jct.-Globe Highway, Project
No. F031-1-807, which right-of-way line is parallel with and 100 feet Westerly
from the survey center lines, which center line crosses said North line of
Section 23 North 88 degrees 37 minutes 50 seconds West (record), North 89
degrees 27 minutes 15 seconds West (measured) 7.60 feet from the Northeast
corner of said Section 23;
THENCE South 00 degrees 24 minutes 30 seconds East (record), South 00 degrees
33 minutes 57 seconds East (measured), along said West right-of-way line, 45.75
feet to the TRUE POINT OF BEGINNING;
THENCE continuing South 00 degrees 24 minutes 30 seconds East (record), South
00 degrees 33 minutes 57 seconds East (measured), along said West right-of-way
line 506.37 feet (record), 504.94 feet (measured) to its intersection with a
line parallel with and 30 feet Easterly from the center line of Old Oracle Road
as determined by the center line of the existing concrete pavement;
THENCE North 44 degrees 02 minutes 25 seconds West (record), North 44 degrees
11 minutes 51 seconds West (measured), along said parallel line 439.53 feet
(record), 439.08 feet (measured, to a point of curve);
THENCE Northwesterly along the arc of a 290.62 foot radius curve to the right
in said parallel line, thru a central angle of 52 degrees 35 minutes 25 seconds
(record), 51 degrees 29 minutes 28 seconds (measured), 266.75 feet (record),
261.18 feet (measured), to a point in the North line of said Section 23, which
point is North 88 degrees 37 minutes 50 seconds West (record), North 89 degrees
27 minutes 15 seconds West (measured), along said North line 487.85 feet from
the Northeast corner of said Section 23;
THENCE South 88 degrees 37 minutes 50 seconds East (record), South 89 degrees
27 minutes 15 seconds East (measured), East along said North line 124.79 feet
(record), 125.49 feet (measured);
THENCE South 78 degrees 32 minutes 02 seconds East (record), South 79 degrees
19 minutes 24 seconds East (measured), 260.87 feet (record), 260.04 feet
(measured) to the TRUE POINT OF BEGINNING.
EXHIBIT B
TO
BILL OF SALE AND ASSIGNMENT
LEASE
Exhibit 10 (b) (36)
AGREEMENT OF AAA JOINT VENTURE 96-2
THIS AGREEMENT made and entered into as of the 8th day of
August, 1996, by and between AAA NET REALTY FUND XI, LTD., a
limited partnership organized under the laws of the State of Texas
(herein sometimes referred to as the "AAA XI") and AMERICAN ASSET
ADVISERS TRUST, INC., a Maryland corporation doing business in the
State of Texas as American Asset Advisers, Inc. (herein sometimes
referred to as the "American"), collectively referred to herein as
the "Venturers" and individually referred to herein as "Venturer";
W I T N E S S E T H:
WHEREAS, the Venturers have agreed and do hereby agree to form
a joint venture under the laws of the State of Texas for the
purpose of acquiring, owning, advancing funds for construction of
improvements, leasing, maintaining, operating, repairing,
improving, and otherwise using and dealing with the real property,
together with the improvements thereon, described on Exhibit A
attached hereto and made a part hereof (the "Property");
NOW, THEREFORE, for and in consideration of the premises, the
Venturers do hereby covenant and agree, each with the other, as
follows:
ARTICLE 1
FORMATION OF JOINT VENTURE
1.1 The Venturers hereby enter into and form a joint venture
(the "Joint Venture") under the laws of the State of Texas for the
limited purposes herein set forth and upon the terms and provisions
set out herein.
1.2 The name of the Joint Venture shall be "AAA Joint Venture
96-2".
1.3 The Venturers shall execute all assumed and fictitious
name certificates and take all other action required by law to
comply with the Texas Revised Partnership Act and the assumed name
act, fictitious name act or similar statute in effect in each
jurisdiction or political subdivision in which the Joint Venture
proposes to do business. Furthermore, the Venturers shall execute
such other documents or supplements to this Agreement as may be
necessary to more fully express the intent and desire of the
Venturers with respect to the Joint Venture.
1.4 The business and purpose of the Joint Venture shall be
limited strictly to (i) acquiring, owning, advancing funds for
construction of improvements, leasing, maintaining, operating,
repairing, improving, and otherwise using and dealing with the
Property for profit; and (ii) engaging in any and all activities
related or incident to the foregoing business and purpose,
including, without limitation, the acquisition, ownership,
improvement, sale, lease, mortgage, hypothecation, encumbrance or
other use of or dealing with all types and kinds of property,
whether real, personal or mixed property.
1.5 The principal office of the Joint Venture shall be Eight
Greenway Plaza, Suite 824, Houston, Texas 77046.
ARTICLE 2
TERM
2.1 The terms of the Joint Venture shall be for a period of
twenty (20) years commencing on the date hereof, unless otherwise
agreed by the Venturers. The foregoing sentence notwithstanding,
the Joint Venture shall terminate upon the sale of all property
owned by the Joint Venture.
ARTICLE 3
DISTRIBUTIVE SHARES OF VENTURE
3.1 The distributive shares of the Venturers in the Joint
Venture are as follows:
Venturer Distributive Share
AAA XI 49%
American 51%
TOTAL: 100%
3.2 The distributive share (the "Distributive Share") of each
Venturer is the degree of ownership, expressed as a percentage,
which determines, among other things, the extent to which the
Venturer shall share in Joint Venture profits and surplus, and bear
Joint Venture expenses, losses and liabilities.
ARTICLE 4
OTHER PROVISIONS
4.1 In the event of a proposed sale of property held in the
Joint Venture by one of the Venturers, the other Venturer shall
have the right to purchase the other Venturer's interest. The sale
price of a Venturer's interest shall be the fair market value of
the property multiplied by the Distributive Share of the purchasing
Venturer. In the event that the Venturers are unable to agree upon
the fair market value of the property, the Venturers shall agree
upon and appoint an appraiser to determine the fair market value of
the property. The fair market value of the property as determined
by the appraiser shall be binding on both parties. Each Venturer
shall pay the amount of the appraiser's fee equal to the total fee
multiplied by the Venturer's Distributive Share.
4.2 Except as otherwise provided herein, the rights and
liabilities of the Venturers and the relations of the Venturers
shall be set forth in or provided under the Texas Revised
Partnership Act (Vernon's Ann.Civ.St. art. 6132b-1.01 et seq.), as
amended.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the dates of the respective acknowledgements
hereinbelow, to be effective as the day and in the year first above
written.
AAA NET REALTY FUND XI, LTD., a
Texas limited partnership
By: AMERICAN ASSET ADVISERS MANAGE-
MENT CORP. XI, its Managing
General Partner
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
AMERICAN ASSET ADVISERS TRUST, INC.,
a Maryland corporation
By: /s/ H. Kerr Taylor
H. Kerr Taylor, President
THE STATE OF TEXAS )
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 8th day of
August, 1996, by H. Kerr Taylor, as President of American Asset
Advisers Management Corp. XI, a Texas corporation, Managing General
Partner of AAA Net Realty Fund XI, Ltd., a Texas limited
partnership, on behalf of said corporation and limited partnership.
/s/ Traci P. Barrientos
Notary Public, State of Texas
My Commission Expires: Notary's Name Printed or Typed:
07-20-2000 _______________________________
THE STATE OF TEXAS )
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 8th day of
August, 1996, by H. Kerr Taylor, President of American Asset
Advisers Trust, Inc., a Maryland corporation, on behalf of said
corporation.
/s/ Traci P. Barrientos
Notary Public, State of Texas
My Commission Expires: Notary's Name Printed or Typed:
07-20-2000 _______________________________
EXHIBIT "A"
METES AND BOUND DESCRIPTION
OF A 1.7223 ACRE TRACT OF LAND
OUT OF THE JOHN TAYLOR SURVEY, A-547
MONTGOMERY COUNTY, TEXAS
Being the metes and bound description of a tract of land containing 23.1347
acres of land out of the John Taylor Survey, A-547, Montgomery County, Texas
and being more particularly described as follows: (All bearings and distances
referenced to the Texas Plane Coordinate System, Lambert Projection South/
central Zone);
COMMENCING at a Point of Reference, the intersection of the east right-of-way
line of a 50' Texas Intrastate Gas Co. recorded in Volume 594, Page 446,
M.C.D.R., with the southerly right-of-way line of a 50' United Gas Co. Easement
recorded in Volume 331, Page 350, M.C.D.R., coordinate value X=856,475.29 and
Y=3,113,466.54;
THENCE: North 80 degrees 51 minutes 42 seconds East, a distance of 2419.24
feet to a point for the PLACE OF BEGINNING, said point being on the west right
- -of-way line of Grogan's Mill Road, recorded in Volume 823, Page 224, of the
M.C.D.R., said right-of-way line being of variable width;
THENCE: South 27 degrees 15 minutes 19 seconds East, a distance of 438.66
feet to a point;
THENCE: South 66 degrees 19 minutes 59 seconds West, a distance of 204.03 feet
to a point;
THENCE: North 27 degrees 15 minutes 19 seconds West, a distance of 326.41 feet
to a point:
THENCE: North 50 degrees 32 minutes 26 seconds East, a distance of 83.02 feet
to a point;
THENCE: North 39 degrees 04 minutes 59 seconds East, a distance of 87.97 feet
to a point;
THENCE: North 3 degrees 47 minutes 52 seconds West, a distance of 51.99 feet
to a point;
THENCE: North 65 degrees 38 minutes 03 seconds East, a distance of 21.24 feet
to the PLACE OF BEGINNING containing 75025 square feet or 1.7223 acres, as
surveyed on the ground under by supervision.
Dante Carlomagno
95210b7.doc
01-03-95
EXHIBIT 11
AMERICAN ASSET ADVISERS TRUST, INC.
STATEMENT RE: COMPUTATION OF EARNINGS PER SHARE
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1996 1995 1994
PRIMARY EARNINGS PER SHARE:
WEIGHTED AVERAGE NUMBER OF
SHARES OF COMMON STOCK
OUTSTANDING 1,066,353 672,794 251,768
ADDITIONAL SHARES ASSUMING
EXERCISE OF STOCK WARRANTS (1) - - -
TOTAL WEIGHTED AVERAGE COMMON
AND COMMON EQUIVALENT SHARES
OUTSTANDING 1,066,353 672,794 251,768
NET INCOME 542,807 163,446 79,545
EARNINGS PER COMMON AND
COMMON EQUIVALENT SHARE 0.51 0.24 0.32
FULLY DILUTED EARNINGS PER SHARE:
WEIGHTED AVERAGE NUMBER OF
SHARES OF COMMON STOCK
OUTSTANDING 1,066,353 672,794 251,768
ADDITIONAL SHARES ASSUMING
EXERCISE OF STOCK WARRANTS 263,141 174,822 27,700
TOTAL WEIGHTED AVERAGE COMMON
AND COMMON EQUIVALENT SHARES 1,329,494 847,616 279,468
OUTSTANDING
NET INCOME 668,569 (2) 268,292 (2) 165,702 (2)
EARNINGS PER COMMON AND
COMMON EQUIVALENT SHARE $0.50 $0.32 $0.59
(1) Not applicable in 1996, 1995 or 1994 as computations of primary earnings
per share exclude common stock equivalents for any period in which their
inclusion would increase the income per share amount otherwise computed.
(2) Includes adjustment of $125,762, $104,846 and $86,157 of additional
interest income for 1996, 1995 and 1994, respectively, for assumed net
proceeds from exercise of warrants using the Modified Treasury Stock
Method.