------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K/A
AMENDMENT TO FORM 8-K
Filed Pursuant to
THE SECURITIES EXCHANGE ACT OF 1934
THE PARKWAY COMPANY
-----------------------------------
(Exact name of registrant as specified in its charter)
AMENDMENT NO. 1
The undersigned registrant hereby amends the following items,
financial statements, exhibits or other portions of its Form 8-K
filed August 14, 1995 as set forth in the pages attached hereto:
Item 7. Financial Statements and Exhibits
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this amendment to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: October 13, 1995 THE PARKWAY COMPANY
By /s/ Sarah P. Clark
-----------------------
Sarah P. Clark
Vice President,
Chief Financial Officer
and Secretary
<PAGE>
FORM 8-K/A
THE PARKWAY COMPANY
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
The following audited financial statements of Mtel
Centre' (formerly known as Security Centre') for the
twelve months ended June 30, 1995 are attached in an
Exhibit hereto.
Page
----
Independent Auditors' Report 3
Statement of Rental Revenue and
Direct Operating Expenses 4
Notes to Statement of Rental Revenue
and Direct Operating Expenses 5
(b) Pro Forma Consolidated Financial Statements
The unaudited Pro Forma Consolidated Financial
Statements are attached in an Exhibit hereto.
THE PARKWAY COMPANY
Page
----
Pro Forma Consolidated Financial Statements 7
Pro Forma Consolidated Balance Sheet (Unaudited) -
As of June 30, 1995 8
Pro Forma Consolidated Statements of Income (Unaudited) -
For the Six Months Ended December 31, 1994 9
Pro Forma Consolidated Statements of Income (Unaudited) -
For Six Months Ended June 30, 1995 10
(c) Exhibits.
--------
The following exhibits are filed herewith or
incorporated herein by reference:
(10) Purchase and Sale Agreement for property known
as Security Centre Office Buildings between
the Resolution Trust Corporation as Receiver
for Security Federal Savings Association
("Seller") and The Parkway Company, a Texas
Corporation ("Buyer") effective as of June 20,
1995.<PAGE>
Report of Independent Auditors
The Board of Directors
The Parkway Company
We have audited the accompanying statement of rental revenue and
direct operating expenses of Mtel Centre' (formerly known as
Security Centre') for the year ended June 30, 1995. This statement
is the responsibility of management. Our responsibility is to
express an opinion on this statement based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the
statement of rental revenue and direct operating expenses is free
of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amount and disclosures in the
statement. An audit also includes assessing the accounting
principles used and significant estimates made by management, as
well as evaluating the overall statement presentation. We believe
that our audit provides a reasonable basis for our opinion.
The accompanying statement was prepared for the purpose of
complying with the rules and regulations of the Securities and
Exchange Commission for inclusion in Form 8-K/A of The Parkway
Company as described in Note 2, and is not intended to be a
complete presentation of the property's revenue and expenses.
In our opinion, the statement of rental revenue and direct
operating expenses referred to above presents fairly, in all
material respects, the rental revenue and direct operating
expenses, as described in Note 2, of Mtel Centre' (formerly known
as Security Centre') for the year ended June 30, 1995, in
conformity with generally accepted accounting principles.
September 28,1995 /s/ Ernst & Young LLP
<PAGE>
Mtel Centre'
(formerly known as Security Centre')
Statement of Rental Revenue
and Direct Operating Expenses
For the year ended June 30, 1995
Rental revenue:
Minimum rents $3,356,379
Parking garage revenue 340,854
Reimbursed charges and other income 147,992
----------
3,845,225
Direct operating expenses (Note 2):
Utilities 454,576
Tenant area improvements 429,505
Parking garage expense 354,131
Management fees and commissions (Note 3) 222,113
Real estate taxes 419,344
Janitorial services and supplies 163,374
Maintenance services and supplies 147,654
Security services 65,723
Administrative and miscellaneous expenses 71,489
----------
2,327,909
----------
Excess of rental revenue over direct
operating expenses $1,517,316
==========
See accompanying notes.
<PAGE>
Mtel Centre'
(formerly known as Security Centre')
Notes to Statement of Rental Revenue
and Direct Operating Expenses
June 30, 1995
1. Organization and Significant Accounting Policies
Description of Property
The Parkway Company (the "Company") acquired Mtel Centre'(formerly
known as Security Centre') (the "Building") effective July 31, 1995
from an unrelated party. The Building is an office building with an
attached parking garage located in Jackson, Mississippi with
approximately 260,000 (unaudited) square feet of leasable area.
Rental Income
Minimum rents from leases are accounted for ratably over the term
of each lease. Tenant reimbursements are recognized as income as
the applicable services are rendered or expenses incurred.
The Building's tenants include a national communications company
and local professional services firms, such as legal, accounting
and consulting firms.
The future minimum rents on non-cancelable operating leases at June
30, 1995 are as follows:
Fiscal Year Amount
-------------------------------
1996 $ 2,960,000
1997 2,965,000
1998 2,878,000
1999 2,748,000
2000 2,719,000
Thereafter 10,010,000
-----------
$24,280,000
===========
<PAGE>
Mtel Centre'
(formerly known as Security Centre')
Notes to Statement of Rental Revenue
and Direct Operating Expenses (continued)
Rental Income (continued)
The above amounts do not include tenant reimbursements for
utilities, taxes, insurance, and common area maintenance.
2. Basis of Accounting
The accompanying statement of rental revenue and direct operating
expenses is presented on the accrual basis. The statement has been
prepared in accordance with the applicable rules and regulations of
the Securities and Exchange Commission for real estate properties
acquired. Accordingly, the statement excludes certain expenses not
comparable to the proposed future operations of the Building such
as depreciation and mortgage interest expense. Management is not
aware of any material factors relating to the property that would
cause the reported financial information not to be necessarily
indicative of future operating results.
The Building's major tenant leases approximately 47% (unaudited) of
the Building's total leasable area and accounts for approximately
42% of gross revenues as presented in the accompanying statement of
rental revenue and direct operating expenses.
3. Management Fee
Pursuant to a property Management agreement between the Company and
Eastover Realty Corporation (the "Management Company"), the
Management Company will be paid a management fee equal to 4% of
revenues received from the operations of the Building. The
Management Company is a wholly-owned subsidiary of the Company.
Management fees included in the accompanying statement of rental
revenues and direct operating expenses represent management fees
paid by the former owners to an unrelated management company.
<PAGE>
The Parkway Company
Pro Forma Consolidated Financial Statements
(Unaudited)
The following unaudited pro forma consolidated balance sheet of The
Parkway Company as of June 30,1995 and the pro forma consolidated
statements of income for the six months ended December 31,1994 and
June 30, 1995 give effect to the July 31, 1995 purchase of Mtel
Centre (formerly known as Security Centre) from the Resolution
Trust Corporation as receiver for Security Savings Association. The
pro forma consolidated financial statements have been prepared by
management of Parkway based upon the historical financial
statements of Parkway and the adjustments and assumptions in the
accompanying notes to the pro forma consolidated financial
statements.
The pro forma consolidated balance sheet sets forth the effect of
Parkway's purchase of Mtel Centre as if the purchase had been
consummated on June 30, 1995. The pro forma consolidated statements
of income set forth the effect of Parkway's purchase of Mtel Centre
as if this transaction had been consummated on July 1, 1994.
These pro forma consolidated financial statements may not be
indicative of the results that actually would have occurred if the
purchase had been in effect on the dates indicated or which may be
obtained in the future. The pro forma consolidated financial
statements should be read in conjunction with the financial
statements and notes of Parkway included in its annual report on
Form 1O-KSB for the period ended December 31, 1994.
<PAGE>
The Parkway Company
Pro Forma Consolidated Balance Sheet (Unaudited)
June 30,1995
Pro Forma Pro Forma
Parkway Adjustments Consolidated
------- ----------- ------------
(In thousands)
Assets
Real estate related
investments
Operating real estate
(net of accumulated
depreciation) $27,133 13,500 $40,633
Real estate held for sale 12,064 12,064
Real estate and financial
service companies 19,480 19,480
Mortgage loans 7,001 7,001
Real estate partnerships
and corporate joint
venture 775 775
------- ------- -------
66,453 13,500 79,953
Interest and rents
receivable and other
assets 2,787 2,787
Cash and cash equivalents 1,899 (1,899) 0
Restricted cash 271 271
------- ------- -------
$71,410 $11,601 $83,011
======= ======= =======
Liabilities
Notes payable to banks $ 340 $11,601 $11,941
Mortgage notes payable
without recourse 22,750 22,750
Mortgage notes payable
on wrap mortgages 1,928 1,928
Accounts payable and
other liabilities 4,935 4,935
Deferred gain 271 271
------- ------- -------
30,224 11,601 41,825
------- ------- -------
Shareholders' Equity
Common Stock 1,992 1,992
Additional paid-in
capital 32,788 32,788
Retained earnings 3,868 3,868
------- ------- -------
38,648 0 38,648
Unrealized gains on
securities 2,538 2,538
------- ------- -------
41,186 0 41,186
------- ------- -------
$71,410 $11,601 $83,011
======= ======= =======
See accompanying notes to pro forma consolidated financial
statements (unaudited).
<PAGE>
The Parkway Company
Pro Forma Consolidated Statement of Income (Unaudited)
For the six months ended December 31,1994
Parkway Pro Forma Pro Forma
Historical Adjustments Consolidated
---------- ----------- ------------
(In thousands, except for per share data)
Revenues
Income from real estate
properties $3,683 $1,769 (1) $5,452
Interest on mortgage loans 283 283
Equity in earnings:
Real estate companies 681 681
Real estate partnerships
and corporate joint 195 195
Gain on securities 27 27
Interest on investments 18 18
Dividends, deferred gains
and other income 46 46
Gain on real estate and
mortgage loans 529 529
------ ------ ------
5,462 1,769 7,231
------ ------ ------
Expenses
Real estate owned:
Operating expense 1,951 1,091 (1) 3,042
Interest expense 1,078 460 (2) 1,538
Depreciation and
amortization 565 152 (3) 717
Minority interest (209) (209)
Notes payable to banks 140 140
Shared general and
administrative expenses 270 270
Other expenses 662 662
------ ------ ------
4,457 1,703 6,160
------ ------ ------
Net income $1,005 66 $1,071
====== ====== ======
Net income per share $ 0.65 $ 0.69
====== ======
Weighted average shares
outstanding 1,544 $1,544
====== ======
See accompanying notes to pro forma consolidated financial
statements (unaudited).
<PAGE>
The Parkway Company
Pro Forma Consolidated Statement of Income (Unaudited)
For the six months ended June 30, 1995
Parkway Pro Forma Pro Forma
Historical Adjustments Consolidated
---------- ----------- ------------
(In thousands, except per share data)
Revenues
Income from real estate
properties $3,731 $2,075 (1) $5,806
Management company income 480 480
Interest on mortgage loans 493 493
Equity in earnings:
Real estate companies 135 135
Real estate partnerships and
corporate joint venture 47 47
Gain on securities 101 101
Interest on investments 35 35
Dividends, deferred gains and
other income 477 477
Gain on real estate and
mortgage loans 836 836
----- ----- ------
6,335 2,075 8,410
----- ----- ------
Expenses
Real estate owned:
Operating expense 2,056 1,236 (1) 3,292
Interest expense 1,072 460 (2) 1,532
Depreciation and
amortization 563 152 (3) 715
Minority interest (70) (70)
Interest expense:
Notes payable to banks 111 111
Notes payable on wrap
mortgages 29 29
Management company expenses 323 323
Other expenses 973 973
------ ------ ------
5,057 1,848 6,905
------ ------ ------
Net income $1,278 $ 227 $1,505
====== ====== ======
Net income per share $ 0.75 $ 0.88
====== ======
Weighted average shares
outstanding 1,713 1,713
====== ======
See accompanying notes to pro forma consolidated financial
statements (unaudited).
<PAGE>
The Parkway Company
Notes to Pro Forma Consolidated Financial Statements
(Unaudited)
1. On July 31, 1995, The Parkway Company ("Parkway") purchased the
Security Centre' office complex in Jackson, Mississippi from the
Resolution Trust Corporation as receiver for Security Federal
Savings and Loan Association for $13,500,000. Upon acquisition, the
buildings were renamed Mtel Centre'. Mtel Centre' is an office
building complex consisting of 260,000 net rentable square feet in
two buildings and 130 parking spaces located in the central
business district of Jackson. Parkway funded the acquisition with
cash and amounts drawn under two lines of credit with Deposit
Guaranty National Bank. Jackson-based Mobile Telecommunication
Technologies Corp. (Mtel), a leader in the telecommunications
industry, currently occupies approximately 122,000 square feet in
the buildings under a ten-year lease that expires in July 2005.
2. Interest on borrowings under two lines of credit with Deposit
Guaranty National Bank were computed at the current interest rate
of 7.9375%.
3. Depreciation is provided by the straight-line method over the
estimated useful lives of the buildings (40 years).
PURCHASE AND SALE AGREEMENT
for property known as
Security Centre' Office Buildings
THE BLANKS IN PART I OF THIS AGREEMENT
AND ON THE SIGNATURE PAGES NEED TO BE
COMPLETED AND VARIOUS EXHIBITS, IF
APPLICABLE, NEED TO BE INSERTED
A CONFIDENTIALITY AGREEMENT AND OTHER DOCUMENTS
ARE TO BE EXECUTED PRIOR TO OR SIMULTANEOUSLY WITH
THE EXECUTION OF THIS AGREEMENT.
NEITHER THIS AGREEMENT NOR ANY MEMORANDUM OR OTHER NOTICE
OF THIS AGREEMENT MAY BE RECORDED AMONG THE LAND
OR CHATTEL RECORDS OF ANY JURISDICTION.
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement"), dated as of
the Effective Date, is entered into by and between the Resolution
Trust Corporation as Receiver For Security Federal Savings
Association ("Seller"), and The Parkway Company, a Texas
Corporation("Buyer").
PART I
Part II (including the Exhibits) of this Agreement makes
reference to the following items that must be completed or noted as
"Not Applicable" prior to execution of this Agreement:
1. The real property is located at 200 South Lamar Street,
Jackson, Mississippi and is more fully described on Exhibit "A".
2. "Purchase Price" is Thirteen Million Five Hundred
Thousand and no/100 Dollars ($ 13,500,000.00 ), and consists of the
following:
(a) "Cash Portion of the Purchase Price" in the amount of
Thirteen Million Five Hundred Thousand and no/100 Dollars
($13,500,000.00), subject to Sections 4.1 and 11.1 of Part II;
(b) "Seller Financing" (if applicable) in the amount of
*** NOT APPLICABLE *** Dollars ($________); and
(c) "Assumable Financing" (if applicable) in the amount
of *** NOT APPLICABLE *** Dollars ($_______), subject to Section
11.1 of Part II.
3. "Deposit" is Two Hundred Fifty Thousand and no/100
Dollars ($ 250,000.00).
4. "Broker" is ***NOT APPLICABLE*** and the Listing Broker.
The "Listing Broker" is SRC/FGB JV-SCOB.
5. "Closing Agent" is Chicago Title Insurance Company.
6. "Closing Date" is on or before August 15, 1995, subject
to the provisions of Part II.
<PAGE>
7. "Effective Date" is June 20, 1995, which is the date
upon which this Agreement is executed by Seller, as evidenced by
the insertion of such date below Seller's signature.
8. "Title Company" is Chicago Title Insurance Company.
9. The allocation of Closing costs under and subject to
Section 13.3 is as follows:
A. Seller to pay:
(1) Basic premium for the owner's policy of title
insurance.
B. Buyer to pay:
(1) Recording fees for all instruments delivered
at Closing which are to be filed of record;
(2) All documentary, sales and transfer taxes
applicable to this transaction;
(3) Fee for amending the area and boundary
exception set forth in the owner's policy of
title insurance, as well as the cost of any
other endorsement, modification or surcharge
connected with the issuance of said policy.
Except as otherwise specifically provided in this
Agreement, all other expenses hereunder shall be paid by the party
incurring such expenses.
10. [SELECT EITHER (a) or (b) and cross-out the other]:
(a) If Buyer is seeking Seller Financing, then
the documents described in Paragraph 1 of Exhibit "B" are to
be delivered to Seller simultaneously with Buyer's execution and
delivery of this Agreement and submission of a bid. Non Applicable
Due to Cash Offer.
(b) If Buyer is seeking Seller Financing, then
the documents described in Paragraph 1 of Exhibit "B" are to
be delivered to Seller within_____________ (_____) (not
to exceed fifteen (15)) Business Days after the Effective
Date at the following address:___________________________
_________________________________________________________
_________________________________________________________
11. A form of Environmental Remediation Agreement is not
attached as Exhibit "L". If the form is attached, Buyer and Seller
shall execute and deliver it, and if applicable the form of
Remediation Escrow Agreement attached thereto, at Closing.
<PAGE>
PURCHASE AND SALE AGREEMENT (continued)
PART II
TABLE OF CONTENTS
Page
PART II 3
1. Purchase and Sale 7
2. Purchase Price 7
3. Deposit 7
4. Payment of Purchase Price: Financing 8
5. Property Information Materials 10
6. Title 10
7. Inspections 11
8. Interim Action 13
9. Representations and Warranties 14
10. Condition of Property; Disclaimer; Release of
Claims 15
11. Conditions Precedent to Closing 16
12. Closing; Deliveries at Closing 18
13. Costs, Taxes and Adjustments 21
14. Default 25
15. Liability of Seller and Related Persons 27
16. Condemnation 27
17. Risk of Loss; Casualty 28
18. Brokers 30
19. Survival 30
20. Assignments of this Agreement or of Buyer 31
21. Notices 32
22. Time of the Essence 32
23. Miscellaneous 33
24. Provisions with Respect to the Closing Agent 35
25. Specific Provisions Required by the Jurisdiction in
which the Property is Located 36
26. Execution and Delivery 36
27. Liquidated Damages Provision 36
<PAGE>
EXHIBITS
Exhibit "A" - Description of the Real Property
Exhibit "B" - Terms of Any Seller Financing
Offered (if Applicable)
Exhibit "B-1" - Seller Financing Documents (if
Applicable)
Exhibit "C" - Property Information Materials
Exhibit "D" - [This Exhibit has been intentionally
deleted.]
Exhibit "E" - Form of Notice to Tenants
Exhibit "F" - Deed
Exhibit "G" - Bill of Sale
Exhibit "H" - Assignment and Assumption Agreement
Exhibit "I" - Collection Policy Affidavit(s) and/or
Certification(s) to be Executed at
Closing
Exhibit "J" - Provisions With Respect to Closing
Agent
Exhibit "K" Specific Provisions Required by the
Jurisdiction in which the Property
is Located
Exhibit "L" Environmental Remediation Agreement
(if Applicable-see Part I, Item 11)
Exhibit "M" - Tax Addendum
<PAGE>
INDEX TO DEFINED TERMS
Term Part/Article/Section
(All Article and
Section references are
to Part II)
Accounting Period 13.5
Adjustment Time 13.4
Affiliate 11.2
Agreement Part I
Assignment and Assumption Agreement 12.2(d)
Assumable Financing Part I
Bill of Sale 12.2(c)
Broker Part I
Business Day 23.3
Buyer Part I
Buyer's Representatives 7.1
Cash Portion of the Purchase Price Part 1
Claims 5
Closing 12.1
Closing Agent Part I
Closing Date Part I
Confidential Files 7.1
Contracts 8.2
Control 11.2
Deed 12.2(b)
Deposit Part I
Effective Date Part I
Environmental Laws 10.2
Environmental Risk 7.4
Inspection Studies 7.1
Intangible Property 1.1(c)
Interest-Bearing Account 3.2
Lease(s) 8.1
Listing Broker Part I
Litigation 9.2(c)
Notices 21.1
Notice to Tenants 12.2(a)
Permits 1.1(c)
Permitted Encumbrance 6.1
Personal Property 1.1(b)
Prohibited Buyer 20.4
Property 1.2
Property Information Materials 5
Pro-Rata Share 13.5
Publicly Held 11.2
Purchase Price Part I
Real Property 1.1(a)
Repair Cost 17.2(a)
Seller Part I
Seller Financing Part I
Taking 16.1
Taxes 13.4(d)
Tenant 13.5
Tenants' Deposits 13.4(g)
Title Company Part I
Title Evidence 6.1
<PAGE>
ARTICLE 1. Purchase and Sale.
1.1. Seller agrees to sell and convey to Buyer and Buyer
agrees to purchase from Seller, under the terms and conditions set
forth in this Agreement, all right, title and interest of Seller in
and to the following:
(a) The real property described in Part I and any
improvements situated on such real property, together with any and
all easements, covenants and other rights appurtenant to such real
property (collectively, "Real Property");
(b) All furniture, furnishings, fixtures, equipment
and other tangible personal property presently affixed to and/or
located at the Real Property and used in connection with Seller's
management, operation or repair of the Real Property, or
replacements of those items permitted under this Agreement (collec-
tively, "Personal Property"); and
(c) The following intangibles to the extent they
are transferable by Seller (collectively, "Intangible Property"):
(i) any and all Leases and Contracts in effect on the Closing Date,
(ii) any and all licenses, permits, authorizations, certificates of
occupancy and other approvals that are in effect as of the Closing
Date and necessary for the current use and operation of the
Property (collectively, "Permits"), (iii) any and all warranties,
telephone exchange numbers, architectural or engineering plans and
specifications, and development rights that exist as of the Closing
Date and relate to the Real Property or the Personal Property, and
(iv) any and all rights to the name of the improvements upon the
Real Property.
1.2. The term "Property" means the Real Property, the
Personal Property and the Intangible Property.
ARTICLE 2. Purchase Price.
The Purchase Price is set forth in Part I.
ARTICLE 3. Deposit.
3.1. Simultaneously with delivery to Seller of this
Agreement as executed by Buyer, Buyer shall deliver the Deposit in
accordance with this Article. If Closing Agent has been designated
by Seller as of the date of delivery of the Deposit, then Buyer
shall deliver the Deposit to Closing Agent to be held in escrow in
accordance with the terms of this Agreement; otherwise, Buyer shall
deliver the Deposit to Seller to be forwarded to Closing Agent once
Seller designates who the Closing Agent shall be and Seller shall
designate the Closing Agent prior to accepting this Agreement. The
designation of the Closing Agent shall be in Seller's sole and
absolute discretion and set forth in Part I. Buyer shall deliver
the Deposit in the form of a certified check or cashier's check
made payable to Closing Agent or Seller, as applicable, or by wire
transfer of current federal funds received and credited to the
account of Closing Agent or Seller, as applicable. The Deposit
shall be held in such manner as is designated by Seller (which
manner need not be an Interest-Bearing Account) until the date this
Agreement is accepted or rejected by Seller. If Seller accepts and
executes this Agreement, then Closing Agent shall hold the Deposit
in an Interest-Bearing Account.
3.2. An "Interest-Bearing Account" is an escrow account
that is either (a) a segregated, federally insured, interest
bearing account, or (b) a segregated account in a money market fund
that invests solely in bills, notes or bonds issued by the United
States Department of the Treasury. The particular Interest-Bearing
Account shall be selected in accordance with joint written
instructions from Buyer and Seller. In the absence of such
instructions, the particular Interest-Bearing Account shall be
selected by Closing Agent. Such escrow account, whether selected
by Buyer and Seller or by Closing Agent, shall be maintained under
a name that includes the words "Resolution Trust Corporation Escrow
Account". The interest accruing on the Deposit shall be part of
the Deposit, and all references in this Agreement to the Deposit
shall include the interest thereon. To allocate the interest for
tax purposes, Buyer is stating Buyer's federal tax employer
identification number or social security number, whichever is
applicable, below its signature.
ARTICLE 4. Payment of Purchase Price; Financing.
4.1. The Purchase Price shall be paid at Closing as
follows:
(a) The Deposit shall be credited against the Cash
Portion of the Purchase Price;
(b) Buyer shall deliver to Closing Agent, for the
account of Seller, the balance of the Cash Portion of the Purchase
Price by certified check or cashier's check made payable to Closing
Agent, or by wire transfer of current federal funds into a
separate, federally insured escrow account maintained for such
purpose by Closing Agent;
(c) If Buyer is approved for Seller Financing,
then, at Closing, Buyer shall execute and deliver to Closing Agent
the deferred purchase money loan documents evidencing, governing or
securing such financing in accordance with the provisions of
Section 4.2; and
<PAGE>
(d) If Buyer is approved for Assumable Financing,
then, at Closing, Buyer shall execute and deliver to Closing Agent
such documents as are necessary for Buyer to consummate Buyer's
assumption of such financing.
If no dollar amount of Seller Financing is set forth in Part I, if
no terms and conditions are set forth on Exhibit "B", or if no
dollar amount of Assumable Financing is set forth in Part I, then
the transaction described in this Agreement shall be "all cash".
See also Section 11.1. Furthermore, if Buyer is approved for
Seller Financing or Assumable Financing but fails to execute or
deliver the requisite documents as aforesaid, then the Cash Portion
of the Purchase Price shall be increased to the full Purchase Price
such that the transaction described in this Agreement shall be "all
cash".
4.2. If a dollar amount of Seller Financing is set forth
on Part I, then Buyer shall deliver all of the documents described
in Paragraph 1 of Exhibit "B" to the address shown in Item 10 of
Part I on or before the expiration of the time period set forth in
Item 10 [either simultaneously with execution of this Agreement
(see Item 10 (a) or within the number of days set forth in Item
10(b)]. If Buyer fails to deliver all of the required documents in
a complete form (i) if so required concurrently with the execution
and delivery of this Agreement, then Seller shall be entitled to
reject the offer represented by Buyer's delivery of this Agreement,
or (ii) within the time period specified in Item 10 (b), then the
Cash Portion of the Purchase Price shall be increased to the full
amount of the full Purchase Price such that the transaction
described in this Agreement shall be "all cash". If Buyer is
approved for Seller Financing, then the terms and conditions of
such financing set forth on Exhibit "B" shall apply and the loan
documents pertaining thereto shall be in substantially the form
of Exhibit "B-1".
4.3. If a dollar amount of Assumable Financing is set
forth in Part I, then Buyer shall file, within fifteen (15)
Business Days after the Effective Date, a complete application
seeking to obtain the requisite approvals from the lender(s), to
assume such financing on such terms and conditions as such
lender(s) may require. As part of the foregoing, Buyer shall pay
promptly any fees and other charges required by the holder of the
Assumable Financing to review or process Buyer's application for
such assumption.
<PAGE>
ARTICLE 5. Property Information Materials.
Buyer acknowledges that, prior to Buyer's execution of this
Agreement, Seller delivered to Buyer and Buyer reviewed the
materials and information concerning the Property identified on
Exhibit "C" (collectively, "Property Information Materials").
BUYER ACKNOWLEDGES AND UNDERSTANDS THAT THE PROPERTY INFORMATION
MATERIALS MAY HAVE BEEN PREPARED BY PARTIES OTHER THAN SELLER AND
THAT SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR IMPLIED, AS TO THE COMPLETENESS, CONTENT OR ACCURACY OF THE
PROPERTY INFORMATION MATERIALS. BUYER SPECIFICALLY RELEASES SELLER
FROM ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES
WHETHER SUIT IS INSTITUTED OR NOT) - WHETHER KNOWN OR UNKNOWN,
LIQUIDATED OR CONTINGENT - (COLLECTIVELY, "CLAIMS") ASSERTED
AGAINST OR INCURRED BY BUYER BY REASON OF TEE INFORMATION CONTAINED
IN, OR THAT SHOULD HAVE BEEN CONTAINED IN, THE PROPERTY INFORMATION
MATERIALS; HOWEVER, THE FOREGOING RELEASE SHALL NOT APPLY TO ANY
CLAD RESULTING FROM ANY INTENTIONAL MISSTATEMENTS OR WILLFUL
MISCONDUCT BY SELLER PER SE.
ARTICLE 6. Title.
6.1. Title to the Real Property is to be conveyed to
Buyer at Closing subject to only Permitted Encumbrances.
"Permitted Encumbrances" means any and all (a) matters disclosed by
the Property Information Materials; (b) matters of public record as
of the effective date of the Title Evidence, other than such
mortgages and deeds of trust and other monetary liens as Buyer does
not assume under Section 4.1; (c) matters that would be revealed by
a physical inspection, or a complete and accurate survey, of the
Real Property as of the effective date of the Title Evidence,
whether such an inspection or survey is actually conducted or not;
(d) rights-of-way, easements, and restrictive covenants that do not
materially interfere with the existing use of the Real Property;
(e) zoning and other governmental restrictions; (f) matters common
to any plat or subdivision in which the Real Property is located;
(g) taxes, assessments and other public charges not due as of the
Closing Date; (h) Leases and Contracts not prohibited under Article
8; (i) if applicable, the documents evidencing or securing Seller
Financing under Section 4.1; (j) rights of parties in possession of
all or any portion of the Real Property; (k) rights, reservations,
exceptions, and restrictions contained in federal patents or in
state deeds or imposed under laws providing for the same; and (l)
rights, reservations, and exceptions arising under Indian tribal
codes or regulations, Indian treaties, or aboriginal rights,
including easements and equitable servitudes, whether recorded or
unrecorded. Title to the Real Property is to be insurable, by a
title insurance company selected by Seller, subject to the
Permitted Encumbrances. Buyer's sole right and remedy with respect
to any defects in Seller's title to the Real Property not
constituting Permitted Encumbrances, and with respect to any lack
of insurability of Seller's title, shall be to terminate this
Agreement by giving notice to Seller (with a copy to Closing Agent)
at or prior to Closing. If Buyer duly exercises its right of
termination under this Section 6.1, then Closing Agent is hereby
instructed to return the Deposit to Buyer in accordance with
Exhibit "J" as Buyer's sole remedy. If Buyer fails to exercise its
right of termination under this Section 6.1, then Buyer shall be
required to accept any and all title defects and lack of
insurability, without postponement of the Closing Date or reduction
in the Purchase Price and without any Claim against Seller on
account thereof. "Title Evidence" means such evidence, as to the
title to the Real Property, as is included in the Property
Information Materials.
6.2. SELLER MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, AS TO SELLER'S TITLE TO THE
PERSONAL PROPERTY OR THE INTANGIBLE PROPERTY.
ARTICLE 7. Inspections.
7.1. Buyer acknowledges that Buyer or Buyer's
Representatives have, to their satisfaction (a) inspected the
Confidential Files in Seller's possession, or accurate and complete
copies thereof, and (b) conducted physical tests, inspections, and
other investigations with respect to the Property ("Inspection
Studies"). The "Confidential Files" consist solely of the
following if and to the extent the following exist as of the date
Buyer seeks access thereto: the Intangible Property, Seller's
current operating file for the Property, and such other information
as Seller makes available to Buyer. "Buyer's Representatives" are
any employees, officers, directors, partners, principals, agents,
independent contractors, consultants, attorneys and accountants of
or retained by Buyer with respect to the Property, reviewing this
Agreement, or providing debt or equity financing.
7.2. Buyer shall defend, indemnify and hold harmless
Seller from and against any and all Claims asserted against or
incurred by Seller as a result of the Inspection Studies, including
any injury to or death of persons, or damage to or loss of
property, caused by Buyer or Buyer's Representatives in connection
with the conduct of Inspection Studies.
7.3. Buyer shall promptly deliver to Seller, at no cost
or expense to Seller, copies of any and all environmental
information Buyer has obtained or hereafter obtains with respect to
the Property. If Buyer shall be in default under this Agreement
beyond any applicable cure period, or if this Agreement shall be
terminated in accordance with its terms, then Buyer shall promptly
deliver to Seller, at no cost or expense to Seller, copies of any
and all Inspection Studies obtained by Buyer.
7.4. (a) If, after the date hereof but prior to the
completion of the Closing, Buyer discovers any Environmental Risk
that is not fully disclosed in the Property Information Materials
or in any Environmental Remediation Agreement being entered into
simultaneously herewith, then, in each instance within five (5)
Business Days after such discovery, Buyer shall so notify Seller in
writing with as much information as Buyer then has with respect to
that Environmental Risk. If Seller receives such a notice, or
otherwise acquires notice prior to the completion of Closing that
an undisclosed Environmental Risk exists or that a disclosed
Environmental Risk is more severe than disclosed, and Seller deems
that Environmental Risk to require further studies under the
policies or procedures of the Resolution Trust Corporation, then
(i) Seller shall obtain such studies to determine the extent of
that Environmental Risk, including the scope of work necessary to
remediate that Environmental Risk to the extent Seller deems
appropriate under the policies and procedures of the Resolution
Trust Corporation and the estimated cost of performing that work;
and (ii) the Closing Date shall be extended for such period as
Seller may require, under Seller's procedures, to obtain those
studies, but in no event for more than nine (9) months. If Seller
does not thus determine the extent of that Environmental Risk,
scope of work and estimated cost within that nine (9)-month period,
then this Agreement shall thereupon automatically terminate and
Buyer's sole remedy shall be to receive the Deposit in accordance
with "Exhibit J". If Seller does thus determine the extent of that
Environmental Risk, scope of work and estimated cost within that
nine (9)-month period, then
(i) if that estimated cost is five percent
(5%) or less of the Purchase Price, Seller and Buyer shall enter
into an Environmental Remediation Agreement in the form of Exhibit
L" with respect thereto and the Purchase Price shall be reduced by
the aunt of that cost (e.g. there shall be no further reduction in
the Purchase Price, even if the actual cost of the subject
Remediation Action turns out to be more than the estimated cost
thereof determined by Seller under the foregoing provisions);
(ii) if that estimated cost is more than
five percent (5%) of the Purchase Price, this Agreement shall
thereupon automatically terminate and Buyer's sole remedy shall be
to receive the Deposit in accordance with "Exhibit J"; or
<PAGE>
(iii) if Seller performs that remediation work
within that nine (9)-month period, Closing shall proceed hereunder
without any reduction of the Purchase Price.
(b) Buyer shall not disclose any information
concerning an actual or possible Environmental Risk without
Seller's specific prior written approval in each instance, except
in confidence to Buyer's engineers and attorneys in connection with
this Agreement.
(c) An "Environmental Risk" consists of only (i)
the presence of any friable, damaged asbestos upon the Property;
and/or (ii) the release or discharge of any "hazardous substance"
or "hazardous waste" (as defined by any Environmental Laws) onto or
from the Property of such a nature or to such an extent as to
require clean-up under applicable law.
7.5. SELLER MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE COMPLETENESS, CONTENT OR
ACCURACY OF THE PROPERTY INFORMATION MATERIALS, THE CONFIDENTIAL
FILES, OR ANY ENVIRONMENTAL STUDIES SELLER PERFORMS OR OBTAINS.
ARTICLE 8. Interim Action.
The following shall apply with respect to the period from the
Effective Date until the Closing Date:
8.1. Leases. Seller shall not, without the prior consent
of Buyer in each instance (such consent not to be unreasonably
withheld or delayed) (a) amend or (except for material breach,
including non-payment of rent or other sums due) terminate any
lease, tenancy, license or other right of occupancy or use for any
portion of the Property or any assignment or sublet thereunder
(individually, "Lease"; collectively, "Leases"); (b) consent to the
assignment of any Leases or subleasing of any of the premises; or
(c) enter into any new Lease of the Property or any portion
thereof. If Seller desires to take any action described in clause
(a), (b), or (c) of the immediately preceding sentence, then Seller
shall so notify Buyer. If Buyer fails to notify Seller, within
five (5) Business Days after Buyer's receipt of such notice, of any
objection Buyer has hereunder to any action described therein, then
Buyer shall be treated as having consented to such action. If
Buyer consents, or is required to consent, to any action described
in Seller's notice, then at Closing Buyer shall reimburse Seller
for Buyer's proportionate share of the costs incurred by Seller in
connection with such action. For the foregoing purposes, that
proportionate share shall be determined, in each instance, by
amortizing those costs on a straight-line basis over the term of
the applicable Lease. Buyer's proportionate share shall be the
portion of such costs attributable, pursuant to such amortization,
to the period from the Closing Date until the end of the term of
the applicable Lease. Such costs shall include costs of fixturing,
renovating or improving the leased premises, any rebate, free rent
and other concessions, and any brokerage and leasing commissions
and other compensation due any party in connection with such
Leases.
8.2. Contracts. Seller shall not, without the prior
consent of Buyer in each instance (such consent not to be
unreasonably withheld or delayed), enter into any commitment,
contract, option or other agreement of any kind with respect to the
repair or operation of the Property (collectively, "Contracts"),
unless such Contracts have terms that expire prior to Closing or
are terminable on not more than sixty (60) days' notice.
8.3. Personal Property Substitutions. Seller may remove
any item theretofore included in the Personal Property provided
that Seller substitutes therefore an item of like kind and
comparable fair market value.
8.4. Continued Operation. If the Property is being
operated on the date Buyer executes and delivers to Seller this
Agreement, then, subject to the foregoing provisions of this
Article and the other provisions of this Agreement, Seller shall
continue to operate the Property, or to cause the Property to be
operated, in substantially the same manner, except to the extent
Seller is prevented from doing so by causes beyond Seller's
reasonable control.
ARTICLE 9. Representations and Warranties.
9.1. Seller's Representations and Warranties. Seller
represents and warrants to Buyer that, as of the Effective Date,
each of the persons executing this Agreement on behalf of Seller is
duly authorized to do so, Seller has full right and authority to
enter into this Agreement and to consummate the transaction
described in this Agreement, and this Agreement constitutes the
valid and legally binding obligation of Seller, and is enforceable
against Seller in accordance with its terms, subject to applicable
law.
9.2. Buyer's Representations and Warranties. Buyer
represents and warrants to Seller that the following are true,
accurate and complete as of the Effective Date:
(a) Organization. If Buyer is a corporation,
partnership, limited liability company, trust, or other type of
business organization, then Buyer is duly (i) organized, validly
existing and in good standing under the laws of the state in which
it was organized, and (ii) qualified to do business in the
jurisdiction in which the Real Property is located.
(b) Authority. Each of the persons executing this
Agreement on behalf of Buyer is duly authorized to do so. Buyer
has full right and authority to enter into this Agreement and to
consummate the transaction described in this Agreement. This
Agreement constitutes the valid and legally binding obligation of
Buyer and is enforceable against Buyer in accordance with its
terms. Neither the execution or delivery of this Agreement nor the
performance of Buyer's obligations under this Agreement violates,
or will violate, any contract or agreement to which Buyer is a
party or by which Buyer is otherwise bound.
(c) Litigation. There are no actions, suits,
Claims or other proceedings (collectively, "Litigation") pending
or, to the best of Buyer's knowledge, contemplated or threatened
against Buyer that could affect Buyer's ability to perform its
obligations when and as required under the terms of this Agreement.
(d) Financial Ability. Buyer has sufficient
funds available to it to fund the payment of the Cash Portion of
the Purchase Price at Closing.
ARTICLE 10. Condition of Property; Disclaimer; Release of
Claims.
10.1. THE PROPERTY IS BEING SOLD "AS IS", "WHERE IS", AND
"WITH ALL FAULTS" AS OF CLOSING, WITHOUT ANY REPRESENTATION OR
WARRANTY WHATSOEVER AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR
PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED,
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. SELLER
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING
THE PROPERTY, EXCEPT AS SPECIFICALLY SET FORTh IN THIS AGREEMENT.
BUYER ACKNOWLEDGES THAT BUYER IS PURCHASING THE PROPERTY BASED
SOLELY UPON BUYER'S OWN INDEPENDENT INVESTIGATIONS AND FINDINGS AND
NOT IN RELIANCE UPON ANY INFORMATION PROVIDED BY SELLER OR SELLER'S
AGENTS OR CONTRACTORS, EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT. WITHOUT LIMITING THE FOREGOING, BUYER ACKNOWLEDGES THAT
SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE
PROPERTY. NONE OF THE INFORMATION SET FORTH IN THE PROPERTY
INFORMATION MATERIALS, THE CONFIDENTIAL FILES OR ANY OTHER
MATERIALS SUPPLIED BY SELLER ENCOMPASSES CONCLUSIONS OF LAW;
RATHER, THAT INFORMATION IS SUBJECT TO THE OPERATION AND EFFECT OF
ALL APPLICABLE LAWS AND LEGAL CONSEQUENCES AND TO THE LEGAL RIGHTS
OF ALL PERSONS AND ENTITIES INVOLVED. FURTHERMORE, SELLER MAKES NO
REPRESENTATION OR WARRANTY THAT THERE HAS BEEN ANY IMPLEMENTATION
OF ANY PROPOSALS (INCLUDING BUDGETS) SET FORTH IN THE PROPERTY
INFORMATION MATERIALS, THE CONFIDENTIAL FILES OR ANY OTHER
INFORMATION SUPPLIED BY SELLER.<PAGE>
10.2. Without limiting the provisions of Section 10.1,
Buyer releases Seller from any and all Claims (whether known or
unknown, and whether contingent or liquidated) arising from or
related to (a) any defects, errors or omissions in the design or
construction of the Property, whether the same are a result of
negligence or otherwise; or (b) other conditions (including
environmental conditions) affecting the Property, whether the same
are a result of negligence or otherwise. The release set forth in
this Section specifically includes any Claims under any
Environmental Laws, under the Americans with Disabilities Act of
1990, 42 U.S.C. +SEC +SEC 12101 et seq., or with respect to any
Environmental Risk. "Environmental Laws" includes, but is not
limited to, the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act (42 U.S.C. +SEC +SEC 6901 et
seq.), the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. +SEC +SEC 9601 et seq.), the
Emergency Planning and Community Right to Know Act (42 U.S.C. +SEC
+SEC 11001 et seq.), the Clean Air Act (42 U.S.C. +SEC +SEC 7401 et
seq.), the Clean Water Act (33 U.S.C. +SEC +SEC 1251 et seq.), the
Toxic Substances Control Act (15 U.S.C. +SEC +SEC 2601 et seq.),
the hazardous Materials Transportation Act (49 U.S.C. +SEC +SEC
1801 et seq.), the Occupational Safety and Health Act (29 U.S.C.
+SEC +SEC 651 et seq.), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. +SEC +SEC 136 et seq.), and the Safe
Drinking Water Act (42 U.S.C. +SEC +SEC 300f et seq.), as any of
the same may be amended from time to time, and any state or local
law dealing with environmental matters, and any regulations,
orders, rules, procedures, guidelines and the like promulgated in
connection therewith, regardless of whether the same are in
existence on the date of this Agreement.
ARTICLE 11. Conditions Precedent to Closing.
11.1. Conditions Benefitting Buyer. If a dollar amount of
Seller Financing or Assumable Financing is set forth in Part I,
then the obligations of Buyer under Articles 12 and 13 are subject
to the satisfaction, as of the Closing Date, of the following
condition, as applicable:
(a) Seller shall have approved Buyer for Seller
Financing in the respective amount set forth in Part
I, or
(b) The lender(s) of the Assumable Financing shall have
approved Buyer for the Assumable Financing in the
respective count set forth in Part I less any
principal reduction thereof paid or anticipated to be
paid in the ordinary course of debt service on or before
the Closing Date.
If Buyer shall have timely filed all required applications together
with all documents required thereby in a completed form and all
other documents required in connection with the underwriting of the
application for Seller Financing or Assumable Financing, and shall
have exercised reasonable efforts to obtain such approval but
Seller or the lender(s) of the Assumable Financing as the case may
be shall disapprove Buyer for such financing prior to the Closing
Date, then Buyer shall have the right, exercisable only by giving
notice to Seller (with a copy to Closing Agent) within five (5)
Business Days after the date of Seller's or such lender(s)' written
notification of such disapproval (but in no event after the Closing
Date), to terminate this Agreement. If Buyer shall have timely
filed all required applications together with all documents
required thereby and all other documents required in connection
with the underwriting of the application for Seller Financing or
Assumable Financing in a completed form and shall have exercised
reasonable efforts to obtain such approval but Seller or such
lender(s) as the case may be shall neither approve nor disapprove
Buyer for such financing by the Closing Date, then Buyer shall have
the right, exercisable only by giving notice to Seller (with a copy
to Closing Agent) on the Closing Date, to terminate this Agreement.
If Buyer duly exercises that right, then Buyer's sole remedy shall
be to receive the Deposit in accordance with Exhibit "J". However,
if Buyer shall not have exercised reasonable efforts to obtain such
approval or if Buyer does not duly exercise such right to
terminate, then the foregoing condition shall be treated as
satisfied and the Cash Portion of the Purchase Price shall be
increased to the full Purchase Price such that the transaction
described in this Agreement shall be "all cash". Seller makes no
representation or warranty as to whether Seller shall approve the
Seller Financing or as to whether Buyer shall be permitted to
assume all or part of the Assumable Financing. If Seller approves
Buyer for Seller Financing subject to Buyer fulfilling such
additional conditions as may be set forth in writing in Seller's
letter of conditional approval, then Buyer shall have the right,
exercisable only by giving notice to Seller (with a copy to Closing
Agent) within five (5) Business Days after the date of Seller's
conditional approval, to terminate this Agreement. If Buyer duly
exercises that right, then Buyer's sole remedy shall be to receive
the Deposit in accordance with Exhibit "J". If Buyer fails to duly
exercise such right to terminate, then Buyer shall be required to
satisfy such conditions and if Buyer fails to do so within the time
specified in Seller's letter of conditional approval, then the Cash
Portion of the Purchase Price shall be increased to the full amount
of the full Purchase Price such that the transaction described in
this Agreement shall be "all cash".
<PAGE>
11.2. Conditions Benefitting Seller. The obligations of
Seller under Articles 12 and 13 are subject to the satisfaction, as
of the Closing Date, of the conditions that (a) neither Buyer nor
any of Buyer's Affiliates shall be in receivership or dissolution,
(b) neither Buyer nor any of Buyer's Affiliates shall have made an
assignment for the benefit of creditors or admitted in writing its
inability to pay its debts as they mature, (c) neither Buyer nor
any of Buyer's Affiliates shall have been adjudicated a bankrupt or
filed a petition in voluntary bankruptcy or a petition or answer
seeking reorganization or an arrangement with creditors under the
Federal bankruptcy law or any other similar law or statute of the
United States or any jurisdiction and no such petition shall have
been filed against Buyer or any of its general partner(s), if any,
and (d) Buyer can truthfully execute and deliver to Seller
affidavit(s) and certification(s) in the form(s) included in
Exhibit "I". if any of the conditions set forth in this Section
11.2 is not satisfied as of the Closing Date, then Seller shall
have the right, exercisable only by giving notice to Buyer (with a
copy to Closing Agent), to terminate this Agreement. If Seller
duly exercises that right, then Buyer's sole remedy shall be to
receive the Deposit in accordance with Exhibit "J". Buyer shall
give Seller prompt and detailed notice of any circumstance, actual
or threatened, that may prevent the satisfaction of the condition
set forth in this Section 11.2. "Affiliate" means any person or
entity who or which Controls or is Controlled by the party in
question, or is Controlled by the same persons or entities as the
party in question. "Control" means (a) being a director or officer
of the subject corporation, a general partner of the subject
partnership, a managing shareholder of the subject limited
liability company, or a trustee or beneficiary of the subject
trust; (b) owning or controlling, directly or indirectly, any
equity or beneficial interest in the subject corporation,
partnership, limited liability company, trust, or other type of
business organization if the entity described in this clause (b) is
not Publicly Held; or (c) owning or controlling, directly or
indirectly, more than five percent (5%) of the equity or beneficial
interest in the subject corporation, partnership, limited liability
company, trust, or other type of business organization if the
entity described in this clause (c) is Publicly Held. A "Publicly
Held" corporation, partnership, limited liability company, trust,
or other type of business organization is one in which there are
more than one hundred (100) shareholders, partners, beneficiaries,
or other equitable or beneficial owners.
ARTICLE 12. Closing; Deliveries at Closing.
12.1. The closing of the transaction described in this
Agreement ("Closing") shall take place at the offices of Closing
Agent (or such other location on which Seller and Buyer may agree)
at 10:00 a.m. (local time at the place of Closing) on the Closing
Date.
12.2. At Closing, Seller shall deliver to Closing Agent
the following (duly executed by or on behalf of Seller and, if
appropriate, acknowledged or notarized):
(a) A notice, in substantially the form of Exhibit "E"
or such other form as may be required by applicable law, for each
tenant (if any) of the Real Property ("Notice to Tenants");
(b) A special warranty deed in substantially the form of
Exhibit "F" ("Deed");
(c) A bill of sale in substantially the form of Exhibit
"G" ("Bill of Sale");
(d) An Assignment and Assumption Agreement in
substantially the form of Exhibit "H" ("Assignment and Assumption
Agreement");
(e) An affidavit, in a form acceptable to Seller and in
favor of the Title Company, Closing Agent and Buyer, with respect
to (i) compliance with the Foreign Investment in Real Property Tax
Act (Internal Revenue Code +SEC 1445, as amended, and the
regulations issued thereunder), (ii) the elimination of any
standard or printed exceptions in Buyer's final policy of title
insurance for unfiled mechanics' liens, and (iii) Seller's
authority to sell and convey the Property in accordance with this
Agreement; and
(f) If applicable, the Environmental Remediation
Agreement and the Remediation Escrow Agreement.
At Closing, Seller shall tender to Buyer (a) possession of the Real
Property and the Personal Property free and clear of all parties in
possession, except under the Permitted Encumbrances or any other
matter Buyer is required to accept under Section 6.1, and (b) all
codes for the security devices (if any) of Seller upon the
Property. Seller shall also make available to Buyer at the
Property on the Closing Date (a) all keys in Seller's possession to
the Property and copies of all books and records in Seller's
possession necessary for the orderly transition of operation of the
Property, and (b) all Leases, Contracts, Permits and other
documents in Seller's possession constituting the Intangible
Property.
12.3. At Closing, Buyer shall deliver to Closing Agent the
following (duly executed by Buyer and, if appropriate, acknowledged
or notarized):
<PAGE>
(a) Written instructions to Closing Agent to release the
Deposit for disbursement to Seller;
(b) The balance of the Cash Portion of the Purchase
Price and other funds sufficient to pay all Closing and other costs
and all adjustments required to be paid by Buyer under this
Agreement;
(c) If Buyer is a corporation, partnership, limited
liability company, trust, or other type of business organization,
then a corporate, partnership, or similar organizational
resolution, an incumbency certificate to evidence Buyer's capacity
and authority to consummate Closing, and a certified copy of
Buyer's articles of incorporation and bylaws, articles of
organization and operating agreement, partnership agreement and
certificate, trust agreement, or other organizational documents,
including all amendments thereto; and, in all instances regardless
of Buyer's organizational structure, all other documents reasonably
requested by Title Company, Closing Agent or Seller;
(d) The Notice to Tenants;
(e) The Bill of Sale;
(f) The Assignment and Assumption Agreement;
(g) Affidavit(s) and certification(s) in the form(s)
included in Exhibit "I" and dated as of the Closing Date [however,
if Buyer cannot truthfully deliver such affidavit(s) or
certification(s), then Seller's remedies with respect to such
failure shall be only those stated in Section 11.2];
(h) If applicable, all documents evidencing, governing or
securing the Seller Financing or Buyer's assumption of the
Assumable Financing in accordance with Section 4.1; and
(i) If applicable, the Environmental Remediation
Agreement and the Remediation Escrow Agreement.
12.4. At Closing, Seller and Buyer shall each execute and
deliver all other documents reasonably necessary to consummate the
transaction described in this Agreement, including a closing
statement setting forth the charges, adjustments and credits to
each party.
12.5. At Closing, Closing Agent shall record, among all of
the appropriate public records, all documents to be recorded,
disburse all funds, and deliver all original documents and copies
thereof, in accordance with the local custom then prevailing in the<PAGE>
jurisdiction in which Closing occurs; provided, however, that
disbursement of the funds due Seller shall be made no later than
immediately after the deed is accepted by the applicable
governmental authorities for recordation. Promptly after Closing,
Buyer shall give each tenant of the Real Property a Notice to
Tenants.
12.6. If Seller has agreed to provide Seller Financing and
Buyer is entitled to a reduction in the Purchase Price under the
terms of this Agreement, then the amount of that reduction shall be
applied pro-rata against the Cash Portion of the Purchase Price and
the Seller Financing.
ARTICLE 13. Costs, Taxes and Adjustments.
13.1. At Closing, Seller shall pay (a) the costs of
releasing all liens, judgments and other encumbrances that are to
be released and of recording such releases, (b) one-half of the
fees and costs due Closing Agent for its services, and (c) all
other costs to be paid by Seller under the provisions of this
Agreement. Seller shall be responsible for the payment of its own
attorneys' fees, except that, if there is Seller Financing, Buyer
shall be responsible for the payment of all of Seller's attorneys'
fees incurred in connection with that Seller Financing.
13.2. At Closing, Buyer shall pay (a) all costs of
securing Seller Financing or other financing for the purchase of
the Property, including preparation of all documentation relating
thereto, (b) one-half of the fees and costs due Closing Agent for
its services, (c) all other costs to be paid by Buyer under the
provisions of this Agreement, and (d) all other costs connected
with Closing except as otherwise provided in Section 13.1 or 13.3.
Buyer shall be responsible for the payment of its own attorneys'
fees.
13.3. The cost of all grantor, grantee, transfer,
recordation, documentary, deed, sales, and similar taxes, stamps
and charges, title examination and the issuance of a title
insurance policy, and all other costs of Closing shall be paid by
Seller or Buyer in accordance with the custom or statutory
requirements in effect in the jurisdiction in which the Real
Property is located as of the Effective Date. Seller and Buyer
shall specify, in Part I, their agreement as to such custom and
requirements with regard to the allocation of such costs between
them. If, however, Part I does not address one or more of such
costs (other than income taxes) necessary to consummate Closing,
then such costs shall be paid one-half (1/2) by Seller and one-half
(1/2) by Buyer. However, if Seller is providing Seller Financing
<PAGE>
and any of the foregoing provisions or anything completed in Part
I is inconsistent with any of the provisions of Exhibit "B", then
the provisions of Exhibit "B" shall control.
13.4. Subject to the following provisions and without
affecting the Purchase Price, all items of income (including,
without limitation, rents) and expense relating to the Property
shall be apportioned between Buyer and Seller on an accrual basis,
as of 12:01 a.m. (local time at the Real Property) on the Closing
Date (the "Adjustment Time"), in the form of a cash payment by or
credit to Buyer at Closing (it being understood and agreed that
none of said items is included within the Purchase Price):
(a) Seller and Buyer shall attempt to have all service
contracts that affect the Property and for which the charges are
based upon usage (including utilities) billed or read as of a time
as close to the Adjustment Time as is reasonable. If a precise
billing or reading as of the Adjustment Time is not available at
Closing with respect to such a service contract, then the foregoing
adjustment shall be made with respect to that contract as follows:
(i) the charges under that contract shall be adjusted
preliminarily, by payment or credit at Closing, by pro-rating to
the Adjustment Time from the latest billing or reading then
available, and (ii) such charges shall be adjusted finally, under
the following provisions, by pro-rating to the Adjustment Time from
that billing or reading and from the first billing or reading with
respect to such contract subsequent to the Closing Date.
(b) Buyer shall not be liable for any salaries, wages,
welfare or pension fund contributions, social security payments,
withholding tax payments, bonuses, vacation pay, or other monetary
benefits that shall have been earned or accrued prior to the
Adjustment Time by any employee of Seller, even if such employee is
retained or hired by Buyer. However, Buyer shall be liable for the
other benefits of such employees retained or hired by Buyer.
(c) Seller and Buyer shall take an inventory of any and
all usable supplies (such as fuel and light bulbs) that are located
upon the Property as of the Adjustment Time and owned by Seller.
Buyer shall purchase those supplies from Seller at Closing for the
fair market value thereof.
(d) Real estate taxes and assessments, personal property
taxes, water or sewer charges not based upon consumption, and other
governmental charges based upon the Property per se (collectively,
"Taxes") shall be adjusted on an accrual basis regardless of when
the same are due and payable. If the amount of any Taxes for an
Accounting Period in which the Adjustment Time occurs is not
available at Closing, then (i) such Taxes shall be adjusted
preliminarily, by payment or credit at Closing, based upon the
amount thereof for the then immediately preceding Accounting
Period, and (ii) such Taxes shall be adjusted finally, under the<PAGE>
following provisions, once the amount thereof becomes available for
the Accounting Period in which the Adjustment Time occurs. All
assessments for public improvements shall be adjusted as aforesaid
with respect to the period of time over which such assessments are
then being paid (e.g. such assessments shall not be prepaid). If
after Closing Buyer receives a refund of Taxes attributable in
whole or in part to a period prior to the Adjustment Time, then
Buyer shall, within ten (10) days after such receipt, pay Seller
the portion thereof attributable to the period prior to the
Adjustment Time, less the reasonable attorneys fees and other costs
of collecting that refund (if any) paid by Buyer to third parties.
(e) Seller shall be credited at Closing with the amount
of any and all deposits held on behalf of Seller by utility
companies with respect to the Property.
(f) If any Lease calls for the tenant to pay to Seller
percentage rent (i.e., rent based upon the tenant's sales and/or
other receipts), or any building operating expenses, common area
charges, insurance premiums, real estate taxes, utility charges, or
other similar expenses, then (i) Seller shall be entitled to its
Pro-Rata Share of such amounts payable by the tenant for the
Accounting Period(s) in which the Adjustment Time occurs,
regardless of when such amounts are billed to or payable by the
tenant, and (ii) Buyer shall be entitled to the balance of such
amounts payable by the tenant for that Accounting Period(s). The
adjustments under this Section 13.4(f) shall be made by payment or
credit at Closing to the extent that the tenant shall have
theretofore paid such amounts to Seller.
(g) Buyer shall be credited at Closing with an amount
equal to, and Seller may therefore retain, any and all refundable
deposits paid by tenants and contractors (and required interest on
those deposits, if any) under the Leases and Contracts in effect as
of the Closing Date (collectively, "Tenant's Deposits") then in
Seller's possession (however, under the Assignment and Assumption
Agreement, Buyer shall assume liability for all Tenants' Deposits,
whether in Seller's possession or not). Notwithstanding the
foregoing, if and to the extent required by applicable law, Seller
shall quitclaim unto Buyer at Closing the Tenants' Deposits as
provided in Exhibit "H", in which event (i) Buyer shall not receive
a credit for any such Tenants' Deposits so quitclaimed to Buyer,
and (ii) Buyer shall still assume liability for all Tenants'
Deposits as aforesaid.
<PAGE>
(h) Seller shall be liable for any and all brokerage or
leasing commissions and similar compensation due any party in
connection with the Leases assumed by Buyer at Closing, except (i)
as otherwise provided in Article 8; (ii) such commissions and other
compensation as may be due in connection with the exercise, after
Closing, of any extension, renewal, expansion or purchase rights or
options contained in those Leases or entered into in connection
with those Leases; and (iii) such commissions and other
compensation as may be due in connection with any amendments or new
Leases entered into after Closing.
Except as otherwise provided in the foregoing provisions of this
Section 13.4, if the amount of any item to be adjusted is not
available at Closing or if an item of income or expense arises or
becomes known after Closing that relates to the period before the
Adjustment Time, then the foregoing adjustment shall be made with
respect thereto by payment by Buyer or Seller, as applicable,
promptly after the amount thereof becomes available or known.
13.5. Unpaid rents and other accounts receivable shall not
be purchased by Buyer, but shall be allocated in kind under Section
13.4. After Closing, Buyer shall exercise reasonable efforts to
collect, from present and former tenants and licensees under Leases
(in each instance, a "Tenant") any and all amounts that are payable
to Seller under the foregoing provisions; however, Buyer shall not
be required to institute any litigation or to incur any attorneys
fees to collect those amounts. If after Closing Buyer receives any
payment of a type described in Section 13.4(f) with respect to any
portion of an Accounting Period in which the Adjustment Time shall
have occurred, then Buyer shall, within five (5) Business Days
after that receipt, pay Seller (a) Seller's Pro-Rata Share of that
payment, less (b) the reasonable attorneys fees and other costs of
collecting that payment (if any) paid by Buyer to third parties. If
after Closing Buyer receives any other payment from any Tenant over
and above what is then owed to Buyer by the Tenant, then Buyer
shall, within five (5) Business Days after that receipt, pay Seller
(a) so much of the excess as is equal to the amount then due Seller
with respect to that Tenant under the foregoing provisions, less
(b) the reasonable attorneys fees and other costs of collecting
that payment (if any) paid by Buyer to third parties. Seller may
also take action independently to collect amounts due Seller from
Tenants to the extent Seller is entitled to such amounts under the
foregoing provisions; at Seller's request and expense, Buyer shall
cooperate with such independent actions of Seller. Seller's "Pro-
Rata Share" is a fraction, the numerator of which is the number of
days from the beginning of the applicable Accounting Period to the
Adjustment Time, and the denominator of which is the number of days
<PAGE>
during the applicable Accounting Period. An "Accounting Period" is
the period for or over which the applicable sales, charge or other
amount is measured or assessed.
13.6. Buyer shall be responsible for the transfer or
acquisition of accounts and licenses regarding the Property, and
the establishment of all utility services to the Property in the
name of Buyer as of Closing. Seller shall cooperate with Buyer in
this regard at Buyer's expense. However, such transfers or
acquisitions shall not be a condition or requirement of Closing.
ARTICLE 14. Default.
14.1. Buyer's Default.
(a) If Buyer fails to perform one or more of its
obligations under Article 12 or 13 that are to be performed at
Closing, then Seller's sole remedy for such failure shall be to
terminate this Agreement by giving notice of such termination to
Buyer (with a copy to Closing Agent) and receive the Deposit as
liquidated damages. If Seller does so terminate this Agreement,
then Closing Agent shall pay the Deposit to Seller in accordance
with Exhibit "J".
(b) If Buyer is in default of one or more of Buyer's
obligations under this Agreement other than those described in
Section 14.1(a), then Seller may give notice to Buyer (with a copy
to Closing Agent) specifying the nature of the default. Buyer
shall have thirty (30) days after receiving that notice, but in no
event beyond the Closing Date, within which to cure that default.
If Buyer fails to cure that default within that period, then
Seller's sole remedy for such default shall be to terminate this
Agreement by giving notice of such termination to Buyer (with a
copy to Closing Agent) and receive the Deposit as liquidated
damages. If Seller does so terminate this Agreement, then Closing
Agent shall pay the Deposit to Seller in accordance with Exhibit
"J"
(c) SELLER AND BUYER AGREE THAT PAYMENT OF THE DEPOSIT
TO SELLER UNDER THIS SECTION 14.1 SHALL BE AS LIQUIDATED DAMAGES
AND NOT AS A PENALTY. Buyer is directed to the provisions of
Article 27 concerning such payment of the Deposit.
14.2. Seller's Default.
(a) If Seller is in default of Seller's obligations
under this Agreement, then, in order to have any rights or remedies
with respect thereto, Buyer shall give notice specifying the
default to Seller (with a copy to Closing Agent) within five (5)<PAGE>
Business Days after such default occurs. Seller shall have thirty
(30) days after receiving that notice within which to cure the
default; however, if at the end of that thirty (30)-day period
Seller is diligently pursuing such cure but the default still has
not been cured, then Seller shall have an additional thirty (30)-
day period within which to cure the default. If Seller fails to
cure the default within the applicable period, then Buyer shall
have the right, exercisable only by giving notice to Seller (with
a copy to Closing Agent) within five (5) Business Days after the
applicable period, to terminate this Agreement. Nevertheless no
notice of termination given by Buyer hereunder shall be of any
force or effect if Seller cures the default before Seller receives
that notice. Furthermore, if Seller's default is a failure to
attend or consummate Closing, then the notice of termination given
by Buyer hereunder with respect thereto shall not be of any force
or effect unless (i) Buyer shall have performed all of Buyer's
obligations under this Agreement, be ready, willing and able to
proceed with Closing, and tender payment in accordance with the
provisions of this Agreement; (ii) all conditions to Seller's
obligation to proceed with Closing shall have been satisfied; and
(iii) Seller shall fail or refuse to close as required by the terms
of this Agreement.
(b) If Buyer duly gives Seller a notice of termination
hereunder and such notice is effective, then Buyer's sole remedy
shall be (i) to cause Closing Agent to return the Deposit to Buyer
in accordance with Exhibit "J", and (ii) except as limited herein,
to request reimbursement from Seller of the reasonable out-of-
pocket expenses incurred by Buyer solely in connection with this
Agreement from the Effective Date until notice of Seller's default.
If within thirty (30) days after Buyer's request for reimbursement
as aforesaid, Seller and Buyer fail to agree upon the amount of
such expenses, then Buyer shall have a right to bring an action
against Seller to recover same. Buyer expressly agrees that Buyer
shall not have the right to seek or recover any additional sums or
amounts, including but not limited to fees, costs, expenses, or
damages or any kind or nature whatsoever. Buyer specifically
waives any and all right (i) to file or record any lis pendens or
any other lien or encumbrance against the Property, (ii) to
specific performance or other equitable relief, or (iii) to
consequential or punitive damages.
(c) If Buyer does not duly notify Seller of the default
or does not duly give Seller a notice of termination hereunder,
then (i) the default shall be treated as waived by Buyer, and (ii)
at Closing (if any), Buyer shall accept the Property subject to the
default without any reduction in the Purchase Price and without any
Claims against Seller on account of the default.
<PAGE>
(d) If Seller timely cures the default or if the
default is treated as waived, then the Closing Date shall be the
later of a date selected by Seller [which date shall be within
thirty (30) days after such cure or waiver] or the date that would
otherwise be the Closing Date under the terms of this Agreement.
14.3. Attendance at Closing. Neither Buyer's nor Seller's
attendance or appearance at Closing shall affect the foregoing
provisions of this Article.
14.4. Attorneys' Fees. Attorneys' fees and costs incurred
by any party seeking to enforce the provisions of this Agreement
(whether incurred in preparation for or in pursuit of litigation,
or both) shall be paid by the losing party.
ARTICLE 15. Liability of Seller and Related Persons.
Notwithstanding any provisions to the contrary contained in
this Agreement, Seller shall have no personal liability with regard
to this Agreement or the transaction described in this Agreement.
If Buyer asserts any Claim arising out of or in connection with
this Agreement or the transaction described in this Agreement,
Buyer's sole recourse shall be to (a) the estate and interest of
Seller in and to the Property, and (b) the proceeds of a sale of
all or part of that estate or interest. No other properties or
assets of Seller shall be subject to levy, attachment, execution or
other enforcement procedures for the satisfaction of any judgment
(or other judicial process) or for the satisfaction of any other
remedy of Buyer arising out of or in connection with this Agreement
or the transaction described in this Agreement. Neither the
Resolution Trust Corporation in its corporate or any other capacity
nor any of its or Seller's employees, officers, directors, agents,
contractors or affiliates shall have any liability or obligation
whatsoever in connection with this Agreement.
ARTiCLE 16. Condemnation.
16.1. If Seller has or obtains actual knowledge of any
pending or threatened condemnation proceedings or actions, then
Seller shall notify Buyer promptly. If on or prior to the Closing
Date any portion of the Property shall be taken or condemned
pursuant to any governmental or other power of eminent domain, any
written notice of such a taking or condemnation shall be issued by
any governmental authority having the power of eminent domain, or
any proceeding for such a taking or condemnation shall be
instituted by any governmental authority having the power of
eminent domain (collectively, "Taking") and as a result thereof
Buyer would be substantially prevented from continuing the existing
use of the Property, then Buyer shall have the right, exercisable <PAGE>
only by giving notice to Seller (with a copy to Closing Agent)
within fifteen (15) days after receiving Seller's notice of the
Taking, to terminate this Agreement. If Buyer duly exercises
that right, then Buyer's sole remedy shall be to receive the
Deposit in accordance with Exhibit "J". If Buyer does not duly
exercise that right, then Buyer shall have no further right to
object to the Taking. If Buyer shall not have the right to
terminate this Agreement under the foregoing provisions of this
Section on account of a Taking or if Buyer shall have waived any
objection (or shall have no further right to object) to a Taking
under those provisions, then, at Closing (a) Buyer shall accept the
Property subject to the Taking, (b) the Purchase Price shall be
reduced by the amount of any award theretofore received by Seller
with respect to the Taking, and (c) Seller shall assign to Buyer
all of Seller's rights to any and all awards not theretofore made
or paid with respect to the Taking. If Seller is providing Seller
Financing, then that reduction in the Purchase Price may, at
Seller's election, be effectuated by requiring Buyer to enter into
a Capital Improvement Escrow Agreement (on the RTC form described
in Exhibit "B-1") and to deposit the amount of that reduction in an
escrow account under that Agreement instead of paying it to Seller.
16.2 Notwithstanding the foregoing provisions of this
Article, (a) if there is a Taking and there is Seller Financing,
then Seller shall have the right, exercisable only by giving notice
to Buyer (with a copy to Closing Agent) within fifteen (15) days
after the date of Seller's notice of the Taking, to terminate this
Agreement, and (b) if the amount of the award that is payable or
reasonably anticipated on account of a Taking exceeds the Purchase
Price, then Seller shall have the right, exercisable only by giving
notice to Buyer (with a copy to Closing Agent) within fifteen (15)
days after Seller is notified of that amount or anticipated amount,
to terminate this Agreement. If Seller duly exercises that right,
then Buyer's sole remedy shall be to receive the Deposit in
accordance with Exhibit "J".
16.3. If a period described in the foregoing provisions of
this Article 16 becomes applicable and the Closing Date would
otherwise occur during such period, then the Closing Date shall be
extended to be a date selected by Seller. Such new Closing Date
shall be within thirty (30) days after the applicable period(s).
ARTICLE 17. Risk of Loss; Casualty.
17.1. Risk of Loss. Subject to the other provisions of
this Article and except for reasonable wear and tear, Seller shall
bear the risk of all loss, destruction and damage to the Property <PAGE>
by any casualty that occurs during the period from the Effective
Date to and including the earlier of (a) recordation of the Deed,
or (b) midnight of the last day of Closing.
17.2. Destruction or Damage Prior to Closing. If at any
time during the period described in Section 17.1, all or any
portion of the Property is lost, destroyed or damaged by casualty,
then, subject to the other provisions of this Agreement, Seller
shall promptly give written notice thereof to Buyer and the rights
and obligations of the parties by reason of such loss, destruction
or damage shall be as follows:
(a) If the Repair Cost is ten percent (10%) of the
Purchase Price or less, then (i) at Closing, Buyer shall accept the
Property subject to such loss, destruction or damage, (ii) the
Purchase Price shall be reduced by the amount of the Repair Cost,
and (iii) Seller shall retain the right to all proceeds of
insurance. If Seller is providing Seller Financing, then that
reduction in the Purchase Price may, at Seller's election, be
effectuated by requiring Buyer to enter into a Capital Improvement
Escrow Agreement (on the RTC form described in Exhibit "B-1") and
to deposit the amount of that reduction in an escrow account under
that Agreement instead of paying it to Seller. "Repair Cost" means
an estimate of the actual cost of repair and restoration
attributable to such loss, destruction or damage and obtained by
Seller, within forty-five (45) days after the destruction or
damage, from a reputable, independent contractor selected by Seller
and licensed to do business in the jurisdiction in which the
Property is located.
(b) If the Repair Cost exceeds ten percent (10%) of the
Purchase Price and within fifteen (15) days after the Repair Cost
is determined Seller does not agree to deduct the excess from the
Purchase Price, then Buyer shall have the right, exercisable only
by giving notice to Seller (with a copy to Closing Agent) within
thirty (30) days after the Repair Cost is determined, to terminate
this Agreement. if Buyer duly exercises that right, then Buyer's
sole remedy shall be to receive the Deposit in accordance with
Exhibit "J". if Buyer does not duly exercise that right, then (i)
at Closing, Buyer shall accept the Property subject to such loss,
destruction or damage, (ii) the Purchase Price shall be reduced by
the Repair Cost, and (iii) Seller shall retain the right to all
proceeds of insurance. If Seller does duly agree to deduct the
excess Repair Cost from the Purchase Price as aforesaid, then the
provisions of clauses (i) through (iii) of Section 17.2(a) shall
apply to such destruction or damage.
<PAGE>
(c) Notwithstanding the foregoing provisions of this
Section 17.2, (i) if the Repair Cost exceeds ten percent (10%) of
the Purchase Price and there is Seller Financing, then Seller shall
have the right, exercisable only by giving notice to Buyer (with a
copy to Closing Agent) within fifteen (15) days after the Repair
Cost is determined, to terminate this Agreement, and (ii) if the
amount of the proceeds that are payable or reasonably anticipated
on account of any loss destruction or damage exceeds the Purchase
Price, then Seller shall have the right, exercisable only by giving
notice to Buyer (with a copy to Closing Agent) within fifteen (15)
days after Seller is notified of that amount or anticipated amount,
to terminate this Agreement. If Seller duly exercises that right,
then Buyer's sole remedy shall be to receive the Deposit in
accordance with Exhibit "J".
(d) If a period described in the foregoing provisions
of this Section 17.2 becomes applicable and the Closing Date would
otherwise occur during such period, then the Closing Date shall be
extended to be a date selected by Seller. Such new Closing Date
shall be within thirty (30) days after the applicable period(s).
17.3. Notwithstanding the foregoing provisions of this
Article, Buyer alone shall be responsible for all loss, destruction
and damage to the Property caused by Buyer's or Buyer's
Representatives.
ARTICLE 18. Brokers.
Buyer represents and warrants to Seller that Buyer has not
dealt with any real estate broker, agent or finder in connection
with the transaction described in this Agreement, except the
Broker. Upon completion of Closing and recordation of the Deed,
Seller shall pay the Listing Broker, pursuant to the terms of a
separate agreement between Seller and the Listing Broker, all
commissions due in connection with the transaction described in
this Agreement. Buyer shall defend, indemnify and hold harmless
Seller from and against any and all Claims that may be asserted
against or incurred by Seller and arise from or pertain to any
brokerage commissions, fees, costs or other expenses that may be
due to or claimed by any brokers, agents or finders (except the
Listing Broker) with whom Buyer has dealt or is claimed to have
dealt.
ARTICLE 19. Survival.
19.1. None of the provisions of this Agreement shall
survive Closing except Section 7.2, Section 9.2, Article 10,
Sections 13.4 and 13.5 insofar as they relate to adjustments to be<PAGE>
made after Closing, Article 18, and the provisions limiting the
liability of Seller or of persons or entities related to Seller.
19.2. Upon any termination of this Agreement in accordance
with its terms, Seller and Buyer shall each be relieved from all
further obligations and liability under this Agreement, at law or
in equity, except that (a) Section 7.2, Section 7.3, Section 7.4,
Article 18, and the provisions limiting the liability of Seller or
Buyer, or of persons or entities related to Seller or Buyer, shall
survive any such termination, and (b) Seller and Buyer shall remain
obligated to instruct the Closing Agent to deliver the Deposit in
accordance with the provisions of this Agreement.
ARTICLE 20. Assignments of this Agreement or of Buyer.
20.1. Buyer shall not assign or transfer this Agreement,
or any interest in this Agreement, without the prior written
consent of Seller. Seller may require, as a condition of such
consent, that Seller (a) have a right to approve the instrument of
assignment or transfer prior to the execution thereof, and/or (b)
receive any and all amounts paid by an assignee or transferee,
directly or indirectly, to Buyer, as consideration for such
assignment or transfer. No permitted assignment or transfer shall
relieve Buyer of any of its liabilities or obligations under this
Agreement. Furthermore, no permitted assignment or transfer shall
be valid unless and until Seller shall have received a true and
complete copy of the instrument of assignment or transfer, together
with the name and address of the assignee or transferee.
Notwithstanding any consent by Seller to any assignment or transfer
of this Agreement, no assignee or transferee shall assign or
transfer this Agreement without Seller's prior written consent
hereunder in each instance.
20.2. Any assignment or transfer, directly or indirectly,
of the following shall constitute an assignment of this Agreement
and, as such, shall be subject to the provisions of Section 20.1:
(a) if Buyer is a partnership, then a total of the majority of the
general partnership interests in Buyer; (b) if Buyer is a Publicly
Held corporation, partnership, trust, or other type of business
organization, then ownership or control of a total of more than
five percent (5%) of the equity or beneficial interests in Buyer to
a single person or entity or to Affiliates of that person or
entity; or (c) if Buyer is not a Publicly Held corporation,
partnership, trust, or other type of business organization, then
ownership or control of a total of more than thirty percent (30%)
of the equity or beneficial interests in Buyer.
20.3. Seller may grant or withhold its consent under this
Article in Seller's sole and absolute discretion.
<PAGE>
20.4. Notwithstanding anything else contained in this
Agreement to the contrary, any assignment or transfer, directly or
indirectly, of this Agreement, or of any capital stock or
partnership interest or other equity or beneficial interest in
Buyer, to a Prohibited Buyer is expressly prohibited. Furthermore,
no Prohibited Buyer may become a director, officer, or trustee of
Buyer. A "Prohibited Buyer" is any person or entity who or which
(under any applicable law, regulation or policy) is prohibited from
purchasing the Property from Seller.
ARTICLE 21. Notices.
21.1. All notices, waivers, demands, requests and other
communications required or permitted by this Agreement
(collectively, "Notices") shall be in writing and given as follows
by (a) personal delivery, (b) established overnight commercial
courier with delivery charges prepaid or duly charged, or (c)
registered or certified mail, return receipt requested, first class
postage prepaid. All Notices shall be addressed to the applicable
addresses for Seller, Buyer and Closing Agent set forth below their
respective signatures, or to any other address or addressee as any
party entitled to receive Notices under this Agreement shall
designate, from time to time, by Notice given to the others in the
manner provided in this Article. Notices shall be deemed "given"
(a) by personal delivery when received pursuant to Section 21.2 (b)
when accepted by an over-night commercial courier pursuant to this
Section, or (c) when deposited into the United States Postal
Service pursuant to this Section.
21.2. Notices so given by personal delivery shall be
presumed to have been received upon tender to the applicable
natural person designated below to receive notices or, in the
absence of such a designation, upon tender to the person signing
this Agreement on behalf of the applicable party. Notices so give
by overnight courier shall be presumed to have been received the
next Business Day after acceptance by such overnight commercial
courier. Notices so given by mail shall be presumed to have been
received on the second (2nd) Business Day after deposit into the
United States Postal System. All copies to the applicable persons
or entity(ies) designated below to receive copies shall be given in
the same manner as the original Notice, and such giving shall be a
prerequisite to the effectiveness of any Notice.
ARTICLE 22. Time of the Essence.
TIME IS OF THE ESSENCE WITH RESPECT TO EACH PROVISION OF THIS
AGREEMENT.
<PAGE>
ARTICLE 23. Miscellaneous.
23.1. Right to Waive Conditions. Either party may waive
any of the provisions of this Agreement made for such party's
benefit, provided that such waiver is in writing and signed by the
waiving party.
23.2. Binding Effect. Subject to the limitations set
forth in Article 20 of this Agreement, all of the provisions of
this Agreement shall be binding upon, and inure to the benefit of,
the applicable parties and their respective heirs, legal
representatives, successors and assigns.
23.3. Business Day. A "Business Day" is a day which is
not a Saturday, Sunday or legal holiday recognized by the
Government of the United States of America. Furthermore, if any
date upon which or by which action is required under this Agreement
is a Saturday, Sunday or legal holiday recognized by the Government
of the United States of America, then the date for such action
shall be extended to the first day that is after such date and is
not a Saturday, Sunday or legal holiday recognized by the
Government of the United States of America. In addition to the
foregoing, if the date designated as the Closing Date is a legal
holiday recognized by the state or other jurisdiction in which the
Closing is to occur or in which the Real Property is located, then
the Closing Date shall be the first day that is after such date and
is not a Saturday, Sunday or legal holiday recognized by the
Government of the United States of America or such state or
jurisdiction. Unless the term "Business Day" is used, all
references in this Agreement to days or other time periods shall
mean calendar days or periods.
23.4. Partial Invalidity. If any provision of this Agree-
ment, or the application thereof to any person or circumstance,
shall be invalid or unenforceable, at any time or to any extent,
then the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby. Each
provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
23.5. Entire Agreement. This Agreement contains the
entire agreement between the parties with respect to the Property.
There are no promises, agreements, conditions, undertakings,
understandings, warranties, covenants or representations, oral or
written, express or implied, between them with respect to the
Property, this Agreement, or the transaction described in this
Agreement, except as set forth in this Agreement.
<PAGE>
23.6. Modifications. This Agreement may not be modified
orally or in any manner, except by an agreement in writing signed
by Seller and Buyer (or their respective successors in interest)
and, if and to the extent Closing Agent is to be bound thereby
under Article 24, by Closing Agent.
23.7. NO RECORDATION. NEITHER SELLER NOR BUYER SHALL BE
ENTITLED TO RECORD THIS AGREEMENT OR A MEMORANDUM OR OTHER NOTICE
OF THIS AGREEMENT AMONG THE LAND OR CHATTEL RECORDS OF ANY
JURISDICTION. THIS SECTION IS A SPECIFIC DIRECTIVE TO THE
OFFICIALS OF THE APPLICABLE JURISDICTION(S) NOT TO RECORD THIS
AGREEMENT OR A MEMORANDUM OR OTHER NOTICE OF THIS AGREEMENT.
23.8. Further Assurances. In addition to the obligations
required to be performed under this Agreement by Seller and Buyer,
Seller and Buyer shall perform, at Closing or from time to time
thereafter, such other acts, and shall execute, acknowledge and/or
deliver such other instruments, documents and other materials, as
may be reasonably required in order to consummate the transaction
described in this Agreement. However, Seller need not satisfy or
comply with any condition or requirement that may be imposed by any
title insurance company other than the Title Company.
23.9. Up-Dates. if after the Effective Date Seller
receives any actual written notice specifically concerning the
Property from any governmental or judicial authority, then Seller
shall provide Buyer a true and complete copy thereof promptly.
23.10. Headings. The headings used in this Agreement are
for reference and convenience only, and shall not enter into the
interpretation of this Agreement.
23.11. Attorneys' Fees. Whenever in this Agreement
provision is made for the payment of attorneys' fees, such
provision shall mean reasonable attorneys' fees.
23.12. Plurality and Gender. Wherever in this Agreement
the singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders,
and vice versa, as the context shall require.
23.13. Exhibits. All Exhibits to this Agreement shall be
treated as incorporated herein by reference and made a material
part hereof.
23.14. Definitions. All capitalized terms used in this
Agreement are defined in the respective Part, Article or Section
listed in the Index to Defined Terms.
<PAGE>
23.15. Rule of Construction. Buyer and Seller have each
read and fully understand the terms of this Agreement, and each has
had the opportunity to have this Agreement reviewed by its own
counsel. The rule of construction providing that ambiguities in an
agreement shall be construed against the party drafting the same
shall not apply.
23.16. Scope of Releases. In this Agreement, whenever
Buyer releases Seller from any Claims or from further obligation or
liability, such release includes a release of Seller and of
Seller's predecessors in interest, and of the agents, employees,
contractors, officers, directors, and representatives of Seller's
predecessors in interest. In this Agreement, whenever Seller
releases Buyer from any Claims or from further obligation or
liability, such release includes a release of Buyer and of Buyer's
Representatives.
23.17. Governing Law. All questions with respect to the
construction of this Agreement and the rights and liabilities of
the parties under this Agreement shall be determined in accordance
with the laws of the jurisdiction in which the Real Property is
located, without regard to the application of choice of law
principles, except to the extent that such laws are superseded by
federal law.
23.18. No Third Party Beneficiary. This Agreement is
solely for the benefit of Buyer and Seller. No other person or
entity is entitled to the benefit of or may enforce any of the
provisions of this Agreement, except where expressly provided
herein to the contrary.
ARTICLE 24. Provisions with Respect to the Closing Agent.
24.1. Closing Agent is signing this Agreement for the sole
purposes of acknowledging, accepting, and agreeing to perform,
Closing Agent's responsibilities under this Agreement, including
those set forth in Exhibit "J". Closing Agent shall not demand any
releases or indemnities, or impose any other requirements or
conditions, with respect to such performance except as set forth in
this Agreement. Closing Agent's rights or responsibilities may be
modified only by a written amendment to this Agreement signed by
Closing Agent as well as by Seller and Buyer. Any amendment to
this Agreement that is not signed by Closing Agent shall be
effective as to the parties to such amendment, but shall not be
binding upon Closing Agent.
24.2. Closing Agent shall be responsible for complying
with all filing and reporting requirements imposed under the United
States Internal Revenue Code, and any regulations promulgated <PAGE>
thereunder, specifically applicable to property settlements per se
including, without limitation, the filing of a Form 1099-S or its
successor.
ARTICLE 25. Specific Provisions Required by the
Jurisdiction in which the Property is Located.
Specific provisions (if any) relating solely to the
jurisdiction in which the Property is located are attached as
Exhibit "K" and made a part of this Agreement.
ARTICLE 26. Execution and Delivery.
Buyer is executing this Agreement first and delivering it to
Seller. If item 5, 7 or 8 of Part I is not completed at the time
of Buyer's execution, then Seller is authorized to complete such
item, and the completions so made by Seller shall be a part of this
Agreement, just as though they had been made prior to Buyer's
execution of this Agreement.
ARTICLE 27. Liquidated Damages Provision.
SELLER AND BUYER AGREE THAT PAYMENT OF THE DEPOSIT TO SELLER
UNDER SECTION 14.1 SHALL BE AS LIQUIDATED DAMAGES AND NOT AS A
PENALTY, THAT ACTUAL DAMAGES RESULTING TO SELLER FROM BUYER'S
BREACH OF THIS AGREEMENT WOULD BE DIFFICULT OR IMPOSSIBLE TO
MEASURE BECAUSE OF THE UNCERTAINTIES OF THE REAL ESTATE MARKET AND
FLUCTUATIONS OF PROPERTY VALUES AND DIFFERENCES WITH RESPECT
THERETO, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF WHAT
THOSE DAMAGES WOULD BE. CLOSING AGENT SHALL DELIVER THE DEPOSIT TO
SELLER PROMPTLY UPON RECEIVING WRITTEN NOTICE FROM SELLER THAT
BUYER IS IN DEFAULT BEYOND THE APPLICABLE CURE PERIOD (IF ANY),
THAT THE PROVISIONS OF SECTION 14.1 APPLY, AND THAT SELLER HAS THE
RIGHT TO RECEIVE THE DEPOSIT HEREUNDER. BUYER HEREBY RELEASES
CLOSING AGENT FROM ALL LIABILITY TO BUYER FOR COMPLIANCE WITH THE
PROVISIONS OF SECTION 14.1.
Buyer's initials as to Seller's initials as to
Article 27 Article 27
IN WITNESS WHEREOF, Buyer has signed and delivered this
Agreement as its own free act and deed.
[SIGNATURE PAGES FOLLOW]
<PAGE>
WITNESS/ATTEST: BUYER:
The Parkway Company,
a Texas Corporation
By: /s/Steven G. Rogers / /s/Sarah P. Clark
/s/David R. Fowler
Name: Steven G. Rogers/Sarah P. Clark
David R. Fowler
Title: President / Vice President
Date: June 14, 1995
Buyer's Federal Tax Employer
Identification No. or Social
Security No.: 74-212-3597
Address for Notices to Buyer:
The Parkway Company
P.O. Box 22728
Jackson, MS 39225-2728
Attention: Steven G. Rogers
with a copy to
Forman, Perry, Watkins & Krutz
1200 One Jackson Place/188 E. Capitol St.
Jackson, MS 39201
Attention: Steve Hendrix
If Buyer is an individual, Buyer resides in ***N/A***
[SIGNATURE PAGES FOLLOW]
<PAGE>
IN WITNESS WHEREOF, Closing Agent has signed this Agreement
for the limited purposes set forth in Article 24 of Part II.
Closing Agent's signature shall not be necessary for the
effectiveness of this Agreement. Closing Agent's joinder or
consent shall not be necessary for any termination of this
Agreement or for any amendments to this Agreement, except
amendments to Article 24 of Part II and to Exhibit "J".
WITNESS/ATTEST: CLOSING AGENT:
Chicago Title Insurance Agency of
Mississippi, Inc.
/S/Nancy H. Blalock By: /s/Don P. Lacy
Name: Don P. Lacy
Title: President
Date: June 20, 1995
Address for Notices to Closing Agent:
Chicago Title Insurance Agency of Mississippi. Inc.
P.O. Box 22552
Jackson, Mississippi 39225-2552
Attention: Don P. Lacy
<PAGE>
See attached Exhibit "A"
Exhibit "A"
(Description of the Real Property)
<PAGE>
EXHIBIT "A"
Security Centre' North
A tract of land consisting of 0.857 acres and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel Map of 1875 and being more particularly
described as follows:
Beginning at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Easterly, along the South right-of-way line of Pearl Street, 215.15
feet to the Northwest corner of the AAA Answerphone, Inc. property
as recorded in Deed Book 3348 at page 512 of the Chancery Records
of Hinds County, Mississippi; turn thence through an interior angle
of 89 degrees 12 minutes 57 seconds and run Southerly, along the
West boundary of the AAA Answerphone property, 157.40 feet to the
Southwest corner thereof; turn thence through an exterior angle of
79 degrees 59 minutes 30 seconds and run Northeasterly, along the
South boundary of said AAA Answerphone property, 6.59 feet to the
Northwest corner of the Dudley J. Hughes property as described in
Deed Book 3200 at page 447 of the aforesaid Chancery records; turn
thence to the right through a deflection angle of 99 degrees 06
minutes 50 seconds and run Southerly, along the West boundary of
the Hughes property with the Easterly projection of the South face
of a five story parking garage; turn thence to the right through a
deflection angle of 89 degrees 15 minutes 55 seconds and run
Westerly, along the Easterly projection of the South face of said
parking garage, the South face of said garage, the South face of a
ten story building and the Westerly projection thereof, 232.48 feet
to the aforesaid East right-of-way line of Lamar Street; turn
thence through an interior angle of 84 degrees 49 minutes 17
seconds and run Northerly, along the East right-of-way line of
Lamar Street, 171.18 feet to the Point of Beginning.
Security Centre' Atrium
A tract of land containing 0.343 acre and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel map of 1875 and being more particularly
described as follows:
Commencing at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Southerly along the said East right-of-way line of Lamar Street,
171.18 feet to a drill hole in a brick walk marking the Northwest
corner of and the Point of Beginning for the property herein
described; turn thence to the left through a deflection angle of 95
degrees 10 minutes 45 seconds and run Easterly, along the Westerly
projection of the South face of a ten story building, the South <PAGE>
face of said building and the South face of a five story parking
garage, 232.48 feet to the West boundary of the Dudley J. Hughes
property as recorded in Deed Book 3200 at page 447 of the Chancery
Records of Hinds County, Mississippi; turn thence through an
interior angle of 89 degrees 15 minutes 55 seconds and run
Southerly, along the West boundary of said Hughes property, 68.47
feet to the intersection of the West boundary of the Hughes
property with the Easterly projection of the North edge of a
concrete walk; turn thence through an interior angle of 89 degrees
36 minutes 03 seconds and run Westerly, along the aforesaid
Easterly projection of said walk, the North edge of said walk and
the Westerly projection of said walk 122.42 feet to an East face of
a twelve story building; turn thence through an exterior angle of
90 degrees 11 minutes 43 seconds and run Northerly along the East
face of said building 11.90 feet to a building corner; turn thence
through an exterior angle of 90 degrees 00 minutes and run Westerly
along a North face of said building 51.60 feet to a building
corner; turn thence through an exterior angle of 90 degrees 00
minutes and run Southerly, along a West face of said building,
12.07 feet to a building corner; turn thence through an interior
angle of 89 degrees 46 minutes 17 degrees and run Westerly along
the North face of said building and the Westerly projection
thereof, 63.42 feet to the aforesaid East right-of-way line of
Lamar Street; turn thence through an interior angle of 85 degrees
59 minutes 19 seconds and run Northerly, along the said East
right-of-way line of Lamar Street 64.34 feet to the Point of
Beginning.
Security Centre' South
A tract of land containing 0.358 acres and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel Map of 1875 and being more particularly
described as follows:
Commence at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Southerly, along the said East right-of-way line of Lamar Street,
235.52 feet to a drill hole in a brick walk marking the Northwest
corner of and the Point of Beginning for the property herein
described; turn thence to the left through a deflection angle of 94
degrees 00 minutes 41 seconds and run Easterly, along the Westerly
projection of the North face of a twelve story building and the
North face of said building, 63.42 feet to a corner of said
building; turn thence through an exterior angle of 89 degrees 46
minutes 17 seconds and run Northerly, along a West face of said
building, 12.07 feet to a corner of said building; turn thence to
the right through a deflection angle of 90 degrees 00 minutes and
run Easterly, along a North face of said building 51.60 feet to a
building corner; turn thence to the right through a deflection
angle of 90 degrees 00 minutes and run Southerly, along the East<PAGE>
face of said building, 11.90 feet to the intersection of the said
East building face and the Westerly projection of the North edge of
a concrete walk; turn thence to the left through a deflection angle
of 89 degrees 48 minutes 17 seconds and run Easterly, along the
said Westerly projection of said walk, the North edge of said walk
and the Easterly projection of said walk, 122.42 feet to the West
boundary of the Dudley J. Hughes property as recorded in Deed Book
3200 at page 447 of the Chancery Records of Hinds County,
Mississippi; turn thence through an interior angle of 90 degrees 23
minutes 56 seconds and run Southerly, along the West boundary of
the said Hughes property, 61.88 feet to the North right-of- way
line of Pascagoula Street, as it is now in use, turn thence through
an interior angle of 89 degrees 42 minutes 46 seconds and run
Westerly, along the North right-of-way line of Pascagoula Street
242.27 feet to the intersection of the North right-of-way line of
Pascagoula Street with the East right-of-way line of Lamar Street;
turn thence through an interior angle of 85 degrees 50 minutes 35
seconds and run Northerly, along the East right-of-way line of
Lamar Street 62.20 feet to the Point of Beginning.
<PAGE>
Exhibit "C"
(Property Information Materials)
<PAGE>
Exhibit C
I. PROPERTY OVERVIEW
II. CONSTRUCTION OVERVIEW
III. MAPS/AERIAL/PHOTOGRAPHS
IV. OPERATING INFORMATION/RENT ROLL/
LEASE SUMMARIES
V. SURVEY
VI. SPACE AVAILABILITY REPORT AND FLOOR PLATES
VII. SERVICE CONTRACTS/MANAGEMENT AGREEMENT
VIII. MARKET DATA
IX. PRELIMINARY TITLE COMMITMENT
X. ENVIRONMENTAL INFORMATION
XI. TERMS AND CONDITIONS
Note: Please refer to the front section of this binder behind the
Property Information Package Tab for the above information.
<PAGE>
Exhibit "D"
(Intentionally Deleted)
<PAGE>
July 31, 1995
TO: All Tenants of [to be addressed to each Tenant individually if
the Real Property is in California]
Security Centre' Office Buildings
200 South Lamar Street
Jackson, MS 39201
This is to notify you that Security Centre' Office Buildings (the
"Property") has been sold by Resolution Trust Corporation as
Receiver for Security Federal Savings and Loan Association
("Seller") to Security Centre', Inc., a Mississippi Corporation
("Buyer"). The Buyer's address is P.O. Box 22728, Jackson, MS
39225-2728. All payments of rentals and other amounts hereafter
due, under the terms of leases, from tenants of the Property shall
be payable as Buyer shall direct.
As a part of that sale, liability for all refundable tenant
deposits, if any, (and the interest thereon, if any) with respect
to the Property has been assumed by Buyer as of the date set forth
above.
SELLER:
Resolution Trust Corporation
as Receiver for
Security Federal Savings and Loan Association
By: /s/Raymond L. Bommer
Name: Raymond L. Bommer
Title: Attorney-In-Fact
BUYER:
Security Centre', Inc.
By: /s/Steven G. Rogers / /s/Sarah P. Clark
Name: Steven G. Rogers / Sarah P. Clark
Title: President / Vice President
Exhibit "E"
(Form of Notice to Tenants)
<PAGE>
RTC SPECIAL WARRANTY DEED
Exhibit "F"
(Deed)
<PAGE>
RTC MISSISSIPPI SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made the 11th day of July 1995,
by RESOLUTION TRUST CORPORATION, as Receiver for Security Federal
Savings and Loan Association, whose address is 3500 Maple Avenue,
Dallas, Texas 75219, as GRANTOR, to Security Centre', Inc. a
Mississippi Corporation, whose address is P. O. Box 22728, Jackson,
Mississippi, as GRANTEE.
Witness that Grantor, for good and valuable consideration,
receipt of which is acknowledged, sells, grants and conveys to
Grantee all the real property located in the First Judicial
District of Hinds County, Mississippi, more particularly described
as:
See attached Exhibit "A"
together with all tenements, hereditaments and appurtenances
thereto; subject to current real property taxes, zoning and other
governmental restrictions, and all covenants, conditions,
restrictions, easements, rights-of-way and other matters of record.
To have and to hold, all and singular, the real property
aforementioned unto said Grantee, its successors and assigns,
forever.
Grantor hereby covenants with Grantee that Grantor will
forever defend Grantee against claims of all persons claiming by,
through or under Grantor, but not otherwise, except as to the
reservations from and exceptions to this conveyance as
aforementioned. Grantor makes no other covenants or warranties,
express or implied, of merchantability, marketability, fitness or
suitability for a particular purpose or otherwise except as set
forth and limited herein. Any implied covenants or warranties are
expressly disclaimed and excluded by this Special Warranty Deed.
<PAGE>
IN WITNESS WHEREOF, Grantor has set its hand and seal the day
and year first above written.
GRANTOR:
RESOLUTION TRUST CORPORATION, as
Receiver for Security Federal
Savings and Loan Association and
not in its Corporate capacity
By: /s/Raymond L. Bommer
Raymond L. Bommer
Title: Attorney-In-Fact
RTC Texas Special Warranty Deed Page 1
<PAGE>
STATE OF TEXAS
COUNTY OF DALLAS
Personally appeared before me, the undersigned authority in
and for the said county and state, on this the 11th day of July,
1995, within my jurisdiction, the within named Raymond L. Bommer,
who acknowledged that he is Attorney-In-Fact for the Resolution
Trust Corporation as Receiver of Security Federal Savings and Loan
Association, and that for and on behalf of the said corporation in
its said capacity as Receiver, and as its act and deed he executed
the above and foregoing instrument, after first having been duly
authorized by said corporation in its said capacity as Receiver so
to do.
/s/Jennifer A. Lewis
NOTARY PUBLIC
MY COMMISSION EXPIRES:
July 26, 1997
GRANTOR'S ADDRESS & GRANTEE'S ADDRESS &
TELEPHONE NUMBER: TELEPHONE NUMBER:
Resolution Trust Corporation, Security Centre', Inc.
as Receiver for Security P. O. Box 22728
Federal Savings Association Jackson, MS 39225-2728
3500 Maple Avenue (601) 948-4091
Dallas, Texas 75219
(214) 443-2300
PREPARER OF INSTRUMENT
John G. Gourlay, Jr. (MSB #4924)
Gerald & Brand, PLLC
One Jackson Place
188 E. Capitol Street, Suite 900
Jackson, MS 39201
(601) 948-3030
INDEXING INSTRUCTIONS
Index in Lot 2 South according to the Henry C. Daniel Map of 1875
in the City of Jackson, Hinds County, Mississippi.
<PAGE>
Exhibit "G"
(Bill of Sale)
<PAGE>
BILL OF SALE
Resolution Trust Corporation as Receiver for Security Federal
Savings and Loan Association ("Assignor"), in accordance with
the Purchase and Sale Agreement dated June 20, 1995 and in
consideration of the sum of Ten Dollars ($10.00) (the sufficiency
and receipt of which are hereby acknowledged), does hereby
quitclaim unto Security Centre', Inc., a Mississippi ("Assignee"),
all of Assignor's right, title and interest in and to all of the
furniture, furnishings, fixtures, equipment and other tangible
personal property that is now affixed to and/or located at the Real
Property described in Exhibit No. 1 and used in connection with the
management, operation, or repair of that Real Property
(collectively, "Personal Property").
TO HAVE AND TO HOLD the Personal Property unto Assignee and
Assignee's heirs, legal representatives, successors and assigns
forever.
THE PERSONAL PROPERTY IS BEING QUITCLAIMED "AS IS", "WHERE IS", AND
"WITH ALL FAULTS" AS OF THE DATE OF THIS BILL OF SALE, WITHOUT ANY
REPRESENTATION OR WARRANTY WHATSOEVER AS TO ITS CONDITION, FITNESS
FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY,
EXPRESS OR IMPLIED. ASSIGNOR SPECIFICALLY DISCLAIMS ANY WARRANTY,
GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT,
EXPRESS OR IMPLIED, CONCERNING THE PERSONAL PROPERTY OR ASSIGNOR'S
TITLE THERETO. ASSIGNEE IS HEREBY THUS ACQUIRING THE PERSONAL
PROPERTY BASED SOLELY UPON ASSIGNEE'S OWN INDEPENDENT
INVESTIGATIONS AND INSPECTIONS OF THAT PROPERTY AND NOT IN RELIANCE
UPON ANY INFORMATION PROVIDED BY ASSIGNOR OR ASSIGNOR'S AGENTS OR
CONTRACTORS. ASSIGNOR HAS MADE NO AGREEMENT TO ALTER, REPAIR OR
IMPROVE ANY OF THE PERSONAL PROPERTY.
(SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have signed and
delivered this Bill of Sale as of the 31st day of July, 1995.
ASSIGNOR:
Resolution Trust Corporation as
Receiver for Security Federal
Savings and Loan Association
By: /s/Raymond L. Bommer
Print name: Raymond L. Bommer
Title: Attorney-In-Fact
ASSIGNEE:
Security Centre', Inc.
By: /s/Steven G. Rogers
/s/Sarah P. Clark
Print name: Steven G. Rogers
Sarah P. Clark
Title: President
Vice President
<PAGE>
Exhibit No. 1
Real Property
See attached Exhibit "A"
<PAGE>
EXHIBIT "A"
Security Centre' North
A tract of land consisting of 0.857 acres and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel Map of 1875 and being more particularly
described as follows:
Beginning at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Easterly, along the South right-of-way line of Pearl Street, 215.15
feet to the Northwest corner of the AAA Answerphone, Inc. property
as recorded in Deed Book 3348 at page 512 of the Chancery Records
of Hinds County, Mississippi; turn thence through an interior angle
of 89 degrees 12 minutes 57 seconds and run Southerly, along the
West boundary of the AAA Answerphone property, 157.40 feet to the
Southwest corner thereof; turn thence through an exterior angle of
79 degrees 59 minutes 30 seconds and run Northeasterly, along the
South boundary of said AAA Answerphone property, 6.59 feet to the
Northwest corner of the Dudley J. Hughes property as described in
Deed Book 3200 at page 447 of the aforesaid Chancery records; turn
thence to the right through a deflection angle of 99 degrees 06
minutes 50 seconds and run Southerly, along the West boundary of
the Hughes property with the Easterly projection of the South face
of a five story parking garage; turn thence to the right through a
deflection angle of 89 degrees 15 minutes 55 seconds and run
Westerly, along the Easterly projection of the South face of said
parking garage, the South face of said garage, the South face of a
ten story building and the Westerly projection thereof, 232.48 feet
to the aforesaid East right-of-way line of Lamar Street; turn
thence through an interior angle of 84 degrees 49 minutes 17
seconds and run Northerly, along the East right-of-way line of
Lamar Street, 171.18 feet to the Point of Beginning.
Security Centre' Atrium
A tract of land containing 0.343 acre and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel map of 1875 and being more particularly
described as follows:
Commencing at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Southerly along the said East right-of-way line of Lamar Street,
171.18 feet to a drill hole in a brick walk marking the Northwest
corner of and the Point of Beginning for the property herein
described; turn thence to the left through a deflection angle of 95
degrees 10 minutes 45 seconds and run Easterly, along the Westerly
projection of the South face of a ten story building, the South <PAGE>
face of said building and the South face of a five story parking
garage, 232.48 feet to the West boundary of the Dudley J. Hughes
property as recorded in Deed Book 3200 at page 447 of the Chancery
Records of Hinds County, Mississippi; turn thence through an
interior angle of 89 degrees 15 minutes 55 seconds and run
Southerly, along the West boundary of said Hughes property, 68.47
feet to the intersection of the West boundary of the Hughes
property with the Easterly projection of the North edge of a
concrete walk; turn thence through an interior angle of 89 degrees
36 minutes 03 seconds and run Westerly, along the aforesaid
Easterly projection of said walk, the North edge of said walk and
the Westerly projection of said walk 122.42 feet to an East face of
a twelve story building; turn thence through an exterior angle of
90 degrees 11 minutes 43 seconds and run Northerly along the East
face of said building 11.90 feet to a building corner; turn thence
through an exterior angle of 90 degrees 00 minutes and run Westerly
along a North face of said building 51.60 feet to a building
corner; turn thence through an exterior angle of 90 degrees 00
minutes and run Southerly, along a West face of said building,
12.07 feet to a building corner; turn thence through an interior
angle of 89 degrees 46 minutes 17 degrees and run Westerly along
the North face of said building and the Westerly projection
thereof, 63.42 feet to the aforesaid East right-of-way line of
Lamar Street; turn thence through an interior angle of 85 degrees
59 minutes 19 seconds and run Northerly, along the said East
right-of-way line of Lamar Street 64.34 feet to the Point of
Beginning.
Security Centre' South
A tract of land containing 0.358 acres and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel Map of 1875 and being more particularly
described as follows:
Commence at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Southerly, along the said East right-of-way line of Lamar Street,
235.52 feet to a drill hole in a brick walk marking the Northwest
corner of and the Point of Beginning for the property herein
described; turn thence to the left through a deflection angle of 94
degrees 00 minutes 41 seconds and run Easterly, along the Westerly
projection of the North face of a twelve story building and the
North face of said building, 63.42 feet to a corner of said
building; turn thence through an exterior angle of 89 degrees 46
minutes 17 seconds and run Northerly, along a West face of said
building, 12.07 feet to a corner of said building; turn thence to
the right through a deflection angle of 90 degrees 00 minutes and
run Easterly, along a North face of said building 51.60 feet to a
building corner; turn thence to the right through a deflection
angle of 90 degrees 00 minutes and run Southerly, along the East<PAGE>
face of said building, 11.90 feet to the intersection of the said
East building face and the Westerly projection of the North edge of
a concrete walk; turn thence to the left through a deflection angle
of 89 degrees 48 minutes 17 seconds and run Easterly, along the
said Westerly projection of said walk, the North edge of said walk
and the Easterly projection of said walk, 122.42 feet to the West
boundary of the Dudley J. Hughes property as recorded in Deed Book
3200 at page 447 of the Chancery Records of Hinds County,
Mississippi; turn thence through an interior angle of 90 degrees 23
minutes 56 seconds and run Southerly, along the West boundary of
the said Hughes property, 61.88 feet to the North right-of- way
line of Pascagoula Street, as it is now in use, turn thence through
an interior angle of 89 degrees 42 minutes 46 seconds and run
Westerly, along the North right-of-way line of Pascagoula Street
242.27 feet to the intersection of the North right-of-way line of
Pascagoula Street with the East right-of-way line of Lamar Street;
turn thence through an interior angle of 85 degrees 50 minutes 35
seconds and run Northerly, along the East right-of-way line of
Lamar Street 62.20 feet to the Point of Beginning.
<PAGE>
Exhibit "H"
(Assignment and Assumption Agreement)
<PAGE>
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated July 31, 1995,
by and between (a) Resolution Trust Corporation as Receiver for
Security Federal Savings and Loan Association ("Assignor"), and (b)
Security Centre', Inc., a Mississippi Corporation ("Assignee").
WHEREAS, Assignor and Assignee entered into that certain
Purchase and Sale Agreement ("Agreement") dated June 20, 1995 for
the sale and purchase of certain "Property", consisting of certain
"Real Property" (as more particularly described in Exhibit No. 1),
"Personal Property", and "Intangible Property" (as more
particularly described in this Assignment and Assumption
Agreement), as said terms are defined in the Agreement;
WHEREAS, Assignor desires to quitclaim unto Assignee all of
Assignor's right, title and interest in and to the Intangible
Property as hereinafter provided; and
WHEREAS, Assignee desires to assume the duties and obligations
of Assignor with respect to the Intangible Property.
NOW, THEREFORE, in accordance with the Agreement and in
consideration of the sum of Ten Dollars ($10.00), the sufficiency
and receipt of which are hereby acknowledged, the parties do hereby
covenant and agree as follows and take the following actions:
1. Assignor does hereby quitclaim unto Assignee all of the
Assignor's right, title and interest in and to the following
property to the extent the same is transferable by Assignor
(collectively, "Intangible Property"):
(a) any and all leases, tenancies, licenses and other
rights of occupancy or use of or for any portion of the Real
Property or the Personal Property (including all amendments,
renewals and extensions thereof), in effect as of the date of this
Assignment and Assumption Agreement (collectively, "Leases");
(b) any and all contracts and agreements of any kind
for the management, repair or operation of the Property (other than
Leases) in effect as of the date of this Assignment and Assumption
Agreement (collectively, "Contracts");
(c) any and all licenses, permits, authorizations,
certificates of occupancy and other approvals that are in effect as
of the date of this Assignment and Assumption Agreement and
H-1
<PAGE>
necessary for the current use and operation of the Property
(collectively, "Permits");
(d) any and all warranties, telephone exchange
numbers, architectural or engineering plans and specifications, and
development rights that exist as of the date of this Assignment and
Assumption Agreement and relate to the Real Property or the
Personal Property (collectively, "General Intangibles");
(e) any and all rights to the name of the
improvements upon the Real Property ("Name"); and
(f) any and all utility deposits held on
behalf of Seller by utility companies with respect to the Property
(collectively, "Utility Deposits").
In addition, if and to the extent required by applicable law,
Assignor does hereby quitclaim unto Assignee all of Assignor's
right, title, and interest in and to any and all refundable tenant
deposits (and required interest thereon, if any) in Assignor's
possession with respect to the Leases and Contracts as of the date
of this Assignment and Assumption Agreement (collectively, the
Tenants' Deposits"). "Intangible Property" means the Leases,
Contracts, Permits, General Intangibles, Name, Utility Deposits,
and, if and to the extent quitclaimed hereunder, Tenants' Deposits.
2. THE INTANGIBLE PROPERTY IS BEING QUITCLAIMED "AS
IS", "WHERE IS", AND "WITH ALL FAULTS" AS OF THE DATE OF THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT, WITHOUT ANY REPRESENTATION OR
WARRANTY WHATSOEVER AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR
PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR
IMPLIED. ASSIGNOR SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR
IMPLIED, CONCERNING THE INTANGIBLE PROPERTY OR ASSIGNOR'S TITLE
THERETO. ASSIGNEE IS HEREBY THUS ACQUIRING THE INTANGIBLE PROPERTY
BASED SOLELY UPON ASSIGNEE'S OWN INDEPENDENT INVESTIGATIONS AND
INSPECTIONS OF THAT PROPERTY AND NOT IN RELIANCE UPON ANY
INFORMATION PROVIDED BY ASSIGNOR OR ASSIGNOR'S AGENTS OR
CONTRACTORS.
3. Assignee hereby accepts the foregoing assignment
of the Intangible Property and hereby assumes all duties and
obligations of Assignor with respect to (a) the Intangible Property
for the period on and after the date of this Assignment and
Assumption Agreement, and (b) any and all refundable deposits paid
by tenants and contractors (and required interest on those
deposits, if any) under the Leases and Contracts as of the date
hereof, whether Buyer has received those deposits or interest or a
credit therefore at Closing or not. Assignee shall defend,
indemnify and hold harmless Assignor from and against any and all
"Claims" asserted against or incurred by Assignor in connection
with (a) any acts or omissions,on or after the date of this <PAGE>
Assignment and Assumption Agreement, with respect to the Intangible
Property, and/or (b) the deposits and interest assumed by Buyer
hereunder. "Claims" means claims, demands, causes of action,
losses, damages, liabilities, judgments, costs and expenses
(including attorneys' fees, whether suit is instituted or not).
4. This Assignment and Assumption Agreement shall be (a)
binding upon, and inure to the benefit of, the parties to this
Assignment and Assumption Agreement and their respective heirs,
legal representatives, successors and assigns, and (b) construed in
accordance with the laws of the jurisdiction in which the Real
Property is located, without regard to the application of choice of
law principles, except to the extent such laws are superseded by
federal law.
IN WITNESS WHEREOF, this Assignment and Assumption
Agreement has been signed and delivered by the parties as of the
date first above written.
ASSIGNOR:
Resolution Trust Corporation as
Receiver for Security Federal
Savings and Loan Association
By: /s/Raymond L. Bommer
Print name: Raymond L. Bommer
Title: Attorney-In-Fact
ASSIGNEE:
Security Centre', Inc.,
a Mississippi Corporation
By: /s/Steven G. Rogers / /s/Sarah P. Clark
Print name: Steven G. Rogers / Sarah P. Clark
Title: President / Vice President
<PAGE>
Exhibit No. 1
Real Property
See attached Exhibit "A"
<PAGE>
EXHIBIT "A"
Security Centre' North
A tract of land consisting of 0.857 acres and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel Map of 1875 and being more particularly
described as follows:
Beginning at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Easterly, along the South right-of-way line of Pearl Street, 215.15
feet to the Northwest corner of the AAA Answerphone, Inc. property
as recorded in Deed Book 3348 at page 512 of the Chancery Records
of Hinds County, Mississippi; turn thence through an interior angle
of 89 degrees 12 minutes 57 seconds and run Southerly, along the
West boundary of the AAA Answerphone property, 157.40 feet to the
Southwest corner thereof; turn thence through an exterior angle of
79 degrees 59 minutes 30 seconds and run Northeasterly, along the
South boundary of said AAA Answerphone property, 6.59 feet to the
Northwest corner of the Dudley J. Hughes property as described in
Deed Book 3200 at page 447 of the aforesaid Chancery records; turn
thence to the right through a deflection angle of 99 degrees 06
minutes 50 seconds and run Southerly, along the West boundary of
the Hughes property with the Easterly projection of the South face
of a five story parking garage; turn thence to the right through a
deflection angle of 89 degrees 15 minutes 55 seconds and run
Westerly, along the Easterly projection of the South face of said
parking garage, the South face of said garage, the South face of a
ten story building and the Westerly projection thereof, 232.48 feet
to the aforesaid East right-of-way line of Lamar Street; turn
thence through an interior angle of 84 degrees 49 minutes 17
seconds and run Northerly, along the East right-of-way line of
Lamar Street, 171.18 feet to the Point of Beginning.
Security Centre' Atrium
A tract of land containing 0.343 acre and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel map of 1875 and being more particularly
described as follows:
Commencing at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Southerly along the said East right-of-way line of Lamar Street,
171.18 feet to a drill hole in a brick walk marking the Northwest
corner of and the Point of Beginning for the property herein
described; turn thence to the left through a deflection angle of 95
degrees 10 minutes 45 seconds and run Easterly, along the Westerly
projection of the South face of a ten story building, the South <PAGE>
face of said building and the South face of a five story parking
garage, 232.48 feet to the West boundary of the Dudley J. Hughes
property as recorded in Deed Book 3200 at page 447 of the Chancery
Records of Hinds County, Mississippi; turn thence through an
interior angle of 89 degrees 15 minutes 55 seconds and run
Southerly, along the West boundary of said Hughes property, 68.47
feet to the intersection of the West boundary of the Hughes
property with the Easterly projection of the North edge of a
concrete walk; turn thence through an interior angle of 89 degrees
36 minutes 03 seconds and run Westerly, along the aforesaid
Easterly projection of said walk, the North edge of said walk and
the Westerly projection of said walk 122.42 feet to an East face of
a twelve story building; turn thence through an exterior angle of
90 degrees 11 minutes 43 seconds and run Northerly along the East
face of said building 11.90 feet to a building corner; turn thence
through an exterior angle of 90 degrees 00 minutes and run Westerly
along a North face of said building 51.60 feet to a building
corner; turn thence through an exterior angle of 90 degrees 00
minutes and run Southerly, along a West face of said building,
12.07 feet to a building corner; turn thence through an interior
angle of 89 degrees 46 minutes 17 degrees and run Westerly along
the North face of said building and the Westerly projection
thereof, 63.42 feet to the aforesaid East right-of-way line of
Lamar Street; turn thence through an interior angle of 85 degrees
59 minutes 19 seconds and run Northerly, along the said East
right-of-way line of Lamar Street 64.34 feet to the Point of
Beginning.
Security Centre' South
A tract of land containing 0.358 acres and being situated in the
9.31 acre Lot 2 South Jackson, Hinds County, Mississippi, according
to the Henry C. Daniel Map of 1875 and being more particularly
described as follows:
Commence at a drill hole in a brick walk marking the intersection
of the East right-of-way line of Lamar Street with the South
right-of-way line of Pearl Street, as both are now in use and run
Southerly, along the said East right-of-way line of Lamar Street,
235.52 feet to a drill hole in a brick walk marking the Northwest
corner of and the Point of Beginning for the property herein
described; turn thence to the left through a deflection angle of 94
degrees 00 minutes 41 seconds and run Easterly, along the Westerly
projection of the North face of a twelve story building and the
North face of said building, 63.42 feet to a corner of said
building; turn thence through an exterior angle of 89 degrees 46
minutes 17 seconds and run Northerly, along a West face of said
building, 12.07 feet to a corner of said building; turn thence to
the right through a deflection angle of 90 degrees 00 minutes and
run Easterly, along a North face of said building 51.60 feet to a
building corner; turn thence to the right through a deflection
angle of 90 degrees 00 minutes and run Southerly, along the East<PAGE>
face of said building, 11.90 feet to the intersection of the said
East building face and the Westerly projection of the North edge of
a concrete walk; turn thence to the left through a deflection angle
of 89 degrees 48 minutes 17 seconds and run Easterly, along the
said Westerly projection of said walk, the North edge of said walk
and the Easterly projection of said walk, 122.42 feet to the West
boundary of the Dudley J. Hughes property as recorded in Deed Book
3200 at page 447 of the Chancery Records of Hinds County,
Mississippi; turn thence through an interior angle of 90 degrees 23
minutes 56 seconds and run Southerly, along the West boundary of
the said Hughes property, 61.88 feet to the North right-of- way
line of Pascagoula Street, as it is now in use, turn thence through
an interior angle of 89 degrees 42 minutes 46 seconds and run
Westerly, along the North right-of-way line of Pascagoula Street
242.27 feet to the intersection of the North right-of-way line of
Pascagoula Street with the East right-of-way line of Lamar Street;
turn thence through an interior angle of 85 degrees 50 minutes 35
seconds and run Northerly, along the East right-of-way line of
Lamar Street 62.20 feet to the Point of Beginning.
<PAGE>
(INSTRUCTIONS: INSERT THE CURRENT VERSIONS(S) OF THE DEBT
COLLECTION POLICY TO BE EXECUTED AT CLOSING; THE VERSIONS TO BE
EXECUTED AT THE TIME OF CONTRACT SIGNING SHOULD BE EXECUTED
SIMULTANEOUSLY WITH THIS AGREEMENT.]
The following documents are each included in this Exhibit "I":
1) Collection Policy Certification By Proposed
Purchaser (including Commonly Asked Questions
And Answers Regarding the RTC's Collection
Policy);
2) Certification By Proposed Purchaser To Comply
With 12 CFR Part 1620 (including a copy of the
text to 12 CFR Part 1620); and
3) Affidavit (including a copy of the text of
certain sections of Title 18, United States
Code).
Exhibit "I"
(Collection Policy Affidavit(s) and/or Certification(s)
to be Executed at Closing)
<PAGE>
COLLECTION POLICY CERTIFICATION BY PROPOSED PURCHASER
This Certification is given in connection with the proposed
purchase of certain assets (the "Assets"-this includes the assets
of institutions or their subsidiaries) by the undersigned from the
Resolution Trust Corporation ("RTC") in its corporate,
receivership, and/or conservatorship capacities. The undersigned
specifically acknowledges that interpretations of commonly asked
questions regarding the Collection Policy are provided through
Commonly Asked Questions and Answers Regarding the RTC's Collection
Policy ("Q&A"). Further, the undersigned has been specifically
informed that all Q&A's addressing the Collection Policy are
available to the public through any RTC Public Reading Room,
including the RTC Public Reading Room at the headquarters located
at 801 17th St., N.W., Washington, D.C. 20434.
For purposes of this Certification, Obligation means one or more
continuing legal claims for payment or performance by the RTC, the
Federal Deposit Insurance Corporation ("FDIC"), or the Federal
Savings and Loan Insurance Corporation ("FSLIC"), in any of their
capacities, having an aggregate outstanding amount due of $500,000
or more. A Default on an Obligation exists (a) where any payment
is 90 or more days past due, (b) where any default of any provision
of a written contract exists and either there is a willful refusal
to perform or written notice of breach has been given and the
Default remains uncured, or (c) where a final judgment is
unsatisfied. An Affiliated Business Entity means a business
organization (e.g., a corporation, partnership, etc.) that is
controlled by the purchaser, controls the purchaser, or is under
common control with the purchaser. Where control of the purchaser
rests in an individual, the individual is an Affiliated Business
Entity. For purposes of this definition, control exists if an
individual or entity, directly or indirectly, individually or
acting in concert with others, controls the management or policies
of the business organization.
The undersigned hereby certifies as follows:
(1) The undersigned is not a Large Entity Purchaser. If the
undersigned is a Large Entity Purchaser, such status was
established by RTC Decision Number _____ and, therefore, the
undersigned is subject to the Reasonable Efforts standard as
defined in Collection Policy Q&A's.
(2) No Default exists with respect to any Obligation of the
undersigned or any of its Affiliated Business Entities on the date
of this certification.
(3) The undersigned has reviewed all entities and individuals
any equity interest in this purchase or otherwise exercising any
control over the Potential Purchaser and states (check one of the
following):<PAGE>
X Potential Purchaser has no Restricted Purchasers,OR
___ Potential Purchaser does have Restricted Purchaser(s),
however the Potential Purchaser was formed prior to the Restricted
Purchaser receiving notice from the RTC of its Restricted Purchaser
status, and the Restricted Purchaser has a passive interest (i.e.,
an equity interest of less than 5%) and the Restricted Purchaser
does not constitute an Affiliated Business Entity of the Potential
Purchaser. The relationship between the Potential Purchaser and
the Restricted Purchaser is fully disclosed in the attached
document, and the Potential Purchaser understands that its ability
to participate in this RTC sales transaction is subject to RTC
review and approval of the Restricted Purchaser's participation.
(4) ___ No litigation exists between the Potential Purchaser
and the RTC, the FDIC, or the FSLIC, in any of their capacities.
___ Litigation does exist between the Potential
Purchaser and the RTC, the FDIC, or the FSLIC, in any of their
capacities, and a full disclosure of such litigation is attached
and has also been forwarded for asset purchase eligibility review
to the Washington D.C. Office of Case Management and Program
Compliance, 801 17th St., N.W., Washington, D.C. 20434.
(5) The undersigned has no reason to believe that it is
purchasing the Assets on behalf of, or for resale to an entity
which would, if it were purchasing the Asset directly, be unable to
make the Certifications directly. [The Certification outlined in
this paragraph is not required from underwriters in an initial
offering of securities backed by a pool of assets assembled by
RTC.]
In signing this Certification, I represent and warrant that I have
the authority to execute this certification on behalf of the
undersigned entity. I further certify that the above certification
is true and correct.
Proposed Purchaser: The Parkway Company
By: /s/Steven G. Rogers / /s/Sarah P. Clark
Title: President/Vice President
Dated: June 14, 1995
NOTICE: Any purchaser who knowingly or willfully makes false or
fraudulent statements or representations in connection with the
disclosures or certifications will be referred to the Office of
Inspector General and/or the appropriate law enforcement officials
for investigations and legal enforcement, and may be subject to
fines and/or imprisonment (18 U.S.C. Sections 1001, 1007, and
1014).
<PAGE>
COMMONLY ASKED QUESTIONS AND ANSWERS REGARDING THE
RTC'S COLLECTION POLICY
IMPORTANT NOTICE: THIS VERSION OF THE Q&A SUPERSEDES ALL PRIOR
Q&A'S. IT IS THE PROSPECTIVE PURCHASER'S OBLIGATION TO READ THIS
CURRENT VERSION OF THE Q&A IN ITS ENTIRETY.
1. Q. In cases of nonpayment of a note, mortgage, lease, or
similar obligation, does the "aggregate outstanding
amount due of $500,000 or more" refer to the payment
amount due or the total balance due on the obligation(s)?
A. The total balance due.
2. Q. How is "purchase price" defined under the certification
requirement for assets with an aggregate purchase price
of $500,000 or more?
A. Purchase price is the actual amount offered for the
asset(s).
3. Q. Are small asset purchases (less than $500,000) covered by
the Collection Policy?
A. Regardless of asset size, all purchases of assets are
covered by the Collection Policy. Only asset purchases
greater than $500,000 are automatically subject to the
certification process. The RTC reserves the right to
subject any purchaser to the certification process should
we have reason to believe the purchaser would be unable
to deliver the Certification.
4. Q. Can a Proposed Purchaser obtain a determination from the
RTC regarding "Affiliated Business Entities" or "Control"
under the Collection Policy?
A. From time to time, the RTC will issue statements of
general guidance upon which bidders can rely through this
Q&A format. However, the RTC will not make specific
case-by-case determinations regarding "Affiliated
Business Entities" or "Control." Prospective Purchasers
must rely on the advice of their counsel in the
interpretation of applicable sections of the Collection
Policy, 12 C.F.R. Section 1620, 12 U.S.C. Section 1841,
and other applicable statues, regulations, and policies.
5. Q. If a Proposed Purchaser who is free of Default acquires
a defaulted debtor, does that defaulting debtor become an
Affiliated Business Entity of the Proposed Purchaser for
purposes of the Collection Policy certification?
<PAGE>
A. The RTC recognizes that, at times, it is in the best
business interest of a qualified Potential Purchaser to
acquire an interest in a defaulting debtor, and that such
an acquisition may affiliate the two entities for
purposes of the Collection Policy. Although the RTC must
maintain that it will neither provide individual guidance
nor make any individual determinations regarding which
organizations qualify as Affiliated Business Entities or
other matters of Control as these issues relate to the
Collection Policy, the following general construct may
help.
Essentially, the RTC is primarily concerned with the
timing of a Default as it relates to the timing of the
acquisition of an interest in the defaulting debtor by a
Potential Purchaser. If the November 12, 1993 Default
predates the acquisition, then the Collection Policy
shall not apply. If the debt predates the acquisition,
but the Default occurs post-acquisition, then there will
be a presumption that the Collection Policy applies, but
the Potential Purchaser may request an individual
determination based on compelling evidence that the
Default should not be recognized for purposes of the
Collection Policy. Finally, if both the debt and the
Default occur post-acquisition, then the Collection
Policy shall apply.
6. Q. Can the purchaser amend or modify the form of the
Certification?
A. No. The Certification, either in standard form or
modified form, as required by RTC, must be signed as is.
An amended Certification not pre-authorized by the
Washington D.C. Office of Case Management and Program
Compliance ("CMPC") will result in a nonconforming bid.
7. Q. Are there any circumstances under which a borrower with
outstanding Defaulted Obligations may purchase RTC
assets?
A. Yes. Where the borrower has acknowledged the inability
to deliver the Certification and RTC has determined that
a settlement arrangement is "Substantially Effected"
between the borrower and the affected agency or
institution, the RTC may prepare a modified Certification
for signature by the borrower which excludes the
Obligations subject to the settlement arrangement.
Only CMPC can issue a modified certification.
8. Q. Must individuals and/or entities that are in Default
execute a Collection Policy Certification by Proposed
Purchaser in order to negotiate a workout and/or
settlement with the RTC or FDIC?
A. No. The Certification is required for asset sale
transactions and is, therefore, inapplicable to workout
and/or settlement negotiations. However, until such time
as the default is fully paid or settled, or until such
time as the RTC allows the defaulted individuals and/or
entities to submit a modified certification on the basis
of a "substantially effected" settlement, the defaulted
individuals and/or entities are ineligible to purchase
assets from the RTC pursuant to the Collection Policy.
9. Q. Are underwriters of an initial offering of securities
backed by a pool of RTC assets exempt from the
requirement of submitting a Collection Policy
certification?
A. All underwriters are required to complete the entire
Collection Policy Certification. However, the RTC
recognizes that the sale of securities may involve a
large number of ultimate purchasers and, therefore, it
may be administratively difficult, if not impossible, for
the underwriter to affirmatively seek information from
all ultimate purchasers. Accordingly, underwriters are
exempt from the resale certification requirement.
10. Q. Certain settlement arrangements require final approval
from the Bankruptcy Court. Can a Prospective Purchaser
present such settlement agreements to CMPC for purposes
of a Modified Certification prior to receipt of
Bankruptcy Court approval?
A. No. CMPC will require a copy of the Bankruptcy Court's
approval of the settlement arrangements before it will
consider a request for a Modified Certification.
11. Q. Under what circumstances will the RTC require additional
Certifications beyond those Certifications required at
the time of bid?
A. Within the self-certification process, the RTC reserves
the right to require whatever additional Certifications
are deemed necessary to satisfy various obligations under
applicable statute, regulation, and policy. This way
occur, for example, when the RTC has reason to believe
that a Prospective Purchaser has already provided a false
Certification, a Prospective Purchaser cannot sign the
Certification and should be restricted, or a Restricted
Purchaser is participating in an asset sale. In the
event that the RTC determines that a certification is
fraudulent, the fraudulent certification will be referred
to the Office of Contractor Oversight and Surveillance
and/or the appropriate law enforcement officials for
investigation and legal enforcement, and may subject the
party submitting the false certification to fines and/or
imprisonment.
12. Q. Are individuals or entities eligible to bid on their own
Defaulted Obligations, whether such obligations are sold
individually or as part of a pool of assets?
A. No. Prospective Purchasers are ineligible to bid on
their own Defaulted Obligations. Prospective Purchasers
with defaulted obligations should contact CMPC for
referral to the national Settlement Workout Asset Team
("SWAT") for prompt resolution of outstanding defaults.
CMPC acts as a clearinghouse for all cases in process to
aid in expediting resolution of settlement offers, as
necessary.
13. Q. Although an individual is not permitted to purchase
his/her own Defaulted Obligation, may it be purchased by
or on behalf of an individual who has a legally
recognized familial relationship to the defaulting party?
A. No. The prohibition against purchase by or on behalf of
a defaulting party is specifically addressed in the
third, enumerated provision of the Collection Policy
Certification. The RTC will presume that any Potential
Purchaser having a legally recognized familial
relationship with the defaulting party, whether by blood,
marriage, adoption, or otherwise, has a common purpose
with the defaulting party, thereby constituting "control
of, control by, or common control with" the defaulting
party and will render them ineligible to purchase that
assets. Further, the RTC also may find a common purpose
and requisite control in other than legally recognized
familial relationships (e.g., trusts).
14. Q. If a Potential Purchaser is ineligible, may the
eligibility of its Affiliated Business Entities be
restored?
A. No. Until such time as the Prospective Purchaser regains
eligibility, Affiliated Business Entities will remain
ineligible, and the RTC will not consider requests to
restore eligibility.
15. Q. Are public agencies and instrumentalities, and non-profit
organizations subject to the Collection Policy?
A. All Potential Purchasers are subject to the Collection
Policy.
16. Q. What general resale limitations are imposed by the
Collection Policy certification?
A. The Collection Policy requires that a Prospective
Purchaser certify that it has no reason to believe, after
reasonable inquiry, that at the time it submits its bid
to the RTC it is purchasing assets on behalf of an entity
which would be disqualified from purchasing the assets
directly.
17. Q. Does the Collection Policy apply where a Potential
Purchaser or its Affiliated Business Entities have
Defaulted on an Obligation other than a loan agreement
(e.g., a lease) to an institution now under the control
of the RTC, FDIC, or FSLIC?
A. Yes. The Collection Policy specifically denies asset
purchase eligibility in circumstances in which a
"Potential Purchaser" or its "Affiliated Business
Entities" have "Defaulted' on "Obligations" to the
RTC/FDIC/FSLIC, in any of their capacities, on "one or
more continuing legal claims for payment" including, but
not limited to, lease defaults.
18. Q. Does litigation between the RTC and a Potential Purchaser
affect that Potential Purchaser's eligibility to purchase
RTC assets?
A. The RTC CoLlection Policy prohibits the sale of assets to
any person or entity which has "Defaulted" on an
"Obligation" of "one or more continuing legal claims for
payment" to the RTC, FDIC, or FSLIC, in any of their
capacities. The RTC has determined that certain types
of litigation may involve such a Default on an Obligation
and result in a determination and notice of asset
purchase ineligibility. Therefore, a Potential Purchaser
must certify that no litigation exists between the
Potential Purchaser and the RTC, the FDIC, or the FSLIC,
in any of their capacities. If litigation does exist and
the Potential Purchaser wishes to request a review for
purposes of asset purchase eligibility, the potential
Purchaser must make a timely (i.e. a minimum of ten
business days), full disclosure to the Office of Case
Management and Program Compliance. In no event will an
asset sale be delayed based upon such a request by a
Potential Purchaser.
The determination of whether a particuLar litigation
involves a Default on an obligation will be made by the
RTC's Office of Case Management and Program
Compliance(CMPC) in consultation with the Office of
Ethics, the Division of Legal Services, and other
relevant RTC officials on a case-by-case basis. The fact
that the "offending" offices or persons have or can be
screened from RTC asset sales will not be relevant to
this determination. It will be the responsibility of the
Potential Purchaser to disclose all existing litigation
no later than 10 days prior to the bid date.
If CMPC determines that a Potential Purchaser has assets
purchaser eligibility, notwithstanding the existing
litigation, the Potential Purchaser must agree that such
determination may not be used as a defense in the pending
litigation.
19. Q. Do Defaults on Obligations to repay advances under a
Letter of Credit result in asset purchase ineligibility?
A. Yes. Provided the thrift has advanced funds on behalf of
the account party, and there is a Default on an
Obligation on a continuing legal claim for payment based
on the money borrowed under the Letter of Credit
Agreement.
20. Q. Does the policy apply to third parties who have Defaults
and who are financing a borrower's settlement?
A. No. Settlement arrangements do not fall under the
Collection Policy. In some cases, the note is assigned to
a third party as part of the settlement arrangement.
This practice is not considered a sale for purposes of
this policy.
21. Q. Is a borrower in Default if it makes partial payments?
A. Yes, unless the payments are in accord with an approved,
written forbearance agreement.
22. Q. Does this policy apply to Defaults on non-recourse loans?
A. Generally yes, unless the borrower's legal obligation has
been contractually extinguished by, but not limited to,
foreclosure, deed-in-lieu of foreclosure, or other asset
reconveyance provisions, as applicable. However, in the
case of RTC post-intervention, non-recourse, seller
financing, the Collection Policy will not apply unless
the borrower refuses to reconvey the asset or there is
some other material dispute between the parties regarding
that transaction.
23. Q. Is a borrower in Default if it continues to make
principal and interest payments but has missed its
balloon payment?
A. Yes, if the balloon payment is 90 days or more past due.
24. Q. Does the Collection Policy apply to guarantors of
Defaulted Obligations?
A. Yes. The Collection Policy applies once the guarantee
Obligations arise, any necessary notice is given, and a
Default of such guarantee Obligations occurs pursuant to
the contract, and other relevant law.
25. Q. Can a third party report a Prospective Purchaser believed
ineligible, for whatever reason?
A. Yes. A person who believes that a Potential Purchaser is
unable to make a Certification or has falsely made a
Certification, may contact CMPC. CMPC will determine
whether sufficient information is provided to warrant
initiation of a formal review of a Potential Purchaser's
eligibility.
26. Q. Are executory sales of assets assignable and, if so, must
the assignee execute the Collection Policy Certification
by Proposed Purchaser prior to such formal assignment and
final sale?
A. In the event that the RTC agrees to an assignment of
sale, the RTC will require that the third party purchaser
sign the Collection Policy Certification.
27. Q. Does the Collection Policy apply to the sale of assets
encumbered by contractual "first refusal" rights?
A. The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 ("FIRREA") provides that the RTC
may, as conservator or receiver, transfer any asset or
liability without any approval, assignment, or consent
with respect to such transfer, except as required by the
appropriate federal banking agencies.
12 USC +SEC 1821(d)(2)(G).
Consistent with this federal statutory authority, the RTC
has consistently asserted that it may transfer any asset
or liability, even those subject to contractual "first
refusal" rights, to any party. The purchasing party,
however, must comply with that contractual "first
refusal" right when it transfers the asset, unless such
rights have been extinguished by default or otherwise.
28. Q. Does entering into modification of a loan under a
bankruptcy reorganization plan constitute a "settlement"
for purposes of this policy?
A. Yes, provided the reorganization plan has been approved
by the bankruptcy court and payments under the revised
terms are current.
29. Q. Are sales of subsidiary assets covered by the policy?
A. Yes. If the sale of assets out of a subsidiary of a
financial institution is made by RTC (i.e., RTC is
conducting the sale), the policy will apply.
30. Q. Are a purchaser's independent employee benefit plans for
its employees an affiliated business entity which must be
included in the Collection Policy Certification?
A. Given the unique nature of employee benefit plans, for
purposes of the Collection Policy, the RTC considers them
as a non-affiliated business entity, separate and
distinct from the Proposed Purchaser. Of course, if an
employee benefit plan was itself the Prospective
Purchaser and such plan was in Default on an Obligation
to an institution under the control of the RTC, FDIC, or
FSLIC, then the Collection Policy would apply to that
entity.
31. Q. Are sales of "Covered Assets" (i.e., those assets
receiving yield maintenance and loss protection through
assistance agreements) subject to the Collection Policy?
A. No. Covered Assets are under the jurisdiction of private
institutions and therefore are not subject to the
Collection Policy.
32. Q. What is a "Restricted Purchaser" and under what
circumstances may a Restricted Purchaser participate in
the RTC asset sale program?
A. The Office of Case Management and Program Compliance may
determine that an entity is a "Restricted Purchaser,"
ineligible to participate in the RTC asset sales program,
except as set forth below. CMPC will provide
confidential written notice and explanation of the
determination.
As stated above, a Restricted Purchaser is ineligible to
purchase assets directly. Similarly, a Restricted
Purchaser may not purchase assets indirectly to any
extent (i.e., there is no allowable de minimis level), or
in any capacity (i.e., the form of organization of the
restricted Purchaser and of the Restricted Purchaser
within the particular purchasing entity is irrelevant)
provided the Potential Purchaser was formed after the
Restricted Purchaser received written notice of its
status.
If the Potential Purchaser includes a Restricted
Purchaser and was formed after such date, the formation
shall be presumed to be an attempt to circumvent the
Collection Policy and shall render such Potential
Purchaser ineligible.
If the Potential Purchaser was formed before such date
and the Restricted Purchaser has a passive interest
(i.e., an equity interest of less than 5%) and the
Restricted Purchaser does not constitute an Affiliated
Business Entity of the Potential Purchaser such Potential
Purchaser will have a presumption of eligibility, subject
to RTC review.
33. Q. What obligations does a Potential Purchaser have
regarding the identification and disclosure of Restricted
Purchasers?
A. As a result of the confidentiality of Restricted
Purchaser status, it is incumbent upon Restricted
Purchasers to make appropriate disclosures to otherwise
qualified Prospective Purchasers of RTC assets with which
it may become affiliated.
Potential Purchasers must inquire about Restricted
Purchaser status during their review and determination of
Affiliated Business Entities, and must report any
involvement by a Restricted Purchaser as now required by
the Collection Policy Certification.
34. Q. How can Large Entity Purchasers with a myriad of
Affiliated Business Entities provide an unqualified
statement that neither the Potential Purchaser nor its
Affiliated Business Entities are in Default.
A. The RTC recognizes that the size and complexity of
certain firms may make unqualified Certifications
difficult, if not administratively impossible. In the
contracting program, upon an appropriate showing that the
size and complexity of the firm make full certifications
for all of the firm's Related Entities administratively
impossible, the RTC has permitted large firms to limit
their related entities for purposes of completing the
contracting certifications. With respect to defaults,
contractors with related entity limitations need only
certify that, on the basis of "Reasonable Efforts," no
Affiliated Business Entity of the contractor has a
Default on an Obligation to the RTC/FDIC. The asset sales
program will parallel the contracting program
regarding Large Entity Purchaser status.
35. Q. How will Large Entity Purchaser status be conferred?
A. Firms that participate in the RTC's contracting program
and have been subject to a formal decision by the
Contractors Conflicts Committee or the Ethics Officer
limiting their Related Entities for certification
purposes need not request Large Entity Purchaser status.
Such contractors are deemed to be Large Entity Purchasers
for purposes of the asset purchase program and will
maintain the schedules and procedures as established in
the contracting program.
A firm that has neither participated nor requested a
Related Entity Limitation in the contracting program may
seek a determination that it is a Large Entity Purchaser
by submitting a request to CMPC. The firm should provide
a detailed description of its size and organizational
structure and state that it believes that it cannot make
the required certification by reason of its size or
complexity. Decisions on such requests will be made by
the Office of Ethics, in consultation with CMPC and other
appropriate RTC personnel, in the same manner and on the
same basis as Related Entity Limitation decisions in the
RTC's contracting program.
36. Q. What certification standards will be applied to Large
Entity Purchasers?
A. Large Entity Purchasers will be required to certify that
based on "Reasonable Efforts" to ascertain whether
defaults exist, there are no Affiliated Business Entity
defaults subject to the Collection Policy.
In conferring Large Entity Purchaser status, the RTC will
require the potential purchaser to establish a schedule
to use its "Best Efforts" to poll all of its Affiliated
Business Entities for Defaults on an annual basis.
Contractors with related entity limitations have already
established annual "Best Efforts" schedules, and such
contractors will not be required to estabLish new
schedules for the asset purchase program. Conferral of
Large Entity Purchaser status and the resulting best" and
"Reasonable Efforts" certification standard, however, are
within the sole discretion of the RTC. "Reasonable
Efforts" are defined by the totality of the
circumstances, and the failure to consider a Default may
be grounds for institution of administrative proceedings
to exclude the purchaser if the RTC determines that the
firm did not use "Reasonable Efforts" in completing the
certification.
37. Q. Will Large Entity Purchaser determinations be available
within the time constraints associated with responding to
bid deadlines?
A. Potential Purchasers who believe that they cannot provide
the required certifications by virtue of their size and
the complexity of their organizational structure are
advised to seek such limitations as soon as possible and
not wait until a bid deadline is imminent. If a Potential
Purchaser waits too long before requesting such relief,
there may be inadequate time within which to consider and
act on the request before the bid date. The RTC will not
extend a bid deadline or, in any other way, delay an
asset sale for reasons of a pending a administrative
determination.
38. Q. If a Potential Purchaser is the successful bidder in a
RTC sales transaction, but then Defaults on its
Obligation to consummate the sale and such Defaulted
Obligation causes a loss to the RTC, is the Potential
Purchaser in violation of the Collection Policy, and
therefore, ineligible for future RTC sale transactions?
A. A failure to consummate a sale causes losses to the RTC
in the form of increased holding, administrative,
marketing, interest, and other transaction costs, as well
as diminished sales price. Forfeited earnest money
deposits may be insufficient to satisfy the aggregate
loss to the RTC; therefore, unless the RTC has
contractually agreed to relinquish all claims for losses
(i.e., a comprehensive liquidated damages provision) or
otherwise agrees in writing to a settlement, the
earnest money deposit forfeiture will be offset against
the total loss and any residual loss constitutes a
continuing legal claim for payment (i.e., an Obligation)
by the RTC.
If the Potential Purchaser does not satisfy this
Obligation, then the losses incurred may constitute a
Defaulted Obligation and render the Potential Purchaser
a Restricted Purchaser. If the Potential Purchaser fails
to comply with the bid instructions and/or the purchase
sale agreement (e.g., fails to close) then the Defaulted
Obligation occurs immediately upon such failure. However,
if the Potential Purchaser and the RTC agree in writing
to postpone the purchaser's required performance (e.g.,
closing) to another date, then the Defaulted Obligation
occurs on the earLier of the expiration of the extended
period or the receipt of notice of refusal to meet the
agreed upon terms.
In any event, the RTC will provide written notice of the
imposition and explanation of Restricted Purchaser
status, and the existence, effective date, and good faith
estimate of known and anticipated losses caused by the
underlying Defaulted Obligation. The precise, final
amount of loss, however, cannot be known until such time
as the asset has been sold to another party. As always,
Restricted Purchasers are ineligible for all future RTC
sale transactions until such time as they satisfy their
Defaulted Obligations.
<PAGE>
CERTIFICATION BY PROPOSED PURCHASER
TO COMPLY WITH 12 CFR PART 1620
This certification is given in connection with the proposed
purchase of certain assets ("the assets") by the Proposed Purchaser
(identified below) from the Resolution Trust Corporation ("RTC") in
its corporate, receivership, and/or conservatorship capacities.
The undersigned has received a copy of, and has read, 12 CFR Part
1620.
The undersigned hereby certifies that none of the restrictions set
forth in 12 CFR Part 1620 would apply to the sale of any of the
assets to the Proposed Purchaser.
In signing this certification, the undersigned represents and
warrants that he or she has the authority to execute this
certification on behalf of the Proposed Purchaser. The undersigned
also warrants that this certification is true and correct.
Proposed Purchaser: The Parkway Company
By: /s/Steven G. Rogers / /s/Sarah P. Clark
Title: President / Vice President
Dated: June 14, 1995
NOTICE: Any purchaser or representative who knowingly or
willfully makes false or fraudulent statements or
representations will be referred to the Office of
Inspector General and/or the appropriate law enforcement
officials for investigation and legal enforcement, and
may be subject to fines and/or imprisonment (see, e.g.,
18 USC Sections 1001, 1007, 1014, 1621).
<PAGE>
Part 1620 - RESTRICTIONS ON SALE OF ASSETS BY THE RESOLUTION TRUST
CORPORATION
Sec.
1620.1 Purpose and scope.
1620.2 Definitions.
1620.3 Restrictions on the sale of assets by the RTC in
conjunction with a loan or extension of credit.
1620.4 Restrictions on the sale of assets by the RTC regardless
of the method of financing.
1620.5 Independent determination of eligibility for seller
financing.
1620.6 Certain asset sales unaffected by this part.
1620.7 Certification required.
Authority: 12 U.S.A 1441a(b)(12) and (f).
SEC 1620.1 Purpose and Scope.
(a) The Resolution Trust Corporation is prohibited from
selling assets that were or are held by savings associations that
have been placed under the conservatorship or receivership of the
Resolution Trust Corporation to certain persons who profited or
engaged in wrongdoing at the expense of those savings associations,
or seriously mismanaged those savings associations.
(b) The restrictions of this part generally apply only
when there is a connection between a savings association that now
holds or formerly held one or more assets, and the prospective
purchaser whose conduct injured that specific savings association.
The restrictions apply even though the assets are no longer owned
by the savings association that the prospective purchaser injured.
Provided, That, unless the RTC determines otherwise, the
restrictions shall not apply to sales of securities backed by pools
of assets which may include assets of such savings association.
Except as specified, this part does not establish a general
prohibition against the sale of assets of savings associations
under the control of the Resolution Trust Corporation to a
prospective purchaser who may have injured one or more savings
associations other than the savings association(s) whose assets the
purchaser seeks to purchase.
SEC 1620.2 Definition.
(a) Corporation means the Resolution Trust Corporation in
its corporate capacity.
<PAGE>
(b) Key official means a management official, managing or
general partner, or director of an entity, or an individual who,
acting individually or in concert with one or more entities or
individuals, owns or controls 25 percent or more of the ownership
of an entity, or otherwise controls the entity's management or
policies.
(c) Management official means an individual within an
organization who has substantial responsibility for the direction
and control of the organization's policies and operations.
(d) Person includes an individual, or an entity with a
legally independent existence, including, without limitation, a
trustee; the beneficiary of at least a 25 percent share of the
proceeds of a trust; a partnership; a corporation; an association;
a society; or other organization or institution.
(e) RTC means the Resolution Trust Corporation as
corporation, as conservator, or as receiver, as the context
indicates.
SEC 1620.3 Restrictions on the sale of assets by the RTC in
conjunction with a loan or extension of credit.
(a) Neither the Corporation, nor a savings association
that is under the conservatorship or receivership of the RTC, may,
in selling one or more assets of any savings association that was
or is under the conservatorship or receivership of the RTC, provide
a loan, advance, or other extension of credit, to a person if--
(1) That person, or a key official of that person,
has defaulted, or has been a key official of a partnership or a
corporation which defaulted, on one or more obligations to any
savings association; and
(2) The person or its key official has been
determined by a court or administrative tribunal to have engaged
in, or is subject to a pending judicial or administrative action
brought by the RTC or a component of the government of the United
States or of any state alleging fraudulent activity in connection
with any such obligation.
(b) It shall be a violation of paragraph (a) of this
section for a person under such circumstances to purchase, using a
loan, advance, or other extension of credit provided by the
Corporation or such savings association, one or more assets of a
subject savings association.
(c) For purposes of paragraph (a) of this section, a
person or its key official is considered to have defaulted on an
obligation only if the person or its key official has failed to<PAGE>
comply with the terms of the loan or other obligation to such an
extent that the property securing the obligation is foreclosed
upon. Paragraph (a) of this section does not apply to the failure
to satisfy an unsecured obligation.
(d) The restrictions in paragraph (a) of this section do
not apply if the sale or transfer of an asset resolves or settles,
or is part of the resolution or settlement of, obligations owed by
the person or its key official(s) to the savings association whose
assets are being sold, or to the Corporation.
SEC 1620.4 Restrictions on the sale of assets by the RTC
regardless of the method of financing.
(a) Neither the Corporation, nor a savings association
that is under its conservatorship or receivership, may sell one or
more assets of a savings association that was or is under the
conservatorship or receivership of the RTC, to any person if the
person or any key official of that person--
(1) Has participated, as an officer or director
of the same savings association, or of an affiliate of that savings
association, in a material way in one or more transaction(s) that
resulted in an aggregate loss of more than $50,000 to that savings
association, taking into account any net proceeds from the sale of
collateral; or
(2) Has been removed from, or prohibited from
participating in the affairs of, the savings association whose
asset(s) is (are) being sold, pursuant to any final enforcement
action by a Federal banking agency (defined at 12 U.S.C. 1813(q));
or
(3) Has demonstrated a pattern or practice of
defalcation regarding obligations to the savings association whose
assets(s) is (are) being sold.
(b) The restrictions of paragraphs (a)(1) and (a)(3) of
this section shall not apply if the sale or transfer of an asset
resolves or settles, or is part of the resolution or settlement of,
obligations owed by the person or its key official(s) to the
savings association whose assets are being sold, or to the
Corporation.
(c) For purposes of paragraph (a) of this section,
"affiliate" is defined as any company that controls, is controlled
by, or is under common control with, another company. Control shall
be defined as it is defined in 12 U.S.C.
1841(a)(2) on August 20, 1992.
<PAGE>
(d) For purposes of paragraph (a) of this section, a
"loss" is a net loss where a savings association has written off a
receivable, either because it was required to do so by an examiner,
auditor or regulator, or elected to write off the receivable using
applicable accounting principles.
(e) For purposes of paragraph (a) of this section, an
individual or entity has participated in a material way in a
transaction that caused a loss to a savings association if the
individual or entity:
(1) Has been found in a final determination by a
court or administrative tribunal, or is alleged in a judicial or
administrative action brought by the RTC or by any component of the
government of the United States or of any State--
(i) To have violated any law, regulation
or order issued by a Federal banking agency, or breached or
defaulted on a written agreement with a Federal banking agency, or
breached a written agreement with a savings association; or
(ii) To have engaged in an unsafe or
unsound practice in conducting the affairs of the savings
association; or
(iii) To have breached a fiduciary duty owed
to that savings association; or
(2) Is in default on a written agreement
(including, but not limited to, a contract for goods or services,
note, deed of trust, mortgage, loan agreement) with a savings
association.
(f) For purposes of paragraph (a) of this section, a
person or its key official shall have demonstrated a pattern or
practice of defalcation regarding obligations to a savings
association if the person or key official has engaged in any or all
of the following:
(1) The person or key official has defaulted on
more than one obligation to pay principal or interest to the
savings association, and the savings association or its successor
has continuing legal claims based upon these defaults in an
aggregate amount in excess of $50,000; or
(2) The person or key official has engaged in
more than one act that was intended to cause a loss
to the savings association; or
<PAGE>
(3) The person or key official, as a borrower,
entered into more than one loan agreement with the savings
association, the making of which was an unsafe or unsound action of
the association on the basis of facts that the borrower knew or
should have known, and the borrower defaulted on the loans in the
aggregate amount of $50,000 or more.
(g) For purposes of paragraph (e) and (f) of this
section, the term "default" means a delinquency of 90 or more days
as to payment of principal or interest; or the failure to comply
with the terms and conditions of a contract or other written
agreement, other than a loan or advance.
(h) It shall be a violation of this part for any person
to purchase an asset that the RTC or a savings association under
its conservatorship or receivership is prohibited from selling to
that person if circumstances exist that would cause any of the
restrictions enumerated in paragraph (a) of this section to apply.
SEC 1620.5 Independent determination of eligibility for seller
financing.
The ability of an offeror to certify that none of the
restrictions set forth in this part is applicable, does not create
any right to obtain a loan or advance by or through the RTC or a
savings association under its conservatorship or receivership, or
remove the right of the RTC to make an independent determination,
based upon all relevant facts of the offeror's financial condition
and history, of the offeror's eligibility to receive such loan or
advance.
SEC 1620.6 Certain asset sales unaffected by this part.
The effectiveness of this part shall not be grounds for
rescission or revocation of the sale of one or more assets, or the
withholding of seller financing by the RTC, if a legally
enforceable contract of sale and/or agreement for seller financing
was in effect prior to August 20, 1992.
<PAGE>
SEC 1620.7 Certification required.
The Corporation, or a savings association under its
conservatorship or receivership, may not sell any asset, and no
person shall buy any asset from the RTC or a savings association
under its conservatorship or receivership, unless the person shall
have certified, under penalty of perjury, with notice that a false
certification may lead to punishment under 18 U.S.C. 1001 and 18
U.S.C. 1621, that none of the above restrictions applies to the
sale of that asset. Provided That, the RTC may in its discretion
permit a person to make an offer to purchase one or more assets,
and may accept such offer, despite the inability to so certify, if
the person acknowledges the inability to certify and submits a bona
fide offer to cure any existing amounts owed to the RTC or the
relevant association in conjunction with the sale of the asset(s).
<PAGE>
AFFIDAVIT
I. Steven G. Rogers/Sarah P. Clark, hereby certify that l am not
an individual who -
(name of individual)
A. has been convicted of an offense under section 215, 656,
657, 1005, 1006, 1007, 1008, 1014, 1032, 1341, 1343, or
1344 of title 18, United States Code (text of such
sections attached), or of conspiring to commit such an
offense, affecting any insured depository institution for
which any conservator or receiver has been appointed; and
B. is in default (as defined in the attached) on any loan or
other extension of credit from
(name of institution for which RTC has been appointed
receiver or conservator and from which the sale of the
asset is occurring)
which if not paid, will cause a substantial loss (as
defined in the attached) to the institution, the Federal
Deposit Insurance Corporation, the FSLIC Resolution Fund,
or the Resolution Trust Corporation.
By: /s/Steven G. Rogers / /s/Sarah P. Clark
President/Vice President
NOTICE: Whoever knowingly or willfully makes false or fraudulent
statements or representations in connection with the
disclosures and certifications herein will be referred to
the Office of Inspector General and/or the appropriate
law enforcements for investigation and legal enforcement,
and may be subject to fines and/or imprisonment (18 USC
Sections 1001, 1007, and 1014),
<PAGE>
ATTACHMENT TO AFFIDAVIT
A. TEXT OF APPLICABLE SECTIONS, TITLE 18, UNITED STATES CODE
Section 215. Receipt of commissions or gifts for procuring loans
(a) Whoever-
(1) corruptly gives, offers, or promises anything of
value to any Person, with intent to influence or reward
an officer, director, employee, agent, or attorney of a
financial institution in connection with any business or
transaction of such institution; or
(2) as an officer, director, employee, agent, or
attorney of a financial institution, corruptly solicits
or demands for the benefit of any person, or corruptly
accepts or agrees to accept, anything of value from any
person, intending to be influenced or rewarded in
connection with any business or transaction of such
institution;
shall be fined not more than $1,000,000 or three times the value of
the thing given, offered, promised, solicited, demanded, accepted,
or agreed to be accepted, whichever is greater, or imprisoned not
more than 20 years, or both, but if the value of the thing given,
offered, promised, solicited, demanded, accepted, or agreed to be
accepted does not exceed $100, shall be fined not more than $1,000
or imprisoned not more than one year, or both.
(b) Transferred.
(c) This section shall not apply to bona fide salary, wages,
fees, or other compensation paid, or expenses paid or reimbursed,
in the usual course of business.
(d) Federal agencies with responsibility for regulating a
financial institution shall jointly establish such guidelines as
are appropriate to assist an officer, director, employee, agent, or
attorney of a financial institution to comply with this section.
Such agencies shall make such guidelines available to the public.
Section 656. Theft, embezzlement, or misapplication by bank
officer or empLoyee
Whoever, being an officer, director, agent or employee of,
or connected in any capacity with any Federal Reserve bank, member
bank, national bank or insured bank, or a receiver of a national
bank, or any agent or employee of the receiver, or a Federal<PAGE>
Reserve Agent, or an agent or employee of a Federal Reserve Agent
or of the Board of Governors of the Federal Reserve System,
embezzles, abstracts, purloins or willfully misapplies any of the
moneys, funds or credits of such bank or any moneys, funds, assets
or securities intrusted to the custody or care of such bank, or to
the custody or care of any such agent, officer, director, employee
or receiver, shall be fined not more than $1,000,000 or imprisoned
not more than 20 years, or both; but if the amount embezzled,
abstracted, purloined, or misapplied does not exceed $100, he shall
be fined not more than $1,000 or imprisoned not more than one year,
or both.
As used in this section, the term "national bank" is
synonymous with "national banking association"; "member bank" means
and includes any national bank, state bank, or bank and trust
company which has become a member of one of the Federal Reserve
banks; and "insured bank" includes any bank, banking association,
trust company, savings bank, or other banking institution, the
deposits of which are insured by the Federal Deposit Insurance
Corporation.
Section 657. Lending, credit and insurance institutions
Whoever, being an officer, agent or employee of or
connected in any capacity with the Reconstruction Finance
Corporation, Federal Deposit Insurance Corporation, National Credit
Union Administration, Home Owners Loan Corporation, Farm Credit
Administration, Department of Housing and Urban Development,
Federal Crop Insurance Corporation, Farmers' Home Corporation, the
Secretary of Agriculture acting through the Farmers' Home
Administration, or the Farm Credit System Insurance Corporation, a
Farm Credit Bank, a bank for cooperatives or any lending, mortgage,
insurance, credit or savings and loan corporation or association
authorized or acting under the laws of the United States or any
institution the accounts of which are insured by the Federal
Savings and Loan Insurance Corporation or by the National Credit
Union Administration Board or any small business investment
company, and whoever, being a receiver of any such institution, or
agent or employee of the receiver, embezzles, abstracts, purloins
or willfully misapplies any moneys, funds, credits, securities or
any other things of value belonging to such institution, or pledged
or otherwise intrusted to its care, shall be fined not more than
$1,000,000 or imprisoned not more than 20 years, or both; but if
the amount or value embezzled, abstracted, purloined or misapplied
does not exceed $100, he shall be fined not more than $1,000 or
imprisoned not more than one year, or both.
Section 1005. Bank entries, reports and transactions
Whoever, being an officer, director, agent or employee of
any Federal Reserve bank, member bank, bank or savings and loan
holding company, national bank or insured bank, without authority
from the directors of such bank, issues or puts in circulation any
notes of such bank; or
Whoever, without such authority, makes, draws, issues, puts
forth, or assigns any certificate of deposit, draft, order, bill of
exchange, acceptance, note, debenture, bond, or other obligation,
or mortgage, judgment or decree; or
Whoever makes any false entry in any book, report, or
statement of such bank or company with intent to injure or defraud
such bank or company, or any other company, body politic or
corporate, or any individual person, or to deceive any officer of
such bank or company, or the Comptroller of the Currency, or the
Federal Deposit Insurance Corporation, or any agent or examiner
appointed to examine the affairs of such bank or company, or the
Board of Governors of the Federal Reserve System;
Whoever with intent to defraud the United States or any
agency thereof, or any financial institution referred to in this
section, participates or shares in or receives (directly or
indirectly) any money, profit, property, or benefits through any
transaction, loan, commission, contract, or any other act of any
financial institution--
Shall be fined not more than $1,000,000 or imprisoned not
more than 20 years, or both.
As used in this section, the term "national bank" is
synonymous with "national banking association"; "member bank" means
and includes any national bank, state bank, or bank or trust
company which has become a member of one of the Federal Reserve
banks; and "insured bank" includes any state bank, banking
association, trust company, savings bank, or other banking
institution, the deposits of which are insured by the Federal
Deposit Insurance Corporation.
Section 1006. Federal credit institution entries, reports and
transactions
Whoever, being an officer, agent or employee of or connected
in any capacity with the Reconstruction Finance Corporation,
Federal Deposit Insurance, National Credit Union Administration,
Home Owners' Loan Corporation, Farm Credit Administration,
Department of Housing and Urban Development, Federal Crop Insurance
Corporation, Farmers' Home Corporation, the Secretary of
Agriculture acting through the Farmers' Home Administration, or the
Farm Credit System Insurance Corporation, a Farm Credit Bank, a<PAGE>
bank for cooperatives or any lending, mortgage, insurance, credit
or savings and loan corporation or association authorized or acting
under the laws of the United States or any institution the accounts
of which are insured by the Federal Savings and Loan Insurance
Corporation or by the National Credit Union Administration Board,
or any small business investment company, with intent to defraud
any such institution or any other company, body politic or
corporate, or any individual, or to deceive any officer, auditor,
examiner or agent of such institution or of department or agency of
the United States, makes any false entry in any book, report or
statement of or to any such institution, or without being duly
authorized, draws any order or bill of exchange, makes any
acceptance, or issues, puts forth or assigns any note, debenture,
bond or other obligation, or draft, bill of exchange, mortgage,
judgment, or decree, or, with intent to defraud the United States
or any agency thereof, or any corporation, institution, or
association referred to in this section, participates or shares in
or receives directly or indirectly any money, profit, property, or
benefits through any transaction, loan, commission, contract or any
other act of such corporation, institution, or association, shall
be fined not more than $1,000,000 or imprisoned not more than 20
years, or both.
Section 1007. Federal Deposit Insurance Corporation Transactions
Whoever, for the purpose of influencing in any way the
action of the Federal Deposit Insurance Corporation, knowingly
makes or invites reliance on a false, forged, or counterfeit
statement, document, or thing shall be fined not more than
$1,000,000 or imprisoned not more than 20 years, or both.
Section 1008. Federal Savings and Loan Insurance Corporation
transactions
Whoever, for the purpose of inducing the insurance of the
accounts of any institution by the Federal Savings and Loan
Insurance Corporation or for the purpose of obtaining any extension
or renewal of such insurance by such Corporation or for the purpose
of influencing in any way the action of such Corporation, makes,
passes, utters, or publishes any statement, knowing the same to be
false; or
Whoever, for the purpose of influencing in any way the
action of such Corporation, utters, forges, or counterfeits any
instrument, paper, or document, or utters, publishes, or passes as
true any instrument, paper, or document, knowing it to have been
uttered, forged, or counterfeited, or willfully overvalues any
security, asset, or income, of any institution insured or applying
for insurance by said Corporation--
Shall be fined not more that $5,000 or imprisoned not more
than two years, or both.
Section 1014. Loan and credit application generally; renewals and
discounts; crop insurance
Whoever, knowingly makes any false statement or report, or
willfully overvalues any land, property or security,for the purpose
of influencing in any way the action of the Reconstruction Finance
Corporation, Farm Credit Administration, Federal Crop Insurance
Corporation, Farmers' Home Corporation, the Secretary of
Agriculture acting through the Farmers' Home Administration, any
Farm Credit Bank, production credit association, agricultural
credit association, bank for cooperatives, or any division,
officer, or employee thereof, or of any regional agricultural
credit corporation established pursuant to law, or of the National
Agricultural Credit Corporation, a Federal land bank, a Federal
land bank association, a Federal Reserve bank, a small business
investment company, a Federal credit union, an insured State-
chartered credit union, any institution the accounts of which are
insured by the Federal Deposit Insurance Corporation, the Federal
Home Loan Bank System, the Federal Deposit Insurance Corporation,
the Resolution Trust Corporation, the Farm Credit Insurance
Corporation, or the National Credit Union Administration Board,
upon any application, advance, discount, purchase, purchase
agreement, repurchase agreement, commitment, or loan, or any change
or extension of any of the same, by renewal, deferment, or action
or otherwise, or the acceptance, release, or substitution of
security therefor, shall be fined not more than $1,000,000 or
imprisoned not more than 20 years, or both.
Section 1032. Concealment of assets from conservator, receiver, or
liquidating agent of financial institution
Whoever--
(1) knowingly conceals or endeavors to conceal an
asset or property from the Federal Deposit Insurance Corporation,
acting as conservator or receiver or in the Corporation's corporate
capacity with respect to any asset acquired or liability assumed by
the Corporation under Section 11, 12, 13, the Resolution Trust
Corporation, any conservator appointed by the Comptroller of the
Currency or the Director of the Office of Thrift Supervision, or
the National Credit Union Administration Board, acting as
conservator or liquidating agent;
(2) corruptly impedes or endeavors to impede the
functions of such Corporation, Board, or conservator, or
(3) corruptly places or endeavors to place an asset
or property beyond the reach of such Corporation, Board, or
conservator,
shall be fined under this title or imprisoned not more than 5
years, or both.
Section 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises, or
to sell, dispose of, loan, exchange, alter, give away, distribute,
supply, or furnish or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other article, or anything
represented to be or intimated or held out to be such counterfeit
or spurious article, for the purpose of executing such scheme or
artifice or attempting so to do, places in any post office or
authorized depository for mail matter, any matter or thing whatever
to be sent or delivered by the Postal Service, or takes or receives
therefrom, any such matter or thing, or knowingly causes to be
delivered by mail according to the direction thereon, or at the
place at which it is to be delivered by the person to whom it is
addressed, any such matter or thing, shall be fined not more than
$1,000 or imprisoned not more than five years, or both. If the
violation affects a financial institution, such person shall be
fined not more than $1,000,000 or imprisoned not more than 20
years, or both.
Section 1343. Fraud by wire, radio, or television
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined not more than
$1,000 or imprisoned not more than five years, or both. If the
violation affects a financial institution, such person shall be
fined not more than $1,000,000 or imprisoned not more than 20
years, or both.
Section 1344. Bank fraud
Whoever knowingly executes, or attempts to execute, a scheme
or artifice--
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets
securities, or other property owned by, or under the custody
or control of, a financial institution, by means of false or
fraudulent pretenses, representations, or promises:
shall be fined not more than $1,000,000 or imprisoned not more than
20 years, or both.
B. DEFINITIONS
(1) "Default" means a failure to comply with the terms of a loan
or other obligation to such an extent that the property securing
the obligation is foreclosed upon.
(2) "Loss" means:
(a) an obligation as to which there is a continuing legal
claim that is owed to an insured depository institution,
or to the federal deposit insurance funds, FSLIC, or to
RTC that is 12 month or more delinquent as to principal
and interest; or
(b) an obligation to pay an outstanding, unsatisfied, final
judgment based on any legal theory in favor of any
insured depository institution, federal deposit insurance
funds, FSLIC, or RTC.
(3) "Substantial loss" means a loss of more than $50,000 to the
insured depository institution or to the funds maintained by a
Federal deposit insurance agency for the protection of depositors.
<PAGE>
All terms used in this Exhibit shall have the same respective
meanings as are set forth in the Purchase and Sale Agreement to
which this Exhibit is attached.
1. If Seller notifies Closing Agent that Seller is entitled
to the Deposit pursuant to the terms of the Agreement ("Seller's
Notice"), then Closing Agent shall promptly give a copy of the
Seller's Notice to Buyer. Buyer shall have fifteen (15) days after
Buyer's receipt of said copy to give notice to Closing Agent
objecting to the release of the Deposit to Seller ("Buyer's
Objection Notice"). If Closing Agent does not receive a Buyer's
Objection Notice within said period, then Closing Agent shall pay
the Deposit to Seller. If Closing Agent does receive a Buyer's
Objection Notice within said period, then Closing Agent shall not
release the Deposit except (a) in accordance with written
instructions signed by both Buyer and Seller or a final order of a
court of competent jurisdiction, or (b) by depositing the same in
a court of competent jurisdiction in connection with an
interpleader.
2. If Buyer notifies Closing Agent that Buyer is entitled to
the Deposit pursuant to the terms of the Agreement ("Buyer's
Notice"), then Closing Agent shall promptly give a copy of the
Buyer's Notice to Seller. Seller shall have fifteen (15) days
after Seller's receipt of said copy to give notice to Closing Agent
objecting to the release of the Deposit to Buyer ("Seller's
Objection Notice"). If Closing Agent does not receive a Seller's
Objection Notice within said period, then Closing Agent shall pay
the Deposit to Buyer. If Closing Agent does receive a Seller's
Objection Notice within said period, then Closing Agent shall not
release the Deposit except (a) in accordance with written
instructions signed by both Buyer and Seller or a final order of a
court of competent jurisdiction, or (b) by depositing the same in
a court of competent jurisdiction in connection with an
interpleader.
3. Any failure on the part of Buyer to give a Buyer's
Objection Notice, or any failure on the part of Seller to give a
Seller's Objection Notice, within the applicable fifteen (15)-day
period shall serve only to direct the Closing Agent as aforesaid,
but shall not serve as a waiver of any Claims or defenses the Buyer
or the Seller may have against one another.
Exhibit "J"
(Provisions with Respect to Closing Agent)
<PAGE>
4. In performing its duties under the Agreement, Closing
Agent may rely upon any Notices given to Closing Agent under the
Agreement and reasonably believed by Closing Agent to be genuine
and to have been signed and given by the proper party or parties.
Closing Agent shall be under no duty to make any inquiry as to the
form, genuineness, proper execution, or accuracy of any such
Notice.
5. If Closing Agent deposits the Deposit into a bank or
savings and loan in accordance with Section 3.2 of the
aforementioned purchase and Sale Agreement, then Closing Agent
shall not be liable for all or any portion of the Deposit lost in
connection with a take-over or failure of that bank or savings and
loan.
6. Closing Agent shall not be liable for any action taken by
Closing Agent in good faith and reasonably believed by Closing
Agent to be authorized or within the rights or powers conferred
upon Closing Agent by the Agreement. Closing Agent may consult
with an independent attorney of its own choice. Closing Agent
shall have full and complete authorization and protection for any
actions taken or suffered by Closing Agent in good faith and in
accordance with the opinion of such attorney.
7. Closing Agent may resign from any further duties or
obligations under the Agreement by giving notice of such
resignation and of the date when the resignation shall take effect.
Such date shall not be earlier than thirty (30) days after the
giving of said notice. Furthermore, Seller may, with or without
cause, in Seller's sole and absolute discretion, discharge Closing
Agent at any time. If Closing Agent resigns or is discharged,
Seller shall arrange for an independent person or entity, chosen by
Seller in Seller's sole and absolute discretion ("New Closing
Agent") to assume the duties of Closing Agent. The New Closing
Agent shall execute an instrument evidencing its assumption of the
duties of Closing Agent under the Agreement. Seller shall notify
Buyer and Closing Agent promptly of the appointment of the New
Closing Agent. Upon its receipt of such notice, Closing Agent
shall deliver the Deposit to the New Closing Agent. If Closing
Agent does not receive notice of the appointment of the New Closing
Agent by the effective date of the Closing Agent's resignation, the
Closing Agent shall deposit the Deposit with a court of competent
jurisdiction.
8. If conflicting demands or notices are served upon the
Closing Agent with respect to the Agreement within the applicable
time limits set forth herein (if any), then Closing Agent (a) shall
not comply with any of said demands or notices, and (b) may file a
suit in interpleader in a court of competent jurisdiction and
deposit the Deposit with that court pursuant to such filing. Under
those circumstances, the Closing Agent shall not be liable for
damages or injuries to Seller or Buyer or any other person for such
failure to comply. Closing Agent shall continue to so refuse to
comply with such conflicting demands or notices until either (a)
the rights of claimants have been finally adjudicated by a court of
competent jurisdiction, or (b) Buyer and Seller have resolved the
conflict and have so notified Closing Agent.
9. Closing Agent's and New Closing Agent's respective fees
for the performance of their respective duties under the Agreement
shall be such amount as is negotiated by Seller and Closing Agent,
or Seller and New Closing Agent, as the case may be. Buyer and
Seller shall be jointly and severally liable for those fees and
expenses.
10. Buyer and Seller shall, jointly and severally, defend,
indemnify and hold harmless Closing Agent from and against all
Claims asserted against or incurred by Closing Agent in connection
with the performance of Closing Agent's duties under the Agreement,
except any Claims that arise out of (a) any intentional misconduct
of Closing Agent, or (b) any default with respect to Closing
Agent's duties under the Agreement.
<PAGE>
Exhibit "K"
(Intentionally Deleted)
<PAGE>
Exhibit "L"
(Intentionally Deleted)
<PAGE>
Exhibit "M"
TAX ADDENDUM
This Addendum is attached to and made a part of that certain
Purchase and Sale Agreement (the "Agreement") by and between
RESOLUTION TRUST CORPORATION in the capacity therein stated, as
"Seller", and The Parkway Company, a Texas Corporation,as "Buyer",
pertaining to the property known as Security Centre' Office
Buildings. This Addendum is effective as of the Effective Date of
the Agreement, and the terms of this Addendum shall control any
contrary terms or provisions contained in the Agreement. All terms
used herein and not otherwise defined shall have the meanings given
them in the Agreement.
1. Rollback Taxes. Any ad valorem real estate taxes for any
Accounting Period which become due at or after the Adjustment Time
because of a change in land usage or ownership of the Property
("Rollback Taxes") shall be paid by Buyer, and Buyer shall
indemnify and save Seller harmless from and against all claims and
liability for such Rollback Taxes.
2. Right to Contest Taxes. Seller shall have the
unrestricted right to contest the amount of or obligation to pay
any Taxes for an Accounting Period that includes the Adjustment
Time (the "Closing Accounting Period") or that precedes the
Adjustment Time. Seller may contest Taxes by any judicial,
administrative, or other process that Seller chooses. If requested
by Seller, Buyer shall join in any proceeding to contest Taxes to
the extent necessary to permit Seller to exercise its rights under
this Addendum. Seller shall have no duty to contest Taxes, and may
dismiss, settle, or otherwise resolve any matter relating to
contested Taxes on whatever terms Seller chooses.
3. Entitlement to Refund. Any refund of or other reduction
in contested Taxes for the Closing Accounting Period or any prior
Accounting Period shall be for the benefit of Seller, and Buyer
hereby irrevocably assigns to Seller any right, title, or interest
it may have in any refund of or other reduction in contested Taxes
for all such Accounting periods. If requested by Seller, Buyer
shall execute whatever endorsements or other documents may be
necessary in order that Seller shall receive the benefit of the
refund of or other reduction in such contested Taxes.
Notwithstanding anything to the contrary in this Addendum or the
Agreement, however, Seller shall not be entitled to any refund or
reduction relating to any Rollback Taxes, as all such Rollback
Taxes shall be paid by Buyer, as provided in Paragraph 1 of this
Addendum.
<PAGE>
4. Adjustments for Closing Accounting Period. If a contest
of Taxes by Seller is concluded before the Adjustment Time, the
proration of the contested Taxes shall be accomplished in
accordance with the Agreement, taking into account any revised
Taxes amount for the Closing Accounting Period. If a contest of
Taxes by Seller is concluded after the Adjustment Time, then an
appropriate adjustment payment shall be made by Buyer or Seller to
the other once the revised Taxes amount for the Closing Accounting
Period becomes available, so that taking into account the
adjustment payment, each will have paid (or been debited for) the
revised Taxes amount for the Closing Accounting Period that results
from Seller's contest in the proportion that the number of days in
the Closing Accounting Period before or after the Adjustment Time,
as the case may be, bears to the total number of days in the
Closing Accounting Period. Notwithstanding anything to the
contrary in this Addendum or the Agreement, however, no adjustment
payment shall be made with respect to any Rollback Taxes, as all
such Rollback Taxes shall be paid by Buyer, as provided in
Paragraph 1 of this Addendum.
5. Contest Costs. Buyer shall pay a share of Seller's out-
of-pocket costs (including legal fees and costs) of contesting
Taxes for the Closing Accounting Period in the proportion that the
number of days in the Closing Accounting Period after the
Adjustment Time bears to the total number of days in the Closing
Accounting Period. If Seller's out-of-pocket costs of contesting
Taxes for the Closing Accounting Period exceed the amount of any
reduction in contested Taxes for the Closing Accounting Period,
Buyer shall not be obligated to pay any share of the excess. If as
part of the same proceeding Seller has also contested Taxes for
Accounting Periods before the Closing Accounting Period, Seller's
out-of-pocket costs shall be allocated to the Closing Accounting
Period in the proportion that the amount of the reduction in
contested Taxes for the Closing Accounting Period bears to the
aggregate amount of all reductions in contested Taxes resulting
from the proceeding. Except as otherwise provided in this
paragraph, any contest of Taxes by Seller shall be at Seller's sole
cost and expense.
6. Payment Procedure. The amount of any adjustment payment
pursuant to Paragraph 4 and the amount of any cost-sharing payment
pursuant to Paragraph 5 shall be combined to determine a net
settlement amount owed by Seller or Buyer to the other. If the net
settlement amount is owed to Seller, that amount shall be due and
payable not later than thirty (30) days after Seller notifies Buyer
in writing of the amount due. If the net settlement amount is owed
to Buyer, that amount shall be due and payable not later than
thirty (30) days after Seller's receipt of any contested Taxes
being refunded to Seller or the conclusion of the contest of Taxes
by Seller, whichever is later. Any notice or payment from Seller
to Buyer shall include a statement reflecting in reasonable detail
how the net settlement amount was calculated and shall include
copies of bills, invoices, or other reasonable documentation of any
out-of-pocket expenses of Seller for which Buyer is to pay a share.
7. Survival. The rights and obligations of the parties under
this Addendum shall survive Closing.
SELLER: BUYER:
RESOLUTION TRUST CORPORATION The Parkway Company
as Receiver for Security
Federal Savings and
Loan Association
By: /s/Ray L. Bommer By: /s/Steven G. Rogers
Name: Ray L. Bommer Name: Steven G. Rogers
Title or
Capacity: Attorney-In-Fact Title: President
By: /s/Sarah P. Clark
Name: Sarah P. Clark
Title: Vice President
