SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): Sept. 30, 1996
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PARKWAY PROPERTIES, INC.
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(Exact name of Registrant as specified in its charter)
Maryland 1-11533 74-2123597
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) Number)
300 One Jackson Place, 188 E. Capitol St., Jackson, MS 39201
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (601) 948-4091
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(Former name or former address, if changed since last report)
FORM 8-K
PARKWAY PROPERTIES, INC.
Item 2. Acquisition or Disposition of Assets.
On September 30, 1996, Parkway Carolina, Inc. a wholly-
owned subsidiary of Parkway Properties, Inc. ("Parkway")
purchased the BB&T Financial Center in Winston-Salem, North
Carolina from a major insurance company. The BB&T Financial
Center is a 19-story Class A office building with approximately
239,000 square feet of rentable area situated in a one-block
landscaped park in the central business district of Winston-
Salem. The building is currently 100% leased to thirteen tenants
with two tenants occupying approximately 74% of the building
under leases expiring in June 2005 and December 2007. The
purchase price of $24,500,000 was funded with existing cash
reserves and borrowings of $6,836,000 on a line of credit with
Deposit Guaranty National Bank at a rate equal to the 90-day
LIBOR rate plus 2.35%, currently 7.85%.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
It is impractical to provide the audited
financial statements of the BB&T Financial Center
required by Item 7(a) of Form 8-K, but such
financial statements will be filed as soon as
practical but not later than 60 days after the
filing of this Form 8-K.
(b) Pro Forma Consolidated Financial Statements
The pro forma consolidated financial
statements will be filed with the audited
financial statements of the BB&T Financial Center.
(c) Exhibits.
(10) Purchase and Sale Agreement
among AETNA Life Insurance Company and Parkway
Properties, Inc. dated September 5, 1996. Parkway
agrees to furnish supplementally to the Securities
and Exchange Commission on request a copy of any
omitted schedule or exhibit to this agreement.
FORM 8-K
PARKWAY PROPERTIES, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
DATE: October 15, 1996
PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Vice President,
Chief Financial Officer,
Treasurer and Secretary
PURCHASE AND SALE AGREEMENT
SELLER:
AETNA LIFE INSURANCE COMPANY
c/o Asset Management & Sales, IG40
242 Trumbull Street
Hartford, Connecticut 06156
PURCHASER:
PARKWAY PROPERTIES, INC.
300 Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201-2195
PROPERTY:
ONE TRIAD PARK
200 West Second Street
Winston-Salem, North Carolina
September 5, 1996
INDEX
Section Page
1. The Property 1
1.1 Description 1
1.2 "As-Is" Purchase 2
1.3 Agreement to Convey 3
2. Price and Payment 3
2.1 Purchase Price 3
2.2 Payment 3
2.3 Closing 3
3. Inspections and Approvals 3
3.1 Inspections 3
3.2 Title and Survey 4
3.4 Purchaser's Right to Terminate 5
3.5 Confidentiality 5
4. Prior to Closing 6
4.1 Insurance 6
4.2 Operation 6
4.3 New Contracts 6
4.4 New Leases 6
4.5 Additional Audits 6
5. Representations and Warranties
5.1 By Seller 7
5.2 By Purchaser 7
5.3 Mutual 8
6. Costs and Prorations 8
6.1 Purchaser's Costs 8
6.2 Seller's Costs 9
6.3 Prorations 9
6.4 Taxes 9
6.5 In General 10
6.6 Purpose and Intent 10
7. Damage, Destruction or Condemnation 10
7.1 Material Event 10
7.2 Immaterial Event 10
7.3 Termination and Return of Deposit 10
Section Page
8. Notices 11
9. Closing and Escrow 12
9.1 Escrow Instructions 12
9.2 Seller's Deliveries. 12
9.3 Purchaser's Deliveries 14
9.4 Possession 14
9.5 Insurance 14
9.6 Utility Service and Deposits. 14
9.7 Notice Letters 14
9.8 Post-Closing Collections. 14
10. Default; Failure of Condition 15
10.1 Purchaser Default. 15
10.2 Seller Default 15
11. Miscellaneous 16
11.1 Entire Agreement 16
11.2 Severability 16
11.3 Applicable Law 16
11.4 Assignability 16
11.5 Successors Bound 16
11.6 Breach 16
11.7 No Public Disclosure 16
11.8 Captions 17
11.9 Attorney's Fees 17
11.10 No Partnership 17
11.11 Time of Essence 17
11.12 Counterparts 17
11.13 Recordation 17
11.14 Proper Execution 17
11.15 Tax Protest 17
11.16 Seller Committee Approval 18
11.17 Purchaser's Board Approval 18
11.18 Best Knowledge; Received Written Notice 18
11.19 Survival and Limitation of Representations
and Warranties 18
11.20 Time to Execute and Deliver 18
LIST OF EXHIBITS
Exhibit 1.1.1 Legal Description
Exhibit 1.1.3 Description of Personal Property
Exhibit 1.1.6 Schedule of Leases and Security Deposits
Exhibit 3.2 Title Commitment
Exhibit 3.3 Schedule of Contracts
Exhibit 4.4 Existing Leases for Which Purchaser is
Responsible for Build-Out Costs and
Commissions
Exhibit 9.2.1 Form of Special Warranty Deed
Exhibit 9.2.2 Form of Bill of Sale
Exhibit 9.2.3 Form of Assignment and Assumption of Leases
Exhibit 9.2.4 Form of Assignment and Assumption of
Contracts
Exhibit 9.2.5 Form of Property Name Assignment
Exhibit 9.2.6 Form of Assignment of Warranties and
Guarantees
Exhibit 9.2.8 Form of FIRPTA Affidavit
Exhibit 9.2.9 Form of Corporate Authorization
Exhibit 9.2.10 Form of Incumbency Affidavit
Exhibit 9.2.13 Form of Seller's Affidavit
Exhibit 9.2.15a Form of Tenant Estoppel
Exhibit 9.2.15b Form of Womble, Carlyle, Sandridge & Rice
Tenant Estoppel
Exhibit 9.3 Form of ERISA Certificate
Exhibit 9.7(i) Form of Notice to Contractor
Exhibit 9.7(ii) Form of Notice to Utility Company
Exhibit 9.7(iii) Form of Notice to Tenants
Term Sheet
PURCHASER: PARKWAY PROPERTIES, INC.
NOTICE ADDRESS: 300 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201-2195
ATTENTION: Mr. David R. Fowler
Phone No.: (601) 948-4091
Fax No.: (601) 949-4077
SELLER: AETNA LIFE INSURANCE COMPANY
NOTICE ADDRESS: c/o Asset Management & Sales, IG40
242 Trumbull Street
Hartford, Connecticut 06156
ATTENTION: Mr. William C. Eller
Phone No.: (860) 275-3234
Fax No.: (860) 275-4751
PROPERTY: ONE TRIAD PARK
200 West Second Street
Winston-Salem, North Carolina
PURCHASE PRICE: $25,500,000.00
INTERIM DATE: September 18, 1996
APPROVAL DATE: September 25, 1996
DATE OF CLOSING: On or before September 30, 1996
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement"), dated as of
the 5th day of September 1996 ("Date of this Agreement"), is made
by and between AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation ("Seller"), with an office at c/o Asset Management &
Sales, IG40, 242 Trumbull Street, Hartford, Connecticut 06156
and PARKWAY PROPERTIES, INC., a Maryland corporation
("Purchaser"), with an office at 300 One Jackson Place, 188 East
Capitol Street, Jackson, Mississippi 39201-2195.
RECITALS:
Seller desires to sell certain improved real property
commonly known as One Triad Park located at 200 West Second
Street, Winston-Salem, North Carolina, along with certain related
personal and intangible property, and Purchaser desires to
purchase such real, personal and intangible property.
NOW, THEREFORE, in consideration of the foregoing, of the
covenants, promises and undertakings set forth herein, and for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. The Property.
1.1 Description. Subject to the terms and conditions of
this Agreement, and for the consideration herein set forth,
Seller agrees to sell and transfer, and Purchaser agrees to
purchase and acquire, all of Seller's right, title, and interest
in and to the following (collectively, "Property"):
1.1.1 Certain land ("Land") located in Winston-Salem,
Forsyth County, North Carolina, and more specifically described
in Exhibit 1.1.1 attached hereto;
1.1.2 The buildings, parking areas, improvements, and
fixtures now situated on the Land (the "Improvements");
1.1.3 All furniture, personal property, machinery,
apparatus, and equipment currently used in the operation, repair
and maintenance of the Land and Improvements and situated thereon
(collectively, the "Personal Property"), generally described on
Exhibit 1.1.3 attached hereto. The Personal Property to be
conveyed is subject to depletions, replacements and additions in
the ordinary course of Seller's business;
1.1.4 All easements, hereditaments, and appurtenances
belonging to or inuring to the benefit of Seller and pertaining
to the Land, if any;
1.1.5 Any street or road abutting the Land to the
center lines thereof;
1.1.6 The leases or occupancy agreements, including
those in effect on the Date of this Agreement which are
identified on the Schedule of Leases attached hereto as Exhibit
1.1.6, and any new leases entered into pursuant to Section 4.4,
which as of the Closing (as hereinafter defined) affect all or
any portion of the Land or Improvements ("Leases"), and any
security deposits actually held by Seller with respect to any
such Leases;
1.1.7 Subject to Section 3.3, all contracts and
agreements relating to the operation or maintenance of the Land,
Improvements or Personal Property the terms of which extend
beyond midnight of the day preceding the Date of Closing;
1.1.8 The name "One Triad Park";
1.1.9 Assignable warranties and guaranties issued in
connection with the Improvements or Personal Property; and
1.1.10 All transferable consents, authorizations,
variances or waivers, licenses, permits and approvals from any
governmental or quasi-governmental agency, department, board,
commission, bureau or other entity or instrumentality solely in
respect of the Land or Improvements (collectively, "Approvals").
1.2 "As-Is" Purchase. The Property is being sold in an "AS
IS" condition and "WITH ALL FAULTS" as of the Date of this
Agreement and of Closing. Except as expressly set forth in this
Agreement, no representations or warranties have been made or are
made and no responsibility has been or is assumed by Seller or by
any partner, officer, person, firm, agent or representative
acting or purporting to act on behalf of Seller as to the
condition or repair of the Property or the value, expense of
operation, or income potential thereof or as to any other fact or
condition which has or might affect the Property or the
condition, repair, value, expense of operation or income
potential of the Property or any portion thereof. The parties
agree that all understandings and agreements heretofore made
between them or their respective agents or representatives are
merged in this Agreement and the Exhibits hereto annexed, which
alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with
the parties satisfied with the opportunity afforded for
investigation, neither party relying upon any statement or
representation by the other unless such statement or
representation is specifically embodied in this Agreement or the
Exhibits annexed hereto. Seller makes no representations or
warranties as to whether the Property contains asbestos or
harmful or toxic substances or pertaining to the extent, location
or nature of same. Further, to the extent that Seller has
provided to Purchaser information from any inspection,
engineering or environmental reports concerning asbestos or
harmful or toxic substances, Seller makes no representations or
warranties with respect to the accuracy or completeness,
methodology of preparation or otherwise concerning the contents
of such reports. Purchaser acknowledges that Purchaser has sole
responsibility to inspect fully the Property and investigate all
matters relevant thereto and Purchaser shall rely solely upon the
results of Purchaser's own inspections or other information
obtained or otherwise available to Purchaser, rather than any
information that may have been provided by Seller to Purchaser.
Purchaser waives and releases Seller from any present or
future claims arising from or relating to the presence or alleged
presence of asbestos or harmful or toxic substances in, on, under
or about the Property including, without limitation, any claims
under or on account of (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as the same may
have been or may be amended from time to time, and similar state
statutes, and any regulations promulgated thereunder, (ii) any
other federal, state or local law, ordinance, rule or regulation,
now or hereafter in effect, that deals with or otherwise in any
manner relates to, environmental matters of any kind, or (iii)
this Agreement or the common law. The terms and provisions of
this paragraph shall survive Closing hereunder.
1.3 Agreement to Convey. Seller agrees to convey, and
Purchaser agrees to accept, title to the Land and Improvements by
special warranty deed in the form attached hereto as Exhibit
9.2.1, and title to the Personal Property, by bill of sale,
without warranty as to the title or the condition of such
Personal Property.
2. Price and Payment.
2.1 Purchase Price. The purchase price for the Property
("Purchase Price") is Twenty-Five Million Five Hundred Thousand
and No/100 Dollars ($25,500,000.00).
2.2 Payment. Payment of the Purchase Price is to be made in
cash as follows:
2.2.1 (a) Purchaser has made an earnest money deposit
of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (the
"Deposit") prior to or contemporaneously with the execution of
this Agreement.
(b) The Deposit will be placed and held in escrow by
Commonwealth Land Title Insurance at 3350 Cumberland Circle,
Suite 1895, Atlanta, Georgia 30339 ("Title Company") in an
interest bearing account at a mutually acceptable banking
institution. Any interest earned by the Deposit shall be
considered as part of the Deposit. Except as otherwise provided
in this Agreement, the Deposit will be applied to the Purchase
Price at Closing.
2.2.2 At Closing, Purchaser shall pay Seller the
Purchase Price, inclusive of the Deposit and subject to
adjustment for the prorations as provided herein, to a bank
account designated by Seller via wire transfer in immediately
available funds.
2.3 Closing. Payment of the Purchase Price and the closing
hereunder ("Closing") will take place pursuant to an escrow
closing on or before September 30, 1996 ("Date of Closing") at
the offices of the Title Company at 10:00 local time, or at such
other time and place as may be agreed upon in writing by both
Seller and Purchaser.
3. Inspections and Approvals.
3.1 Inspections.
3.1.1 Seller agrees to allow Purchaser or Purchaser's
agents or representatives reasonable access to the Property
(during business hours) for purposes of any non-intrusive
physical or environmental inspection of the Property and review
of the Leases, expenses and other matters. PURCHASER SHALL NOT
CONDUCT OR ALLOW ANY PHYSICALLY INTRUSIVE TESTING OF, ON OR UNDER
THE PROPERTY WITHOUT FIRST OBTAINING SELLER'S WRITTEN CONSENT AS
TO THE TIMING AND SCOPE OF WORK TO BE PERFORMED AND, UPON REQUEST
OF SELLER, ENTERING INTO AN ACCESS AGREEMENT A FORM ACCEPTABLE TO
SELLER. PURCHASER'S BREACH OF THE FOREGOING PROHIBITION SHALL
ENTITLE SELLER, AT ITS OPTION, IMMEDIATELY AND WITHOUT THE CURE
PERIOD PROVIDED IN SECTION 11.6 HEREOF TO DECLARE THIS AGREEMENT
TO BE TERMINATED AND TO RETAIN AS PROVIDED IN SECTION 10.1 HEREOF
THE DEPOSIT AS PAYMENT ON ACCOUNT FOR ANY AMOUNTS OWED BY REASON
OF THE BREACH.
3.1.2 Purchaser agrees that, in making any non-intrusive
physical or environmental inspections of the Property, Purchaser
or Purchaser's agents will carry not less than One Million
Dollars ($1,000,000) comprehensive general liability insurance
with contractual liability endorsement which insures Purchaser's
Indemnity Obligations (as hereinafter defined) hereunder, and,
upon request of Seller, will provide Seller with a certificate
evidencing such insurance, will not interfere with the activity
of tenants or any persons occupying or providing service at the
Property, will not reveal to any third party not approved by
Seller the results of its inspections, and will restore promptly
any physical damage caused by the inspections. Purchaser shall
give Seller reasonable prior notice of its intention to conduct
any inspections, and Seller reserves the right to have a
representative present. Purchaser agrees (which agreement shall
survive Closing or termination of this Agreement) to provide
Seller with a copy of any inspection report upon Seller's written
request. Purchaser agrees (which agreement shall survive Closing
or termination of this Agreement) to indemnify, defend, and hold
Seller free and harmless from any loss, injury, damage, claim,
lien, cost or expense, including attorney's fees and costs,
arising out of a breach of the foregoing agreements by Purchaser
in connection with the inspection of the Property, or otherwise
from the exercise by Purchaser or its agents or representatives
of the right of access under this Section 3.1 (collectively,
"Purchaser's Indemnity Obligations"). Any inspections shall be
at Purchaser's expense.
3.1.3 Except as set forth in Section 5.1.5 hereof,
Seller makes no representations or warranties as to the truth,
accuracy or completeness of any materials, data or other
information supplied to Purchaser in connection with Purchaser's
inspection of the Property (e.g., that such materials are
complete, accurate or the final version thereof, or that all such
materials are in Seller's possession). It is the parties'
express understanding and agreement that such materials are
provided only for Purchaser's convenience in making its own
examination and determination prior to the Approval Date, as
hereinafter defined, as to whether it wishes to purchase the
Property, and, in doing so, except for its reliance on Seller's
representations set forth in Section 5.1 hereof, Purchaser shall
rely exclusively on its own independent investigation and
evaluation of every aspect of the Property and not on any
materials supplied by Seller. Except for its reliance on
Seller's representations set forth in Section 5.1 hereof,
Purchaser expressly disclaims any intent to rely on any such
materials provided to it by Seller in connection with its
inspection and agrees that it shall rely solely on its own
independently developed or verified information.
3.2 Title and Survey. Prior to or contemporaneously with
execution of this Agreement, Seller has caused to be delivered to
Purchaser a commitment for title insurance on the Land, together
with copies of all items shown as exceptions to title therein,
issued by the Title Company and identified as Commitment No.
F087133, a copy of which is attached hereto as Exhibit 3.2
("Title Commitment"), and a survey of the Land prepared in
accordance with the most recent "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established and
adopted by ALTA and ACSM ("Survey"). Purchaser shall have until
September 18, 1996 ("Interim Date") to provide written notice to
Seller of any matters shown by the Title Commitment or Survey
which are not satisfactory to Purchaser, which notice ("Title
Notice") must specify what resolution with respect thereto shall
be satisfactory to Purchaser. The parties shall then have until
the Approval Date specified in Section 3.4 to take such steps as
they shall mutually agree to satisfy Purchaser's objection(s);
provided, however, that Seller shall have no obligation
whatsoever to expend or agree to expend any funds, to undertake
or agree to undertake any obligations or otherwise to cure or
agree to cure any title or survey objections, and Seller shall
not be deemed to have any obligation to cure unless Seller
expressly undertakes such an obligation by a written notice to or
written agreement with Purchaser given or entered into on or
prior to the Approval Date and which recites that it is in
response to a Title Notice. Purchaser's sole right with respect
to any Title Commitment or Survey matter to which it objects in a
Title Notice given in a timely manner shall be to elect on or
before the Approval Date to terminate this Agreement pursuant to
Section 3.4 hereof. All matters shown in the Title Commitment
and/or Survey with respect to which Purchaser fails to give a
Title Notice on or before the last date for so doing, or with
respect to which a timely Title Notice is given but Seller fails
to undertake an express obligation to cure as provided above,
shall be deemed to be approved by Purchaser as "Permitted
Encumbrances," subject, however, to Purchaser's termination right
provided in Section 3.4 hereof.
3.3
3.3 Contracts. At Closing, Purchaser shall assume the
service contract with Otis Elevator Co. with respect to the
Property. On or before the Interim Date, Purchaser shall notify
Seller in writing if Purchaser elects not to assume at Closing
any of the other service, maintenance, supply or other contracts
relating to the operation of the Property which are identified on
Exhibit 3.3 attached hereto. If Purchaser does not exercise its
right to terminate this Agreement on or before the Approval Date,
Seller shall give notice of termination of such disapproved
contract(s) to the vendors under such contracts.
3.4 Purchaser's Right to Terminate. If, as a result of its
various investigations, Purchaser determines that the Property is
not a suitable investment for its purposes, Purchaser shall have
the right by giving Seller written notice ("Termination Notice")
on or before September 25, 1996 ("Approval Date") to terminate
its obligation to purchase the Property. If the Termination
Notice is timely given, Seller shall direct the Title Company
promptly to return the Deposit to Purchaser and neither party
shall have any further liability hereunder except for Purchaser's
Indemnity Obligations.
3.5 Confidentiality. Unless Seller specifically and
expressly otherwise agrees in writing, Purchaser agrees that all
information regarding the Property of whatsoever nature made
available to it by Seller or Seller's agents or representatives
or developed by Purchaser ("Proprietary Information") is
confidential and shall not be disclosed to any other person
except those assisting Purchaser with the transaction, or
Purchaser's lender, if any, and then only upon Purchaser making
such person aware of the confidentiality restriction and
procuring such person's agreement to be bound thereby. In the
event the purchase and sale contemplated hereby fails to close
for any reason whatsoever, Purchaser agrees to return to Seller,
or cause to be returned to Seller all Proprietary Information.
Further, Purchaser agrees not to use or allow to be used any
Proprietary Information for any purpose other than to determine
whether to proceed with the contemplated purchase, or if same is
consummated, in connection with the operation of the Property
post-Closing. Notwithstanding any other term of this Agreement,
the provisions of this Section 3.5 shall survive Closing or the
termination of this Agreement.
4. Prior to Closing. Until Closing, Seller or Seller's
agent shall:
4.1 Insurance. Keep the Property fully insured against
fire and other hazards covered by extended coverage endorsement
for the full replacement value of the Property including coverage
for the commercial standard for loss of rental income and
comprehensive public liability insurance against claims for
bodily injury, death and property damage occurring in, on or
about the Property.
4.2 Operation. Operate and maintain the Property in a
businesslike manner and substantially in accordance with Seller's
past practices with respect to the Property, and make any and all
repairs and replacements reasonably required to deliver the
Property to Purchaser at Closing in its present condition, normal
wear and tear excepted, provided that in the event of any loss or
damage to the Property as described in Section 7, Seller shall
have an obligation to Purchaser to repair the Property only if
Seller so elects and then shall be obligated only to the extent
specified in Section 7.
4.3 New Contracts. Enter into only those third party
contracts which are necessary to carry out its obligations under
Section 4.2 and which shall be cancelable on thirty (30) days
written notice without payment of a penalty or termination fee of
any kind by reason of such cancellation. If Seller enters into
any such contract, it shall promptly provide written notice
thereof to Purchaser and unless Purchaser, within seven (7) days
thereafter, notifies Seller in writing of its intention to assume
such contract, it shall be treated as a contract disapproved by
Purchaser under Section 3.3 hereof.
4.4 New Leases. Continue its present rental program and
efforts at the Property to rent vacant space, provided that (i)
after the Approval Date, Seller will not execute any new leases
or amend, terminate or accept the surrender of any existing
tenancies or approve any subleases without the prior consent of
Purchaser, which consent shall not be unreasonably withheld,
except that Seller is authorized to accept the termination of
leases at the end of their existing terms; and (ii) in the event
that any leases are identified on Exhibit 4.4 hereto, or that
Seller executes any new lease after the Date of this Agreement,
and in either event such lease requires the construction of
tenant fixtures or improvements or the payment of leasing or
brokerage commission(s) at the expense of the landlord,
Purchaser, by electing to proceed with the purchase
notwithstanding its termination right pursuant to Section 3.4, or
by approving such lease if executed after the Approval Date,
agrees to assume the obligation to pay, and/or at Closing to
reimburse Seller for the paid portion of, the cost of such
improvements and leasing or brokerage commission(s) and any other
costs associated with such Lease unless Seller and Purchaser
expressly agree in writing that Seller shall be responsible for
any such costs.
4.5 Additional Audits. Purchaser shall have, in addition
to any inspection or audit rights contained elsewhere in this
Agreement, the right to conduct a full audit of the books and
records of Seller relating to the operations and financial
results of the Property, in such form and at such time, including
up to 270 days after Closing, as Purchaser may reasonably
determine is necessary to comply with applicable securities laws
requirements, including, without limitation, Regulation 210.3-
14 promulgated under the Securities Exchange Act of 1934, as
amended. All costs incurred as a result of a Purchaser's
undertaking such audit shall be borne exclusively by Purchaser;
however, Seller shall make available such books, records and
materials as may be reasonably requested by Purchaser or its
accountants in order to conduct such audit. All such audit
activities shall be conducted at Seller's place of business in a
commercially reasonable fashion during normal business hours and
upon five (5) days prior written notice from Purchaser to Seller.
5. Representations and Warranties.
5.1 By Seller. Seller represents and warrants to Purchaser
that:
5.1.1 Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Connecticut, is authorized to do business in the State of North
Carolina, has duly authorized the execution and performance of
this Agreement, and such execution and performance will not
violate any material term of its certificate of incorporation or
by-laws.
5.1.2 Seller is acting as principal in this transaction
with authority to close the transaction.
5.1.3 No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition
seeking reorganization or arrangement or other action under
Federal or State bankruptcy laws is pending against or
contemplated by Seller.
5.1.4 To the best of Seller's knowledge, Seller is not a
party to any currently effective or pending contract, agreement
or commitment to sell, convey, assign, transfer or otherwise
dispose of all or any portion of the Property.
5.1.5 To the best of Seller's knowledge, Seller has not
intentionally withheld from Purchaser any material information
with respect to the Property.
5.1.6 Seller is not a "foreign person" (as defined in
the Internal Revenue Code and Income Tax Regulations).
5.2 By Purchaser. Purchaser represents and warrants to
Seller that:
5.2.1 Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Maryland, at Closing will be authorized to do business in the
State of North Carolina, has duly authorized the execution and
performance of this Agreement, and such execution and performance
will not violate any material term of its certificate of
incorporation.
5.2.2 Purchaser is acting as principal in this
transaction with authority to close the transaction.
5.2.3 No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition
seeking reorganization or arrangement or other action under
Federal or State bankruptcy laws is pending against or
contemplated by Purchaser.
5.2.4 By the Approval Date, Purchaser will have
inspected the Property fully and completely at its expense and
will have ascertained to its satisfaction the extent to which the
Property complies with applicable zoning, building,
environmental, health and safety and all other laws, codes and
regulations.
5.2.5 By the Approval Date, Purchaser will have reviewed
the Leases, contracts, expenses and other matters relating to the
Property and, based upon its own investigations, inspections,
tests and studies, will have determined whether to purchase the
Property and to assume Seller's obligations arising after the
Date of Closing under the Leases, contracts and otherwise with
respect to the Property.
5.2.6 Unless otherwise disclosed to Seller in writing,
neither Purchaser nor any affiliate of or principal in Purchaser
is other than a citizen of, or partnership, corporation or other
form of legal person domesticated in the United States of
America.
5.2.7 Purchaser will not use the assets of an employee
benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and
covered under Title I, Part 4 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended, in the performance or
discharge of its obligations hereunder, including the acquisition
of the Property. Purchaser shall not assign its interest
hereunder to any person or entity which does not expressly make
this covenant and warranty for the benefit of Seller.
5.3 Mutual. Each of Seller and Purchaser represents to the
other that it has had no dealings, negotiations, or consultations
with any broker, representative, employee, agent or other
intermediary except The Binswanger Companies (the "Broker") in
connection with this Agreement or the sale of the Property. At
Closing, Seller shall pay to Broker all fees and commissions that
are payable to Broker pursuant to Seller's separate agreement
with Broker, and Purchaser shall not be responsible for the
payment to Broker of any such fees and commissions. Seller and
Purchaser agree that each will indemnify, defend and hold the
other free and harmless from the claims of any other broker(s),
representative(s), employee(s), agent(s) or other
intermediary(ies) claiming to have represented Seller or
Purchaser, respectively, or otherwise to be entitled to
compensation in connection with this Agreement or in connection
with the sale of the Property.
5.4
6. Costs and Prorations.
6.1 Purchaser's Costs. Purchaser will pay the following
costs of closing this transaction:
6.1.1 The fees and disbursements of its counsel,
inspecting architect, engineer and other consultants, if any;
6.1.2 Any escrow fees and/or escrow closing charges;
6.1.3 The cost of the premium for an ALTA owner's title
insurance policy without extended coverage or special
endorsements, issued in connection with this transaction, whether
pursuant to the Title Commitment or otherwise;
6.1.4 The cost of any title insurance in excess of the
cost(s) of an ALTA owner's policy without extended coverage or
special endorsements, including any additional premium charge(s)
for endorsements and/or deletion(s) of exception items and any
cancellation charge(s) imposed by any title company in the event
a title insurance policy is not issued, unless caused by the
default of Seller hereunder;
6.1.5 All recording fees; and
6.1.6 Any other expense(s) incurred by Purchaser or its
representative(s) in inspecting or evaluating the Property or
closing this transaction.
6.2 Seller's Costs.
Seller will pay:
6.2.1 Transfer taxes;
6.2.2 The cost of the title exam fee of the Property in
connection with the Title Commitment;
6.2.3 The cost of the Survey;
6.2.4 The broker's fee to Broker to the extent any such
fee is payable pursuant to Seller's separate agreement with
Broker; and
6.2.5 Legal fees incurred by Seller in closing this
transaction.
6.3 Prorations. Rents and any other amounts payable by
tenants and actually collected as of the Date of Closing shall be
prorated as of the Date of Closing and be adjusted against the
Purchase Price on the basis of a schedule (the "Rent Schedule")
which shall be prepared by Seller and delivered to Purchaser
pursuant to Section 9.2.11. The Rent Schedule shall set forth
the rent and other amounts paid and the rents and other amounts
due but not yet paid for the then current payment period under
each of the Leases. Personal property taxes, installment
payments of special assessment liens, vault charges, sewer
charges, utility charges and normally prorated operating expenses
actually paid or payable as of the Date of Closing shall be
prorated as of the Date of Closing and adjusted against the
Purchase Price, provided that within sixty (60) days after the
Closing, Purchaser and Seller will make a further adjustment for
such rents, taxes or charges which may have accrued or been
incurred prior to the Date of Closing, but not collected or paid
at that date. In addition, within ninety (90) days after the
close of the fiscal year(s) used in calculating the pass-through
to tenants of operating expenses under the Leases (where such
fiscal year(s) include(s) the Date of Closing), Seller and
Purchaser shall, upon the request of either, re-prorate on a fair
and equitable basis in order to adjust for the effect of any
credits or payments due to or from tenants for periods prior to
the Date of Closing. All prorations shall be made on a 360 day
calendar year basis, 30 days to the month.
6.4 Taxes. General real estate taxes and special
assessments relating to the Property payable during the year in
which Closing occurs shall be prorated as of the Date of Closing.
If Closing shall occur before the actual taxes and special
assessments payable during such year are known, the apportionment
of taxes shall be upon the basis of taxes for the Property
payable during the immediately preceding year, provided that, if
the taxes and special assessments payable during the year in
which Closing occurs are thereafter determined to be more or less
than the taxes payable during the preceding year (after any
appeal of the assessed valuation thereof is concluded), Seller
and Purchaser promptly (but no later than the date that is thirty
(30) days from and after the date that the final invoices for
taxes for the Property are issued by the applicable taxing
authority(ies) except in the case of an ongoing tax protest)
shall adjust the proration of such taxes and special assessments
and Seller or Purchaser, as the case may be, shall pay to the
other any amount required as a result of such adjustment and this
covenant shall not merge with the deed delivered hereunder but
shall survive the Closing.
6.5 In General. Any other costs or charges of closing this
transaction not specifically mentioned in this Agreement shall be
paid and adjusted in accordance with local custom in Forsyth
County, North Carolina.
6.6 Purpose and Intent. Except as expressly provided
herein, the purpose and intent as to the provisions of prorations
and apportionments set forth in this Section 6 and elsewhere in
this Agreement is that Seller shall bear all expenses of
ownership and operation of the Property and shall receive all
income therefrom accruing through midnight at the end of the day
preceding the Closing and Purchaser shall bear all such expenses
and receive all such income accruing thereafter.
7. Damage, Destruction or Condemnation.
7.1 Material Event. If, prior to Closing, a portion of the
net rentable area of the building(s) or of the parking spaces on
the Property having a replacement value of $500,000.00 or more or
all access to the Property is rendered completely untenantable,
or is destroyed or taken under power of eminent domain, Purchaser
may elect to terminate this Agreement by giving written notice of
its election to Seller within fourteen (14) days after receiving
notice of such destruction or taking. If Purchaser does not give
such written notice within such fourteen (14) day period, this
transaction shall be consummated on the date and at the Purchase
Price provided for in Section 2, and Seller will assign to
Purchaser all proceeds of any insurance policy(ies) payable to
Seller, or Seller's portion of any condemnation award, in both
cases, up to the amount of the Purchase Price, and, if an insured
casualty, pay to Purchaser the amount of any deductible but not
to exceed the amount of the loss.
7.2
7.2 Immaterial Event. If, prior to Closing a portion of
the net rentable area of the building(s) or of the parking spaces
on the Property having a replacement value of less than
$500,000.00 is rendered completely untenantable or is destroyed,
or is taken under power of eminent domain, Purchaser shall close
this transaction on the Date of Closing and at the Purchase Price
agreed upon in Section 2, and Seller will assign to Purchaser all
proceeds of any insurance policies payable to Seller, or Seller's
portion of any condemnation award, in both cases, up to the
amount of the Purchase Price and, if an insured casualty, pay to
Purchaser the amount of any deductible but not to exceed the
amount of the loss.
7.3 Termination and Return of Deposit. If Purchaser elects
to terminate this Agreement pursuant to this Section 7, and if
Purchaser is not, on the date of such election, in default under
this Agreement, Seller shall promptly direct the Title Company to
return the Deposit to Purchaser, and thereafter, neither Seller
nor Purchaser shall have any obligation or liability hereunder
(provided that Purchaser's Indemnity Obligations shall survive
without limitation as to time), and Purchaser shall have no
interest in the Property.
8. Notices.
Any notice required or permitted to be given hereunder shall
be deemed to be given when hand delivered or one (1) business day
after pickup by Emery Air Freight, Airborne, Federal Express, or
similar overnight express service, in either case addressed to
the parties at their respective addresses referenced below:
If to Seller: Aetna Life Insurance Company
c/o Asset Management & Sales, IG40
242 Trumbull Street
Hartford, Connecticut 06156
Attention: Mr. William C. Eller
Phone No.: (860) 275-3234
Fax No.: (860) 275-4751
With a copy to: Powell, Goldstein, Frazer & Murphy
191 Peachtree Street
16th Floor
Atlanta, Georgia 30303
Attention: Joann G. Jones, Esq.
Phone No.: (404) 255-7549
Fax No.: (404) 572-6999
With a copy to: Law & Regulatory Affairs
Aetna Life & Casualty
151 Farmington Avenue, RE4C
Hartford, Connecticut 06156-9646
Attention: Real Estate
Phone No.: (860) 273-1389
Fax No.: (860) 273-1548
If to Purchaser: Parkway Properties, Inc.
300 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201-2195
Attention: Mr. David R. Fowler
Phone No.: (601) 948-4091
Fax No.: (601) 949-4077
With a copy to: Forman, Perry, Watkins & Krutz, PLLC
1200 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39225-2608
Attention: Steven M. Hendrix, Esq.
Phone No.: (601) 960-8603
Fax No.: (601) 960-8613
or in each case to such other address as either party may from
time to time designate by giving notice in writing to the other
party. Telephone and facsimile numbers are for informational
purposes only. Effective notice will be deemed given only as
provided above.
9. Closing and Escrow.
9.1 Escrow Instructions. Upon execution of this Agreement,
the parties shall deliver an executed counterpart of this
Agreement to the Title Company to serve as the instructions to
the Title Company as the escrow holder for consummation of the
transaction contemplated herein. Seller and Purchaser agree to
execute such additional and supplementary escrow instructions as
may be appropriate to enable the Title Company to comply with the
terms of this Agreement, provided, however that in the event of
any conflict between the provisions of this Agreement and any
supplementary escrow instructions, the terms of the supplementary
escrow instructions shall prevail.
9.2 Seller's Deliveries. Seller shall deliver either at
the Closing or by making available at the Property, as
appropriate, the following original documents, each executed and,
if required, acknowledged:
9.2.1 A special warranty deed to the Property, in the
form attached hereto as Exhibit 9.2.1.
9.2.2 A bill of sale in the form attached hereto as
Exhibit 9.2.2 conveying the Personal Property.
9.2.3 (i) The Leases described in Section 1.1.6 which
are still in effect as of Closing and any new leases entered into
pursuant to Section 4.4; (ii) a current listing of any tenant
security deposits and prepaid rents held by Seller with respect
to the Property; (iii) an assignment of such leases, deposits,
and prepaid rents by way of an assignment and assumption
agreement in the form attached hereto as Exhibit 9.2.3; and
(iv) all files with respect to Leases and tenants thereunder at
the Property and all lease files with respect to the Property in
Seller's possession and located in Seller's Hartford, Connecticut
offices.
9.2.4 (i) Copies of all contracts relating to the
Property which Purchaser has elected to assume or which are not
terminable by Seller on or before the date of Closing; and (ii)
an assignment of such contracts to Purchaser by way of an
assignment and assumption agreement, in the form attached hereto
as Exhibit 9.2.4.
9.2.5 If requested by Purchaser, an assignment to
Purchaser of Seller's right, title and interest, if any, in the
name One Triad Park, in the form attached hereto as Exhibit
9.2.5.
9.2.6 An assignment of all transferable warranties and
guarantees then in effect, if any, with respect to the
improvements located on the Property or any repairs or
renovations to such improvements and Personal Property being
conveyed hereunder, which assignment is in the form attached
hereto as Exhibit 9.2.6.
9.2.7 All books and records at the Property held by or
for the account of Seller, including without limitation, plans
and specifications and lease applications, as available.
9.2.8 An affidavit pursuant to the Foreign Investment
and Real Property Tax Act in the form attached hereto as Exhibit
9.2.8.
9.2.9 A corporate authorization in the form attached
hereto as Exhibit 9.2.9.
9.2.10 An incumbency affidavit in the form attached hereto as
Exhibit 9.2.10.
9.2.11 The Rent Schedule prepared pursuant to Section 6.3
hereof.
9.2.12 A closing statement and acknowledgements setting forth
all prorations and credits and other matters handled outside of
Closing.
9.2.13 A Seller's Affidavit in the form attached hereto as
Exhibit 9.2.13 as well as any other documents reasonably required
by the Title Company.
9.2.14 A broker's receipt executed by the Broker.
9.2.15 Tenant Estoppels (as hereinafter defined) in
accordance with the following terms and conditions: Seller shall
use commercially reasonable efforts to deliver to Purchaser (i)
at or prior to Closing tenant estoppel certificates acceptable to
Purchaser ("Tenant Estoppels") from each of the tenants occupying
space at the Property as of the date hereof under the Leases
except for the tenant, Womble, Carlyle, Sandridge & Rice, and
(ii) at or prior to the Approval Date a Tenant Estoppel from
Womble, Carlyle, Sandridge & Rice. A Tenant Estoppel shall be
deemed acceptable to Purchaser if, with respect to all tenants
other than Womble, Carlyle, Sandridge & Rice, the Tenant Estoppel
is substantially in the form attached hereto as Exhibit 9.2.15a,
or if not in such form, if the Tenant Estoppel contains
substantially the same information as set forth in Exhibit
9.2.15a. With respect to the tenant, Womble, Carlyle, Sandridge
& Rice, the Tenant Estoppel from such tenant shall be deemed
acceptable to Purchaser if the Tenant Estoppel is substantially
in the form attached hereto as Exhibit 9.2.15b, or if not in such
form, if the Tenant Estoppel contains substantially the same
information as set forth in Exhibit 9.2.15b. Seller shall not be
in default under this Agreement for failing to deliver to
Purchaser at or prior to Closing or the Approval Date, as the
case may be, Tenant Estoppels from each of the tenants occupying
space at the Property as of the date hereof under the Leases, but
(i) it shall be a condition precedent to Purchaser's obligation
to purchase the Property at Closing that Purchaser receive at or
prior to Closing a Tenant Estoppel executed by Southern National
Bank of North Carolina and (ii) with respect to Item (vii) of the
form of Tenant Estoppel for Womble, Carlyle, Sandridge & Rice, it
shall be in Purchaser's sole discretion whether to accept the
Tenant Estoppel if such Item is deleted or modified by such
tenant, provided, however, that if Purchaser does not terminate
this Agreement on or before Approval Date pursuant to Section 3.4
thereafter, such Tenant Estoppel shall be deemed acceptable to
Purchaser and Purchaser shall have waived any and all right to
object to such Tenant Estoppel, its form or content.
9.3 Purchaser's Deliveries. At the Closing, Purchaser
shall (i) pay Seller the Purchase Price; and (ii) execute and
deliver the agreements referred to in Sections 9.2.3(iii),
9.2.4(ii) and 9.2.6 and the ERISA certificate attached hereto as
Exhibit 9.3.
9.4 Possession. Purchaser shall be entitled to possession
of the Property upon conclusion of the Closing.
9.5 Insurance. Seller shall terminate its policies of
insurance as of noon on the Date of Closing and Purchaser shall
be responsible for obtaining its own insurance thereafter.
9.6 Utility Service and Deposits. Seller shall be entitled
to the return of any deposit(s) posted by it with any utility
company and Purchaser shall notify each utility company serving
the Property to terminate Seller's account, effective at noon on
the Date of Closing.
9.7 Notice Letters. Subsequent to Closing, Seller shall
provide to Purchaser one original of the form letters to
contractors and utility companies serving the Property and
tenants at the Property in the forms attached hereto as Exhibits
9.7(i), 9.7(ii), and 9.7(iii) respectively, advising them of the
sale of the Property to Purchaser and directing to Purchaser all
bills for the services provided to the Property or rent, as the
case may be, on and after the Date of Closing.
9.8 Post-Closing Collections. Purchaser shall use
reasonable efforts during the six (6) month period immediately
following the Date of Closing to collect and promptly remit to
Seller rents or other amounts payable by tenants (except for
rents payable by Rudolph Travel) during the period prior to
Closing. Purchaser shall apply such rents or other amounts
received first to Seller to satisfy unpaid rents and other
amounts due but not paid as of the Date of Closing for the then
current (as of the Date of Closing) payment period under the
Leases; second to Purchaser to satisfy such tenants' obligations
for the payment period during which collection occurred; third to
Seller to satisfy unpaid rents and other amounts which were
thirty (30) days or less in arrears as of the Date of Closing;
fourth to Seller to satisfy unpaid rents and other amounts which
were more than thirty (30) days in arrears as of the Date of
Closing; and fifth the balance to Purchaser to satisfy other
rental obligations of such tenants to Purchaser. From and after
Closing, Seller shall be entitled to take such steps, including
the right to file suit, as Seller in its sole and absolute
discretion deems necessary or appropriate, to collect any sums
due and owing by tenants to Seller for periods prior to Closing,
excepting only the right to dispossess any tenant still in
possession of its further right to occupy the premises demised to
it under its lease or other occupancy agreement. Purchaser
agrees, at no cost to Purchaser, to cooperate with Seller in any
manner reasonably requested by Seller in connection with any such
collection effort. The provisions of this Section 9.8 shall
survive Closing.
10. Default; Failure of Condition.
10.1 Purchaser Default. If Purchaser shall become in breach
of or default under this Agreement and the breach or default
continues beyond the expiration of the cure period, if any,
provided in Section 11.6 hereof, the Deposit shall be retained by
Seller as liquidated damages, and both parties shall be relieved
of and released from any further liability hereunder except for
Purchaser's Indemnity Obligations. Seller and Purchaser agree
that the Deposit is a fair and reasonable amount to be retained
by Seller as agreed and liquidated damages in light of Seller's
removal of the Property from the market and the costs incurred by
Seller and shall not constitute a penalty or a forfeiture.
10.2 Seller Default. If Seller shall refuse or fail to
convey the Property as herein provided for any reason other than
(i) a default by Purchaser and the expiration of the cure period,
if any, provided under Section 11.6 hereof, (ii) the existence of
a Pending Default (as defined in and contemplated by Section
11.6), or (iii) any other provision of this Agreement which
permits Seller to terminate this Agreement or otherwise relieves
Seller of the obligation to convey the Property, Purchaser shall
elect as its sole remedy hereunder either to terminate the
Agreement and recover the Deposit or to enforce specifically
Seller's obligations to convey the Property, provided that no
such action in specific performance shall seek to require Seller
to take any action in addition to that required by this
Agreement.
10.3 Failure of Condition. If after the Approval Date but
prior to Closing, Seller discloses to Purchaser or Purchaser
discovers that (i) title to the Property is subject to defects,
limitations or encumbrances other than Permitted Encumbrances, or
(ii) any representation or warranty of Seller contained in this
Agreement is or, as of the Date of Closing, will be untrue, then
Purchaser shall promptly give Seller written notice of its
objection thereto. In such event, Seller may elect to postpone
the Closing for thirty (30) days and attempt to cure such
objection. The parties acknowledge and agree that Seller shall
have no obligation to cure any objection. If Purchaser fails to
waive the objection within ten (10) days after notice from Seller
that Seller will not cure the objection, this Agreement will
terminate automatically and Seller shall promptly direct the
Title Company to return the Deposit to Purchaser, provided that
Purchaser shall not be in default hereunder, and neither party
shall have any liability to the other except for "Purchaser's
Indemnity Obligations" and Purchaser's obligations as to
confidentiality set forth in Section 3.6 hereof. For the
purposes of this Agreement, any title defect, limitation or
encumbrance other than a Permitted Encumbrance shall be deemed
cured if the Title Company or another title company reasonably
acceptable to Purchaser and authorized to do business in the
State of North Carolina will agree to issue an ALTA owner's title
insurance policy to Purchaser for the Purchase Price, which
policy takes no exception for such defect, limitation or
encumbrance and is issued for no additional premium or for an
additional premium if Seller agrees to pay such additional
premium upon Closing.
11. Miscellaneous.
11.1 Entire Agreement. This Agreement, together with the
Exhibits attached hereto, all of which are incorporated by
reference, is the entire agreement between the parties with
respect to the subject matter hereof, and no alteration,
modification or interpretation hereof shall be binding unless in
writing and signed by both parties.
11.2 Severability. If any provision of this Agreement or
application to any party or circumstances shall be determined by
any court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement or
the application of such provision to such person or
circumstances, other than those as to which it is so determined
invalid or unenforceable, shall not be affected thereby, and each
provision hereof shall be valid and shall be enforced to the
fullest extent permitted by law.
11.3 Applicable Law. Exclusive of principles of conflicts
of laws, this Agreement shall be construed and enforced in
accordance with the laws of the State of North Carolina.
11.4 Assignability. Purchaser may not assign this Agreement
without first obtaining Seller's written consent, provided,
however, Purchaser shall have the right to assign this Agreement
to a wholly-owned subsidiary of Parkway Properties, Inc., without
the consent of Seller. Any assignment in contravention of this
provision shall be void. No assignment shall release Purchaser
herein named from any obligation or liability under this
Agreement. Any permitted assignee shall be deemed to have made
any and all representations and warranties made by Purchaser
hereunder, as if the assignee were the original signatory hereto.
11.5 Successors Bound. This Agreement shall be binding upon
and inure to the benefit of Purchaser and Seller and their
successors and permitted assigns.
11.6 Breach. Should either party be in breach of or default
under or otherwise fail to comply with any of the terms of this
Agreement, except as otherwise provided in this Agreement, the
complying party shall have the option to cancel this Agreement
upon ten (10) days written notice to the other party of the
alleged breach and failure by such other party to cure such
breach within such ten (10) day period. The non-defaulting party
shall promptly notify the defaulting party in writing of any
alleged default upon obtaining knowledge thereof. The Date of
Closing shall be extended to the extent necessary to afford the
defaulting party the full ten-day period within which to cure
such default; provided, however, that the failure or refusal by a
party to perform on the scheduled Date of Closing (except in
respect of a Pending Default by the other party) shall be deemed
to be an immediate default without the necessity of notice; and
provided further, that if the Date of Closing shall have been
once extended as a result of default by a party, such party shall
be not be entitled to any further notice or cure rights with
respect to that or any other default. For purposes of this
Section 11.6, a "Pending Default" shall be a default for which
(i) written notice was given by the non-defaulting party, and
(ii) the cure period extends beyond the scheduled Date of
Closing.
11.7 No Public Disclosure. Except as may be required by
law, Purchaser shall make no public disclosure of the terms of
this transaction without the prior written consent of Seller,
except that Purchaser may discuss the transaction in confidence
with proposed joint venturers or prospective mortgagees.
11.8 Captions. The captions in this Agreement are inserted
only as a matter of convenience and for reference and in no way
define, limit or describe the scope of this Agreement or the
scope or content of any of its provisions.
11.9 Attorney's Fees. In the event of any litigation
arising out of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and costs.
11.10 No Partnership. Nothing contained in this
Agreement shall be construed to create a partnership or joint
venture between the parties or their successors in interest.
11.11 Time of Essence. Time is of the essence of this
Agreement.
11.12 Counterparts. This Agreement may be executed and
delivered in any number of counterparts, each of which so
executed and delivered shall be deemed to be an original and all
of which shall constitute one and the same instrument.
11.13 Recordation. Purchaser and Seller agree not to
record this Agreement or any memorandum hereof.
11.14 Proper Execution. The submission by Seller to
Purchaser of this Agreement in unsigned form shall be deemed to
be a submission solely for Purchaser's consideration and not for
acceptance and execution. Such submission shall have no binding
force and effect, shall not constitute an option, and shall not
confer any rights upon Purchaser or impose any obligations upon
Seller, irrespective of any reliance thereon, change of position
or partial performance. The submission by Seller of this
Agreement for execution by Purchaser and the actual execution and
delivery thereof by Purchaser to Seller shall similarly have no
binding force and effect on Seller unless and until Seller shall
have executed this Agreement and the Deposit shall have been
received by the Title Company and a counterpart thereof shall
have been delivered to Purchaser.
11.15 Tax Protest. If as a result of any tax protest or
otherwise any refund or reduction of any real property or other
tax or assessment relating to the Property during the period for
which, under the terms of this Agreement, Seller is responsible,
Seller shall be entitled to receive or retain such refund or the
benefit of such reduction, less equitable prorated costs of
collection.
11.16 Seller Committee Approval. This Agreement is, and
any amendments hereto shall be, subject to approval by Seller's
Investment Committee and the Portfolio Manager having
responsibility for the Property. Seller shall provide Purchaser
with written notice of the approval or rejection of this
Agreement by the Investment Committee and the Portfolio Manager
on or before September 19, 1996. For purposes hereof, such
notice may be given by facsimile transmission. In the event that
Seller provides Purchaser with written notice of the rejection of
this Agreement by Seller's Investment Committee and Portfolio
Manager, then (i) Seller shall reimburse Purchaser, after written
request by Purchaser therefor, for the third party out-of-pocket
costs incurred by Purchaser in inspecting and reviewing the
Property and in negotiating this Agreement, provided, however,
that Purchaser shall provide Seller with written, verifiable
evidence supporting such costs, and the costs for which Seller
shall be responsible to Purchaser for reimbursement hereunder
shall not exceed Fifteen Thousand and No/100 Dollars
($15,000.00), and (ii) the Title Company shall be directed to
refund the Deposit to Purchaser, and this Agreement shall
terminate and be of no further force or effect, except with
respect to obligations and liabilities that by the express terms
hereof survive any termination of this Agreement.
Initial: Seller __________ Purchaser __________
11.17 Purchaser's Board Approval. This Agreement is,
and any amendments hereto shall be, subject to approval by
Purchaser's Board of Directors. Purchaser shall obtain the
approval or disapproval of its Board of Directors of this
Agreement on or before the Approval Date.
11.18 Best Knowledge; Received Written Notice. Whenever
a representation or warranty is made in this Agreement on the
basis of the best of knowledge of Seller, or whether Seller has
received written notice, such representation and warranty is made
with the exclusion of any facts disclosed to or otherwise known
by Purchaser, and is made solely on the basis of the actual, as
distinguished from implied, imputed and constructive, knowledge
on the date that such representation or warranty is made, without
inquiry or investigation or duty thereof, of William C. Eller,
the officer of Seller having responsibility for the management
and sale of the Property without attribution to such specific
officer of facts and matters otherwise within the personal
knowledge of any other officers or employees of Seller or third
parties, including, but not limited to, tenants and property
managers of the Property.
11.19 Survival and Limitation of Representations and
Warranties. The representations and warranties set forth in
Section 5.1 shall survive the Closing but written notification of
any claim arising therefrom, including claims of fraud, must be
received by Seller within one (1) year of the Date of Closing or
such claim shall be forever barred and Seller shall have no
liability with respect thereto. The aggregate liability of the
Seller with respect to all claims hereunder shall not exceed One
Hundred Fifty Thousand and No/100 Dollars ($150,000.00),
provided, however, any claim of fraud brought by Purchaser
against Seller hereunder in which Purchaser is successful in
obtaining judgment against Seller shall not be capped by the
foregoing liability limitation.
11.20 Time to Execute and Deliver. This Agreement shall
be void if one fully executed copy is not received by Seller,
along with confirmation that the Deposit has been received by the
Title Company, on or before 5:00 p.m. E.D.T. on September 6,
1996.
IN WITNESS WHEREOF, Purchaser and Seller have executed this
Agreement on the date set forth below, effective as of the date
set forth above.
SELLER:
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
Date: __________, 1996 By:
Printed name:
Its:
PURCHASER:
PARKWAY PROPERTIES, INC.,
a Maryland corporation
Date: __________, 1996 By:
Printed name:
Its:
An original, fully executed copy of this Agreement, together
with the Deposit, have been received by the Title Company's agent
this ___ day of ______________, 1996, and by execution hereof the
Title Company's agent hereby covenants and agrees to be bound by
the terms of this Agreement. The Title Company is authorized to
place the date of its execution of this Agreement on the Title
Page and on Page 1 of this Agreement as the Date of this
Agreement.
TITLE COMPANY:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:
Printed name:
Its:
EXHIBIT 1.1.1
LEGAL DESCRIPTION
ALL OF THAT PROPERTY BEING KNOWN AND DESIGNATED as Lot 1 as shown
on the Map of Triad Park as recorded in Plat Book 30, Page 40 in
the Office of the Register of Deeds of Forsyth County, North
Carolina, reference to which is hereby made for a more particular
description. Also being a portion of Parcel 16 as shown on map
of Central Downtown Proj. No. N.C. R-55 as recorded in Plat Book
28, Page 121, Forsyth County Registry.
Together with permanent and exclusive easement entitled "Office
Building Lobby Extension" and identified as Easement "C" on the
Map of Triad Park recorded in Plat Book 30 at Page 40, Forsyth
County Registry.
Together with the easements and parking rights granted by the
City of Winston-Salem to Dudley Webb & Companies, a North
Carolina corporation (the "Developer") in the Development
Agreement dated February 12, 1985, as amended, which is recorded
in Book 1624 at Pages 2191 and 2295, in the Office of the
Register of Deeds of Forsyth County, North Carolina, which
easements and parking rights were assigned by the Developer to
Webb/Winston-Salem Ventures, 100 Limited Partnership, a North
Carolina Limited Partnership, by instrument dated September 30,
1987, and recorded in Book 1624 at Page 4003 in the Office of the
Register of Deeds of Forsyth County, North Carolina.
EXHIBIT 1.1.3
INVENTORY OF PERSONAL PROPERTY
The items set forth on the inventory attached hereto,
together with any and all other personal property, machinery,
apparatus, and equipment owned by Seller, and used in the
operation, repair and maintenance of the Land and Improvements
and located at One Triad Park, Winston-Salem, North Carolina as
of the Date of Closing.
[see attached inventory]
EXHIBIT 1.1.6
SCHEDULE OF LEASES AND SECURITY DEPOSITS
[see attached]
EXHIBIT 3.2
TITLE COMMITMENT
[see attached]
EXHIBIT 3.3
SCHEDULE OF CONTRACTS
[see attached]
EXHIBIT 4.4
EXISTING LEASES FOR WHICH PURCHASER IS RESPONSIBLE
FOR BUILD-OUT COSTS AND COMMISSIONS
Leasing Commissions
None, outside of the Leases.
Tenant Improvement Obligations
Tenant: Womble, Carlyle, Sandridge & Rice
Amount: $575,000.00
Delivery
Date: July 1, 1997
Allowance is to be provided to Lessee by Lessor for the
refurbishment of the existing tenant improvements within the
Premises.
EXHIBIT 9.2.1
SPECIAL WARRANTY DEED
STATE OF CONNECTICUT
COUNTY OF HARTFORD
AETNA LIFE INSURANCE COMPANY, a Connecticut corporation
("Grantor"), whose address is c/o Asset Management & Sales, IG40,
242 Trumbull Street, Hartford, Connecticut, for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) paid
to Grantor and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, has, subject to
the exceptions hereinafter set forth, GRANTED, SOLD, and CONVEYED
and does hereby GRANT, SELL, and CONVEY unto PARKWAY PROPERTIES,
INC., a Maryland corporation ("Grantee"), whose address is 300
One Jackson Place, 188 East Capitol Street, Jackson, Mississippi,
certain land located in Forsyth County, North Carolina, and being
more particularly described in Exhibit A attached hereto and
incorporated herein by reference, together with all improvements
located on such land (such land and improvements being
collectively referred to as the "Property").
This conveyance is made and accepted subject to all matters
set out in Exhibit B attached hereto and incorporated herein by
reference.
TO HAVE AND TO HOLD the Property, together with all rights
and appurtenances pertaining thereto, including all of Grantor's
right, title and interest in and to adjoining streets, alleys and
rights-of-way, unto Grantee and Grantee's successors, heirs, and
assigns forever; and Grantor does hereby bind itself and its
successors and heirs to warrant and forever defend the Property
unto Grantee and Grantee's successors, heirs, and assigns,
against every person whomsoever lawfully claiming or to claim the
same or any part thereof by, through, or under Grantor, but not
otherwise.
Notwithstanding any provision to the contrary, Grantor makes
no warranties of any nature or kind, whether statutory, express
or implied, with respect to the physical condition of the
Property (including, without limitation, any and all improvements
located thereon and/or comprising a part thereof), and Grantee by
its acceptance of this Deed accepts the physical condition of the
property "AS IS, WITH ALL FAULTS."
Executed as of this _______ day of __________, 1996.
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By:
Printed name:
Its:
[CORPORATE SEAL]
* [CONFORM TO LOCAL REQUIREMENTS] *
STATE OF CONNECTICUT
COUNTY OF HARTFORD
This instrument was acknowledged before me on ________ __,
199__, by ________________________________, ___________________
of Aetna Life Insurance Company, a Connecticut corporation, on
behalf of said corporation.
Notary Public
My Commission Expires:
Printed Name of Notary:
EXHIBIT 9.2.2
BILL OF SALE
For valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation ("Seller"), hereby conveys to PARKWAY
PROPERTIES, INC., a Maryland corporation ("Purchaser"), all of
Seller's right, title and interest in and to those certain items
of personal property described on Exhibit A attached hereto and
made a part hereof (the "Personal Property") relating to certain
real property known as ONE TRIAD PARK and located at 200 West
Second Street, Winston-Salem, North Carolina.
Seller has not made and does not make any express or implied
warranty or representation of any kind whatsoever with respect to
the Personal Property, including but not limited to: title;
merchantability of the Personal Property or its fitness for any
particular purpose; the design or condition of the Personal
Property; the quality or capacity of the Personal Property;
workmanship or compliance of the Personal Property with the
requirements of any law, rule, specification or contract
pertaining thereto; patent infringement or latent defects.
Purchaser accepts the Personal Property on an "AS IS, WHERE IS"
basis.
IN WITNESS WHEREOF, Seller has caused this instrument to be
executed and delivered as of this ______ day of ____________,
1996.
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By:
Printed name:
Its:
[CORPORATE SEAL]
EXHIBIT 9.2.3
ASSIGNMENT AND ASSUMPTION OF LEASES
For valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation ("Assignor"), hereby assigns and
delegates to PARKWAY PROPERTIES, INC., a Maryland corporation
("Assignee"), and Assignee hereby agrees to assume and accept the
assignment and delegation of all of Assignor's right, title and
interest in and to and obligations under the leases and the
security deposits relating to the property known as One Triad
Park and more particularly described on Exhibit A attached
hereto. The leases and security deposits are listed on Exhibit B
attached hereto.
If any litigation between Assignor and Assignee arises out
of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision
contained herein, the losing party shall pay the prevailing
party's costs and expenses of such litigation including, without
limitation, reasonable attorneys' fees.
This Agreement may be executed and delivered in any number
of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment effective as of this ____ day of ___________________,
1996.
ASSIGNOR: ASSIGNEE:
AETNA LIFE INSURANCE COMPANY, PARKWAY PROPERTIES, INC.,
a Connecticut corporation a Maryland corporation
By:
By: Printed name:
Printed name: Its:
Its:
[CORPORATE
[CORPORATE SEAL]
SEAL]
EXHIBIT 9.2.4
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
In consideration of One Dollar and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation ("Assignor"), hereby assigns to and delegates PARKWAY
PROPERTIES, INC., a Maryland corporation ("Assignee"), with an
office and place of business at 300 One Jackson Place, 188 East
Capitol Street, Jackson, Mississippi, and Assignee hereby assumes
and accepts the assignment and delegation of all of Assignor's
right, title and interest in and to the contracts described on
Exhibit A attached hereto relating to certain real property known
as ONE TRIAD PARK and located at 200 West Second Street, Winston-
Salem, North Carolina, and Assignee hereby accepts such
assignment.
If any litigation between Assignor and Assignee arises out
of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision
contained herein, the losing party shall pay the prevailing
party's costs and expenses of such litigation including, without
limitation, reasonable attorneys' fees.
This Agreement may be executed and delivered in any number
of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment effective as of this _______ day of _____________,
1996.
ASSIGNOR: ASSIGNEE:
AETNA LIFE INSURANCE COMPANY, PARKWAY PROPERTIES, INC.,
a Connecticut corporation a Maryland corporation
By:
By: Printed name:
Printed name: Its:
Its:
[CORPORATE
[CORPORATE SEAL]
SEAL]
EXHIBIT 9.2.5
ASSIGNMENT OF PROPERTY NAME
For valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation ("Assignor"), hereby assigns, transfers
and sets over unto PARKWAY PROPERTIES, INC., a Maryland
corporation ("Assignee"), all of Assignor's right, title and
interest, if any, in and to the property name ONE TRIAD PARK.
Assignor makes no warranty or representation of any kind with
respect to its right, title and interest in the property name.
IN WITNESS WHEREOF, Assignor has caused this instrument to
be executed as of this _____ day of ____________, 1996.
AETNA LIFE
INSURANCE COMPANY,
a Connecticut corporation
By:
Printed name:
Its:
[CORPORATE SEAL]
EXHIBIT 9.2.6
ASSIGNMENT OF WARRANTIES AND GUARANTEES
THIS AGREEMENT is made as of the _______ day of
______________, 1996, between AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation ("Assignor"), and PARKWAY PROPERTIES,
INC., a Maryland corporation ("Assignee").
RECITALS:
Assignee has this day acquired from Assignor certain
interests in land, buildings and improvements more particularly
described on Exhibit A attached hereto and made a part hereof
(the "Property").
In consideration of the acquisition of the Property by
Assignee and other good and valuable consideration, the mutual
receipt and legal sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
Assignor hereby assigns, transfers and sets over unto
Assignee and Assignee hereby accepts from Assignor all of
Assignor's right, title and interest in and to all transferable
warranties and guarantees, if any, with respect to the
improvements located on the Property or any repairs or
renovations to such improvements and any personal property
conveyed to Assignee by Assignor in connection with the Property.
This Agreement may be executed and delivered in any number
of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have caused this
instrument to be executed as of the day and year first above
written.
ASSIGNOR:
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By:
Printed name:
Its:
[CORPORATE
SEAL]
EXHIBIT 9.2.8
AFFIDAVIT PURSUANT TO FOREIGN INVESTMENT
AND REAL PROPERTY TAX ACT
The undersigned hereby declares that the name, address and
United States taxpayer identification number of the owner of the
real property described in Exhibit A attached hereto and
incorporated herein by reference is as follows:
Name and Address I.D. Number
Aetna Life Insurance Company 066033492
c/o Asset Management & Sales, IG40
242 Trumbull Street
Hartford, Connecticut 06103
There is no other person or entity who has an ownership
interest in the property. The owner is a corporation organized
and existing under the laws of the State of Connecticut and, as
such, is not a foreign citizen or entity.
The undersigned understands that the purchaser of the
property intends to rely on the foregoing representations in
connection with the United States Foreign Investment and Real
Property Act.
AETNA LIFE INSURANCE COMPANY,
DATE: ____________, 1996 a Connecticut corporation
By:
Printed name:
Its:
EXHIBIT 9.2.9
CORPORATE AUTHORIZATION
I, Paige L. Falasco, Assistant Corporate Secretary of Aetna Life
Insurance Company (the "Company"), do hereby certify that the
following vote was duly adopted by the Board of Directors of the
Company at its meeting held on November 20, 1987, as amended at
its meeting held on March 29, 1991, and that such vote remains in
full force and effect as of this date:
VOTED: That each of the following officers:
Chairman Vice President
Vice Chairman Controller
President General Counsel
Executive Vice President Corporate Secretary
Group Executive Assistant Vice President
Senior Vice President Assistant Corporate Secretary
(1) are hereby severally authorized to sign in the
Company's name:
(a) insurance contracts of every type and description
which this Company is authorized to write;
(b) agreements relating to the purchase, sale, or
exchange of securities including any consents and modifications
given or made under such agreements;
(c) conveyances and leases of real estate or any
interest therein including any modifications thereof;
(d) assignments and releases of mortgages and other
liens, claims or demands;
(e) any other written instrument which they are
authorized to approve in the normal course of Company business;
and
(f) any other written instrument when specifically
authorized by the Board of Directors, the Chairman, the Vice
Chairman or the President;
and are further severally authorized (i) to delegate all or any
part of the foregoing authority to one or more officers,
employees or agents of this Company, provided that each such
delegation is in writing and a copy thereof is filed in the
office of the Corporate Secretary, or (ii) to designate any
attorney at law representing this Company on a matter under their
direction, to so sign this Company's name; and
(2) are hereby severally authorized to possess this Company's
duplicate seals and to affix the same to items (a) through (f)
above; and are further severally authorized to designate, in a
writing filed in the office of the Corporate Secretary, any
officer, employee or agent of this Company to possess and to so
affix this Company's duplicate seals.
Dated at Hartford, Connecticut on , 1996.
Paige L. Falasco
Assistant Corporate Secretary
EXHIBIT 9.2.10
INCUMBENCY AFFIDAVIT
I, _____________________, Assistant Secretary of Aetna Life
Insurance Company (the "Company"), do hereby certify that
is a duly appointed Assistant Vice President of the Company and
that (s)he holds such office as of this date.
Dated at Hartford, Connecticut, on , 1996.
Assistant Secretary
EXHIBIT 9.2.13
SELLER'S STATEMENT
SELLER'S NAME: Aetna Life Insurance Company
ADDRESS: c/o Asset Management & Sales, IG40
242 Trumbull Street
Hartford, Connecticut 06103
BUYER'S NAME: Parkway Properties, Inc.
ADDRESS: 300 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201-2195
To: Commonwealth Land Title Insurance Company ("Title Company")
3350 Cumberland Circle
Suite 1895
Atlanta, Georgia 30339
Re: One Triad Park, Winston-Salem, North Carolina ("Property"),
which is more particularly described on Exhibit A attached
hereto and incorporated herein
THE UNDERSIGNED HEREBY STATES THAT:
1. A. No repairs or alterations have been made by Aetna Life
Insurance Company on said Property during the [120] days
preceding the date hereof, which have not been paid for,
except as follows:
B. If none, check here ( )
[Call Property Manager regarding item 1A above.]
2. No proceedings in bankruptcy or receivership have been
instituted by or against Aetna Life Insurance Company which
are now pending, nor has Aetna Life Insurance Company made
any assignment for the benefit of creditors.
3. Aetna Life Insurance Company is authorized to do business in
the States of Connecticut and North Carolina and is in good
standing in the State of Connecticut.
4. There are no parties in possession at the Property except
for the tenants as set forth on Exhibit B attached hereto
and made a part hereof.
5. The undersigned makes this statement for the purpose of
inducing the Title Company to issue to Parkway Properties,
Inc., an owner's title insurance policy insuring title to
said Property.
Dated: _____________, 1996 By: AETNA LIFE INSURANCE COMPANY
By:
Printed name:
Its:
Sworn to and subscribed before me, notary, this ______ day
of ____________, 1996.
Notary Public
My commission expires:
[NOTARIAL SEAL]
EXHIBIT 9.2.15a
TENANT ESTOPPEL
Parkway Properties, Inc.
300 One Jackson Place
188 East Capitol Street
Jackson, MS 39201
RE: One Triad Park, Winston-Salem, Forsyth County,
North Carolina ("Property")
Gentlemen:
The undersigned as Tenant hereby certifies to Parkway
Properties, Inc., and its assignee ("Parkway") and any subsequent
beneficiary under a deed of trust covering the above captioned
property ("Mortgagee") that:
(i) It is a Tenant of a portion of the captioned Property under
a certain lease (the "Lease") as follows:
Landlord: ___________________________________
Tenant: _____________________________________
Lease Dated: ________________________________
Amendment(s) Dated (if any): ________________
Current Annual Base Rent: ___________________
Square Footage: _____________________________
Original term (or current option period,
if applicable) expires: _____________________
Security Deposit and/or
Lease Deposit: $_____________________________
(ii) That attached hereto as Exhibit A is a true and complete
copy of the Lease and all amendments thereto.
(iii)Tenant has unconditionally accepted and occupied the
leased premises, commenced payment of rent under the Lease
without claim or right of set-off, or claim of any default by the
Landlord, and is now conducting business on the premises;
(iv) The Lease sets forth the entire agreement between the
Landlord and Tenant, is in full force and effect in accordance
with its terms and has not, in any way, been amended, modified,
assigned or sublet;
(v) There exists no default by either party to the Lease, or
other grounds for ceasing or reducing the payment of rental, or
for cancellation or termination of the Lease;
(vi) All requirements of the Lease have been complied with and no
charges, set-offs or other credits exist against the rentals;
From and after the date that Parkway acquires title to the
Property:
(vii) Tenant shall not agree to any alteration, modification,
amendment or termination of its Lease, nor subordinate or permit
subordination of the Lease to any lien in favor of anyone other
than Parkway or Mortgagee, without first obtaining Parkway's or
such Mortgagee's prior written approval provided Tenant has been
provided the name and address of such Mortgagee;
(viii)Tenant shall give any Mortgagee 30 days notice of any
default by the Landlord under the Lease and a reasonable
opportunity for Mortgagee to cure any default upon Landlord's
failure to do so;
(ix) Tenant will not pay rent in advance for more than the
current month without Mortgagee's prior written consent. No
concession or allowance has been granted by Landlord which
permits Tenant to occupy the leased premises without payment of
Rent or any other financial obligation contained in the Lease,
nor will Tenant accept such concession or allowance or negotiate
for the same without the prior written consent of Parkway or
Mortgagee;
(x) Parkway may subsequently execute and deliver to Mortgagee an
Assignment of Leases and Rents conveying the rentals under the
Lease as additional security for a loan secured by the Property,
and Tenant hereby expressly consents to such Assignment and has
no notice of a prior Assignment of the Lease or the rents
thereunder;
(xi) Tenant will not look to any mortgagee, or its successors or
assigns, for the return of or credit for security deposit or
prepaid rent, if any, unless said sums have been actually
transferred to such mortgagee or its successors or assigns.
Tenant understands that Parkway is relying on the above
representations in consenting to purchase the Property and does
hereby warrant and affirm to and for the benefit of Parkway, its
successors and assigns, that each of the foregoing
representations is true, correct and complete as of the date
hereof.
By:
Name:
Title:
Date:
EXHIBIT 9.2.15b
WOMBLE, CARLYLE, SANDRIDGE & RICE TENANT ESTOPPEL
Parkway Properties, Inc.
300 One Jackson Place
188 East Capitol Street
Jackson, MS 39201
RE: One Triad Park, Winston-Salem, Forsyth County,
North Carolina ("Property")
Gentlemen:
The undersigned as Tenant hereby certifies to Parkway
Properties, Inc., and its assignee ("Parkway") and any subsequent
beneficiary under a deed of trust covering the above captioned
property ("Mortgagee") that:
(i) It is a Tenant of a portion of the
captioned Property under a certain lease (the
"Lease") as follows:
Landlord: ___________________________________
Tenant: _____________________________________
Lease Dated: ________________________________
Amendment(s) Dated (if any): ________________
Current Annual Base Rent: ___________________
Square Footage: _____________________________
Original term (or current option period,
if applicable) expires: _____________________
Security Deposit and/or
Lease Deposit: $_____________________________
(ii) That attached hereto as Exhibit A is a
true and complete copy of the Lease and all
amendments thereto.
(iii) Tenant has unconditionally accepted
and occupied the leased premises, commenced
payment of rent under the Lease without claim
or right of set-off, or claim of any default
by the Landlord, and is now conducting
business on the premises;
(iv) The Lease sets forth the entire
agreement between the Landlord and Tenant, is
in full force and effect in accordance with
its terms and has not, in any way, been
amended, modified, assigned or sublet;
(v) There exists no default by either party
to the Lease, or other grounds for ceasing or
reducing the payment of rental, or for
cancellation or termination of the Lease;
(vi) All requirements of the Lease have been
complied with and no charges, set-offs or
other credits exist against the rentals;
(vii) As of the execution date of the
Lease and of the First Amendment and Second
Amendment thereto, Tenant was a general
partnership organized and existing under the
laws of the State of North Carolina. On
____________, 199__, Tenant reorganized
itself into a limited liability company
organized and existing under the laws of the
State of ____________. Tenant acknowledges
and agrees that the general partners
comprising the general partnership which
constitutes Tenant as of the execution date
of the Lease remain and are liable for the
obligations of Tenant under the Lease.
From and after the date that Parkway acquires title to the
Property:
(viii) Tenant shall not agree to any
alteration, modification, amendment or
termination of its Lease, nor subordinate or
permit subordination of the Lease to any lien
in favor of anyone other than Parkway or
Mortgagee, without first obtaining Parkway's
or such Mortgagee's prior written approval
provided Tenant has been provided the name
and address of such Mortgagee;
(ix) Tenant shall give any Mortgagee 30 days
notice of any default by the Landlord under
the Lease and a reasonable opportunity for
Mortgagee to cure any default upon Landlord's
failure to do so;
(x) Tenant will not pay rent in advance for
more than the current month without
Mortgagee's prior written consent. No
concession or allowance has been granted by
Landlord which permits Tenant to occupy the
leased premises without payment of Rent or
any other financial obligation contained in
the Lease, nor will Tenant accept such
concession or allowance or negotiate for the
same without the prior written consent of
Parkway or Mortgagee;
(xi) Parkway may subsequently execute and
deliver to Mortgagee an Assignment of Leases
and Rents conveying the rentals under the
Lease as additional security for a loan
secured by the Property, and Tenant hereby
expressly consents to such Assignment and has
no notice of a prior Assignment of the Lease
or the rents thereunder;
(xii) Tenant will not look to any
mortgagee, or its successors or assigns, for
the return of or credit for security deposit
or prepaid rent, if any, unless said sums
have been actually transferred to such
mortgagee or its successors or assigns.
Tenant understands that Parkway is relying on the above
representations in consenting to purchase the Property and does
hereby warrant and affirm to and for the benefit of Parkway, its
successors and assigns, that each of the foregoing
representations is true, correct and complete as of the date
hereof.
By:
Name:
Title:
Date:
EXHIBIT 9.3
ERISA CERTIFICATE
_________________, 1996
Aetna Life Insurance Company
c/o Asset Management & Sales, IG40
242 Trumbull Street
Hartford, Connecticut 06156
RE: One Triad Park
Ladies and Gentlemen:
The undersigned represents to you that PARKWAY PROPERTIES, INC.,
a Maryland corporation, or any affiliates thereof, or any firm,
person or entity providing financing for the purchase of the
entire interest of Aetna Life Insurance Company, a Connecticut
corporation, in the above described property (the "Property") are
not using the assets of an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and covered under Title I, Part 4 of
ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended, in the performance or discharge of its obligations under
that certain Purchase and Sale Agreement dated _________________,
1996, with respect to the Property by and between Aetna Life
Insurance Company, as Seller, and the undersigned, as Purchaser,
including the acquisition of the Property.
Very truly yours,
PARKWAY PROPERTIES, INC.
By:
Printed Name:
Its:
EXHIBIT 9.7(i)
NOTICE TO CONTRACTOR
______________________, 1996
RE: One Triad Park
200 West Second Street
Winston-Salem, North Carolina
You are hereby notified and advised that PARKWAY PROPERTIES,
INC., a Maryland corporation ("Purchaser"), purchased and
acquired from AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation, all right, title and interest in and to One Triad
Park ("Property") and assumed the service contract with your
Company with respect thereto.
In accordance with the foregoing, you are hereby notified
that all future invoices, bills, correspondence, and notices
relating to the Property and the service contract, should be
delivered to Purchaser at the following address:
_________________________
_________________________
_________________________
Attention: ______________
Very truly yours,
AETNA LIFE INSURANCE COMPANY
By:
Printed name:
Its:
EXHIBIT 9.7(ii)
NOTICE TO UTILITY COMPANY
______________________, 1996
RE: One Triad Park
200 West Second Street
Winston-Salem, North Carolina
You are hereby notified and advised that PARKWAY PROPERTIES,
INC., a Maryland corporation ("Purchaser"), purchased and
acquired from AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation, all right, title and interest in and to One Triad
Park ("Property").
In accordance with the foregoing, you are hereby notified
that all future invoices, bills, correspondence, and notices
relating to the Property, should be delivered to Purchaser at the
following address:
_________________________
_________________________
_________________________
Attention: ______________
Very truly yours,
AETNA LIFE INSURANCE COMPANY
By:
Printed name:
Its:
EXHIBIT 9.7(iii)
NOTICE TO TENANTS
______________________, 1996
RE: One Triad Park
200 West Second Street
Winston-Salem, North Carolina
You are hereby notified and advised that PARKWAY PROPERTIES,
INC., a Maryland corporation ("Purchaser"), purchased and
acquired from AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation, all right, title and interest in and to One Triad
Park ("Property").
In accordance with the foregoing, you are hereby notified
that all future rent, other payments, correspondence, and notices
relating to the Property, should be delivered to Purchaser at the
following address:
_________________________
_________________________
_________________________
Attention: ______________
Very truly yours,
AETNA LIFE INSURANCE COMPANY
By:
Printed name:
Its:
_______________________________
