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): August 9, 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 August 9, 1996, Parkway Atlanta, Inc., a wholly-
owned subsidiary of Parkway Properties, Inc.
("Parkway") purchased two office buildings in Atlanta,
Georgia from Carfax Enterprises Limited Partnership, an
unrelated party. The Falls Pointe Building contains
approximately 105,655 square feet of rentable area and
has a 420 space surface parking area. The Falls Pointe
Building was 99% leased at the date of purchase. The
Roswell North Building contains approximately 57,715
square feet of rentable area and has a 232 space two
level parking deck. The Roswell North Building was 92%
leased at the date of purchase. The $14,000,000
purchase price for the two building portfolio was
funded from existing cash reserves.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
It is impractical to provide the audited
financial statements of the Falls Pointe and
Roswell North buildings 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 Falls Pointe and
Roswell North buildings.
(c) Exhibits.
(10) Purchase and Sale Agreement
among Carfax Enterprises Limited Partnership, and
The Parkway Company dated April 29, 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: August 23, 1996
PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Vice President, Chief Financial
Officer, Treasurer and Secretary
PURCHASE AND SALE AGREEMENT
among
CARFAX ENTERPRISES LIMITED PARTNERSHIP
and
THE PARKWAY COMPANY
APRIL 29, 1996
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is made and
entered into on or as of the Effective Date, by and among CARFAX
ENTERPRISES LIMITED PARTNERSHIP, a Delaware limited partnership
("Seller") and THE PARKWAY COMPANY, a Texas corporation
("Purchaser") to reduce to writing their understandings and
agreements concerning the purchase and sale of certain improved
real property and certain tangible and intangible personal
property.
WHEREAS, Seller is the owner of two separate parcels of land
located on Roswell Road, Fulton County, Georgia, and on Morgan
Falls Road, Fulton County, Georgia (collectively, the "Land");
and
WHEREAS, there are certain real property improvements in, on
or under the Land consisting principally, but not exclusively, of
two office buildings known as the "Spalding Building" and the
"Falls Pointe Office Building" (collectively, the
"Improvements"); and
WHEREAS, Seller owns and/or possesses certain items of
tangible and intangible personal property (collectively "Personal
Property") used or available for use by Seller in the management,
operation and/or maintenance of the Improvements; and
WHEREAS, Seller desires to sell, transfer, assign and convey
to Purchaser, and Purchaser desires to purchase and acquire from
Seller, the Land and Improvements, including the Buildings
(collectively "Real Property"), and the Personal Property
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and the
mutual covenants, agreements, representations and warranties
contained in this Agreement, and intending to be legally
obligated, Purchaser and Seller agree as follows:
ARTICLE
PURCHASE AND SALE
Purchase and Sale. Subject to the provisions of, and on
the basis of the covenants, agreements, representations and
warranties contained in this Agreement, Seller agrees to sell,
transfer, assign and convey the Real Property and the Personal
Property (collectively "Assets") to Purchaser, and Purchaser
agrees to purchase and acquire the Assets from Seller.
Real Property Identified. The Real Property includes:
Description of Land. The real estate described in
Exhibit 2(a) attached hereto.
Description of Improvements. The Improvements,
including the Spalding Building and the Falls Pointe Office
Building, all building materials, fixtures, heating,
ventilation and air conditioning systems, canopies,
sidewalks, walkways, planters and landscape materials, and
all other real property improvements owned by Seller and
located in, on or under the Land or related to, used or
available for use in the ownership, conduct, operation or
maintenance of the Real Property.
Rights and Appurtenances. All and singular, the
rights and appurtenances pertaining to the Real Property,
including, but not limited to, any right, title and interest
of Seller in and to adjacent streets, roads, alleys,
easements and rights-of-way.
Personal Property Identified.
Description of Tangible Personal Property. The
tangible Personal Property consists of all material tangible
personal property owned by Seller and used or available for
use by Seller in the ownership, operation and/or management
of the Real Property and in the repair, operation and
maintenance of the Assets, including, without limitation,
all equipment, tools, machinery, furniture, furnishings,
office and other supplies, inventories, spare parts and
other tangible personal property located on or attached to,
or used or available for use in the ownership, conduct,
operation or maintenance of the Real Property. The tangible
Personal Property specifically includes all tangible
personal property located in any management office at the
real property owned or leased by Seller.
Description of Intangible Personal Property. The
intangible Personal Property consists of all material
intangible personal property owned by Seller and used by
Seller in the ownership, operation and/or management of the
Real Property and in the repair, operation and maintenance
of the Assets and includes, without limitation, (i) all
assignable guarantees and warranties (including those
pertaining to construction of the Improvements, if any);
(ii) all assignable licenses and other permits relating to
the Assets or the operation thereof; (iii) all assignable
contracts, agreements and contract rights; (iv) Seller's
interest in all utilities, utility connections and utility
rights in connection with the Assets; (v) all rights to use
the name "Spalding Building" and "Falls Pointe Office
Building" on a non-exclusive basis; and (vi) all leases,
tenancies and rental agreements or arrangements
(collectively "Leases") with tenants, and security, damage
and other deposits and payments which have been collected by
Seller with respect to the Leases and not retained by Seller
in accordance with the terms of the Leases (collectively
"Deposits").
Other Rights Included. The Personal Property
includes such other rights, interests and property as may be
specified in this Agreement to be sold, transferred,
assigned or conveyed by Seller to Purchaser.
ARTICLE
PURCHASE PRICE
Escrow Deposit. Purchaser shall within two (2) business
days following the Effective Date deliver to Metropolitan Title
Agency, Inc., as agent for Chicago Title Insurance Company
("Title Company") the sum of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) ("Escrow Deposit") in lawful funds of the
United States of America. If Purchaser elects not to proceed
with this transaction prior to the conclusion of the Inspection
Period, then Title Company shall refund to Purchaser the Escrow
Deposit and all interest accrued thereon. If Purchaser elects to
proceed with this transaction at the conclusion of the Inspection
Period, the Escrow Deposit and all interest thereon, shall become
non-refundable to Purchaser but shall be credited toward the
Purchase Price upon Closing. Title Company is hereby instructed
to invest the Escrow Deposit in an FDIC insured high yield
interest bearing account in the name of Purchaser. Purchaser's
taxpayer identification number is 74-2123597. Purchaser and
Seller hereby acknowledge and agree that all accrued interest on
the deposit shall be credited to Purchaser, provided, however, in
the event that this transaction does not close due to an event of
default by Purchaser and through no fault of Seller, the Escrow
Deposit and all accrued interest thereon shall be delivered to
Seller as hereinafter set forth.
Purchase Price. Seller agrees to sell, and Purchaser
agrees to purchase, the Assets for a total purchase price equal
to FOURTEEN MILLION AND NO/100 DOLLARS ($14,000,000.00) plus or
minus prorations and other adjustments provided by this Agreement
("Purchase Price"), upon and in accordance with the terms and
conditions of this Agreement ("Transaction"). The Purchase Price
shall be allocated as follows: (a) $5,100,000 to the Spalding
Building; and (b) $8,900,000 to the Falls Pointe Office Building.
The Improvements Escrow described in Section shall be funded
with proceeds of the Purchase Price allocated to the Falls Pointe
Office Building.
Balance of Purchase Price. The balance of the Purchase
Price (of which the Escrow Deposit may be a part), plus or minus
prorations, shall be paid in immediately available funds to
Seller on the Closing Date.
ARTICLE
ESCROW; CLOSING
Escrow Agent. Title Company is authorized and instructed
to act as escrow agent pursuant to the terms of this Agreement.
By execution of the acknowledgment attached hereto, Title Company
acknowledges receipt of the Escrow Deposit. Purchaser and Seller
shall execute any additional escrow instructions reasonable
required by Title Company to complete the transactions provided
for herein.
Closing. Closing shall be on such date and at such place
as Seller and Purchaser shall mutually determine (hereafter
referred to as "Closing Date" or "Closing") provided, however, in
no event shall the Closing Date be later than forty-five (45)
days from the Effective Date, unless such date is extended by the
mutual agreement of Seller and Purchaser. Notwithstanding the
foregoing sentence, Purchaser may extend the Closing for an
additional thirty (30) days if the condition contained in
Section regarding the CIGNA lease renewal has not been satisfied
prior to the end of the Inspection Period. As a condition to
Purchaser exercising such right to extend the Closing, Purchaser
must provide Seller reasonable evidence that Purchaser is
satisfied with respect to the status of title, survey and all
matters covered by the Purchaser's inspection of the Assets and
that the only condition to the Escrow Deposit becoming non-
refundable is satisfaction of the condition contained in Section
. In such an event and upon satisfaction of the condition
contained in Section , Purchaser and Seller shall undertake to
close the transaction contemplated hereby with fifteen (15) days
following such satisfaction not to exceed seventy-five (75) days
from the Effective Date. As used herein, Closing shall mean
Closing or any extension thereof as determined by Purchaser and
Seller.
Closing Costs.
Seller's Payments. Seller shall pay the cost and
expenses of (i) the survey; (ii) the title search and title
insurance commitment; (iii) the fees for recording the deed
conveying the Real Property; (iv) any other transfer tax,
documentary stamp tax or similar tax which becomes payable
by reason of the transfer of the Assets; and (v) one-half of
any escrow fees charged by Title Company.
Purchaser's Payments. Purchaser shall pay (i) the
premium of the owner's and/or mortgagee title policy and
(ii) one-half of any escrow fees charged by Title Company.
Attorneys' Fees. Each party will pay its own
attorneys' fees and expenses.
Prorations. The following prorations shall be made
effective as of the Closing Date and, to the extent possible,
shall be made tentatively at Closing:
Proration Date. All prorations shall be made as of
12:01 a.m., according to the time zone in which the Assets
are located, on the Closing Date, as if Purchaser were
vested with title to the Assets during the entire Closing
Date.
Rents. All rents under the Leases for the month in
which Closing occurs which are actually received by Seller
shall be prorated as of the Closing Date. All advance
payments of rents, other than for the month in which Closing
occurs, and all Deposits shall be paid by Seller to the
Purchaser at Closing. All rent payable prior to or for the
month in which Closing occurs which have not been collected
by Seller as of the Closing Date shall be delivered to
Seller if and when collected by Purchaser. All rent
received by Purchaser after the Closing Date shall be
applied first to current rentals and then to delinquent
rentals, if any, in the inverse order of maturity.
Taxes. Ad Valorem and personal property taxes and
assessments against the Assets for the year of Closing shall
be prorated between Seller and Purchaser as of the Closing
Date. If actual taxes are unknown, they shall be prorated
based upon the best available information from the local
taxing authority. To the extent that the actual taxes for
the current year differ from the amounts so apportioned at
Closing, Seller and Purchaser shall make all necessary
adjustments by appropriate payments between themselves
following Closing.
Utilities. Charges for utilities serving the Assets
shall be determined as of the day preceding the Closing
Date, and Seller shall pay the amount of the utility charges
to such date to the utility companies involved or to
Purchaser in the event Purchaser is responsible for the
payment of such utility charges. All utility deposits of
Seller shall belong to Seller.
Contract Charges. Charges with respect to Contracts
transferred and assigned to Purchaser shall be prorated as of the
Closing Date. Payments for obligations under leases of tangible
Personal Property transferred and assigned to Purchaser will be
prorated as of the Closing Date. Any other properly accrued
items of current revenue or expense, shall be prorated as of the
Closing Date. To the extent not reflected in the closing
statements evidencing the transaction contemplated by this
Agreement, Purchaser and Seller agree to adjust between
themselves outside of Closing any amounts which are the
responsibility of the other party pursuant to this subsection.
Operating Expenses. Except as otherwise provided
herein, any and all costs, expenses and liabilities relating
to the operation, management or ownership of the Assets
arising or accruing prior to the Closing Date are the
responsibility of the Seller and will be paid by Seller
promptly upon receipt of billing therefor.
The agreements with respect to prorations in this Section
shall survive Closing. Final settlement of all prorated items,
except real estate taxes if not possible, shall occur on or
before 90 days after the Closing Date, or on the next business
day if the 90th day is a Saturday, Sunday or legal holiday.
Liabilities accruing prior to the Closing Date shall be the
responsibility of Seller. Liabilities accruing on or after the
Closing Date shall be the responsibility of Purchaser.
ARTICLE
TITLE MATTERS
Title Report/Commitment for Title Insurance. Seller
hereby instructs Title Company to prepare and deliver to
Purchaser, Seller and the surveyor described below, at Seller's
expense, as soon as possible after the Effective Date a title
commitment issued by Chicago Title Insurance Company (the "Title
Commitment") covering the Real Property, showing all matters
affecting title to the Real Property and binding Title Company to
issue to Purchaser at Closing an owner's policy of title
insurance on the standard form of policy promulgated by the State
of Georgia in the full amount of the Purchase Price pursuant to
Section 4.4 hereof. Seller and Purchaser further instruct Title
Company to deliver to such parties copies of all instruments
referenced in Schedule B, Section II of the Title Commitment.
Survey. As soon as possible after the Effective Date,
Seller shall, at its expense, deliver or cause to be delivered to
Purchaser and Title Company a currently dated as-built survey of
the Land and of the Improvements situated thereon (the "Survey"),
prepared by a surveyor licensed by the State of Georgia
reasonable acceptable to Purchaser, certified to Purchaser and
Title Company by such surveyor as being true, accurate, complete
and having been prepared in accordance with the minimum
requirements for a Land Title Survey adopted by the American Land
Title Association. The Survey shall reflect the total area of
the Real Property, the location of all improvements, recorded
easements and encroachments, if any, located thereon and all
building and set back lines and other matters of record with
respect thereto. Said Survey shall also certify that the Land is
not in an area identified by an agency or department of the
federal government as having special flood or mudslide hazards
which require flood insurance under the Flood Insurance Act of
1968. Seller shall provide at Closing a certificate to Purchaser
and Title Company if requested, that there have been no
improvements made to the Real Property since the date of the
Survey which would alter the depictions on the Survey.
Title Defects. If the legal description of the Land as
determined by the Survey is not consistent with the legal
description contained in Exhibit 2(a) and/or the title to the
Real Property is determined to be subject to conditions,
encumbrances, exceptions or restrictions or if Seller's title to
appurtenant rights-of-way or easements is defective (collectively
"Title Defects") then Seller may at its option either cure or
cause to be cured such Title Defects to Purchaser's satisfaction
on or before the Closing Date. Within fifteen (15) days after
receipt of the later of the Title Commitment and the Survey,
Purchaser shall notify Seller of the Title Defects to be cured
("Purchaser's Notice"). Any matter disclosed in the Title
Commitment and the Survey and not objected to by Purchaser shall
be deemed a "Permitted Exception." Seller shall notify Purchaser
of Seller's decision not to cure any Title Defect within three
(3) days after receipt of Purchaser's Notice. If the Title
Defects are not cured by Seller on or before the Closing Date
then Purchaser may (i) elect to waive the uncured Title Defects,
or (ii) terminate this Agreement in which event Purchaser shall
receive a return of the Escrow Deposit and all interest accrued
thereon.
Title Insurance. At Closing, Seller and Purchaser shall
cause Title Company to issue a final update to the Title
Commitment in which the "GAP" exception has been deleted, binding
Title Company to issue to Purchaser an owner policy of title
insurance (the "Title Policy") covering the Real Property in the
full amount of the Purchase Price. The Title Policy shall be an
ALTA Form 1970-B owner's policy of title insurance subject only
to: (a) current non-delinquent real estate taxes and assessments;
(b) matters set forth in the Title Commitment and approved or
waived by Purchaser; (c) any other matters approved in writing by
Purchaser; (d) title exceptions caused by acts or omissions of
Purchaser; and (e) matters excepted or excluded from coverage by
the printed terms of the title insurance policy standard form
(except for survey (if requested by Purchaser) and mechanics and
materialmen's lien exceptions which shall be deleted).
ARTICLE
INFORMATION SCHEDULES
Information Schedules. As soon as possible after the
Effective Date, Seller shall deliver or cause to be delivered to
Purchaser copies of all schedules referred to in this Agreement,
including the following schedules and other information described
below:
Rent Roll. A complete list and description ("Rent
Roll Schedule"), and true and complete copies, of all
Leases, rental applications, occupancy inspections, rental
deposit agreements, concession agreements and other
agreements or documents with tenants. The Rent Roll
Schedule shall include a separate schedule of (i) the tenant
names, (ii) the location in the Buildings, (iii) the rental
rate and deposits paid by each tenant, and (iv) the term of
each Lease.
Contracts. An itemized schedule and description
("Contracts Schedule") of all written and oral service,
maintenance, management and other agreements, equipment or
appliance leases, non-governmental franchises, contracts and
arrangements relating or pertaining to the Assets
(collectively "Contracts"). Unless Purchaser makes written
request to cancel any Contract contained in the Contracts
Schedule prior to the end of the Inspection Period, the
Contracts contained in the Contracts Schedule shall be
transferred and assigned by Seller to Purchaser at Closing.
The Contracts Schedule shall include (i) the names of the
parties to each Contract, (ii) the service rendered or to be
rendered or the goods supplied or to be supplied under each
Contract, (iii) the compensation or other amount payable by
or to Seller under each Contract, (iv) the terms and
conditions of termination of each Contract, and (v) indicate
each Contract which is oral. In lieu of providing a
detailed Contracts Schedule, Seller may provide to Purchaser
copies of all Contracts.
Personal Property. A true and complete schedule and
description ("Personal Property Schedule") of all material
tangible Personal Property.
Permits. A list and description ("Permits Schedule")
of all current franchises, business or other licenses,
bonds, permits, certificates, authorizations and other
evidences of consent, approval, authorization or permission
relating to or affecting the Assets (collectively "Permits")
of or from any person, including any governmental authority,
held by Seller including any pending applications, but only
to the extent that Purchaser may obtain or derive a benefit
from such Permits after Closing. In lieu of providing a
detailed Permits Schedule, Seller may provide to Purchaser
copies of all Permits.
Disputes. An itemized schedule and description
("Schedule of Disputes") of all material invoices, bills or
other price, expense or cost determination documents of all
persons who have performed or supplied or who are obligated
to perform or supply materials, labor or other personal
services to, for or related to the Assets, if any dispute
exists with respect to any amount due or payable to, or to
the past or future performance or supply of materials, labor
or other personal services by or with, any such person.
Schedule of Disputes shall include (i) the names of each
such person, (ii) the amount payable to and in dispute or a
description of any other dispute with such person, and (iii)
the date such amount became due or payable to or the date
the dispute arose with such person. Purchaser acknowledges
that the Schedule of Disputes includes only matters for
which a dispute exists on or after the execution of this
Agreement.
Warranties. A list and description ("Warranty
Schedule") of all material third party bonds, warranties and
guaranties, if any, which are in effect with respect to or
which benefit any portion of the Assets. In lieu of
providing a detailed Warranty Schedule, Seller may provide
to Purchaser copies of all bonds, warranties and guaranties.
Operating Statements. True and complete copies of
all operating statements for the Assets for the last two
calendar years and for calendar month ending April 30, 1996
(collectively "Operating Statements"); provided, however,
that with respect to the Spalding Building, such operating
statements need cover only such portion of the prior two
calendar years during which the Spalding Building was owned
by Carfax.
ARTICLE
INSPECTION
Inspection Period. During the period beginning upon the
Effective Date and ending at 5:00 p.m., local time, on the
thirtieth (30th) day after the Effective Date (such period of
time hereinafter referred to as the "Inspection Period"),
Purchaser shall have the right to make a physical inspection of
the Assets and to examine the financial and operating books and
records relating to the Assets maintained by or for the benefit
of Seller. All such inspections shall be conducted at
Purchaser's sole risk and expense. Purchaser and/or Purchaser's
agents and representatives shall have the right to conduct such
non-destructive physical engineering, feasibility and other
studies and tests on or of the Assets as Purchaser considers to
be appropriate. Also, at Purchaser's expense, Purchaser and/or
Purchaser's agents and representatives may copy any documents
referred to or described in the schedules but not required to be
provided to Purchaser as part of any schedule. All inspections
shall occur at reasonable times agreed upon by Seller and
Purchaser and shall be conducted so as not to unreasonably
interfere with the use of the Assets by Seller or its tenants.
Purchaser agrees to indemnify and hold Seller harmless of and
from any claim for damages or injuries arising from Purchaser's
inspections of the Assets, such obligations shall survive Closing
or any termination of this Agreement.
Right of Termination. Notwithstanding anything in this
Agreement to the contrary, Purchaser shall have the right, for
any reason in Purchaser's sole and absolute discretion, to
terminate this Agreement by written notice to Seller on or before
the expiration of the Inspection Period and Title Company shall
immediately refund to Purchaser the Escrow Deposit and any
interest thereon.
ARTICLE
REPRESENTATIONS AND WARRANTIES
Purchaser's Representations and Warranties. Purchaser
makes the following representations and warranties, as of the
date of execution of this Agreement and as of the Closing Date
which shall survive Closing and conveyance of the Assets to
Purchaser:
Authority. Purchaser is a Texas corporation, duly
formed, organized, existing and in good standing under the
laws of the State of Texas; Purchaser has full legal right,
power and authority to execute and fully perform its
obligations under this Agreement, without the need for any
further action under its governing instruments; and the
persons executing this Agreement and the other documents
required hereunder are the duly designated officers of
Purchaser and are authorized to do so.
Inspection. Purchaser has made, or will make prior
to expiration of the Inspection Period, an independent
investigation, to the extent Purchaser deems necessary or
appropriate, concerning the physical condition, value,
development, use, marketability, feasibility and suitability
of the Assets, including, without limitation, land use,
zoning and other governmental restrictions.
No Other Seller Representations. Except as expressly set
forth herein, Purchaser acknowledges that no representations or
warranties, express or implied, have been made by Seller or
Seller's representatives.
"AS IS, WHERE IS". PURCHASER HEREBY EXPRESSLY
ACKNOWLEDGES THAT IT HAS INSPECTED AND EXAMINED OR WILL
INSPECT AND EXAMINE THE PROPERTY TO THE EXTENT DEEMED
NECESSARY BY PURCHASER IN ORDER TO ENABLE PURCHASER TO
EVALUATE THE PURCHASE OF THE PROPERTY. PURCHASER REPRESENTS
THAT IT IS A KNOWLEDGEABLE PURCHASER OF REAL ESTATE AND
OFFICE DEVELOPMENTS AND THAT, EXCEPT AS SET FORTH IN SECTION
, IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
PURCHASER'S CONSULTANTS, AND THAT PURCHASER HAS CONDUCTED OR
WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE
PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF.
Seller's Representations and Warranties. Seller makes the
following representations and warranties as of the date of
execution of this Agreement and as of the Closing Date, which
shall survive conveyance of the Assets to Purchaser:
Authority. Seller is a Delaware limited partnership,
duly formed, organized, existing and in good standing under
the laws of the State of Delaware. Seller has full legal
right, power and authority to execute and fully perform its
obligations under this Agreement, without the need for any
further action under its governing instruments; and the
persons executing this Agreement and the other documents
required hereunder are the duly designated officers of
Seller and are authorized to do so.
Marketable Title. At the Effective Date and as of
Closing, Seller will own the Personal Property free and
clear of all liens, claims, encumbrances, and rights of
others, and will convey same to Purchaser. Seller is not a
party to any contract agreement, or commitment to sell,
convey, assign, transfer or otherwise dispose of any portion
or portions of the Assets.
Liabilities. As of Closing, except as created by
this Agreement or disclosed in the schedules attached
hereto, there will be no obligations or liabilities of any
kind or nature whatsoever, actual or contingent, including,
but not limited to any tax liabilities, contract liabilities
or tort liabilities (other than liabilities incurred in the
ordinary course of business which shall be disclosed to
Purchaser in writing prior to the Closing Date or which are
contained in the document delivered to Purchaser under
Section 5.1 hereof) for which or to which Purchaser or the
Assets may be liable or subject to except for non-delinquent
obligations and liabilities accrued and thereafter accruing
under the Permitted Exceptions or in the course of
performance under one or more of such documents and
agreements, disclosed in Section 5.1 hereof.
Contracts. Except as may be delivered to Purchaser
during the Inspection Period, there are no management,
maintenance or other contracts in respect of the Property
which are not terminable on thirty (30) days' notice. If
Purchaser requests during the Inspection Period, any
existing management contracts will be terminated at Closing.
No Undisclosed Matters. To Seller's actual
knowledge, there are no unsatisfied requests for material
repairs, restorations or improvements from any insurance
carrier or governmental authority. Seller has not received
any written notice from any insurer of any defects or
inadequacies in any part of the Assets which would adversely
affect its insurability, or written notice of any claims of
any governmental agency to the effect that the construction,
operation or use of any of the Assets is in violation of any
applicable law, ordinance, rule, regulation or order.
No Defaults. Seller will not at Closing be in
default in respect of any of its material obligations or
liabilities pertaining to the Assets (including, but not
limited to, such obligations and liabilities under the
Permitted Exceptions, Contracts or Leases).
Litigation. There is no litigation of a material
nature pending or to Seller's actual knowledge, threatened
against Seller or the Assets which relates to, or if decided
adversely, could have a material adverse effect upon, the
Assets (including condemnation or similar proceeding).
Environmental Matters. For the purpose of this
Agreement, the term "Hazardous Materials" shall mean (i)
each and every substance included within the term "hazardous
substance" or "hazardous waste" as defined in any one or
more of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C.A. Section
9601 et seq. (as heretofore amended), the Hazardous
Materials Transportation Act of 1975, 49 U.S.C.A. Section
1801 et seq. (as heretofore amended), the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq. (as heretofore amended) and any other federal,
state or local environmental laws or regulations now or
hereafter enacted; (ii) all substances to which the rules
and regulations promulgated by any Federal or state agency
pursuant to any one or more of said statutes applies; and
(iii) any and all petroleum products and petroleum
derivatives. Seller represents unto Purchaser that to
Seller's actual knowledge, the following matters are true as
of the Effective Date, and will also be true as of the date
of Closing, and shall survive Closing and not merge into any
documents delivered at Closing:
Seller has no notice or actual knowledge of any
(i) currently existing violations of federal, state,
county or municipal environmental laws in respect to
the Assets, or (ii) past, pending or threatened
administrative or judicial litigation or other legal
proceedings including, without limitation, any
enforcement proceeding under any federal, state, county
or municipal statute, ordinance, rule or regulation
concerning Hazardous Materials, relating to the Assets,
or of any settlement thereof.
Seller has no actual knowledge of the existence
of any underground storage tanks ("USTs") located on or
below the Land.
Certification of Rent Roll. No person has any title,
interest or right to possession of any portion of the Real
Property as a lessee, tenant or concessionaire of Seller
except as shown on the Rent Roll Schedule. The Rent Roll
Schedule correctly and accurately states the rent and term
for each Lease. Except as disclosed in writing to
Purchaser, the Rent Roll Schedule lists all Leases and all
of the Leases are in full force and effect in accordance
with their written terms and, to Seller's actual knowledge,
are valid obligations of the tenants. Seller is not, and to
Seller's actual knowledge no tenant is, in default in the
performance of or under any such Lease in any material
respect except as otherwise disclosed. The Rent Roll
Schedule states all Deposits, prepaid rents, and other
deposits or prepayments for each Lease. No tenant is
entitled to any rebate, concession, special allowance or
other benefits, except as stated in the Leases or on the
Rent Roll Schedule. To Seller's actual knowledge, no tenant
has any counterclaim, defense or offset to any action for
collection of rents or other amounts accruing after the
Closing Date under any Lease. The rents and other sums due
or to become due under each Lease have not been and will not
be assigned, encumbered or subjected to any liens by Seller,
except to lenders whose liens shall be assigned or released
at Closing. Except as disclosed in the Rent Roll Schedule,
there has been no deviation from any Lease or other
documents executed by tenants in connection with the Leases.
Seller has paid in full all leasing or similar commissions
or payment obligations, if any, relating to any Lease.
Operating Statements. To Seller's actual knowledge,
the Operating Statements prepared by the management agent
are true, accurate and complete in all material respects and
present fairly the results of operations for the periods
indicated.
Use of Property. To Seller's actual knowledge, (i)
no governmental, public or private authority intends or
desires to appropriate the use of or limit the use of any of
the Property pursuant to any condemnation, eminent domain or
similar proceeding; (ii) no fact or condition exists which
will result in the termination of the Property's current
access to and from existing streets and utilities; (iii) the
utilities serving the Property include electricity,
telephone, city water, cable television, gas, and city
sanitary and storm sewer adequate for the existing use of
the Property as an apartment complex; (iv) the Property is
validly zoned with respect to its existing use and no
pending, contemplated or threatened change in zoning
ordinances are applicable to the Property; and (v) the
Improvements when constructed complied with all applicable
building codes and all signs comply with all applicable sign
ordinances.
Documentation. To Seller's actual knowledge, all
documents which shall be delivered to Purchaser by or on
behalf of Seller under this Agreement shall be true,
correct, complete and accurate in all material respects.
FIRPTA. Seller is not a "foreign person" (as defined in
the Internal Revenue Code and Income Tax Regulations). The
provisions of the Foreign Investment in Real Property Tax
Act of 1980, as amended, are not applicable to the
Transaction.
Definition of Knowledge. Whenever the term "Seller's
actual knowledge is used herein, such phrase shall refer
only to facts actually known to Norman Harrower, III, Scott
Jenkins and Kim Northenor.
Covenants of Seller. Seller covenants and agrees
with Purchaser as follows:
Access. During normal business hours prior to and
after Closing, Seller agrees to give to Purchaser and its
agents and representatives reasonable access to the Assets
and the books and records directly relating to the
ownership, management, maintenance and operation of the
Assets, and all documents directly pertaining to the Assets
that are in the possession of Seller, or any of Seller's
agents or representatives. Seller will furnish Purchaser
with such additional financial and operating data and other
information reasonably available to Seller as may be
reasonably necessary for Purchaser to thoroughly evaluate
the Assets.
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 notice from Purchaser to
Seller.
No Material Changes. Prior to Closing, Seller shall:
(i) not cancel or permit cancellation of any hazard or
liability insurance carried with respect to the Assets; (ii)
remedy all material violations of laws, ordinances, orders
or requirements relating to the Assets which are not caused
by Purchaser and of which Seller has received actual or
constructive notice and provide Purchaser with evidence of
curing of same (provided that Seller shall not be required
to expend more than $10,000, in the aggregate, with respect
to such matters); (iii) operate the Property on a basis
consistent with historical operations; and (iv) without the
prior written consent of Purchaser, which shall not
unreasonably be withheld, not enter into any, nor shall any
agent acting on its behalf enter into, leases with respect
to the Assets at rents below, or terms longer than, those
entered into by Seller during the period from August, 1995 -
April, 1996. Prior to Closing, Seller also will not,
without the prior written consent of Purchaser, (i) sell,
transfer or dispose or become obligated to sell, transfer or
dispose of any of the Assets, except for the use and
consumption of inventory, office and other supplies and
spare parts, and the replacement of worn out, obsolete and
defective tools, equipment and appliances, in the ordinary
course of the business, (ii) except as specifically
permitted by this Agreement, enter into any transaction, or
make any commitment with respect to the Assets other than in
the ordinary course of the business, (iii) amend, renew,
extend, modify or terminate any Contract, Permit or Lease
except as contemplated by this Agreement or except in the
ordinary course of business. Prior to Closing, Seller shall
operate and maintain the Assets in substantially the same
manner and condition as Seller has operated and maintained
the Assets immediately prior to the Effective Date, and
Seller shall use reasonable efforts to maintain at least the
current reputation of the Real Property. Seller will
perform current or routine maintenance and repairs of or to
the Assets as may be required or reasonably appropriate to
operate and maintain the Assets.
Consents. Seller and Purchaser shall each promptly
file or submit and diligently prosecute any and all
applications or notices with federal, state and/or local
authorities and all other requests with any private persons
or entities for consents, approvals, authorizations and
permissions which are reasonably considered necessary or
appropriate by Seller or Purchaser for the consummation of
the Transaction or to prevent the termination of any Lease,
Contract or Permit, or any loss or disadvantage to the
Assets.
Payments. Seller will cause to be paid when due or
shall be responsible for all taxes, license fees, trade
accounts and costs and expenses of operation and maintenance
of the Assets incurred through the Closing Date, except
amounts subject to proration under Section .
Cooperation. Seller will assist and cooperate with
any environmental evaluation, study or audit of the Real
Property or the Personal Property prepared by, for or at the
request of Purchaser.
Notification of Subsequent Events. Prior to Closing,
Seller shall notify Purchaser of any written notice received
by Seller of any material adverse change in or to the Assets
including, without limitation, any notice relating to any
insurance contract or policy now held or owned by Seller to
cancel or materially increase any premiums relating thereto.
Conditions to Purchaser's Obligations. The obligations of
Purchaser to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of each of the
following conditions as of the Closing Date, except to the extent
any such condition is waived in whole or in part by Purchaser in
writing at or prior to Closing:
Satisfaction. The representations and warranties of
Seller contained in this Agreement shall have been true on
the date of this Agreement and on Closing. Seller shall
have performed all obligations and complied with all
covenants required by this Agreement. Seller shall have
delivered to Purchaser a certificate, in a form acceptable
to Purchaser, dated as of the Closing Date and signed by
Seller, concerning this Section .
Inspection. Prior to the termination of the
Inspection Period, Purchaser shall be satisfied, in its sole
and absolute discretion, with respect to the operation,
maintenance, repair, quality and status of the Property.
Title Defects. All Title Defects, except Permitted
Title Exceptions, shall have been cured by Seller or waived
in writing by Purchaser.
Title Policy. Purchaser shall have obtained a
commitment to issue the Title Policy insuring good and
indefeasible fee simple title to the Real Property in
Purchaser in an amount equal to the Purchase Price.
Releases. Delivery to Purchaser of separate
documents executed by any person who has a lien or security
interest on, in or against any of the Assets which terminate
and cancel all of the liens and security interests upon the
proper filing for record of such documents, and such other
executed documents as Purchaser determines may be necessary
to terminate and cancel all liens and security interests
against the Assets, other than those to be assumed by
Purchaser at Closing or otherwise contemplated by this
Agreement which delivery may be made in escrow to the Title
Company conditioned upon payment of portions of the Purchase
Price to such person.
Improvement Escrow. Seller shall fully fund and
establish a $200,000 capital improvement escrow account in
the name of Purchaser on terms and at a financial
institution acceptable to Purchaser in its sole and absolute
discretion. Purchaser shall have the right to use such
funds for capital improvements in such manner and at such
time as determined by Purchaser in its sole and absolute
discretion.
CIGNA Renewal. Seller shall have entered into a
binding written lease renewal agreement with CIGNA on terms
reasonably acceptable to Purchaser. Such terms shall
include a five (5) year renewal term at an annual base
rental rate of $16.00 per square foot commencing February,
1997 for substantially all of the space currently occupied
by CIGNA with no obligation for any additional tenant
improvements.
No Injunction. On the Closing Date, there shall be
no third party injunction, writ, preliminary restraining
order or any order of any nature issued or threatened by a
court of competent jurisdiction directing that the
transactions contemplated herein not be consummated as
herein provided.
Conditions to Seller's Obligations. The obligations of
Seller to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of each of the
following conditions as of the Closing Date, except to the extent
any such condition is waived in whole or in part by Seller in
writing at or prior to Closing:
Satisfaction. The representations and warranties of
Purchaser contained in this Agreement shall have been true
on the date of this Agreement and on Closing. Purchaser
shall have performed all obligations and complied with all
covenants required by this Agreement. Purchaser shall have
delivered to Seller a certificate, in a form acceptable to
Seller, dated as of the Closing Date and signed by
Purchaser, concerning this Section .
No Injunction. On the Closing Date, there shall be
no third party injunction, writ, preliminary restraining
order or any order of any nature issued or threatened by a
court of competent jurisdiction directing that the
transactions contemplated herein not be consummated as
herein provided.
Closing Documents. At Closing, Seller shall deliver to
Purchaser (i) full and complete possession of the Assets, (ii)
such documents of sale, transfer, assignment and conveyance as
may be reasonably required or requested by Purchaser to ensure
that Purchaser owns and is vested with the entire legal and
beneficial interest in the Assets, free and clear of all liens,
security interests, claims and encumbrances and subject to no
legal or equitable conditions or restrictions of any kind, except
as specifically permitted by this Agreement, and (iii) such
documents as may be reasonably required or requested by Purchaser
to ensure that Seller has complied with all of Seller's
obligations under this Agreement. The documents required to be
properly executed by Seller and delivered to Purchaser and/or
executed by Purchaser and delivered to Seller shall be in a form
reasonably acceptable to Purchaser and Seller and include, but
are not limited to:
Limited Warranty Deed. A Limited Warranty Deed
granting, conveying and warranting unto Purchaser good and
marketable title to the Real Property in fee simple
absolute, containing covenants of limited warranty, and
subject to the Permitted Exceptions. The form of the
Limited Warranty Deed will be approved by Seller and
Purchaser prior to the expiration of the Inspection Period.
Bill of Sale. A Bill of Sale and Assignment
transferring and assigning to Purchaser good and marketable
title to all of the tangible Personal Property, including
all fixtures, machinery, equipment, appliances, inventory,
office and other supplies and spare parts, and all other
tangible Personal Property, containing covenants of
warranty, and subject to no liens, charges, encumbrances,
exceptions, conditions. restrictions, security interests or
claims, of any kind or character other than the Permitted
Exceptions. The form of the Bill of Sale and Assignment
will be approved by Seller and Purchaser prior to the
expiration of the Inspection Period.
Assignment. An Assignment of Leases, Contracts and
Intangibles transferring and assigning to Purchaser all of
Seller's interest in, to and under (i) all Leases in force
on the Closing Date, (ii) all rentals, Deposits, and other
payments or deposits paid under or derived from such Leases,
and (iv) all Contracts, Permits and other intangible
Personal Property including, without limitation, all of
Seller's rights and interests, if any, in the trade name
"Spalding Building" and "Falls Pointe Office Building" on a
non-exclusive basis. The form of the Assignment of Leases,
Contracts and Intangibles will be approved by Seller and
Purchaser prior to the expiration of the Inspection Period.
Such Assignment of Leases, Contracts and Intangibles shall
be joined in by Purchaser for the purpose of assuming all
obligations under any assigned item arising from and after
the Closing Date.
Documents. Executed original copies, or copies
certified as correct by Seller, of (i) all Leases in force
on the Closing Date covering portions of the Real Property
and all other documents referred to in the Rent Roll
Schedule, (ii) all Contracts and Permits transferred and
assigned to Purchaser, (iii) all "as built" plans,
specifications, surveys or other documents relating or
pertaining to the Assets in the possession of Seller
(collectively "Plans"), including, but not limited to, all
data and information relating to the repair, renovation,
reconstruction, and maintenance of the Improvements and the
tangible Personal Property, (iii) all other documents
referred to in the schedules.
Rent Roll. A current and updated Rent Roll Schedule.
FIRPTA. Affidavit from Seller that Seller is not a
foreign person as defined in the Foreign Investment in Real
Property Tax Act of 1980, as amended. The form of the
Affidavit is contained in Exhibit 7.6(f).
Keys. All keys and master keys to all locks located
on the Real Property properly tagged for identification as
well as cards keys and cards for the security systems, if
any.
Telephone and Mail. Such documents as may be
required by (i) the local telephone company to assign to
Purchaser all of Seller's rights and interest in each
telephone number or phone line used by Seller exclusively
for the operation of the Assets, and (ii) the U.S. Postal
Service to assign to Purchaser all of Seller's rights and
interest in each post office box and drawer exclusively for
the operation of the Assets.
Miscellaneous. Such other documents as may be
required under other provisions of this Agreement or as may
reasonably be required by Purchaser to consummate the
Transaction, including, but not limited to, (i) a Closing
Statement, (ii) a Closing Memorandum, and (iii) a Quitclaim
Deed with the legal description contained in Exhibit 2(a)
and/or the Survey, if the legal description of the Land
contained in the Survey differs from the legal description
contained in Exhibit 2(a).
ARTICLE
DEFAULTS AND REMEDIES
Damages Against Purchaser. IF PURCHASER DEFAULTS UNDER
ANY PROVISION OF THIS AGREEMENT AND CLOSING DOES NOT OCCUR, THEN
SELLER SHALL BE RELEASED FROM ALL OBLIGATIONS IN LAW OR EQUITY TO
CONVEY THE PROPERTY TO PURCHASER. PURCHASER AND SELLER AGREE
THAT AS SELLER'S SOLE REMEDY FOR A DEFAULT HEREUNDER, BY WRITTEN
NOTICE TO PURCHASER AND TITLE COMPANY, SELLER SHALL BE ENTITLED
TO TERMINATE THIS AGREEMENT AND BE ENTITLED TO RECEIVE THE ESCROW
DEPOSIT PLUS ACCRUED INTEREST THEREON AS LIQUIDATED DAMAGES.
PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT ACTUAL DAMAGES
WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN.
THEREFORE, THE SUM REPRESENTED BY THE ESCROW DEPOSIT PLUS ANY
ACCRUED INTEREST THEREON SHALL BE DEEMED TO CONSTITUTE A
REASONABLE ESTIMATE AND AGREED STIPULATION OF SELLER'S DAMAGES
AND SHALL CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE
EVENT THIS TRANSACTION FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT. NOTWITHSTANDING THE FOREGOING, PURCHASER'S LIABILITY
UNDER THE LAST SENTENCE OF SECTION 6.1 HEREOF AND THE LAST
SENTENCE OF SECTION 10.1 HEREOF SHALL REMAIN IN FULL FORCE AND
EFFECT.
Damages against Seller. In the event that Seller fails to
perform all of Seller's obligations under this Agreement,
including the obligation to consummate the Transaction, then
Purchaser may make written demand to Seller for performance of
this Agreement. If Seller fails to comply with Purchaser's
written demand within 30 days after receipt of such written
demand for performance, Purchaser shall have the exclusive right
to (i) waive such default, (ii) seek specific performance of
Seller's obligations under this Agreement, or (iii) terminate
this Agreement and promptly receive a full refund of the Escrow
Deposit and all interest thereon, without further liability on
Purchaser's part. Seller agrees that the Business and the Assets
are unique and that damages for failure by Seller to consummate
the Transaction will be impracticable and extremely difficult to
determine. Therefore, in the event that Seller fails or refuses
to consummate the Transaction and Purchaser seeks injunctive
relief or specific performance, Seller specifically agrees that
the remedies of injunctive relief or specific performance are
appropriate remedies for Purchaser, and Seller waives and agrees
not to assert any claim or defense that injunctive relief or
specific performance is not an appropriate remedy for Purchaser.
ARTICLE
RISK OF LOSS
Risk of Loss. Prior to Closing, Seller shall have full
risk of loss or damage with respect to the Assets. Upon Closing,
full risk of loss or damage with respect to the Assets shall pass
to Purchaser. For purposes of this Article 9, "loss or damage"
shall mean the following: (i) any loss, damage, destruction or
injury by fire, storm, accident, flood or other casualty or
hazard to the Assets; and (ii) any condemnation, eminent domain
or other similar proceeding.
Minor Damage. In the event of loss or damage to the Real
Property or any portion thereof (the "premises in question")
which is not "major" as hereinafter defined), this Agreement
shall remain in full and effect provided Seller performs any
necessary repairs or, at Seller's option, reduces the cash
portion of the Purchase Price in an amount equal to the cost of
such repairs, Seller thereby retaining all of the Seller's right,
title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies or condemnation
awards relating to the premises in question. In the event Seller
elects to perform repairs upon the Real Property, Seller shall
use reasonable efforts to complete such repairs promptly and if
necessary, the date of Closing shall be extended a reasonable
time in order to allow for the completion of such repairs;
provided, however, Closing may not be extended for a period of
more than thirty (30) days without the prior consent of
Purchaser.
Major Damage. In the event of a "major" loss or damage,
Purchaser may either (i) terminate this Agreement and immediately
receive a refund of the Escrow Deposit and all interest thereon,
or (ii) it may proceed with this transaction and receive Seller's
insurance proceeds, if any, for such damage. In such event,
Seller shall execute all documents reasonably requested by
Purchaser to assign Seller's rights and interest to such
insurance proceeds.
Definition of Major Loss or Damage. For purposes of
Sections and , "major" loss or damage refers to the following:
(i) loss or damage to the Assets or any portion thereof such that
the cost of repairing or restoring the premises in question to a
condition substantially identical to that of the premises in
question prior to the event of damage or loss would be, in the
certified opinion of a mutually acceptable architect, equal to or
greater than Fifty Thousand Dollars ($50,000), and (ii) any loss
or damage due to a condemnation which permanently or materially
impairs the current use of the Assets.
ARTICLE
GENERAL PROVISIONS
Brokerage Commission. Seller shall pay any and all
brokerage commissions due to Robinson Tritschler, Inc. and
Trammell Crow Company pursuant to a separate written agreement.
If the purchase and sale hereunder does not close for any reason,
including default by either Seller or Purchaser, then no
commission shall be due by any party hereto. Except as set forth
in the preceding sentence, Seller and Purchaser represent to each
other that they have acted directly and independently with the
other as principals and that neither Seller nor Purchaser have
retained or authorized the services of any broker or finder with
respect to this transaction. Seller agrees to indemnify and hold
Purchaser harmless from and against all claims, liabilities, and
obligations for any commission, finder's fee, or other
compensation in connection with this Agreement claimed by or
through Seller. Purchaser agrees to indemnify and hold Seller
harmless from and against all claims, liabilities, and
obligations for any commission, finder's fee, or other
compensation in connection with this Agreement claimed by or
through Purchaser.
Entire Agreement. This Agreement, together with all
exhibits or schedules either attached or delivered pursuant
hereto and other agreements expressly referred to herein,
constitutes the entire agreement between the parties with respect
to the purchase and sale of the Assets. All prior to or
contemporaneous agreements, understandings, representations,
warranties and statements, oral or written, are superseded.
Further Assurances. The parties agree to take such
further action and execute such documents and instruments as may
be reasonably required in order to more effectively carry out the
terms of this Agreement and the intentions of the parties.
Modification, Waiver. Except as expressly contemplated
herein, no modification, waiver, supplement or discharge of this
Agreement shall be valid unless the same is in writing and signed
by the party against whom the enforcement thereof is or may be
sought. No waiver of a breach of any of the terms, covenants or
conditions of this Agreement by either party shall be construed
or held to be a waiver of any succeeding or preceding breach of
the same or any other term, covenant or condition herein
contained. No waiver of any default by either party hereunder
shall be implied from any omissions by either party to take any
action on account of such default if such default persists or is
repeated, and no express waiver shall affect a default other than
as specified in such waiver.
Severability. If any term, provision, covenant or
condition of this Agreement is held to be invalid, void or
otherwise unenforceable to any extent by any court of competent
jurisdiction, the remainder of this Agreement shall not be
affected thereby, and each term, provision, covenant or condition
of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
Successors. Subject to the restriction on assignment
provided herein, all terms of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the parties
hereto and their respective heirs, legal representatives,
successors and assigns.
Assignment. Purchaser may assign its rights under this
Agreement to a wholly owned subsidiary of Purchaser or to a
limited partnership controlled by either Purchaser or its wholly
owned subsidiary without Seller's consent; provided, however, no
such assignment shall relieve Purchaser of its obligations
hereunder. Except as contemplated by the preceding sentence,
Seller and Purchaser shall not assign their respective rights,
obligations or interest under this Agreement without the prior
written consent of the other.
Survival of Representations and Warranties. All
obligations hereunder to be performed after Closing, and all
warranties and representations contained herein, shall survive
Closing and the delivery of the Special Warranty Deed to
Purchaser.
Attorneys' Fees. If either party commences legal
proceedings for any relief against the other party arising out of
this Agreement, the losing party shall pay the prevailing party's
reasonable attorneys' fees.
Time. Time is of the essence with respect to this
Agreement.
No Other Inducement. The making, execution and delivery
of this Agreement by the parties hereto has been induced by no
representations, statements, warranties or agreements other than
those expressed herein.
Computation of Time Periods. All periods of the time
referred to in this Agreement shall include all Saturdays,
Sundays and state or national holidays, unless the period of time
specifies business days, provided that if the date or last date
to perform any act or give any notice or approval shall fall on a
Saturday, Sunday or state or national holiday, such act or notice
may be timely performed or given on the next succeeding day which
is not a Saturday, Sunday or state or national holiday.
Notices. Any notice, request, instruction or other
document to be given or furnished under this Agreement by either
party to the other party or to the Title Company shall be in
writing and shall be delivered personally or shall be sent by
facsimile transmission (with a copy sent by regular U. S. mail)
or registered or certified mail, postage prepaid, or by prepaid
overnight delivery service, at the address or telecopy number in
this Section or to such other address, telecopy number of person
as either party may designate by written notice to the other
party. A notice, request, instruction or other documents shall
be deemed to be given (a) when delivered personally, (b) sent by
facsimile transmission (with a copy sent by regular U. S. mail),
or (c) if sent by certified mail or overnight delivery service,
at the time the delivery is indicated on the duly completed
United States Postal Service return receipt or the time of
package pick up as indicated on the records of or certificates
provided by the overnight delivery service.
Seller: ELV Associates, Inc.
Attention: Ms. Suzanne Shank
Office Address: 3340 Peachtree Road, N.E., Suite 267
Atlanta, GA 30326
Telephone Number: (404) 240-0688
Telecopy Number: (404) 364-0197
with copies to: ELV Associates, Inc.
Attention: M. Norie Harrower
Office Address: 14 E. 77th Street
New York, NY 10021
and: William F. Stevens, Esq.
Long, Aldridge & Norman
Office Address: One Peachtree Center, Suite 5300
303 Peachtree Street
Atlanta, GA 30308
Telephone Number: (404) 527-8510
Telecopy Number: (404) 527-4198
Purchaser: The Parkway Company
Attention: James M. Ingram
Office Address: 188 East Capitol Street, Suite 300
Jackson, Mississippi 39201
Mailing Address: Post Office Box 22728
Jackson, Mississippi 39225
Telephone Number: (601) 948-4091
Telecopy Number (601) 949-4077
Headings. The captions and paragraph headings used in
this Agreement are inserted for convenience of reference only and
are not intended to define, limit or affect the interpretation or
construction of any term or provision hereof.
Exhibits. All schedules or exhibits referred to herein or
attached hereto are incorporated herein by this reference.
Counterparts. This Agreement may be executed in multiple
copies, each of which shall be deemed an original, but all of
which shall constitute one Agreement binding on all parties.
Governing Law. This Agreement shall be governed,
construed and enforced in accordance with the laws of the State
of Georgia.
Effective Date. The date of delivery to Title Company of
a fully executed counterpart of this Agreement, as evidenced by
Title Company's notation in the space set forth below, shall be
deemed the effective date of this Agreement (the "Effective
Date").
Like-Kind Exchange. Purchaser agrees that, upon request
by Seller, Purchaser will cooperate with Seller in such a manner
as to permit Seller to convey the Assets as a part of a tax-free
exchange pursuant to Section 1031 of the Internal Revenue Code of
1986, as amended; provided, however, that Purchaser shall not
incur any additional cost, expense or liability in so
cooperating, and Seller shall indemnify and hold Purchaser
harmless from and against any cost, expense or liability for
providing such cooperation.
IN WITNESS WHEREOF, Seller and Purchaser have executed this
Agreement as of the Effective Date.
SELLER:
CARFAX ENTERPRISES LIMITED PARTNERSHIP
Executed by Seller this 29 day of April,
1996.
By: E. L. Vaduz Enterprises, Inc., its
sole general partner
By: E. L. Vaduz Enterprises, Inc.
Name: /s/ Norman Harrower III
Title: Vice President
PURCHASER:
THE PARKWAY COMPANY
Executed by Purchaser this 29 day of
April, 1996.
By: /s/ Steven G. Rogers, President
By: /s/ James M. Ingram, Vice President
ACKNOWLEDGMENT BY TITLE COMPANY
Title Company hereby agrees to perform its obligations under
this Agreement and acknowledge receipt of (a) the Escrow Deposit
from Purchaser in the amount of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) on the 30th day of April, 1996 and (b) a
fully executed counterpart of this Agreement on the 2nd day of
May, 1996.
METROPOLITAN TITLE AGENCY, INC.,
By: Metropolitan Title Agency, Inc.
Name: Roy D. Zemonex
Title: President
