UNITED STATES
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): July 31, 1997
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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)
One Jackson Place Suite 1000
188 East Capitol Street
P. O. Box 24647
Jackson, Mississippi 39225-4647
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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 July 31, 1997, a limited partnership in which
Parkway Properties, Inc. is a 99% limited partner and a wholly-
owned subsidiary is a 1% general partner purchased the 296,797
square foot NationsBank Tower in Columbia, South Carolina for
$20,600,000 from an unrelated party. NationsBank Tower is a
twenty-story office building with an attached 565 space, eight-
level parking deck. The building was constructed in 1973 and is
located on Gervais Street in the Central Business District (CBD).
The building is 95% leased to 18 tenants with 4 tenants occupying
68% of the building. The purchase was funded with bank borrowings
on a line of credit with Deposit Guaranty National Bank at a rate
equal to the 90-day Libor rate plus 1.75%, currently 7.56%.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
It is impractical to provide the audited
financial statements of NationsBank Tower 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 NationsBank Tower.
(c) Exhibits.
(10) Purchase and Sale Agreement
between Central City General, L.P. and M. B. Kahn
Construction Co., Inc. and Parkway Properties,
Inc. dated June 16, 1997. 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 13, 1997 PARKWAY PROPERTIES, INC.
By: /s/Sarah P. Clark
Sarah P. Clark
Vice President,
Chief Financial Officer,
Treasurer and Secretary
PURCHASE AND SALE AGREEMENT
among
CENTRAL CITY GENERAL, L.P.
and
M. B. KAHN CONSTRUCTION CO. INC.
(jointly and severally as Sellers)
and
PARKWAY PROPERTIES, INC.
(as Purchaser)
JUNE 16, 1997
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is made and
entered into as of this the ____ day of June, 1997, by and among
Central City General, L.P., a South Carolina limited partnership
and M. B. Kahn Construction Co., Inc., a South Carolina
corporation (jointly and severally, the "Sellers") and Parkway
Properties, Inc., a Maryland corporation ("Purchaser").
WHEREAS, Sellers are the owner of a parcel of land located
in Richland County, South Carolina, as more specifically
described on Exhibit (a) attached hereto (the "Land"); and
WHEREAS, there are certain real property improvements in, on
or under the Land consisting principally, but not exclusively, of
an office building known as "NationsBank Tower" (collectively,
the "Improvements"); and
WHEREAS, Sellers desire to sell, transfer, assign and convey
to Purchaser, and Purchaser desires to purchase and acquire from
Sellers all of Sellers' right, title and interest in and to the
Land, Improvements, and the Personal Property (as defined below)
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 Sellers agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the provisions of,
and on the basis of the covenants, agreements, representations
and warranties contained in this Agreement, Sellers, jointly and
severally, agree to sell, transfer, assign and convey all of its
right, title and interest in and to the Real Property and the
Personal Property, as each are defined below (collectively
referred to as the "Project") to Purchaser, and Purchaser agrees
to purchase and acquire the Project from Sellers (this
"Transaction").
1.2 Real Property Identified. As used herein, the
"Real Property" shall mean:
(a) Description of Land. The real estate
described in Exhibit (a) attached hereto (the "Land").
(b) Description of Improvements. The
Improvements, including NationsBank Tower, Columbia, South
Carolina containing approximately 296,796 rentable square feet
and that certain eight (8) story parking facility containing
approximately 565 parking spaces, together with 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
Sellers 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.
(c) 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
Sellers in and to adjacent streets, roads, alleys, easements and
rights-of-way.
1.3 Personal Property Identified. As used herein, the
"Personal Property" shall mean:
(a) Description of Tangible Personal Property.
The tangible Personal Property consists of all material tangible
personal property located on or attached to the Real Property and
owned by Sellers and used or available for use by Sellers in the
ownership, operation and/or management of the Real Property and
in the repair, operation and maintenance of the Project,
including, without limitation, all of Sellers' right, title and
interest in all equipment, tools, machinery, furniture,
furnishings, office and other supplies, inventories, spare parts
and other tangible personal property located on or attached to
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 Sellers. The
tangible Personal Property is generally described on Exhibit
attached hereto.
(b) Description of Intangible Personal Property.
The intangible Personal Property consists of all material
intangible personal property owned by Sellers and used by Sellers
in connection with the operation and/or management of the Real
Property and in the repair, operation and maintenance of the
Project and includes, without limitation, (i) all assignable
guarantees and warranties (including those pertaining to
construction of the Project, if any); (ii) all assignable
licenses and other permits relating to the Project or the
operation thereof; (iii) all assignable contracts, agreements and
contract rights; (iv) rights, if any, to use the name
"NationsBank Tower" on a non-exclusive basis with respect to the
Project only for so long as NationsBank N.A. ("NationsBank")
continues to lease space within the Project and for a reasonable
transition period of one year after Purchaser receives written
notice of termination from NationsBank; and (v) all leases,
tenancies and rental agreements or arrangements with tenants
(collectively "Leases" or individually, "Lease") and security,
damage and other deposits and payments which have been collected
by Sellers with respect to the Leases and not retained by Sellers
in accordance with the terms of the Leases (collectively
"Deposits").
ARTICLE 2
PURCHASE PRICE
2.1 Excrow Deposit. (a) Purchaser shall within two (2)
business days following the execution of this Agreement deliver
to Firm Title, Inc. as agent for Lawyers Title Insurance Company
("Escrow Agent") the sum of TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) ("Escrow Deposit") in lawful funds of the
United States of America to be deposited into an interest bearing
account. If Purchaser elects in writing not to proceed with this
transaction prior to the conclusion of the Inspection Period or
elects to terminate this Agreement pursuant to the express
provisions hereof, then Escrow Agent shall refund to Purchaser
the Escrow Deposit and all interest accrued thereon. If
Purchaser shall fail to terminate this transaction prior to the
conclusion of the Inspection Period, the Escrow Deposit and all
interest thereon, shall become non-refundable to Purchaser except
in the case: (i) Sellers' default; (ii) the non-satisfaction of
the conditions set forth in Section ; or (iii) except as
otherwise set forth herein, but shall be credited toward the
Purchase Price upon Closing. Escrow Agent is hereby instructed
to invest the Escrow Deposit in an FDIC insured interest bearing
account in the name of Purchaser. Purchaser's taxpayer
identification number is 74-2123527. Purchaser and Sellers
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 event of default of Sellers
unless Sellers' performance is excused due to a prior default of
Purchaser, the Escrow Deposit and all accrued interest thereon
shall be delivered to Sellers as herein set forth.
(b) The sole responsibility of Escrow Agent shall be
to hold and disburse the Escrow Deposit in accordance with the
terms of this Agreement and, if a dispute shall arise with
respect to the disposition of the Escrow Deposit, the Escrow
Agent may continue to hold such funds until receipt of written
instructions acknowledged and agreed to by Purchaser and Sellers
or may deposit such funds with the Circuit Court of Richland
County, South Carolina and interplead the Purchaser and Sellers
in connection therewith. Purchaser acknowledges that Firm Title,
Inc. is a wholly-owned subsidiary of McNair Law Firm, P.A.,
counsel to Sellers.
2.2 Purchase Price. Sellers agree to sell, and
Purchaser agrees to purchase, the Project for a total purchase
price equal to TWENTY-ONE MILLION AND NO/100 DOLLARS
($21,000,000.00) ("Purchase Price"), plus or minus prorations and
other adjustments provided by this Agreement, upon and in
accordance with the terms and conditions of this Agreement. The
Purchase Price, plus or minus prorations, shall be paid in
immediately available funds at Closing.
2.3 Independent Consideration. Sellers and Purchaser
acknowledge and agree that One Hundred and No/100 Dollars
($100.00) of the Escrow Deposit shall be paid to Sellers if this
Agreement is terminated for any reason (the "Independent Contract
Consideration"). Moreover, Sellers and Purchaser acknowledge
and agree that the Independent Contract Consideration has been
bargained for and agreed to as additional consideration for
Sellers' execution and delivery of this Agreement. At Closing
(defined below) the Independent Contract Consideration shall be
applied to the Purchase Price. In the event this Agreement is
terminated for any reason, Sellers shall be entitled to the
Independent Contract Consideration.
ARTICLE 3
ESCROW; CLOSING
3.1 Escrow Agent. Escrow Agent is authorized and
instructed to act as escrow agent pursuant to the terms of this
Agreement. By execution of the acknowledgment attached hereto,
Escrow Agent acknowledges receipt of the Escrow Deposit.
Purchaser and Sellers shall execute any additional escrow
instructions reasonably required by Escrow Agent to complete the
transactions provided for herein provided that such instructions
are not inconsistent with the terms of this Agreement.
3.2 Closing. Closing shall be on such date as
mutually agreed to by Purchaser and Sellers and at the offices of
Sellers' counsel at the McNair Law Firm, P.A., 1301 Gervais
Street, Columbia, South Carolina or as Sellers and Purchaser may
otherwise mutually determine (hereafter referred to as "Closing
Date" or "Closing") provided, however, in no event shall the
Closing Date be more than seven (7) calendar days after the end
of the Inspection Period.
3.3 Closing Costs.
(a) Sellers' Payments. Sellers shall pay the
cost and expenses, if any, of (i) the fees for recording the deed
conveying the Real Property; (ii) any transfer tax, documentary
stamp tax or similar tax which becomes payable by reason of the
transfer of the Project; and (iii) one-half of any escrow fees
charged by Escrow Agent, if any.
(b) Purchaser's Payments. Purchaser shall pay
the cost and expenses, if any, of (i) the survey; (ii) the title
search and title insurance commitment for the owner's title
insurance policy (iii) the premium for the owner's extended
coverage title policy and the cost of applicable endorsements;
and (iv) one-half of any escrow fees charged by Escrow Agent, if
any.
(c) Other Costs. Each party will pay all its own
expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including, without limitation
(i) all costs and expenses stated herein to be borne by a party,
and (ii) all of their respective consulting, accounting,
investigation, legal and appraisal fees.
3.4 Prorations. The following prorations shall be
made effective as of the Closing Date and, to the extent
possible, shall be made tentatively at Closing:
(a) Proration Date. All prorations shall be made
as of 12:01 a.m., according to the time zone in which the Project
is located, on the Closing Date, as if Purchaser were vested with
title to the Project during the entire Closing Date.
(b) Rents. All rents under the Leases for the
month in which Closing occurs which are actually received by
Sellers 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 Sellers to Purchaser at
Closing. Delinquent rents and additional rents owed for the
month during which Closing occurs (for the pro rata period of
Sellers' ownership of such Project) or prior to the month during
which the Closing takes place shall remain the property of
Sellers, and Purchaser shall use reasonable efforts (not to
include commencing any eviction action or other litigation to
collect such delinquency) to collect such delinquent rents and
additional rents for the benefit of Sellers and shall cooperate
with Sellers in the collection of any such delinquent rents and
additional rents. Sellers shall retain the right to pursue all
remedies (excluding eviction of tenants) against tenants from
whom Purchaser is unable to collect such delinquent rents and
additional rents despite reasonable efforts. 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.
(c) Additional Rents. Sellers and Purchaser
acknowledge and agree that certain additional rents are collected
on an estimated basis and are attributable to percentage rents,
expense escalation reimbursements, operating expense pass
throughs and/or common area maintenance reimbursements. Sellers
shall receive payment of such additional rent from Purchaser upon
receipt thereof by Purchaser subsequent to the Closing Date.
Sellers' portion of additional rent attributable to expenses
incurred during the 1997 lease year shall be calculated through
the Closing Date. Seller shall receive all additional rent
attributable to expenses incurred in the 1996 lease year as
reflected on the report relating to additional rent attached
hereto as Exhibit (c).
(d) Taxes. Ad valorem and personal property
taxes and assessments against the Project for the year of Closing
shall be prorated between Sellers 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, Sellers
and Purchaser shall make all necessary adjustments by appropriate
payments between themselves following Closing.
(e) Utilities. Charges for utilities serving the
Project shall be determined as of the day preceding the Closing
Date, and Sellers 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 Sellers shall belong to
Sellers.
(f) Contract Charges. Charges with respect to
Contracts (as defined below) 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. To the extent not reflected in the closing
statements evidencing the Transaction contemplated by this
Agreement, Purchaser and Sellers agree to adjust between
themselves outside of Closing any amounts which are the
responsibility of the other party pursuant to this subsection.
(g) Operating Expenses. Except as otherwise
provided herein, any and all expenses and payables relating to
the operation, management or ownership of the Project arising or
accruing prior to the Closing Date in the ordinary course of
business are the responsibility of the Sellers and will be paid
by Sellers promptly upon receipt of billing therefor.
(h) Leasing Costs. Sellers shall be responsible
for paying all costs, including, without limitation, tenant
improvements and leasing commissions, associated with any new
lease or any lease renewal, expansion or other modification
executed by Sellers prior to the expiration of the Inspection
Period. If Purchaser acquires the Project, Purchaser shall be
responsible for paying the costs associated with all leases or
any lease renewal, expansion or other modification executed after
the end of the Inspection Period which have been approved by
Purchaser and Sellers shall receive a credit at Closing for any
such costs previously paid by Sellers. If, for any reason,
Purchaser does not purchase the Project, Purchaser shall not be
responsible or liable to any entity with respect to any such
costs or leasing commissions.
The agreements with respect to prorations in this Section
shall survive Closing. Final settlement of all prorated items
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, except property taxes and delinquent and
additional rent and pass through rentals which shall be
determined upon collection or the date upon which any such
amounts shall become ascertainable. Contractual and tort
liabilities accruing, or relating to events that occurred, prior
to the Closing Date shall remain the responsibility of Sellers.
ARTICLE 4
TITLE MATTERS
4.1 Title Report/Commitment for Title Insurance.
Purchaser and Sellers hereby instruct Escrow Agent or such other
title company as Purchaser may request ("Title Company") to
prepare and deliver to Purchaser, Sellers and the surveyor
described below, at Purchaser's expense, a commitment to issue an
owner's title insurance policy to be issued by a title company
reasonably acceptable to Purchaser (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 an
ALTA (1992-B form with the creditor's rights exception deleted)
Extended Form of policy in the full amount of the Purchase Price
pursuant to Section 4.4 hereof. Sellers 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.
4.2 Survey. Contemporaneously with the execution of
this Agreement, Sellers shall provide Purchaser a photocopy of
its existing survey of the Project so that Purchaser can contact
the surveyor to update said survey. Purchaser shall, at its
expense, order a survey or an update to a survey and shall use
reasonable efforts to cause such survey to be delivered to
Purchaser, Sellers and Title Company. Such survey shall be a
currently dated ALTA/ASCM land title survey of the Land and of
the Improvements situated thereon (the "Survey"), prepared by a
surveyor licensed by the State of South Carolina and certified to
Purchaser and Title Company by such surveyors in conformity to
the Certificate attached hereto as Exhibit 4.2(a). In addition
to the requirements set forth in attached Exhibit 4.2(a), 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 FEMA as having special flood or mudslide hazards
which require flood insurance under the Flood Insurance Act of
1968. Sellers 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 materially alter the depictions on the Survey.
4.3 Title Defects. Within seven (7) days after
receipt of the later of the Title Commitment and the Survey,
Purchaser shall notify Sellers of any title matters to which
Purchaser objects (the "Title Defects") ("Purchaser's Notice").
Any matter disclosed in a Title Commitment or Survey and not
timely objected to by Purchaser or subsequently waived by
Purchaser shall be deemed a permitted exception ("Permitted
Exception"). Except as set forth below, Sellers shall have no
obligation to cure any Title Defect. Sellers' failure to respond
within three (3) days after receipt of Purchaser's Notice shall
be deemed a decision by Sellers not to cure any Title Defect;
provided, however, Sellers shall remove monetary liens relating
to borrowed funds or other liens securing indebtedness of an
ascertainable amount and mechanic or materialmen's liens, if any.
Within three (3) days of Sellers' election not to cure certain
Title Defects, Purchaser may elect to waive such Title Defects or
terminate this Agreement in which event Purchaser shall receive a
return of the Escrow Deposit and all interest accrued thereon.
Purchaser's failure to timely respond shall be deemed a decision
by Purchaser to waive the Title Defects to which Sellers decide
not to cure. If the Title Defects, that Sellers elected to cure,
are not cured by Sellers or waived by Purchaser 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.
4.4 Title Insurance. At Closing, Sellers and
Purchaser shall instruct 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 1992-B owner's policy of extended
coverage title insurance containing such endorsements as may be
reasonably requested by Purchaser and agreed to by Title Company
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). Purchaser shall use reasonable efforts to reach
agreement with Title Company regarding any applicable
endorsements during the Inspection Period.
ARTICLE 5
INFORMATION SCHEDULES
5.1 Information Schedules. Sellers have or will
deliver or cause to be delivered to Purchaser prior to expiration
of the Inspection Period, to the extent same are within the
possession or control of Sellers, copies of all schedules and
documents referred to in this Agreement ("Information
Schedules"), including the following schedules and other
information described below:
(a) Rent Roll. A complete list and description
("Rent Roll"), and true and complete copies, of all Leases.
(b) Contracts. An itemized schedule ("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 Project (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 Sellers to Purchaser at Closing,
to the extent assignable. The Contracts Schedule shall note any
Contracts which are not assignable or cancelable at Closing.
(c) Personal Property. A true and complete
schedule and description ("Personal Property Schedule") of all
material tangible Personal Property.
(d) Permits. A list ("Permits Schedule") of all
current franchises, business or other licenses, bonds, permits,
certificates of occupancy, authorizations and other evidences of
consent, approval, authorization or permission relating to or
affecting the Project (collectively "Permits") of or from any
person, including any governmental authority, held by Sellers
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,
Sellers may provide to Purchaser copies of all Permits in its
possession or control.
(e) Property Taxes. Copies of the two most
recent tax statements with respect to the Project, including,
without limitation, real and personal property taxes and any
special assessments.
(f) Warranties. A list and description
("Warranty Schedule") of all material third party bonds,
warranties and guaranties, including any warranties relating to
equipment, structures, roof, landscaping, parking lot or parking
lot surfaces, if any, which are in effect with respect to or
which benefit any portion of the Project.
(g) Repair History. A true and complete list of
all major (i.e., costing more than $20,000) repairs of a capital
nature which Sellers have undertaken with respect to the Project
during the two (2) years immediately preceding the date hereof.
(h) Operating Statements. Materially true and
complete copies of all operating statements for the Project for
the last two calendar years and for each calendar month of 1997
through the month ending April 30.
(i) Prior Studies. True and complete copies of
any prior third party studies and reports, in the possession of
Sellers or Sellers' agents, affiliates or management companies
relating in any manner to the environmental, structural,
mechanical, or engineering status of any portion of the Project.
(j) Plans. Copies of all construction plans,
diagrams and schematics of the Real Property and Improvements in
Sellers' possession or control made available to Purchaser at the
Project.
ARTICLE 6
INSPECTION
6.1 Inspection Period. Sellers and Purchaser agree
that Purchaser has sufficient time, access and resources to
conduct an independent evaluation and assessment of the Project,
the Information Schedules and all other matters relating to the
purchase of the Project, and that Purchaser is not relying on any
representation or warranty of Sellers with regard to the
Information Schedules except as expressly set forth herein and in
the documents to be executed at Closing. During the period
ending at 5:00 p.m., local time, on June 16, 1997 (such period of
time hereinafter referred to as the "Inspection Period"),
Purchaser and/or its attorneys, consultants or employees
("Authorized Representatives") shall have the right to: (i) make
a physical inspection of the Project subject to the rights of
tenants, (ii) examine the financial and operating books and
records relating to the Project maintained by or for the benefit
of Sellers, (iii) interview all tenants of the Project, and (iv)
conduct such non-destructive physical engineering, feasibility
and other studies and tests on or of the Project as Purchaser
considers to be appropriate. Subject to the provisions of
Section below, Purchaser and/or Purchaser's Authorized
Representatives may also copy any documents referred to or
described in the Information Schedules but not required to be
provided to Purchaser as part of any such schedule.
Notwithstanding the foregoing, Purchaser shall not be permitted
to interfere unreasonably with Sellers' operations at the Project
or interfere with any tenant's operations at the Project, and the
scheduling of any inspections, interviews, and/or testing shall
take into account the timing and availability of access to
tenant's premises, subject to and in accordance with tenants'
rights under the Leases or as tenants may otherwise agree.
Purchaser shall at all times conduct such due diligence in
compliance with applicable laws and the terms of any leases of
the Project, and in a manner so as to not cause undue damage,
loss, cost or expense to Sellers, the Project or the tenants of
the Project, and Purchaser shall promptly restore the Project to
its condition immediately preceding such inspections and
examinations and shall keep the Project free and clear of any
mechanic's liens or materialmen's liens in connection with such
inspections and investigations. Sellers shall have the right, at
its option, to cause a representative of Sellers to be present at
all such inspections, reviews and examinations. Purchaser shall
keep all information or data received or discovered in connection
with such due diligence strictly confidential. Purchaser shall
indemnify, protect, defend and hold Sellers harmless from and
against any obligation, liability, claim (including any claim for
damage to property or injury to or death of any persons), lien or
encumbrance, loss, damage, cost or expense, including attorney's
fees (collectively, the "Loss"), in any way caused by the
inspections or examinations of the Project by Purchaser or its
agents or contractors. The foregoing indemnification shall
survive the Closing or the termination of this Agreement for any
reason. With respect to any subsurface or environmental
investigations (excepting only a Phase I environmental audit),
Purchaser shall notify Sellers in writing of its intention to
undertake such investigations and obtain Sellers' written consent
to any such investigations. Provided, however, Sellers hereby
consent to asbestos sampling as recommended in prior Phase I
environmental audits.
6.2 Right of Termination. Notwithstanding anything in
this Agreement to the contrary, Purchaser shall have the right
for any Stated Reason (as hereinafter defined) to terminate this
Agreement by written notice to Sellers on or before the
expiration of the Inspection Period and Title Company shall
immediately refund to Purchaser the Escrow Deposit and any
interest thereon. "Stated Reason" shall mean (a) environmental
conditions, (b) mechanical, electrical, plumbing, foundation,
structural or operating systems condition of the Project, (c)
zoning, parking, building codes or other use restrictions of the
Project, or (d) tenant or rent roll related issues, all as
determined in Purchaser's sole and absolute discretion. In the
event the transaction does not close for any reason other than a
default by Sellers, Purchaser shall deliver to Sellers all
materials, studies or documents received from third parties or
Sellers relating to the Project.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser's Representations and Warranties. Purchaser makes
the following representations and warranties, as of the date of
execution of this Agreement, which shall survive Closing and
conveyance of the Project to Purchaser:
7.1 Authority. Purchaser is a corporation, duly
formed, organized, existing and in good standing under the laws
of the State of Maryland; 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.
7.2 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 Project, including, without limitation, land use, zoning and
other governmental restrictions.
7.3 No Other Sellers Representations. Except as
expressly set forth herein, Purchaser acknowledges that no
representations or warranties, express or implied, have been made
by Sellers or Sellers' representatives.
7.4 "AS IS, WHERE IS". EXCEPT AS EXPRESSLY STATED
HEREIN, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLERS HAVE NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR
CONDITION OF THE PROJECT, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE
PROJECT; (C) THE SUITABILITY OF THE PROJECT FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER OR ANYONE ELSE MAY CONDUCT
THEREON; (D) THE COMPLIANCE OF OR BY THE PROJECT OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROJECT; (F) THE MANNER OR QUALITY OF
THE CONSTRUCTION OF MATERIALS, IF ANY, INCORPORATED INTO THE
PROJECT; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF
REPAIR OF THE PROJECT; OR (H) ANY OTHER MATTER WITH RESPECT TO
THE PROJECT, AND SPECIFICALLY, THAT SELLERS HAVE NOT MADE, DOES
NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING
SOLID WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION
AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR
EXISTENCE, IN OR ON THE PROJECT, OF ANY HAZARDOUS SUBSTANCE AS
DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980, AS AMENDED, AND REGULATIONS
PROMULGATED THEREUNDER. EXCEPT AS EXPRESSLY STATED HEREIN,
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROJECT, PURCHASER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROJECT AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLERS. EXCEPT AS
EXPRESSLY STATED HEREIN, PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROJECT, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF
THE PROJECT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROJECT WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLERS
HAVE NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF
SUCH INFORMATION AND EXCEPT AS EXPRESSLY STATED HEREIN MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION. SELLERS ARE NOT LIABLE OR BOUND IN ANY MANNER BY
ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROJECT, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE SALE OF THE PROJECT AS PROVIDED FOR
HEREIN IS MADE ON AN "AS-IS" CONDITION AND BASIS WITH ALL FAULTS.
IT IS UNDERSTAND AND AGREED THAT THE PURCHASE PRICE HAS BEEN
ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT THE PROJECT IS SOLD
BY SELLERS AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING.
Initialed by:
________________ ________________
Sellers Purchaser
8 ARTICLE
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers' Representations and Warranties. Each of the
Sellers makes the following representations and warranties as to
itself, and not as to or on behalf of the other Seller, as of the
date of execution of this Agreement, which shall survive
conveyance of the Project to Purchaser:
8.1 Authority. Central City General, L.P. is a
limited partnership, duly formed, organized, existing and in good
standing under the laws of the State of South Carolina. M. B.
Kahn Construction Co., Inc. is a corporation, duly formed,
organized, existing and in good standing under the laws of the
State of South Carolina. Sellers have 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 or partners of Sellers and are authorized to
do so.
8.2 Marketable Title. At the date hereof and as of
Closing, Sellers will own the Personal Property free and clear of
all liens, claims, encumbrances, and rights of others, except the
leased or financed equipment disclosed pursuant to Exhibit 1.3,
and will convey same to Purchaser. Sellers are not a party to
any contract agreement, or commitment to sell, convey, assign,
transfer or otherwise dispose of any portion or portions of the
Project.
8.3 Liabilities. Except as created by this Agreement
or disclosed in the Information Schedules or the documents
referenced therein, there are no contractual obligations or to
Sellers' knowledge, any other tort liabilities which are
reasonably foreseeable, with notice, passage of time or both, to
have a material adverse effect on the Project.
8.4 Contracts. Except as disclosed in the Information
Schedules, there are no other management, leasing, maintenance,
service or other contracts relating to the Project. Purchaser
hereby requests and Sellers hereby agree to terminate such
existing agreements (other than the Exclusive Right to Lease
Agreement between The Keenan Company, Inc. and Central City
General, L.P. dated March 19, 1997 ("Leasing Agent Agreement"))
in accordance with the terms and conditions of such agreements
but in no event prior to the Closing Date. Sellers agree to
remain liable and responsible for payment relating to the Project
overall sprinkler installation contract.
8.5 No Undisclosed Matters. To Sellers' knowledge, there
are no unsatisfied written requests for material repairs,
restorations or improvements from any insurance carrier or
governmental authority. Sellers have not received any written
notice from any insurer of any defects or inadequacies in any
part of the Project 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 Project is in violation of any applicable law,
ordinance, rule, regulation or order.
8.6 No Defaults. To Sellers' Knowledge, Sellers are
not in default in respect of any of its material obligations or
liabilities pertaining to the Project (including, but not limited
to, such obligations and liabilities under the Contracts or
Leases). To Sellers' knowledge, no present dispute or fact
exists which might with notice, passage of time or both, give
rise to a dispute under any Contracts or Leases.
8.7 Litigation. There is no litigation pending or to
Sellers' knowledge, threatened against Sellers or the Project
which relates to, or if decided adversely, could have a material
adverse effect upon, the Project (including condemnation or
similar proceeding).
8.8 Certification of Rent Roll. No person has any
title, interest or right to possession of any portion of the
Project as a lessee, tenant or concessionaire of Sellers except
as shown on the Rent Roll. Except as disclosed in writing to
Purchaser, the Rent Roll lists all Leases, amendments and
modifications thereof. Sellers are not, and to Sellers'
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 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. To Sellers' 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 Sellers, except
to lenders whose liens shall be released at Closing. Except as
disclosed in the Rent Roll, there has been no waiver of Sellers'
rights under or modification of any Lease or other documents
executed by tenants in connection with the Leases which could
have a material adverse affect thereon. To Sellers' knowledge,
except for the right of the tenants in possession under the
Leases, there are no parties in possession of, or claiming any
possession to any portion of the Project as lessees, tenants at
sufferance, trespassers or otherwise. To Sellers' knowledge,
there has been no material, adverse change with respect to the
information set forth in the Rent Roll. Except as disclosed in
the Rent Roll, all presently due leasing commissions payable in
connection with the Leases have been paid in full. The Rent Roll
lists any and all leasing commissions and brokerage agreements
which may be due and payable in connection with the Leases upon a
subsequent renewal, expansion, modification or waiver of any
rights by a tenant under the terms of the Leases. Except as
provided in the Leasing Agent Agreement, Sellers have paid in
full all leasing or similar commissions or payment obligations,
if any, relating to any Lease. Except as specifically referenced
in the Rent Roll or the Contracts Schedule, Purchaser is not
assuming any obligations for tenant improvements or purported
leasing commissions. Sellers agree to escrow at Closing an
amount equal to all tenant upfit allowances under existing
leases, including, without limitation, (a) tenant upfit allowance
under the existing lease to McNair Law Firm, P.A. and (b) tenant
upfit allowance under the existing lease to NationsBank. Sellers
shall indemnify and hold Purchaser harmless for any Loss with
respect to any claims by tenants or third party brokers for
tenant improvements, allowances or leasing commissions not
expressly assumed by Purchaser. The preceding sentence shall
survive Closing without regard to the provisions of Section .
8.9 Operating Statements. To Sellers' knowledge, the
Operating Statements are true, accurate and complete in all
material respects and present fairly the results of operations
for the periods indicated on a consistent basis.
8.10 Use of Project. To Sellers' knowledge, (i) no
governmental, public or private authority intends or desires to
appropriate the use of or limit the use of any of the Project
pursuant to any condemnation, eminent domain or similar
proceeding; (ii) no fact or condition exists which will result in
the termination of the Project's current access to and from
existing streets and utilities.
8.11 Documentation. To Sellers' knowledge, all
documents which shall be delivered to Purchaser by or on behalf
of Sellers under this Agreement shall be accurate and complete in
all material respects, including, without limitation, the
Information Schedules.
8.12 FIRPTA. Neither Seller is 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.
ARTICLE 9
COVENANTS
Covenants of Sellers. Sellers covenant and agree with
Purchaser as follows:
9.1 Access. Subject to the terms and conditions of
Section 6.1, during normal business hours prior to Closing,
Sellers agree to give to Purchaser and its agents and
representatives reasonable access to the Project and the books
and records directly relating to the ownership, management,
maintenance and operation of the Project, and all documents
directly pertaining to the Project that are in the possession of
Sellers, or any of Sellers' agents or representatives. Prior to
Closing, Sellers will furnish Purchaser with such additional
financial and operating data and other information reasonably
available to Sellers as may be reasonably necessary for Purchaser
to thoroughly evaluate the Project.
9.2 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 Sellers 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, Sellers 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 Sellers' place of business in a
commercially reasonable fashion during normal business hours and
upon five (5) days prior notice from Purchaser to Sellers.
9.3 No Material Changes. Prior to Closing, Sellers
shall: (i) not cancel or permit cancellation of any hazard or
liability insurance carried with respect to the Project; (ii)
remedy all material violations of laws, ordinances, orders or
requirements relating to the Project which are not caused by
Purchaser and of which Sellers have received actual notice and
provide Purchaser with evidence of curing of same (provided that
Sellers shall not be required to expend more than $5,000, in the
aggregate, with respect to such matters); and (iii) operate the
Project on a basis consistent with historical operations
including, without limitation, undertaking all reasonably
required ordinary maintenance and repair of the Project. Prior
to Closing, Sellers 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 Project,
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) after the expiration of the
Inspection Period except as specifically permitted by this
Agreement, enter into any transaction, or make any commitment
with respect to the Project other than in the ordinary course of
the business, or (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. Subject
to Section (i) below regarding Sellers' continued leasing
obligations, prior to Closing, Sellers shall operate and maintain
the Project including tenant improvements under existing leases
for which Sellers remain liable pursuant to Section , in
substantially the same manner and condition as Sellers have
operated and maintained the Project immediately prior to the date
hereof. Sellers will perform current or routine maintenance and
repairs in the ordinary course of business of or to the Project
as may be required or reasonably appropriate to operate and
maintain the Project including tenant improvements under existing
leases as contemplated by Section , but excluding tenant
improvements relating to new leases. Provided, however, that
Sellers shall not be obligated to make a capital expenditure in
excess of $15,000 and in the event that prior to the expiration
of the Inspection Period, Purchaser requests Sellers in writing
to make a capital expenditure greater than said amount and
Sellers elect not to make an expenditure greater than said
amount, then Purchaser may terminate this Agreement and receive a
return of the Escrow Deposit and all interest thereon. After
expiration of the Inspection Period, Sellers shall be required to
gain Purchaser's written approval of any new or modified contract
or agreement which will affect the operation of the Project.
9.4 Consents. Sellers 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 the
other party for the consummation of the Transaction or to prevent
the termination of any Lease, Contract or Permit, or any loss or
disadvantage to the Project.
9.5 Payments. Sellers 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 Project incurred through the Closing Date, except amounts
subject to proration under Section .
9.6 Cooperation. Sellers will reasonably assist and
cooperate with any environmental evaluation, study or audit of
the Project prepared by, for or at the request of Purchaser.
9.7 Notification of Subsequent Events. Prior to
Closing, Sellers shall notify Purchaser of any written notice
received by Sellers of any material adverse change in or to the
Project including, without limitation, any notice relating to any
insurance contract or policy now held or owned by Sellers to
cancel or materially increase any premiums relating thereto.
9.8 Estoppel Certificates. Before the Closing Date,
Sellers shall have delivered currently dated (no earlier than
thirty (30) days prior to the scheduled Closing Date) estoppel
certificates in material conformance with the form attached
hereto as Exhibit .1 from each major Tenant referenced on the
Rent Roll or a Sellers' estoppel certificate in the form attached
hereto as Exhibit .2 for each non-major tenant not providing an
estoppel certificate directly. Sellers shall use reasonable
efforts to obtain an estoppel certificate from all of the tenants
of the Project. "Major Tenants" shall include McNair Law Firm,
P.A.; WSA Associates; The Summit Club; CMI; The Keenan Company;
NationsBank and, as a subtenant, Laidlaw Environmental. Sellers
and Purchaser shall use reasonable efforts to obtain a
Subordination Non-Disturbance and Attornment Agreement ("SD&A")
in the form requested by any lender of Purchaser and from each
Tenant requested by any such lender. Sellers and Purchaser shall
use reasonable efforts to negotiate the final form of any SD&A
with the applicable tenant and lender during the Inspection
Period.
9.9 Leasing. Sellers (and/or Sellers' agents), in
consultation with Purchaser, shall continue in good faith to
advance all leasing activities for the Project including, without
limitation, new leases, renewals, extensions, expansions or other
modifications. Provided, however, Sellers shall not enter into
any new lease or any renewal, expansion or other modification of
any existing Lease without Purchaser's prior written consent
which shall not be unreasonably withheld, conditioned or delayed.
9.10 Leasing Commissions. Except as set forth in
Section 13.1 and Exhibit .1, there are no outstanding
commissions, leasing, brokerage or otherwise, payable to any
leasing agents, brokers, or similar type parties, regarding the
sale of the Project or the execution, renewal, amendment, or
modification of any Lease in the Project. At Closing, Sellers
shall cause to be paid or otherwise satisfied in full all leasing
commissions, residual or otherwise, payable pursuant to the
Leasing Agent Agreement with respect to all existing Leases. At
Closing, Purchaser will assume the Leasing Agent Agreement
subject to Purchaser's receipt of an affirmative release from the
Keenan Company evidencing payment in full of the existing
residual commissions in the form attached hereto as Exhibit .2.
9.11 Knowledge Standard. As used in this Agreement,
"the Sellers' knowledge "or any similar phrase, shall mean the
current actual knowledge of (a) Richard Murrell, the Senior Vice
President of BT Building Corp. as to Central City General, L.P.
and (b) Alan Kahn as to M. B. Kahn Construction Co., Inc.;
provided, however, that nothing in this Agreement shall be deemed
to create or impose any personal liability of any kind on such
individuals.
9.12 Project Name. For so long as NationsBank
continues to maintain a branch banking center within the Project
and lease and occupy space within the Project which constitutes
at least 13,294 net rentable square feet, the Project shall
continue to have the name "NationsBank Tower" and NationsBank or
its successors or assigns shall have the exclusive right to have
the existing NationsBank signage or similar replacement signage
affixed to the exterior of the Improvements for a period of three
and one-half (3-1/2) years after Closing (the "Exclusive Period")
and a non-exclusive right thereafter to maintain such signage as
is in place at the end of the Exclusive Period. This provision
shall survive Closing and shall survive until such time as
NationsBank no longer leases and occupies space within the
Project.
ARTICLE 10
CLOSING MATTERS
10.1 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:
(a) Satisfaction. The representations and
warranties of Sellers contained in this Agreement shall have been
true in all material respects on the date of this Agreement and
on Closing. Sellers shall have performed all obligations and
complied with all covenants required by this Agreement.
(b) No Injunction. On the Closing Date, there
shall be no third party injunction, writ, preliminary restraining
order or any order of any nature issued by a court of competent
jurisdiction directing that the transactions contemplated herein
not be consummated as herein provided which relates to the acts
or omissions of Sellers.
(c) Certificates. Purchaser shall have received
the estoppel certificates from all Major Tenants and either
estoppel certificates or Seller estoppel certificates for all
other tenants and the SD&A's from all Major Tenants.
(d) No Adverse Change. No material and adverse
change shall have occurred without Purchaser's written consent,
in the state or condition of the Project or in the title matters
described in the Title Commitment and the Survey.
10.2 Conditions to Sellers' Obligations. The
obligations of Sellers 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
Sellers in writing at or prior to Closing:
(a) 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.
(b) No Injunction. On the Closing Date, there
shall be no third party injunction, writ, preliminary restraining
order or any order of any nature issued by a court of competent
jurisdiction directing that the transactions contemplated herein
not be consummated as herein provided which relates to acts or
omissions of Purchaser.
10.3 Like Kind Exchange. It is M.B. Kahn Construction
Co., Inc.'s intent to enter into a like kind exchange of real
properties for its undivided interest in the Real Property, the
same being a twenty (20%) percent undivided interest. The
exchange shall be through a qualified intermediary, Southeastern
Exchange Company, ("Qualified Intermediary") and M.B. Kahn
Construction Co., Inc. shall have no access to, or have no
receipt of, its share of the funds as they shall be invested in
like kind Real Property through the Qualified Intermediary.
Consistent with the foregoing, any payments of sales proceeds
shall be made directly to the Qualified Intermediary.
10.4 Closing Documents. At Closing, Sellers shall
deliver to Purchaser the following documents, all properly
executed by Sellers and delivered to Purchaser and/or executed by
Purchaser and delivered to Sellers shall be in a form reasonably
acceptable to Purchaser and Sellers and include, but are not
limited to:
(a) Limited Warranty Deed. A Limited Warranty
Deed in form attached hereto as Exhibit (a).
(b) Bill of Sale. A Bill of Sale and Assignment
in form attached hereto as Exhibit (b).
(c) Documents. Executed original copies, or
copies certified as correct by Sellers, if originals are not
available, of (i) all Leases in force on the Closing Date
covering portions of the Project and all other documents referred
to in the Rent Roll, (ii) all Contracts and Permits of which
Sellers are aware transferred and assigned (to the extent
transferable) to Purchaser, (iii) all "as built" plans,
specifications, surveys or other documents relating or pertaining
to the Project in the possession of Sellers (collectively
"Plans"), including, but not limited to, all records relating to
repair, renovation and maintenance of the Project; (iv) all
notices to tenants relating to this Transaction and the receipt
of security deposits as necessary or appropriate under applicable
law; and (v) all other documents referred to in the schedules.
(d) Rent Roll. A current and updated Rent Roll.
(e) FIRPTA. Affidavit from Sellers that Sellers
are not a foreign person as defined in the Foreign Investment in
Real Property Tax Act of 1980, as amended, in the form attached
hereto as Exhibit (e).
(f) Keys. All keys and master keys in Sellers'
possession or control to all locks located on the Project
properly tagged for identification as well as cards keys and
cards for the security systems, if any.
(g) Evidence of Authority. Both parties will
deliver to each other and the Title Company such evidence or
documents as may reasonably be required evidencing the authority
of any person who is executing any of the documents required
hereunder.
(h) Miscellaneous. Such other documents as may
be required under other provisions of this Agreement or as may
reasonably be required by Purchaser or Sellers to consummate the
Transaction, so long as such document does not increase either
party's liability or obligations hereunder, including, but not
limited to, (i) a Closing Statement, (ii) tenant's notice letter,
(iii) an affidavit executed by Sellers with regard to South
Carolina withholding tax requirements and (iv) a Quitclaim Deed
with the legal description contained in Exhibit (a) and/or the
Survey, if the legal description of the Land contained in the
Survey differs from the legal description contained in Exhibit
(a).
(i) Purchase Price. Purchaser shall deliver the
Purchase Price to Sellers in immediately available funds.
ARTICLE 11
DEFAULTS AND REMEDIES
11.1 Damages Against Purchaser. IF PURCHASER DEFAULTS
UNDER ANY PROVISION OF THIS AGREEMENT AND CLOSING DOES NOT OCCUR,
THEN SELLERS SHALL BE RELEASED FROM ALL OBLIGATIONS IN LAW OR
EQUITY TO CONVEY THE PROPERTY TO PURCHASER. PURCHASER AND
SELLERS AGREE THAT AS SELLERS' SOLE REMEDY FOR A DEFAULT
HEREUNDER, BY WRITTEN NOTICE TO PURCHASER AND TITLE COMPANY,
SELLERS SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND BE
ENTITLED TO RECEIVE THE ESCROW DEPOSIT PLUS ACCRUED INTEREST
THEREON AS LIQUIDATED DAMAGES. PURCHASER AND SELLERS 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
SELLERS' DAMAGES AND SHALL CONSTITUTE SELLERS' 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 SECTION 6.1 HEREOF AND SHALL REMAIN
IN FULL FORCE AND EFFECT.
Initialed by:
________________ ________________
Sellers Purchaser
11.2 Damages Against Sellers. IN THE EVENT THAT
SELLERS FAIL TO PERFORM ALL OF SELLERS' OBLIGATIONS UNDER THIS
AGREEMENT AND PURCHASER PERFORMS ALL OF ITS OBLIGATIONS OR
TENDERS PERFORMANCE, INCLUDING THE OBLIGATION TO CONSUMMATE THE
TRANSACTION, THEN PURCHASER MAY MAKE WRITTEN DEMAND TO SELLERS
FOR PERFORMANCE OF THIS AGREEMENT. IF SELLERS FAIL 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 SELLERS' OBLIGATIONS UNDER THIS AGREEMENT, OR
(III) TERMINATE THIS AGREEMENT AND PROMPTLY RECEIVE A FULL REFUND
OF THE ESCROW DEPOSIT AND ALL INTEREST THEREON AND PAYMENT BY
SELLERS OF AN AMOUNT NOT TO EXCEED $20,000 IN ORDER TO REIMBURSE
PURCHASER'S REASONABLE OUT OF POCKET EXPENSES ASSOCIATED WITH
THIS TRANSACTION, BUT WITHOUT FURTHER LIABILITY ON PURCHASER'S
PART. SELLERS AGREE THAT THE PROJECT IS UNIQUE AND THAT DAMAGES
FOR FAILURE BY SELLERS TO CONSUMMATE THE TRANSACTION WILL BE
IMPRACTICABLE AND EXTREMELY DIFFICULT TO DETERMINE. THEREFORE,
IN THE EVENT THAT SELLERS FAIL OR REFUSE TO CONSUMMATE THE
TRANSACTION AND PURCHASER SEEKS SPECIFIC PERFORMANCE, SELLERS
SPECIFICALLY AGREE THAT THE REMEDY OF SPECIFIC PERFORMANCE IS AN
APPROPRIATE REMEDY FOR PURCHASER, AND SELLERS WAIVE AND AGREE NOT
TO ASSERT ANY CLAIM OR DEFENSE THAT SPECIFIC PERFORMANCE IS NOT
AN APPROPRIATE REMEDY FOR PURCHASER.
Initialed by:
________________ ________________
Sellers Purchaser
ARTICLE 12
RISK OF LOSS
12.1 Risk of Loss. Prior to Closing, Sellers shall
have full risk of loss or damage with respect to the Project.
Upon Closing, full risk of loss or damage with respect to the
Project shall pass to Purchaser. For purposes of this Article,
"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 Project; and (ii) any condemnation,
eminent domain or other similar proceeding.
12.2 Minor Damage. In the event of loss or damage to
the Project or any portion thereof (the "premises in question")
which is not "major" as hereinafter defined), this Agreement
shall remain in full and effect provided Sellers perform any
necessary repairs or, at Sellers' option, reduces the cash
portion of the Purchase Price in an amount equal to the cost of
such repairs, Sellers thereby retaining all of the Sellers'
right, title and interest to any claims and proceeds Sellers may
have with respect to any casualty insurance policies or
condemnation awards relating to the premises in question. In the
event Sellers elect to perform repairs upon the Project, Sellers
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.
12.3 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 Sellers' insurance proceeds, if any, for such damage,
plus payment from Sellers of the amount of the applicable
insurance deductible relating thereto not to exceed the actual
repair cost. In such event, Sellers shall execute all documents
reasonably requested by Purchaser to assign Sellers' rights and
interest to such insurance proceeds.
12.4 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 Project 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 Five Hundred Thousand Dollars
($500,000), and (ii) any loss or damage due to a condemnation
which permanently or materially impairs the current use of the
Project.
ARTICLE 13
GENERAL PROVISIONS
13.1 Brokerage Commission. At Closing, Sellers shall
pay any and all brokerage commissions due to Chesterton
Binswanger Capital Advisors, LLC pursuant to a separate written
agreement. If the purchase and sale hereunder does not close for
any reason, including default by either Sellers or Purchaser,
then no commission shall be due by any party hereto. Except as
set forth in the preceding sentence, Sellers and Purchaser
represent to each other that they have acted directly and
independently with the other as principals and that neither
Sellers nor Purchaser have retained or authorized the services of
any broker or finder with respect to this Transaction. Sellers,
jointly and severally, agree 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 Sellers. Purchaser agrees to indemnify and hold Sellers
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.
13.2 Confidentiality. Unless Sellers otherwise agree
in writing, Purchaser agrees that all confidential proprietary
information regarding the Project of whatsoever nature made
available to it by Sellers or Sellers' agents or representatives
or developed by Purchaser ("Confidential Information"), is
confidential and shall not be disclosed to any other person
except those assisting Purchaser with this transaction, or
Purchaser's lender, if any, except as required by law. The
provisions of the foregoing sentence shall not apply to any
information which is otherwise available to the public or which
has been obtained from sources that are not subject to a similar
confidentiality restriction or to disclosures as required by law.
Further, Purchaser agrees not to use any Confidential Information
for any purpose other than to determine whether to proceed with
the transaction contemplated by this Agreement. Upon Closing,
all such Confidential Information shall be the sole and exclusive
property of Purchaser and not subject in any manner to this
confidentiality restriction. Provided, however, in the event
the transaction contemplated by this Agreement does not close for
any reason other than a breach by Sellers, the provisions of this
Section shall survive the termination of this Agreement.
13.3 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 Project. All prior to or
contemporaneous agreements, understandings, representations,
warranties and statements, oral or written, are superseded.
13.4 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.
13.5 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.
13.6 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.
13.7 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.
13.8 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 Sellers' consent; provided, however, no
such assignment shall relieve Purchaser of its obligations
hereunder and the assignee must sign an assumption agreement in
form reasonably acceptable to Sellers. Except as contemplated by
the preceding sentence, Sellers and Purchaser shall not assign
their respective rights, obligations or interest under this
Agreement without the prior written consent of the other.
13.9 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 Limited Warranty Deed to
Purchaser for a period of one (1) year after the Closing, at
which time such warranties, representations and covenants shall
terminate in all respects unless written notice of any such
breach has been delivered to the breaching party prior to such
date.
13.10 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.
13.11 Time. Time is of the essence with respect to this
Agreement.
13.12 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.
13.13 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.
13.14 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.
Sellers: Central City General, L.P., a South Carolina
limited partnership
c/o NationsBank Real Estate Services
Office Address: 401 North Tryon Street
Charlotte, North Carolina 28255
Attention: Richard Murrell
Telephone Number: (704) 386-8084
Telecopy Number: (704) 386-0547
with a copy to: C. Vandiver Smith, Esquire
NationsBank Legal Department
100 North Tryon Street
Charlotte, North Carolina 28255
Location Code NC1-001-14-13
Telephone Number: (704) 386-8368
Telecopy Number: (704) 386-6453
M. B. Kahn Construction Co., Inc.
Post Office Box 1179
Columbia, South Carolina 29202
Attn: Alan Kahn
Telephone Number: (803) 736-2950
Telecopy Number:
Purchaser: Parkway Properties, Inc.
Attention: David Fowler
Office Address: Suite 1000, One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201
Mailing Address: Post Office Box 24647
Jackson, Mississippi 39225
Telephone Number: (601) 948-4091
Telecopy Number (601) 949-4077
with a copy to: Forman, Perry, Watkins, Krutz & Tardy, PLLC
Attention: Steven M. Hendrix
Office Address: Suite 1200, One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201
Telephone Number: (601) 960-8603
Telecopy Number: (601) 960-8609
13.15 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.
13.16 Exhibits. All schedules or exhibits referred to
herein or attached hereto are incorporated herein by this
reference.
13.17 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.
13.18 Governing Law. This Agreement shall be governed,
construed and enforced in accordance with the laws of the State
of South Carolina.
13.19 Limitation on Liability. Notwithstanding anything
contained herein to the contrary, Sellers acknowledge and agree
that no limited partner of Purchaser, nor any trustee, director,
holder of any beneficial interests, shareholder, officer or
employee of Purchaser or any affiliate of Purchaser (except an
affiliate to which this Agreement has been assigned) shall have
any personal liability, directly or indirectly, under this
Agreement, or under any certificate, representation, warranty or
other instrument delivered in connection herewith, and Sellers
shall have recourse hereunder only against Purchaser's assets.
Each document to be executed by Purchaser at Closing shall
contain a similar exculpation.
IN WITNESS WHEREOF, Sellers and Purchaser have executed this
Agreement as of the June 16, 1997.
Sellers:
Central City General, L.P., a South
Carolina limited partnership
By: BT Building Corp., a South
Carolina corporation, its general
partner
Executed by Sellers this
16th day of June, 1997
By:___________________________
Name:_________________________
Title:________________________
M. B. Kahn Construction Co., Inc.
By:________________________________
Its:_______________________________
PURCHASER:
PARKWAY PROPERTIES, INC., a
Maryland corporation
Executed by Purchaser this
16th day of June, 1997.
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
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 TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) on the _____ day of ______________, 1997
and (b) a fully executed counterpart of this Agreement on the
_____ day of _____________, 1997.
Firm Title, Inc., as Agent for
Lawyers Title Insurance Company
By:________________________________
Name: ________________________
Title: _______________________
EXHIBIT 1.2(a)
Legal Description
ALL that piece, parcel and lot of land, situate, lying and being
at the northwestern corner of the intersection of Sumter and
Gervais Streets, in the City of Columbia, in the County of
Richland, in the State of South Carolina; said lot having the
following courses and distances, to-wit:
BEGINNING at a point where the northern boundary of the right-of-
way of Gervais Street intersects with the eastern boundary of the
right-of-way of Sumter Street, and thence running North 15 21'
West for a distance of 262.9 feet along the eastern boundary of
Sumter Street to a point; thence turning and running North 74 37'
East along a lot of The South Carolina National Bank for a
distance of 228 feet to an iron; thence turning and running South
15 30' East for a distance of 261.45 feet along property now or
formerly of Central Chevrolet Company to an iron in the northern
boundary of the right-of-way of Gervais Street; thence turning
and running South 74 30' West along the northern boundary of
Gervais Street for a distance of 228.3 feet to the POINT OF
BEGINNING; all as is more particularly shown and delineated on a
plat of same prepared for CENTRAL CITY GENERAL, A SOUTH CAROLINA
PARTNERSHIP, by William Wingfield, Registered Surveyor,
originally dated April 9, 1974 and revised and recertified as of
September 11, 1986 and recording in the R.M.C. Office for
Richland County in Plat Book 51 at 3569.
Derivation: This being the same property as conveyed to Central
City General, L.P. by (i) that certain Title to Real Estate dated
June 15, 1971 and recorded in Deed Book D209, Page 693, Richland
County RMC Office and (ii) that certain Title to Real Estate
dated June 30, 1987 and recorded in Deed Book D847, Page 678,
Richland County RMC Office and to M. B. Kahn Construction Co.,
Inc. by that certain Title to Real Estate dated _____________ and
recorded in Deed Book ____, Page ____, Richland County RMC
Office.
TMS No.: 11401-03-04
EXHIBIT 1.3
Personal Property
EXHIBIT 4.2(a)
SURVEY CERTIFICATION
The plat of survey must be accompanied by a certificate
meeting the following requirements:
1. The certification should be by a registered land
surveyor.
2. The certification should include the signature with the
seal and registration number of the certifying party.
3. The certification should contain a jurat executed by a
notary public.
4. If the surveyor finds that any easement furnished to
him which purports to affect the property does not, in fact,
affect the property, he should specifically certify that such
easement, identified by book and page of recording, does not
affect the property.
5. The form of certificate should be substantially as
follows: "I, a registered land surveyor do
hereby certify to and Title
Company, that the accompanying plat of survey represents a true
and correct survey made by me and has: (i) been prepared in
accordance with the most current minimum standard detail
requirements for a Land Title Survey adopted by the American Land
Title Association and the American Congress on Surveying and
Mapping; (ii) includes optional items 2-11 of Table A thereof;
and (iii) has been prepared pursuant to the Accuracy Standards
(as adopted by ALTA and ACSM) in effect on the date of this
Certification of an Urban Survey of the following described
property (the "Project") on the day of , 199 :
[Insert legal description]
I further certify that:
(i) the accompanying plat of survey correctly shows the
location of all buildings, structures, and other improvements
situated on the Project,
(ii) except as shown, there are no visible easements or
rights-of-way across the Property or other easements or rights-of-
way affecting the Property of which the undersigned has been
advised,
(iii) there are no party walls included in any
buildings, structures, or other improvements on the Property,
(iv) except as shown, there are no encroachments on
adjoining premises, streets, or alleys by any of the buildings,
structures, or other improvements on the Property, and
(v) except as shown, there are no encroachments on the
property by any buildings, structures, or other improvements
located on adjoining premises.
EXHIBIT 9.8.1
FORM OF TENANT ESTOPPEL CERTIFICATE
Parkway Properties, Inc.
300 One Jackson Place
188 East Capitol Street
Jackson, MS 39201
RE: _______________________
Gentlemen:
The undersigned as Tenant hereby certifies to Parkway
Properties, Inc., and its successors or assigns ("Purchaser"),
and any beneficiary under a deed of trust covering the above
captioned property ("Mortgagee") that:
(a) It is a Tenant of a portion of the
captioned property under a certain lease (the
"Lease") as follows:
Landlord:____________________________________
Tenant:______________________________________
Lease Date:__________________________________
Amendment(s) Dated (if any):_________________
Current Annual Base Rent:____________________
Current CAM or Operating Expense Charges:
_____________________________________________
Square Footage:______________________________
Original term (or current option period,
if applicable) expires:______________________
Security Deposit and/or
Lease Deposit: $____________________________
Outstanding Tenant Improvement Allowance (if any):
$____________________________________________
Outstanding Leasing Commission (if any):
$____________________________________________
(b) All rentals payable under the Lease have
been paid through ______, 19___; and except
for _________, no rent has been paid more
than one month in advance of its due date.
(c) That attached hereto as Exhibit A is a
true and complete copy of the Lease and all
amendments thereto.
(d) Tenant has unconditionally accepted and
occupied the leased premises, is paying 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;
(e) 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;
(f) 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;
(g) All requirements of the Lease have been
complied with and no charges, set-offs or
other credits exist against the rentals;
(h) The Lease contains, and Tenant has, no
outstanding options or rights of first
refusal to purchase the Premises nor any part
of the real property of which the Premises
are a part.
(i) Tenant has not assigned, mortgaged,
sublet, encumbered or otherwise transferred
any of its interest under the Lease and has
received no notice of any assignment,
mortgage or encumbrance of the Lease by
Landlord.
From and after the date that Purchaser acquires title to the
Project:
(j) 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 Purchaser or
Mortgagee, without first obtaining
Purchaser's or such Mortgagee's prior written
approval provided Tenant has been provided
the name and address of such Mortgagee;
(k) 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 Borrower's
failure to do so;
(l) 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
Purchaser or Mortgagee;
(m) Purchaser 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 _________________ Building,
and Tenant hereby expressly consents to such
Assignment and has no notice of a prior
Assignment of the Lease or the rents
thereunder;
(n) 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 Purchaser is relying on the above
representations in connection with the purchase of the above
referenced building and does hereby warrant and affirm to and for
the benefit of Purchaser, 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 9.8.2
FORM OF SELLERS' ESTOPPEL CERTIFICATE
Parkway Properties, Inc.
300 One Jackson Place
188 East Capitol Street
Jackson, MS 39201
RE: _____________
Gentlemen:
The undersigned as Landlord hereby certifies to Parkway
Properties, Inc. and its successors and assigns ("Purchaser")
that:
(a) It is a Landlord of a portion of the
above referenced property under a certain
lease (the "Lease") as follows:
Landlord:___________________________________
Tenant:_____________________________________
Lease Dated:________________________________
Amendment(s) Dated (if any):________________
Current Annual Base Rent:___________________
Current CAM or Operating Expense Charges:
____________________________________________
Square Footage:_____________________________
Original term (or current option period,
if applicable) expires:_____________________
Security Deposit and/or
Lease Deposit: $____________________________
Outstanding Tenant Improvement Allowance (if
any): $____________________________________
Outstanding Leasing Commission (if any):
$___________________________________________
(b) All rentals payable under the Lease have
been paid through ________, 19___.
(c) That attached hereto as Exhibit A is a
true and complete copy of the Lease and all
amendments thereto.
(d) 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;
(e) 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;
(f) 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;
(g) All requirements of the Lease have been
complied with and no charges, set-offs or
other credits exist against the rentals;
Landlord understands that Purchaser is relying on the above
representations in consenting to purchase the above referenced
building and does hereby warrant and affirm to and for the
benefit of Purchaser, its successors and assigns, that each of
the foregoing representations is true, correct and complete as of
the date hereof. Purchaser acknowledges that this Sellers'
Estoppel Certificate shall terminate upon delivery of a Tenant's
Estoppel Certificate in a form reasonably acceptable to Purchaser
and containing information consistent with the information set
forth herein.
______________________________
By:___________________________
Name:_________________________
Title:________________________
Date:_________________________
EXHIBIT 9.10.1
OUTSTANDING COMMISSIONS
Residual lease commissions as provided in Section 13(B) of the
Exclusive Right to Lease Agreement between The Keenan Company,
Inc. and Central City General, L.P. dated March 19, 1997
("Leasing Agent Agreement").
EXHIBIT 9.10.2
AFFIRMATIVE RELEASE
OF
THE KEENAN COMPANY
LEASING AGENT/BROKER'S RELEASE
Buyer: Parkway Properties, L.P., a Maryland limited partnership
with Parkway Properties General Partners, Inc., a Maryland
corporation as its sole general partner
Sellers: Central City General, L.P., a South Carolina limited
partnership and M. B. Kahn Construction Co., Inc., a South
Carolina corporation
Property: NationsBank Tower
________________
________________, Richland County, South Carolina
Closing Date: June ___, 1997
The undersigned hereby acknowledges receipt of a total of
_________ Dollars ($______) in full satisfaction and
consideration for its services under that certain Exclusive Right
to Lease Agreement dated March 19, 1997 by and between Sellers
and the undersigned ("Leasing Agreement") for payment in full of
all residual commissions due to broker pursuant to the terms of
the Leasing Agreement. The undersigned hereby releases the
Buyer, Sellers and the Property from any and all obligations for
additional leasing commissions or similar payments in connection
with the residual commissions or any other payments relating to
existing leases of the Property as of the date hereof. The
undersigned further represents that it knows of no other brokers
or leasing agents entitled to receive any commissions in
connection with the existing leases of the Property. The
foregoing release, however, does not release Buyer from any other
obligations pursuant to the Leasing Agreement from this date
forward.
The Keenan Company, Inc.
By:________________________________
David C. Lockwood, III
Vice President
Leasing Services
STATE OF ___________
COUNTY OF __________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
___________________________________
NOTARY PUBLIC
My commission expires:
_____________________
(Affix official seal, if applicable)
EXHIBIT 10.3(a)
FORM OF LIMITED WARRANTY DEED
STATE OF SOUTH CAROLINA ) LIMITED WARRANTY DEED
) OF REAL PROPERTY
COUNTY OF RICHLAND )
THIS LIMITED WARRANTY DEED, executed the ____ day of
__________, 1997, by CENTRAL CITY GENERAL, L.P., a South Carolina
limited partnership ("CCG") whose mailing address is c/o
NationsBank Real Estate Services, 401 North Tryon Street,
Charlotte, North Carolina 29255, Attn: Richard Murrell and M.B.
KAHN CONSTRUCTION CO., INC., a South Carolina corporation
("Kahn") whose mailing address is Post Office Box 1179, Columbia,
South Carolina 29202, Attn: Alan Kahn (CCG and Kahn hereinafter
collectively referred to as "Grantor") to PARKWAY PROPERTIES,
INC., a Maryland corporation whose mailing address is Post Office
Box 24647, Jackson, Mississippi 39225, Attn: David Fowler
(hereinafter referred to as "Grantee").
W I T N E S S E T H:
IN CONSIDERATION of the sum of Five and no/100 ($5.00)
Dollars and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Grantor, Grantor
has granted, bargained, sold and released, and by this Limited
Warranty Deed grants, bargains, sells and releases to Grantee,
the following real property:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN.
The above property is sold subject to any accruing property
taxes and is made subject to the conditions, restrictions or
easements affecting the within described property described on
EXHIBIT "B".
TOGETHER with all and singular the rights, members,
hereditaments and appurtenances belonging or in any wise incident
or appertaining thereto;
TO HAVE AND TO HOLD all and singular said property unto
Grantee and Grantee's successors and assigns, forever.
GRANTOR covenants to warrant and forever defend all and
singular said property unto Grantee and Grantee's successors and
assigns from and against Grantor and Grantor's successors and
assigns.
WITNESS the Hand and Seal of the Grantor this ____ day of
__________ in the year of our Lord one thousand nine hundred and
ninety-seven and in the two hundred twenty-first year of the
Sovereignty and Independence of the United States of America.
SIGNED, SEALED AND DELIVERED CENTRAL CITY GENERAL, L.P.,
IN THE PRESENCE OF: a South Carolina limited
partnership
__________________________ By: BT Building Corp., a South
(WITNESS) Carolina corporation, its
general partner
____________________________ By:______________________________
(WITNESS) Its:________________________
____________________________ M. B. KAHN CONSTRUCTION CO., INC.,
(WITNESS) a South Carolina corporation
____________________________ By:______________________________
(WITNESS) Its:________________________
STATE OF ______________________ )
) PROBATE
COUNTY OF ____________________ )
PERSONALLY appeared before me the undersigned witness and
made oath that (s)he saw the within-named Central City General,
L.P., a South Carolina limited partnership, by BT Building Corp.,
a South Carolina corporation, its general partner, by
____________________ its ____________________________ sign, seal
and as his/her act and deed, deliver the within-written Deed for
the uses and purposes therein mentioned, and that (s)he with the
other witness whose signature appears above, witnessed the
execution thereof.
______________________________
(WITNESS)
Sworn to before me this the ____ day of
____________________, 1997.
__________________________________________
Notary Public for State of Columbia
My Commission Expires: ________________.
STATE OF ______________________ )
) PROBATE
COUNTY OF ____________________ )
PERSONALLY appeared before me the undersigned witness and
made oath that (s)he saw the within-named M.B. Kahn Construction
Co., Inc., a South Carolina limited partnership, by
_________________________, its ________________ sign, seal and as
his/her act and deed, deliver the within-written Deed for the
uses and purposes therein mentioned, and that (s)he with the
other witness whose signature appears above, witnessed the
execution thereof.
______________________________
(WITNESS)
Sworn to before me this the ____ day of
____________________, 1997.
_________________________________
Notary Public for State of Columbia
My Commission Expires: ________________
STATE OF SOUTH CAROLINA )
) AFFIDAVIT
COUNTY OF RICHLAND )
PERSONALLY appeared before me the undersigned, who being
duly sworn, deposes and says:
Property located at the corner of Sumter Street and Gervais
Street, Columbia, South Carolina, bearing Richland County Tax Map
Number #11401-03-04, was transferred by Central City General,
L.P. and M.B. Kahn Construction Co., Inc. to Parkway Properties,
Inc. on _______________, 1997.
The transaction was (Check one):
_______________ an arm's length real property transaction and the
sales price paid or to be paid in money or money's worth was
$__________________________ *.
_______________ not an arm's length real property transaction and
the fair market value of the property is
$______________________________________ *.
The above transaction is exempt, or partially exempt, from the
recording fee as set forth in S.C. Code Ann. Section 12-24-10 et.
seq. because the deed is (See back of affidavit):____________
_________________________________________________________________
__________.
As required by Code Section 12-24-70, I state that I am a
responsible person who was connected with the transaction
as:_________________________________________________________.
I further understand that a person required to furnish this
affidavit who wilfully furnishes a false or fraudulent affidavit
is guilty of a misdemeanor and, upon conviction, must be fined
not more than one thousand dollars or imprisoned not more than
one year, or both.
___________________________________
Purchaser, Legal Representative of
the Purchaser, or other Responsible
Person Connected with the
Transaction
SWORN to before me this ____ day of ___________, 1997
_______________________________(L.S.)
Notary Public for _____________________
My Commission Expires: ________________
* The fee is based on the real property's value. Value means the
realty's fair market value. In arm's length real property
transactions, this value is the sales price to be paid in money
or money's worth (e.g. stocks, personal property, other realty,
forgiveness of debt, mortgages assumed or placed on the realty as
a result of the transaction). However, a deduction is allowed
from this value for the amount of any lien or encumbrance on
land, tenement, or reality before the transfer and remaining on
it after the transfer.
EXHIBIT 10.3(b)
FORM OF
BILL OF SALE AND ASSIGNMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND BILL OF SALE
This ASSIGNMENT AND ASSUMPTION AGREEMENT AND BILL OF SALE
("Assignment"), is made by and between _______________, a
______________ ("Assignor") and _____________, a _____________
("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Purchase
Agreement") dated as of _______, 1997, by and between Assignor
and Assignee, Assignor agreed to sell to Assignee certain real
property, and the improvements located thereon ("Project") as
more particularly described in the Purchase Agreement; and
WHEREAS, the Purchase Agreement provides, inter alia, that
Assignor shall assign to Assignee certain contractual and other
intangible rights, that Assignee shall assume all of the
obligations of Assignor with respect to the property so assigned
from and after the date of such assignment, and that Assignor and
Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby
agree as follows:
1. Assignment. Assignor hereby assigns, sets over and
transfers to Assignee all tangible and intangible personal
property owned by Assignor, located on the real property
described on Exhibit A hereto, and used in the ownership,
operation and maintenance of such real property including,
without limitation, the following (collectively called the
"Personal Property"):
(i) All rights (if any) to use the name
"NationsBank Tower" to the extent such rights are
assignable without expense to Assignor and only as such
rights relate directly to the Project (but Assignor
does not represent that it has exclusive rights to use
such trade name and Assignor has not registered the
same in any manner) and only for so long as NationsBank
occupies and leases space in the Property plus a
reasonable period of up to one year after receipt by
Assignee of written notice of termination from
NationsBank;
(ii) The items of personal property described
on Exhibit B hereto;
(iii) The interest of Assignor under the
contracts and agreements described on Exhibit C hereto
(collectively, the "Contract");
(iv) The interest of the landlord under the
tenant leases encumbering the real property described
on Exhibit D hereto (collectively, the "Leases");
(v) To the extent assignable without expense
to Assignor, the interest of Assignor in and to tenant
lease files and correspondence relating to the Leases,
plans and specifications with respect to the Project,
promotional materials with respect to the leasing of
space within the Project, warranties and guaranties
relating to any of the other property to be conveyed
pursuant to the Purchase Agreement, licenses and
permits relating to the Project, and all other property
to be conveyed pursuant to the Purchase Agreement.
2. Assignee's Assumption and Indemnification. Assignee
hereby assumes the obligation to pay any and all liabilities and
obligations arising or accruing under any of the Contracts and
Leases on or after the effective date hereof. Assignee agrees to
indemnify, defend and hold harmless Assignor from any loss, cost,
claim, liability, expense or demand of whatever nature under any
of the Contracts and Leases above arising or accruing on or after
the effective date hereof.
3. Assignor's Indemnification. Assignor agrees to
indemnify, defend and hold harmless Assignee from any loss, cost,
claim, liability, expense or demand of whatever nature under any
of the property described in Paragraph 1 above arising or
accruing prior to the effective date hereof.
4. Special Warranty of Title. Assignor does hereby bind
itself, its legal representatives, successors and assigns, to
SPECIALLY WARRANT, and FOREVER DEFEND title to the property
conveyed hereby unto Assignee, its legal representatives,
successors and assigns, against every person whomsoever lawfully
claiming or to claim same or any part thereof, by, through or
under Assignor, but not otherwise.
5. Limitation on Liability. Notwithstanding anything
contained herein to the contrary, Assignor acknowledges and
agrees that no limited partner of Assignee, nor any trustee,
director, holder of any beneficial interests, shareholder,
officer or employee of Assignee or any affiliate of Assignee
shall have any personal liability, directly or indirectly, under
this Assignment, and Assignor shall have recourse hereunder only
against Assignee's assets.
6. Miscellaneous. This Assignment and the obligations of
the parties hereunder shall survive the closing of the
transaction referred to in the Purchase Agreement, shall be
binding upon and inure to the benefit of the parties hereto,
their respective legal representatives, successors and assigns,
shall be governed by and construed in accordance with the laws of
the State of South Carolina applicable to agreements made and to
be wholly performed within said State, and may not be modified or
amended in any manner other than by a written agreement signed by
the party to be charged therewith.
EXECUTED TO BE EFFECTIVE as of the ______ day of
________________, 1997.
ASSIGNOR:
_________________, a ______________
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT 10.3(e)
FORM OF FIRPTA AFFIDAVIT
STATE OF _______________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _____________
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform ________________ a
_______________ ("Transferee"), that withholding of tax is not
required upon the disposition of a U.S. real property interest by
________________, a _______________ ("Transferor"), the
undersigned hereby certifies as follows:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Transferor's U.S. employer identification number is:
#______________________;
3. Transferor's office address is
_________________________________________;
Transferor understands that this certification may be
disclosed to the Internal Revenue Service by the Transferee and
that any false statement contained herein could be punished by
fine, imprisonment, or both.
Under penalties of perjury, the undersigned, in the capacity
set forth below, hereby declares that he has examined this
certification and to the best of his knowledge and belief it is
true, correct and complete, and the undersigned further declares
that he has authority to sign this document in such capacity.
EXECUTED to be effective as of the ____ day of ___________,
1997.
TRANSFEROR:
________________________________
STATE OF __________________
COUNTY OF _________________
I, ___________________, a Notary Public of the County and
State aforesaid, certify that _____________________ personally
came before me this day and acknowledged that he/she is
____________________ of ___________________________, a
_____________________ and that by authority duly given and as the
act of the ______________ the foregoing instrument was signed in
its name by its ______________________, sealed with its corporate
seal, and attested by himself/herself as its
____________________.
WITNESS MY HAND AND OFFICIAL SEAL, this the _____ day of
________________, 1997.
___________________________________
NOTARY PUBLIC
My Commission Expires:______________________
[AFFIX NOTARIAL SEAL]
