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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K/A
AMENDMENT TO FORM 8-K
Filed Pursuant to
THE SECURITIES EXCHANGE ACT OF 1934
PARKWAY PROPERTIES, INC.
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(Exact name of registrant as specified in its charter)
AMENDMENT NO. 1
The undersigned registrant hereby amends the following
items,
financial statements, exhibits or other portions of its Form 8-K
filed December 10, 1997 as set forth in the pages attached
hereto:
Item 7. Financial Statements and Exhibits
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly
authorized.
Date: December 16, 1997 PARKWAY PROPERTIES, INC.
By: /s/ Sarah P. Clark
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Sarah P. Clark
Senior Vice President,
Chief Financial Officer,
Treasurer and Secretary
FORM 8-K/A
PARKWAY PROPERTIES, INC.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
(10) Purchase and Sale Agreement between the
Prudential Insurance Company of America and Parkway Properties,
LP dated on or about October 10, 1997, the First Amendment dated
November 10, 1997 and the Second Amendment dated November 17,
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.
AGREEMENT FOR
PURCHASE AND SALE OF REAL ESTATE
by and between
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
Seller
and
PARKWAY PROPERTIES, LP
Purchaser
Dated: as of October __, 1997
This AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
(hereinafter referred to as "this Agreement") is entered into and
effective as of this ______ day of October, 1997, by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation whose address is c/o The Prudential Realty Group,
1200 K Street, N.W., Suite 920, Washington, D.C. 20005, Attn:
Michael S. Paukstitus, Vice President (hereinafter referred to as
"Seller"), and PARKWAY PROPERTIES, LP, a Delaware limited
partnership, whose address is 188 East Capitol Street, Suite
1000, Jackson, Mississippi 39205, Attn: Jack Sullenberger
(hereinafter referred to as "Purchaser"). ("Purchaser" and
"Seller" are hereinafter referred to collectively as the
"Parties").
W I T N E S S E T H:
WHEREAS, Seller owns, in fee simple, that certain parcel or
tract of land (the "Land") and the improvements thereon, located
in the City of Chesapeake, Virginia, more particularly described
in Exhibit A attached hereto; and
WHEREAS, the Land is improved with two office buildings
containing in the aggregate approximately 172,918 rentable square
feet (collectively referred to as the "Building"); and
WHEREAS, Seller desires to sell, and Purchaser desires to
purchase, the Premises pursuant to the terms, conditions and
covenants contained in this Agreement:
NOW, THEREFORE, in consideration of these premises and the
mutual covenants and agreements contained in this Agreement, the
Parties hereby covenant and agree as follows:
Section 1. Purchase and Sale: Defined Terms.
1.1 Subject to the terms and conditions set forth in this
Agreement, Seller shall sell and convey to Purchaser, and
Purchaser shall purchase from Seller, all of the following
(collectively, the "Premises"):
1.0.1 A fee simple estate in the Land, together with all
easements and appurtenances belonging thereunto, and
all of Seller's right, title and interest in and to any
and all streets, alleys or public ways adjacent
thereto, before or after vacation thereof.
1.0.2 All of Seller's right, title and interest in the
fixtures, buildings, (including the Building) and
improvements located on the Premises ("Improvements").
1.0.3 All of Seller's right, title and interest to the
leases listed on Exhibit B annexed hereto (the
"Leases").
1.0.4 All tangible and intangible personal property now
owned or hereafter acquired by Seller in connection
with the operation of the Premises and Improvements
("Personal Property"), including but not limited to the
items of property listed on Exhibit C annexed hereto
and the contract rights under the service contracts
(the "Service Contracts") listed on Exhibit D annexed
hereto to the extent such contracts have not been
canceled as herein provided.
1.2 As used in this Agreement the term "Section" means a
numbered part of this Agreement captioned as a "Section" and all
paragraphs and subparagraphs included within the referenced
Section; the term "paragraph" means a numbered paragraph which is
included within a Section of this Agreement and all subparagraphs
included within the referenced paragraph; and the term
"subparagraph" means a numbered subparagraph which is included
within a paragraph of this Agreement.
1.3 As used in this Agreement, the term "Closing" means the
conveyance by Seller to Purchaser of the Premises, and the
payment by Purchaser to Seller of the balance of the Purchase
Price due pursuant to subparagraph 3.2.2, in accordance with this
Agreement.
Section 2. Closing.
2.1 The Closing shall take place at the offices of Title Company
(and, to the extent convenient to the parties, delivery of
closing documents at closing may occur by Federal Express or
other courier service), or at such other place as the Parties may
agree by a written instrument signed by the authorized
representative of each Party.
2.2 The Closing shall take place not later than 5:00 p.m.
Eastern Standard Time, Monday, December 1, 1997, or on such
earlier date to which the Parties may agree by a written
instrument signed by the authorized representative of each Party.
Section 3. Purchase Price.
3.1 The purchase price ("Purchase Price") for the Premises is:
SIXTEEN MILLION AND NO/100THS DOLLARS ($16,000,000.00 ).
3.2 Purchaser shall pay the Purchase Price as follows:
1.0.1 The sum of ONE HUNDRED FIFTY THOUSAND AND
NO/100THS DOLLARS ($150,000.00) (together with all
interest earned thereon, the "Deposit") shall be paid
by Purchaser to Escrowee, as hereinafter defined, on
the date that this Agreement is fully executed, and
shall be held in escrow by Stewart Title Guaranty
Company ("Escrowee"). The Deposit shall be held by
Escrowee pursuant to the following terms and
conditions:
(a)The Deposit shall be paid (i) to Seller, at
Closing, or as otherwise provided in this
Agreement, or (ii) to Purchaser, upon a default
hereunder by Seller, or as otherwise provided in
this Agreement.
(b)The Deposit shall be maintained in an FDIC insured
interest bearing account at a bank mutually
acceptable to Purchaser and Seller. All interest
accrued on the Deposit shall be the responsibility
of Purchaser for income tax purposes.
Notwithstanding anything contained herein which may
be construed to the contrary, in the event one
party shall be in default under the terms and
conditions of this Agreement such that the other
party shall be entitled to the Deposit, then in
such instance, the non-defaulting party shall be
entitled to the interest earned on the Deposit.
(c)Escrowee shall not be liable to any party for any
act or omission, except for bad faith or gross
negligence, and the Parties agree to indemnify
Escrowee and hold Escrowee harmless from any
claims, damages, losses, or expenses arising in
connection herewith. The Parties acknowledge that
Escrowee is acting solely as a stake holder for
their mutual convenience. In the event Escrowee
receives, after the end of the Inspection Period,
written notice of a dispute between the Parties in
respect of the Deposit (the "Escrowed Funds"),
Escrowee shall not be bound to release and deliver
the Escrowed Funds to either party but may either
(i) continue to hold the Escrowed Funds until
otherwise directed in a writing signed by all
Parties hereto or (ii) deposit the Escrowed Funds
with the clerk of any court of competent
jurisdiction. Upon such deposit, Escrowee will be
released from all duties and responsibilities
hereunder.
(d)Escrowee shall not be required to defend any legal
proceedings which may be instituted against it with
respect to the Escrowed Funds, the Premises or the
subject matter of this Agreement unless requested
to do so by Purchaser or Seller and indemnified to
its satisfaction against the cost and expense of
such defense. Escrowee shall not be required to
institute legal proceedings of any kind and shall
have no responsibility for the genuineness or
validity of any document or other item deposited
with it or the collectability of any check
delivered in connection with this Agreement.
Escrowee shall be fully protected in acting in
accordance with any written instructions given to
it hereunder and believed by it to have been signed
by the proper Parties.
1.0.2 The balance of the Purchase Price (subject to
adjustment pursuant to the provisions hereof) shall be
paid by Purchaser to Seller at Closing by wire transfer
of funds through the Federal Reserve system to a bank
account designated in writing by Seller.
Section 4. Conditions Precedent.
4.1 The following are conditions precedent to the obligation of
Purchaser to close title to the Premises, and pay the Purchase
Price for the Premises:
1.0.1 All representations and warranties of Seller
contained herein shall be true, accurate and correct on
the date of the Closing, subject to updating in
accordance with Section 10.1.6 below.
1.0.2 All of the obligations of Seller under this
Agreement to be performed upon execution of this
Agreement and through the date of the Closing shall
have been performed by Seller.
1.0.3 There has been no material change during the period
commencing on the last day of the Inspection Period
through and including the Closing Date in the condition
of the title to the Property or in matters evidenced by
the survey described herein.
1.0.4 Purchaser shall have received the estoppels required
by Section 7.2.11 hereof.
4.2 The following are conditions precedent to the obligation of
Seller to convey the Premises to Purchaser:
1.0.1 All representations and warranties of Purchaser
contained herein shall be true, accurate and correct on
the date of the Closing.
1.0.2 All of the obligations of Purchaser under this
Agreement to be performed upon execution of this
Agreement and through the date of the Closing shall
have been performed by Purchaser.
Section 5. Review & Inspection Period.
5.1 Purchaser shall have the period from the date of
this Agreement through 5:00 p.m., Eastern Standard Time on
Monday, November 10, 1997 (the "Inspection Period"), during
which it shall have the right to conduct, at its sole cost
and expense, such investigations, studies, surveys, analyses
and tests on and of the Premises as it shall, in its sole
discretion, determine are necessary or desirable, including,
without limitation, soil tests, environmental audits and
studies, and make such evaluations as Purchaser may, in its
sole and absolute discretion, determine are necessary or
desirable under the circumstances. In order to perform the
foregoing investigations, Purchaser, its agents,
contractors, employees and potential lenders, shall have
reasonable access to the Premises, all for the purposes of
inspecting the same and conducting tests, inspections, and
analyses thereon and making evaluations thereof, all at
Purchaser's expense. Purchaser shall indemnify and hold
harmless Seller for all losses or claims arising from the
actions of Purchaser, its employees, agents, contractors and
potential lenders in connection with Purchaser's
investigation of the Premises, and shall promptly restore
the Premises in the event its inspection results in the
creation of any soil borings or other disturbances to the
Premises. Notwithstanding the foregoing, Purchaser shall not
conduct test borings without Seller's prior written consent
which shall not be unreasonably withheld or delayed.
If Purchaser delivers to Seller and Escrowee written notice
on or before the end of the Inspection Period of its intent
not to complete the sale, then Purchaser's Deposit shall be
returned to Purchaser and this Agreement shall be null and
void and of no further force and effect, except for those
provisions that are expressly provided to survive the
termination of this Agreement. If Purchaser fails to timely
deliver such notice, the Deposit shall become nonrefundable
except as provided elsewhere in this Agreement.
5.1 Seller shall make available to Purchaser, for
Purchaser's review and analysis, all documents and files relating
to the Premises which are in Seller's possession and located in
Seller's offices at 1200 K Street, Washington, D.C. or at the
Premises; provided that Seller will make such documentation
available to Purchaser solely as a courtesy to Purchaser, and
Seller makes no representations or warranties as to the
completeness or accuracy of such documents. Further, Seller and
Purchaser agree and acknowledge that the documents provided by
Seller shall not include (and Seller shall not convey to
Purchaser) the following type of documents: budgets, appraisals,
future projections, state or federal income tax information, and
all attorney/client-privileged information and work product.
Other than those representations and warranties set forth in this
Agreement, Seller makes no warranties, representations or
covenants in connection with any aspect of the Premises,
including its environmental condition, and Purchaser's decision
as to whether to accept or reject the Premises shall be made
solely on the basis of any and all inquiries and investigations
it may conduct concerning the Premises.
5.2 Purchaser may, in its sole and absolute discretion, at any
time during the Inspection Period, terminate this Agreement upon
written notice to Seller, in which case the Deposit shall be
promptly returned to Purchaser and, except as otherwise provided,
this Agreement shall be null and void and of no further force and
effect.
5.3 Purchaser acknowledges that any information furnished to
Purchaser with respect to the Premises is and has been so
furnished on the condition that Purchaser maintain the
confidentiality thereof. Accordingly, Purchaser shall hold, and
shall cause its directors, officers and other personnel and
representatives to hold, in strict confidence, and not disclose
to any other person without the prior written consent of Seller
until the Closing shall have been consummated, any of the
information in respect of the Premises delivered to or for the
benefit of Purchaser by Seller or any of its agents,
representatives or employees. In the event the Closing does not
occur and this Agreement is terminated, Purchaser shall promptly
return to Seller all copies of documents containing any of such
information without retaining any copy thereof or extract
therefrom. Notwithstanding anything to the contrary hereinabove
set forth, Purchaser may disclose such information (i) on a need-
to-know basis to its employees or members of professional firms
serving it, and (ii) as any governmental agency may require in
order to comply with applicable laws or regulations.
Section 6. Title.
Title to the Premises shall be good and marketable fee simple
title, insurable at regular rates by Escrowee, and shall be
conveyed by Seller to Purchaser free and clear of all liens and
encumbrances, except the exceptions ("Permitted Encumbrances")
shown on Exhibit E. Purchaser shall have until the end of the
Inspection Period by which to examine title to the Premises, to
obtain a survey and to give notice to Seller of any objections it
may have to title based upon its title search or survey. Such
notice shall be provided on or before 5:00 p.m., Eastern Standard
Time on Monday, November 3, 1997. If Purchaser notifies Seller
of objections to title, then Seller shall have the right to cure
such defects. Seller shall advise Purchaser within seven (7) days
of such notice whether Seller shall attempt to cure the defects.
If Seller elects not to cure the defects, Purchaser shall have
the option to (i) elect to proceed with this Agreement and waive
its objection to the title defect, or (ii) terminate this
Agreement in which case Purchaser shall be entitled to a return
of the Deposit. If Seller elects to attempt to cure the title
defect and is unable to cure the title defect within thirty (30)
days after Purchaser notifies Seller of such title defect,
Purchaser shall have the right to waive its objection to the
title defect or terminate this Agreement in which case Purchaser
shall be entitled to a return of the Deposit. Seller shall not be
required to bring any action or proceeding in order to render
title marketable and shall not be required to expend a sum
greater than $10,000.00 to render title marketable. Acceptance by
Purchaser at Closing of the deed to the Premises shall, except as
set forth in such deed, be deemed to fully discharge Seller of
its obligations as to the quality of title to the Premises.
Section 7. Obligations.
7.1 Upon execution of this Agreement, Seller shall have the
following obligations:
1.0.1 Seller shall give Purchaser prompt notice (within
five business days after its receipt of notice of same)
of any fire or other casualty affecting the Premises or
of any actual or threatened taking or condemnation of
all or any portion thereof.
1.0.2 Seller shall not mortgage, convey, or encumber, or
perform any act which would result in an encumbrance of
the Premises.
1.0.3 To the extent terminable in accordance with their
terms, Seller shall terminate all service or
maintenance contracts as of the Closing, unless
directed otherwise in writing by Purchaser.
7.2 At the Closing, Seller shall have the following
obligations:
1.0.1 Seller shall execute, acknowledge and deliver to
Purchaser a deed in the form of Exhibit F annexed
hereto.
1.0.2 Seller shall execute and deliver an Assignment and
Assumption of Leases and Service Contracts in the form
of Exhibit G annexed hereto (the "Assignment and
Assumption").
1.0.3 Seller shall deliver a Bill of Sale in the form of
Exhibit H annexed hereto.
1.0.4 Seller shall execute, acknowledge and deliver to
Purchaser's title company a lien and possession
affidavit and such other documents as are reasonably
required by Purchaser's title insurer, all in form
reasonably acceptable to Seller, to insure title to the
Premises in accordance with the terms of this
Agreement.
1.0.5 Seller shall deliver to Purchaser true copies of the
bill for current real estate taxes.
1.0.6 Seller shall execute, acknowledge and deliver to
Purchaser an affidavit in the form required for the
purpose of complying with the Foreign Investment in
Real Property Tax Act.
1.0.7 Seller shall execute a closing statement reflecting
the payment and disbursement of the Purchase Price for
the Premises in accordance with this Agreement.
1.0.8 Seller shall deliver to Purchaser all keys and
security cards for the Premises, properly tagged;
further, Seller shall authorize Seller's property
manager to deliver to Purchaser all leases and service
contracts and plans and specifications relating to the
Premises in the possession of Seller's property
manager.
1.0.9 Seller shall deliver to Purchaser at closing a
document certified by Seller's corporate secretary or
authorized assistant secretary evidencing appropriate
authority authorizing the consummation of the
transactions contemplated hereby.
1.0.10 Seller shall execute and deliver to Purchaser a
letter advising tenants of the Premises that the
Premises has been sold to Purchaser.
1.0.11 Seller shall request estoppel letters from all
tenants of the Premises substantially in the form of
the estoppel letter attached hereto as Exhibit L.
Purchaser acknowledges that Seller obtained title to
the Premises through foreclosure, and, accordingly,
Seller will not be obligated to provide seller's
estoppel certificates for tenants who do not provide
estoppels. Notwithstanding the foregoing, however,
Purchaser shall be entitled to terminate this Agreement
(and receive a full refund of the Deposit) in the event
that Seller, at Closing is not able to deliver both (i)
a combination of tenant estoppel letters and seller
estoppel certificates in the form attached as Exhibit M
(while Seller shall not be required to deliver any
seller estoppel certificates at Closing, Seller may
elect to do so in order to satisfy the percentage set
forth below) from tenants collectively occupying
seventy-five percent (75%) of the area leased under the
Leases (excluding the Major Tenants [as that term is
defined below] and the United States Coast Guard; the
Parties recognize that the United States Coast Guard
will not generally issue a tenant estoppel letter;
accordingly, the space leased by the United States
Coast Guard will be excluded; provided, however, that
Seller agrees to use commercially reasonable efforts to
obtain a tenant estoppel from the United States Coast
Guard on its preferred form), and (ii) tenant estoppels
letters or seller estoppel certificates for each of the
following tenants (the "Major Tenants"): Consumer
Portfolio Services, Contract Publishing, Inter-National
Research, and Sega Communications; all dated not
earlier than forty-five (45) days prior to the
initially scheduled date of Closing. If Seller shall
obtain an estoppel certificate from any tenant for whom
Seller has given a Seller estoppel certificate, that
Seller estoppel certificate shall thereafter be without
force or effect. Any Seller estoppel certificate that
Seller may elect to deliver would survive the Closing
for a period of one hundred eighty (180) days.
Seller's obligation to deliver estoppel letters from
tenants (or, in the event Seller so elects, from
Seller) in accordance with this Section 7.2.11 shall
not be deemed to be a covenant from Seller to
Purchaser, but rather a condition to Purchaser's
performance at Closing, and Purchaser's sole remedy in
the event that Seller is not able to deliver the
percentages provided above shall be to terminate this
Agreement and receive a refund of the Deposit. Any
estoppel that a tenant may deliver that comports with
the provisions of such tenant's lease relating to such
tenant's obligation to provide an estoppel certificate
shall be deemed satisfactory for the purpose of
satisfying the percentages set forth in this Section 7.
Section 8. Obligations of Purchaser.
8.1 At the Closing, Purchaser shall have the following
obligations:
1.0.1 Purchaser shall deliver to Seller the balance of the
Purchase Price due pursuant to subparagraph 3.2.2,
after adjustments in accordance with Section 12.
1.0.2 Purchaser shall execute and deliver to Seller the
Assignment and Assumption.
1.0.3 Purchaser shall execute a closing statement
reflecting the payment and disbursement of the Purchase
Price in accordance with this Agreement.
1.0.4 Purchaser shall deliver to Seller a resolution
certified by Purchaser's corporate secretary or
authorized assistant (or, to the extent that the
Purchaser is an entity other than a corporation,
certified by the appropriate party or parties for such
entities), authorizing Purchaser to enter into this
Agreement, consummate the transactions contemplated
hereby, perform its obligations hereunder and execute
and deliver any and all documents necessary or
appropriate to accomplish the foregoing.
1.0.5 Purchaser shall deliver to Seller any and all other
documents and instruments reasonably required or
contemplated by this Agreement.
Section 9. [INTENTIONALLY OMITTED]
Section 10. Representations and Warranties.
10.1 To the best of Seller's Knowledge (as such term is
hereinafter defined), Seller represents and warrants the
following:
10.1.1 Seller is a New Jersey corporation and it has the full
power, authority and legal right to enter into and perform this
Agreement. The execution, delivery and performance of this
Agreement shall have been duly authorized by all necessary legal
action on the part of the Seller, will not require approval or
consent of any trustee or holders of indebtedness or obligations
of Seller, and will to contravene any law, governmental rule,
regulation or order binding on Seller, or contravene the
provisions of, or constitute a default under, or result in the
creation of any lien or encumbrance upon the property of the
Seller under any indenture, mortgage, contract, or other
agreement to which Seller is a party or by which Seller may be
bound or affected.
10.1.2 The following are true, correct and complete:
(a) As of the date of this Agreement, the tenants listed in
Exhibit B are the only tenants of the Premises and no other
parties are in possession or entitled to or claim possession
of any part of the Premises except the tenants listed in
Exhibit B;
(b) Seller has not entered into any service, supply,
maintenance, management or utility contracts affecting the
Premises which will be binding upon the Purchaser after the
Closing other than the Service Contracts listed in Exhibit
D;
(c) Seller has not received any written notice of default
with respect to the Service Contracts listed in Exhibit D or
from any tenants listed in Exhibit B;
(d) Except as may be listed in Exhibit J, Seller has not
received written notice of any pending or threatened actions
or proceedings before any court or administrative agency or
pending litigation which, if determined adversely to Seller,
would materially adversely affect the Premises or the
ability of Seller to perform Seller's obligations under this
Agreement;
(e) Except as may be listed in Exhibit K, Seller has not
received any written notice from any governmental authority
of any violation of any zoning, building, fire, health
code, or other statute, ordinance, rule or regulation
applicable to the Premises; and
(f) Seller has not entered into any other contract for the
sale of the Premises.
10.1.3 The Seller is not a "foreign person" as such term
is defined under Section 1445(f)(3) of the Internal Revenue Code
as amended.
10.1.4 The Improvements shall be in the same condition on
the date of Closing as they are on the date of this Agreement,
reasonable and customary tenant improvement work (if any),
maintenance and repairs, reasonable wear and tear and casualty
damage excepted.
10.1.5 ERISA representation:
(a)The source of funds from which Seller owns the
Premises is Seller's "insurance company general
account" (as such term is defined under V of the
United States Department of Labor's Prohibited
Transaction Exemption 95-60 ("PTE 95-60").
(b)Seller satisfied all of the applicable requirements
of I and IV of PTE 95-60.
10.1.6 Seller shall have the right from time to time by
notice, and without liability, to Purchaser to amend its
representations and warranties hereunder, by amendment of the
schedules hereto or otherwise, to reflect changes in facts or to
correct any factual inaccuracies; provided, however, that in the
event that Seller does so amend its representations and
warranties, Purchaser shall then have, as its sole remedy for
such amendment, the right to terminate this Agreement and receive
a refund of the Deposit. Neither Party shall have any liability
in connection with this Agreement by reason of an inaccuracy of a
representation or warranty, if and to the extent that such
inaccuracy is in fact known by the other Party at the time of the
Closing and such other Party elects, nevertheless, to close
hereunder.
10.2 To the best of Seller's knowledge, all of the foregoing
representations and warranties of Seller are true, accurate and
complete as of the date hereof and shall be true, accurate and
complete as of the date of the Closing, subject to updating in
accordance with the provisions of Section 10.1.6 above.
10.2.1 Definition of "Seller's Knowledge" All references in
this Agreement to "Seller's Knowledge" shall refer only to the
actual knowledge of Michael S. Paukstitus (the "Designated
Employee"), after reasonable inquiry of Robinson Sigma Commercial
Real Estate, Inc. (the management company for the Premises) and
shall not be construed to refer to the knowledge of any other
officer, agent or employee of Seller or any affiliate thereof or
to impose or have imposed upon the Designated Employee any duty
(other than the duty, referenced above, to make reasonable
inquiry of Robinson Sigma Commercial Real Estate, Inc.) to
investigate the matters to which such knowledge, or the absence
thereof, pertains, including, but not limited to, the contents of
the files, documents and materials made available to or disclosed
to Purchaser or the contents of files maintained by the
Designated Employee. Seller hereby advises Purchaser that
Michael S. Paukstitus is the Prudential investment official most
familiar with the Premises. There shall be no personal liability
on the part of said individuals arising out of any
representations or warranties made herein. Purchaser
acknowledges that Seller has informed Purchaser that due (i) to
the fact that Seller acquired title to the Premises by
foreclosure, and (ii) to Seller's numerous reorganizations of its
real estate investment offices over the previous five years, the
Designated Employee may have limited or little knowledge
regarding the Premises other than recent property management
matters.
10.2.2 Survival of Representations, Warranties,
Indemnities and Covenants. All representations and warranties
of Seller are limited to the period commencing on the date that
Seller acquired title to the Premises through foreclosure to the
Closing. The representations and warranties of Seller contained
in Section 10.1 and limitations on liability associated
therewith, shall survive the Closing for a period of one (1)
year, and no action based thereon shall be commenced after such
one (1) year. The indemnification and other agreements of the
Parties set forth herein which expressly provide that they shall
survive the Closing or the earlier termination of this Agreement
shall not expire, except as specifically set forth in those
Sections. Any rights a Party may have in the event such Party
terminates this Agreement pursuant to the terms hereof shall
survive such termination.
10.2.3 Limitation on Damages. Anything in this Agreement
to the contrary notwithstanding, the maximum aggregate liability
of Seller under this Agreement and the documents to be delivered
pursuant to this Agreement, and the maximum aggregate amount
which may be awarded to and collected by Purchaser, for all
breaches of representations and warranties of Seller set forth in
this Agreement shall not exceed the lesser of [i] the actual,
direct damages proximately caused by any such material breaches
of representations and warranties of Seller, and [ii] One Million
and No/100ths Dollars ($1,000,000.00).
10.3 Purchaser represents and warrants the following:
1.0.1 Purchaser is a Delaware limited partnership and it
has the full power, authority and legal right to
enter into and perform this Agreement. The
execution, delivery and performance of this
Agreement will not require approval or consent of
any trustee or holders of any indebtedness or
obligations of Purchaser, and will not contravene
any law, governmental rule, regulation or order
binding on Purchaser or contravene the provisions
of, or constitute a default under, or result in the
creation of any lien or encumbrance upon the
property of Purchaser under any indenture,
mortgage, contract, or other agreement to which
Purchaser is a party, or by which it may be bound
or affected.
1.0.2 Purchaser has not received written notice of any
pending or threatened actions or proceedings before
any court or administrative agency which will
materially adversely affect the ability of
Purchaser to perform its obligations under this
Agreement.
1.0.3 To Purchaser's knowledge, the execution by
Purchaser of this Agreement and the consummation by
Purchaser of the transactions contemplated by the
Parties hereby will not result in a breach of any
of the terms or provisions of, or constitute a
default under, or a condition which upon notice or
lapse of time or both would ripen into a default
under, any indenture, agreement, instrument or
obligation to which Purchaser is a party. All
references in this Agreement to "Purchaser's
knowledge" shall refer only to the actual knowledge
of Jack Sullenberger (the "Purchaser Designated
Employee"), and shall not be construed to refer to
the knowledge of any other officer, agent or
employee of Purchaser or any affiliate thereof or
to impose or have imposed upon the Purchaser
Designated Employee any duty to investigate the
matters to which such knowledge, or the absence
thereof, pertains, including, but not limited to,
the contents of the files, documents and materials
made available to or disclosed to Seller or the
contents of files maintained by the Purchaser
Designated Employee
1.0.4 Purchaser's rights under this Agreement do not, and
upon its acquisition by Purchaser the Premises
shall not, constitute "plan assets" within the
meaning of 29 C.F.R. Section 2510.3-101, because
one or more of the following circumstances are
true:
(a)Equity interests in Purchaser are publicly offered
securities, within the meaning of 29 C.F.R.
Section 2510.3-101(b)(2);
(b)Less than 25 percent of all equity interest in
Purchaser are held by "benefit plan investors"
within the meaning of 29 C.F.R. Section 2510.3-
101(f)(2); or
(c)Purchaser qualifies as an "operating company",
"venture capital operating company" or a "real
estate operating company" within the meaning of 29
C.F.R. Section 2510.3-101 (c), (d) or (e).
1.0.5 Purchaser is not a "governmental plan" within
the meaning of Section 3(32) of the Employee
Retirement Income Security Act of 1974 and the
execution of this Agreement and the purchase of
the Premises by Purchaser is not subject to state
statutes regulating investments of and fiduciary
obligations with respect to governmental plans.
10.4 All of the foregoing representations and warranties of
Purchaser are true, accurate and complete as of the date hereof
and shall be true, accurate and complete as of the date of the
Closing.
Section 11. Costs Connected With Conveyances.
The costs of the conveyances described in this Agreement shall be
paid in accordance with the following schedule:
Item
Seller or Purchaser
Grantor's Tax
All other transfer and SellerPurchaser
recording taxes and fees
related to the conveyance as
well as any recordation tax or
intangibles tax on any
mortgage and any other costs
associated with any loan Purchaser
Purchaser may obtain in Purchaser
connection with acquiring the Each Party to bear its own
Premises Cost of Survey Cost
of Title Examination and Title
Insurance Attorneys' Fees
Section 12. Apportionments.
As of the date of Closing, the following shall be apportioned
with respect to the Premises: (a) all rents and other income from
the Premises, including, without limitation, base rent,
percentage rent, tax and operating expenses pass-through
reimbursements paid under the Lease; (b) real estate taxes and
assessments, utility charges and all other operating expenses of
the Premises; and (c) any other charges for which apportionment
would be customary or appropriate. If the current year's tax bill
is not available, the tax proration shall be based on the
previous year's tax bill. Any other items of income or expense
not known shall be reasonably estimated at Closing. All such
estimated items (including any tax proration based on the
previous year's bill) at Closing shall be subject to a post
closing re-proration once such estimated items are known and each
Party agrees to pay any such sums due as a result of such post-
closing re-proration.
Purchaser shall receive a credit at Closing in an amount equal to
the security deposits listed in Exhibit B to this Agreement.
Rent shall be prorated as follows: All rent received through the
close of business on the day prior to Closing (the "Cutoff Date")
shall be established. The amount of rent received by Seller or
its agents through the Cutoff Date for periods after the Cutoff
Date, including the prorated balance of the month of Closing, is
referred to as the "Prepaid Rent". Purchaser shall receive a
credit for the Prepaid Rent at Closing. Following the Closing
Date, any rents received by Seller shall be promptly delivered to
Purchaser irrespective of whether the applicable tenant owed a
delinquency to Seller as of the Closing Date. Rents accrued and
unpaid under any lease as of the close of business on the Cutoff
Date ("Unpaid Rent") shall remain the property of the Seller and
Purchaser shall reasonably cooperate with Seller (without having
the obligation to expend funds) to collect the same. To the
extent that within six (6) months after Closing, Purchaser
collects any Unpaid Rent from any tenant, the amount of such
Unpaid Rent (after crediting such collections first against all
rents for the applicable lease payable for periods from and after
Closing) shall belong to Seller. Purchaser shall pay Seller the
aggregate amount, if any, of Unpaid Rent to which Seller is
entitled in two (2) payments, the first payment to be made on or
around the date that is 75 days after the Closing Date, and the
second payment to be made on a date that is at least six (6), but
not more than seven (7), months from the Closing Date. With
respect to delinquent rents (and any other amounts or other
rights of any kind) respecting tenants who are no longer tenants
of the Premises as of the Closing Date, Seller shall retain all
rights relating thereto.
Seller and Purchaser agree to consider negotiating a discounted
purchase of Seller's Unpaid Rent by Purchaser at Closing.
Section 13. Default.
13.1 Anything in this Agreement to the contrary
notwithstanding, in the event of a willful failure to close on
the part of the Seller, the Purchaser's rights and remedies shall
be limited as its sole and exclusive remedy to the remedy of
specific performance. Seller specifically agrees that the remedy
of specific performance is an appropriate remedy for Purchaser,
because the Premises is unique and damages to Purchaser upon
Seller's willful failure to close will be extremely difficult to
determine.
13.2 If Purchaser fails timely to close title to the
Premises pursuant to the terms and conditions of this Agreement,
or if Purchaser otherwise fails to perform any of its obligations
under this Agreement, then unless such obligation is waived by
Seller, such failure shall constitute a default of this
Agreement. Purchaser acknowledges that such default under this
Agreement would cause harm to Seller that is incapable of
accurate estimation and the Seller shall be limited as its sole
and exclusive remedy for such default to receive the Deposit as
full and complete liquidated damages.
Section 14. Assessments.
If the Premises is affected by any special assessment or
assessment for public improvements prior to the date of Closing,
which assessments are or may become payable, in installments or
otherwise, then for the purpose of this Agreement all the unpaid
installments of any such assessment, including those which are to
become due and payable after Closing, shall be assumed and paid
by Purchaser.
Section 15. Risk of Loss; Condemnation.
15.1 No damage to or destruction of the Improvements shall
affect the obligations of the Parties hereunder, except that, if
the casualty results in damage to the Premises for which the cost
of repair exceeds $300,000.00 (upon the occurrence of a casualty,
Seller and Purchaser agree to attempt to come to a mutual
understanding as to the costs of repair for such casualty; if the
parties are not able to come to such an understanding within 5
days of the date on which Seller notifies Purchaser of the
casualty, then Seller and Purchaser shall retain a mutually
acceptable outside consultant to assess such damage, and such
consultants assessment shall be controlling for the purposes of
determining whether the cost of such repair exceeds $300,000.00),
Seller shall notify Purchaser in writing of such damage and
Purchaser shall have five (5) business days to elect either: (i)
to terminate this Agreement and receive a refund of the Deposit,
and this Agreement shall be of no further force and effect,
except for those provisions that expressly survive termination;
or (ii) to proceed to close the transaction contemplated
hereunder. If the Improvements suffer damage (regardless of
amount), Seller shall not be obligated to repair or restore same,
but Seller shall assign to Purchaser at Closing any insurance
proceeds recoverable (or already recovered, to the extent that
such proceeds have not been already applied toward the repair of
the casualty damage) by Seller on account of such damage or
destruction, together with a credit at Closing equal to the
amount of any deductible that Seller may be required to pay in
connection therewith.
15.2 In the event of a condemnation of any portion of the
Premises which in Purchaser's reasonable judgment would
materially interfere with Purchaser's use and enjoyment of the
Premises for any uses permitted under applicable governmental
regulations, Purchaser shall have the option to elect to
terminate this Agreement by serving written notice thereof on
Seller, whereupon the Deposit shall be returned to Purchaser and
neither Party shall thereafter have any further rights or
obligations under this Agreement (except for those provisions
that expressly survive such termination). If Purchaser does not
terminate this Agreement in accordance with this Section 15,
Purchaser shall have the option of electing to (i) take an
assignment of Seller's rights in the condemnation award without
any abatement or adjustment in the Purchase Price, or (ii)
receive a reduction in the Purchase Price by the sum of the
condemnation award received by Seller.
Section 16. Seller's Disclaimer;
"AS IS" Purchase; Purchaser's Acknowledgments.
16.1 The Parties agree that the Premises is being sold to the
Purchaser in "as is" condition and except as expressly provided
in paragraph 10.1 hereof and in the closing documents, Seller has
not made, does not make, and does not authorize anyone to make,
any warranty or representation of any kind as to the past,
present or future physical condition, financial or market
condition, environmental condition, zoning, suitability of the
Premises for any particular use, expenses, operation or any other
matter or thing affecting or relating to the Premises or any
matter or thing pertaining to this Agreement, and Purchaser
expressly acknowledges that, except as otherwise expressly
provided in paragraph 10.1 hereof and in the closing documents,
no such representations have been made and that Purchaser will
rely upon its own inspections, audits and investigations in the
purchase of the Premises and is not relying on any
representations whatsoever other than as expressly set forth in
paragraph 10.1 hereof and in the closing documents. Purchaser
hereby releases Seller from any and all liability or claims
related to the past, present or future physical condition,
financial or market condition, environmental condition, zoning,
suitability of the Premises for any particular use, expenses,
operation or any other matter or thing affecting or relating to
the Premises or this Agreement, including, without limitation,
any liability or claims arising under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. 9601 et. seq., as amended, the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. 6901, et. seq., as
amended, and any other federal, state or local environmental law
or regulation, of any nature or kind whatsoever. This paragraph
16.1 shall survive closing.
16.2 Purchaser acknowledges that it has been provided with the
reports and documentation listed on Exhibit I, and that such
reports and documentation have been provided for information
only, without any representation or warranty by Seller as to
accuracy or completeness. Purchaser further acknowledges that it
is not relying upon information contained in the referenced
reports in its decision to purchase the Premises, but is instead
relying upon its own inspections and reports.
Section 17. Brokerage Commissions and Finder's Fees.
Seller represents and warrants to Purchaser, and Purchaser
represents and warrants to Seller, that no person or entity can
properly claim a right to a real estate commission, real estate
finder's fee, real estate acquisition fee or other real estate
brokerage-type compensation (collectively, "Real Estate
Compensation") based upon the acts of that Party with respect to
the transaction contemplated by this Agreement other than
Robinson Sigma Commercial Real Estate, Inc. (the "Broker").
Seller shall pay Broker pursuant to separate agreement. Each
Party hereby agrees to indemnify and defend the other against and
to hold the other harmless from any and all loss, cost, liability
or expense (including but not limited to attorneys' fees and
returned commissions) resulting from any claim for Real Estate
Compensation by any person or entity based upon the acts of the
indemnifying Party.
Section 18. Assignment.
This Agreement shall not be assigned by Purchaser except to a
partnership or corporation in which Purchaser holds a majority
interest. No assignment shall be permitted to any entity that
does not satisfy the provisions of Section 10.3.4 and 10.3.5
hereof (Purchaser's ERISA representations).
Section 19. Applicable Time Periods.
Except as expressly agreed otherwise by the Parties in writing,
under no circumstances shall any of the time periods set forth in
this Agreement be suspended, adjusted, extended, modified or
delayed due to the initiation of any condemnation proceeding,
eminent domain action, moratorium, or other municipal proceeding
affecting the Premises.
Section 20. Entire Agreement.
All understandings and agreements heretofore had between the
Parties hereto are merged in this Agreement, which embodies their
entire agreement, and the same is entered into after full
investigation, neither Party relying upon any statement or
representation not contained herein.
Section 21. Binding Effect.
This Agreement shall inure to the benefit of, and be binding
upon, the Parties hereto and their respective heirs, executors,
legal representatives, administrators, successors and assigns.
Section 22. No Modification.
This Agreement may not be changed or terminated orally by either
Party; it may be amended only by a writing which is executed by
Purchaser and Seller. No course of conduct or course of dealing
by the Parties shall be construed to constitute a waiver,
modification, or amendment of any provision of this Agreement in
the absence of a writing executed in accordance with this Section
22. The requirement set forth in this Section 22 that amendments
to this Agreement must be in writing shall not itself be waived
or amended by any oral agreement of the Parties.
Section 23. Notices.
23.1 Wherever in this Agreement it shall be required or permitted
that notice or demand be given or served by either Party to or on
the other, such notice or demand shall be deemed duly given or
served if, and shall not be deemed duly given or served unless,
in writing and mailed by registered or certified mail, return
receipt requested, or sent by Federal Express or comparable
private delivery service which provides proof of delivery, or
sent by fax, addressed to the addresses set forth in the opening
paragraph of this Agreement.
23.2 Notices to Purchaser shall include copies in a similar
manner to Tim Gray, Esq., Forman, Perry Watkins Krutz & Tardy,
PLLC, 1200 One Jackson Place, 188 E. Capitol Street, Jackson,
Mississippi 39201. Notices to Seller shall include copies in a
similar manner to Glass, McCullough, Sherrill & Harrold, 1409
Peachtree Street, N.E., Atlanta, Georgia 30309, Attn: Paul P.
Mattingly, Esq., and to The Prudential Insurance Company of
America, Law Department, One Ravinia Drive, Suite 1400, Atlanta,
Georgia 30346, Attn: John L. Westney, Jr., Esq., Division
Counsel. Notices to Escrowee shall be sent to: Ms. Lolly Avant,
National Title Services, 1980 Post Oak Boulevard, Suite 610,
Houston, Texas 77056.
23.3 The time at which any notice or demand shall be deemed
given or served shall be the time at which such notice or demand
is delivered, whether or not such delivery is refused. Any notice
may also be delivered personally.
Section 24. Captions; Gender.
The Section headings and table of contents set forth in this
Agreement are for the convenience of the Parties only, do not
form a part of this Agreement, and are not to be considered a
part of this Agreement for the purposes of interpretation, or
otherwise. All references herein to the neuter gender shall be
deemed to include the masculine and feminine genders, and all
references herein to the singular shall be deemed to include the
plural, all as the context may require.
Section 25. Counterparts.
This Agreement may be executed in counterparts, all of which
shall be deemed originals.
Section 26. Governing Law.
This Agreement shall be governed by and construed according to
the laws of the State of Virginia.
Section 27. Singular and Plural Usage.
If two or more persons or entities constitute either the Seller
or the Purchaser, the word "Seller" or the word "Purchaser" and
pronouns referring thereto, shall be construed in the singular or
plural usage whenever the sense of this Agreement so requires.
Section 28. [INTENTIONALLY OMITTED]
Section 29. Time Periods.
If any time period under this Agreement ends on a Saturday,
Sunday or legal holiday, such time period shall automatically be
extended to the next day that is not a Saturday, Sunday or legal
holiday. Time is of the essence with respect to this Agreement.
Section 2. Section 1031 Exchange.
Purchaser and Seller agree to cooperate reasonably with the other
Party in effecting an exchange transaction which includes the
Premises, pursuant to Section 1031 of the United States Internal
Revenue Code, provided that any such exchange transaction, and
the related documentation, shall: (a) be at the sole cost and
expense of the Party effecting such exchange, (b) not require the
other Party to execute any contract, make any commitment, or
incur any obligations, contingent or otherwise, to third parties,
(c) not cause the other Party to be liable or potentially liable
for any environmental conditions affecting property other than
the Premises, (d) not delay the closing or the transaction
contemplated by this Agreement, (e) not include the other Party's
acquiring title to any property other than the Premises or
otherwise becoming involved in a transaction with a third party,
and (f) not otherwise be contrary to or inconsistent with the
terms of this Agreement. Notwithstanding anything to the contrary
contained herein, the Party effecting such exchange shall
reimburse, indemnify and hold the other Party harmless from, any
and all costs, expenses and liabilities incurred solely from such
other Party's accommodation of such tax deferred exchange,
including, without limitation, reasonable attorneys' fees, and
any title or escrow fees or expenses. The obligations of the
Party effecting such exchange under this paragraph shall survive
the execution and delivery of this Agreement and the Closing and
shall not be merged therein.
Section 3. Leasing Matters.
29.1 Except for a satellite licensing agreement that may be
entered into by and between Seller and Paging Network of
Virginia, Inc.(the "PageNet License"), after October 2, 1997,
Seller shall not, without Purchaser's prior written consent in
each instance, which consent shall not be unreasonably withheld
and shall be given or denied, with the reasons for such denial,
within three (3) business days after receipt by Purchaser of the
information referred to in the next sentence, enter into a new
lease for space in the Building or renew or extend any Lease
(except pursuant to the exercise by a tenant of a renewal,
extension or expansion option contained in such tenant's Lease;
with respect to such existing options, if such options require
the negotiation of the rental rate or other material terms,
Seller shall consult with Purchaser regarding such terms). If
Purchaser shall not give notice of its disapproval of such action
within such three (3) business day period, Purchaser shall be
deemed to have approved such proposed new lease. Seller shall
furnish Purchaser with a copy of the proposed lease and all
information regarding any proposed new leases, renewals and
extensions reasonably necessary to enable Purchaser to make
informed decisions. Seller shall deliver to Purchaser a true and
complete copy of each such new lease, renewal and extension
agreement, if any, promptly after the execution and delivery
thereof. Seller shall keep accurate records of all of the
following types of expenses (collectively, "New Lease Expenses")
incurred in connection with any new lease for space at the
Premises, or any extension, renewal or expansion of a Lease where
such Lease does not provide an option to the tenant for its
extension, renewal or expansion, entered into on or after the
date hereof (a "New Lease"): (a) brokerage commissions and fees
to effect such leasing transaction, (b) expenses incurred for
repairs, improvements, equipment, painting, decorating,
partitioning and other items to satisfy the tenant's requirements
with regard to such leasing transaction, (c) reasonable legal
fees for services in connection with the preparation of documents
and other services rendered in connection with the effectuation
of the leasing transaction, (d) if there are any rent concessions
covering any period that the tenant has the right to be in
possession of the demised space, the rents that would have
accrued during the period of such concession prior to the date of
Closing as if such concession were amortized over the entire
initial term of such New Lease, (e) expenses incurred for the
purpose of satisfying or terminating the obligations of a tenant
under a New Lease to the landlord under another lease (whether or
not such other lease covers space in the Building), and (f) any
other reasonable economic concession provided to the prospective
tenant in the proposed lease; notwithstanding the foregoing, with
the exception of reasonable attorneys fees (which are not subject
to being quantified), Purchaser shall not be obligated to
reimburse Seller for an item referenced in this Section 31.1
unless such item was disclosed to Purchaser in a summary of the
proposed lease transaction provided to Purchaser by Seller or
Seller's property manager. At the Closing, Purchaser shall,
except as otherwise indicated in Section 31.5 below, reimburse
Seller for all New Lease Expenses paid or incurred by Seller
after the date hereof and prior to the date of Closing and shall
assume Seller's obligations to pay, when due, any such New Lease
Expenses unpaid as of the Closing. Seller shall make available
to Purchaser all records, bills, vouchers and other data in such
Seller's control verifying such New Lease Expenses and the
payment thereof.
29.2 After October 2, 1997, except for the PageNet License and
except as provided in this paragraph 31.2, without the prior
consent of Purchaser (which consent shall not be unreasonably
withheld, conditioned or delayed): (i) no Lease shall be
modified or amended except as provided in paragraph 31.1 with
respect to extensions, renewals or expansions of Leases and the
execution of New Leases, (ii) Seller shall not consent to any
assignment or sublease in connection with any Lease or New Lease
and (iii) Seller shall not remove any tenant under any Lease or
New Lease, whether by summary proceedings or otherwise, release
any tenant from its obligations under a Lease or a New Lease,
waive any material provisions of a Lease or a New Lease,
voluntarily accept the surrender of any premises leased under a
Lease or a New Lease, or terminate or accept the termination of a
Lease or New Lease (except in accordance with the terms of any
such Lease or New Lease). In furtherance of the foregoing,
Seller shall deliver to Purchaser a written notice of each
proposed action of the type described in clauses (i) - (iii)
above which Seller has been asked or proposes to take, stating,
if applicable, whether Seller is willing to consent to such
action and setting forth the relevant information therefor.
Purchaser shall have three (3) business days after delivery to it
of such notice and information to determine whether or not to
approve such action. If Purchaser shall not give notice of its
disapproval of such action within such three (3) business day
period, Purchaser shall be deemed to have approved such action.
Seller shall perform all of the obligations of the landlord under
the Leases and New Leases which under the terms of such Leases
and New Leases are required to be performed by the landlord prior
to the date of Closing.
Notwithstanding anything in this Article 31 or in Article 7 above
to the contrary, if (i) Seller submits a request for approval of
an action to Purchaser pursuant to this Article 31, (ii)
Purchaser unreasonably refuses to consent to such request, and
(iii) the tenant affected by such refusal refuses to give an
acceptable estoppel because of such request, then Seller shall be
deemed to have provided Purchaser with an estoppel from such
tenant for purposes of calculating the estoppel percentages
provided for in Article 7 above.
29.3 Subject to the provisions of paragraph 31.2 above, prior to
the date of Closing, Seller shall have the right, but not the
obligation (except to the extent that Seller's failure to act
shall constitute a waiver of such rights or remedies), to enforce
the rights and remedies of the landlord under any Lease or New
Lease, by summary proceedings or otherwise.
29.4 The termination of any Lease or New Lease or the removal of
any tenant by reason of a default by such tenant (by summary
proceedings or otherwise) prior to the Closing in accordance with
this Agreement shall not affect the obligations of Purchaser
under this Agreement in any manner or entitle Purchaser to a
reduction in, or credit or allowance against, the Purchase Price
or give rise to any other claim on the part of Purchaser.
29.5 Prior to the date of Closing, Seller anticipates
consummating one (1) expansion and two (2) new leases for the
portions of the Premises described below substantially in
accordance with the terms provided below (however, Purchaser
acknowledges that said renewals or new leases may have not been
consummated as of the date of this Agreement and may not be
consummated; further, Purchaser is not relying upon the
consummation of such renewals and leases in connection with the
determination of the Purchase Price set forth above, and the
consummation of such renewals and leases shall not be a condition
precedent to closing):
Annual base
Tenant Name Net Rentable rent per Annual
Area and rent per square Term square foot base rent
Suite foot of net of net escalation
Number rentable area rentable area
(as of rent (as of rent
commencement) commencement)
DANKA 1,954 SF of net 10/1/97 $15.25 4%
Corporation rentable area in thru
"DANKA" Suite #302 of 9/30/2002
Tower I and
6,895 SF of net
rentable area in
Suite #200 of
Tower II
DANKA 6,895 SF of net 10/1/97 $15.25 4%
rentable area in thru
Suite # 200 of 9/30/2002
Tower II
Consumer 9,258 SF of net Same Same terms Same terms
Portfolio rentable area in terms as as original as origi-
Services, Suites original lease (TI nal lease
Inc. 501,502,504,505, lease (TI allowance (TI
("CPS") 505A, and 506 Of allowance prorated for allowance
Tower __ in prorated # of months prorated
three phases for # of in original for # of
approximately as months in term) months in
follows: original original
(a) 4,100 SF at term) term)
1/98
(b) 2,500 SF at
3/98
(c) 3,658 SF at
6/98
In the event either (or both) the DANKA leases and the CPS
expansion is consummated by Seller in accordance with the above
terms, Seller shall be responsible for paying all New Lease
Expenses associated with such space; PROVIDED, HOWEVER, that at
Closing, Purchaser shall reimburse Seller an amount equal to the
New Lease Expenses (to the extent that the same have been
disbursed by Landlord prior to the Closing Date). In any event,
such reimbursement will not exceed (a) with respect to DANKA
space, $5.25/SF for tenant improvements and 7% of gross rent for
commissions, and (b) with respect to CPS expansion space, the pro
rata tenant improvements disbursed as of the date of Closing and
6% of gross rent for commissions.
29.6 Seller and Purchaser agree and acknowledge that, in addition
to the DANKA and CPS projects referenced above, Seller is also
currently pursuing the tenant improvement projects referenced in
Exhibit N attached hereto and by this reference incorporated
herein (the "Seller TI Projects"). Seller agrees to continue to
pursue the Seller TI Projects through and until the day preceding
the Closing Date. To the extent that any of the Seller TI
Projects are not completed and funded prior to the day preceding
the Closing Date, then Seller agrees to provide the Purchaser
with a credit at closing for the difference between the contract
amount for such project (or projects, as the case may be), and
the amount disbursed by Seller through the day preceding the
Closing Date.
Section 4. Property Operation Matters.
With respect to the operation of the Premises from the date
of this Agreement to the Closing Date (or the earlier termination
of this Agreement in accordance with the terms hereof), Seller
agrees as follows:
1. Seller will provide Purchaser with notice of any new service
contracts that Seller may enter into, and any such new
service contract shall be terminable on no more than thirty
(30) days notice.
2. Seller agrees to continue to operate the Premises through
the Closing Date in accordance with Seller's general
practices for managing similar properties (subject only to
the limitations placed on Seller's leasing activities
pursuant to this Agreement).
3. Seller agrees not to reduce or apply any security deposit
presently being held by Seller to secure a tenant's
obligations at the Premises.
IN WITNESS WHEREOF, the Parties have hereunto set their
hands and seals or cause these presents to be signed by their
proper corporate officers and caused their proper corporate seal
to be hereto affixed, the day and year first above written.
SELLER:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New
Jersey corporation
By:
(Name):
Title: Vice President
[CORPORATE SEAL]
PURCHASER:
PARKWAY PROPERTIES, LP,
a Delaware limited partnership
By: Parkway Properties, Inc.,
a __________ corporation
By:
(Name):
Title:
[CORPORATE SEAL]
The undersigned acknowledges receipt of the Deposit referred to
in subparagraph 3.2.1 hereof, and agrees to hold and disburse
same in accordance with the provisions of this Agreement. The
undersigned further agrees to act as Escrowee pursuant to the
terms and conditions of subparagraph 3.2.1 and hold and disburse
the funds delivered pursuant thereto in accordance with the terms
thereof.
STEWART TITLE GUARANTY COMPANY
By:
(Name):
Title:
EXHIBIT A
Legal Description
ALL THOSE CERTAIN PIECES OR PARCELS OF LAND, together with all
improvements thereon, situate, lying and being in the City of
Chesapeake, Virginia, and being known, numbered and designated as
"SITE 45-K-3 263,396 SQ. FT. 6.0467 AC." and "SITE 45-K-4 234,830
SQ. FT. 5.3910 AC." as shown on plat (the "Plat") entitled
"RESUBDIVISION OF SITE 45-K-2A PART OF GREENBRIER INDUSTRIAL &
OFFICE PARK AND SITE 45-K-5 PART OF GREENBRIER INDUSTRIAL &
OFFICE PARK AND SITE 45-K-1 PART OF GREENBRIER INDUSTRIAL &
OFFICE PARK WASHINGTON BOROUGH - CHESAPEAKE, VIRGINIA", Scale: 1"
- - 100' dated March 1, 1989 made by W.P. Large, Inc., which plat
is duly recorded in the Clerk's Office of the Circuit Court of
the City of Chesapeake, Virginia, in Map Book 95, at page 67 &
67A; the Property being more particularly bounded and described
by reference to the said Plat.
AND BEING the same property acquired by Grantor by Substitute
Trustee's Deed dated May 22, 1995, recorded May 26, 1995, in the
Clerk's Office of the Circuit Court of the City of Chesapeake,
Virginia, in Deed Book 3222 at page 685.
EXHIBIT B
Tenants
[TO BE PREPARED BY SELLER'S PROPERTY MANAGER]
Suite Tenant
EXHIBIT C
Personal Property Inventory
NONE
EXHIBIT D
List of Service Contracts
[TO BE PREPARED BY SELLER'S PROPERTY MANAGER]
[Property Name]
[City, State]
Contract Type Vendor Name
EXHIBIT E
Permitted Encumbrances
1. Taxes and assessments for the year 1997 and all subsequent
years.
2. Municipal land use regulations.
3. Rights of tenants in possession, as tenants only.
4. Encroachments, overlaps, boundary line disputes, and any
other matters which would be disclosed by an accurate
current survey or inspection of the Premises.
5. Covenants and restrictions contained in the instrument from
Armada/Hoffler Company, a Virginia corporation; Peter A.
Agelasto, III and Ken W. Griffin, Trustees; Armada Petroleum
Corporation, a Texas corporation; Alvin D. Woods and J. F.
Madden, Trustees; and Virginia National Bank, dated April
11, 1980, and recorded June 25, 1980, in Deed Book 1889,
page 670.
6. Easement for utilities and drainage facilities granted to
City of Chesapeake by Armada/Hoffler Company, dated April 7,
1980, over the 5' x 5' of the subject property as
established, reserved, shown by instrument recorded April
22, 1980, in Deed Book 1884, Page 729.
7. Easement granted Virginia Electric and Power Company by
Armada Hoffler Company, dated July 15, 1980, fifteen feet
(15') on both sides of Greenbrier Circle over the subject
property, as established, reserved, shown by instrument
recorded in Deed Book 1892, Page 542.
8. Easement for utilities and drainage facilities granted to
City of Chesapeake by Armada/Hoffler Company, dated March
12, 1981, for sewer and water systems located in Phase II,
of the subject property as established, reserved, shown by
instrument recorded April 6, 1981, in Deed Book 1915, page
393.
9. Easement granted Virginia Electric and Power Company by
Armada Hoffler Company, a Virginia corporation, dated
January 29, 1982, on Parcel 45 one hundred feet (100') in
width from Parcel 11 in a perpendicular (southerly)
direction over the subject property, as established,
reserved, shown by instrument recorded March 9, 1982, in
Deed Book 1943, Page 442.
10. Easement for utilities granted to City of Chesapeake by
Armada/Hoffler Investment Properties, Limited Partnership
dated September 26, 1984, adjacent Greenbrier Circle as
established, reserved, shown by instrument recorded October
10, 1984, in Deed Book 2071, Page 377.
11. Easement granted Lakeside Investment Associates as
established, reserved, shown by instrument recorded in Deed
Book 2117, Page 806.
12. Survey of Wilfred P. Large, Inc., dated September 24, 1984,
in Map Book 78, Page 5 discloses the following:
(a) Forty foot (40') Easement for permanent drainage
easement granted to City of Chesapeake, Virginia, Map
Book 70, Page 86;
(b) Sixty-four foot (64') impoundment easement Map
Book 70, Page 86 along southerly line;
(c) Twenty-five foot (25') ingress/egress easement for
maintenance of drainage easement in Map Book 70, Page
86 along southerly line;
(d) 5' x 5' Utility Easement Map Book 84, Page 727;
(e) Thirty foot (30') drainage easement dedicated to
the City of Chesapeake Map Book 69, page 48;
(f) Part of a one hundred foot (100') drainage
easement along the westerly line;
(g) Limits of existing impoundment easement Map Book
64, Page 22;
(h) Forty foot (40') drainage easement, Map Book 70,
page 86 along southerly line;
(i) Twenty-five foot (25') drainage easement Map Book 78,
Page 5;
13. Easement for Impoundment granted to City of Chesapeake,
Virginia as established, reserved, shown by instrument
recorded in Map Book 64, Page 22.
14. Easement for portion of one hundred foot (100') drainage
easement granted to City of Chesapeake, Virginia as
established, reserved, shown by instrument recorded in Map
Book 56, Page 46.
15. Physical Survey made by W. P. Large, Inc., dated August 1,
1989, in Map Book 95, Page 67 and 67 did not disclose any
matters adverse to the title herein, except:
(a) Fifty foot (50') building setback line for the PUD
zoning along the southern property lines of Site 45-K-
3;
(b) Twenty-five foot (25') building setback line for the
PUD zoning along the eastern property line of Site 45-
K-3;
(c) Twenty five foot (25') building setback line for PUD
zoning along northern boundary line of Site 45-K-3 and
northeastern line of Site 45-K-4;
(d) Canal, with flowing water runs along southern
property line of Site 45-K-4;
(e) Limits of existing impoundment easement Map Book
64, Page 22;
(f) Part of a one hundred foot (100') drainage easement along
the westerly line;
(g) Forty foot (40') Drainage Easement, Map Book 70, Page 86
along southerly line;
(h) Sixty-four foot (64') impoundment easement Map
Book 70, page 86 along southerly line;
(i) Twenty-five foot (25') ingress/egress easement
for maintenance of drainage easement in Map Book 70,
page 86 along southerly line;
(j) 5' x 5' utility easement on easterly line;
(k) Twenty-five foot (25') drainage easement Map Book
78, page 5;
(l) Utility easement Deed Book 2071, page 377;
16. Easement granted Chesapeake and Potomac Telephone Company by
Greenbrier Towers General Partnership, dated December 3,
1991, fifteen feet (15') adjacent to Greenbrier Circle, over
the subject property, as established, reserved, shown by
instrument recorded January 7, 1992, in Deed Book 2720, page
613.
17. Survey of Wilfred P. Large, C.L.S., dated March 11, 1981,
recorded in Plat Book 70, at Page 85, shows the following:
(a) Forty foot (40') Drainage Easement dedicated to
the City of Chesapeake;
(b) Twenty-five foot (25') Ingress and Egress
easement dedicated to the City of Chesapeake;
(c) Thirty foot (30') Drainage Easement dedicated to
the City of Chesapeake;
(d) Sixty-four foot (64') Impoundment Easement;
(e) Limits of Existing Impoundment Easement in Map
Book 64, Page 22;
(f) Forty-foot (40') Drainage Easement in Map Book
69, Page 48;
(g) Twenty-five foot (25') Drainage Easement in Map
Book 69, Page 48;
(h) Forty foot (40') Drainage Easement dedicated to
the City of Chesapeake for temporary drainage ditches;
(i) 5' x 5' Utility Easement Map Book 84, Page 727;
(j) Twenty-five foot (25') Drainage Easement dedicated to
the City of Chesapeake;
(k) Fifteen foot (15') Ingress and Egress Easement
dedicated to the City of Chesapeake;
(l) Seventy foot (70') Drainage Easement dedicated to the
City of Chesapeake.
EXHIBIT F
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED IS MADE as of this ____ day of
_________, 1997, between THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation, as "Grantor," and PARKWAY
PROPERTIES, LP, a Delaware limited partnership, as "Grantee"
("Grantor" and "Grantee" shall include all the parties to this
instrument and their heirs, legal successors and assigns where
the context requires or permits).
WITNESSETH: That the Grantor, for and in consideration of
the sum of Ten and No/100ths Dollars ($10.00) and other valuable
consideration to the Grantor in hand paid by Grantee, the receipt
and sufficiency whereof is hereby acknowledged, by these presents
hereby grants, bargains, sells, aliens, remises, releases,
conveys and confirms unto Grantee the following real property
situate in the City of Chesapeake, Virginia, described in Exhibit
A, attached hereto and by this reference incorporated herein,
together with all the tenements, hereditaments and appurtenances
thereto belonging or in anywise appertaining, including, without
limitation, all of Grantor's rights, title and interest in and to
(i) all mineral, oil, gas or other hydrocarbons, (ii) all
adjacent strips, roads and alleys and rights-of-way, (iii) all
easements and privileges, whether or not of record, and (iv) all
access, air, water and riparian (collectively, the "Property").
TO HAVE AND TO HOLD the same in fee simple forever. And
Grantor hereby covenants with Grantee that Grantor has good right
and lawful authority to sell and convey said Property, and hereby
warrants the title to said Property and will defend the same
against the lawful claims of all persons and entities owning,
holding or claiming by, through or under Grantor (except that
Grantor makes no warranty as to the disposition of interests in
the Property for the period of time preceding the time at which
Grantor took title to the Property by foreclosure, and the
special warranty provided by Grantor herein shall apply only to
the period after Grantor took title to the Property), but not
otherwise, but the foregoing is subject to those matters
described on Exhibit "B" attached hereto and made a part hereof.
IN WITNESS WHEREOF, the Grantor has caused these presents to
be executed in manner and form sufficient to bind it as of the
day and year first above written.
WITNESS the following seals and signatures.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New
Jersey corporation
By:
Name:
Title: Vice President
STATE OF ___________:
COUNTY OF _________________:
The foregoing instrument was acknowledged before me this
___________ day of ___________, 1997, by
___________________________________, a Vice President of THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation, on behalf of the corporation.
________________________________
NOTARY PUBLIC
________________________________
Name
My commission expires: _____________________________.
EXHIBIT G
Assignment and Assumption
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment")
is made and entered into as of the _____ day of ___________,
1997, by and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation (hereinafter referred to as "Seller"),
and PARKWAY PROPERTIES, LP, a Delaware limited partnership
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery
hereof, Seller has conveyed to Purchaser all that tract or parcel
of land more particularly described in Exhibit A attached hereto
and incorporated herein by reference (hereinafter referred to as
the "Real Property");
WHEREAS, the purchase and sale of the Real Property is being
made pursuant to the terms of that certain Agreement for Purchase
and Sale of Real Estate between Purchaser and Seller dated
_____________, 1997 (the "Purchase Agreement"); and
WHEREAS, pursuant to the Purchase Agreement, in connection
with such conveyance of the Real Property, Seller and Purchaser
have agreed that Seller shall transfer and assign to Purchaser
the landlord and lessor interest in and to all of the leases and
modifications, amendments, and extensions thereof set forth on
Exhibit B-1 hereto and incorporated herein by reference (the
"Leases") and all of Seller's right, title and interest under the
service contracts relating to the Real Property listed on Exhibit
B-2 attached hereto and incorporated herein by reference (the
"Service Contracts"), together with, to the extent assignable,
all right, title and interest of Seller, in and to any
construction or supplier's warranties or guaranties relating to
the improvements, letters of credit securing tenant obligations,
fixtures or personal property of Seller located on the Real
Property, any licenses and permits related to the use and
operation of the Real Property, and the use of the name
"Greenbrier Towers" as such name relates to the Real Property
(the "Other Interests"); and
WHEREAS, Seller and Purchaser have further agreed that
Purchaser shall expressly assume by executing this Assignment all
of the obligations of Seller, from and after the date hereof,
under each of the Leases and Service Contracts;
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto, Seller and Purchaser hereby
agree as follows:
1. Transfer and Assignment. Seller hereby sells,
transfers, assigns, delivers and conveys the Leases and Service
Contracts and Other Interests to Purchaser, its successors and
assigns, subject to those items set forth in Exhibit C attached
hereto and made a part hereof (the "Permitted Exceptions"),
together with all rents, issues and profits. Purchaser
acknowledges receiving a credit from Seller for security deposits
under the Leases in the amount set forth on the Closing
Statement.
2. Assumption/Indemnification. Purchaser assumes and
agrees to perform any and all obligations and duties of Seller as
"landlord" or "lessor" under the Leases arising on and after the
date hereof. Purchaser also assumes and agrees to perform any
and all obligations and duties of Seller as owner of the Real
Property under the Service Contracts arising on or after the date
hereof. Purchaser indemnifies and agrees to hold Seller harmless
from and against any defaults or other liabilities (including,
without limitation, court costs and attorneys' fees) under any of
the Leases or Service Contracts relating to circumstances which
are incurred or which accrue at any time on and after the date
hereof.
3. Seller's Representation and Warranty. Seller
represents and warrants that it is the sole owner of Landlord's
interests under the Leases and has the right to sell and assign
the same to Purchaser. Seller expressly disclaims any
representation and warranty with respect to the Other Interests.
4. Miscellaneous. This Assignment shall inure to the
benefit of, and be binding upon, the respective legal
representatives, successors, and assigns of the parties. This
Assignment shall be governed by, and construed under the laws of
the State of Virginia. This Assignment may be executed in one or
more counterparts and the signature of any party to any
counterpart may be appended to any other counterpart, all of
which counterparts when taken together shall equal one
Assignment. This document (together with any attached Exhibits
and incorporated documents, including the Purchase Agreement)
constitutes the entire agreement on the subject matter between
the parties. No modification of this Assignment shall be binding
unless in writing and signed by the party against which it is
sought to be enforced. Each party will execute and deliver all
additional documents and do all such other acts as may be
reasonably necessary to carry out the provisions and intent of
this Assignment.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
instrument to be executed under seal, on the day and year first
above written.
SELLER:
PURCHASER:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New PARKWAY PROPERTIES, LP,
Jersey corporation a Delaware limited partnership
By: By: Parkway Properties, Inc.,
Name: a __________ corporation
Title:Vice President
By:
[CORPORATE SEAL] (Name):
Title:
Address:
c/o The Prudential Realty [CORPORATE SEAL]
Group
1200 K Street, N.W. Address:
Suite 920 188 East Capitol Street
Washington, D.C. 20005 Suite 1000
Jackson, Mississippi 39205
EXHIBIT H
Bill of Sale
THIS BILL OF SALE is made and entered into as of the _______
day of ____________, 1997, between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation (hereinafter
referred to as "Seller"), and PARKWAY PROPERTIES, LP, a Delaware
limited partnership (hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser has this day acquired all of Seller's
right, title, interest and estate in and to the real property
("Real Property") described on Exhibit A, attached hereto and
made a part hereof; and
WHEREAS, the purchase and sale of the Real Property is being
made pursuant to the terms of that certain Agreement of Purchase
and Sale of Real Estate between Purchaser and Seller dated
____________, 199_ (the "Purchase Agreement"); and
WHEREAS, in connection with the sale of the Real Property,
Seller has agreed to sell to Purchaser and Purchaser has agreed
to purchase from Seller, all of Seller's right, title and
interest in and to all personal property owned by Seller, located
on the Real Property and used in connection with the operation of
all or any part of the Real Property or the Improvements (as
defined in the Purchase Agreement) or both, together with (to the
extent not constituting a portion of the Real Property) all
fixtures, furniture, furnishings, carpeting, draperies, fittings,
equipment, machinery, apparatus, building materials, appliances
and articles, located on the Real Property and used in connection
with the operation of all or any part of the Real Property or the
Improvements or both, including, without limitation, all
elevators, escalators, boilers, furnaces, heating, ventilating
and air-conditioning systems, office furnishings and equipment,
building drawings, plans and specifications, building materials
and wall partitions, sprinkler and well systems, sewerage
systems, electrical equipment, fire prevention and extinguishing
apparatus, engineering, maintenance and housekeeping supplies and
materials, mowers and edgers and other lawn maintenance equipment
and supplies, fuel and other supplies of all kinds whether used,
unused or in stock for future use in connection with the
maintenance and operation of the Real Property, which are on hand
on the date hereof, subject to such depletion and including such
resupplying as shall occur and be made in the normal course of
business (hereinafter referred to as the "Personal Property"),
excluding, however, (a) all items of personal property which are
the property of tenants, and (b) the rights of the owner of any
equipment leased pursuant to, or owned by parties other than
Seller pursuant to the Service Contracts (as defined in the
Purchase Agreement), but specifically including, but not limited
to, all of those items, if any, listed on Exhibit B attached
hereto and by this reference made a part hereof;
NOW, THEREFORE, for and in consideration of the sum of Ten
and No/100ths Dollars ($10.00) and other good and valuable
consideration in hand paid by Purchaser to Seller, the receipt
and sufficiency of which are hereby acknowledged by Seller,
Seller has granted, bargained, sold, assigned, transferred,
conveyed and delivered, and by these presents does grant,
bargain, sell, assign, transfer, convey and deliver unto
Purchaser, its successors and assigns, all of Seller's right,
title and interest of Seller in and to the Personal Property.
TO HAVE AND TO HOLD the aforesaid Personal Property unto
Purchaser, its successors and assigns forever.
Except for the warranties contained in the Purchase
Agreement, the Personal Property is being conveyed to Purchaser
in its present "as-is" condition without any representations or
warranties, express or implied, including any warranty of fitness
for a particular purpose; except that Seller hereby warrants the
title to said Property and will defend the same against the
lawful claims of all persons and entities owning, holding or
claiming by, through or under Grantor (except that Grantor makes
no warranty as to the disposition of interests in the Property
for the period of time preceding the time at which Grantor took
title to the Property by foreclosure, and the special warranty
provided by Grantor herein shall apply only to the period after
Grantor took title to the Property), but not otherwise.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale
the date and year first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF
AMERICA, a New Jersey
corporation
By:
Name:
Title: Vice President
[CORPORATE SEAL]
Address:
c/o The Prudential Realty Group
1200 K Street, N.W.
Suite 920
Washington, D.C. 20005
EXHIBIT I
Documentation Delivered to Purchaser
[TO BE COMPLETED]
EXHIBIT J
LIST OF LITIGATION
NONE
EXHIBIT K
LIST OF GOVERNMENTAL NOTICES
NONE
EXHIBIT L
FORM OF TENANT ESTOPPEL CERTIFICATE
Parkway Properties, LP
1000 One Jackson Place
188 East Capitol Street
Jackson, MS 39201
RE: Greenbrier Towers, Chesapeake, Virginia
(the "Property")
Gentlemen:
The undersigned as Tenant hereby certifies to Parkway
Properties LP, and its successors or assigns ("Purchaser"), that:
(a) It is a Tenant of a portion of the captioned Property
under a certain lease (the "Lease") as follows:
Landlord:
Tenant:
Lease Dated:
Amendment(s) Dated (if any):
Current Annual Base Rent:
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 Lease 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, except as set
forth above, 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) Except as expressly provided in the Lease, 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.
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 M
FORM OF SELLER CERTIFICATE
Parkway Properties, LP
1000 One Jackson Place
188 East Capitol Street
Jackson, MS 39201
RE: Greenbrier Towers, Chesapeake, Virginia
(the "Property")
Gentlemen:
The undersigned as Landlord hereby certifies to Parkway
Properties LP, 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 Lease 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, except as set
forth above, 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.
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 Seller's
Certificate shall terminate upon the earlier of (i) the date
that is 180 days after the date on which Purchaser acquires title
to the property from Seller, and (ii) the date on which Purchaser
receives delivery of a Tenant Estoppel Certificate in a form
reasonably acceptable to Purchaser and containing information
consistent with the information set forth herein.
By:
Name:
Title:
Date:
EXHIBIT N
LIST OF SELLER TI PROJECTS
ESTIMATED
TENANT AMOUNT COMPLETION DATE
1. Federated $4,214 10/13
2. Aerotek $65,420 10/1
FIRST AMENDMENT
TO
AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF
REAL ESTATE (this "Amendment") is made and entered into this 10th
day of November, 1997, between THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation whose address is c/o The
Prudential Realty Group, 1200 K Street, N.W., Suite 920,
Washington, D.C. 20005, Attn: Michael S. Paukstitus, Vice
President (hereinafter referred to as "Seller"), and PARKWAY
PROPERTIES LP, a Delaware limited partnership, whose address is
188 East Capitol Street, Suite 1000, Jackson, Mississippi 39205,
Attn: Jack Sullenberger (hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into and executed that
certain Agreement for Purchase and Sale of Real Estate, dated
October 13, 1997 (the "Contract"); and
WHEREAS, Seller and Purchaser desire to amend the Contract
as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements hereinafter set forth, the parties,
intending to be legally bound, do hereby agree as follows:
Definitions. The terms used herein with an initial capital
letter shall have the same meanings as set forth in the
Contract.
Amendment and Modification of Contract. The Contract is
hereby amended and modified as follows:
1. The date for the expiration of the Inspection Period set
forth in Section 5.1 of the Contract is hereby changed from
November 10, 1997 to November 15, 1997. The change provided in
this Section 2A of this Amendment shall not affect any other
dates set forth in the Contract, including, without limitation,
the outside Closing Date set forth in Section 2.2 of the
Contract.
2. The reference in Section 23.2 of the Contract to "The
Prudential Insurance Company of America, Law Department, One
Ravinda Drive, Suite 1400, Atlanta, Georgia 30346, Attn: John L.
Westney, Jr., Esq., Division Counsel" is hereby deleted in its
entirety and the following is substituted in lieu thereof. "John
Kelly, Esq., The Prudential Realty Group, 8 Campus Drive, 4th
Floor, Arbor Circle South, Parsippany, New Jersey 07054-4493".
3. No Other Changes. Except as expressly amended herein, each
and every term, condition, warranty and provision of the Contract
shall remain in full force and effect and are hereby ratified,
confirmed and approved by the parties hereto.
4. Binding Effect. This Amendment shall be governed by and
construed in accordance with the laws of the State of Virginia,
and shall be binding upon and insure to the benefit of the
parties hereto and their respective heirs, successors,
representatives and assigns. In the event of any inconsistency
or conflict between the terms of this Agreement and the Contract,
the terms hereof shall control. Time is of the essence of all of
the terms of this Agreement.
5. Modifications. This Amendment may not be changed, modified,
discharged or terminated orally in any manner other than by an
agreement in writing signed by Seller or Purchaser or their
respective heirs, representatives, successors and permitted
assigns.
6. Delivery of Facsimile Counterparts Acceptable. The parties
hereto agree that this Amendment may be executed and delivered by
facsimile counterparts and such executed facsimile counterparts
shall be binding on the parties hereto.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Agreement under seal on the day and year above
first written.
SELLER:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By:________________________________
Name:______________________________
Title:_____________________________
PURCHASER:
PARKWAY PROPERTIES LP, a Delaware
limited partnership
By: Parkway Properties General
Partners, Inc., a Delaware
corporation
By:________________________________
Name:______________________________
Title:_____________________________
SECOND AMENDMENT
TO AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF
REAL ESTATE (this "Amendment") is made and entered into this 17th
day of November, 1997, between THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation whose address is c/o The
Prudential Realty Group, 1200 K Street, N.W., Suite 920,
Washington, D.C. 20005, Attn: Michael S. Paukstitus, Vice
President (hereinafter referred to as "Seller"), and PARKWAY
PROPERTIES LP, a Delaware limited partnership, whose address is
188 East Capitol Street, Suite 1000, Jackson, Mississippi 39205,
Attn: Jack Sullenberger (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser entered into and executed that
certain Agreement for Purchase and Sale of Real Estate, dated
October 13, 1997, as amended by that certain First Amendment to
Agreement for Purchase and Sale of Real Estate, dated November
10, 1997 (as so amended, the "Contract"); and
WHEREAS, Seller and Purchaser desire to further amend the
Contract as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements hereinafter set forth, the parties,
intending to be legally bound, do hereby agree as follows:
1. Definitions. The terms used herein with an initial
capital letter shall have the same meanings as set forth in the
Contract.
2. Amendment and Modification of Contract. The Contract
is hereby amended and modified as follows:
(A) section 3.1 of the Contract is amended to delete
the following in its entirety "SIXTEEN MILLION AND
NO/100THS DOLLARS ($16,000,000.00)", and to substitute
the following in lieu thereof: "FIFTEEN MILLION NINE
HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS
($15,950,000.00)".
3. No Other Changes. Except as expressly amended herein,
each and every term, condition, warranty and provision of the
Contract shall remain in full force and effect and are hereby
ratified, confirmed and approved by the parties hereto.
4. Binding Effect. This Amendment shall be governed by
and construed in accordance with the laws of the State of
Virginia, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors,
representatives and assigns. In the event of any inconsistency
or conflict between the terms of this Amendment and of the
Contract, the terms hereof shall control. Time is of the essence
of all of the terms of this Amendment.
5. Modifications. This Amendment may not be changed,
modified, discharged or terminated orally in any manner other
than by an agreement in writing signed by Seller and Purchaser or
their respective heirs, representatives, successors and permitted
assigns.
6. Delivery of Facsimile Counterparts Acceptable. The
parties hereto agree that this Amendment may be executed and
delivered by facsimile counterparts and such executed facsimile
counterparts shall be binding on the parties hereto.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Amendment under seal on the day and year first
written.
SELLER:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By:___________________________________
Name:_________________________________
Title:________________________________
PURCHASER:
PARKWAY PROPERTIES LP,
a Delaware limited partnership
By: Parkway Properties General
Partners, Inc.,
a Delaware corporation
By:_______________________________
Title:____________________________
By:_______________________________
Title:____________________________
_______________________________
Prepared by and Return to: Tax/RPC Nos.:
0280000000450 Grantee's Address:
Glass, McCullough, Sherrill & Harrold, LLP
0280000000460 Parkway Properties, LP
1409 Peachtree Street, N.E.
188 East
Capitol Street,
Suite 1000
Atlanta, Georgia 30309 Consideration: $____________
Jackson, Mississippi 39205
Attn: Paul P. Mattingly, Esq.
Attn: Jack Sullenberger
