UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date earliest event reported): April 17, 1998
------------------
PARKWAY PROPERTIES, INC.
- -----------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Maryland 1-11533 74-2123597
- -----------------------------------------------------------------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) Number)
One Jackson Place Suite 1000
188 East Capitol Street
P. O. Box 24647
Jackson, Mississippi 39225-4647
- -----------------------------------------------------------------
Registrant's telephone number, including area code:(601)948-4091
-------------
- -----------------------------------------------------------------
(Former name or former address, if changed since last report)
FORM 8-K
PARKWAY PROPERTIES, INC.
Item 2. Acquisition or Disposition of Assets.
Proposed Sale:
On April 17, 1998, Parkway Properties, Inc. ("Parkway")
entered into an agreement to sell its investment portfolio of
four office properties located in Dallas, Texas for $53,250,000
to Triad Properties Corporation, a private real estate investment
company. The sales price represents approximately $100 per
square foot for the properties, which total approximately 534,390
net rentable square feet. The Company expects to close
the transaction in early June 1998 and record a
gain for financial reporting purposes of approximately $3.5
million on the sale in the second quarter. The Company
anticipates that the taxable gain from this transaction will be
deferred through a Section 1031 like-kind exchange and, accordingly,
no special dividend of the capital gain will be required. Although the
purchaser has deposited $250,000 non-refundable earnest money,
the transaction is subject to the purchaser's customary due
diligence procedures and closing conditions, and therefore no
assurance can be given that the sale will be completed.
Item 7. Financial Statements and Exhibits.
(b) Pro Forma Consolidated Financial Statements
The following unaudited Pro Forma Consolidated Financial
Statements are attached hereto.
Page
----
Pro Forma Consolidated Financial Statements (Unaudited) 4
Pro Forma Consolidated Balance Sheet (Unaudited) -
December 31, 1997 6
Pro Forma Consolidated Statement of Income (Unaudited) -
For the Year Ended December 31, 1997 7
Notes to Pro Forma Consolidated Financial
Statements (Unaudited) 8
(c) Exhibits
(10) (a) Purchase and Sale Agreement between Parkway
Properties LP and Triad Properties Corporation. Parkway
agrees to furnish supplementally to the Securities and
Exchange Commission on request a copy of any omitted
schedule or exhibit to this agreement.
(10) (b) Purchase and Sale Agreement between Parkway
Portfolio I LLC and Triad Properties Corporation.
Parkway agrees to furnish supplementally to the
Securities and Exchange Commission on request a copy of
any omitted schedule or exhibit to this agreement.
PARKWAY PROPERTIES, INC.
Pro Forma Consolidated Financial Statements
(Unaudited)
The following unaudited pro forma consolidated balance sheet
as of December 31, 1997 and pro forma consolidated statement of
income of Parkway Properties, Inc. ("Parkway") for the year ended
December 31, 1997 give effect to the recent purchases of Parkway
listed below for the periods stated as well as the proposed sale
of the four office buildings owned by Parkway in Dallas, Texas
(the "Dallas Portfolio"). The pro forma consolidated financial
statements have been prepared by management of Parkway based upon
the historical financial statements of Parkway and the
adjustments and assumptions in the accompanying notes to the pro
forma consolidated financial statements.
The pro forma consolidated balance sheet sets forth the
effect of Parkway's purchases since December 31, 1997, as well as
the proposed sale of the Dallas Portfolio, as if they had been
consummated on December 31, 1997.
The pro forma consolidated statement of income sets forth
the effects of Parkway's purchases of the buildings listed below
as if they had been consummated on January 1, 1997.
BUILDING DATE OF PURCHASE
Brookdale Portfolio 02/25/98
Schlumberger Building 01/21/98
Greenbrier Towers 11/25/97
Raytheon Building 11/17/97
First Little Rock Plaza 11/07/97
Hightower Centre 10/01/97
Morgan Keegan Tower 09/30/97
First Tennessee Plaza 09/18/97
Fairway Plaza 08/12/97
NationsBank Tower 07/31/97
Lakewood II 07/10/97
Sugar Grove 05/01/97
Vestavia Centre 04/04/97
Meridian 03/31/97
Charlotte Park Executive Center 03/18/97
Courtyard at Arapaho 03/06/97
Ashford II 01/28/97
Forum II & III 01/07/97
In addition to the purchases listed above, the pro forma
consolidated statement of income sets forth the effect of the
sale of 1,750,000 shares of Common Stock on January 22, 1997,
262,500 shares of Common Stock on February 19, 1997, 3,000,000
shares of Common Stock on September 24, 1997, 450,000 shares of
Common Stock on October 6, 1997, 451,128 shares of Common Stock
on February 23, 1998 and 855,900 shares of Common Stock on March
11, 1998, as well as the proposed sale of the Dallas Portfolio as if the
transactions had occurred January 1, 1997.
These pro forma consolidated financial statements may not be
indicative of the results that actually would have occurred if
the purchases, sales and/or financings had been in effect on the
dates indicated or which may be obtained in the future. The pro
forma consolidated financial statements should be read in
conjunction with the consolidated financial statements and notes
of Parkway included in its annual report on Form 10-K for the
year ended December 31, 1997.
PARKWAY PROPERTIES, INC. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED BALANCE SHEET
December 31, 1997
(Unaudited)
Pro Forma
Historical Adjustments Pro Forma
(1-5)(9)
---------- ----------- ---------
(In thousands)
Assets
Real estate related investments:
Office buildings.............$362,074 $126,129 $488,203
Land held for development.... 1,721 - 1,721
Accumulated depreciation..... (14,143) 333 (13,810)
-------- -------- --------
349,652 126,462 476,114
Land held for sale........... 4,309 - 4,309
Mortgage loans............... 1,117 - 1,117
Real estate partnership...... 323 - 323
-------- -------- --------
355,401 126,462 481,863
Interest, rents receivable
and other assets............. 12,232 - 12,232
Cash and cash equivalents...... 959 (959) -
-------- -------- --------
$368,592 $125,503 $494,095
======== ======== ========
Liabilities
Notes payable to banks..........$ 6,473 $ 80,824 $ 87,297
Mortgage notes payable
without recourse.............. 105,220 - 105,220
Accounts payable and other
liabilities................... 12,158 - 12,158
-------- -------- --------
123,851 80,824 204,675
-------- -------- --------
Stockholders' Equity
Common stock, $0.001 par value,
70,000,000 shares authorized,
9,765,176 shares issued and
outstanding on an historical
basis and 11,072,204 shares
issued and outstanding on a
pro forma basis............... 10 1 11
Additional paid-in capital...... 213,461 41,178 254,639
Retained earnings............... 31,270 3,500 34,770
-------- -------- --------
244,741 44,679 289,420
-------- -------- --------
$368,592 $125,503 $494,095
======== ======== ========
See accompanying notes
PARKWAY PROPERTIES, INC. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
(Unaudited)
Pro Forma
Historical Adjustments(6-9)ProForma
---------- -------------- --------
(In thousands, except per share data)
Revenues
Income from office properties...$45,799 $35,994 (a) $81,793
Income from other real estate
properties.................... 722 - 722
Interest on mortgage loans...... 63 - 63
Management company income....... 539 - 539
Interest on investments......... 373 (373) -
Dividend income................. 388 - 388
Deferred gains and other income. 203 - 203
------- ------- -------
48,087 35,621 83,708
------- ------- -------
Expenses
Office properties
Operating expense............. 19,697 15,674 (a) 35,371
Interest expense:
Contractual................. 5,486 2,849 (b) 8,335
Amortization of loan cost... 95 - 95
Depreciation and amortization. 6,033 5,647 (a) 11,680
Minority interest............. 59 - 59
Other real estate properties
Operating expense............. 462 - 462
Interest expense on bank notes:
Contractual................... 810 3,860 (c) 4,670
Amortization of loan costs.... 187 - 187
Management company expense...... 362 - 362
General and administrative...... 3,312 - 3,312
------- ------- -------
36,503 28,030 64,533
------- ------- -------
Income before gains............. 11,584 7,591 19,175
------- ------- -------
Gain on sales
Gain on real estate held for
sale and mortgage loans....... 2,907 - 2,907
------- ------- -------
Net income......................$14,491 $ 7,591 $22,082
======= ======= =======
Net income per share:
Basic. ..................... $ 2.05 $ 1.99(6)
Diluted..................... $ 2.01 $ 1.97(6)
Weighted average shares outstanding:
Basic....................... 7,078 11,072(6)
Diluted..................... 7,214 11,208(6)
See accompanying notes.
PARKWAY PROPERTIES, INC.
Notes to Pro Forma Consolidated Financial Statements
(Unaudited)
1. On January 21, 1998, the Company purchased the Schlumberger
Building (formerly known as Veritas Technology Center)
(Schlumberger) in Houston, Texas for $12,200,000. Schlumberger
is a five-story office building comprising approximately 155,324
net rentable square feet located in the Energy Corridor submarket
of West Houston. The purchase was funded with advances under bank
lines of credit.
2. On February 23, 1998, the Company completed the sale of
451,128 shares of Common Stock to a unit investment trust under
its existing shelf registration with net proceeds to the Company
of $14,231,000.
3. On February 25, 1998, the Company purchased the 13-building
Brookdale Portfolio for $163,014,000. The portfolio consists of
approximately 1,468,138 net rentable square feet.
4. On March 11, 1998, the Company completed the placement of
855,900 shares of Common Stock to certain institutional investors
with net proceeds to the Company of $26,948,000.
5. The Company entered into an agreement to sell the Dallas Portfolio
for $53,250,000. The Company expects to close
this transaction in early June 1998 and record a gain for
financial purposes of approximately $3.5 million on the
sale. Although the purchaser has deposited $250,000 non-
refundable earnest money, the transaction is subject to the
purchaser's customary due diligence procedures and closing
conditions, and therefore no assurance can be given that the
sale will be completed as contemplated.
6. The pro forma adjustments to the historical Consolidated
Statement of Income for the year ended December 31, 1997 set
forth the effects of Parkway's purchases of the following
buildings as if they had been consummated on January 1,
1997.
BUILDING DATE OF PURCHASE
Brookdale Portfolio 02/25/98
Schlumberger Building 01/21/98
Greenbrier Towers 11/25/97
Raytheon Building 11/17/97
First Little Rock Plaza 11/07/97
Hightower Centre 10/01/97
Morgan Keegan Tower 09/30/97
First Tennessee Plaza 09/18/97
Fairway Plaza 08/12/97
NationsBank Tower 07/31/97
Lakewood II 07/10/97
Sugar Grove 05/01/97
Vestavia Centre 04/04/97
Meridian 03/31/97
Charlotte Park Executive Center 03/18/97
Courtyard at Arapaho 03/06/97
Ashford II 01/28/97
Forum II & III 01/07/97
(a) The pro forma adjustments to the Consolidated Statement of
Income are detailed below by property for the year ended
December 31, 1997.
Revenue Expenses
----------- ---------------------------
Income From Real Estate Owned
Real Estate Operating Depreciation
Properties Expense Expense*
----------- ------------ ------------
Purchases:
Charlotte Park $ 505,000 $ 208,000 $ 69,000
Ashford II 54,000 37,000 4,000
Courtyard at
Arapaho 366,000 164,000 58,000
Meridian 354,000 123,000 59,000
Vestavia 240,000 91,000 26,000
Sugar Grove 309,000 165,000 43,000
Lakewood II 977,000 447,000 129,000
NationsBank Tower 2,392,000 1,003,000 271,000
Fairway Plaza 859,000 379,000 94,000
First Tennessee
Plaza 4,253,000 2,080,000 477,000
Morgan Keegan
Tower 3,327,000 1,665,000 618,000
Hightower Centre 833,000 333,000 113,000
Raytheon Building 2,417,000 1,072,000 315,000
First Little Rock 1,298,000 517,000 191,000
Greenbrier Towers 1,913,000 835,000 330,000
Schlumberger 2,260,000 817,000 275,000
Brookdale Portfolio 20,543,000 9,108,000 3,668,000
Sale of Dallas Portfolio (6,906,000) (3,370,000) (1,093,000)
----------- ----------- ----------
$35,994,000 $15,674,000 $ 5,647,000
=========== =========== ===========
*Depreciation is provided by the straight-line method over
the estimated useful lives of the buildings (40 years).
(b) Pro forma interest expense on real estate owned reflects the
non-recourse debt placed on certain buildings acquired in 1996
and 1997 and debt assumed upon purchase at the actual amounts and
rates by property as if in place January 1, 1997 and is detailed
below.
Property/Placement Year Ended
Date/Rate Debt 12/31/97
------------------ ----------- ----------
Lakewood II*
7/97 8.08% $ 6,910,000 $ 294,000
BB&T
11/97 7.3% 15,000,000 958,000
Raytheon Building*
11/97 8.125% 7,958,000 566,000
First Tennessee
Plaza
12/97 7.17% 15,000,000 1,031,000
----------
$2,849,000
==========
*Assumed in purchase.
(c) The pro forma effect of the building purchases, the
placement of non-recourse debt, the sales of Common Stock
and the proposed sale of the Dallas portfolio on interest
expense on notes payable to banks was $3,860,000 for the
year ended December 31, 1997.
7. The pro forma basic and diluted earnings per share for the
year ended December 31, 1997 reflect the sale of 1,750,000
shares of Common Stock on January 22, 1997, 262,500 shares
of Common Stock on February 19, 1997, 3,000,000 shares of
Common Stock on September 24, 1997, 450,000 shares of Common
Stock on October 6, 1997, 451,128 shares of Common Stock on
February 23, 1998 and 855,900 shares of Common Stock on
March 11, 1998.
8. No income tax expenses were provided because of the
Company's net operating loss carryover and status as a REIT.
9. On March 31, 1998, the Company purchased the SouthTrust Bank Building
in St. Petersburg, Florida for $17,440,000. The SouthTrust Bank Building
is a seventeen-story, 195,627 net rentable square foot office building
overlooking Tampa Bay in downtown St. Petersburg. The purchase was
funded with advances under bank lines of credit. None of the pro forma
information contained in this 8-K gives effect to the purchase of the
SouthTrust Bank Building or the indebtedness incurred in connection with
such purchase.
FORM 8-K
PARKWAY PROPERTIES, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
DATE: April 22, 1998 PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Senior Vice President,
Chief Financial Officer,
Treasurer and Secretary
PURCHASE AND SALE AGREEMENT
between
PARKWAY PORTFOLIO I LLC
and
TRIAD PROPERTIES CORPORATION
APRIL 17, 1998
TABLE OF CONTENTS
ARTICLE 1PURCHASE AND SALE
1.1 Purchase and Sale 1
1.2 Real Property Identified 1
1.3 Personal Property Identified 2
1.4 Definition of Parcel, Parcels, Building and Buildings
3
ARTICLE 2 PURCHASE PRICE
2.1 Escrow Deposit 3
2.2 Additional Escrow Deposit 4
2.3 Purchase Price 4
2.4 Payment of Purchase Price 4
ARTICLE 3 ESCROW; CLOSING
3.1 Escrow Agent 4
3.2 Closing Date 4
3.3 Closing Costs 4
3.4 Prorations 5
ARTICLE 4 TITLE MATTERS
4.1 Title Report/Commitment for Title Insurance 7
4.2 Surveys 7
4.3 Title Defects 8
4.4 Title Insurance 8
4.5 "Aggregate" Title Policy 8
ARTICLE 5 INFORMATION SCHEDULES
5.1 Information Schedules 9
ARTICLE 6 INSPECTION
6.1 Inspection Period 10
6.2 Right of Termination 11
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
7.1 Purchaser's Representations and Warranties 11
7.2 Seller's Representations and Warranties 13
ARTICLE 8 COVENANTS
8.1 Covenants of Seller 15
8.2 Mutual Release 17
ARTICLE 9 CLOSING MATTERS
9.1 Conditions to Purchaser's Obligations 17
9.2 Conditions to Seller's Obligations 18
9.3 Closing Deliveries 18
9.4 Purchaser's Obligation to Timely
Deliver Closing Deliveries 20
9.5 Knowledge as a Defense 20
9.6 Limitations on Liability 20
9.7 Knowledge Standard 20
9.8 Closing Contingent on Courtyard at Arapaho
and Fairway Plaza Closings 21
ARTICLE 10DEFAULTS AND REMEDIES
10.1 Damages Against Purchaser 21
10.2 Damages against Seller 21
ARTICLE 11RISK OF LOSS
11.1 Risk of Loss 22
11.2 Minor Damage 22
11.3 Major Damage 23
11.4 Definition of Major Loss or Damage 23
ARTICLE 12GENERAL PROVISIONS
12.1 Brokerage Commission 23
12.2 Confidentiality 23
12.3 Entire Agreement 24
12.4 Further Assurances 24
12.5 Modification, Waiver 24
12.6 Severability 24
12.7 Successors 24
12.8 Assignment 24
12.9 Survival of Representations and Warranties 25
12.10 Attorneys' Fees 25
12.11 Time 25
12.12 No Other Inducement 25
12.13 Computation of Time Periods 25
12.14 Notices 25
12.15 Headings 26
12.16 Exhibits 26
12.17 Counterparts 27
12.18 Governing Law 27
12.19 Effective Date 27
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is made and
entered into as of the Effective Date (as defined in Section ),
by and between Parkway Portfolio I LLC, a Mississippi limited
liability company ("Seller") and Triad Properties Corporation, an
Alabama corporation, ("Purchaser");
WHEREAS, Seller is the owner of certain parcels of land
located in Addison, Texas and Dallas, Texas, which are legally
described on Exhibits and attached hereto (the "Land"); and
WHEREAS, there are certain real property improvements in, on
or under the Land (collectively, the "Improvements") (the Land
and Improvements are collectively referred to herein as the "Real
Property"); and
WHEREAS, Seller owns certain items of tangible and
intangible personal property listed on Exhibit attached hereto
(collectively "Personal Property") (the Real Property and
Personal Property are collectively referred to herein as the
"Assets"); and
WHEREAS, Seller desires to sell, transfer, assign and convey
to Purchaser, and Purchaser desires to purchase and acquire from
Seller, all of Seller's right, title and interest in and to the
Land, Improvements and the Personal Property pursuant to the
terms and conditions set forth herein (the "Transaction"); and
NOW, THEREFORE, in consideration of the premises, and the
mutual covenants, agreements, representations and warranties
contained in this Agreement, and intending to be legally bound,
Purchaser and Seller agree as follows:
I.
ARTICLE
PURCHASE AND SALE
0.1 Purchase and Sale. Subject to the provisions of, and on the
basis of the covenants, agreements, representations and
warranties contained in this Agreement, Seller agrees to sell,
transfer, assign and convey all of its right, title and interest
in and to the Assets to Purchaser, and Purchaser agrees to
purchase and acquire the Assets from Seller.
0.2 Real Property Identified. As used herein, the Real
Property shall mean:
(a) Description of Land. The real estate
legally described in Exhibits and attached hereto.
(b) Description of Improvements. The
Improvements, all building materials, fixtures, heating,
ventilation and air conditioning systems, canopies, sidewalks,
walkways, planters and landscape materials, and all other real
property improvements owned by Seller and located in, on or under
the Land or related to, used or available for use in the
ownership, conduct, operation or maintenance of the Real
Property.
(c) Rights and Appurtenances. All and
singular, the rights and appurtenances pertaining to the Land,
including, but not limited to, any right, title and interest of
Seller in and to adjacent streets, roads, alleys, easements and
rights-of-way.
0.3 Personal Property Identified.
(a) Description of Tangible Personal Property.
The tangible Personal Property consists of all tangible personal
property located on or attached to the Real Property and owned by
Seller and used or available for use by Seller in the ownership,
operation and/or management of the Real Property and in the
repair, operation and maintenance of the Assets, including,
without limitation, all of Seller's right, title and interest in
all equipment, tools, machinery, furniture, furnishings, office
and other supplies, inventories, spare parts and other tangible
personal property located on or attached to the Real Property.
The tangible Personal Property specifically includes all tangible
personal property located in any management office at the real
property owned or leased by Seller. The material tangible
Personal Property is generally described on Exhibit attached
hereto.
(b) Description of Intangible Personal
Property. The intangible Personal Property consists of all
material intangible personal property owned by Seller and used by
Seller in connection with the operation and/or management of the
Real Property and in the repair, operation and maintenance of the
Assets and includes, without limitation, (i) all assignable
guarantees and warranties (including those pertaining to
construction of the Improvements, if any); (ii) all assignable
licenses and other permits relating to the use and ownership of
the Assets or the operation thereof; (iii) all assignable
contracts, agreements and contract rights; (iv) rights, if any,
to use any trade names associated with the Assets on a non-
exclusive basis (Seller makes no representation or warranty with
respect to its right to use such names and has not registered or
filed an assumed name certificate for the same in any manner);
and (v) all leases, tenancies and rental agreements or
arrangements (collectively, the "Leases") with tenants, and
security, damage and other deposits and payments which are set
forth on Exhibit with respect to the Leases and not applied by
Seller in accordance with the terms of the Leases prior to the
Closing Date (collectively, the "Deposits").
0.4 Definition of Parcel, Parcels, Building and Buildings.
(a) Building(s). The terms "Building" and
"Buildings" as used herein shall mean and refer to either one of
or both of the Belvedere Building and/or the Atrium at Bent Tree
Building as the context may require.
(b) Belvedere Building. The term "Belvedere
Building" shall mean and refer to the Building located on the
Land in Addison, Texas and more particularly described on Exhibit.
(c) Atrium at Bent Tree Building. The term
"Atrium at Bent Tree Building" shall mean and refer to the
Building located on the Land in Dallas, Texas and more
particularly described on Exhibit .
(d) Parcel(s). The term "Parcel" and "Parcels"
as used herein shall mean and refer to either one of or both of
the Belvedere Parcel and/or The Atrium at Bent Tree Parcel as the
context may require.
(e) Belvedere Parcel. The term "Belvedere
Parcel" shall mean and refer to the Land legally described on
Exhibit and the Improvements located thereon.
(f) Atrium at Bent Tree Parcel. The term
"Atrium at Bent Tree Parcel" shall mean and refer to the Land
legally described on Exhibit and the Improvements located
thereon.
1 ARTICLE
PURCHASE PRICE
1.1 Escrow Deposit. Purchaser shall within two (2) business days
following the Effective Date deliver to Chicago Title Insurance Company,
National Accounts Division, Attention: Ellen Schwab, Telephone:
________, Facsimile:_______, Attention: __________ or such other
national title company as selected by Seller and approved by
Purchaser ("Title Company") the sum of $150,000.00 ("Initial
Escrow Deposit") in lawful funds of the United States of America.
Except as contemplated by Sections and , the Initial Escrow
Deposit and all interest thereon shall be non-refundable to
Purchaser but shall be credited toward the Purchase Price upon
Closing (defined below). Title Company is hereby instructed to
invest the Initial Escrow Deposit in an interest bearing account
in the name of Purchaser. Purchaser's taxpayer identification
number is __________. Purchaser and Seller hereby acknowledge
and agree that, at Closing all accrued interest on the Initial
Escrow Deposit shall be credited to Purchaser, provided, however,
in the event that this Transaction does not close under
circumstances where Seller is entitled to the Escrow Deposit,
then all accrued interest thereon shall be delivered to Seller.
1.2 Additional Escrow Deposit. Within one (1) business day
following the expiration of the Inspection Period (defined
below), if Purchaser has not elected to terminate this Agreement
in accordance with Article below, Purchaser shall deposit an
additional $150,000.00 (the "Additional Escrow Deposit") which
shall, together with the Initial Escrow Deposit constitute the
"Escrow Deposit". In the event Purchaser fails to deliver the
Additional Escrow Deposit pursuant to the terms hereof, then the
Initial Escrow Deposit shall be delivered to Seller and neither
party shall have any further obligation to the other. Upon
delivery of the Additional Escrow Deposit, the entire Escrow
Deposit shall be non-refundable to Seller except as contemplated
by Sections and .
1.3 Purchase Price. Seller agrees to sell, and Purchaser agrees to
purchase, the Assets for a total purchase price equal to Twenty Seven
Million Five Hundred Fifty Thousand and 00/100 Dollars
($27,550,000) ("Purchase Price"), plus or minus prorations and
other adjustments provided by this Agreement, upon and in
accordance with the terms and conditions of this Agreement. The
Purchase Price shall be allocated among the Parcels pursuant to
Exhibit .
1.4 Payment of Purchase Price. The Purchase Price
(of which the Escrow Deposit may be a part), plus or minus
prorations, shall be paid in immediately available funds through
escrow to Seller on the Closing Date (defined below).
2 ARTICLE
ESCROW; CLOSING
2.1 Escrow Agent.
Title Company is authorized and instructed to act as escrow agent
pursuant to the terms of this Agreement. By execution of the
acknowledgment attached hereto, Title Company acknowledges
receipt of the Initial Escrow Deposit. Title Company shall
promptly notify both Purchaser and Seller upon receipt of the
Additional Escrow Deposit. Purchaser and Seller shall execute
any additional escrow instructions reasonably required by Title
Company to complete the Transaction provided that such
instructions are not inconsistent with the terms of this
Agreement.
2.2 Closing Date.
Closing shall be on the fifteenth (15th) day after the
expiration of the Inspection Period (hereafter referred to as
"Closing Date" or "Closing"), unless a different date is
determined by the mutual agreement of Seller and Purchaser. If
Seller elects to extend the closing under that certain Purchase
and Sale Agreement of even date herewith between Purchaser and
Parkway Properties LP (the "Courtyard Agreement"), Purchaser may
at its option proceed to close the transaction contemplated
hereby.
2.3 Closing Costs.
(a) Seller's Payments. Seller shall pay the
cost and expenses, if any, of (i) the title search and title
insurance commitment; (ii) fees for recording the deed conveying
the Real Property, including any stamp, documentary or transfer
taxes; (iii) the surveys; (iv) the premium for a single Owner's
standard form title policy in the aggregate amount of $53,250,000
which shall cover the Real Property and the "Real Property" under
the Courtyard Agreement (but not for any modifications,
endorsements or deletions with respect thereto, including without
limitation, survey endorsements) not to exceed $155,913.50; and
(v) one-half of any escrow fees charged by Title Company.
(b) Purchaser's Payments. Purchaser shall pay
and the cost and expenses of: (i) any endorsements, modifications
or deletions to the title insurance policies (including, without
limitation, deletion of the survey exception); and (ii) one-half
of any escrow fees charged by title company.
(c) Other Costs. Each party will pay all its
own expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including, without limitation
(i) all costs and expenses stated herein to be borne by a party,
and (ii) all of their respective consulting, accounting, legal
and appraisal fees.
2.4 Prorations. Thefollowing prorations shall be made effective
as of the Closing Date and, to the extent possible, shall be made
tentatively at Closing:
(a) Proration Date. All prorations shall be
made as of 12:01 a.m., according to the time zone in which the
Assets are located, on the Closing Date, and, subject to the
provisions of Section , as if Purchaser were vested with title to
the Assets during the entire Closing Date.
(b) Rents. All rents under the Leases for the
month in which Closing occurs which are actually received by
Seller shall be prorated as of the Closing Date. All advance
payments of rents, other than for the month in which Closing
occurs, and all Deposits shall be paid by Seller to the Purchaser
at Closing. Delinquent rents and additional rents owed for the
month during which Closing occurs (for the pro rata period of
Seller's ownership of such Property) or prior to the month during
which the Closing takes place shall remain the property of
Seller, and Purchaser, without cost to Purchaser, shall use
reasonable efforts (not to include commencing any eviction action
or other litigation to collect such delinquency) to collect such
delinquent rents and additional rents for the benefit of Seller
after Closing and shall cooperate with Seller in the collection
of any such delinquent rents and additional rents, but shall not
be obligated to collect any such delinquency. Seller shall
retain the right to pursue all remedies (excluding eviction of
tenants) against tenants from whom Purchaser is unable to collect
such delinquent rents and additional rents despite diligent
efforts. After the Closing, Seller will cause to be paid or
turned over to Purchaser all rents, if any, received by Seller
after Closing and attributable to any period following the
Closing. All rent received by Purchaser after the Closing Date
shall be applied first to current rentals and then to delinquent
rentals in the inverse order of maturity. Purchaser shall cause
to be paid or turned over to Seller all rents received by
Purchaser after Closing and attributable to any period prior to
Closing, subject to the provisions of the immediately preceding
sentence.
(c) Deposits. After the Closing, Purchaser
will assume full responsibility for all Deposits which are
itemized by Seller and credited to Purchaser at the Closing.
(d) Taxes. Ad Valorem and personal property
taxes and assessments against the Assets for the year of Closing,
including, without limitation, assessments associated with
declaration of covenants and association dues, if any, shall be
prorated between Seller and Purchaser as of the Closing Date. If
actual taxes are unknown, they shall be prorated based upon the
best available information from the local taxing authority. To
the extent that the actual taxes for the current year differ from
the amounts so apportioned at Closing, Seller and Purchaser shall
make all necessary adjustments by appropriate payments between
themselves following Closing. Provided, however, Seller shall
not be required to make payments to Purchaser for any tax
proration to the extent such payment is payable by or chargeable
to tenants. Subject to any applicable proration, all such taxes
and assessments which are due and payable on or before the
Closing Date shall be paid in full by Seller prior to Closing.
(e) Utilities. Charges for utilities serving
the Assets shall be determined as of the day preceding the
Closing Date. Final readings and final billings for utilities
will be made if possible as of the day preceding Closing, in
which event no proration will be made at Closing with respect to
utility bills. If final readings and final billings for
utilities are not possible, the parties shall prorate the utility
bills based on the most recent prior months' utility bills, and
upon receipt of the actual utility bills which include the
Closing Date and to the extent that the amounts so apportioned at
Closing differ, Seller and Purchaser shall make all necessary
adjustments by appropriate payments between themselves following
Closing. All utility deposits of Seller shall belong to Seller.
(f) Contract Charges. Charges with respect to
service contracts transferred and assigned to Purchaser shall be
prorated as of the Closing Date. Payments for obligations under
leases of tangible Personal Property transferred and assigned to
Purchaser will be prorated as of the Closing Date. To the extent
not reflected in the closing statements evidencing the
Transaction, Purchaser and Seller agree to adjust between
themselves outside of Closing any amounts which are the
responsibility of the other party pursuant to this subsection.
(g) Miscellaneous Operating Income and Expense.
Except as otherwise provided herein, all other income or
operating expenses relating to the Assets will be prorated at the
Closing, effective as of the date of Closing.
(h) Leasing Costs. Seller shall be responsible
for paying all costs, including, without limitation, tenant
improvements and leasing commissions associated with any new
lease, or any expansion, modification or renewal of any existing
Lease, executed by Seller or exercised by a tenant prior to the
Effective Date. If Purchaser acquires the Assets, Purchaser
shall be responsible for paying all costs (including, without
limitation, leasing commissions and tenant improvements costs)
associated with all leases or lease expansions, modifications or
renewals executed after the Effective Date to which Purchaser has
consented or has been deemed to consent or associated with any
lease expansion or renewal occurring after the Effective Date
pursuant to the existing provisions of the applicable Lease.
Seller shall receive a credit at Closing for any such costs
previously paid by Seller which are obligations of Purchaser
hereunder. If, for any reason, Purchaser does not purchase the
Assets, Purchaser shall not be responsible or liable to any
entity with respect to any such costs or leasing commissions.
(i) Tenant Additional Rents. Seller and
Purchaser acknowledge that certain tenants of the Buildings may
owe payments after the Closing, attributable to percentage
rentals, expense escalation reimbursements, operating expense
pass-throughs, and common area maintenance reimbursements. The
parties further agree to prorate any such payments, effective as
of the date of the Closing, as they are received by Purchaser
after the Closing.
The agreements with respect to prorations in this Section
shall survive Closing. Final settlement of all prorated items,
except real estate taxes if final determination thereof is not
possible, delinquent rentals if collected, and tenant additional
rents, shall occur on or before 60 days after the Closing Date,
or on the next business day if the 60th day is a Saturday, Sunday
or legal holiday. Liabilities accruing prior to the Closing Date
shall be the responsibility of Seller. Liabilities accruing on
or after the Closing Date shall be the responsibility of
Purchaser.
3 ARTICLE
TITLE MATTERS
3.1 Title Report/Commitment for Title Insurance
Title Report/Commitment for Title Insurance Title
Report/Commitment for Title Insurance. Seller hereby instructs
Title Company to prepare and deliver to Purchaser, Seller and the
surveyors described below, at Seller's expense, as soon as
possible after the Effective Date an "aggregate" title commitment
issued by Title Company together with legible copies of all
referenced exceptions (the "Title Commitment") covering the
Parcels and the "Parcels" as defined in the Courtyard Agreement
(the "Courtyard Parcels"), showing all matters affecting title to
the Parcels and binding Title Company to issue to Purchaser at
Closing an owner's policy of title insurance on a standard non-
residential Texas form of policy in the full amount of the
Purchase Price and the "Purchase Price" under the Courtyard
Agreement pursuant to Section hereof. Seller and Purchaser
further instruct Title Company to deliver to such parties copies
of all instruments referenced in Schedule B, Section II of the
Title Commitment.
3.2 Surveys Surveys Surveys. Seller shall,
within two (2) business days of the Effective Date, order surveys
or updates to surveys to be delivered to Seller, Purchaser and
Title Company. Such surveys shall be land title surveys of the
Land and of the Improvements situated thereon dated no earlier
than January 1, 1998, situated thereon (the "Surveys"), each
prepared by a surveyor licensed by the State in which the Assets
are located and certified to Purchaser, Seller and Title Company
and such other parties as Purchaser may designate by such
surveyors. Seller shall use diligent efforts to cause the
surveys to be delivered no later than ten (10) business days
after the Effective Date.
3.3 Title Defects Title Defects Title
Defects. Within seven (7) days after receipt of the later of the
Title Commitment and the Survey, Purchaser shall notify Seller in
writing ("Purchaser's Notice") of any title matters to which
Purchaser objects (the "Title Defects"). Any matter disclosed in
the Title Commitment or Survey and not objected to by Purchaser
or subsequently waived by Purchaser shall be deemed a permitted
exception ("Permitted Exception"). Seller shall notify
Purchaser of Seller's decision not to cure any Title Defect
within five (5) days after receipt of Purchaser's Notice;
provided, however, Seller shall remove all monetary liens, if
any. Seller's failure to respond shall be deemed a decision by
Seller not to cure any Title Defect. Within five (5) days of
Seller's election not to cure certain Title Defects, Purchaser
may elect to waive such Title Defects or terminate this Agreement
in which event Seller shall be entitled to the Escrow Deposit and
all interest accrued thereon. Purchaser's failure to respond
shall be deemed a decision by Purchaser to waive the Title
Defects to which Seller decides not to cure. If the Title
Defects, that Seller elected to cure, are not cured by Seller or
waived by Purchaser on or before the Closing Date then Purchaser
may (i) elect to waive the uncured Title Defects, or (ii)
terminate this Agreement in which event Purchaser shall be
entitled to receive the Escrow Deposit and all interest accrued
thereon. Without regard to the foregoing, in the event of an act
or omission of Seller which has a material adverse effect on
title to the Parcels after the effective date of the Title
Commitment, Purchaser may terminate this Agreement and receive
the Escrow Deposit and all interest accrued thereon.
3.4 Title Insurance Title Insurance Title
Insurance. At Closing, Seller and Purchaser shall instruct Title
Company to issue a final update to the Title Commitment in which
the "GAP" exception has been deleted, binding Title Company to
issue to Purchaser an "aggregate" owner's policy of title
insurance (the "Title Policy") covering the Parcels in the full
amount of the Purchase Price and the "Purchase Price" under the
Courtyard Agreement. The Title Policy shall be Texas standard
form owner's policy of title insurance subject only to: (a)
current non-delinquent real estate taxes and assessments; (b)
Permitted Exceptions; (c) title exceptions caused by acts or
omissions of Purchaser; and (d) with Schedule B, Item 1 marked
"none of record" or reflecting only those restrictive covenants
which are Permitted Exceptions, Schedule B, Item 5 limited to the
year in which Closing occurs and subsequent years, Schedule B,
Item 6 deleted, and with none of the matters on Exhibit "C"
listed as exceptions, and with Schedule B, Item 2 amended to read
"shortages in area only" upon Purchaser's payment of a 15%
additional premium.
3.5 "Aggregate" Title Policy Aggregate Title
Policy Aggregate Title Policy. Purchaser acknowledges that
certain cost savings will result from the issuance by the Title
Company of one (1) multi-property title insurance policy covering
both the Real Property to transferred pursuant to this Agreement
and certain real property to be purchased from Seller (or related
entities) pursuant to the Courtyard Agreement. Accordingly, if
Seller extends the Closing under the Courtyard Agreement and
Purchaser elects to proceed to Close this transaction, Purchaser
hereby agrees that Purchaser and Seller will at Closing instruct
the Title Company that, notwithstanding Closing of this
transaction, the Title Company shall have no obligation to
deliver the Title Policy prior to the day that is the business
day after Closing of both agreements and which precedes the
expiration date of the Title Commitment (the "Expiration Date").
Should the acquisition of the Parcels fail to close on or before
the Expiration Date, Purchaser and Seller shall in good faith
request a one time re-issuance of the Title Commitment extending
the expiration of the Title Commitment for an additional sixty
(60) day period (the "Extended Expiration Date"). In the event
such request is rejected by the Title Company, Seller and
Purchaser shall instruct the Title Company to deliver the Title
Policy to Purchaser no later than the Expiration Date. If the
request for the re-issuance of the Title Commitment is granted,
then the Title Company shall be instructed to deliver the Title
Policy to Purchaser on that day that is the earlier to occur of
(i) the closing of the acquisition under the Courtyard Agreement
or (ii) the Extended Expiration Date.
4 ARTICLE
INFORMATION SCHEDULES
4.1 Information Schedules Information
Schedules Information Schedules. Seller has delivered or will
deliver within two (2) business days after the Effective Date, or
make available for inspection by Purchaser, without
representation or warranty of any type other than as expressly
provided in Section hereof, copies of all schedules and
documents referred to in this Agreement ("Information
Schedules"), including the following schedules and other
information described below:
(a) Leases. True and complete copies, of all
Leases listed on the rent roll and all amendments and
modifications to all Leases. Seller will make the tenant files
relating to the Leases available for inspection by Purchaser at
either the Buildings or its local property manager's office, to
the extent such are in Seller's or its agent's possession.
(b) Contracts. Copies of all written service,
maintenance, management and other agreements, equipment leases,
contracts and arrangements relating or pertaining to the Assets
(collectively "Contracts") which are identified on the Contracts
Schedule which is attached hereto as Exhibit .
(c) Permits. Copies of all current business or
other licenses, permits, certificates of occupancy,
authorizations and other evidences of consent relating to or
affecting the Assets (collectively "Permits") of or from any
governmental authority, which are in Seller or its agents'
possession.
(d) Property Taxes/Utility Bills. Copies of
the tax statements and bills (both real estate and personal
property taxes) and all utility statements and bills with respect
to the Assets for all prior years which are in Seller's
possession.
(e) Warranties. Copies of all material third
party warranties and guaranties, including any warranties
relating to equipment, structures, roof, landscaping, parking lot
or parking lot surfaces, if any, which are in effect with respect
to or which benefit any portion of the Assets.
(f) Operating Statements. As soon as
available, copies of all operating statements for the Assets for
the period beginning upon Seller's acquisition of the applicable
Parcel through March 31, 1998 and all prior operating statements
of the previous owners of the Parcels which are in Seller's
possession.
(g) Plans. Copies of all construction plans,
specifications, diagrams and schematics of the Real Property and
Improvements in Seller's possession or control will be made
available to Purchaser at the location of the Assets.
(h) Third Party Reports. Copies of any
environmental, structural or mechanical reports, or any
appraisals in Seller's possession.
(i) Zoning Letters. Copies of any letters
obtained by Seller upon its acquisition of the Parcels from
governmental authorities regarding local zoning requirements.
Notwithstanding the fact that Seller is furnishing all such
information, Purchaser acknowledges and agrees that Seller makes
no representation or warranty, express or implied, as to the
accuracy or completeness of any of such information, reports,
plans, statements or appraisals and is providing them to
Purchaser solely as an accommodation to Purchaser. Provided,
however, this disclaimer of representation and warranties shall
not alter or otherwise diminish in any manner the express
representations and warranties of Seller set forth under Section
.
5 ARTICLE
INSPECTION
5.1 Inspection Period.
During the period beginning upon the
Effective Date and ending at 5:00 p.m., central time, May 18,
1998 (such period of time hereinafter referred to as the
"Inspection Period"), Purchaser and/or its attorneys, consultants
or employees ("Authorized Representatives") shall have the right
to: (i) make a physical inspection of the Assets subject to the
rights of tenants, (ii) examine the financial and operating books
and records relating to the Assets maintained by or for the
benefit of Seller, (iii) interview tenants of the Improvements,
and (iv) conduct such non-destructive physical engineering,
feasibility and other studies and tests on or of the Assets as
Purchaser considers to be appropriate. Subject to Seller's prior
written approval of the scope and nature of any Phase 2
environmental site assessment, which shall not be unreasonably
withheld, Purchaser may conduct a Phase 2 environmental site
assessment of the Assets if recommended by Purchaser's
environmental consultant. Purchaser and/or Purchaser's
Authorized Representatives may also copy any documents referred
to or described in the Information Schedules but not required to
be provided to Purchaser as part of any such schedule.
Notwithstanding the foregoing, Purchaser hereby agrees to use
commercially reasonably efforts not to unreasonably interfere
with Seller's operations at the Improvements or interfere with
any tenant's operations at the Improvements, and the scheduling
of any inspections, interviews, and/or testing shall take into
account the timing and availability of access to tenant's
premises, subject to and in accordance with tenants' rights under
the Leases or as tenants may otherwise agree. Purchaser shall at
all times conduct such due diligence in compliance with
applicable laws and the terms of any leases of the Improvements,
and in a manner so as to not cause undue damage, loss, cost or
expense to Seller, the Improvements or the tenants of the
Improvements, and Purchaser shall promptly restore the
Improvements to their condition immediately preceding such
inspections and examinations and shall keep the Improvements free
and clear of any mechanic's liens or materialmen's liens in
connection with such inspections and investigations. Seller
shall have the right, at its option, to cause a representative of
Seller to be present at all such inspections, reviews and
examinations. Purchaser shall keep all information or data
received or discovered in connection with such due diligence (the
"Confidential Information") strictly confidential; provided,
however, Purchaser may disclose such Confidential Information if
required by law and to Authorized Representatives. Purchaser
shall indemnify, protect, defend and hold Seller harmless from
and against any obligation, liability, claim (including any claim
for damage to property or injury to or death of any persons),
lien or encumbrance, loss, damage, cost or expense, including
attorney's fees, in any way caused by the inspections or
examinations of the Assets by Purchaser or its authorized
representatives. The foregoing indemnification shall survive the
Closing or the termination of this Agreement for any reason.
5.2 Right of Termination Right of Termination
Right of Termination. Notwithstanding anything in this Agreement
to the contrary, Purchaser shall have the right, for any reason
in Purchaser's sole and absolute discretion, to terminate this
Agreement by written notice to Seller and Title Company on or
before the expiration of the Inspection Period and Title Company
shall immediately deliver to Seller the Initial Escrow Deposit
and any interest thereon. In the event the Transaction does not
close for any reason, Purchaser shall deliver to Seller all
materials, studies or documents received from third parties or
from Seller relating to the Assets and copies of tests and
studies received by Seller from third parties relating to the
physical condition of the Assets, without representation or
warranty of any type.
6 ARTICLE
REPRESENTATIONS AND WARRANTIES
6.1 Purchaser's presentations and Warranties. Purchaser makes the
following representations and warranties, as of the date of execution of
this Agreement, which shall survive Closing and conveyance of the
Assets to Purchaser:
(a) Authority. Purchaser is a corporation,
duly formed, organized, existing and in good standing under the
laws of the State of Alabama; Purchaser has full legal right,
power and authority to execute and fully perform its obligations
under this Agreement, without the need for any further action
under its governing instruments; and the person executing this
Agreement and the other documents required hereunder is the duly
designated officer of Purchaser and is authorized to do so.
(b) Inspection. Purchaser has made, or will
make prior to expiration of the Inspection Period, an independent
investigation, to the extent Purchaser deems necessary or
appropriate, concerning the physical condition, value,
development, use, marketability, feasibility and suitability of
the Assets, including, without limitation, land use, zoning and
other governmental restrictions.
(c) No Other Seller Representations. Except as
expressly set forth herein, Purchaser acknowledges that no
representations or warranties, express or implied, have been made
by Seller or Seller's representatives.
(d) "AS IS, WHERE IS". PURCHASER HEREBY
EXPRESSLY ACKNOWLEDGES THAT IT HAS INSPECTED AND EXAMINED OR WILL
INSPECT AND EXAMINE THE ASSETS TO THE EXTENT DEEMED NECESSARY BY
PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE PURCHASE
OF THE ASSETS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE
PURCHASER OF REAL ESTATE AND OFFICE DEVELOPMENTS AND THAT, EXCEPT
AS SET FORTH IN SECTION OR THE DOCUMENTS DELIVERED PURSUANT TO
SECTION , IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
PURCHASER'S CONSULTANTS, AND THAT PURCHASER HAS CONDUCTED OR WILL
CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE ASSETS,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AND IS RELYING OR WILL RELY UPON SAME, AND
SHALL ASSUME THE RISK OF ANY ADVERSE MATTERS, INCLUDING, BUT NOT
LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS
ACQUIRING THE ASSETS ON AN "AS IS, WHERE IS, WITH ALL FAULTS"
BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS
OR IMPLIED, OF ANY KIND OR NATURE OTHER THAN THOSE SET FORTH
HEREIN AND IN THE DOCUMENTS OF TRANSFER RELATING TO THIS
TRANSACTION. THE PROVISIONS OF THIS SECTION SHALL BE CONTAINED
IN THE DEED TO BE DELIVERED TO PURCHASER AT CLOSING AND SHALL
SURVIVE CLOSING AND THE FUTURE TRANSFER OF ANY OR ALL OF THE
ASSETS BY PURCHASER.
Initialed by:
Seller Purchaser
6.2 Seller's Representations and Warranties.
Seller makes the following representations and
warranties, as of the date of execution of this Agreement, which
shall survive Closing (to the extent set forth in Section ) and
conveyance of the Assets to Purchaser:
(a) Authority. Seller is a limited liability
company, duly formed, organized, existing and in good standing
under the laws of the State of Mississippi. Seller is currently
registered as a limited liability company with the Texas
Secretary of State. Seller has full legal right, power and
authority to execute and fully perform its obligations under this
Agreement, without the need for any further action under its
governing instruments. The persons executing this Agreement and
the other documents required hereunder are the duly designated
representatives of Seller and are authorized to do so.
(b) Litigation. There are no actions, suits or
proceedings pending or, to Seller's actual knowledge, threatened
against, by or affecting Seller which affect title to the Assets
or which question the validity or enforceability of this
Agreement or of any action taken by Seller under this Agreement,
in any court or before any governmental authority, domestic or
foreign.
(c) Indefeasible Title. At the Effective Date
and as of Closing, Seller will own the Personal Property free and
clear of all liens, claims, encumbrances, and rights of others,
except for the Permitted Exceptions and the leased or financed
equipment disclosed pursuant to the Information Schedules, and
will convey same to Purchaser. Seller is not a party to any
contract agreement, or commitment to sell, convey, assign,
transfer or otherwise dispose of any portion or portions of the
Assets.
(d) FIRPTA. Seller is not a "foreign person"
(as defined in the Internal Revenue Code and Income Tax
Regulations). The provisions of the Foreign Investment in Real
Property Tax Act of 1980, as amended, are not applicable to the
Transaction.
(e) Condemnation. Seller has received no
written notice of any condemnation proceedings relating to the
Property.
(f) Governmental Notice. To Seller's actual
knowledge, Seller has received no written notice from any
governmental entity and has no actual knowledge of any violations
or potential violation of any zoning, building, health,
environmental or other laws, codes or ordinances, regulations,
orders or requirements of any city, county, state or other
governmental authority having jurisdiction thereof.
(g) Rent Roll. To Seller's actual knowledge,
the Rent Roll, Delinquency Reports (if attached), Security
Deposit Schedule and Commissions Schedule are each attached
hereto as part of Exhibit and are accurate in all material
respects.
(h) Leases. To Seller's actual knowledge, the
Leases scheduled and identified on the Rent Roll attached hereto
are the only leases or other agreements for use, occupancy or
possession presently in force with respect to all or any portion
of the Assets.
(i) Estoppel Representation. To Seller's actual
knowledge, the Leases scheduled and identified on the Rent Roll
are all presently in full force and effect, have not been
modified, supplemented or amended except as set forth on the Rent
Roll, and are the entire agreement between Seller and the
"lessees" or "tenants" thereunder; Seller has fully and
completely performed all of the duties and obligations of the
"lessor" or "landlord" under the Leases arising on or before the
date hereof, there are no obligations of the "lessor" or
"landlord" under any of the Leases to make or to pay for any
improvements, alterations or additions to the premises covered
thereby except as indicated in the Leases; there are no defaults
by the "lessees" or "tenants" under any of the Leases; there are
no rentals which have been paid under any of the Leases more than
one (1) month in advance except as indicated on the Rent Roll;
except as indicated in the Leases there are no rent concessions
or offsets with respect to any of the Leases; except as indicated
in the Leases there are no options in favor of the "lessees" or
"tenants" under any of the Leases to purchase all or any portion
of the Property, except as indicated in the Leases, there are no
options in favor of the "lessees" or "tenants" to renew or extend
the term of any of the Leases. This representation shall
terminate and be of no further force or effect as to each Lease
upon the delivery to Purchaser of a Tenant's Estoppel Certificate
in the form attached hereto without any material modification
thereto so long as such estoppel certificate is consistent with
the substance of this representation and the terms of such
Tenant's Lease.
(j) Contract Schedule. To Seller's actual
knowledge, the Contract Schedule sets forth all Contracts
pertaining to the Assets. Seller shall cause any property
management agreements applicable to the Parcels to be terminated
as of the Closing.
(k) Environmental Matters. For the purpose of
this Agreement, the term "Hazardous Materials" shall mean (i)
each and every substance included within the term "hazardous
substance" or "hazardous waste" as defined in any one or more of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C.A. Section 9601 et seq. (as
heretofore amended), the Hazardous Materials Transportation Act
of 1975, 49 U.S.C.A. Section 1801 et seq. (as heretofore
amended), the Resource Conservation and Recovery Act of 1976, 42
U.S.C.A. Section 6901 et seq. (as heretofore amended) and any
other federal, state or local environmental laws or regulations
now or hereafter enacted; (ii) all substances to which the rules
and regulations promulgated by any Federal or state agency
pursuant to any one or more of said statutes applies; and (iii)
any and all petroleum products and petroleum derivatives. Seller
represents unto Purchaser that the following matters are true as
of the date of execution of this Agreement by Seller, and shall
survive Closing and not merge into any documents delivered at
Closing:
(i) Seller has no actual knowledge of any (i)
currently existing violations of federal, state, county or
municipal environmental laws in respect to the Parcels, or (ii)
past, pending or threatened administrative or judicial litigation
or other legal proceedings including, without limitation, any
enforcement proceeding under any federal, state, county or
municipal statute, ordinance, rule or regulation concerning
Hazardous Materials, relating to the Assets, or of any settlement
thereof;
(ii) Seller has no actual knowledge of any
underground storage tanks ("USTs") located on or below the Land;
7 ARTICLE
COVENANTS
7.1 Covenants of Seller Covenants of Seller
Covenants of Seller. Seller covenants and agrees with Purchaser
as follows:
(a) Access. Subject to the terms and
conditions of Section , during normal business hours prior to
Closing, Seller agrees to give to Purchaser and its agents and
representatives reasonable access to the Assets and the books and
records directly relating to the ownership, management,
maintenance and operation of the Assets, and all documents
directly pertaining to the Assets that are in the possession of
Seller, or any of Seller's agents. Prior to Closing, Seller will
furnish Purchaser with such additional financial and operating
data and other information reasonably available to Seller as may
be reasonably necessary for Purchaser to thoroughly evaluate the
Assets, including, without limitation, updated rent rolls,
commissions schedule, operating statements and contract
information.
(b) Operation of Assets Prior to Closing. Prior
to Closing, Seller shall: (i) not cancel or permit cancellation
of any hazard or liability insurance carried with respect to the
Assets; (ii) operate the Assets on a basis consistent with
historical operations including, without limitation, undertaking
all reasonably required ordinary maintenance and repair of the
Improvements (but not including any capital or extraordinary
expenditures) or (iii) undertake any required tenant improvements
relating to new or renewal leases in compliance with the Leases
and subject to reimbursement by Purchaser at Closing in
accordance with the terms hereof. Prior to Closing, Seller will
not, without the prior written consent of Purchaser, amend,
renew, extend modify or terminate any Contract. Provided, in the
event Seller provides Purchaser with any proposed Contract, and
Purchaser does not object to the terms thereof within five (5)
business days, Purchaser shall be deemed to have approved such
Contract and agreed to assume Seller's obligations thereunder at
Closing. With respect to Contracts in effect on the Effective
Date, Seller shall, to the extent cancellable, cancel any
Contracts upon Purchaser's written request prior to Closing. In
addition, Seller shall terminate any Contracts which may not be
assumed pursuant to the terms thereof. Contracts terminated
pursuant to this section shall be referred to herein as the
"Terminated Contracts".
(c) Payments. Subject to Section , Seller
will cause to be paid when due or shall be responsible for all
trade accounts and costs and expenses of operation and ordinary
maintenance of the Assets incurred to the Closing Date.
(d) Cooperation. Seller will reasonably assist
and cooperate with any environmental evaluation, study or audit
of the Assets prepared by, for or at the request of Purchaser.
(e) Notification of Subsequent Events. Prior
to Closing, Seller shall notify Purchaser of any written notice
received by Seller of any material adverse change in or to the
Assets.
(f) Estoppel Certificates. Seller shall use
reasonable efforts to deliver estoppel certificates in material
conformance with the form attached hereto as Exhibit -1 from all
Tenants and shall provide a Seller estoppel certificate in the
form attached hereto as Exhibit -2 for each tenant not providing
an estoppel certificate. Upon receipt of an estoppel certificate
from a tenant, any previously delivered Seller estoppel
certificate relating to such tenant shall be of no further force
or effect if materially consistent with such tenant estoppel.
Notwithstanding anything in this Agreement to the contrary, in
the event Seller fails to deliver, prior to Closing, Tenant
estoppel certificates regarding at least seventy-five percent
(75%) of the tenants in each Building and every Tenant leasing
5,000 square feet or more, which are consistent with the Rent
Roll, the terms of such Tenant's Lease and do not indicate any
material default of any party to said Lease, Purchaser may
terminate this Agreement.
(g) State of Repair. In the event Purchaser
identifies any material defect in the Improvements within ten
(10) business days following the Effective Date, Purchaser shall
have the right to notify Seller of the same, and in such event,
Seller shall notify Purchaser within five (5) business days
following such notice that it either (a) elects to cure such
defect, in which event Seller shall proceed to cure the same
prior to the Closing Date, and it shall be a condition of
Purchaser's obligations hereunder that such defect be cured to
Purchaser's reasonable satisfaction; (b) elects to credit
Purchaser at Closing with the cost of correcting such material
defect, as reasonably estimated by Seller and Purchaser, or (iii)
does not elect to cure such material defect or credit Purchaser
at Closing with the cost of correcting the same. In the event
Seller notifies Purchaser that it elects to cure any such
material defect and such defect has not been cured by the Closing
Date, or if Seller notifies Purchaser that it does not elect to
cure such defect or credit Purchaser with the cost therefor,
Purchaser shall have the right to terminate this Agreement. For
purposes hereof, a "material" defect shall be any defects or need
for repairs, restoration, treatment or completion during the
current twelve (12) month period following Closing the cost of
correcting such defect exceeds $1,000,000 in the aggregate.
(h) Leasing. Seller (and/or Seller's agents),
in consultation with Purchaser, shall continue in good faith to
advance all leasing activities for the Assets including, without
limitation, new leases, extensions, expansions, renewals or other
modifications of any Lease. Notwithstanding any provision herein
to the contrary, Seller shall not enter into any new lease, or
any extension, expansion, renewal or modification of any Lease
unless Purchaser approves the same in its reasonable discretion.
Seller shall provide Purchaser with notice of any proposed
modification, termination, extension or new Lease. Purchaser
shall have five (5) business days within which to object to such
proposed Lease. Any proposed Lease not objected to by Purchaser
within such five (5) business day period shall be deemed approved
by Purchaser and shall constitute Purchaser's agreement to pay
any costs incurred in connection with such Lease, including,
without limitation, leasing commissions and tenant improvement
costs if, and only if, Closing occurs.
7.2 Mutual Release. SUBJECT TO THE EXPRESS INDEMNIFICATION OBLIGATIONS OF
EITHER PARTY CONTAINED HEREIN OR IN THE DOCUMENTS OF TRANSFER TO
BE EXECUTED AT CLOSING, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY
AND UPON THE ADVICE OF COUNSEL WAIVES AND RELEASES THE OTHER
PARTY OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION,
LIABILITIES, OBLIGATIONS, DAMAGES, COSTS, EXPENSES OR
COMPENSATION WHATSOEVER, DIRECT OR INDIRECT, KNOWN OR UNKNOWN,
FORESEEN OR UNFORESEEN, THAT A PARTY NOW HAS OR THAT MAY ARISE IN
THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN
CONNECTION WITH THE ECONOMIC, PHYSICAL OR ENVIRONMENTAL CONDITION
OF THE ASSETS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY
PERTAINING TO OR ARISING OUT OF ANY ENVIRONMENTAL LAW
(ESTABLISHED BY EITHER COURT DECISION OR STATUTE), ORDINANCE OR
REGULATION.
8 ARTICLE
CLOSING MATTERS
8.1 Conditions to Purchaser's Obligations
Conditions to Purchaser's Obligations Conditions to Purchaser's
Obligations. The obligations of Purchaser to consummate the
Transactions contemplated by this Agreement are subject to the
satisfaction of each of the following conditions as of the
Closing Date, except to the extent any such condition is waived
in whole or in part by Purchaser in writing at or prior to
Closing:
(a) Satisfaction. The representations and
warranties of Seller contained in this Agreement shall have been
true on the date of this Agreement and on Closing. Seller shall
have performed all obligations and complied with all covenants
required by this Agreement. All Title Defects, except Permitted
Exceptions, shall have been cured by Seller or waived by
Purchaser.
(b) No Injunction. On the Closing Date, there
shall be no third party injunction, writ, preliminary restraining
order or any order of any nature issued by a court of competent
jurisdiction directing that the Transaction not be consummated.
(c) Closing Deliveries. Seller shall have
completed all the deliveries required to be made by Seller under
Section of this Agreement.
(d) Estoppel Certificates. Purchaser shall have
received Estoppel Certificates for all tenants of each Building
pursuant to Section .
8.2 Conditions to Seller's Obligations
The obligations of Seller to consummate the
transactions contemplated by this Agreement are subject to the
satisfaction of each of the following conditions as of the
Closing Date, except to the extent any such condition is waived
in whole or in part by Seller in writing at or prior to Closing:
(a) Satisfaction. The representations and
warranties of Purchaser contained in this Agreement shall have
been true on the date of this Agreement and on Closing.
Purchaser shall have performed all obligations and complied with
all covenants required by this Agreement.
(b) No Injunction. On the Closing Date, there
shall be no third party injunction, writ, preliminary restraining
order or any order of any nature issued by a court of competent
jurisdiction directing that the Transaction not be consummated.
(c) Closing Deliveries. Purchaser shall have
completed all the deliveries required to be made by Purchaser
under Section of this Agreement.
8.3 Closing Deliveries Closing Deliveries
Closing Deliveries. At Closing, Seller and Purchaser shall
execute and deliver documents reasonably necessary to effectuate
the Transaction, all of which shall be in a form reasonably
acceptable to Purchaser and Seller, including, but not limited
to, the following:
(a) Special Warranty Deeds. Special Warranty
Deeds in form attached hereto as Exhibit subject only to the
applicable Permitted Exceptions.
(b) Assignment and Bill of Sale. Assignment
and Assumption Agreements and Bills of Sale in the form attached
hereto as Exhibit , which shall provide that Purchaser shall
assume Seller's obligations with respect to all Leases and all
Contracts other than Terminated Contracts arising from and after
the Closing Date.
(c) Purchaser's Affidavit Regarding
Inspections. Affidavits of Purchaser regarding the completion of
its inspection and analysis of the Assets in the form attached
hereto as Exhibit .
(d) Tenant Notice Letters. Notices to each
tenant stating that Purchaser has agreed to assume the Seller's
obligations under the Leases and setting forth the address for
future rental payments.
(e) Documents. Originals, or certified copies
of (i) all Leases in force on the Closing Date covering portions
of the Real Property and all other documents referred to in the
Rent Roll, (ii) all Contracts and Permits of which Seller is
aware transferred and assigned to Purchaser, (iii) all "as built"
plans, specifications, surveys or other documents relating or
pertaining to the Assets in the possession of Seller
(collectively "Plans"), including, but not limited to, all
records relating to repair, renovation and maintenance of the
Assets; (iv) all notices to tenants relating to this Transaction
and the receipt of security deposits as necessary or appropriate
under applicable law; and (v) all other documents referred to in
the schedules.
(f) Rent Roll. A current and updated certified
Rent Roll.
(g) FIRPTA. Affidavit from Seller that Seller
is not a foreign person as defined in the Foreign Investment in
Real Property Tax Act of 1980, as amended, in the form attached
hereto as Exhibit .
(h) Purchase Price. Purchaser shall deliver the
Purchase Price, as adjusted by prorations pursuant to the closing
statement, in immediately available funds.
(i) Keys. All keys and master keys in Seller's
possession or control to all locks located on the Real Property
properly tagged for identification as well as cards keys and
cards for the security systems, if any.
(j) Evidence of Authority. Both parties will
deliver to the Title Company such evidence or documents as may
reasonably be required by the Title Company or either party
hereto evidencing the authority of any person or persons who are
executing any of the documents required hereunder in connection
with the Transaction.
(k) Miscellaneous. Such other documents as may
be required under other provisions of this Agreement or as may
reasonably be required by Purchaser to consummate the
Transaction, so long as such document does not increase either
party's liability or obligations hereunder, including, but not
limited to a closing statement, standard title company
affidavits, bring down certificates regarding representations and
warranties, and evidence of title clearance matters including pay-
off letters from any lenders.
8.4 Purchasers Obligation to Timely Deliver
Closing Deliveries. Purchaser shall deliver each of its Closing
Deliveries to Title Company before 11:00 a.m., central time, on
the Closing Date. In the event Purchaser fails to do so, and
provided Seller has delivered each of its Closing Deliveries to
Title Company by such time, Seller shall have the following
options: (i) suspend Closing to the next business day, in which
event the closing statement shall be adjusted accordingly; or
(ii) suspend Closing to the next business day and Purchaser shall
deliver additional funds equal to the product of the Purchase
Price and 8%; divided by 360 and then multiplied by the number of
calendar days for which Closing was delayed.
8.5 Knowledge as a Defense. Seller shall have no liability
with respect to a breach of the covenants, representations and
warranties of Seller set forth in this Agreement or any documents
delivered pursuant hereto to the extent that Purchaser proceeds
with the closing of the Transaction contemplated with actual
knowledge of such breach or such breach was otherwise disclosed
to Purchaser in the Information Schedules or otherwise.
8.6 Limitations on Liability. Notwithstanding anything to
the contrary in this Agreement and without limitation upon the
limitations elsewhere in this Agreement but subject to the
provisions of Section ; under no circumstances, other than any
acts or omissions of Seller constituting wilful misconduct or
fraud, shall Seller be liable to Purchaser on account of this
Agreement, any covenant, representation, warranty, or
indemnification obligation herein, any document executed in
connection with this Agreement or any transaction or matter
contemplated hereby, in an aggregate amount in excess of One
Million Five Hundred Thousand Dollars ($1,500,000.00), excluding
Seller's obligation to remove any monetary liens relating to the
Assets under Section and excluding obligations relating to
retained liabilities under the documents of transfer executed at
Closing. In the event of a breach of this Agreement by Seller,
Purchaser shall not be entitled to recover special, incidental or
consequential damages; provided, however, no limitation contained
herein shall have any effect or limitation on Purchaser's rights
or recoveries in the event of acts or omissions based upon
Seller's willful misconduct or actual fraud.
8.7 Knowledge Standard. As used in this Agreement, "the Seller's
actual knowledge" or "to Seller's knowledge" or any similar
phrase, shall mean the actual knowledge of Mitch Mattingly only
who is the representative of Seller with responsibility for the
Assets after discussion with Seller's on site property managers;
provided, however, that nothing in this Agreement shall be deemed
to create or impose any personal liability of any kind on such
individual.
8.8 Closing Contingent on Courtyard at Arapaho and Fairway Plaza Closings.
Each party hereto acknowledges and agrees that the Closing of this
Transaction is contingent upon the closing of the Purchaser's
acquisition of the Courtyard at Arapaho Building and the Fairway
Plaza Building pursuant to Courtyard Agreement. Notwithstanding
anything herein to the contrary, in the event the Courtyard
Agreement is terminated under circumstances whereby the Purchaser
is entitled to a return of its escrow deposit pursuant to such
agreement, then this Agreement shall be terminated and Purchaser
shall likewise be entitled to a return of the Escrow Deposit
hereunder. Notwithstanding anything herein to the contrary, in
the event the Courtyard Agreement is terminated under
circumstances whereby the Seller is entitled to receive the
escrow deposit pursuant to such agreement, then this Agreement
shall immediately terminate and Seller shall be entitled to
receive the Escrow Deposit hereunder.
9 ARTICLE
DEFAULTS AND REMEDIES
9.1 Damages Against Purchaser. If Purchaser defaults
under any provision of this Agreement and Closing does not occur,
then Seller shall be released from all obligations in law or
equity to convey the Property to Purchaser. Purchaser and Seller
agree that as Seller's sole remedy for a default hereunder, by
written notice to Purchaser and Title Company, Seller shall be
entitled to terminate this Agreement and be entitled to receive
the Escrow Deposit plus accrued interest thereon as liquidated
damages. Purchaser and Seller acknowledge and agree that actual
damages will be extremely difficult and impractical to ascertain.
Therefore, the sum represented by the Escrow Deposit plus any
accrued interest thereon shall be deemed to constitute a
reasonable estimate and agreed stipulation of Seller's damages
and shall constitute Seller's sole and exclusive remedy in the
event this Transaction fails to Close as a result of Purchaser's
default. Notwithstanding the foregoing, Purchaser's liability
under the last sentence of Section hereof and the last sentence
of Section hereof shall remain in full force and effect.
9.2 Damages against Seller. In the event that Seller fails
to perform all of Seller's material obligations under this
Agreement and Purchaser performs all of its obligations or
tenders performance, including the obligation to consummate the
Transaction, then Purchaser may make written demand to Seller for
performance of this Agreement. If Seller fails to comply with
Purchaser's written demand within five (5) days after receipt of
such written demand for performance, Purchaser shall have the
exclusive right to (i) waive such default, (ii) seek specific
performance of Seller's obligations under this Agreement, or
(iii) terminate this Agreement and promptly receive its actual
out-of-pocket damages up to $200,000 in the aggregate. In all
events of termination other than as contemplated by Sections and
, Seller shall be entitled to the Escrow Deposit. Seller agrees
that the Assets are unique and that damages for failure by Seller
to consummate the Transaction will be impracticable and extremely
difficult to determine. Therefore, in the event that Seller
fails or refuses to consummate the Transaction and Purchaser
seeks specific performance, Seller specifically agrees that the
remedies of specific performance are appropriate remedies for
Purchaser, and Seller waives and agrees not to assert any claim
or defense that specific performance is not an appropriate remedy
for Purchaser. If specific performance is not available,
Purchaser will have the right to seek, prove and recover its
actual out-of-pocket damages up to $200,000 in the aggregate for
this Agreement. The parties acknowledge and agree that the
provisions of this Section apply to breaches by Seller
discovered or known to Purchaser prior to Closing and that the
provisions of Sections and apply to breaches by Seller
discovered post-Closing even if such relates to acts or omissions
which actually occurred prior to Closing.
Initialed by:
_______________
______________
Seller
Purchaser
10 ARTICLE
RISK OF LOSS
10.1 Risk of Loss.
Prior to Closing, Seller shall have full risk of loss or damage
with respect to the Assets. Upon Closing, full risk of loss or
damage with respect to the Assets shall pass to Purchaser. For
purposes of this Article 9, "loss or damage" shall mean the
following: (i) any loss, damage, destruction or injury by fire,
storm, accident, flood or other casualty or hazard to the Assets;
and (ii) any condemnation, eminent domain or other similar
proceeding.
10.2 Minor Damage.
In the event of loss or damage to the Real Property or any
portion thereof (the "premises in question") which is not "major"
(as hereinafter defined), this Agreement shall remain in full
force and effect provided Seller either: (i) performs any
necessary repairs prior to Closing, (ii) reduces the cash portion
of the Purchase Price in an amount equal to the reasonable
estimated cost of such repairs, Seller thereby retaining all of
the Seller's right, title and interest to any claims and proceeds
Seller may have with respect to any casualty insurance policies
or condemnation awards relating to the premises in question, or
(iii) assigns its interest in any insurance proceeds to Purchaser
together with an amount equal to any applicable deductible
relating thereto. In the event Seller elects to perform repairs
upon the Real Property, Seller shall use reasonable efforts to
complete such repairs promptly and to Purchaser's reasonable
satisfaction and if necessary, the date of Closing shall be
extended a reasonable time in order to allow for the completion
of such repairs; provided, however, Closing may not be extended
for a period of more than thirty (30) days without the prior
consent of Purchaser.
10.3 Major Damage.
In the event of a "major" loss or damage or if Seller commits to
repair any portion of the Assets and fails to do so, Purchaser
may either (i) terminate this Agreement and immediately receive a
refund of the Escrow Deposit and all interest thereon, or (ii) it
may proceed with this Transaction and receive Seller's insurance
proceeds or condemnation award, if any, for such damage, plus
payment from Seller of the amount of the applicable insurance
deductible relating thereto. In such event, Seller shall execute
all documents reasonably requested by Purchaser to assign
Seller's rights and interest to such insurance proceeds.
10.4 Definition of Major Loss or Damage
For purposes of Sections and , "major" loss or damage
refers to the following: (i) loss or damage to the Assets or any
portion thereof such that the cost of repairing or restoring the
premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage or
loss would be, in the certified opinion of a mutually acceptable
architect, equal to or greater than $500,000.00, or (ii) any loss
or damage due to a condemnation which permanently or materially
impairs the current or intended use of the Assets, or (iii) if
any Tenant who occupies more than 10,000 square feet is permitted
to terminate and actually terminates its Lease as a result of
such loss or damage.
11 ARTICLE
GENERAL PROVISIONS
11.1 Brokerage Commission tc " Brokerage
Commission" \l 2 . Seller shall pay any and all brokerage
commissions due to Davidson Conine and Bradford Company pursuant
to a separate written agreement. Purchaser shall pay an
additional amount of $20,000 to Bradford Company in reimbursement
for certain costs incurred by Bradford Company in connection with
this transaction. If the purchase and sale hereunder does not
close for any reason, including default by either Seller or
Purchaser, then no commission or reimbursement shall be due by
any party hereto. Except as set forth in the preceding sentence,
Seller and Purchaser represent to each other that they have acted
directly and independently with the other as principals and that
neither Seller nor Purchaser have retained or authorized the
services of any broker or finder with respect to this
Transaction. Seller agrees to indemnify and hold Purchaser
harmless from and against all claims, liabilities, and
obligations for any commission, finder's fee, or other
compensation in connection with this Agreement claimed by or
through Seller. Purchaser agrees to indemnify and hold Seller
harmless from and against all claims, liabilities, and
obligations for any commission, finder's fee, or other
compensation in connection with this Agreement claimed by or
through Purchaser.
11.2 Confidentiality. Unless Seller otherwise agrees in writing,
Purchaser agrees that all proprietary information regarding the
Improvements of whatsoever nature made available to it by Seller
or Seller's agents or representatives or developed by Purchaser,
is confidential and shall not be disclosed to any other person
except those assisting Purchaser with this Transaction, or
Purchaser's lender, if any. The provisions of the foregoing
sentence shall not apply to any information which is otherwise
available to the public or which has been obtained from sources
that are not subject to a similar confidentiality restriction or
to disclosures as required by law. Further, Purchaser agrees not
to use any Confidential Information (as defined in Section ) for
any purpose other than to determine whether to proceed with the
Transaction contemplated by this Agreement. Upon Closing, all
such Confidential Information shall be the sole and exclusive
property of Purchaser and not subject in any manner to this
confidentiality restriction. Provided, however, in the event
the Transaction contemplated by this Agreement does not close for
any reason, the provisions of this Section shall survive the
termination of this Agreement for a period of two years.
11.3 Entire Agreement. This Agreement, together with all exhibits or
schedules either attached or delivered pursuant hereto and other
agreements expressly referred to herein, constitutes the entire
agreement between the parties with respect to the purchase and
sale of the Assets. All prior to or contemporaneous agreements,
understandings, representations, warranties and statements, oral
or written, are superseded.
11.4 Further Assurances. The parties agree to take such further
action and execute such documents and instruments as may be
reasonably required in order to more effectively carry out the
terms of this Agreement and the intentions of the parties.
11.5 Modification, Waiver. Except as expressly contemplated
herein, no modification, waiver, supplement or discharge of this
Agreement shall be valid unless the same is in writing and signed
by the party against whom the enforcement thereof is or may be
sought. No waiver of a breach of any of the terms, covenants or
conditions of this Agreement by either party shall be construed
or held to be a waiver of any succeeding or preceding breach of
the same or any other term, covenant or condition herein
contained. No waiver of any default by either party hereunder
shall be implied from any omissions by either party to take any
action on account of such default if such default persists or is
repeated, and no express waiver shall affect a default other than
as specified in such waiver.
11.6 Severability. If any term, provision, covenant or condition of
this Agreement is held to be invalid, void or otherwise
unenforceable to any extent by any court of competent
jurisdiction, the remainder of this Agreement shall not be
affected thereby, and each term, provision, covenant or condition
of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
11.7 Successors.
Subject to the restriction on assignment provided herein, all
terms of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns.
11.8 Assignment.
Purchaser may assign its rights under this Agreement to a wholly
owned subsidiary of Purchaser or affiliate of Purchaser or to a
limited partnership or LLC controlled by either Purchaser or its
wholly owned subsidiary without Seller's consent; provided,
however, no such assignment shall relieve Purchaser of its
obligations hereunder and the assignee must sign an assumption
agreement in form reasonably acceptable to Seller. Except as
contemplated by the preceding sentence, Seller and Purchaser
shall not assign their respective rights, obligations or interest
under this Agreement without the prior written consent of the
other.
11.9 Survival of Representations and Warranties.
All obligations hereunder to be
performed after Closing, and all warranties and representations
contained herein, shall survive Closing and the delivery of the
Special Warranty Deed to Purchaser for a period of only 365 days
after Closing, at which time such warranties, representations and
covenants shall terminate. Provided, however, the terms of this
Section shall not be deemed to extend the specific period for
performance of any obligations to be performed hereunder
subsequent to Closing. In order to perfect any cause of action
resulting from a breach hereof written notice of such breach must
be delivered prior to the expiration of the 365 day period and
any resulting cause of action must be commenced within 485 days
after Closing.
11.10 Attorneys' Fees. If either party commences legal proceedings for
any relief against the other party arising out of this Agreement,
the losing party shall pay the prevailing party's reasonable
attorneys' fees.
11.11 Time. Time is of the essence with respect to this Agreement.
11.12 No Other Inducement. The making, execution and delivery of this
Agreement by the parties hereto has been induced by no
representations, statements, warranties or agreements other than
those expressed herein.
11.13 Computation of Time Periods. All periods of the
time referred to in this Agreement shall include all Saturdays,
Sundays and state or national holidays, unless the period of time
specifies business days, provided that if the date or last date
to perform any act or give any notice or approval shall fall on a
Saturday, Sunday or state or national holiday, such act or notice
may be timely performed or given on the next succeeding day which
is not a Saturday, Sunday or state or national holiday.
11.14 Notices. Any notice,
request, instruction or other document to be given or furnished
under this Agreement by either party to the other party or to the
Title Company shall be in writing and shall be delivered
personally or shall be sent by facsimile transmission (with a
copy sent by regular U. S. mail) or registered or certified mail,
postage prepaid, or by prepaid overnight delivery service, at the
address or telecopy number in this Section or to such other
address, telecopy number of person as either party may designate
by written notice to the other party. A notice, request,
instruction or other documents shall be deemed to be given (a)
when delivered personally as acknowledged by a receipt, (b) sent
by facsimile transmission (with a copy sent by regular U. S.
mail), (c) if sent by certified mail, at the time the delivery is
indicated on the duly completed United States Postal Service
return receipt, or (d) if by overnight delivery service, the next
business day as indicated on the records of or certificates
provided by the overnight delivery service.
Seller: Parkway Portfolio I LLC
Attention: Mitch Mattingly
Office Address: 12012 Wickchester, Suite 115
Houston, Texas 77079
Telephone Number: (281) 597-9475
Telecopy Number: (281) 597-9575
with a copy to: Forman, Perry, Watkins, Krutz & Tardy, PLLC
Attention: Steven M. Hendrix
Office Address: 188 E. Capitol Street, Suite 1200
Jackson, Mississippi 39225-2608
Telephone Number: (601) 960-8603
Telecopy Number: (601) 960-8609
Purchaser: Triad Properties Corporation
Attention: Mr. William Stroud
Office Address: 200 Clinton Avenue, W., Suite 1001
Huntsville, Alabama 35801
Telephone Number: (205) 551-1000
Telecopy Number: (205) 539-5500
with copy to: Kilpatrick Stockton LLP
Attention: Nancy Gilreath
Office Address: 1100 Peachtree Street, N.E.
Atlanta, Georgia 30309
Telephone Number: (404) 851-6565
Telecopy Number: (404) 851-6555
11.15 Headings. The captions
and paragraph headings used in this Agreement are inserted for
convenience of reference only and are not intended to define,
limit or affect the interpretation or construction of any term or
provision hereof.
11.16 Exhibits. All
schedules or exhibits referred to herein or attached hereto are
incorporated herein by this reference.
11.17 Counterparts.
This Agreement may be executed in multiple copies, each of which
shall be deemed an original, but all of which shall constitute
one Agreement binding on all parties.
11.18 Governing Law. This Agreement shall be governed, construed
and enforced in accordance with the laws of the State of Texas.
11.19 Effective Date. The date of delivery to Title Company of a
fully executed counterpart of this Agreement, as evidenced by Title
Company's notation in the space set forth below, shall be deemed the
effective date of this Agreement (the "Effective Date").
IN WITNESS WHEREOF, Seller and Purchaser have executed this
Agreement as of the Effective Date.
SELLER:
PARKWAY PORTFOLIO I
LLC, a Mississippi limited liability
company
By: PARKWAY PROPERTIES LP, a Delaware
limited partnership, its sole member
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
Executed by Seller, this
By:___________________________
___________ day of April, 1998 .
Name:_________________________
Title:________________________
By:
Name:
Title:
PURCHASER: TRIAD PROPERTIES CORPORATION
Executed by Purchaser, this
_____ day of April, 1998. By:
Name:
Title:
ACKNOWLEDGMENT BY BROKERS
The undersigned brokers hereby acknowledge and agree to the
provisions of Section of this Agreement regarding commissions.
Davidson Conine
By:________________________________
Name:______________________________
Title:_____________________________
Bradford Company
By:________________________________
Name:______________________________
Title:_____________________________
ACKNOWLEDGMENT BY TITLE COMPANY
Title Company hereby agrees to perform its obligations under
this Agreement and acknowledge receipt of (a) the Escrow Deposit
from Purchaser in the amount of ONE HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($150,000.00) on the _____ day of April, 1998 and
(b) a fully executed counterpart of this Agreement on the _____
day of April, 1998.
Chicago Title Insurance Company
By:
Name:
Title:
EXHIBIT
LIST OF MATERIAL ITEMS OF PERSONAL PROPERTY
EXHIBIT
Belvedere Land
LEGAL DESCRIPTION
(See attached)
EXHIBIT
Atrium at Bent Tree Land
LEGAL DESCRIPTION
(See attached)
EXHIBIT
ALLOCATION OF PURCHASE PRICE
Parcel Price
1. Belvedere Parcel
$15,550,000
2. Atrium at Bent Tree
Parcel
$12,000,000
EXHIBIT
CONTRACTS SCHEDULE
Belvedere Parcel
(See attached)
EXHIBIT
CONTRACTS SCHEDULE
Atrium at Bent Tree Parcel
(See attached)
EXHIBIT
RENT ROLL
Belvedere Building
(See attached)
EXHIBIT
RENT ROLL
Atrium at Bent Tree Building
(See attached)
EXHIBIT -1
FORM OF TENANT ESTOPPEL CERTIFICATE
Triad Properties Corporation
200 Clinton Avenue West, Suite 1001
Huntsville, Alabama 35801
RE: _______________________
Gentlemen:
The undersigned as Tenant hereby certifies to Triad
Properties Corporation and its successors or assigns and lenders
("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) or Modifications(s) Dated (if any):
Current Annual Base Rent:
Current CAM or Operating Expense Charges and Base Year
or
Expense Stop:
Square Footage:
Original term (or current option period, if applicable)
expires:
Security Deposit and/or Lease Deposit (if any): $
Outstanding Tenant Improvement Allowance (if any):
$_______________
Outstanding Leasing Commissions (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.
Please attach a complete copy of the Lease and all
amendments thereto.
(d) The Lease sets forth the entire agreement between
the Landlord and Tenant, is in full force and effect in
accordance with its terms and has not, in any way, been
amended or modified in any manner.
(e) Tenant has unconditionally accepted and is
currently occupying 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.
(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 in any manner.
(g) All requirements of the Lease have been complied
with and all improvements required to be made by
Landlord have been completed and no charges, set-offs
or other credits exist against the rentals.
(h) The Lease contains, and Tenant has: (i) no
outstanding options or rights of first refusal to
purchase the leased premises nor any part of the real
property of which the leased premises are a part; (ii)
no expansions options, other than _______; (iii) no
cancellation options, other than _______; and (iv) no
renewal options, other than __________.
(i) Tenant has not assigned, pledged, 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.
Date:_________________
By:
Name:
Title:
Current Notice Address:
___________________________
___________________________
___________________________
EXHIBIT -2
FORM OF SELLER ESTOPPEL CERTIFICATE
[Purchaser]
RE: _____________
Gentlemen:
The undersigned as Landlord hereby certifies to [Purchaser]
and its successors and assigns and lenders ("Purchaser") that,
to its actual knowledge:
(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) or Modification(s) Dated (if any):
Current Annual Base Rent:
Current CAM or Operating Expense Charges and Base Year
or
Expense Stop:
Square Footage:
Original term (or current option period, if applicable)
expires:
Security Deposit and/or Lease Deposit (if any): $
Outstanding Tenant Improvement Allowance (if any):
$_______________
Outstanding Leasing Commissions (if any):
$______________
(b) All rentals payable under the Lease have been paid
through ________, 19___.
(c) That attached hereto as Exhibit A is a true and
complete copy of the Lease and all amendments thereto.
Please attach a complete copy of the Lease and all
amendments thereto.
(d) The Lease sets forth the entire agreement between
the Landlord and Tenant, is in full force and effect in
accordance with its terms and has not, in any way, been
amended or modified in any manner.
(e) All requirements of the Lease have been complied
with and no charges, set-offs or other credits exist
against the rentals.
(f) The Lease contains, and Tenant has, no outstanding
options or rights of first refusal to purchase the
leased premises nor any part of the real property of
which the leased premises are a part. Except as set
forth in the Lease, Tenant has no expansion,
cancellation or renewal options.
(g) Landlord has received no notice that Tenant has
assigned, pledged, mortgaged, sublet, encumbered or
otherwise transferred any of its interest under the
Lease.
(h) Landlord is not in default under the Lease, there is no
material default on the part of Tenant thereunder, and
Landlord has not within the previous ninety days
received any written notice from Tenant claiming any
right of set-off or default.
(i) All improvements required to be made as of this date by
Landlord under the Lease have been completed.
Landlord understands that Purchaser is relying on the above
representations in consenting to purchase the above referenced
building. This Seller's Estoppel Certificate shall terminate
upon the earlier of the delivery of a Tenant's Estoppel
Certificate containing information consistent with the
information set forth herein or one year after the date hereof.
Date:______________
By:
Name:
Title:__________________________
EXHIBIT
FORM OF SPECIAL WARRANTY DEED
THE STATE OF
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF
THAT, Parkway Portfolio I LLC, a Delaware limited
partnership (hereinafter called "Grantor"), for and in
consideration of TEN AND NO/100 DOLLARS ($10.00), and other good
and valuable consideration to Grantor in hand paid by
______________, a ___________ (hereinafter called "Grantee"), the
receipt and sufficiency of which are hereby acknowledged, has
GRANTED, SOLD and CONVEYED, and by these presents does GRANT,
SELL and CONVEY unto the said Grantee, all that certain lot,
tract or parcel of land, together with all improvements thereon,
lying and being situated in Dallas County, Texas described on
Exhibit A attached hereto, together with all rights and
appurtenances thereunto belonging or appertaining, and all
rights, titles and interests of Grantor in and to any and all
roads, easements, streets and ways within, adjacent or contiguous
thereto (hereinafter collectively referred to as the "Property").
This conveyance is subject to the valid and subsisting
easements, restrictions, covenants, conditions and outstanding
mineral and royalty interests affecting the Property described on
Exhibit B attached hereto.
TO HAVE AND TO HOLD the Property, together with all and
singular the rights and appurtenances thereto in anywise
belonging unto the said Grantee, its heirs, executors, legal
representatives, successors and assigns forever; and Grantor does
hereby bind itself, its heirs, executors, legal representatives,
successors and assigns, to WARRANT and FOREVER DEFEND, all and
singular the Property unto the said Grantee, its heirs,
executors, legal representatives, successors and assigns, against
every person whomsoever lawfully claiming or to claim the same or
any part thereof by, through or under Grantor, but not otherwise.
GRANTOR HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL IMPLIED
COVENANTS AND WARRANTIES OF EVERY NATURE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, THE IMPLIED COVENANTS PROVIDED FOR UNDER
SECTION 5.023 OF THE TEXAS PROPERTY CODE) EXCEPT FOR THE EXPRESS
SPECIAL WARRANTY OF TITLE SET FORTH HEREIN. BY ITS ACCEPTANCE OF
THIS DEED, GRANTEE HEREBY KNOWINGLY, VOLUNTARILY AND UPON THE
ADVICE OF COUNSEL, WAIVES AND RELEASES SELLER OF AND FROM ANY
CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, OBLIGATIONS,
DAMAGES, COSTS, EXPENSES OR COMPENSATION WHATSOEVER, DIRECT OR
INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THAT
PURCHASER NOW HAS OR THAT MAY ARISE IN THE FUTURE ON ACCOUNT OF
OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE ECONOMIC,
PHYSICAL OR ENVIRONMENTAL CONDITION OF THE SUBJECT PROPERTY,
INCLUDING, WITHOUT LIMITATION, ANY LIABILITY PERTAINING TO OR
ARISING OUT OF ANY ENVIRONMENTAL LAW (ESTABLISHED BY EITHER COURT
DECISION OR STATUTE), ORDINANCE OR REGULATION.
Grantee's address is
______________________________
______________________________
______________________________
Current taxes on the Improvements have been prorated and
payment thereof is assumed by Grantee.
EXECUTED this ____ day of _________________________, 1998.
Parkway Portfolio I LLC,
a Mississippi limited liability company
By: Parkway Properties LP,
a Delaware limited partnership,
its sole member
By: Parkway Properties General Partners, Inc.,
a Delaware corporation,
its general partner
By:
Name:
Title:
By:
Name:
Title:
STATE OF __________
COUNTY OF _________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________ corporation which is the general
partner of _________________, a _____________ partnership which
is the sole general partner of ______________________, and that
for and on behalf of the said partnership, and as its act and
deed (he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said partnership so to do.
____________________________________
NOTARY PUBLIC
My commission expires:
____________________
(Affix official seal, if applicable)
PREPARED BY:
Steven M. Hendrix
Forman, Perry, Watkins, Krutz & Tardy, PLLC
188 East Capitol Street
Suite 1200, One Jackson Place
Jackson, Mississippi 39201
Telephone: (601) 960-8600
AFTER RECORDING RETURN TO:
___________________________
___________________________
___________________________
___________________________
EXHIBIT
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND BILL OF SALE
This ASSIGNMENT AND ASSUMPTION AGREEMENT AND BILL OF SALE
("Assignment"), is made by and between Parkway Portfolio I LLC, a
Delaware limited partnership ("Assignor") and _____________, a
_____________ ("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Purchase
Agreement") dated as of _______, 1998, by and between Assignor
and Assignee, Assignor agreed to sell to Assignee certain real
property, and the improvements located thereon ("Assets") as more
particularly described in the Purchase Agreement; and
WHEREAS, the Purchase Agreement provides, inter alia, that
Assignor shall assign to Assignee certain contractual and other
intangible rights, that Assignee shall assume all of the
obligations of Assignor with respect to the property so assigned
from and after the date of such assignment, and that Assignor and
Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby
agree as follows:
1. Assignment. Assignor hereby assigns, sets over and
transfers to Assignee all of Assignee's rights, title and
interest in and to the tangible and intangible personal property
owned by Assignor, located on the real property described on
Exhibit A hereto, and used in the ownership, operation and
maintenance of such real property including, without limitation,
the following (collectively called the "Personal Property"):
(i) All rights (if any) to use any trade
names associated with the Assets to the extent such
rights are assignable without expense to Assignor (but
Assignor does not represent that it has exclusive
rights to use such trade names and Assignor has not
registered the same in any manner);
(ii) The items of personal property described
on Exhibit B hereto;
(iii) The interest of Assignor under the
contracts and agreements described on Exhibit C hereto;
(iv) The interest of the landlord under the
tenant leases encumbering the real property described
on Exhibit D hereto (the "Leases");
(v) The tenant security deposits
described on Exhibit E hereto;
(vi) To the extent assignable without
material expense to Assignor, the tenant lease files
and correspondence relating to the Leases, plans and
specifications with respect to the Real Property,
promotional materials with respect to the leasing of
space within the Real Property, warranties and
guaranties relating to any of the other property to be
conveyed pursuant to the Purchase Agreement, licenses
and permits relating to the Real Property, and the
other property to be conveyed pursuant to the Purchase
Agreement.
2. Assignee's Assumption and Indemnification. Assignee
hereby assumes the obligation to pay any and all liabilities and
obligations arising or accruing under any of the property
described in Paragraph 1 above on or after the effective date
hereof. Assignee is only assuming those specific leases and
contracts referenced on the attached exhibits. Assignee agrees
to indemnify, defend and hold harmless Assignor from any loss,
cost, claim, liability, expense or demand of whatever nature
under any of the property described in Paragraph 1 above arising
or accruing on or after the effective date hereof.
3. Assignor's Indemnification. Assignor agrees to
indemnify, defend and hold harmless Assignee from any loss, cost,
claim, liability, expense or demand of whatever nature under any
of the property described in Paragraph 1 above arising or
accruing prior to the effective date hereof.
4. Limitation of Liability. Notwithstanding anything in
this Assignment to the contrary, each party acknowledges and
agrees that no officer of Assignor or Assignee nor any trustee,
beneficiary, or employee of either shall have any personal
liability, directly or indirectly, under this Assignment, or
under any certification, representation, warranty or other
instrument delivered in connection herewith.
5. Miscellaneous. This Assignment and the obligations of
the parties hereunder shall survive the closing of the
Transaction referred to in the Purchase Agreement, shall be
binding upon and inure to the benefit of the parties hereto,
their respective legal representatives, successors and assigns,
shall be governed by and construed in accordance with the laws of
the State where the assets are located, applicable to agreements
made and to be wholly performed within said State, and may not be
modified or amended in any manner other than by a written
agreement signed by the party to be charged therewith.
Assignor does hereby bind itself, its legal representatives,
successors and assigns, to SPECIALLY WARRANT, and FOREVER DEFEND
title to the property conveyed hereby unto Assignee, its legal
representatives, successors and assigns, against every person
whomsoever lawfully claiming or to claim same or any part
thereof, by, through or under Assignor, but not otherwise.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION OF THE PURCHASE
AGREEMENT AND SUBJECT TO THE PROVISIONS AND LIMITATIONS CONTAINED
IN THE PURCHASE AGREEMENT. ASSIGNOR MAKES NO WARRANTY, EXPRESS
OR IMPLIED, AS TO ANY OF THE PROPERTY CONVEYED HEREBY OR ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. BY ITS
ACCEPTANCE OF THIS ASSIGNMENT, ASSIGNEE ACKNOWLEDGES THAT IT HAS
FULLY INSPECTED THE PROPERTY CONVEYED HEREBY AND THAT IT ACCEPTS
THE PROPERTY CONVEYED HEREBY IN ITS PRESENT USED AND "AS IS"
CONDITION. ASSIGNEE ACKNOWLEDGES AND BY REFERENCE INCORPORATES
THE PROVISIONS OF SECTIONS , 7.4, AND OF THE PURCHASE AGREEMENT
HEREIN.
EXECUTED TO BE EFFECTIVE as of the ______ day of
________________, 1998.
ASSIGNOR:
Parkway Portfolio I LLC,
a Mississippi limited liability company
By: Parkway Properties LP, a Delaware limited
partnership, its sole member
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
By:
Name:
Title:
By:
Name:
Title:
ASSIGNEE:
TRIAD
PROPERTIES CORPORATION
By:
Name:
Title:
EXHIBIT
FORM OF
PURCHASER'S AFFIDAVIT AND AGREEMENT
STATE OF __________
COUNTY OF_________
This day personally came and appeared before me, the
undersigned authority _____________________, __________________
of ________________ ("Purchaser"), who is knowledgeable of the
facts stated herein and whose mailing address is
_______________________, who, upon being duly sworn, stated under
oath as follows that:
1. Pursuant to that certain Purchase and Purchase
Agreement ("Purchase Agreement") dated _________________, 1998 by
and between Purchaser and Parkway Properties, Inc. ("Seller"), to
Purchaser's knowledge, Purchaser has had full access to and has
(to Purchaser's satisfaction) exercised its option to inspect and
evaluate for potential purchase that certain property located in
__________________ and more particularly described on Exhibit A
attached hereto ("Assets") and all files of Seller relating
thereto which Purchaser felt were important or material to
Purchaser, and Seller made available to Purchaser all files of
Seller relating to the Assets requested by Purchaser.
2. Purchaser and experts of Purchaser's choice have had
access to and have (to Purchaser's satisfaction) (i) physically
inspected the Assets, (ii) analyzed the present and projected
uses of the Assets, (iii) determined the fair market value of the
Assets in its "As Is" condition (as defined in the Purchase
Agreement) as of the closing date, and (iv) to the extent
possible, independently verified all material documents and
information provided to Purchaser by Seller and/or its agents
which Purchaser deems necessary and material to close the
Transaction under the Purchase Agreement, and (v) independently
examined the Assets from a physical structural and environmental
standpoint. Except as expressly otherwise provided in the
Purchase Agreement, Purchaser accepts the Assets AS IS and
releases Seller from and waives all claims and liability against
Seller for or attributable to any structural, physical or
environmental condition at the Assets, including without
limitation, claims or liabilities relating to the presence,
discovery or removal of any Hazardous Materials (as defined in
the Purchase Agreement) in, at, about or under the Assets, or
for, connected with or arising out of any and all claims or
causes of action based upon CERCLA (Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601 et seq., as amended by SARA (Superfund Amendment and
Reauthorization Act of 1986), and as may be further amended from
time to time), the Resource Conversation and Recovery Act of
1976, 42 U.S.C. 6901 et seq., or any related claims or causes
of action or any other federal or state based statutory or
regulatory causes of action for environmental contamination at,
in or under the Assets. The agreements of Purchaser set forth in
this Affidavit shall survive the closing of the Transaction under
the Purchase Agreement and shall not be merged therein. Except
as expressly otherwise provided in the Purchase Agreement,
Purchaser is not relying upon any representation, inducement or
unperformed promise of Seller or any of Seller's agents except
to the extent such inducement, representation or unperformed
promise is set forth in the Closing Documents executed by Seller
contemporaneously herewith or as set forth in the Purchase
Agreement. Purchaser hereby represents that Purchaser has relied
upon Purchaser's own inspection and environmental reports in
reaching its decision to purchase the Assets, and Purchaser is
not relying upon inspection reports produced by Seller which may
be incomplete and/or outdated.
3. Purchaser acknowledges that it has received and
reviewed (with the assistance of such experts as Purchaser as
deemed appropriate) all information furnished by Seller regarding
the Assets, including, but not limited to, information as may
have related to its construction, history, current economic and
leasing status, physical condition and prospects for future use
or development, as Purchaser has deemed appropriate. BY
FURNISHING THE MATERIALS, DOCUMENTS, REPORTS OR AGREEMENT
DESCRIBED ABOVE, NEITHER SELLER NOR ANY OF SELLER'S AGENTS
(DEFINED AS BROKERS, ON-SITE PROPERTY MANAGERS, CONTRACTORS, OR
SIMILAR INDIVIDUALS OR ENTITIES ENGAGED BY SELLER RELATING TO OR
INVOLVING THE PROJECT), NOR ANY PARTNER, OFFICER, DIRECTOR,
EMPLOYEE, AGENT OR ATTORNEY OF SELLER, NOR ANY OTHER PARTY
RELATED IN ANY WAY TO ANY OF THE FOREGOING SHALL BE DEEMED TO
HAVE MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE
WHATSOEVER WITH RESPECT TO ANY MATTER SET FORTH, CONTAINED OR
ADDRESSED IN SUCH MATERIALS, DOCUMENTS, REPORTS OR AGREEMENTS,
INCLUDING, BUT NOT LIMITED TO, THE ACCURACY AND COMPLETENESS
THEREOF EXCEPT TO THE EXTENT OF THE REPRESENTATIONS MADE BY
SELLER IN SECTION OF THE PURCHASE AGREEMENT OR IN THE DOCUMENTS
EXECUTED BY SELLER AT CLOSING.
4. The representations, warranties and agreements of
Purchaser made herein are in addition to (and not in limitation
of) the representations, warranties and agreements of Purchaser
made in the Purchase Agreement.
ACCEPTED AND AGREED TO:
TRIAD
PROPERTIES CORPORATION
By:
Name:
Title:
STATE OF __________
COUNTY OF_________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of
__________________, 1998.
_______________________________________
Notary Public, State of
MY COMMISSION EXPIRES:
__________________________ Personally known ______ OR
Produced Identification ______
Type of Identification Produced
_____
EXHIBIT
FORM OF
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a
transferee of a United States real property interest must
withhold tax if the transferor is a foreign person. To inform
the transferee that withholding tax is not required upon the
disposition of a United States real property interest by Parkway
Portfolio I LLC, a Delaware limited partnership, the undersigned
hereby certifies the following on behalf of Parkway Portfolio I
LLC:
1. Parkway Portfolio I LLC is not a foreign corporation,
foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax
Regulations); and
2. Parkway Portfolio I LLC's U.S. employer tax
identification number is 72-1344324; and
3. Parkway Portfolio I LLC's office address is One Jackson
Place, Suite 1000, 188 E. Capitol Street, Jackson, Mississippi
39201.
Parkway Portfolio I LLC understands that this certification
may be disclosed to the Internal Revenue Service by transferee
and that any false statement contained herein could be punished
by fine, imprisonment, or both.
Under penalties of perjury, the undersigned authorized
representatives of Parkway Portfolio I LLC declares that they
have examined this certification and to the best of their
knowledge and belief it is true, correct and complete, and
further declare that they have authority to sign this document on
behalf of Parkway Portfolio I LLC.
Dated: _________________, 1998
Parkway Portfolio I
LLC, a Mississippi limited liability
company
By: Parkway
Properties LP, a Delaware limited
partnership, its sole member
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
By:
Name:
Title:
By:
Name:
Title:
STATE OF __________
COUNTY OF _________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
____________________________________
NOTARY PUBLIC
My commission expires:
____________________
(Affix official seal, if applicable)
STATE OF __________
COUNTY OF _________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
____________________________________
NOTARY PUBLIC
My commission expires:
____________________
(Affix official seal, if applicable)
PURCHASE AND SALE AGREEMENT
between
PARKWAY PROPERTIES LP
and
TRIAD PROPERTIES CORPORATION
APRIL 17, 1998
TABLE OF CONTENTS
ARTICLE 1PURCHASE AND SALE
1.1 Purchase and Sale 1
1.2 Real Property Identified 1
1.3 Personal Property Identified 2
1.4 Definition of Parcel, Parcels, Building and Buildings 3
ARTICLE 2PURCHASE PRICE
2.1 Escrow Deposit 3
2.2 Additional Escrow Deposit 4
2.3 Purchase Price 4
2.4 Payment of Purchase Price 4
ARTICLE 3ESCROW; CLOSING
3.1 Escrow Agent 4
3.2 Closing Date 4
3.3 Closing Costs 5
3.4 Prorations 5
ARTICLE 4TITLE MATTERS
4.1 Title Report/Commitment for Title Insurance 7
4.2 Surveys 8
4.3 Title Defects 8
4.4 Title Insurance 8
4.5 "Aggregate" Title Policy 9
ARTICLE 5INFORMATION SCHEDULES
5.1 Information Schedules 9
ARTICLE 6INSPECTION
6.1 Inspection Period 10
6.2 Right of Termination 11
ARTICLE 7REPRESENTATIONS AND WARRANTIES
7.1 Purchaser's Representations and Warranties 12
7.2 Seller's Representations and Warranties 13
ARTICLE 8COVENANTS
8.1 Covenants of Seller 15
8.2 Mutual Release 17
ARTICLE 9CLOSING MATTERS
9.1 Conditions to Purchaser's Obligations 18
9.2 Conditions to Seller's Obligations 18
9.3 Closing Deliveries 18
9.4 Purchaser's Obligation to Timely Deliver Closing
Deliveries 20
9.5 Knowledge as a Defense 20
9.6 Limitations on Liability 20
9.7 Knowledge Standard 20
9.8 Closing Contingent on Belvedere and Atrium at Bent
Tree Closings 21
ARTICLE 10DEFAULTS AND REMEDIES
10.1 Damages Against Purchaser 21
10.2 Damages against Seller 21
ARTICLE 11RISK OF LOSS
11.1 Risk of Loss 22
11.2 Minor Damage 22
11.3 Major Damage 23
11.4 Definition of Major Loss or Damage 23
ARTICLE 12GENERAL PROVISIONS
12.1 Brokerage Commission 23
12.2 Confidentiality 23
12.3 Entire Agreement 24
12.4 Further Assurances 24
12.5 Modification, Waiver 24
12.6 Severability 24
12.7 Successors 24
12.8 Assignment 24
12.9 Survival of Representations and Warranties 25
12.10 Attorneys' Fees 25
12.11 Time 25
12.12 No Other Inducement 25
12.13 Computation of Time Periods 25
12.14 Notices 25
12.15 Headings 26
12.16 Exhibits 26
12.17 Counterparts 27
12.18 Governing Law 27
12.19 Effective Date 27
ARTICLE 13LIKEKIND EXCHANGE
13.1 LikeKind Exchange 27
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is made and
entered into as of the Effective Date (as defined in Section ),
by and between Parkway Properties LP, a Delaware limited
partnership ("Seller") and Triad Properties Corporation, an
Alabama corporation, ("Purchaser");
WHEREAS, Seller is the owner of certain parcels of land
located in Richardson, Texas and Irving, Texas, which are legally
described on Exhibits and attached hereto (the "Land"); and
WHEREAS, there are certain real property improvements in, on
or under the Land (collectively, the "Improvements") (the Land
and Improvements are collectively referred to herein as the "Real
Property"); and
WHEREAS, Seller owns certain items of tangible and
intangible personal property listed on Exhibit attached hereto
(collectively "Personal Property") (the Real Property and
Personal Property are collectively referred to herein as the
"Assets"); and
WHEREAS, Seller desires to sell, transfer, assign and convey
to Purchaser, and Purchaser desires to purchase and acquire from
Seller, all of Seller's right, title and interest in and to the
Land, Improvements and the Personal Property pursuant to the
terms and conditions set forth herein (the "Transaction"); and
NOW, THEREFORE, in consideration of the premises, and the
mutual covenants, agreements, representations and warranties
contained in this Agreement, and intending to be legally bound,
Purchaser and Seller agree as follows:
I.
ARTICLE
PURCHASE AND SALE
ARTICLE PURCHASE AND SALE
1.1 Purchase and Sale Purchase and Sale. Subject to the
provisions of, and on the basis of the covenants, agreements,
representations and warranties contained in this Agreement,
Seller agrees to sell, transfer, assign and convey all of its
right, title and interest in and to the Assets to Purchaser, and
Purchaser agrees to purchase and acquire the Assets from Seller.
1.2 Real Property Identified Real Property Identified. As
used herein, the Real Property shall mean:
(a) Description of Land. The real estate legally
described in Exhibits and attached hereto.
(b) Description of Improvements. The Improvements,
all building materials, fixtures, heating, ventilation and air
conditioning systems, canopies, sidewalks, walkways, planters and
landscape materials, and all other real property improvements
owned by Seller and located in, on or under the Land or related
to, used or available for use in the ownership, conduct,
operation or maintenance of the Real Property.
(c) Rights and Appurtenances. All and singular, the
rights and appurtenances pertaining to the Land, including, but
not limited to, any right, title and interest of Seller in and to
adjacent streets, roads, alleys, easements and rights-of-way.
1.3 Personal Property Identified.
(a) Description of Tangible Personal Property. The
tangible Personal Property consists of all tangible personal
property located on or attached to the Real Property and owned by
Seller and used or available for use by Seller in the ownership,
operation and/or management of the Real Property and in the
repair, operation and maintenance of the Assets, including,
without limitation, all of Seller's right, title and interest in
all equipment, tools, machinery, furniture, furnishings, office
and other supplies, inventories, spare parts and other tangible
personal property located on or attached to the Real Property.
The tangible Personal Property specifically includes all tangible
personal property located in any management office at the real
property owned or leased by Seller. The material tangible
Personal Property is generally described on Exhibit attached
hereto.
(b) Description of Intangible Personal Property.
The intangible Personal Property consists of all material
intangible personal property owned by Seller and used by Seller
in connection with the operation and/or management of the Real
Property and in the repair, operation and maintenance of the
Assets and includes, without limitation, (i) all assignable
guarantees and warranties (including those pertaining to
construction of the Improvements, if any); (ii) all assignable
licenses and other permits relating to the use and ownership of
the Assets or the operation thereof; (iii) all assignable
contracts, agreements and contract rights; (iv) rights, if any,
to use any trade names associated with the Assets on a non-
exclusive basis (Seller makes no representation or warranty with
respect to its right to use such names and has not registered or
filed an assumed name certificate for the same in any manner);
and (v) all leases, tenancies and rental agreements or
arrangements (collectively, the "Leases") with tenants, and
security, damage and other deposits and payments which are set
forth on Exhibit with respect to the Leases and not applied by
Seller in accordance with the terms of the Leases prior to the
Closing Date (collectively, the "Deposits").
1.4 Definition of Parcel, Parcels, Building and
Buildings Definition of Parcel, Parcels, Building and Buildings.
(a) Building(s). The terms "Building" and
"Buildings" as used herein shall mean and refer to either one of
or both of the Courtyard at Arapaho Building and/or the Fairway
Plaza Building as the context may require.
(b) Courtyard at Arapaho Building. The term
"Courtyard at Arapaho Building" shall mean and refer to the
Building located on the Land in Richardson, Texas and more
particularly described on Exhibit .
(c) Fairway Plaza Building. The term "Fairway Plaza
Building" shall mean and refer to the Building located on the
Land in Irving, Texas and more particularly described on Exhibit.
(d) Parcel(s). The term "Parcel" and "Parcels" as
used herein shall mean and refer to either one of or both of the
Courtyard at Arapaho Parcel and/or The Fairway Plaza Parcel as
the context may require.
(e) Courtyard at Arapaho Parcel. The term
"Courtyard at Arapaho Parcel" shall mean and refer to the Land
legally described on Exhibit and the Improvements located
thereon.
(f) Fairway Plaza Parcel. The term "Fairway Plaza
Parcel" shall mean and refer to the Land legally described on
Exhibit and the Improvements located thereon.
2 ARTICLE
PURCHASE PRICE
2.1 Escrow Deposit. Purchaser shall
within two (2) business days following the Effective Date deliver
to Chicago Title Insurance Company, National Accounts Division,
Attention: Ellen Schwab, Telephone: ________, Facsimile:_______,
Attention: __________ or such other national title company as
selected by Seller and approved by Purchaser ("Title Company")
the sum of $100,000.00 ("Initial Escrow Deposit") in lawful funds
of the United States of America. Except as contemplated by
Sections and , the Initial Escrow Deposit and all interest
thereon shall be non-refundable to Purchaser but shall be
credited toward the Purchase Price upon Closing (defined below).
Title Company is hereby instructed to invest the Initial Escrow
Deposit in an interest bearing account in the name of Purchaser.
Purchaser's taxpayer identification number is __________.
Purchaser and Seller hereby acknowledge and agree that, at
Closing all accrued interest on the Initial Escrow Deposit shall
be credited to Purchaser, provided, however, in the event that
this Transaction does not close under circumstances where Seller
is entitled to the Escrow Deposit, then all accrued interest
thereon shall be delivered to Seller.
2.2 Additional Escrow Deposit. Within one (1) business day following
the expiration ofthe Inspection Period (defined below), if Purchaser has not
elected to terminate this Agreement in accordance with Article
below, Purchaser shall deposit an additional $100,000.00 (the
"Additional Escrow Deposit") which shall, together with the
Initial Escrow Deposit constitute the "Escrow Deposit". In the
event Purchaser fails to deliver the Additional Escrow Deposit
pursuant to the terms hereof, then the Initial Escrow Deposit
shall be delivered to Seller and neither party shall have any
further obligation to the other. Upon delivery of the Additional
Escrow Deposit, the entire Escrow Deposit shall be non-refundable
to Seller except as contemplated by Sections and .
2.3 Purchase Price. Seller agrees
to sell, and Purchaser agrees to purchase, the Assets for a total
purchase price equal to Twenty-Five Million Seven Hundred
Thousand and 00/100 Dollars ($25,700,000) ("Purchase Price"),
plus or minus prorations and other adjustments provided by this
Agreement, upon and in accordance with the terms and conditions
of this Agreement. The Purchase Price shall be allocated among
the Parcels pursuant to Exhibit .
2.4 Payment of Purchase Price.
The Purchase Price (of which the Escrow Deposit may be a
part), plus or minus prorations, shall be paid in immediately
available funds through escrow to Seller on the Closing Date
(defined below).
3 ARTICLE
ESCROW; CLOSING
3.1 Escrow Agent. Title Company is
authorized and instructed to act as escrow agent pursuant to the
terms of this Agreement. By execution of the acknowledgment
attached hereto, Title Company acknowledges receipt of the
Initial Escrow Deposit. Title Company shall promptly notify both
Purchaser and Seller upon receipt of the Additional Escrow
Deposit. Purchaser and Seller shall execute any additional
escrow instructions reasonably required by Title Company to
complete the Transaction provided that such instructions are not
inconsistent with the terms of this Agreement.
3.2 Closing Date. Closing shall be on
the fifteenth day after the expiration of the Inspection Period
(hereafter referred to as "Closing Date" or "Closing"). In the
event Seller has not yet identified sufficient properties to
effectuate the like-kind exchange contemplated by Article
hereof, the Seller may, by providing notice to Purchaser at least
ten (10) days prior to the Closing Date, extend Closing for an
additional thirty (30) days, provided however, in no event shall
the Closing Date be later than forty-five (45) days after the end
of the Inspection Period unless a different date is determined by
the mutual agreement of Seller and Purchaser. If Seller elects
to extend the Closing, Purchaser may at its option proceed to
close the transaction contemplated by that certain Purchase and
Sale Agreement of even date herewith between Purchaser and
Parkway Portfolio I, LLC (the "Belvedere Agreement").
3.3 Closing Costs.
(a) Seller's Payments. Seller shall pay the cost
and expenses, if any, of (i) the title search and title insurance
commitment; (ii) fees for recording the deed conveying the Real
Property, including any stamp, documentary or transfer taxes;
(iii) the surveys; (iv) the premium for a single Owner's standard
form title policy in the aggregate amount of $53,250,000 which
shall cover the Real Property and the "Real Property" under the
Belvedere Agreement (but not for any modifications, endorsements
or deletions with respect thereto, including without limitation,
survey endorsements) not to exceed $155,913.50; and (v) one-half
of any escrow fees charged by Title Company.
(b) Purchaser's Payments. Purchaser shall pay and
the cost and expenses of: (i) any endorsements, modifications or
deletions to the title insurance policies (including, without
limitation, deletion of the survey exception); and (ii) one-half
of any escrow fees charged by title company.
(c) Other Costs. Each party will pay all its own
expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including, without limitation
(i) all costs and expenses stated herein to be borne by a party,
and (ii) all of their respective consulting, accounting, legal
and appraisal fees.
3.4 Prorations. The following
prorations shall be made effective as of the Closing Date and, to
the extent possible, shall be made tentatively at Closing:
(a) Proration Date. All prorations shall be made as
of 12:01 a.m., according to the time zone in which the Assets are
located, on the Closing Date, and, subject to the provisions of
Section , as if Purchaser were vested with title to the Assets
during the entire Closing Date.
(b) Rents. All rents under the Leases for the month
in which Closing occurs which are actually received by Seller
shall be prorated as of the Closing Date. All advance payments
of rents, other than for the month in which Closing occurs, and
all Deposits shall be paid by Seller to the Purchaser at Closing.
Delinquent rents and additional rents owed for the month during
which Closing occurs (for the pro rata period of Seller's
ownership of such Property) or prior to the month during which
the Closing takes place shall remain the property of Seller, and
Purchaser, without cost to Purchaser, shall use reasonable
efforts (not to include commencing any eviction action or other
litigation to collect such delinquency) to collect such
delinquent rents and additional rents for the benefit of Seller
after Closing and shall cooperate with Seller in the collection
of any such delinquent rents and additional rents, but shall not
be obligated to collect any such delinquency. Seller shall
retain the right to pursue all remedies (excluding eviction of
tenants) against tenants from whom Purchaser is unable to collect
such delinquent rents and additional rents despite diligent
efforts. After the Closing, Seller will cause to be paid or
turned over to Purchaser all rents, if any, received by Seller
after Closing and attributable to any period following the
Closing. All rent received by Purchaser after the Closing Date
shall be applied first to current rentals and then to delinquent
rentals in the inverse order of maturity. Purchaser shall cause
to be paid or turned over to Seller all rents received by
Purchaser after Closing and attributable to any period prior to
Closing, subject to the provisions of the immediately preceding
sentence.
(c) Deposits. After the Closing, Purchaser will
assume full responsibility for all Deposits which are itemized
by Seller and credited to Purchaser at the Closing.
(d) Taxes. Ad Valorem and personal property taxes
and assessments against the Assets for the year of Closing,
including, without limitation, assessments associated with
declaration of covenants and association dues, if any, shall be
prorated between Seller and Purchaser as of the Closing Date. If
actual taxes are unknown, they shall be prorated based upon the
best available information from the local taxing authority. To
the extent that the actual taxes for the current year differ from
the amounts so apportioned at Closing, Seller and Purchaser shall
make all necessary adjustments by appropriate payments between
themselves following Closing. Provided, however, Seller shall
not be required to make payments to Purchaser for any tax
proration to the extent such payment is payable by or chargeable
to tenants. Subject to any applicable proration, all such taxes
and assessments which are due and payable on or before the
Closing Date shall be paid in full by Seller prior to Closing.
(e) Utilities. Charges for utilities serving the
Assets shall be determined as of the day preceding the Closing
Date. Final readings and final billings for utilities will be
made if possible as of the day preceding Closing, in which event
no proration will be made at Closing with respect to utility
bills. If final readings and final billings for utilities are
not possible, the parties shall prorate the utility bills based
on the most recent prior months' utility bills, and upon receipt
of the actual utility bills which include the Closing Date and to
the extent that the amounts so apportioned at Closing differ,
Seller and Purchaser shall make all necessary adjustments by
appropriate payments between themselves following Closing. All
utility deposits of Seller shall belong to Seller.
(f) Contract Charges. Charges with respect to
service contracts transferred and assigned to Purchaser shall be
prorated as of the Closing Date. Payments for obligations under
leases of tangible Personal Property transferred and assigned to
Purchaser will be prorated as of the Closing Date. To the extent
not reflected in the closing statements evidencing the
Transaction, Purchaser and Seller agree to adjust between
themselves outside of Closing any amounts which are the
responsibility of the other party pursuant to this subsection.
(g) Miscellaneous Operating Income and Expense.
Except as otherwise provided herein, all other income or
operating expenses relating to the Assets will be prorated at the
Closing, effective as of the date of Closing.
(h) Leasing Costs. Seller shall be responsible for
paying all costs, including, without limitation, tenant
improvements and leasing commissions associated with any new
lease, or any expansion, modification or renewal of any existing
Lease, executed by Seller or exercised by a tenant prior to the
Effective Date. If Purchaser acquires the Assets, Purchaser
shall be responsible for paying all costs (including, without
limitation, leasing commissions and tenant improvements costs)
associated with all leases or lease expansions, modifications or
renewals executed after the Effective Date to which Purchaser has
consented or has been deemed to consent or associated with any
lease expansion or renewal occurring after the Effective Date
pursuant to the existing provisions of the applicable Lease.
Seller shall receive a credit at Closing for any such costs
previously paid by Seller which are obligations of Purchaser
hereunder. If, for any reason, Purchaser does not purchase the
Assets, Purchaser shall not be responsible or liable to any
entity with respect to any such costs or leasing commissions.
(i) Tenant Additional Rents. Seller and Purchaser
acknowledge that certain tenants of the Buildings may owe
payments after the Closing, attributable to percentage rentals,
expense escalation reimbursements, operating expense pass-
throughs, and common area maintenance reimbursements. The
parties further agree to prorate any such payments, effective as
of the date of the Closing, as they are received by Purchaser
after the Closing.
The agreements with respect to prorations in this Section
shall survive Closing. Final settlement of all prorated items,
except real estate taxes if final determination thereof is not
possible, delinquent rentals if collected, and tenant additional
rents, shall occur on or before 60 days after the Closing Date,
or on the next business day if the 60th day is a Saturday, Sunday
or legal holiday. Liabilities accruing prior to the Closing Date
shall be the responsibility of Seller. Liabilities accruing on
or after the Closing Date shall be the responsibility of
Purchaser.
4 ARTICLE
TITLE MATTERS
4.1 Title Report/Commitment for Title Insurance. Seller hereby
instructs Title Company to prepare and deliver to Purchaser,
Seller and the surveyors described below, at Seller's expense, as
soon as possible after the Effective Date an "aggregate" title
commitment issued by Title Company together with legible copies
of all referenced exceptions (the "Title Commitment") covering
the Parcels and the "Parcels" as defined in the Belvedere
Agreement (the "Belvedere Parcels"), showing all matters
affecting title to the Parcels and binding Title Company to issue
to Purchaser at Closing an owner's policy of title insurance on a
standard non-residential Texas form of policy in the full amount
of the Purchase Price and the "Purchase Price" under the
Belvedere Agreement pursuant to Section hereof. Seller and
Purchaser further instruct Title Company to deliver to such
parties copies of all instruments referenced in Schedule B,
Section II of the Title Commitment.
4.2 Surveys. Seller shall, within two (2)
business days of the Effective Date, order surveys or updates to
surveys to be delivered to Seller, Purchaser and Title Company.
Such surveys shall be land title surveys of the Land and of the
Improvements situated thereon dated no earlier than January 1,
1998, situated thereon (the "Surveys"), each prepared by a
surveyor licensed by the State in which the Assets are located
and certified to Purchaser, Seller and Title Company and such
other parties as Purchaser may designate by such surveyors.
Seller shall use diligent efforts to cause the surveys to be
delivered no later than ten (10) business days after the
Effective Date.
4.3 Title Defects. Within seven (7)
days after receipt of the later of the Title Commitment and the
Survey, Purchaser shall notify Seller in writing ("Purchaser's
Notice") of any title matters to which Purchaser objects (the
"Title Defects"). Any matter disclosed in the Title Commitment
or Survey and not objected to by Purchaser or subsequently waived
by Purchaser shall be deemed a permitted exception ("Permitted
Exception"). Seller shall notify Purchaser of Seller's decision
not to cure any Title Defect within five (5) days after receipt
of Purchaser's Notice; provided, however, Seller shall remove all
monetary liens, if any. Seller's failure to respond shall be
deemed a decision by Seller not to cure any Title Defect.
Within five (5) days of Seller's election not to cure certain
Title Defects, Purchaser may elect to waive such Title Defects or
terminate this Agreement in which event Seller shall be entitled
to the Escrow Deposit and all interest accrued thereon.
Purchaser's failure to respond shall be deemed a decision by
Purchaser to waive the Title Defects to which Seller decides not
to cure. If the Title Defects, that Seller elected to cure, are
not cured by Seller or waived by Purchaser on or before the
Closing Date then Purchaser may (i) elect to waive the uncured
Title Defects, or (ii) terminate this Agreement in which event
Purchaser shall be entitled to receive the Escrow Deposit and all
interest accrued thereon. Without regard to the foregoing, in
the event of an act or omission of Seller which has a material
adverse effect on title to the Parcels after the effective date
of the Title Commitment, Purchaser may terminate this Agreement
and receive the Escrow Deposit and all interest accrued thereon.
4.4 Title Insurance. At Closing,
Seller and Purchaser shall instruct Title Company to issue a
final update to the Title Commitment in which the "GAP" exception
has been deleted, binding Title Company to issue to Purchaser an
"aggregate" owner's policy of title insurance (the "Title
Policy") covering the Parcels in the full amount of the Purchase
Price and the "Purchase Price" under the Belvedere Agreement.
The Title Policy shall be Texas standard form owner's policy of
title insurance subject only to: (a) current non-delinquent real
estate taxes and assessments; (b) Permitted Exceptions; (c) title
exceptions caused by acts or omissions of Purchaser; and (d) with
Schedule B, Item 1 marked "none of record" or reflecting only
those restrictive covenants which are Permitted Exceptions,
Schedule B, Item 5 limited to the year in which Closing occurs
and subsequent years, Schedule B, Item 6 deleted, and with none
of the matters on Exhibit "C" listed as exceptions, and with
Schedule B, Item 2 amended to read "shortages in area only" upon
Purchaser's payment of a 15% additional premium.
4.5 "Aggregate" Title Policy Policy.
Purchaser acknowledges that certain cost savings will
result from the issuance by the Title Company of one (1) multi-
property title insurance policy covering both the Real Property
to transferred pursuant to this Agreement and certain real
property to be purchased from Seller (or related entities)
pursuant to the Belvedere Agreement. Accordingly, if Seller
extends the Closing hereunder and Purchaser elects to proceed to
close the Belvedere Agreement, Purchaser hereby agrees that
Purchaser and Seller will at Closing instruct the Title Company
that, notwithstanding closing of the Belvedere Agreement, the
Title Company shall have no obligation to deliver the Title
Policy prior to the day that is the business day after Closing of
both agreements and which precedes the expiration date of the
Title Commitment (the "Expiration Date"). Should the acquisition
of the Parcels fail to close on or before the Expiration Date,
Purchaser and Seller shall in good faith request a one time re-
issuance of the Title Commitment extending the expiration of the
Title Commitment for an additional sixty (60) day period (the
"Extended Expiration Date"). In the event such request is
rejected by the Title Company, Seller and Purchaser shall
instruct the Title Company to deliver the Title Policy to
Purchaser no later than the Expiration Date. If the request for
the re-issuance of the Title Commitment is granted, then the
Title Company shall be instructed to deliver the Title Policy to
Purchaser on that day that is the earlier to occur of (i) the
closing of the acquisition under the Belvedere Agreement or (ii)
the Extended Expiration Date.
5 ARTICLE
INFORMATION SCHEDULES
5.1 Information Schedules.
Seller has delivered or will deliver within two (2) business days
after the Effective Date, or make available for inspection by
Purchaser, without representation or warranty of any type other
than as expressly provided in Section hereof, copies of all
schedules and documents referred to in this Agreement
("Information Schedules"), including the following schedules and
other information described below:
(a) Leases. True and complete copies, of all Leases
listed on the rent roll and all amendments and modifications to
all Leases. Seller will make the tenant files relating to the
Leases available for inspection by Purchaser at either the
Buildings or its local property manager's office, to the extent
such are in Seller's or its agent's possession.
(b) Contracts. Copies of all written service,
maintenance, management and other agreements, equipment leases,
contracts and arrangements relating or pertaining to the Assets
(collectively "Contracts") which are identified on the Contracts
Schedule which is attached hereto as Exhibit .
(c) Permits. Copies of all current business or
other licenses, permits, certificates of occupancy,
authorizations and other evidences of consent relating to or
affecting the Assets (collectively "Permits") of or from any
governmental authority, which are in Seller or its agents'
possession.
(d) Property Taxes/Utility Bills. Copies of the tax
statements and bills (both real estate and personal property
taxes) and all utility statements and bills with respect to the
Assets for all prior years which are in Seller's possession.
(e) Warranties. Copies of all material third party
warranties and guaranties, including any warranties relating to
equipment, structures, roof, landscaping, parking lot or parking
lot surfaces, if any, which are in effect with respect to or
which benefit any portion of the Assets.
(f) Operating Statements. As soon as available,
copies of all operating statements for the Assets for the period
beginning upon Seller's acquisition of the applicable Parcel
through March 31, 1998 and all prior operating statements of the
previous owners of the Parcels which are in Seller's possession.
(g) Plans. Copies of all construction plans,
specifications, diagrams and schematics of the Real Property and
Improvements in Seller's possession or control will be made
available to Purchaser at the location of the Assets.
(h) Third Party Reports. Copies of any
environmental, structural or mechanical reports, or any
appraisals in Seller's possession.
(i) Zoning Letters. Copies of any letters obtained
by Seller upon its acquisition of the Parcels from governmental
authorities regarding local zoning requirements.
Notwithstanding the fact that Seller is furnishing all such
information, Purchaser acknowledges and agrees that Seller makes
no representation or warranty, express or implied, as to the
accuracy or completeness of any of such information, reports,
plans, statements or appraisals and is providing them to
Purchaser solely as an accommodation to Purchaser. Provided,
however, this disclaimer of representation and warranties shall
not alter or otherwise diminish in any manner the express
representations and warranties of Seller set forth under Section.
6 ARTICLE
INSPECTION
6.1 Inspection Period. During
the period beginning upon the Effective Date and ending at 5:00
p.m., central time, May 18, 1998 (such period of time hereinafter
referred to as the "Inspection Period"), Purchaser and/or its
attorneys, consultants or employees ("Authorized
Representatives") shall have the right to: (i) make a physical
inspection of the Assets subject to the rights of tenants, (ii)
examine the financial and operating books and records relating to
the Assets maintained by or for the benefit of Seller, (iii)
interview tenants of the Improvements, and (iv) conduct such non-
destructive physical engineering, feasibility and other studies
and tests on or of the Assets as Purchaser considers to be
appropriate. Subject to Seller's prior written approval of the
scope and nature of any Phase 2 environmental site assessment,
Purchaser may conduct a Phase 2 environmental site assessment of
the Assets if recommended by Purchaser's environmental
consultant. Purchaser and/or Purchaser's Authorized
Representatives may also copy any documents referred to or
described in the Information Schedules but not required to be
provided to Purchaser as part of any such schedule.
Notwithstanding the foregoing, Purchaser hereby agrees to use
commercially reasonably efforts not to unreasonably interfere
with Seller's operations at the Improvements or interfere with
any tenant's operations at the Improvements, and the scheduling
of any inspections, interviews, and/or testing shall take into
account the timing and availability of access to tenant's
premises, subject to and in accordance with tenants' rights under
the Leases or as tenants may otherwise agree. Purchaser shall at
all times conduct such due diligence in compliance with
applicable laws and the terms of any leases of the Improvements,
and in a manner so as to not cause undue damage, loss, cost or
expense to Seller, the Improvements or the tenants of the
Improvements, and Purchaser shall promptly restore the
Improvements to their condition immediately preceding such
inspections and examinations and shall keep the Improvements free
and clear of any mechanic's liens or materialmen's liens in
connection with such inspections and investigations. Seller
shall have the right, at its option, to cause a representative of
Seller to be present at all such inspections, reviews and
examinations. Purchaser shall keep all information or data
received or discovered in connection with such due diligence (the
"Confidential Information") strictly confidential; provided,
however, Purchaser may disclose such Confidential Information if
required by law and to Authorized Representatives. Purchaser
shall indemnify, protect, defend and hold Seller harmless from
and against any obligation, liability, claim (including any claim
for damage to property or injury to or death of any persons),
lien or encumbrance, loss, damage, cost or expense, including
attorney's fees, in any way caused by the inspections or
examinations of the Assets by Purchaser or its authorized
representatives. The foregoing indemnification shall survive the
Closing or the termination of this Agreement for any reason.
6.2 Right of Termination Right of Termination.
Notwithstanding anything in this Agreement to the contrary,
Purchaser shall have the right, for any reason in Purchaser's
sole and absolute discretion, to terminate this Agreement by
written notice to Seller and Title Company on or before the
expiration of the Inspection Period and Title Company shall
immediately deliver to Seller the Initial Escrow Deposit and any
interest thereon. In the event the Transaction does not close
for any reason, Purchaser shall deliver to Seller all materials,
studies or documents received from third parties or from Seller
relating to the Assets and copies of tests and studies received
by Seller from third parties relating to the physical condition
of the Assets, without representation or warranty of any type.
7 ARTICLE
REPRESENTATIONS AND WARRANTIES
7.1 Purchaser's Representations and Warranties. Purchaser makes the
following representations and warranties, as of the date of
execution of this Agreement, which shall survive Closing and
conveyance of the Assets to Purchaser:
(a) Authority. Purchaser is a corporation, duly
formed, organized, existing and in good standing under the laws
of the State of Alabama; Purchaser has full legal right, power
and authority to execute and fully perform its obligations under
this Agreement, without the need for any further action under its
governing instruments; and the person executing this Agreement
and the other documents required hereunder is the duly designated
officer of Purchaser and is authorized to do so.
(b) Inspection. Purchaser has made, or will make
prior to expiration of the Inspection Period, an independent
investigation, to the extent Purchaser deems necessary or
appropriate, concerning the physical condition, value,
development, use, marketability, feasibility and suitability of
the Assets, including, without limitation, land use, zoning and
other governmental restrictions.
(c) No Other Seller Representations. Except as
expressly set forth herein, Purchaser acknowledges that no
representations or warranties, express or implied, have been made
by Seller or Seller's representatives.
(d) "AS IS, WHERE IS". PURCHASER HEREBY EXPRESSLY
ACKNOWLEDGES THAT IT HAS INSPECTED AND EXAMINED OR WILL INSPECT
AND EXAMINE THE ASSETS TO THE EXTENT DEEMED NECESSARY BY
PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE PURCHASE
OF THE ASSETS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE
PURCHASER OF REAL ESTATE AND OFFICE DEVELOPMENTS AND THAT, EXCEPT
AS SET FORTH IN SECTION OR THE DOCUMENTS DELIVERED PURSUANT TO
SECTION , IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
PURCHASER'S CONSULTANTS, AND THAT PURCHASER HAS CONDUCTED OR WILL
CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE ASSETS,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AND IS RELYING OR WILL RELY UPON SAME, AND
SHALL ASSUME THE RISK OF ANY ADVERSE MATTERS, INCLUDING, BUT NOT
LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS
ACQUIRING THE ASSETS ON AN "AS IS, WHERE IS, WITH ALL FAULTS"
BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS
OR IMPLIED, OF ANY KIND OR NATURE OTHER THAN THOSE SET FORTH
HEREIN AND IN THE DOCUMENTS OF TRANSFER RELATING TO THIS
TRANSACTION. THE PROVISIONS OF THIS SECTION SHALL BE CONTAINED
IN THE DEED TO BE DELIVERED TO PURCHASER AT CLOSING AND SHALL
SURVIVE CLOSING AND THE FUTURE TRANSFER OF ANY OR ALL OF THE
ASSETS BY PURCHASER.
Initialed by:
Seller Purchaser
7.2 Seller's Representations and Warranties.
Seller makes the following representations and warranties, as of the date of
execution of this Agreement, which shall survive Closing (to the
extent set forth in Section ) and conveyance of the Assets to
Purchaser:
(a) Authority. Seller is a limited partnership, duly
formed, organized, existing and in good standing under the laws
of the State of Delaware. Seller is currently registered as a
foreign limited partnership with the Texas Secretary of State.
Seller has full legal right, power and authority to execute and
fully perform its obligations under this Agreement, without the
need for any further action under its governing instruments. The
persons executing this Agreement and the other documents required
hereunder are the duly designated representatives of Seller and
are authorized to do so.
(b) Litigation. There are no actions, suits or
proceedings pending or, to Seller's actual knowledge, threatened
against, by or affecting Seller which affect title to the Assets
or which question the validity or enforceability of this
Agreement or of any action taken by Seller under this Agreement,
in any court or before any governmental authority, domestic or
foreign.
(c) Indefeasible Title. At the Effective Date and
as of Closing, Seller will own the Personal Property free and
clear of all liens, claims, encumbrances, and rights of others,
except for the Permitted Exceptions and the leased or financed
equipment disclosed pursuant to the Information Schedules, and
will convey same to Purchaser. Seller is not a party to any
contract agreement, or commitment to sell, convey, assign,
transfer or otherwise dispose of any portion or portions of the
Assets.
(d) FIRPTA. Seller is not a "foreign person" (as
defined in the Internal Revenue Code and Income Tax Regulations).
The provisions of the Foreign Investment in Real Property Tax Act
of 1980, as amended, are not applicable to the Transaction.
(e) Condemnation. Seller has received no written
notice of any condemnation proceedings relating to the Property.
(f) Governmental Notice. To Seller's actual
knowledge, Seller has received no written notice from any
governmental entity and has no actual knowledge of any violations
or potential violation of any zoning, building, health,
environmental or other laws, codes or ordinances, regulations,
orders or requirements of any city, county, state or other
governmental authority having jurisdiction thereof.
(g) Rent Roll. To Seller's actual knowledge, the
Rent Roll, Delinquency Reports (if attached), Security Deposit
Schedule and Commissions Schedule are each attached hereto as
part of Exhibit and are accurate in all material respects.
(h) Leases. To Seller's actual knowledge, the Leases
scheduled and identified on the Rent Roll attached hereto are the
only leases or other agreements for use, occupancy or possession
presently in force with respect to all or any portion of the
Assets.
(i) Estoppel Representation. To Seller's actual
knowledge, the Leases scheduled and identified on the Rent Roll
are all presently in full force and effect, have not been
modified, supplemented or amended except as set forth on the Rent
Roll, and are the entire agreement between Seller and the
"lessees" or "tenants" thereunder; Seller has fully and
completely performed all of the duties and obligations of the
"lessor" or "landlord" under the Leases arising on or before the
date hereof, there are no obligations of the "lessor" or
"landlord" under any of the Leases to make or to pay for any
improvements, alterations or additions to the premises covered
thereby except as indicated in the Leases; there are no defaults
by the "lessees" or "tenants" under any of the Leases; there are
no rentals which have been paid under any of the Leases more than
one (1) month in advance except as indicated on the Rent Roll;
except as indicated in the Leases there are no rent concessions
or offsets with respect to any of the Leases; except as indicated
in the Leases there are no options in favor of the "lessees" or
"tenants" under any of the Leases to purchase all or any portion
of the Property, except as indicated in the Leases, there are no
options in favor of the "lessees" or "tenants" to renew or extend
the term of any of the Leases. This representation shall
terminate and be of no further force or effect as to each Lease
upon the delivery to Purchaser of a Tenant's Estoppel Certificate
in the form attached hereto without any material modification
thereto so long as such estoppel certificate is consistent with
the substance of this representation and the terms of such
Tenant's Lease.
(j) Contract Schedule. To Seller's actual
knowledge, the Contract Schedule sets forth all Contracts
pertaining to the Assets. Seller shall cause any property
management agreements applicable to the Parcels to be terminated
as of the Closing.
(k) Environmental Matters. For the purpose of this
Agreement, the term "Hazardous Materials" shall mean (i) each and
every substance included within the term "hazardous substance" or
"hazardous waste" as defined in any one or more of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C.A. Section 9601 et seq. (as heretofore
amended), the Hazardous Materials Transportation Act of 1975, 49
U.S.C.A. Section 1801 et seq. (as heretofore amended), the
Resource Conservation and Recovery Act of 1976, 42 U.S.C.A.
Section 6901 et seq. (as heretofore amended) and any other
federal, state or local environmental laws or regulations now or
hereafter enacted; (ii) all substances to which the rules and
regulations promulgated by any Federal or state agency pursuant
to any one or more of said statutes applies; and (iii) any and
all petroleum products and petroleum derivatives. Seller
represents unto Purchaser that the following matters are true as
of the date of execution of this Agreement by Seller, and shall
survive Closing and not merge into any documents delivered at
Closing:
(i) Seller has no actual knowledge of any (i)
currently existing violations of federal, state, county or
municipal environmental laws in respect to the Parcels, or (ii)
past, pending or threatened administrative or judicial litigation
or other legal proceedings including, without limitation, any
enforcement proceeding under any federal, state, county or
municipal statute, ordinance, rule or regulation concerning
Hazardous Materials, relating to the Assets, or of any settlement
thereof;
(ii) Seller has no actual knowledge of any underground
storage tanks ("USTs") located on or below the Land;
8 ARTICLE
COVENANTS
8.1 Covenants of Seller Covenants of Seller.
Seller covenants and agrees with Purchaser as follows:
(a) Access. Subject to the terms and conditions of
Section , during normal business hours prior to Closing, Seller
agrees to give to Purchaser and its agents and representatives
reasonable access to the Assets and the books and records
directly relating to the ownership, management, maintenance and
operation of the Assets, and all documents directly pertaining to
the Assets that are in the possession of Seller, or any of
Seller's agents. Prior to Closing, Seller will furnish Purchaser
with such additional financial and operating data and other
information reasonably available to Seller as may be reasonably
necessary for Purchaser to thoroughly evaluate the Assets,
including, without limitation, updated rent rolls, commissions
schedule, operating statements and contract information.
(b) Operation of Assets Prior to Closing. Prior to
Closing, Seller shall: (i) not cancel or permit cancellation of
any hazard or liability insurance carried with respect to the
Assets; (ii) operate the Assets on a basis consistent with
historical operations including, without limitation, undertaking
all reasonably required ordinary maintenance and repair of the
Improvements (but not including any capital or extraordinary
expenditures) or (iii) undertake any required tenant improvements
relating to new or renewal leases in compliance with the Leases
and subject to reimbursement by Purchaser at Closing in
accordance with the terms hereof. Prior to Closing, Seller will
not, without the prior written consent of Purchaser, amend,
renew, extend modify or terminate any Contract. Provided, in the
event Seller provides Purchaser with any proposed Contract, and
Purchaser does not object to the terms thereof within five (5)
business days, Purchaser shall be deemed to have approved such
Contract and agreed to assume Seller's obligations thereunder at
Closing. With respect to Contracts in effect on the Effective
Date, Seller shall, to the extent cancellable, cancel any
Contracts upon Purchaser's written request prior to Closing. In
addition, Seller shall terminate any Contracts which may not be
assumed pursuant to the terms thereof. Contracts terminated
pursuant to this section shall be referred to herein as the
"Terminated Contracts".
(c) Payments. Subject to Section , Seller will
cause to be paid when due or shall be responsible for all trade
accounts and costs and expenses of operation and ordinary
maintenance of the Assets incurred to the Closing Date.
(d) Cooperation. Seller will reasonably assist and
cooperate with any environmental evaluation, study or audit of
the Assets prepared by, for or at the request of Purchaser.
(e) Notification of Subsequent Events. Prior to
Closing, Seller shall notify Purchaser of any written notice
received by Seller of any material adverse change in or to the
Assets.
(f) Estoppel Certificates. Seller shall use
reasonable efforts to deliver estoppel certificates in material
conformance with the form attached hereto as Exhibit -1 from all
Tenants and shall provide a Seller estoppel certificate in the
form attached hereto as Exhibit -2 for each tenant not providing
an estoppel certificate. Upon receipt of an estoppel certificate
from a tenant, any previously delivered Seller estoppel
certificate relating to such tenant shall be of no further force
or effect if materially consistent with such tenant estoppel.
Notwithstanding anything in this Agreement to the contrary, in
the event Seller fails to deliver, prior to Closing, Tenant
estoppel certificates regarding at least seventy-five percent
(75%) of the tenants in each Building and every Tenant leasing
5,000 square feet or more, which are consistent with the Rent
Roll, the terms of such Tenant's Lease and do not indicate any
material default of any party to said Lease, Purchaser may
terminate this Agreement.
(g) State of Repair. In the event Purchaser
identifies any material defect in the Improvements within ten
(10) business days following the Effective Date, Purchaser shall
have the right to notify Seller of the same, and in such event,
Seller shall notify Purchaser within five (5) business days
following such notice that it either (a) elects to cure such
defect, in which event Seller shall proceed to cure the same
prior to the Closing Date, and it shall be a condition of
Purchaser's obligations hereunder that such defect be cured to
Purchaser's reasonable satisfaction; (b) elects to credit
Purchaser at Closing with the cost of correcting such material
defect, as reasonably estimated by Seller and Purchaser, or (iii)
does not elect to cure such material defect or credit Purchaser
at Closing with the cost of correcting the same. In the event
Seller notifies Purchaser that it elects to cure any such
material defect and such defect has not been cured by the Closing
Date, or if Seller notifies Purchaser that it does not elect to
cure such defect or credit Purchaser with the cost therefor,
Purchaser shall have the right to terminate this Agreement. For
purposes hereof, a "material" defect shall be any defects or need
for repairs, restoration, treatment or completion during the
current twelve (12) month period following Closing the cost of
correcting such defect exceeds $1,000,000 in the aggregate.
(h) Leasing. Seller (and/or Seller's agents), in
consultation with Purchaser, shall continue in good faith to
advance all leasing activities for the Assets including, without
limitation, new leases, extensions, expansions, renewals or other
modifications of any Lease. Notwithstanding any provision herein
to the contrary, Seller shall not enter into any new lease, or
any extension, expansion, renewal or modification of any Lease
unless Purchaser approves the same in its reasonable discretion.
Seller shall provide Purchaser with notice of any proposed
modification, termination, extension or new Lease. Purchaser
shall have five (5) business days within which to object to such
proposed Lease. Any proposed Lease not objected to by Purchaser
within such five (5) business day period shall be deemed approved
by Purchaser and shall constitute Purchaser's agreement to pay
any costs incurred in connection with such Lease, including,
without limitation, leasing commissions and tenant improvement
costs if, and only if, Closing occurs.
8.2 Mutual Release. SUBJECT TO THE
EXPRESS INDEMNIFICATION OBLIGATIONS OF EITHER PARTY CONTAINED
HEREIN OR IN THE DOCUMENTS OF TRANSFER TO BE EXECUTED AT CLOSING,
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND UPON THE ADVICE OF
COUNSEL WAIVES AND RELEASES THE OTHER PARTY OF AND FROM ANY
CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, OBLIGATIONS,
DAMAGES, COSTS, EXPENSES OR COMPENSATION WHATSOEVER, DIRECT OR
INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THAT A PARTY
NOW HAS OR THAT MAY ARISE IN THE FUTURE ON ACCOUNT OF OR IN ANY
WAY ARISING OUT OF OR IN CONNECTION WITH THE ECONOMIC, PHYSICAL
OR ENVIRONMENTAL CONDITION OF THE ASSETS, INCLUDING, WITHOUT
LIMITATION, ANY LIABILITY PERTAINING TO OR ARISING OUT OF ANY
ENVIRONMENTAL LAW (ESTABLISHED BY EITHER COURT DECISION OR
STATUTE), ORDINANCE OR REGULATION.
9 ARTICLE
CLOSING MATTERS
9.1 Conditions to Purchaser's Obligations
The obligations of
Purchaser to consummate the Transactions contemplated by this
Agreement are subject to the satisfaction of each of the
following conditions as of the Closing Date, except to the extent
any such condition is waived in whole or in part by Purchaser in
writing at or prior to Closing:
(a) Satisfaction. The representations and
warranties of Seller contained in this Agreement shall have been
true on the date of this Agreement and on Closing. Seller shall
have performed all obligations and complied with all covenants
required by this Agreement. All Title Defects, except Permitted
Exceptions, shall have been cured by Seller or waived by
Purchaser.
(b) No Injunction. On the Closing Date, there shall
be no third party injunction, writ, preliminary restraining order
or any order of any nature issued by a court of competent
jurisdiction directing that the Transaction not be consummated.
(c) Closing Deliveries. Seller shall have completed
all the deliveries required to be made by Seller under Section
of this Agreement.
(d) Estoppel Certificates. Purchaser shall have
received Estoppel Certificates for all tenants of each Building
pursuant to Section .
9.2 Conditions to Seller's Obligations
The obligations of Seller to consummate
the transactions contemplated by this Agreement are subject to
the satisfaction of each of the following conditions as of the
Closing Date, except to the extent any such condition is waived
in whole or in part by Seller in writing at or prior to Closing:
(a) Satisfaction. The representations and
warranties of Purchaser contained in this Agreement shall have
been true on the date of this Agreement and on Closing.
Purchaser shall have performed all obligations and complied with
all covenants required by this Agreement.
(b) No Injunction. On the Closing Date, there shall
be no third party injunction, writ, preliminary restraining order
or any order of any nature issued by a court of competent
jurisdiction directing that the Transaction not be consummated.
(c) Closing Deliveries. Purchaser shall have
completed all the deliveries required to be made by Purchaser
under Section of this Agreement.
9.3 Closing Deliveries.
At Closing, Seller and Purchaser shall execute and deliver documents
reasonably necessary to effectuate the Transaction, all of which
shall be in a form reasonably acceptable to Purchaser and Seller,
including, but not limited to, the following:
(a) Special Warranty Deeds. Special Warranty Deeds
in form attached hereto as Exhibit subject only to the
applicable Permitted Exceptions.
(b) Assignment and Bill of Sale. Assignment and
Assumption Agreements and Bills of Sale in the form attached
hereto as Exhibit , which shall provide that Purchaser shall
assume Seller's obligations with respect to all Leases and all
Contracts other than Terminated Contracts arising from and after
the Closing Date.
(c) Purchaser's Affidavit Regarding Inspections.
Affidavits of Purchaser regarding the completion of its
inspection and analysis of the Assets in the form attached hereto
as Exhibit .
(d) Escrow Agreement. If requested by Seller, the
escrow agreement contemplated by Article hereof.
(e) Tenant Notice Letters. Notices to each tenant
stating that Purchaser has agreed to assume the Seller's
obligations under the Leases and setting forth the address for
future rental payments.
(f) Documents. Originals, or certified copies of
(i) all Leases in force on the Closing Date covering portions of
the Real Property and all other documents referred to in the Rent
Roll, (ii) all Contracts and Permits of which Seller is aware
transferred and assigned to Purchaser, (iii) all "as built"
plans, specifications, surveys or other documents relating or
pertaining to the Assets in the possession of Seller
(collectively "Plans"), including, but not limited to, all
records relating to repair, renovation and maintenance of the
Assets; (iv) all notices to tenants relating to this Transaction
and the receipt of security deposits as necessary or appropriate
under applicable law; and (v) all other documents referred to in
the schedules.
(g) Rent Roll. A current and updated certified Rent
Roll.
(h) FIRPTA. Affidavit from Seller that Seller is
not a foreign person as defined in the Foreign Investment in Real
Property Tax Act of 1980, as amended, in the form attached hereto
as Exhibit .
(i) Purchase Price. Purchaser shall deliver the
Purchase Price, as adjusted by prorations pursuant to the closing
statement, in immediately available funds.
(j) Keys. All keys and master keys in Seller's
possession or control to all locks located on the Real Property
properly tagged for identification as well as cards keys and
cards for the security systems, if any.
(k) Evidence of Authority. Both parties will
deliver to the Title Company such evidence or documents as may
reasonably be required by the Title Company or either party
hereto evidencing the authority of any person or persons who are
executing any of the documents required hereunder in connection
with the Transaction.
(l) Miscellaneous. Such other documents as may be
required under other provisions of this Agreement or as may
reasonably be required by Purchaser to consummate the
Transaction, so long as such document does not increase either
party's liability or obligations hereunder, including, but not
limited to a closing statement, standard title company
affidavits, bring down certificates regarding representations and
warranties, and evidence of title clearance matters including pay-
off letters from any lenders.
9.4 Purchaser's Obligation to Timely Deliver Closing Deliveries.
Purchaser shall deliver each of its Closing
Deliveries to Title Company before 11:00 a.m., central time, on
the Closing Date. In the event Purchaser fails to do so, and
provided Seller has delivered each of its Closing Deliveries to
Title Company by such time, Seller shall have the following
options: (i) suspend Closing to the next business day, in which
event the closing statement shall be adjusted accordingly; or
(ii) suspend Closing to the next business day and Purchaser shall
deliver additional funds equal to the product of the Purchase
Price and 8%; divided by 360 and then multiplied by the number of
calendar days for which Closing was delayed.
9.5 Knowledge as a Defense.
Seller shall have no liability with respect to a breach of the
covenants, representations and warranties of Seller set forth in
this Agreement or any documents delivered pursuant hereto to the
extent that Purchaser proceeds with the closing of the
Transaction contemplated with actual knowledge of such breach or
such breach was otherwise disclosed to Purchaser in the
Information Schedules or otherwise.
9.6 Limitations on Liability.
Notwithstanding anything to the contrary in this
Agreement and without limitation upon the limitations elsewhere
in this Agreement but subject to the provisions of Section ;
under no circumstances, other than any acts or omissions of
Seller constituting wilful misconduct or fraud, shall Seller be
liable to Purchaser on account of this Agreement, any covenant,
representation, warranty, or indemnification obligation herein,
any document executed in connection with this Agreement or any
transaction or matter contemplated hereby, in an aggregate amount
in excess of One Million Five Hundred Thousand Dollars
($1,500,000.00), excluding Seller's obligation to remove any
monetary liens relating to the Assets under Section and
excluding obligations relating to retained liabilities under the
documents of transfer executed at Closing. In the event of a
breach of this Agreement by Seller, Purchaser shall not be
entitled to recover special, incidental or consequential damages;
provided, however, no limitation contained herein shall have any
effect or limitation on Purchaser's rights or recoveries in the
event of acts or omissions based upon Seller's willful misconduct
or actual fraud.
9.7 Knowledge Standard. As used
in this Agreement, "the Seller's actual knowledge" or "to
Seller's knowledge" or any similar phrase, shall mean the actual
knowledge of Mitch Mattingly only who is the representative of
Seller with responsibility for the Assets after discussion with
Seller's on site property managers; provided, however, that
nothing in this Agreement shall be deemed to create or impose any
personal liability of any kind on such individual.
9.8 Closing Contingent on Belvedere and Atrium at
Bent Tree Closings. Each party hereto acknowledges and agrees
that the Closing of this Transaction is contingent upon the
closing of the Purchaser's acquisition of the Belvedere Building
and the Atrium at Bent Tree Building pursuant to Belvedere
Agreement. Notwithstanding anything herein to the contrary, in
the event the Belvedere Agreement is terminated under
circumstances whereby the Purchaser is entitled to a return of
its escrow deposit pursuant to such agreement, then this
Agreement shall be terminated and Purchaser shall likewise be
entitled to a return of the Escrow Deposit hereunder.
Notwithstanding anything herein to the contrary, in the event the
Belvedere Agreement is terminated under circumstances whereby the
Seller is entitled to receive the escrow deposit pursuant to such
agreement, then this Agreement shall immediately terminate and
Seller shall be entitled to receive the Escrow Deposit hereunder.
10 ARTICLE
DEFAULTS AND REMEDIES
10.1 Damages Against Purchaser.
If Purchaser defaults under any provision of this
Agreement and Closing does not occur, then Seller shall be
released from all obligations in law or equity to convey the
Property to Purchaser. Purchaser and Seller agree that as
Seller's sole remedy for a default hereunder, by written notice
to Purchaser and Title Company, Seller shall be entitled to
terminate this Agreement and be entitled to receive the Escrow
Deposit plus accrued interest thereon as liquidated damages.
Purchaser and Seller acknowledge and agree that actual damages
will be extremely difficult and impractical to ascertain.
Therefore, the sum represented by the Escrow Deposit plus any
accrued interest thereon shall be deemed to constitute a
reasonable estimate and agreed stipulation of Seller's damages
and shall constitute Seller's sole and exclusive remedy in the
event this Transaction fails to Close as a result of Purchaser's
default. Notwithstanding the foregoing, Purchaser's liability
under the last sentence of Section hereof and the last sentence
of Section hereof shall remain in full force and effect.
10.2 Damages against Seller.
In the event that Seller fails to perform all of Seller's
material obligations under this Agreement and Purchaser performs
all of its obligations or tenders performance, including the
obligation to consummate the Transaction, then Purchaser may make
written demand to Seller for performance of this Agreement. If
Seller fails to comply with Purchaser's written demand within
five (5) days after receipt of such written demand for
performance, Purchaser shall have the exclusive right to (i)
waive such default, (ii) seek specific performance of Seller's
obligations under this Agreement, or (iii) terminate this
Agreement and promptly receive its actual out-of-pocket damages
up to $200,000 in the aggregate. In all events of termination
other than as contemplated by Sections and , Seller shall be
entitled to the Escrow Deposit. Seller agrees that the Assets
are unique and that damages for failure by Seller to consummate
the Transaction will be impracticable and extremely difficult to
determine. Therefore, in the event that Seller fails or refuses
to consummate the Transaction and Purchaser seeks specific
performance, Seller specifically agrees that the remedies of
specific performance are appropriate remedies for Purchaser, and
Seller waives and agrees not to assert any claim or defense that
specific performance is not an appropriate remedy for Purchaser.
If specific performance is not available, Purchaser will have the
right to seek, prove and recover its actual out-of-pocket damages
up to $200,000 in the aggregate for this Agreement. The parties
acknowledge and agree that the provisions of this Section apply
to breaches by Seller discovered or known to Purchaser prior to
Closing and that the provisions of Sections and apply to
breaches by Seller discovered post-Closing even if such relates
to acts or omissions which actually occurred prior to Closing.
Initialed by:
_______________
______________
Seller
Purchaser
11.1 ARTICLE
RISK OF LOSS
11.1 Risk of Loss. Prior to Closing,
Seller shall have full risk of loss or damage with respect to the
Assets. Upon Closing, full risk of loss or damage with respect
to the Assets shall pass to Purchaser. For purposes of this
Article 9, "loss or damage" shall mean the following: (i) any
loss, damage, destruction or injury by fire, storm, accident,
flood or other casualty or hazard to the Assets; and (ii) any
condemnation, eminent domain or other similar proceeding.
11.2 Minor Damage. In the event of
loss or damage to the Real Property or any portion thereof (the
"premises in question") which is not "major" (as hereinafter
defined), this Agreement shall remain in full force and effect
provided Seller either: (i) performs any necessary repairs prior
to Closing, (ii) reduces the cash portion of the Purchase Price
in an amount equal to the reasonable estimated cost of such
repairs, Seller thereby retaining all of the Seller's right,
title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies or condemnation
awards relating to the premises in question, or (iii) assigns its
interest in any insurance proceeds to Purchaser together with an
amount equal to any applicable deductible relating thereto. In
the event Seller elects to perform repairs upon the Real
Property, Seller shall use reasonable efforts to complete such
repairs promptly and to Purchaser's reasonable satisfaction and
if necessary, the date of Closing shall be extended a reasonable
time in order to allow for the completion of such repairs;
provided, however, Closing may not be extended for a period of
more than thirty (30) days without the prior consent of
Purchaser.
11.3 Major Damage. In the event of a
"major" loss or damage or if Seller commits to repair any portion
of the Assets and fails to do so, Purchaser may either (i)
terminate this Agreement and immediately receive a refund of the
Escrow Deposit and all interest thereon, or (ii) it may proceed
with this Transaction and receive Seller's insurance proceeds or
condemnation award, if any, for such damage, plus payment from
Seller of the amount of the applicable insurance deductible
relating thereto. In such event, Seller shall execute all
documents reasonably requested by Purchaser to assign Seller's
rights and interest to such insurance proceeds.
11.4 Definition of Major Loss or Damage.
For purposes of Sections and , "major"
loss or damage refers to the following: (i) loss or damage to
the Assets or any portion thereof such that the cost of repairing
or restoring the premises in question to a condition
substantially identical to that of the premises in question prior
to the event of damage or loss would be, in the certified opinion
of a mutually acceptable architect, equal to or greater than
$500,000.00, or (ii) any loss or damage due to a condemnation
which permanently or materially impairs the current or intended
use of the Assets, or (iii) if any Tenant who occupies more than
10,000 square feet is permitted to terminate and actually
terminates its Lease as a result of such loss or damage.
12 ARTICLE
GENERAL PROVISIONS
12.1 Brokerage Commission tc " Brokerage Commission"
\l 2 . Seller shall pay any and all brokerage commissions due to
Davidson Conine and Bradford Company pursuant to a separate
written agreement. Purchaser shall pay an additional amount of
$20,000 to Bradford Company in reimbursement for certain costs
incurred by Bradford Company in connection with this transaction.
If the purchase and sale hereunder does not close for any reason,
including default by either Seller or Purchaser, then no
commission or reimbursement shall be due by any party hereto.
Except as set forth in the preceding sentence, Seller and
Purchaser represent to each other that they have acted directly
and independently with the other as principals and that neither
Seller nor Purchaser have retained or authorized the services of
any broker or finder with respect to this Transaction. Seller
agrees to indemnify and hold Purchaser harmless from and against
all claims, liabilities, and obligations for any commission,
finder's fee, or other compensation in connection with this
Agreement claimed by or through Seller. Purchaser agrees to
indemnify and hold Seller harmless from and against all claims,
liabilities, and obligations for any commission, finder's fee, or
other compensation in connection with this Agreement claimed by
or through Purchaser.
12.2 Confidentiality. Unless Seller
otherwise agrees in writing, Purchaser agrees that all
proprietary information regarding the Improvements of whatsoever
nature made available to it by Seller or Seller's agents or
representatives or developed by Purchaser, is confidential and
shall not be disclosed to any other person except those assisting
Purchaser with this Transaction, or Purchaser's lender, if any.
The provisions of the foregoing sentence shall not apply to any
information which is otherwise available to the public or which
has been obtained from sources that are not subject to a similar
confidentiality restriction or to disclosures as required by law.
Further, Purchaser agrees not to use any Confidential Information
(as defined in Section ) for any purpose other than to determine
whether to proceed with the Transaction contemplated by this
Agreement. Upon Closing, all such Confidential Information shall
be the sole and exclusive property of Purchaser and not subject
in any manner to this confidentiality restriction. Provided,
however, in the event the Transaction contemplated by this
Agreement does not close for any reason, the provisions of this
Section shall survive the termination of this Agreement for a
period of two years.
12.3 Entire Agreement. This
Agreement, together with all exhibits or schedules either
attached or delivered pursuant hereto and other agreements
expressly referred to herein, constitutes the entire agreement
between the parties with respect to the purchase and sale of the
Assets. All prior to or contemporaneous agreements,
understandings, representations, warranties and statements, oral
or written, are superseded.
12.4 Further Assurances. The
parties agree to take such further action and execute such
documents and instruments as may be reasonably required in order
to more effectively carry out the terms of this Agreement and the
intentions of the parties.
12.5 Modification, Waiver.
Except as expressly contemplated herein, no modification, waiver,
supplement or discharge of this Agreement shall be valid unless
the same is in writing and signed by the party against whom the
enforcement thereof is or may be sought. No waiver of a breach
of any of the terms, covenants or conditions of this Agreement by
either party shall be construed or held to be a waiver of any
succeeding or preceding breach of the same or any other term,
covenant or condition herein contained. No waiver of any default
by either party hereunder shall be implied from any omissions by
either party to take any action on account of such default if
such default persists or is repeated, and no express waiver shall
affect a default other than as specified in such waiver.
12.6 Severability. If any term,
provision, covenant or condition of this Agreement is held to be
invalid, void or otherwise unenforceable to any extent by any
court of competent jurisdiction, the remainder of this Agreement
shall not be affected thereby, and each term, provision, covenant
or condition of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
12.7 Successors. Subject to the
restriction on assignment provided herein, all terms of this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective heirs,
legal representatives, successors and assigns.
12.8 Assignment. Purchaser may assign
its rights under this Agreement to a wholly owned subsidiary of
Purchaser or affiliate of Purchaser or to a limited partnership
or LLC controlled by either Purchaser or its wholly owned
subsidiary without Seller's consent; provided, however, no such
assignment shall relieve Purchaser of its obligations hereunder
and the assignee must sign an assumption agreement in form
reasonably acceptable to Seller. Except as contemplated by the
preceding sentence, Seller and Purchaser shall not assign their
respective rights, obligations or interest under this Agreement
without the prior written consent of the other.
12.9 Survival of Representations and Warranties. All obligations
hereunder to be performed after Closing, and all warranties and
representations contained herein, shall survive Closing and the
delivery of the Special Warranty Deed to Purchaser for a period
of only 365 days after Closing, at which time such warranties,
representations and covenants shall terminate. Provided,
however, the terms of this Section shall not be deemed to extend
the specific period for performance of any obligations to be
performed hereunder subsequent to Closing. In order to perfect
any cause of action resulting from a breach hereof written notice
of such breach must be delivered prior to the expiration of the
365 day period and any resulting cause of action must be
commenced within 485 days after Closing.
12.10 Attorneys' Fees. If either
party commences legal proceedings for any relief against the
other party arising out of this Agreement, the losing party shall
pay the prevailing party's reasonable attorneys' fees.
12.11 Time. Time is of the essence with respect
to this Agreement.
12.12 No Other Inducement. The
making, execution and delivery of this Agreement by the parties
hereto has been induced by no representations, statements,
warranties or agreements other than those expressed herein.
12.13 Computation of Time Periods.
All periods of the time referred to in this Agreement
shall include all Saturdays, Sundays and state or national
holidays, unless the period of time specifies business days,
provided that if the date or last date to perform any act or give
any notice or approval shall fall on a Saturday, Sunday or state
or national holiday, such act or notice may be timely performed
or given on the next succeeding day which is not a Saturday,
Sunday or state or national holiday.
12.14 Notices. Any notice, request,
instruction or other document to be given or furnished under this
Agreement by either party to the other party or to the Title
Company shall be in writing and shall be delivered personally or
shall be sent by facsimile transmission (with a copy sent by
regular U. S. mail) or registered or certified mail, postage
prepaid, or by prepaid overnight delivery service, at the address
or telecopy number in this Section or to such other address,
telecopy number of person as either party may designate by
written notice to the other party. A notice, request,
instruction or other documents shall be deemed to be given (a)
when delivered personally as acknowledged by a receipt, (b) sent
by facsimile transmission (with a copy sent by regular U. S.
mail), (c) if sent by certified mail, at the time the delivery is
indicated on the duly completed United States Postal Service
return receipt, or (d) if by overnight delivery service, the next
business day as indicated on the records of or certificates
provided by the overnight delivery service.
Seller: Parkway Properties LP
Attention: Mitch Mattingly
Office Address: 12012 Wickchester, Suite 115
Houston, Texas 77079
Telephone Number: (281) 597-9475
Telecopy Number: (281) 597-9575
with a copy to: Forman, Perry, Watkins, Krutz & Tardy, PLLC
Attention: Steven M. Hendrix
Office Address: 188 E. Capitol Street, Suite 1200
Jackson, Mississippi 39225-2608
Telephone Number: (601) 960-8603
Telecopy Number: (601) 960-8609
Purchaser: Triad Properties Corporation
Attention: Mr. William Stroud
Office Address: 200 Clinton Avenue, W., Suite 1001
Huntsville, Alabama 35801
Telephone Number: (205) 551-1000
Telecopy Number: (205) 539-5500
with copy to: Kilpatrick Stockton LLP
Attention: Nancy Gilreath
Office Address: 1100 Peachtree Street, N.E.
Atlanta, Georgia 30309
Telephone Number: (404) 851-6565
Telecopy Number: (404) 851-6555
12.15 Headings. The captions and paragraph
headings used in this Agreement are inserted for convenience of
reference only and are not intended to define, limit or affect
the interpretation or construction of any term or provision
hereof.
12.16 Exhibits. All schedules or exhibits
referred to herein or attached hereto are incorporated herein by
this reference.
12.17 Counterparts. This Agreement may
be executed in multiple copies, each of which shall be deemed an
original, but all of which shall constitute one Agreement binding
on all parties.
12.18 Governing Law. This Agreement
shall be governed, construed and enforced in accordance with the
laws of the State of Texas.
12.19 Effective Date. The date of
delivery to Title Company of a fully executed counterpart of this
Agreement, as evidenced by Title Company's notation in the space
set forth below, shall be deemed the effective date of this
Agreement (the "Effective Date").
13 ARTICLE
LIKEKIND EXCHANGE
13.1 LikeKind Exchange. Seller
may convey the Parcels or any portion thereof or interest therein
as part of one or more Internal Revenue Code Section 1031 Tax
Deferred Exchanges for its benefit. In such event, Seller shall
have the right to assign all contract rights and obligations
hereunder to a qualified intermediary, or to cause the proceeds
of the sale of the Real Property to be placed into a qualified
escrow account as a part of, and in furtherance of, such tax
deferred exchange. Purchaser agrees to assist and cooperate in
any such exchange, and Purchaser further agrees to execute any
and all documents as are reasonably necessary in connection with
any such exchange. Purchaser shall not be obligated to incur any
cost or expense in connection with any such exchange, other than
that which Purchaser elects to incur to have its counsel review
the documents and instruments incident thereto. As part of any
such exchange, Seller shall convey the real property described
herein directly to Purchaser and Purchaser shall not be obligated
to acquire or convey any other property as part of any such
exchange.
IN WITNESS WHEREOF, Seller and Purchaser have executed this
Agreement as of the Effective Date.
SELLER:
PARKWAY
PROPERTIES LP
a Delaware
limited partnership
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
Executed by Seller, this
By:___________________________
_______
____ day of April, 1998 .
Name:_________________________
______
Title:________________________
________
By:
Name:
Title:
PURCHASER:
TRIAD
PROPERTIES CORPORATION
Executed by Purchaser, this
_____ day of April, 1998. By:
Name:
Title:
ACKNOWLEDGMENT BY BROKERS
The undersigned brokers hereby acknowledge and agree to the
provisions of Section of this Agreement regarding commissions.
Davidson
Conine
By:________________________________
__
Name:______________________________
_
Title:_____________________________
___
Bradford
Company
By:________________________________
__
Name:______________________________
_
Title:_____________________________
___
ACKNOWLEDGMENT BY TITLE COMPANY
Title Company hereby agrees to perform its obligations under
this Agreement and acknowledge receipt of (a) the Escrow Deposit
from Purchaser in the amount of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) on the _____ day of April, 1998 and (b) a
fully executed counterpart of this Agreement on the _____ day of
April, 1998.
Chicago Title Insurance Company
By:
Name:
Title:
EXHIBIT
LIST OF MATERIAL ITEMS OF PERSONAL PROPERTY
EXHIBIT
Courtyard at Arapaho Land
LEGAL DESCRIPTION
(See attached)
EXHIBIT
Fairway Plaza Land
LEGAL DESCRIPTION
(See attached)
EXHIBIT
ALLOCATION OF PURCHASE PRICE
Parcel Price
1. Courtyard at Arapaho
Parcel
$17,500,000
2. Fairway Plaza Parcel
$ 8,200,000
EXHIBIT
CONTRACTS SCHEDULE
Courtyard at Arapaho Parcel
(See attached)
EXHIBIT
CONTRACTS SCHEDULE
Fairway Plaza Parcel
(See attached)
EXHIBIT
RENT ROLL
Courtyard at Arapaho Building
(See attached)
EXHIBIT
RENT ROLL
Fairway Plaza Building
(See attached)
EXHIBIT -1
FORM OF TENANT ESTOPPEL CERTIFICATE
Triad Properties Corporation
200 Clinton Avenue West, Suite 1001
Huntsville, Alabama 35801
RE: _______________________
Gentlemen:
The undersigned as Tenant hereby certifies to Parkway
Properties LP and its successors or assigns and lenders
("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) or Modifications(s) Dated (if any):
Current Annual Base Rent:
Current CAM or Operating Expense Charges and Base Year
or
Expense Stop:
Square Footage:
Original term (or current option period, if applicable)
expires:
Security Deposit and/or Lease Deposit (if any): $
Outstanding Tenant Improvement Allowance (if any):
$_______________
Outstanding Leasing Commissions (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.
Please attach a complete copy of the Lease and all
amendments thereto.
(d) The Lease sets forth the entire agreement between
the Landlord and Tenant, is in full force and effect in
accordance with its terms and has not, in any way, been
amended or modified in any manner.
(e) Tenant has unconditionally accepted and is
currently occupying 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.
(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 in any manner.
(g) All requirements of the Lease have been complied
with and all improvements required to be made by
Landlord have been completed and no charges, set-offs
or other credits exist against the rentals.
(h) The Lease contains, and Tenant has: (i) no
outstanding options or rights of first refusal to
purchase the leased premises nor any part of the real
property of which the leased premises are a part; (ii)
no expansions options, other than _______; (iii) no
cancellation options, other than _______; and (iv) no
renewal options, other than __________.
(i) Tenant has not assigned, pledged, 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.
Date:_________________
By:
Name:
Title:
Current Notice Address:
___________________________
___________________________
___________________________
EXHIBIT -2
FORM OF SELLER ESTOPPEL CERTIFICATE
[Purchaser]
RE: _____________
Gentlemen:
The undersigned as Landlord hereby certifies to [Purchaser]
and its successors and assigns and lenders ("Purchaser") that,
to its actual knowledge:
(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) or Modification(s) Dated (if any):
Current Annual Base Rent:
Current CAM or Operating Expense Charges and Base Year
or
Expense Stop:
Square Footage:
Original term (or current option period, if applicable)
expires:
Security Deposit and/or Lease Deposit (if any): $
Outstanding Tenant Improvement Allowance (if any):
$_______________
Outstanding Leasing Commissions (if any):
$______________
(b) All rentals payable under the Lease have been paid
through ________, 19___.
(c) That attached hereto as Exhibit A is a true and
complete copy of the Lease and all amendments thereto.
Please attach a complete copy of the Lease and all
amendments thereto.
(d) The Lease sets forth the entire agreement between
the Landlord and Tenant, is in full force and effect in
accordance with its terms and has not, in any way, been
amended or modified in any manner.
(e) All requirements of the Lease have been complied
with and no charges, set-offs or other credits exist
against the rentals.
(f) The Lease contains, and Tenant has, no outstanding
options or rights of first refusal to purchase the
leased premises nor any part of the real property of
which the leased premises are a part. Except as set
forth in the Lease, Tenant has no expansion,
cancellation or renewal options.
(g) Landlord has received no notice that Tenant has
assigned, pledged, mortgaged, sublet, encumbered or
otherwise transferred any of its interest under the
Lease.
(h) Landlord is not in default under the Lease, there is no
material default on the part of Tenant thereunder, and
Landlord has not within the previous ninety days
received any written notice from Tenant claiming any
right of set-off or default.
(i) All improvements required to be made as of this date by
Landlord under the Lease have been completed.
Landlord understands that Purchaser is relying on the above
representations in consenting to purchase the above referenced
building. This Seller's Estoppel Certificate shall terminate
upon the earlier of the delivery of a Tenant's Estoppel
Certificate containing information consistent with the
information set forth herein or one year after the date hereof.
Date:______________
By:
Name:
Title:__________________________
EXHIBIT
FORM OF SPECIAL WARRANTY DEED
THE STATE OF
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF
THAT, Parkway Properties LP, a Delaware limited partnership
(hereinafter called "Grantor"), for and in consideration of TEN
AND NO/100 DOLLARS ($10.00), and other good and valuable
consideration to Grantor in hand paid by ______________, a
___________ (hereinafter called "Grantee"), the receipt and
sufficiency of which are hereby acknowledged, has GRANTED, SOLD
and CONVEYED, and by these presents does GRANT, SELL and CONVEY
unto the said Grantee, all that certain lot, tract or parcel of
land, together with all improvements thereon, lying and being
situated in Dallas County, Texas described on Exhibit A attached
hereto, together with all rights and appurtenances thereunto
belonging or appertaining, and all rights, titles and interests
of Grantor in and to any and all roads, easements, streets and
ways within, adjacent or contiguous thereto (hereinafter
collectively referred to as the "Property").
This conveyance is subject to the valid and subsisting
easements, restrictions, covenants, conditions and outstanding
mineral and royalty interests affecting the Property described on
Exhibit B attached hereto.
TO HAVE AND TO HOLD the Property, together with all and
singular the rights and appurtenances thereto in anywise
belonging unto the said Grantee, its heirs, executors, legal
representatives, successors and assigns forever; and Grantor does
hereby bind itself, its heirs, executors, legal representatives,
successors and assigns, to WARRANT and FOREVER DEFEND, all and
singular the Property unto the said Grantee, its heirs,
executors, legal representatives, successors and assigns, against
every person whomsoever lawfully claiming or to claim the same or
any part thereof by, through or under Grantor, but not otherwise.
GRANTOR HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL IMPLIED
COVENANTS AND WARRANTIES OF EVERY NATURE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, THE IMPLIED COVENANTS PROVIDED FOR UNDER
SECTION 5.023 OF THE TEXAS PROPERTY CODE) EXCEPT FOR THE EXPRESS
SPECIAL WARRANTY OF TITLE SET FORTH HEREIN. BY ITS ACCEPTANCE OF
THIS DEED, GRANTEE HEREBY KNOWINGLY, VOLUNTARILY AND UPON THE
ADVICE OF COUNSEL, WAIVES AND RELEASES SELLER OF AND FROM ANY
CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, OBLIGATIONS,
DAMAGES, COSTS, EXPENSES OR COMPENSATION WHATSOEVER, DIRECT OR
INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THAT
PURCHASER NOW HAS OR THAT MAY ARISE IN THE FUTURE ON ACCOUNT OF
OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE ECONOMIC,
PHYSICAL OR ENVIRONMENTAL CONDITION OF THE SUBJECT PROPERTY,
INCLUDING, WITHOUT LIMITATION, ANY LIABILITY PERTAINING TO OR
ARISING OUT OF ANY ENVIRONMENTAL LAW (ESTABLISHED BY EITHER COURT
DECISION OR STATUTE), ORDINANCE OR REGULATION.
Grantee's address is
______________________________
______________________________
______________________________
Current taxes on the Improvements have been prorated and
payment thereof is assumed by Grantee.
EXECUTED this ____ day of _________________________, 1998.
Parkway
Properties LP,
a Delaware
limited partnership
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
By:
Name:
Title:
By:
Name:
Title:
STATE OF __________
COUNTY OF _________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________ corporation which is the general
partner of _________________, a _____________ partnership which
is the sole general partner of ______________________, and that
for and on behalf of the said partnership, and as its act and
deed (he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said partnership so to do.
____________________________________
NOTARY PUBLIC
My commission expires:
____________________
(Affix official seal, if applicable)
PREPARED BY:
Steven M. Hendrix
Forman, Perry, Watkins, Krutz & Tardy, PLLC
188 East Capitol Street
Suite 1200, One Jackson Place
Jackson, Mississippi 39201
Telephone: (601) 960-8600
AFTER RECORDING RETURN TO:
___________________________
___________________________
___________________________
___________________________
EXHIBIT
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND BILL OF SALE
This ASSIGNMENT AND ASSUMPTION AGREEMENT AND BILL OF SALE
("Assignment"), is made by and between Parkway Properties LP, a
Delaware limited partnership ("Assignor") and _____________, a
_____________ ("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Purchase
Agreement") dated as of _______, 1998, by and between Assignor
and Assignee, Assignor agreed to sell to Assignee certain real
property, and the improvements located thereon ("Assets") as more
particularly described in the Purchase Agreement; and
WHEREAS, the Purchase Agreement provides, inter alia, that
Assignor shall assign to Assignee certain contractual and other
intangible rights, that Assignee shall assume all of the
obligations of Assignor with respect to the property so assigned
from and after the date of such assignment, and that Assignor and
Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby
agree as follows:
1. Assignment. Assignor hereby assigns, sets over and
transfers to Assignee all of Assignee's rights, title and
interest in and to the tangible and intangible personal property
owned by Assignor, located on the real property described on
Exhibit A hereto, and used in the ownership, operation and
maintenance of such real property including, without limitation,
the following (collectively called the "Personal Property"):
(i) All rights (if any) to use any trade
names associated with the Assets to the extent such
rights are assignable without expense to Assignor (but
Assignor does not represent that it has exclusive
rights to use such trade names and Assignor has not
registered the same in any manner);
(ii) The items of personal property described
on Exhibit B hereto;
(iii) The interest of Assignor under the
contracts and agreements described on Exhibit C hereto;
(iv) The interest of the landlord under the
tenant leases encumbering the real property described
on Exhibit D hereto (the "Leases");
(v) The tenant security deposits
described on Exhibit E hereto;
(vi) To the extent assignable without
material expense to Assignor, the tenant lease files
and correspondence relating to the Leases, plans and
specifications with respect to the Real Property,
promotional materials with respect to the leasing of
space within the Real Property, warranties and
guaranties relating to any of the other property to be
conveyed pursuant to the Purchase Agreement, licenses
and permits relating to the Real Property, and the
other property to be conveyed pursuant to the Purchase
Agreement.
2. Assignee's Assumption and Indemnification. Assignee
hereby assumes the obligation to pay any and all liabilities and
obligations arising or accruing under any of the property
described in Paragraph 1 above on or after the effective date
hereof. Assignee is only assuming those specific leases and
contracts referenced on the attached exhibits. Assignee agrees
to indemnify, defend and hold harmless Assignor from any loss,
cost, claim, liability, expense or demand of whatever nature
under any of the property described in Paragraph 1 above arising
or accruing on or after the effective date hereof.
3. Assignor's Indemnification. Assignor agrees to
indemnify, defend and hold harmless Assignee from any loss, cost,
claim, liability, expense or demand of whatever nature under any
of the property described in Paragraph 1 above arising or
accruing prior to the effective date hereof.
4. Limitation of Liability. Notwithstanding anything in
this Assignment to the contrary, each party acknowledges and
agrees that no officer of Assignor or Assignee nor any trustee,
beneficiary, or employee of either shall have any personal
liability, directly or indirectly, under this Assignment, or
under any certification, representation, warranty or other
instrument delivered in connection herewith.
5. Miscellaneous. This Assignment and the obligations of
the parties hereunder shall survive the closing of the
Transaction referred to in the Purchase Agreement, shall be
binding upon and inure to the benefit of the parties hereto,
their respective legal representatives, successors and assigns,
shall be governed by and construed in accordance with the laws of
the State where the assets are located, applicable to agreements
made and to be wholly performed within said State, and may not be
modified or amended in any manner other than by a written
agreement signed by the party to be charged therewith.
Assignor does hereby bind itself, its legal representatives,
successors and assigns, to SPECIALLY WARRANT, and FOREVER DEFEND
title to the property conveyed hereby unto Assignee, its legal
representatives, successors and assigns, against every person
whomsoever lawfully claiming or to claim same or any part
thereof, by, through or under Assignor, but not otherwise.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION OF THE PURCHASE
AGREEMENT AND SUBJECT TO THE PROVISIONS AND LIMITATIONS CONTAINED
IN THE PURCHASE AGREEMENT. ASSIGNOR MAKES NO WARRANTY, EXPRESS
OR IMPLIED, AS TO ANY OF THE PROPERTY CONVEYED HEREBY OR ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. BY ITS
ACCEPTANCE OF THIS ASSIGNMENT, ASSIGNEE ACKNOWLEDGES THAT IT HAS
FULLY INSPECTED THE PROPERTY CONVEYED HEREBY AND THAT IT ACCEPTS
THE PROPERTY CONVEYED HEREBY IN ITS PRESENT USED AND "AS IS"
CONDITION. ASSIGNEE ACKNOWLEDGES AND BY REFERENCE INCORPORATES
THE PROVISIONS OF SECTIONS , 7.4, AND OF THE PURCHASE AGREEMENT
HEREIN.
EXECUTED TO BE EFFECTIVE as of the ______ day of
________________, 1998.
ASSIGNOR:
Parkway
Properties LP,
a Delaware
limited partnership
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
By:
Name:
Title:
By:
Name:
Title:
ASSIGNEE:
TRIAD
PROPERTIES CORPORATION
By:
Name:
Title:
EXHIBIT
FORM OF
PURCHASER'S AFFIDAVIT AND AGREEMENT
STATE OF __________
COUNTY OF_________
This day personally came and appeared before me, the
undersigned authority _____________________, __________________
of ________________ ("Purchaser"), who is knowledgeable of the
facts stated herein and whose mailing address is
_______________________, who, upon being duly sworn, stated under
oath as follows that:
1. Pursuant to that certain Purchase and Purchase
Agreement ("Purchase Agreement") dated _________________, 1998 by
and between Purchaser and Parkway Properties, Inc. ("Seller"), to
Purchaser's knowledge, Purchaser has had full access to and has
(to Purchaser's satisfaction) exercised its option to inspect and
evaluate for potential purchase that certain property located in
__________________ and more particularly described on Exhibit A
attached hereto ("Assets") and all files of Seller relating
thereto which Purchaser felt were important or material to
Purchaser, and Seller made available to Purchaser all files of
Seller relating to the Assets requested by Purchaser.
2. Purchaser and experts of Purchaser's choice have had
access to and have (to Purchaser's satisfaction) (i) physically
inspected the Assets, (ii) analyzed the present and projected
uses of the Assets, (iii) determined the fair market value of the
Assets in its "As Is" condition (as defined in the Purchase
Agreement) as of the closing date, and (iv) to the extent
possible, independently verified all material documents and
information provided to Purchaser by Seller and/or its agents
which Purchaser deems necessary and material to close the
Transaction under the Purchase Agreement, and (v) independently
examined the Assets from a physical structural and environmental
standpoint. Except as expressly otherwise provided in the
Purchase Agreement, Purchaser accepts the Assets AS IS and
releases Seller from and waives all claims and liability against
Seller for or attributable to any structural, physical or
environmental condition at the Assets, including without
limitation, claims or liabilities relating to the presence,
discovery or removal of any Hazardous Materials (as defined in
the Purchase Agreement) in, at, about or under the Assets, or
for, connected with or arising out of any and all claims or
causes of action based upon CERCLA (Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601 et seq., as amended by SARA (Superfund Amendment and
Reauthorization Act of 1986), and as may be further amended from
time to time), the Resource Conversation and Recovery Act of
1976, 42 U.S.C. 6901 et seq., or any related claims or causes
of action or any other federal or state based statutory or
regulatory causes of action for environmental contamination at,
in or under the Assets. The agreements of Purchaser set forth in
this Affidavit shall survive the closing of the Transaction under
the Purchase Agreement and shall not be merged therein. Except
as expressly otherwise provided in the Purchase Agreement,
Purchaser is not relying upon any representation, inducement or
unperformed promise of Seller or any of Seller's agents except
to the extent such inducement, representation or unperformed
promise is set forth in the Closing Documents executed by Seller
contemporaneously herewith or as set forth in the Purchase
Agreement. Purchaser hereby represents that Purchaser has relied
upon Purchaser's own inspection and environmental reports in
reaching its decision to purchase the Assets, and Purchaser is
not relying upon inspection reports produced by Seller which may
be incomplete and/or outdated.
3. Purchaser acknowledges that it has received and
reviewed (with the assistance of such experts as Purchaser as
deemed appropriate) all information furnished by Seller regarding
the Assets, including, but not limited to, information as may
have related to its construction, history, current economic and
leasing status, physical condition and prospects for future use
or development, as Purchaser has deemed appropriate. BY
FURNISHING THE MATERIALS, DOCUMENTS, REPORTS OR AGREEMENT
DESCRIBED ABOVE, NEITHER SELLER NOR ANY OF SELLER'S AGENTS
(DEFINED AS BROKERS, ON-SITE PROPERTY MANAGERS, CONTRACTORS, OR
SIMILAR INDIVIDUALS OR ENTITIES ENGAGED BY SELLER RELATING TO OR
INVOLVING THE PROJECT), NOR ANY PARTNER, OFFICER, DIRECTOR,
EMPLOYEE, AGENT OR ATTORNEY OF SELLER, NOR ANY OTHER PARTY
RELATED IN ANY WAY TO ANY OF THE FOREGOING SHALL BE DEEMED TO
HAVE MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE
WHATSOEVER WITH RESPECT TO ANY MATTER SET FORTH, CONTAINED OR
ADDRESSED IN SUCH MATERIALS, DOCUMENTS, REPORTS OR AGREEMENTS,
INCLUDING, BUT NOT LIMITED TO, THE ACCURACY AND COMPLETENESS
THEREOF EXCEPT TO THE EXTENT OF THE REPRESENTATIONS MADE BY
SELLER IN SECTION OF THE PURCHASE AGREEMENT OR IN THE DOCUMENTS
EXECUTED BY SELLER AT CLOSING.
4. The representations, warranties and agreements of
Purchaser made herein are in addition to (and not in limitation
of) the representations, warranties and agreements of Purchaser
made in the Purchase Agreement.
ACCEPTED AND AGREED TO:
TRIAD
PROPERTIES CORPORATION
By:
Name:
Title:
STATE OF __________
COUNTY OF_________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of
__________________, 1998.
_______________________________________
Notary Public, State of
MY COMMISSION EXPIRES:
__________________________ Personally known ______ OR
Produced Identification ______
Type of Identification Produced
_____
EXHIBIT
FORM OF
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a
transferee of a United States real property interest must
withhold tax if the transferor is a foreign person. To inform
the transferee that withholding tax is not required upon the
disposition of a United States real property interest by Parkway
Properties LP, a Delaware limited partnership, the undersigned
hereby certifies the following on behalf of Parkway Properties
LP:
1. Parkway Properties LP is not a foreign corporation,
foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax
Regulations); and
2. Parkway Properties LP's U.S. employer tax
identification number is 72-1344324; and
3. Parkway Properties LP's office address is One Jackson
Place, Suite 1000, 188 E. Capitol Street, Jackson, Mississippi
39201.
Parkway Properties LP understands that this certification
may be disclosed to the Internal Revenue Service by transferee
and that any false statement contained herein could be punished
by fine, imprisonment, or both.
Under penalties of perjury, the undersigned authorized
representatives of Parkway Properties LP declares that they have
examined this certification and to the best of their knowledge
and belief it is true, correct and complete, and further declare
that they have authority to sign this document on behalf of
Parkway Properties LP.
Dated: _________________, 1998
Parkway
Properties LP,
a Delaware
limited partnership
By:
Parkway Properties General
Partners, Inc.,
a Delaware corporation, its
general partner
By:
Name:
Title:
By:
Name:
Title:
STATE OF __________
COUNTY OF _________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
____________________________________
NOTARY PUBLIC
My commission expires:
____________________
(Affix official seal, if applicable)
STATE OF __________
COUNTY OF _________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _________,
19___, within my jurisdiction, the within named _________, who
acknowledged that (he)(she) is ________________ of
_______________, a ________________ corporation, and that for and
on behalf of the said corporation, and as its act and deed
(he)(she) executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
____________________________________
NOTARY PUBLIC
My commission expires:
____________________
(Affix official seal, if applicable)
_______________________________
1
