EXHIBIT 10.1
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PURCHASE AGREEMENT
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(First Tennessee Plaza; Knoxville, Texas)
THIS AGREEMENT is made and entered into as of August _______, 1997
(the "Effective Date") by and between CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIII, an Illinois limited partnership (hereinafter called
"Seller"), and PARKWAY PROPERTIES, L.P., a Delaware limited partnership
(hereinafter called "Buyer").
R E C I T A L S
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A. Seller is the owner of that certain real property located in
the City of Knoxville, County of Xxxx, State of Tennessee, consisting
primarily of an office building (the "Building") sometimes known as "First
Tennessee Plaza".
B. Buyer desires to purchase such premises on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. PURCHASE AND SALE. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the land (the "Land") described in Exhibit "A"
attached hereto and made a part hereof, together with all right, title and
interest of Seller in and to all improvements, structures and fixtures
located upon the Land, all right, title and interest of Seller in and to
those items of personal property described in Exhibit "B" attached hereto
and made a part hereof, all right, title and interest of Seller in and to
the name "First Tennessee Plaza", to the extent assignable, all right,
title and interest of Seller in and to all contract rights and agreements,
and all right, title and interest of Seller in and to all leases, tenant
lists, advertising material and telephone exchange numbers relating solely
to the Property (hereinafter, collectively, the "Property"), all upon the
terms, covenants and conditions hereinafter set forth.
2. PURCHASE PRICE.
A. The purchase price (the "Purchase Price") for the
Property shall be the sum of Twenty-Nine Million Two Hundred Thousand and
No/100 Dollars ($29,200,000.00).
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. ESCROW DEPOSIT. Concurrently herewith, Buyer shall
deliver $100,000 (together with all interest thereon, the "Initial Escrow
Deposit") to Ticor Title Insurance Company, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx, 00000, Attention: Xxxx Xxxxxxxx (which company,
in its capacity as escrow holder hereunder, is called "Escrow Holder"). In
addition, if Buyer shall deliver the "Approval Notice" prior to the
expiration of the "Due Diligence Period", as provided (and defined) in
paragraph 4B hereof, Buyer shall concurrently therewith deliver an
additional deposit of $150,000 (the "Additional Escrow Deposit") to Escrow
Holder. Each deposit to be made hereunder shall be made by a bank or
cashier's check drawn on a major national money center banking institution
reasonably acceptable to Seller (or by other delivery of good funds
reasonably acceptable to Seller), and the amounts so deposited shall be
held by Escrow Holder as a deposit against the Purchase Price in accordance
with the terms and provisions of this Agreement. As used herein, the term
"Escrow Deposit" means the Initial Escrow Deposit and, from and after the
deposit thereof, the Additional Escrow Deposit, together with all interest
earned on such deposits while the same are held in escrow hereunder. At
all times in which the Escrow Deposit is being held by the Escrow Holder,
the Escrow Deposit shall be invested by Escrow Holder in the following
investments ("Approved Investments"): (i) an insured interest bearing
account of a financial institution reasonably acceptable to Buyer and
Seller, or (ii) such other manner as may be reasonably approved by Seller
and Buyer. The Escrow Deposit shall be disposed of by Escrow Holder only
as provided in this Agreement.
B. INDEPENDENT CONSIDERATION. Seller and Buyer acknowledge
and agree that One Hundred and No/100 Dollars ($100.00) of the Escrow
Deposit (the "Independent Contract Consideration") shall be paid to Seller
in the event this Agreement is terminated for any reason. Seller and Buyer
acknowledge and agree that the Independent Contract Consideration has been
bargained for and agreed to as additional consideration for Seller's
execution and delivery of this Agreement. At "Closing" (as hereinafter
defined), the Independent Contract Consideration shall be applied to the
Purchase Price. Notwithstanding the foregoing to the contrary, the payment
to Seller of such Independent Contract Consideration shall in no way limit,
and are in addition to, any other rights or remedies of Seller hereunder
(including, without limitation, disposition of the Escrow Deposit in
accordance with paragraph 9 below).
C. EXISTING DEBT. Subject to the provisions of paragraph 4C
below, payment of a portion of the Purchase Price shall be evidenced by
Buyer taking title to the Property subject to the "Existing Encumbrance"
and the "Loan Documents" (including, the "Existing Note") secured thereby
(as such terms are defined in Exhibit "C" attached hereto and made a part
hereof), such payment being in an amount equal to the outstanding principal
balance of the Existing Note as of the "Closing Date" (as hereinafter
defined). Assuming the Closing Date occurs on September 4, 1997, the
outstanding principal balance of the Existing Note is anticipated to be
approximately $14,900,000.
D. CLOSING PAYMENT. The balance of the Purchase Price
(i.e., the Purchase Price less the sum of the Deposit and the amounts, if
any, deemed paid pursuant to paragraph 3B above, as such amounts shall be
adjusted by the prorations and credits specified herein) shall be paid by
wire transfer of immediately available federal funds on the Closing Date as
directed by Seller (the amount to be paid under this subparagraph D being
herein called the "Closing Payment"). Assuming the Closing Date occurs in
September, 1997, the
Closing Payment is anticipated to be approximately $29,200,000, less the
Deposit and adjusted by the prorations and credits specified herein (i.e.,
$26,700,000, less the anticipated principal balance of the Existing Note of
approximately $14,900,000).
4. CONDITIONS PRECEDENT.
A. TITLE MATTERS.
(1) TITLE REPORT. Seller has delivered a commitment
for title insurance ("Title Commitment") covering the Property from Ticor
Title Insurance Company dated June 16, 1997 (which company, in its capacity
as title insurer hereunder, is herein called the "Title Company"). In
addition, Seller has delivered to Buyer an update of that certain survey of
the Property dated February 23, 1995, and last revised July 25, 1997,
prepared by Barge, Xxxxxxxx, Xxxxxx & Xxxxxx, Inc., which survey shall be
certified to Buyer and the "Lender" (as hereinafter defined) and Title
Company ("Survey"). If Buyer shall deliver the Approval Notice on or
before the end of the Due Diligence Period, Buyer shall be deemed to have
approved the exceptions to title shown on the Title Commitment and the
matters disclosed on the Survey so long as the Title Commitment and Survey
have been previously delivered to Buyer. Approval by Buyer of any
additional exceptions to title or survey matters disclosed after the end of
the Due Diligence Period shall be a condition precedent to Buyer's
obligation to purchase the Property (Buyer hereby agreeing that its
approval of such additional exceptions to title or survey matters shall not
be unreasonably withheld). Unless Buyer gives written notice that it
disapproves any such additional exceptions to title or survey matters,
stating the exceptions so disapproved, on or before the sooner to occur of
5 days after receipt of written notice thereof or the Closing Date, Buyer
shall be deemed to have approved said exceptions. If, for any reason, on
or before the Closing Date, Seller does not cause any exceptions to title
or survey matters which Buyer disapproves (to the extent Buyer is permitted
hereunder to so disapprove) either to be removed or to obtain a title
endorsement (if available) insuring over such disapproved matter on or
before the Closing Date at no cost or expense to Buyer (Seller having the
right but not the obligation to do so), the obligation of Seller to sell,
and Buyer to buy, the Property as herein provided shall terminate (and
Seller and Buyer shall have no further obligations in connection herewith).
Buyer shall have the option to waive the condition precedent set forth in
this Paragraph 4A(1) by notice to Seller. In the event of such waiver,
such condition shall be deemed satisfied.
(2) EXCEPTIONS TO TITLE. Buyer shall be obligated to
accept title to the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due
and payable;
(b) The Loan Documents; and
(c) Such exceptions to title as may be approved
or deemed approval by Buyer pursuant to the provisions of subparagraph A(1)
above.
Conclusive evidence of the availability of such title shall be the
willingness of Title Company to issue to Buyer on the Closing Date an
owner's title insurance policy in the standard form issued in the State of
Tennessee ("Owner's Policy"), in the face amount of the Purchase Price,
which policy shows (i) title to the Property to be vested of record in
Buyer, and (ii) the above exceptions to be the only exceptions to title.
B. DUE DILIGENCE REVIEWS. Buyer shall have until 5:00 p.m.
(Central time) on August 22, 1997 (the "Due Diligence Period") within which
to perform and complete all of Buyer's due diligence examinations, reviews
and inspections of all matters pertaining to the purchase of the Property,
including all leases, documents relating to the existing financing
(including Loan Documents), service contracts, survey and title matters,
and all physical, environmental and compliance matters and conditions
respecting the Property. During the Due Diligence Period, Seller shall
provide Buyer with reasonable access to the Property upon reasonable
advance notice and shall also make available to Buyer, upon reasonable
advance notice, such leases, service contracts and other contracts
respecting the Property as Buyer shall reasonably request (to the extent
the same are in Seller's possession). Buyer shall promptly commence, and
shall diligently and in good faith pursue, its due diligence review
hereunder. Buyer shall at all times conduct its due diligence review,
inspections and examinations in a manner so as to not cause damage, loss,
cost or expense to Seller or the Property and so as to not interfere with
or disturb any tenant at the Property, and Buyer will indemnify, defend,
and hold Seller and the Property harmless from and against any such damage,
loss, cost or expense (the foregoing obligation surviving any termination
of this Agreement). Without limitation on the foregoing, in no event shall
Buyer (a) make any intrusive physical testing (environmental, structural or
otherwise) at the Property (such as soil borings, water samplings or the
like) without Seller's express written consent; (b) contact any tenant of
the Property without Seller's express written consent; and (c) contact any
governmental authority having jurisdiction over the Property without
Seller's express written consent (which consent as to tenants and
governmental authorities shall not be unreasonably withheld). Seller shall
have the right, at its option, to cause a representative of Seller to be
present at all inspections, reviews and examinations conducted hereunder.
Buyer shall promptly deliver to Seller true, accurate and complete copies
of any written reports relating to the Property prepared for or on behalf
of Buyer by any third party and in the event of termination hereunder,
shall return all documents and other materials furnished by Seller
hereunder. Buyer shall keep all information or data received or discovered
in connection with any of the inspections, reviews or examinations strictly
confidential. If, on or before the expiration of the Due Diligence Period,
based upon such review, examination or inspection, Buyer shall determine
that it intends to proceed with the acquisition of the Property, then Buyer
shall promptly notify Seller and Escrow Holder of such determination in
writing (such notice being herein called the "Approval Notice") and
concurrently therewith Buyer shall deliver the Additional Escrow Deposit to
Escrow Holder (and thereafter, Buyer shall have no further right to
terminate this Agreement pursuant to this paragraph 4B). If, however, on
or before the expiration of the Due Diligence Period, based upon such
review, examination or inspection, Buyer shall determine in its sole and
absolute discretion that it no longer intends to acquire the Property, then
Buyer shall promptly notify Seller of such determination in writing (such
notice being herein called the "Termination Notice"), whereupon the Escrow
Deposit shall be returned to Buyer and this Agreement, and the obligations
of the parties hereunder, shall terminate. In the event that, on or before
the expiration of the Due Diligence Period, Buyer shall fail to have
delivered the Approval Notice to Seller (and concurrently therewith deposit
the Additional Escrow Deposit with Escrow Holder as provided for in this
Agreement), Buyer shall be deemed to have elected not to proceed with the
acquisition of the Property whereupon the Escrow Deposit shall be returned
to Buyer and this Agreement, and the obligations of the parties hereunder,
shall terminate.
C. EXISTING LOAN MATTERS. Receipt of the written consent to
the transactions contemplated herein from all parties whose consent to the
assumption by Buyer of such Loan Documents is required thereunder, together
with a release of Seller from any liability under the Loan Documents, and
an "estoppel certificate" executed by The Prudential Insurance Company of
America (the "Existing Lender") certifying that the Loan Documents are in
full force and effect and that no default exists thereunder, shall be
conditions precedent to Seller's obligation to sell, and Buyer's obligation
to purchase, the Property. To the extent required by the Existing Lender,
Seller shall pay to the Existing Lender up to 1% of the outstanding
principal balance of the Existing Note as a loan transfer fee or prepayment
premium or fee. Seller shall pay any other transfer, assumption or other
fees and costs (including reasonable attorneys' fees, but not attorneys'
fees of Buyer's counsel) imposed by any of such parties with respect to
such consent and assumption (including any loan transfer, assumption fee or
prepayment premium in excess of 1% of the outstanding principal balance of
the Existing Note) up to a maximum of $15,000. Buyer shall reasonably
cooperate with Seller in connection with such consent and assumption (and
shall promptly deliver such information, including financial information,
respecting Buyer or its principals as any of such parties may request).
Seller's sole obligations in connection with the consent matters herein
contemplated (unless Buyer agrees otherwise) shall be to utilize reasonable
efforts to obtain such consents, and to reasonably cooperate with Buyer to
the extent necessary, including, but not limited to, with respect to its
efforts in connection with substitution of the letter of credit. If such
consents are not obtained on or before the Closing Date, the obligation of
Seller to sell, and Buyer to purchase, the Property shall terminate.
Seller's sole obligation hereunder with respect to obtaining an "estoppel
certificate" from the Existing Lender shall be to utilize reasonable
efforts to obtain such "estoppel certificate" (such reasonable efforts not
including any obligation to institute legal proceedings or to expend any
additional monies therefor, other than for minor administrative charges).
D. ESTOPPEL CERTIFICATES. Receipt of estoppel certificates
("Tenant Estoppel Certificates"), from (i) each tenant listed on Exhibit
"D-1" attached hereto and made a part hereof, and (ii) from a sufficient
number of the balance of the tenants at the Property so that Tenant
Estoppel Certificates shall be received under clauses (i) and (ii) hereof
with respect to not less than 80% of the net rentable square feet of space
covered by leases in effect as of the Closing Date, shall be a condition
precedent to Buyer's obligation to purchase the Property hereunder. Each
Tenant Estoppel Certificate shall either be substantially in the form
provided in Exhibit "D-2" attached hereto and made a part hereof or in the
form, if any, prescribed in the applicable tenant lease. Seller's sole
obligation hereunder shall be to utilize commercially reasonable efforts to
obtain a Tenant Estoppel Certificate from each tenant at the Property (such
reasonable efforts obligations not including any obligation to institute
legal proceedings or to expend monies therefor), but such obligation shall
not affect the provision of such Tenant Estoppel Certificates as a
condition precedent to closing. In addition, it shall be a condition
precedent to Buyer's obligation to close hereunder that, as of the Closing
Date, Buyer shall have received an estoppel certificate addressed to Buyer
from Seller with respect to those tenants which fail to deliver tenant
estoppel certificates ("Seller's Estoppel Certificates") certifying the
following: that the applicable lease is in full force and effect, that a
true and complete copy of the applicable lease is attached to the
applicable Seller's Estoppel Certificate; that neither the tenant nor the
landlord under the applicable lease is in default thereunder; that the
Seller's Estoppel Certificate states the present amount of annual base rent
being paid by the tenant under the applicable lease and the commencement
and termination dates under the applicable lease. A Seller's Estoppel
Certificate shall be of no further force and effect as to any tenant which
delivers an Tenant Estoppel Certificate subsequent to Seller's delivery of
the Seller's Estoppel Certificates to Buyer, provided such Tenant Estoppel
Certificate is consistent in all material respects with the information
with respect to such tenant contained in the applicable Seller's Estoppel
Certificate previously delivered to Buyer.
E. REMOVAL OF STAINED SOIL. The removal of certain black
stained soil located in the sump pits of the garage elevators at the
Property, as the same was disclosed in a phase I environmental report
prepared by PSI for Buyer as project number 360-7E015 ("Buyer's Phase I"),
shall be a condition precedent to Buyer's obligation to purchase the
Property hereunder.
5. CLOSING PROCEDURE. The closing of the sale and purchase herein
provided (the "Closing") shall be consummated at a closing conference
("Closing Conference"), which shall be held on the Closing Date at Seller's
offices at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx or through escrow
through the mail. As used herein, "Closing Date" means the date which is
15 days after the end of the Due Diligence Period, or such earlier date as
may be agreed upon by Buyer and Seller; provided, however, if any of the
conditions to closing set forth in paragraph 4C above are not satisfied on
or before the Closing Date, and so long as Buyer shall not then be in
default or have otherwise breached its obligations under this Agreement,
Buyer and/or Seller shall have the right to extend the Closing Date for up
to forty-five (45) days in order to attempt to satisfy such conditions.
A. ESCROW. On or before the Closing Date, the parties shall
deliver to Title Company the following: (1) by Seller, a duly executed and
acknowledged original limited warranty deed ("Deed") in the form of Exhibit
"E" attached hereto and made a part hereof, and (2) by Buyer, the Closing
Payment in immediately available federal funds. Such deliveries shall be
made pursuant to escrow instructions ("Escrow Instructions") to be executed
among Buyer, Seller and Title Company in form reasonably acceptable to such
parties in order to effectuate the intent hereof. The conditions to the
closing of such escrow shall include the Title Company's receipt of the
Deed, the Closing Payment and a notice from each of Buyer and Seller
authorizing Title Company to close the transactions as contemplated herein
(each of Buyer and Seller being obligated to deliver such authorization
notice at the Closing Conference as soon as it is reasonably satisfied that
the other party is in a position to deliver the items to be delivered by
such other party under subparagraph B below).
B. DELIVERY TO PARTIES. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the Deed shall be
delivered to Buyer by Title Company's depositing the same for recordation,
(y) the Closing Payment (and the Escrow Deposit) shall be delivered by
Title Company to Seller and (z) at the Closing Conference, the following
items shall be delivered:
(1) SELLER DELIVERIES. Seller shall deliver to Buyer
the following:
(a) A duly executed and acknowledged xxxx of
sale, assignment and assumption agreement ("Assignment and Assumption
Agreement") in the form of Exhibit "F" attached hereto and made a part
hereof;
(b) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller;
(c) Evidence reasonably satisfactory to Buyer and
Title Company respecting the due organization of Seller and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder;
(d) Appropriate documentation to evidence the
assignment and assumption of the Loan Documents as may be reasonably
required in order to effectuate the release, assignment and assumption
transactions respecting the Loan Documents as contemplated in this
Agreement;
(e) A certificate of Seller ("Seller Closing
Certificate") updating the representations and warranties contained in
paragraph 7A hereof to the Closing Date, and noting any changes thereto;and
(f) Such additional documents as may be
reasonably required by Buyer and Title Company in order to consummate the
transactions hereunder (provided the same do not materially increase the
costs to, or liability or obligations of, Seller in a manner not otherwise
provided for herein).
(2) BUYER DELIVERIES. Buyer shall deliver to Seller
the following:
(a) A duly executed and acknowledged Assignment
and Assumption Agreement;
(b) Evidence reasonably satisfactory to Seller
and Title Company respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder;
(c) Appropriate documentation to evidence the
assignment and assumption of the Loan Documents as may be reasonably
required in order to effectuate the release, assignment and assumption
transactions respecting the Loan Documents as contemplated in this
Agreement;
(d) A certificate of Buyer ("Buyer's Closing
Certificate") updating the representations and warranties contained in
paragraph 7B hereof to the Closing Date, and noting any changes thereto;and
(e) Such additional documents as may be
reasonably required by Seller and Title Company in or to consummate the
transactions hereunder (provided the same do not materially increase the
costs to, or liability or obligations of, Buyer in a manner not otherwise
provided for herein).
C. CLOSING COSTS. Seller shall pay (i) all of any deed or
other transfer taxes, mortgage taxes and sales or use taxes applicable to
the transactions hereunder, (ii) the costs to update the Survey and
(iii) one-half of any escrow or recording charges attributable to the Deed.
Buyer shall pay (i) the title insurance premium for the Owner's Policy, as
well as any portion of the title insurance premium attributable to any
additional or extended coverage or endorsements requested by Buyer, (ii)
one-half of any escrow or recording charges and (iii) all fees, costs or
expenses incurred by Buyer in connection with Buyer's due diligence reviews
hereunder. Each of Seller and Buyer shall pay its own attorneys' fees and
its respective share of prorations as hereinafter provided.
Notwithstanding the foregoing, in the event the sale contemplated hereby
does not close on the Closing Date, then each party shall pay all costs
incurred by it.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following shall be
prorated between Seller and Buyer as of the Closing Date:
(a) All real estate taxes and assessments on the
Property for the current year on a per diem basis. In no event shall
Seller be charged with or be responsible for any increase in the taxes on
the Property resulting from the sale of the Property or from any
improvements made or leases entered into on or after the Closing Date. If
any assessments on the Property are payable in installments, then the
installment for the current period shall be prorated (with Buyer assuming
the obligation to pay any installments due after the Closing Date).
(b) All fixed and additional rentals under the
leases, security deposits and other tenant charges. Seller shall deliver
or provide a credit in an amount equal to all prepaid rentals for periods
after the Closing Date and all refundable security deposits (to the extent
the foregoing are not applied or forfeited prior to the Closing Date) to
Buyer on the Closing Date. Rents which are delinquent as of the Closing
Date shall not be prorated on the Closing Date. Buyer shall include such
delinquencies in its normal billing and shall diligently pursue the
collection thereof in good faith after the Closing Date (but Buyer shall
not be required to litigate or declare a default in any lease). To the
extent Buyer receives rents on or after the Closing Date, such payments
shall be applied first toward then current rent owed to Buyer in connection
with the applicable lease for which such payments are received, and any
excess monies received shall be applied toward the payment of any
delinquent rents, with Seller's share thereof being promptly delivered to
Seller. Buyer may not waive any delinquent rents nor modify a lease so as
to reduce or otherwise affect amounts owed thereunder for any period in
which Seller is entitled to receive a share of charges or amounts without
first obtaining Seller's written consent. Seller hereby reserves the right
to pursue any monetary remedy against any tenant owing delinquent rents and
any other amounts to Seller. Buyer shall reasonably cooperate with Seller
in any collection efforts hereunder (but shall not be required to litigate
or declare a default in any lease). With respect to delinquent rents and
any other amounts or other rights of any kind respecting tenants who are no
longer tenants of the Property as of the Closing Date, Seller shall retain
all rights relating thereto.
(c) Interest and any other payments, fees and
charges owed under the Loan Documents, including, but not limited to, any
amounts owed to the Existing Lender, loan administrator or any other party
thereunder.
(d) On or before the Closing Date, Seller shall
pay or cause to be paid (or there shall be escrowed for payment at closing)
all tenant improvement costs and leasing and brokerage commissions which
are payable with respect to Tenant Leases affecting such Property executed
prior to the date hereof (including those costs and commissions set forth
on Exhibit "H-2" hereto, but excluding the tenant improvement costs due
with respect to the GSA-OHA lease), whether the same are due on or prior to
the Closing Date or payable in installments subsequent thereto and
including any portion thereof due upon any renewals of any such Tenant
Lease or options to lease additional space but only if such renewal or
additional space option commences prior to the date of this Agreement.
Buyer shall assume the payment of all tenant improvement costs and leasing
and brokerage commissions which are or may hereafter become due with
respect to (i) any renewals of any Tenant Leases or options to lease
additional space under any Tenant Leases if such renewals or additional
space options are exercised and commence or arise after the date of this
Agreement so long as Buyer has received copies of all commission agreements
for such renewals or additional space options prior to the date of this
Agreement, (ii) the GSA-OHA lease, and (iii) any Tenant Leases hereinafter
executed prior to the closing with Buyer's written consent.
(e) All operating expenses.
(2) CALCULATION. The prorations and payments shall be
made on the basis of a written statement submitted to Buyer and Seller by
Escrow Holder prior to the Close of Escrow and approved by Buyer and
Seller. In the event any prorations or apportionments made under this
subparagraph D shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same provided written
notice of such inaccuracy and request for correction is given within six
months after the date hereof. Any item which cannot be finally prorated
because of the unavailability of information shall be tentatively prorated
on the basis of the best data then available and reprorated when the
information is available, but not later than six months after the date
hereof.
(3) REIMBURSEMENT OF TENANT IMPROVEMENT AND LEASING
COSTS. Buyer agrees that it will pay or reimburse Seller or the tenant, as
applicable, for all tenant improvement and leasing commission obligations
of the landlord under any leases entered into after the date hereof in
accordance with paragraph 7D(3) below, and the GSA/OHA lease (with any
amounts due to Seller being credited on the Closing Date).
6. CONDEMNATION OR DESTRUCTION OF PROPERTY. In the event that,
after the date hereof but prior to the Closing Date, either any portion of
the Property is taken pursuant to eminent domain proceedings or any of the
improvements on the Property are damaged or destroyed by any casualty,
Seller shall have no obligation to repair or replace any such damage or
destruction. Seller shall, upon consummation of the transaction herein
provided, assign to Buyer all claims of Seller respecting any condemnation
or casualty insurance coverage, as applicable, and all condemnation
proceeds or proceeds from any such casualty insurance received by Seller on
account of any casualty (the damage from which shall not have been repaired
by Seller prior to the Closing Date), and shall credit the Purchase Price
for any applicable deductible relating thereto, as applicable; provided,
however, that Seller shall retain any proceeds received (and the right to
receive any proceeds) of rental income insurance or a temporary taking
award that are attributable to a period prior to the Closing Date. In the
event the condemnation award or the cost of repair of damage to the
Property on account of a casualty, as applicable, shall exceed $100,000,
Buyer may, at its option, terminate this Agreement by notice to Seller,
given on or before the Closing Date.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
(1) GENERAL DISCLAIMER. Except as specifically set
forth in Paragraph 7A(2) below, the sale of the Property hereunder is and
will be made on an "as is" basis, without representations and warranties of
any kind or nature, express, implied or otherwise, including, but not
limited to, any representation or warranty concerning title to the Property
(except to the extent any warranties of title are specifically contained in
the Deed), the physical condition of the Property (including, but not
limited to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not limited to, the
presence or absence of hazardous substances on or respecting the Property),
the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition
of the Property or any other representation or warranty respecting any
income, expenses, charges, liens or encumbrances, rights or claims on,
affecting or pertaining to the Property or any part thereof. Buyer
acknowledges that, during the Due Diligence Period, Buyer will examine,
review and inspect all matters which in Buyer's judgment bear upon the
Property and its value and suitability for Buyer's purposes. Except as to
matters specifically set forth in Paragraph 7A(2) below, Buyer will acquire
the Property solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance protection
afforded by the Owner's Policy; provided, however, that the foregoing shall
in no way affect or limit those warranties of title specifically contained
in the Deed. Without limitation thereon, Buyer hereby waives any and all
rights of contribution or other rights or remedies against Seller under the
Commercial Environmental Responsibility Compensation and Liability Act or
any other applicable environmental laws, rules or regulations.
(2) LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the provisions of Paragraph 7A(1) above, Seller hereby
represents and warrants that, except as set forth in Exhibit "G" attached
hereto and made a part hereof, Seller has no knowledge that any of the
following statements is untrue (and, for this purpose, Seller's knowledge
shall mean only the present actual knowledge of Xxxxx X. Xxxxxxx, Vice
President of JMB Realty Corporation and portfolio manager overseeing the
investment of Seller in the Property (after having made inquiry of Seller's
third party property manager with respect to the representations and
warranties contained in this Agreement):
(a) RENT ROLL. Attached as Exhibit "H-1" and
made a part hereof is a true, complete and accurate list, as of the date
thereof, of all tenant leases respecting the Property ("Rent Roll"), and
Seller has not received any written notice of a material default under any
of such tenant leases that remains uncured. Except as disclosed in the
Rent Roll, no Tenant Lease has been modified, altered or amended in any
respect. There are no leases, tenancies or other rights of occupancy or
use for any portion of the Property other than as set forth in the Rent
Roll. Except as set forth in Exhibit "H-2" attached hereto and made a part
hereof (the "Additional Tenant Information List"), there are no outstanding
tenant improvement or leasing commission obligations of the landlord under
the Tenant Leases. In addition, the Additional Tenant Matter List
accurately sets forth amount of any security deposit paid by the tenant
under each Tenant Lease. Notwithstanding anything to the contrary
contained herein, Seller shall have no obligation or liability to Buyer
with respect to any of the foregoing matters which shall be confirmed as
correct in any Tenant Estoppel Certificate which may be delivered
hereunder.
(b) LITIGATION. There is no pending action,
litigation, condemnation or other proceeding against the Property or
against Seller with respect to the Property.
(c) COMPLIANCE. Seller has received no written
notice from any insurance company, governmental authority or agency having
jurisdiction over the Property (i) regarding any violation of any
restrictive covenant or deed restriction affecting the Property and/or to
the effect that the Property is not in compliance with applicable laws or
ordinances, or (ii) regarding any pending or threatened condemnation
proceedings.
(d) SERVICE AGREEMENTS. Other than those which
are cancelable on 30 days' notice, Seller has not entered into any service
agreements or contracts ("Service Agreements") or other agreements (other
than as set forth in this Agreement) relating to the Property which will be
in force on the Closing Date, except as described in Exhibit "I" attached
hereto, and Seller has not received any written notice of any material
default thereunder that remains uncured. If Buyer requests during the Due
Diligence Period, any such Service Agreements will be terminated at
Closing; provided, however, that Buyer shall be responsible for paying any
termination fees or costs associated in connection with the termination of
the Xxxx Elevator contract and the First Telecom-First Tennessee Bank
telephone system contract.
(e) DUE AUTHORITY. This Agreement and all
agreements, instruments and documents herein provided to be executed or to
be caused to be executed by Seller are and on the Closing Date will be duly
authorized, executed and delivered by and are binding upon Seller. Seller
is a partnership, duly organized and validly existing under the laws of the
State of Illinois, and is duly authorized and qualified to do all things
required of it under this Agreement. Seller has the capacity and authority
to enter into this Agreement and consummate the transactions herein
provided.
(f) ENVIRONMENTAL MATTERS. Except as set forth
in the reports described in Exhibit "J" attached hereto and made a part
hereof (the "Environmental Reports"), and in Buyer's Phase I, there has
been no release of any material known to Seller to be a "Hazardous
Material" at, upon, under or within the Property, in an amount which would,
as of the date hereof, give rise to an "Environmental Compliance Cost".
The term "Hazardous Material" shall mean asbestos, petroleum products, and
any other hazardous waste or substance which has, as of the date hereof,
been determined to be hazardous or a pollutant by the U.S. Environmental
Protection Agency, the U.S. Department of Transportation, or any
instrumentality authorized to regulate substances in the environment which
has jurisdiction over the Property ("Environmental Agency") which substance
causes the Property (or any part thereof) to be in material violation of
any applicable environmental laws; provided, however, that the term
"Hazardous Material" shall not include (x) motor oil and gasoline contained
in or discharged from vehicles not used primarily for the transport of
motor oil or gasoline, or (y) materials which are stored or used in the
ordinary course of a tenant's occupancy at (or the Company's, or the
Company's managing agents' operation of) the Property, and which are
stored, used, held, or disposed of in compliance with all applicable
environmental laws. The term "Environmental Compliance Cost" means any
reasonable out-of-pocket cost, fee or expense exceeding $2,500 and incurred
directly to satisfy any requirement imposed by an Environmental Agency to
bring the Property into compliance with applicable Federal, State and local
laws and regulations directly relating to the existence on the Property of
any Hazardous Material.
(g) LOAN DOCUMENTS. The loan documents described
in Exhibit "K" attached hereto and made a part hereof constitute all of the
documents which relate to the Existing Encumbrance. Seller has not
received any written notice of a material default under the Loan Documents
that remains uncured.
(h) OPERATING STATEMENTS. The operating
statements delivered to Buyer have been prepared by or on behalf of Seller
in the ordinary course of business.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants that this Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed
by Buyer are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Buyer; Buyer is a limited partnership,
duly organized and validly existing and in good standing under the laws of
the State of Delaware, and is duly authorized and qualified to do all
things required of it under this Agreement; and Buyer has the capacity and
authority to enter into this Agreement and consummate the transactions
herein provided.
C. SURVIVAL. Any cause of action of a party for a breach of
the foregoing representations and warranties shall survive until December
15, 1997, at which time such representations and warranties (and any cause
of action resulting from a breach thereof not then in litigation) shall
terminate. Notwithstanding the foregoing, if Buyer shall have actual
knowledge as of the Closing Date that any of the representations or
warranties of Seller contained herein are false or inaccurate or that
Seller is in breach or default of any of its obligations under this
Agreement, and Buyer nonetheless closes the transactions hereunder and
acquires the Property, then Seller shall have no liability or obligation
respecting such false or inaccurate representations or warranties or other
breach or default (and any cause of action resulting therefrom shall
terminate upon such closing hereunder).
D. INTERIM COVENANTS OF SELLER. Until the Closing Date or
the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same
manner as prior hereto pursuant to its normal course of business (such
maintenance obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
other events beyond the control of Seller. Seller shall maintain current
insurance coverage (or substantially equivalent coverage) in place at the
Property. Seller will not initiate or knowingly permit (unless required by
applicable law or an existing agreement affecting the Property) any zoning
reclassification of the Property or seek any variance under existing zoning
ordinances applicable to the Property to use or permit the use of the
Property in such a manner which would result in such use becoming a
nonconforming use under applicable zoning ordinances. Seller will not
impose any restrictive covenants on the Property or execute or file any
subdivision plat affecting the Property.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior consent of Buyer,
except those deemed reasonably necessary by Seller which are cancelable on
30 days' notice without premium or penalty.
(3) Seller shall have the right to continue to offer
the Property for lease in the same manner as prior hereto pursuant to its
normal course of business and, upon request, shall keep Buyer reasonably
informed as to the status of leasing prior to the Closing Date. After the
Effective Date (unless Buyer shall have theretofore delivered a termination
notice hereunder), Seller shall not enter into any new leases or material
modifications of existing leases thereafter without the consent of Buyer
(which consent will not be unreasonably withheld or materially delayed).
In no event shall Seller have any obligation to enter into any new lease or
modify any existing lease unless Buyer shall agree to pay or reimburse
Seller on the Closing Date for all tenant improvement costs and leasing
commissions incurred by Seller under or in connection therewith (Buyer's
agreement to pay or reimburse for such amounts not to be unreasonably
withheld).
(4) Subject to the terms and conditions of paragraph 4B
above, during normal business hours with 24 hours prior notice to Seller,
prior to Closing, Seller agrees to give Buyer and its agents and
representatives reasonable access to the Property and the books and records
directly relating to the ownership, management, maintenance and operations
of the Property and all documents (other than those containing proprietary
information) in the possession or control of Seller.
9. DISPOSITION OF DEPOSIT. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT, THEN THE
ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER PARTY SHALL HAVE ANY
FURTHER OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF A MATERIAL
DEFAULT BY SELLER, AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS
HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL
BE ENTITLED TO EITHER (1) TERMINATE THIS AGREEMENT, RECEIVE A RETURN OF THE
ESCROW DEPOSIT AND TO OBTAIN REIMBURSEMENT FROM SELLER FOR BUYER'S ACTUAL
OUT-OF-POCKET EXPENSES PAID TO UNAFFILIATED THIRD PARTIES IN CONNECTION
WITH ITS DUE DILIGENCE REVIEWS HEREUNDER (SUCH REIMBURSEMENT OBLIGATION NOT
TO EXCEED $20,000 IN THE AGGREGATE), OR (2) SPECIFICALLY ENFORCE THIS
AGREEMENT (BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE
FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS
DESCRIBED IN PARAGRAPH 4 HEREOF OR THE TERMINATION OF THIS AGREEMENT IN
ACCORDANCE WITH PARAGRAPH 6 HEREOF OR THE DEFAULT OF SELLER, THEN THE
ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND
LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. IN THE
EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT SHALL
BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE. IN CONNECTION WITH
THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN
CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE
PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY
DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER
CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE
CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE
AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S BREACH
OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED
ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT
SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON
OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 9I HEREOF.
------------------ ------------------
Seller's Initials Buyer's Initials
9. MISCELLANEOUS.
A. BROKERS.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement or
to its knowledge is in any way connected with any of such transactions. In
the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller, and Buyer shall indemnify and defend Seller from the
same if it shall be based upon any statement or agreement alleged to have
been made by Buyer. The indemnification obligations under this Paragraph
9A(1) shall survive the closing of the transactions hereunder or the
earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx, LLC (the
"Broker") pursuant to a separate written agreement. The foregoing payment
shall be the sole commission, fee or payment payable to Broker in
connection with the transactions hereunder.
B. LIMITATION OF LIABILITY.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have occurred
(and Buyer shall not have waived, relinquished or released any applicable
rights in further limitation), the aggregate liability of Seller arising
pursuant to or in connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Seller under this Agreement (or any document executed or
delivered in connection herewith) shall not exceed $750,000; provided that,
the foregoing shall not limit the liability of Seller arising from or out
of Seller's affirmative fraud in connection with the representations,
warranties, indemnifications, covenants or other obligations of Seller
under this Agreement (or any document executed or delivered in connection
herewith).
(2) No constituent partner in or agent of Seller, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Seller (including, but
not limited to, JMB Realty Corporation) shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Buyer and its successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Seller's assets for the payment of any claim or for any
performance, and Buyer, on behalf of itself and its successors and assigns,
hereby waives any and all such personal liability. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (or in any other
constituent partner of Seller), nor any obligation of any constituent
partner in Seller (or in any other constituent partner of Seller) to
restore a negative capital account or to contribute capital to Seller (or
to any other constituent partner of Seller), shall at any time be deemed to
be the property or an asset of Seller or any such other constituent partner
(and neither Buyer nor any of its successors or assigns shall have any
right to collect, enforce or proceed against or with respect to any such
negative capital account of partner's obligation to restore or contribute).
(3) No constituent partner in or agent of Buyer, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Buyer shall have any
personal liability, directly or indirectly, under or in connection with
this Agreement or any agreement made or entered into under or pursuant to
the provisions of this Agreement, or any amendment or amendments to any of
the foregoing made at any time or times, heretofore or hereafter, and
Seller and its successors and assigns and, without limitation, all other
persons and entities, shall look solely to Buyer's assets for the payment
of any claim or for any performance, and Seller, on behalf of itself and
its successors and assigns, hereby waives any and all such personal
liability. Notwithstanding anything to the contrary contained in this
Agreement, neither the negative capital account of any constituent partner
in Buyer (or in any other constituent partner of Buyer), nor any obligation
of any constituent partner in Buyer (or in any other constituent partner of
Buyer) to restore a negative capital account or to contribute capital to
Buyer (or to any other constituent partner of Buyer), shall at any time be
deemed to be the property or an asset of Buyer or any such other
constituent partner (and neither Seller nor any of its successors or
assigns shall have any right to collect, enforce or proceed against or with
respect to any such negative capital account of partner's obligation to
restore or contribute).
(4) Notwithstanding the foregoing, (i) if Seller or its
successor-in-interest shall fail to retain reserves of at least $850,000 at
the time of closing hereunder or (ii) if during the period commencing on
the Closing Date and ending on December 15, 1997 (the "Survival Period"),
Seller or its successor-in-interest shall utilize such reserves for any
purpose other than the payment of claims, expenses, liabilities or
attorneys' fees of Seller or such successor-in-interest (including any
amounts incurred in connection with resolving or defending any claim of
liability hereunder) with respect to a breach or alleged breach of the
representations, warranties, indemnifications, covenants or other
obligations (whether express or implied) of Seller under this Agreement (or
any document executed or delivered in connection herewith), or is otherwise
related to, connected with or concerns the Property in any manner
(collectively, the "Specified Liabilities"), then subject to the terms and
conditions of this Agreement, Buyer may, during the Survival Period, look
to the assets of JMB Realty Corporation, as the general partner of Seller,
for the payment of any Specified Liabilities; provided, however, the
aggregate liability of JMB Realty Corporation in connection therewith shall
not exceed $750,000 in the aggregate and shall be further limited as
follows:
(x) with respect to the initial reserve amount, such
liability shall be limited to the lesser of the amount by which $850,000
exceeds the amount actually reserved by Seller or its successor-in-interest
in closing hereunder, and $750,000; or
(y) during the Survival Period, such liability shall be
limited to the lesser of the amount of such reserves which, during the
Survival Period, are utilized for purposes other than the payment of the
Specified Liabilities, and $750,000.
C. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters. This Agreement may not be modified or amended except by written
agreement signed by both parties.
D. TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
E. INTERPRETATION. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Illinois.
G. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however, Buyer
may assign its interest in this Agreement to a limited partnership in which
Buyer is the managing general partner and has not less than a 51% interest
in capital and profits in such limited partnership. No consent given by
Seller to any transfer or assignment of Buyer's rights or obligations
hereunder shall be construed as a consent to any other transfer or
assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. NOTICES. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by personal
delivery or by mail (either [i] by United States registered or certified
mail, return receipt requested, postage prepaid, or [ii] by Federal Express
or similar generally recognized overnight carrier regularly providing proof
of delivery), addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
TO BUYER:
Parkway Properties, L.P.
One Xxxxxxx Place
000 Xxxx Xxxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
WITH COPY TO:
Xxxxxx, Perry, Watkins, Xxxxx & Xxxxx
1200 One Xxxxxxx Place
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
TO SELLER:
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
WITH COPY TO:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
AND TO:
Xxxxxxx Xxxxx, LLC
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be given.
I. LEGAL COSTS. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
K. SEC REQUIREMENTS. If required by rules of the Securities
and Exchange Commission, Seller grants Buyer the right, at Buyer's sole
expense, to prepare an audited income statement of the Property for the
most recent fiscal year(s) as specified by Rule 3-14 of Regulation S-X
under the Securities Act of 1933 and the Securities Exchange Act of 1934,
and Seller shall reasonably cooperate, at Buyer's expense, in making
available any and all such other data and financial information which shall
be available to Seller (including, without limitation, data and information
obtainable from Seller's management agent for the Property) in connection
with Buyer's disclosure obligations as a public company subject to the
rules and regulations of the Securities and Exchange Commission.
X. XXXXXXX PROPERTIES OF TENNESSEE, LTD. CONTRACT. Seller
and Buyer acknowledge that, concurrently with the closing of the
transactions contemplated hereunder, Seller intends to terminate its
management agreement (the "Xxxxxxx Management Agreement") with Xxxxxxx
Properties of Tennessee, Ltd. ("Xxxxxxx"), and that Buyer is not assuming
the Xxxxxxx Management Agreement. Notwithstanding anything in this
Agreement to the contrary, Seller shall hold harmless, indemnify and defend
Buyer and its constituent partners from and against any and all liabilities
or claims arising from or related to the Xxxxxxx Management Agreement and
occurring prior to the Closing Date, and (2) all costs and expenses,
including reasonable attorney's fees incurred by Buyer as a result of the
foregoing.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
ESCROW HOLDER. ESCROW HOLDER SHALL DATE THIS AGREEMENT WITH THE DATE ON
WHICH ESCROW HOLDER SHALL HAVE RECEIVED THIS AGREEMENT EXECUTED BY BOTH
BUYER AND SELLER (AND SUCH DATE SHALL BE THE "EFFECTIVE DATE" FOR PURPOSES
HEREOF).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
SELLER:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
BUYER:
PARKWAY PROPERTIES, L.P.,
a Delaware limited partnership
By: PARKWAY PROPERTIES GENERAL
PARTNERS, INC.,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ESCROW HOLDER'S ACKNOWLEDGEMENT
-------------------------------
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Effective Date: ________, 1997 TICOR TITLE INSURANCE COMPANY,
a
--------------------------------
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
"Escrow Holder"
EXHIBIT LIST
------------
"A" - Property Description
"B" - Personal Property
"C" - Description of Loan Documents
"D-1" - List of Required Tenants
"D-2" - Form of Tenant Estoppel Certificate
"E" - Deed
"F" - Assignment and Assumption Agreement
"G" - Exceptions to Seller's Representations
and Warranties
"H-1" - Rent Roll
"H-2" - Additional Tenant Information List
"I" - Service Agreements
"J" - Environmental Reports
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
(SEE ATTACHED)
EXHIBIT "C"
DESCRIPTION OF LOAN DOCUMENTS
1. Promissory Note dated April 28, 1995 from Seller to Lender.
2. Deed of Trust and Security Agreement dated as of April 28, 1995 by
Seller in favor of Lender.
3. Assignment of Leases and Rents dated as of April 28, 1995, from
Seller to Lender.
4. Affidavit of Title dated April 28, 1995, from Seller to Lender.
5. Closing Certification dated April 28, 1995, from Seller to Lender.
6. Uniform Commercial Code Financing Statement by Seller in favor of
Lender and filed with the Secretary of State of the State of Tennessee.
7. Uniform Commercial Code Financing Statement by Seller in favor of
Lender and recorded with the Xxxx County Registrar's Office.
8. ERISA Certification dated as of April 28, 1995, from Seller to
Lender.
9. Escrow Agreement dated as of April 28, 1995, among Seller, Lender and
LaSalle National Trust, N.A.
EXHIBIT "D-1"
LIST OF REQUIRED TENANTS
1. First Tennessee
2. Xxxx & Winchester
3. Xxxxx, Xxxxxx & Xxxxxxxx
4. GSA-OHA
5. GSA-Bankruptcy
6. Coopers & Xxxxxxx
7. Xxxxxx, Xxxxxx & Xxxxxx
8. Xxxxxx, Xxxxx & Xxxxxxx
9. FIS Associates
10. Xxxxxx, Xxxxxxx & Xxxxxx
11. McCambell & Young
12. Xxxxxxx & Xxxxxxx
13. Xxxxxxx Xxxxx
14. Tennessee Valley Title Insurance
15. Xxxxxx, Xxxxxx & Xxxxxx
16. Xxxxxx, Xxxxxx & XxXxxxx
17. Prudential Securities
18. Club LeConte
19. Sir Speedy
20. X.X. Xxxxxxxx
21. Lunchbox
22. Rainwater, Humble & Xxxxxx
23. Emporium
24. XxXxxx & Xxxxxxxx, P.C.
EXHIBIT "D-2"
FORM OF TENANT ESTOPPEL CERTIFICATE
(SEE ATTACHED)
EXHIBIT "E"
FORM OF DEED
(SEE ATTACHED)
EXHIBIT "F"
FORM OF ASSIGNMENT AND ASSUMPTION
(SEE ATTACHED)
EXHIBIT "G"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
None.
EXHIBIT "H-1"
RENT ROLL
(SEE ATTACHED)
EXHIBIT "H-2"
ADDITIONAL TENANT INFORMATION
(SEE ATTACHED)
FIRST TENNESSEE PLAZA
OUTSTANDING TENANT IMPROVEMENT OBLIGATIONS
First Tennessee Bank $500,000 1999
Xxxxxxx Xxxxx $70,500 Processed
Xxxxxxx Xxxxx $44,220 0000
XXX/XXX $500,000 (est.) November 1997/
January 1998
Emporium $5,218 By lease end
First Tennessee Bank $8,762.74 August 1997-Window
Blinds
Sir Speedy $36,000 Sept./Oct. 1997
Sir Speedy $7,500 New Wall
Rainwater $10,912 By lease end
Barge Xxxxxxxx $80,455 Aug./Oct. 1997
$22,000 January 1999
X.X. Xxxxxxxx $123,784 Sept./Oct. 1997
Club LeConte $40,000 Sept./Oct. 1997
EXHIBIT "I"
LIST OF SERVICE AGREEMENTS
(SEE ATTACHED)
EXHIBIT "J"
LIST OF ENVIRONMENTAL REPORTS
1. Phase I Environmental Assessment dated December 14, 1994 and prepared
by Versar.
