AGREEMENT TO SELL IMPROVED REAL PROPERTY
(CASH)
Section 1. Fundamental Terms.
1.1 Date of this Agreement: August 22, 1995, for reference
purposes. As used herein, the "Agreement Date" shall be
the date that this Agreement is last signed by an
authorized signatory of Buyer or Seller.
1.2 Seller: ICMPI (Jackson), Inc.
Delaware corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
1.3 Buyer: THE PARKWAY COMPANY, a Texas corporation
300 One ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
1.4 Purchase Price: Six Million Five Hundred Thousand
Dollars ($6,500,000.00)
1.5 Initial Deposit: One Hundred Thousand Dollars
($100,000.00)
1.6 Property: All that certain real property commonly
known as the IBM Building, located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, and
more particularly described in Exhibit A
attached hereto and incorporated herein by
this reference, together with all
easements and other appurtenant rights
owned by Seller and affecting said real
property, including all right title and
interest of Seller in and to adjacent
streets, alleys and rights of way.
1.7 Description of
Improvements: That certain four (4) story office building
consisting of approximately 89,801 square
feet.
1.8 Closing Date: Within thirty (30) days following the
Contingency Period Expiration Date (as
defined in Section 1.11, below), but in no
event later than September 30, 1995.
1.9 Escrow Holder: First American Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇, Esq.
1.10 Title Company: First American Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇, Esq.
1.11 Contingency Period
Expiration Date: Thirty (30) calendar days following
the Agreement Date, but in no event
later than September 15, 1995.
1.12 Broker: None
1.13 Exhibits attached hereto and incorporated herein:
Exhibit A - Legal Description
Exhibit B - Form of ▇▇▇▇ of Sale
Exhibit C - Tenant Roll
Exhibit D - Form of Assignment of Leases and Contracts
Section 2. Parties. This Agreement to Sell Improved Real Property
(this "Agreement") is made between the parties specified in Sections
1.2 and 1.3 as of the date specified in Section 1.1.
Section 3. Agreement of Purchase and Sale. Buyer agrees to buy and
the Seller agrees to sell the property generally described in
Section 1.6 and more particularly described in Exhibit A hereto on
all the terms and conditions stated herein (hereinafter the
"Property".) In addition, Buyer agrees to buy and Seller agrees to
sell all tangible and intangible personal property owned by Seller
and used exclusively in the operation of the Property, including
without limitation all furniture, machinery, apparatus and equipment
listed on the ▇▇▇▇ of Sale attached hereto as Exhibit B (the "▇▇▇▇
of Sale"), as well as any and all rights of Seller in and to the
building name, building logo and any and all other intangible
personal property owned by Seller and used exclusively in the
operation of the Property, which shall be conveyed to Buyer by
Seller by ▇▇▇▇ of Sale at the Close of Escrow.
Section 4. Financial Terms.
4.1 Purchase Price. The "Purchase Price" for the
Property is set forth in Section 1.4. Seller shall provide the
FIRPTA affidavit required by Section 1445 of the Internal Revenue
Code prior to Close of Escrow and Buyer shall not withhold any part
of the Purchase Price.
4.2 Terms of Payment. The Purchase Price shall be paid
by Buyer to Seller as follows:
4.2.1 Initial Deposit. The Initial Deposit, in
the amount set forth in Section 1.5, shall be paid by Buyer to
Escrow Holder by check promptly after this Agreement is signed by
Buyer and Seller. The Initial Deposit shall become the property of
Seller and be unconditionally non-refundable (except in the event
of Seller's default hereunder) on the first business day after the
Contingency Period Expiration Date (as defined in Section 1.11,
above). The Initial Deposit, and any interest accrued thereon,
shall be applied toward the Purchase Price due at Close of Escrow.
4.2.2 Balance of Purchase Price. The balance of
the Purchase Price shall be paid by Buyer, less credit for the
Initial Deposit and any interest accrued thereon, by wire transfer
or other immediately available funds to Escrow Holder on or prior
to the Closing Date.
4.2.3 Interest on Deposits. The Initial Deposit,
while held in escrow, may be placed in an interest bearing account
at Buyer's direction. At such time as release of the Initial
Deposit is called for under this Agreement, any accrued interest
shall be released to the party entitled to receive the Initial
Deposit. If the interest is released to Seller, it shall be applied
toward the Purchase Price of the Property.
Section 5. Approval of Title.
5.1 As soon as reasonably possible following the
Agreement Date, Seller shall provide Buyer with a title commitment
for an ALTA owners policy of title insurance, issued by Title
Company and showing Buyer as the proposed insured with coverage in
the amount of the Purchase Price (the "Commitment".) Said
Commitment shall include legible copies of all back-up documents for
any exceptions listed thereon.
5.2 As soon as reasonably possible following the
Agreement Date, but in no event later than September 5, 1995, Buyer
shall, at its own expense (subject to reimbursement by Seller up to
the amount specified below), deliver or cause to be delivered to
Seller and Title Company a currently dated as-built survey of the
Property (the "Survey"), prepared by a surveyor licensed by the
State of Mississippi, certified to Buyer and Title Company by such
surveyor as being true, accurate, complete and having been prepared
in accordance with the minimum requirements for a Land Title Survey
adopted by the American Land Title Association. The Survey shall
reflect the total area of the Property, the location of all
improvements, recorded easements and encroachments, if any, located
thereon and all building and set back lines (if the same are of
record) and all other matters of record with respect thereto. Said
Survey shall also certify that the Property is not in an area
identified by an agency or department of the federal government as
having special flood or mudslide hazards which require flood
insurance under the Flood Insurance Act of 1968, if true. If
requested, Seller shall provide at Close of Escrow a certificate to
Buyer and Title Company stating, if true, that there have been no
improvements made to the Property since the date of the Survey which
would alter the depiction on the Survey. Following delivery of the
Survey to Seller and Title Company in the form specified herein,
Seller shall reimburse Buyer for the actual cost of such Survey, not
to exceed the sum of Three Thousand Dollars ($3,000.00), upon
receipt from Buyer of bills, invoices or other documentation
reasonably acceptable to Seller evidencing the actual cost to Buyer
of obtaining the Survey.
5.3 Within ten (10) business days after receipt of the
later of the Survey (provided, however, that notwithstanding whether
or not the Survey has been actually received by Buyer, Seller and
Title Company on or prior to September 5, 1995, the Survey shall
have been deemed to have been delivered on September 5, 1995), or
the Commitment and appropriate back-up documentation, Buyer shall
notify Seller and Escrow Holder in writing of its objections, if
any, to the exceptions and legal descriptions shown thereon.
Failure to so notify Seller and Escrow Holder shall be deemed
disapproval of all matters shown on the Commitment and/or Survey.
5.4 Within five (5) business days after receipt of notice
of Buyer's objections to title, Seller shall notify Buyer and Escrow
Holder in writing of which, if any, of the objected to matters will
be removed by Seller prior to Close of Escrow. Seller hereby agrees
to remove the lien of any mortgages or deeds of trust where Seller
is an obligor, mechanics liens, and liens for delinquent taxes. The
exceptions and Survey matters not objected to and the exceptions and
Survey matters Seller does not agree to remove are collectively
referred to as the "Permitted Exceptions".
5.5 If Seller does not agree to remove all objected to
exceptions and Survey matters, Buyer may either (i) close escrow
taking title subject to the Permitted Exceptions, or (ii) cancel
this Agreement and receive a full refund of the Initial Deposit, all
interest accrued thereon and all documents provided by Buyer here
under. Buyer shall notify Seller and Escrow Holder of its election,
in writing, within five (5) business days of receipt of the notice
set forth in Section 5.4, above. If such election is not made
within five (5) business days after Buyer's receipt of the notice
provided in Section 5.4, it shall be conclusively presumed that
Buyer elects to cancel this Agreement and receive a refund of the
Initial Deposit and all interest accrued thereon.
Section 6. Tenants
6.1 Tenant Roll. Buyer takes the Property subject to the
rights of the tenants (the "Tenants") under the leases listed on
the Tenant Roll attached hereto as Exhibit C (the "Leases"). The
Tenant Roll lists the name of each Tenant, an identification of the
premises leased and the approximate square footage of such space,
the amount of any Tenant security or other deposits held by Seller,
the commencement and termination date of each Lease and the minimum
monthly rent payable under each Lease. As of the Agreement Date,
the Leases are the only lease(s) or rental agreements which affect
the Property, and unless otherwise specified on the Tenant Roll,
each Lease is in full force and effect and has not been modified.
Seller shall provide Buyer with an updated Tenant Roll dated within
five (5) days of the Closing Date certified as true, accurate and
complete by Seller.
6.2 Assignment of Leases. At Close of Escrow, Seller
shall execute and deliver to Buyer an assignment of all of Seller's
right, title and interest in and to the Leases in the form attached
hereto as Exhibit D and incorporated herein by this reference.
Buyer shall assume all obligations of landlord under the Leases
first accruing after Close of Escrow.
6.3 Delinquent Sums. Seller acknowledges that rental or
lease payments due pursuant to the said Leases may not be current.
Any sums collected by Buyer or Seller after the Close of Escrow
attributable to the period preceding Closing shall belong to Seller
and sums attributable to the period after Closing shall belong to
Buyer. Any funds collected shall first be applied to any amounts
due after the Closing Date, with any additional payment being
applied to past owed amounts. Neither party shall have an
obligation to collect past rents, but each party shall use diligent
business efforts to do so.
Section 7. Escrow and Title Insurance.
7.1 Opening of Escrow; Escrow Holder. Upon execution of
this Agreement by both parties, or as soon as reasonably possible
thereafter, Seller shall open an escrow to consummate the sale of
the Property pursuant to this Agreement, with the Escrow Holder
designated in Section 1.9.
7.2 Close of Escrow. Close of Escrow shall occur on the
date set forth in Section 1.8. The "Closing Date" is the date upon
which the deed conveying title to the Property to Buyer is recorded.
The term "Close of Escrow" means the completion of this transaction
by the Escrow Holder in recording the Deed (as hereinafter defined)
and disbursing funds, which completion shall occur on the Closing
Date.
7.3 Escrow. Escrow Holder is hereby authorized and
instructed to act in accordance with the provisions of this Agree
ment, which Agreement together with Escrow Holder's standard General
Provisions, shall constitute Escrow Holder's escrow instructions.
Seller and Buyer shall each deposit such other instruments and funds
as are necessary to close the escrow and complete the sale and
purchase of the property in accordance with the terms hereof. The
obligations of each party which are herein agreed to be undertaken
by each party in the escrow shall be and are hereby made agreements
of such party in and under this Agreement independent of the escrow.
If any requirements relating to the duties or obligations of Escrow
Holder hereunder are not acceptable to Escrow Holder, or if Escrow
Holder requires additional instructions, the parties agree to make
reasonable deletions, substitutions and additions to these escrow
instructions relating to such duties or obligations of Escrow Holder
or clarification of these instructions and which do not substan-
tially change this Agreement or its intent. Seller and Buyer agree
to perform, observe and fulfill the requirements of this Agreement
notwithstanding said deletions, substitutions or additions to said
escrow instructions.
7.4 Prorations. Prorations at Close of Escrow shall be
as follows:
7.4.1 Taxes. Real property taxes and the
current installment of any special assessments shall be prorated
through escrow to the Close of Escrow, such proration to be based
upon the current tax ▇▇▇▇ for the Property.
7.4.2 Deposits. The amount of all security
deposits and other tenant deposits as shown in the Tenant Roll shall
be credited to Buyer in escrow unless Seller has previously applied
any security deposit to a rental default, and the Buyer shall agree
to hold Seller harmless from any claim by any tenant for the return
of such deposits.
7.4.3 Utilities. Seller shall be responsible for
all utility services to the Property and payment therefor until noon
on the date of the Closing Date and Buyer shall be responsible for
utility services and payment therefor thereafter. Seller shall be
entitled to a return of any deposits posted by it with any utility
company and Buyer shall be obligated to post its own deposits.
Seller shall notify each utility company of the change in ownership,
but Buyer shall execute all forms necessary to assume responsibility
for utility services after the Close of Escrow.
7.4.4 Service and Maintenance Contracts. Seller
shall be responsible for payment of all service and maintenance
contracts through the Closing Date and shall cancel all such
contracts effective as of the Closing Date, unless Buyer has
requested to assume a particular contract, in which event, provided
such contract is assignable, Seller shall assign such contract,
without representation or warranty by Seller, to Buyer at Close of
Escrow. Buyer shall be solely responsible for providing all
maintenance and other services to the Property on and after the
Closing Date.
7.4.5 Rents. Rents due for the month in which
the Close of Escrow occurs shall be prorated through 12:01 a.m. of
the Closing Date.
7.5 Expenses of Escrow. Title insurance premiums, and
all other costs or expenses of escrow shall be paid as follows:
7.5.1 Seller shall pay the premium for the Title
Policy (as defined in Section 7.6, below), and shall reimburse Buyer
for the actual cost of the Survey referred to herein, not to exceed
the sum of Three Thousand Dollars ($3,000.00). Buyer shall pay any
additional premium for Extended Coverage (as defined in Section 7.6,
below), and the cost of any endorsements to the Title Policy
requested by Buyer.
7.5.2 The cost of preparing, executing and
acknowledging the Special Warranty Deed ( the "Deed") or other
instruments required to convey fee title to Buyer shall be paid by
Seller.
7.5.3 The cost of recording the Deed or other
instrument required to convey fee title to Buyer shall be paid by
Buyer.
7.5.4 All transfer taxes and/or documentary stamp
charges shall be paid one-half by Seller and one-half by Buyer.
7.5.5 All other expenses of escrow shall be paid
one-half by Seller and one-half by Buyer.
7.6 Title Policy. At the Close of Escrow and as a condi-
tion thereto, Title Company shall issue a standard ALTA Owners
Policy of Title Insurance to Buyer with liability in the amount of
the Purchase Price, showing title to the Property vested in Buyer,
subject only to the Permitted Exceptions approved by Buyer pursuant
to Section 5 and to the nondelinquent real property taxes and
special assessments referred to in Section 7.4.1 above (the "Title
Policy"). Buyer, at its sole cost and expense, may request that the
Title Company provide an ALTA extended coverage Owners Policy of
title insurance ("Extended Coverage") and any endorsements thereto
that Buyer desires, provided that Buyer obtains any survey necessary
for such Extended Coverage and/or endorsements, and obtaining
Extended Coverage and/or any endorsements thereto that Buyer desires
does not delay the Close of Escrow beyond the Closing Date.
Section 8. Contingencies and Conditions.
8.1 Condition of Property. Buyer accepts the Property
"as is" without representation or warranty by Seller as to physical
condition, provided, however, between the date of execution of this
agreement and the date specified in Section 1.11 (the "Contingency
Period Expiration Date"), Buyer, at its own risk and expense, upon
reasonable notice to Seller and subject to such conditions as Seller
may reasonably impose, may survey the Property and physically
inspect the Property, including and not limited to, electrical,
plumbing, mechanical, structural, and roof, as well as Buyer's books
and records relating to the Property. Buyer acknowledges that it
will have solely relied upon its own inspection, and its own
professional advisors, in its examination of the Property and all
improvements thereon. Buyer hereby represents, warrants, and
covenants to Seller that Buyer has conducted, or prior to the
Contingency Period Expiration Date, will conduct, Buyer's own
investigation of the Property and the physical condition thereof,
including, without limitation, accessibility and location of
utilities, use of hazardous materials on, from, or under The
Property, all matters concerning the Property with respect to taxes,
assessments, income and expense data, bonds, permissible uses,
zoning, covenants, conditions and restrictions, and other matters
which in Buyer's judgment are necessary or advisable or might affect
or influence Buyer's use of the Property, or bear upon the value and
suitability of the Property for Buyer's intended purposes, or
Buyer's willingness to enter into this Agreement. Buyer recognizes
that Seller would not sell the Property except on an "as is" basis,
and acknowledges that Seller has made no representations or
warranties of any kind in connection with the Property other than
those, if any, which are expressly set forth in this Agreement.
Buyer's representations and warranties, as set forth above, shall
survive the closing of this transaction without limitation of time.
8.2 Satisfaction of Conditions. On or prior to the
Contingency Period Expiration Date, Buyer shall notify Seller and
Escrow Holder, in writing, of any objections that Buyer may have to
any matter affecting the Property. In the event Buyer shall
properly and timely notify Seller and Escrow Holder of its objection
to the Property, the escrow shall be canceled (with Buyer paying the
escrow fees and charges incurred to such date), the Initial Deposit
and any accrued interest thereon shall be returned to Buyer, the
parties shall be returned to their original position as existed
prior to the execution hereof, and this Agreement shall be declared
null and void and of no further force or effect (except Section 11
hereof). Should Buyer fail to so timely and properly notify Seller
in writing of its objections to the Property, it shall be deemed
that Buyer has approved the condition of the Property or waived any
objection thereto, and has elected to proceed with its purchase of
the Property pursuant to and in accordance with the terms of this
Agreement.
8.3 Operating Covenant. Prior to the Closing Date and
provided that Buyer is not in default under this Agreement, Seller
covenants and agrees with Buyer that at Seller's cost and expense:
(a) Seller will operate, insure, maintain and manage the
Property in substantially the same manner as it is presently being
operated by Seller;
(b) Seller will not remove any personal property to be
transferred to Buyer under the terms of this Agreement without
replacing same with substantially similar items of like kind and
quality in the ordinary course of Seller's ownership, operation and
management of the Property;
(c) Seller will notify Buyer as soon as reasonably practicable
of receipt of written notice directed to Seller or its agents of any
levy of any special governmental assessment that will be applicable
after the Closing Date;
(d) Seller will notify Buyer as soon as reasonably practicable
of receipt of written notice directed to Seller or its agents of any
violation of applicable law, regulation, order, or ordinance of any
governmental authority having jurisdiction over or affecting the
Property that Seller will not cure prior to the Closing Date;
provided, however, that Seller shall have the right, but not the
obligation, to cure any such violation, and in the event Seller
elects not to cure such violation, Buyer shall be entitled to cancel
this Agreement and receive a refund of the Initial Deposit and any
interest accrued thereon; and
(e) Seller will pay within the time period provided for in the
service and maintenance contracts all fees or costs incurred by
Seller thereunder prior to the Closing Date.
8.4 Seller's Condition to Closing. Buyer and Seller
acknowledge and agree that a Tenant of the Property, IBM, has a
right of first refusal to purchase the Property pursuant to the
terms of its Lease. It shall be a condition precedent to Seller's
obligation to close escrow and convey the Property to Buyer as
contemplated herein that IBM shall have waived its right of first
refusal to purchase the Property, in a form reasonably acceptable
to Seller and its legal counsel (the "Condition Precedent".) This
Condition Precedent is solely for the benefit of Seller. In the
event that Seller is unable to satisfy or remove the Condition
Precedent on or prior to the Close of Escrow, Seller shall have no
obligation to convey the Property to Buyer but in such event, this
Agreement shall automatically terminate, the Initial Deposit and
any interest accrued thereon shall be returned to Buyer, the escrow
shall be canceled (with Seller paying the escrow fees and charges
incurred to such date), and this Agreement shall be void and of no
further force and effect.
Section 9. Damage and Destruction. In the event the Property
shall be damaged or destroyed, Seller shall promptly notify Buyer
and Buyer shall, within thirty (30) days following notice of such
damage to the Property, elect either to (i) close this transaction
as scheduled, in which event Seller shall pay over to Buyer in
escrow, at Close of Escrow, all insurance proceeds received plus the
amount of any applicable deductible, and assign to Buyer Seller's
rights to insurance proceeds not yet received in connection with the
casualty, or (ii) terminate this Agreement, in which event the
Initial Deposit and any interest accrued thereon shall be returned
to Buyer, the escrow shall be canceled (with Seller paying the
escrow fees and charges incurred to such date), and this Agreement
shall be void and of no further force and effect.
Section 10. Condemnation.
In the event that, prior to the Close of Escrow, a govern-
mental entity shall commence any action in eminent domain to take
any portion or all of The Property, Seller shall promptly notify
Buyer and Buyer shall, within thirty (30) days following notice of
such action, elect either to (i) close this transaction as
scheduled, in which event Seller shall pay over to Buyer in escrow,
at Close of Escrow, all proceeds received with respect to such
taking, and assign to Buyer Seller's rights to condemnation proceeds
not yet received in connection with the taking, or (ii) terminate
this Agreement, in which event the Initial Deposit shall be returned
to Buyer, the escrow shall be canceled (with Seller paying the
escrow fees and charges incurred to such date), and this Agreement
shall be void and of no further force and effect.
Section 11. Right of Entry.
After execution of this Agreement by the parties, Seller
grants to Buyer, its agents, employees or nominees, the right,
subject to the provisions of this Section, to enter into and upon
the Property for the purpose of making any soil, geological,
environmental, or other studies as may be required for Buyer's
analysis of the Property. All costs, expenses, liabilities or
charges incurred in or related to the performance of any and all of
studies, shall be paid by Buyer. Buyer hereby agrees to indemnify
and hold Seller and the Property free and harmless of and from any
and all damages, liens or charges arising out of or in any way
connected with Buyer's entry upon the Property. If Buyer does not
elect to proceed with the purchase of the Property as provided
herein, Buyer shall: (i) cause the Property to be returned to the
same condition as it was prior to any testing done on or with
respect to the Property; and (ii) deliver to Seller copies of all
tests, reports or inspections that Buyer has conducted on or with
respect to the Property.
Section 12. Default by Buyer; Liquidated Damages.
BY PLACING THEIR INITIALS HERE BUYER (________) AND SELLER
(_________) AGREE THAT SHOULD BUYER DEFAULT IN BUYER'S OBLIGATION
TO PURCHASE THE PROPERTY WITHIN THE TIME AND IN THE MANNER SPECIFIED
IN THIS AGREEMENT, SELLER SHALL BE RELEASED FROM ALL OBLIGATIONS IN
LAW OR EQUITY TO CONVEY THE PROPERTY TO BUYER. BUYER AND SELLER
AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX THE
ACTUAL DAMAGES SUFFERED BY SELLER BECAUSE OF SUCH DEFAULT; THAT THE
TOTAL AMOUNTS ACTUALLY PAID BY BUYER PURSUANT TO PARAGRAPH 1.5 OF
THIS AGREEMENT SHALL CONSTITUTE A REASONABLE ESTIMATE AND AGREED
STIPULATION OF DAMAGES IN THE EVENT OF SUCH DEFAULT BY BUYER AND
THAT SELLER SHALL HAVE NO OTHER RIGHT OR CAUSE OF ACTION AGAINST
BUYER FOR DAMAGES ARISING FROM SAID DEFAULT.
Section 13. Broker's Commission.
Seller represents and warrants to Buyer and Buyer
represents and warrants to Seller that neither has used any broker,
agent, finder or other person in connection with the transaction
contemplated hereby to whom a brokerage or other commission or fee
may be payable. Each party indemnifies and agrees to defend,
protect and hold the other harmless from any claims resulting from
the breach by the indemnifying party of the warranties and repre-
sentations in this Section.
Section 14. General Provisions.
14.1 Notices. All notices or other communications made
pursuant hereto shall be in writing and shall be deemed properly
delivered, given or served:
(a) When personally delivered against receipted
copy; or
(b) Upon receipt after being sent via Federal
Express, UPS or other nationally recognized overnight delivery ser-
vice that provides receipted delivery, to Buyer at the address set
forth in Section 1.3 with copies to Buyer addressed as follows:
Copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Forman, Perry, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1200 One ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and to Seller at the address set forth in Section 1.2 with copies
to Seller addressed as follows:
Copy to: Bedford Property Investors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Copy to: Law Offices of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change its address for the purposes of this Section
by giving five (5) days prior written notice of such change to the
other party in the manner provided in this Section.
14.2 Assignment. This Agreement is not assignable without
written consent of the non-assigning party (which shall not be
unreasonably withheld), and shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and
assigns of the parties hereto. Notwithstanding the preceding, Buyer
shall have the right to assign this Agreement to a wholly owned
subsidiary of Buyer without Seller's consent, provided such entity
assumes all of the obligations of Buyer hereunder. No such
assignment shall relieve Buyer of its obligations hereunder.
14.3 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto with respect to the matters covered
hereby, and supersedes all prior arrangements and understandings
between the parties, whether written or oral. No other representa-
tions, warranties, agreement, statement or promise made by either
party hereto have been relied upon or survive the execution of this
Agreement. This Agreement may only be amended by written document
signed by each of the parties hereto.
14.4 Further Documents. Each party will execute,
acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such further instruments and documents including escrow
instructions and instruments of conveyance and transfer herein
provided for and to do any and all other acts and to execute,
acknowledge and deliver any and all documents as may be requested
in order to carry out the intent and purpose of this Agreement.
14.5 Time of Essence. A material consideration to Seller
entering into this transaction is that Close of Escrow occur on or
before the Closing Date specified in Section 1.8 hereof. Further,
time is of the essence of this Agreement in each and every provision
hereof.
14.6 Exhibits. All exhibits attached hereto and/or
referred to in this Agreement are incorporated herein as though set
forth in full.
14.7 Applicable Law. This Agreement shall be construed
and interpreted under, and governed and enforced according to the
laws of the State of Mississippi.
14.8 Remedies Not Exclusive and Waivers. No remedy
conferred by any of the specific provisions in this Agreement is
intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more
remedies shall not constitute a waiver of the right to pursue other
available remedies.
14.9 Construction. The parties acknowledge and agree that
each party and its counsel have had the opportunity to review and
revise this Agreement and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting
party shall not apply in the interpretation of this Agreement or any
amendments or exhibits thereto.
14.10 Recitals and Captions. The recitals and captions
of the Sections and Paragraphs of this Agreement are for convenience
and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify, or aid in the interpretation,
construction or meaning of the provisions of this Agreement.
14.11 Attorneys' Fees. If either party prevails against
the other in any litigation concerning any part of this Agreement,
such successful party shall be entitled to its reasonable attorneys'
fees, including investigation and costs of discovery, and other
costs connected with such action, in addition to all other recovery
or relief. The prevailing party shall be that party receiving
substantially the relief sought in the litigation, whether brought
to final judgement or not.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the dates written below.
BUYER SELLER
THE PARKWAY COMPANY, ICMPI, (Jackson) Inc.,
a Texas corporation a Delaware corporation
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Chairman of the Board
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Dated: August 25, 1995
Title: Vice President
Dated: August 22, 1995
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property located in the City of
▇▇▇▇▇▇▇, County of ▇▇▇▇▇, State of Mississippi, and further
described as follows:
A certain parcel of land being situated in Block 48 of
▇▇▇▇▇▇-▇▇▇▇▇ Place, known as Highland Colony Addition as recorded
on Page 283 in Plat Book "A" of the records of the Clerk's Office
of Chancery Court of ▇▇▇▇▇ County, at Jackson, Mississippi and being
more particularly described by Metes and Bounds as follows, to Wit:
Commencing at the Southwest Corner of Lot 1 of said Block
48 of Highland Colony Addition and run thence North 87 degrees, 06
minutes, 46 seconds West for a distance of 326.06 feet to an Iron
Pin which marks the Easterly Right of Way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇ and also marks the Southwest Corner of the parcel herein
described; run thence North 5 degrees, 19 minutes, 34 seconds East
for a distance of 292.53 feet along the Easterly Right of Way line
of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ to an Iron Pin which marks the
Northwest Corner of the parcel described herein; run thence South
85 degrees, 26 minutes, 52 seconds East for a distance of 940.53
feet to an iron Pin which marks the Westerly Right of Way line of
Ridgewood Road and the Northeast Corner of the parcel described
herein; run thence South 4 degrees, 33 minutes, 08 seconds West
along the West Right of Way line of Ridgewood Road for a distance
of 265.06 feet to an Iron Pin which marks the Southeast Corner of
the parcel described herein, run thence North 87 degrees, 06
minutes, 46 seconds West for a distance of 618.83 feet to the Point
of Beginning, containing 6.03 acres, more or less.
EXHIBIT B
FORM OF ▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE ("▇▇▇▇ of Sale") is made as of this
day of , 1995, by BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation ("Seller") in favor of THE PARKWAY COMPANY,
a Texas corporation ("Buyer"). Seller has agreed to sell to Buyer,
and Buyer has agreed to purchase from Seller, all that certain
personal property further identified on Schedule 1 attached hereto
and incorporated herein by this reference (the "Personal Property").
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller does
hereby absolutely and unconditionally give, grant, bargain, sell,
transfer, set over, assign, convey, release, confirm and deliver to
Buyer the Personal Property.
The Personal Property is sold "AS IS - WHERE IS" without
representation or warranty by Seller (whether express or implied)
as to the condition of such Personal Property, its merchantability
or fitness for use. By acceptance of this ▇▇▇▇ of Sale, Buyer
hereby expressly acknowledges and agrees that Seller has disclosed
to Buyer that the Personal Property is not new, and that Buyer has
fully inspected the Personal Property and has satisfied itself as
to its condition, and its fitness and suitability for the use to
which Buyer intends to put such Personal Property. Buyer hereby
waives any and all claims Buyer may have against Seller based upon
the condition of the Personal Property or any defects therein
(whether latent or patent), or the failure of the Personal Property
to perform as expected or desired by Buyer.
This ▇▇▇▇ of Sale shall be governed by, and construed and
enforced in accordance with, the laws of the State of Mississippi.
In any action or proceeding brought to enforce any provision hereof,
the prevailing party shall be entitled to receive from the non-
prevailing party its reasonable attorneys' fees and costs of suit.
IN WITNESS WHEREOF, Seller has executed and delivered this ▇▇▇▇
of Sale as of the day and year first written above.
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By:
--------------------
Its:
-------------------
SCHEDULE 1 TO ▇▇▇▇ OF SALE
PERSONAL PROPERTY
All tangible and intangible personal property owned by Seller and
used exclusively in the operation of the real property commonly
known as the IBM Building, 6360 Interstate 55N, Jackson, Mississippi
(the "Property"), including without limitation all furniture,
machinery, apparatus and equipment owned by Seller and used
exclusively in the operation of the Property, any tenant security
or other deposits not previously applied by Seller to a tenant
default, as well as any and all rights of Seller in and to the
building name, building logo, any warranties or other contract
rights, and any and all other intangible personal property owned by
Seller and used exclusively in connection with the operation of the
Property.
EXHIBIT C
TENANT ROLL
EXHIBIT D
FORM OF ASSIGNMENT OF LEASES AND CONTRACTS
ASSIGNMENT OF LEASES AND CONTRACTS
This Assignment of Leases and Contracts (this "Assignment") is
entered into as of the______day of___________________, 1995, by and
between BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation
("Assignor") and THE PARKWAY COMPANY, a Texas corporation ("Assign-
ee").
A. Assignor has conveyed to Assignee that certain real
property more particularly described in Exhibit A attached hereto
and incorporated herein and the improvements located thereon,
(together, the "Property"), pursuant to that certain Agreement to
Sell Improved Real Property dated as of August __, 1995 (the
"Purchase Agreement") by and between Assignor and Assignee.
B. Assignor now desires to assign and transfer to Assignee
all of Assignor's right, title and interest in and to the Leases and
Contracts(both as hereinafter defined), but reserving therefrom any
rights to rents due under such Leases accruing prior to the date
hereof.
For good and valuable consideration, the receipt of which is
hereby acknowledged, Assignor hereby assigns and transfers unto
Assignee all of Assignor's right, title and interest in and to all
leases described in Exhibit B attached hereto and made a part hereof
(the "Leases"), but reserving therefrom any rights to rents due
under such Leases accruing prior to the date hereof, and all
contracts described in Exhibit C attached hereto and made a part
hereof (the "Contracts".)
Assignee hereby assumes the obligations of Assignor under the
Leases and Contracts from and after the date hereof.
Assignor and Assignee further agree as follows:
(1) Assignor warrants that:
(a) The Leases shown on Exhibit B and the Contracts shown
on Exhibit C are all of the Leases and Contracts affecting the
Property as of the date hereof. Assignor has not assigned or agreed
to assign any of the Leases or Contracts or any interest therein to
any other party.
(b) To the best of Assignor's actual knowledge, the
Leases and Contracts are in full force and effect and except as
specified on Exhibit B or Exhibit C hereto, there exist no defaults
thereunder.
(2) Assignee warrants that:
(a) From and after the date hereof, Assignee shall
perform in a timely fashion all of the obligations of Assignor under
the Leases and Contracts.
Assignor shall indemnify and hold Assignee harmless from any
and all costs, claims, liabilities, damages or expenses including,
but not limited to reasonable attorneys' fees and costs, arising
from any breach of the Leases or Contracts by Assignor prior to the
date hereof. Assignee agrees to indemnify and hold Assignor
harmless from any and all costs, claims, liabilities, damages or
expenses including, but not limited to, reasonable attorneys' fees
and costs arising from the Leases and Contracts from and after the
date hereof.
In the event of any litigation between Assignor and Assignee
arising out of this Agreement, the losing party shall pay the
prevailing party's costs and expenses of such litigation including,
but not limited to, reasonable attorneys' fees.
This Agreement shall be binding on and inure to the benefit of
the parties hereto, their heirs, executors, administrators, succes-
sors in interest and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Agreement as of the day and year first above written.
ASSIGNEE ASSIGNOR
THE PARKWAY COMPANY, a BEDFORD PROPERTY INVESTORS, INC.,
Texas corporation a Maryland corporation
By: By:
------------------ --------------------------
Its: Its:
----------------- -------------------------
By: Dated:
------------------ -----------------------
Its:
------------------
Dated:
---------------
EXHIBIT A
TO ASSIGNMENT OF LEASES AND CONTRACTS
LEGAL DESCRIPTION
All that certain real property located in the City of
▇▇▇▇▇▇▇, County of ▇▇▇▇▇, State of Mississippi, and further
described as follows:
A certain parcel of land being situated in Block 48 of
▇▇▇▇▇▇-▇▇▇▇▇ Place, known as Highland Colony Addition as recorded
on Page 283 in Plat Book "A" of the records of the Clerk's Office
of Chancery Court of ▇▇▇▇▇ County, at Jackson, Mississippi and being
more particularly described by Metes and Bounds as follows, to Wit:
Commencing at the Southwest Corner of Lot 1 of said Block
48 of Highland Colony Addition and run thence North 87 degrees, 06
minutes, 46 seconds West for a distance of 326.06 feet to an Iron
Pin which marks the Easterly Right of Way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇ and also marks the Southwest Corner of the parcel herein
described; run thence North 5 degrees, 19 minutes, 34 seconds East
for a distance of 292.53 feet along the Easterly Right of Way line
of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ to an Iron Pin which marks the
Northwest Corner of the parcel described herein; run thence South
85 degrees, 26 minutes, 52 seconds East for a distance of 940.53
feet to an iron Pin which marks the Westerly Right of Way line of
Ridgewood Road and the Northeast Corner of the parcel described
herein; run thence South 4 degrees, 33 minutes, 08 seconds West
along the West Right of Way line of Ridgewood Road for a distance
of 265.06 feet to an Iron Pin which marks the Southeast Corner of
the parcel described herein, run thence North 87 degrees, 06
minutes, 46 seconds West for a distance of 618.83 feet to the Point
of Beginning, containing 6.03 acres, more or less.
EXHIBIT B
TO ASSIGNMENT OF LEASES AND CONTRACTS
LEASES
EXHIBIT C
TO ASSIGNMENT OF LEASES AND CONTRACTS
CONTRACTS
September 12, 1995
▇▇. ▇▇▇ ▇▇▇▇▇▇
Bedford Property Investors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Agreement to Sell Improved Real Property by and between
ICMPI (Jackson), Inc. ("Seller") and The Parkway Company
("Buyer") dated August 22, 1995
Dear ▇▇▇:
When fully executed, this letter shall modify and amend the
aforementioned Agreement to Sell as follows:
1. Section 1, Paragraph 1.8, Closing Date, shall read as
follows: "Within thirty (30) days following the Contingency Period
Expiration Date (as defined in Section 1.11, below), but in no event
later than September 30, 1995, unless extended to October 2, 1995
at Seller's option."
2. Section 1, Paragraph 1.11, Contingency Period Expiration
Date, shall read as follows: "Thirty (30) calendar days following
the Agreement Date, but in no event later than September 22, 1995."
Except as to the extent modified herein, the Agreement to Sell
is hereby confirmed.
▇▇▇, we appreciate your cooperation and fully intend to close
this deal as soon as we complete our sublease negotiations. If the
foregoing accurately sets forth our agreement to modifications of
the Agreement to Sell, please indicate your acceptance and approval
by signing in the space provided.
The Parkway Company ICMPI (Jackson), Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President Its: Vice President
