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EXHIBIT 10.64
AGREEMENT FOR PURCHASE AND SALE OF
AVNET BUILDING
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 13th day of March, 2000, by and between RYAN
COMPANIES US, INC., a Minnesota corporation ("Seller") and WELLS CAPITAL, INC.,
a Georgia corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) the tenant's interest under that certain ASU Research Park Lease
dated April 5, 1999, (the "Ground Lease") between Price-Elliot Research
Park, Inc. ("Lessor"), as Landlord, and Seller, as Tenant in and to all
that tract or parcel of land (the "Land") located in the Southeast quarter
of Section 13, Township 1 South, Range 4 East of the Gila and Salt river
Base and Meridian, Maricopa County, Arizona, containing approximately 9.63
acres, having an address of 8700 Price Road, Tempe, Arizona, and being more
particularly described on Exhibit "A" hereto; and
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(b) the tenant's interest under the Ground Lease in and to all rights,
privileges, and easements appurtenant to the Land, including all water
rights, mineral rights, reversions, or other appurtenances to said Land,
and all right, title, and interest of Seller, if any, in and to any land
lying in the bed of any street, road, alley, or right-of-way, open or
proposed, adjacent to or abutting the Land; and
(c) the tenant's interest under the Ground Lease in and to all
buildings, structures, and improvements situated on the Land, including,
without limitation, that certain two story office building containing
approximately 132,070 square feet of leasable space, the parking areas
containing approximately 660 parking spaces and other amenities located on
the Land, and all apparatus, built-in appliances, equipment, pumps,
machinery, plumbing, heating, air conditioning, electrical and other
fixtures located on the Land (all of which are herein collectively referred
to as the "Improvements"); and
(d) all personal property now owned by Seller and located on or to be
located on or in, or used in connection with, the Land and Improvements
("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor,
in and to that certain Lease Agreement with AVNET, INC., a New York
corporation (the "Tenant"), dated April 20, 1999 (the"Lease"); and
(f) all of Seller's right, title, and interest in and to the plans and
specifications with respect to the Improvements and any guarantees,
trademarks, rights of copyright, warranties, or other rights related to the
ownership of or use and operation of the Land, Personal Property, or
Improvements, all governmental licenses and permits, and all intangibles
associated with the Land, Personal Property, and Improvements, including
the name of the Improvements and the logo therefor, if any.
2. Earnest Money. Within two (2) business days after the full execution
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of this Agreement, Purchaser shall deliver to Old Republic Title Agency ("Escrow
Agent"), whose offices are at 3200 North Central Avenue, Suite 100, Phoenix, AZ
85012, Purchaser's check, payable to Escrow Agent, in the amount of $100,000
(the "Earnest Money"), which Earnest Money shall be held and disbursed by Escrow
Agent in accordance with this
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Agreement. The Earnest Money shall be paid by Escrow Agent to Seller at Closing
(as hereinafter defined) and shall be applied as a credit to the Purchase Price
(as hereinafter defined), or shall otherwise be paid to Seller or refunded to
Purchaser in accordance with the terms of this Agreement. All interest and other
income from time to time earned on the Earnest Money shall belong to Purchaser
and shall be disbursed to Purchaser at any time or from time to time as
Purchaser shall direct Escrow Agent. In no event shall any such interest or
other income be deemed a part of the Earnest Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be THIRTEEN MILLION TWO
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($13,250,000.00). The Purchase Price
shall be paid by Purchaser to Seller at the Closing (as hereinafter defined) by
cashier's check or by wire transfer of immediately available federal funds, less
the amount of Earnest Money and subject to prorations, adjustments and credits
as otherwise specified in this Agreement.
4. Purchaser's Inspection and Review Rights. Subject to the rights of the
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Tenant, Purchaser and its agents, engineers, or representatives, with Seller's
reasonable, good faith cooperation, shall have the privilege of going upon the
Property as needed to inspect, examine, test, and survey the Property at all
reasonable times and from time to time. Purchaser hereby agrees to hold Seller
harmless from any liens, claims, liabilities, and damages incurred through the
exercise of such privilege, and Purchaser further agrees to repair any damage to
the Property caused by the exercise of such privilege. At all reasonable times
prior to the Closing (as hereinafter defined), Seller shall make available to
Purchaser, or Purchaser's agents and representatives, for review and copying,
all books, records, and files in Seller's possession relating to the ownership
and operation of the Property, including, without limitation, title matters,
surveys, tenant files, service and maintenance agreements, and other contracts,
books, records, operating statements, and other information relating to the
Property. Seller further agrees to in good faith assist and cooperate with
Purchaser in coming to a thorough understanding of the books, records, and files
relating to the Property. Seller further agrees to provide to Purchaser (to the
extent the same have not previously been provided to Purchaser) prior to the
date which is five (5) days after the effective date of this Agreement the most
current boundary and "as-built" surveys of the Land and Improvements and any
title insurance policies, appraisals, occupancy permits, building inspection
reports and environmental reports relating thereto and in the possession or
under the control of Seller. Seller acknowledges that Purchaser may be required
by the Securities and Exchange Commission to file audited financial statements
for one to three years with regard to the Property. At no cost or liability to
Seller, Seller shall (i) cooperate with Purchaser, its counsel, accountants,
agents, and representatives, provide them with access to Seller's books and
records with respect to the ownership, management, maintenance, and operation of
the Property for the applicable period, and permit them to copy the same, (ii)
execute a form of "rep" letter in form and substance reasonably satisfactory to
Seller, and (iii) furnish Purchaser with such additional information concerning
the same as Purchaser shall reasonably request. Purchaser will pay the costs
associated with any such audit.
5. Special Condition to Closing. (a) Purchaser shall have thirty (30)
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days from the effective date of this Agreement (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. In the
event Purchaser so elects to terminate this Agreement, Seller shall be entitled
to receive and retain the sum of Twenty-Five Dollars ($25.00) of the Earnest
Money, and the balance of the Earnest Money shall be promptly refunded by Escrow
Agent to Purchaser, whereupon, except as expressly provided to the contrary in
this Agreement, no party hereto shall have any other or further rights or
obligations under this Agreement. Seller acknowledges that the sum of $25.00 is
good and adequate consideration for the termination rights granted to Purchaser
hereunder.
(b) This Agreement is contingent upon the Tenant not exercising its right
of the first refusal under Section 26 of the Lease. If the Tenant exercises
such right of first refusal, this Agreement shall terminate and the Earnest
Money shall be promptly refunded by Escrow Agent to Purchaser, whereupon, except
as expressly provided to the contrary in this Agreement, no party hereto shall
have any other or further rights or obligations under this Agreement. This
Agreement is also contingent upon the closings described in three separate
Agreements for the Purchase and Sale of Property between Seller and Purchaser,
each dated February 23, 2000, and relating to properties located at 8075 and
8555 South River Parkway, Tempe, AZ and 15501 N. Dial Blvd., Scottsdale, AZ.
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6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to the conditions to Purchaser's obligations set forth in
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Paragraph 5 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions, any of which may be waived by written notice from Purchaser to
Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the date of
Closing (as hereinafter defined).
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date
of Closing.
(c) There shall have been no adverse change to the title to the
Property which has not been cured and the Title Company (as hereinafter
defined) shall have issued the Title Commitment (as hereinafter defined) on
the Land and Improvements without exceptions other than as described in
paragraph 7 and the Title Company shall be prepared to issue to Purchaser
upon the Closing a leasehold owner's title insurance policy on the Land and
Improvements pursuant to such Title Commitment.
(d) Purchaser shall have received the Tenant Estoppel Certificate
referred to in Paragraph 9(c) hereof, duly executed by the Tenant at least
five (5) days prior to the end of the Inspection Period.
(e) Purchaser shall have received the Lessor Estoppel Certificate
referred to in Paragraph 9(d) hereof, duly executed by the Lessor at least
five (5) days prior to the end of the Inspection Period.
(f) Purchaser shall have received evidence of "Substantial Completion"
as defined in the Lease, and payment of "Rent" as defined in the Lease
shall have commenced.
7. Title and Survey. Seller covenants and agrees that Seller, at its sole
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cost and expense, shall, on or before ten (5) days after the Effective Date of
this Agreement, cause Old Republic National Title Insurance Company, or such
other such title insurance company acceptable to Purchaser (herein referred to
as the "Title Company"), to deliver to Purchaser its commitment (herein referred
to as the "Title Commitment") to issue to Purchaser, upon the recording of the
Assignment and Assumption of ASU Research Park Lease, the payment of the
Purchase Price, and the payment to the Title Company of the policy premium
therefor, an owner's policy of title insurance, in the amount of the Purchase
Price, insuring good and marketable record title to the Property to be in
Purchaser subject only to the Permitted Exceptions (as hereinafter defined),
with affirmative coverage over any mechanic's, materialman's and subcontractor's
liens and with full extended coverage over all general exceptions, and
containing the following endorsements: zoning (including affirmative coverage
against any violations of recorded covenants and restrictions), survey, and
access. Such Title Commitment shall not contain any exception for rights of
parties in possession other than an exception for the right of the Tenant under
the Lease. If the Title Commitment shall contain an exception for the state of
facts which would be disclosed by a survey of the Property or an "area and
boundaries" exception, the Title Commitment shall provide that such exception
will be deleted upon the presentation of an ALTA/ASCM survey acceptable to Title
Company, in which case the Title Commitment shall be amended to contain an
exception only for the matters shown on the as-built survey which Seller shall
obtain at its sole cost and expense for the benefit of Purchaser. Said survey
shall include a certification that the Property is zoned in a classification
which will permit the operating of the Property as an office building and any
conditions to the granting of such zoning have been satisfied. Seller shall also
cause to be delivered to Purchaser together with such Title Commitment, legible
copies of all documents and instruments referred to therein. Purchaser, upon
receipt of the Title Commitment and the copies of the documents and instruments
referred to therein, shall then have ten (10) days during which to examine the
same, after which Purchaser shall notify Seller of any defects or objections
affecting the marketability of the title to the Property. Seller shall then have
until the Closing to cure such defects and objections and shall, in good faith,
exercise reasonable diligence to cure such defects and objections.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, each of which shall be
deemed material:
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(a) Lease. Seller has delivered to Purchaser a true, correct and
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complete copy of the Lease, together with all modifications and amendments
thereto herein referred. Seller is the "landlord" under the Lease and owns
unencumbered legal and beneficial title to the Lease and the rents and
other income thereunder, subject only to the collateral assignment of the
Lease and the rents thereunder in favor of the holder of an existing
mortgage or deed of trust encumbering the Property, which mortgage or deed
of trust shall be canceled and satisfied by Seller at the Closing. The
Tenant will lease and occupy 100% of the rentable area of the Improvements.
(b) Lease - Assignment. To the best of Seller's knowledge, the Tenant
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has not assigned its interest in the Lease or sublet any portion of the
premises leased to the Tenant under the Lease.
(c) Lease - Default. (i) Seller has not received any notice of
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termination or default under the Lease, (ii) there are no existing or
uncured defaults by Seller or by the Tenant under the Lease, (iii) to the
best of Seller's knowledge, there are no events which with the passage of
time or notice, or both, would constitute a default by Seller or by the
Tenant, and Seller has complied with each and every undertaking, covenant,
and obligation of Seller under the Lease, and (iv) Tenant has not asserted
any defense, set-off, or counterclaim with respect to its tenancy or its
obligation to pay rent, additional rent, or other charges pursuant to the
Lease.
(d) Lease - Rents and Special Consideration. Tenant: (i) has not
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prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection
with its tenancy under the Lease other than as described in the Lease,
(iii) is not entitled to any special work (not yet performed), or
consideration (not yet given) in connection with its tenancy under the
Lease, except for "Landlord's Kitchen Work" and "Punchlist Items", which
shall be completed on or before Closing (or escrowed for), and (iv) does
not have any deed, option, or other evidence of any right or interest in or
to the Property, except for the Tenant's tenancy and right of first refusal
as evidenced by the express terms of the Lease.
(e) Lease - Commissions. No rental, lease, or other commissions with
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respect to the Lease are payable to Seller, any partner of Seller, any
party affiliated with or related to Seller or any partner of Seller or any
third party whatsoever. All commissions payable under, relating to, or as a
result of the Lease have been cashed-out and paid and satisfied in full by
Seller or by Seller's predecessor in title to the Property.
(f) Intentionally Omitted.
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(g) No Other Agreements. Other than the Lease and the Permitted
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Exceptions, there are no leases, service contracts, management agreements,
or other agreements or instruments in force and effect, oral or written, to
which Seller is a party and that grant to any person whomsoever or any
entity whatsoever any right, title, interest or benefit in or to all or any
part of the Property or any rights relating to the use, operation,
management, maintenance, or repair of all or any part of the Property.
(h) No Litigation. There are no actions, suits, or proceedings
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pending, or, to the best of Seller's knowledge, threatened by any
organization, person, individual, or governmental agency against Seller
with respect to the Property or against the Property, nor does Seller know
of any basis for such action. Seller has no knowledge of any pending or
threatened application for changes in the zoning applicable to the Property
or any portion thereof.
(i) Condemnation. No condemnation or other taking by eminent domain
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of the Property or any portion thereof has been instituted and, to the best
of Seller's knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property or any portion thereof or its use.
(j) Proceedings Affecting Access. The Property is served by curb cuts
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for direct vehicular access to and from Price Road and Science Drive
adjoining the Property. Said streets are public streets. There are no
pending or, to the best of Seller's knowledge, threatened proceedings that
could have the
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effect of impairing or restricting access between the Property and such
adjacent public roads.
(k) Intentionally Omitted.
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(l) Conditions of Improvements. Seller is not aware of any structural
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or other defects, in the Improvements. The heating, ventilating, air
conditioning, electrical, plumbing, water, elevator(s), roofing, storm
drainage and sanitary sewer systems at or servicing the Land and
Improvements are, to the best of the Seller's knowledge, in good condition
and working order and Seller is not aware of any defects or deficiencies,
latent or otherwise, therein. The Improvements have been constructed in
compliance with applicable provisions of the Lease, Ground Lease, ABR
Lease, City of Tempe building regulations, and any recorded covenants,
conditions and restrictions.
(m) Certificates. To the best of Seller's knowledge, there will, at
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closing, be in effect certificates of occupancy, licenses, and permits as
may be required for the Property, and the present use and occupation of the
Property is in compliance and conformity with the certificates of occupancy
and all licenses and permits. There has been no notice or request of any
municipal department, insurance company or board of fire underwriters (or
organization exercising functions similar thereto), or mortgagee directed
to Seller and requesting the performance of any work or alteration to the
Property which has not been complied with.
(n) Violations. To the best of Seller's knowledge, there are no
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violations of law, municipal or county ordinances, or other legal
requirements with respect to the Property, and the Improvements thereon
comply with all applicable legal requirements with respect to the use,
occupancy, and construction thereof. The Property is zoned in a
classification which permits the use thereof in the present manner. The
Property is not located in a flood hazard area.
(o) Underlying Leases. Seller has delivered to Purchaser a true,
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correct and complete copy of the Ground Lease and the Arizona State
University Ground Lease between The Arizona Board of Regents acting for and
on behalf of Arizona State University, as landlord, and Lessor, as tenant
(the "ABR Lease"), dated October 8, 1984, and all amendments thereto (the
"Underlying Leases"). (i) Seller has not received any notice of termination
or default under the Underlying Leases, (ii) to the best of Seller's
knowledge, there are no existing or uncured defaults by any party to the
Underlying Leases, (iii) Seller has no direct obligation under the ABR
Lease, and (iv) Sellers only obligations under the Ground Lease are to pay
(A) rent in the amount of $19,231.44 per month (increasing to $25,176.00
per month on January 1, 2009, and thereafter further increasing as provided
therein), which amount is not passed through to the Tenant; (B) a Municipal
Service Fee, currently estimated to be $1,007.86 per month, which amount is
passed through to the Tenant; (c) Common Area Maintenance charges,
currently estimated to be $3,038.96 per month, which amount is passed
through to Tenant, and (d) insurance, the cost of which is passed through
to Tenant.
(p) Bankruptcy. Seller is "solvent" as said term is defined by
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bankruptcy law and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the
Property) been appointed or a petition filed by or against Seller for
bankruptcy, reorganization, or arrangement pursuant to the Federal
Bankruptcy Act or any similar Federal or state statute, or any proceeding
instituted for the dissolution or liquidation of Seller.
(q) Pre-existing Right to Acquire. No person or entity has any right
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or option to acquire the Property or any portion thereof which will have
any force or effect after the execution of this Agreement, other than
Purchaser and Tenant.
(r) Effect of Certification. To the best of Seller's knowledge,
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neither this Agreement nor the transactions contemplated herein will
constitute a breach or violation of, or default under, or will be modified,
restricted, or precluded by the Lease or the Permitted Exceptions.
(s) Authorization. Seller is a duly organized and validly existing
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corporation under the laws
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of the State of Minnesota. This Agreement has been duly authorized and
executed on behalf of Seller and constitutes the valid and binding
agreement of Seller, enforceable in accordance with its terms, and all
necessary action on the part of Seller to authorize the transactions herein
contemplated has been taken, and no further action is necessary for such
purpose.
(t) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(u) Hazardous Substances. Seller hereby warrants and represents, to
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the best of Seller's knowledge, and except as otherwise disclosed in that
certain Phase One/Limited Phase Two Environmental Site Assessment of Part
of Lot 30 and all of Lots 31 and 32, ASU Research Park, by Liesch
Associates, Inc., dated February 2, 1999, that (i) no "hazardous
substances", as that term is defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et. seq., the Resource Conservation and Recovery Act, as
-- ---
amended, 42 U.S.C. Section 6901 et. seq., and the rules and regulations
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promulgated pursuant to these acts, any so-called "super-fund" or "super-
lien" laws or any applicable state or local laws, nor any other pollutants,
toxic materials, or contaminants have been or shall prior to Closing be
discharged, disbursed, released, stored, treated, generated, disposed of,
or allowed to escape on the Property, (ii) no asbestos or asbestos
containing materials have been installed, used, incorporated into, or
disposed of on the Property, (iii) no polychlorinated biphenyls are located
on or in the Property, in the form of electrical transformers, fluorescent
light fixtures with ballasts, cooling oils, or any other device or form,
(iv) no underground storage tanks are located on the Property or were
located on the Property and subsequently removed or filled, (v) no
investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to Hazardous Substances is proposed,
threatened, anticipated or in existence with respect to the Property, and
(vi) the Property has not previously been used as a landfill, cemetery, or
as a dump for garbage or refuse. Seller hereby indemnifies Purchaser and
holds Purchaser harmless from and against any loss, cost, damage, liability
or expense due to or arising out of the breach of any representation or
warranty contained in this Paragraph.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY HEREIN, PURCHASER IS ACQUIRING THE
PROPERTY IN ITS "AS IS" CONDITION AS OF THE DATE OF THE CLOSING.
9. Seller's Additional Covenants. Seller does hereby further covenant and
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agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
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date of this Agreement up to and including the date of Closing, Seller
shall: (i) not negotiate with any third party respecting the sale of the
Property or any interest therein, (ii) not modify, amend, or terminate the
Lease or Ground Lease, or enter into any new lease, contract, or other
agreement respecting the Property, (iii) not grant or otherwise create or
consent to the creation of any easement, restriction, lien, assessment, or
encumbrance respecting the Property, and (iv) cause the Property to be
operated, maintained, and repaired in the same manner as the Property is
currently being operated, maintained, and repaired.
(b) Preservation of Lease and Ground Lease. Seller shall, from and
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after the date of this Agreement to the date of Closing, use its good faith
efforts to perform and discharge all of the duties and obligations and
shall otherwise comply with every covenant and agreement of the landlord
under the Lease and of the tenant under the Ground Lease, at Seller's
expense, in the manner and within the time limits required thereunder.
Furthermore, Seller shall, for the same period of time, use diligent and
good faith efforts to cause the Tenant under the Lease to perform all of
its duties and obligations and otherwise comply with each and every one of
its covenants and agreements under such Lease and shall take such actions
as are reasonably necessary to enforce the terms and provisions of the
Lease.
(c) Tenant Estoppel Certificate. At least five (5) days prior to
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expiration of the Inspection Period, Seller shall obtain and deliver to
Purchaser a fully completed estoppel certificate with respect to the Lease
in substantially the form of Exhibit "B" (the "Tenant Estoppel
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Certificate"), duly executed by the
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Tenant thereunder. The Tenant Estoppel Certificate shall be executed as of
a date not more than thirty (30) days prior to Closing.
(d) Lessor Estoppel Certificate. At least five (5) days prior to
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expiration of the Inspection Period, Seller shall obtain and deliver to
Purchaser a fully completed estoppel certificate with respect to the Ground
Lease in substantially the form of Exhibit "C" (the "Lessor Estoppel
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Certificate"), duly executed by the Lessor thereunder. The Lessor Estoppel
Certificate shall be executed as of a date not more than thirty (30) days
prior to Closing.
(e) Insurance. From and after the date of this Agreement to the date
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and time of Closing, Seller shall, at its expense, continue to maintain the
all risk fire and extended coverage insurance policy covering the Property
which is currently in force and effect.
(f) Completion of Construction. Seller covenants and agrees that it
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shall complete construction of the improvements contemplated by the
"Landlord's Work", "Landlord's Kitchen Work" and "Punchlist Items" as
required by the Lease. This provision shall survive closing indefinitely.
10. Closing. Provided that all of the conditions set forth in this
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Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held at 2:00 p.m.,
local time, on the first business day which is at least five (5) days after the
payment of "Rent" has commenced under the Lease, at the offices of Escrow Agent,
or at such earlier time as shall be designated by Purchaser in a written notice
to Seller not less than two (2) business days prior to Closing.
11. Seller's Closing Documents. For and in consideration of, and as a
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condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Assignment and Assumption of Ground Lease. An Assignment and
-----------------------------------------
Assumption of Ground Lease in substantially the form of Exhibit "D";
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(b) Bill of Sale. A Bill of Sale conveying to Purchaser marketable
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title to the Personal Property in the form and substance of Exhibit "E";
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(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
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and substance of Exhibit "F";
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(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "G", assigning to Purchaser
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all of Seller's right, title, and interest in and to the Lease and the
rents thereunder (and which shall provide among other things that Seller
shall remain liable for its environmental indemnity to Tenant under the
Lease);
(e) Seller's Affidavit. A customary seller's affidavit in the form
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required by the Title Company to satisfy the requirements of its commitment
and the endorsements contemplated by paragraph 7 hereof;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as
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Purchaser shall reasonably approve;
(g) Certificates of Occupancy. The original Certificates of occupancy
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for all space within the Improvements;
(h) Marked Title Commitment. The Title Commitment, marked to change
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the effective date
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thereof through the date and time of recording the Assignment and
Assumption of Ground Lease, to reflect that Purchaser is vested with a
subleasehold interest in the Land and the Improvements, and to reflect that
all requirements for the issuance of the final title policy pursuant to
such Title Commitment have been satisfied;
(i) Keys and Records. All of the keys to any doors or locks on the
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Property and the original tenant files and other books and records relating
to the Property in Seller's possession;
(j) Tenant Notice. Notice from Seller to the Tenant of the sale of
-------------
the Property to Purchaser in such form as Purchaser shall reasonably
approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(l) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute and
-----------------------------
deliver to Seller at Closing the following documents, all of which shall be duly
executed and acknowledged where required and shall survive the Closing:
(a) Assignment and Assumption of Ground Lease. The Assignment
-----------------------------------------
and Assumption of Ground Lease;
(b) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
(c) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
(d) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(e) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment,
-------------
including the cost of the examination of title to the Property made in
connection therewith, the premium for the owner's policy of title insurance
issued pursuant thereto, the cost of any transfer or documentary tax imposed by
any jurisdiction in which the Property is located, the cost of the as-built
survey, the attorneys' fees of Seller, and all other costs and expenses incurred
by Seller in closing and consummating the purchase and sale of the Property
pursuant hereto. Purchaser shall pay the attorneys' fees of Purchaser, and all
other costs and expenses incurred by Purchaser in closing and consummating the
purchase and sale of the Property pursuant hereto. Each party shall pay one-
half of any escrow fees.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing.
Purchaser shall also receive a credit against the Purchase Price payable by
Purchaser to Seller at Closing for any rents or other sums (not including
security deposits) prepaid by Tenant for any period following the month of
Closing, or otherwise. All rents and other amounts paid by Seller pursuant
to the Ground Lease for the month of Closing.
(b) Property Taxes. To the extent the same are not paid by Tenant,
--------------
City, state, county, and school district ad valorem taxes based on the ad
valorem tax bills for the Property, if then available, or if
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not, then on the basis of the latest available tax figures and information.
Should such proration be based on such latest available tax figures and
information and prove to be inaccurate upon receipt of the ad valorem tax
bills for the Property for the year of Closing, either Seller or Purchaser,
as the case may be, may demand at any time after Closing a payment from the
other correcting such malapportionment. In addition, if after Closing there
is an adjustment or reassessment by any governmental authority with respect
to, or affecting, any ad valorem taxes for the Property for the year of
Closing or any prior year, any additional tax payment for the Property
required to be paid with respect to the year of Closing shall be prorated
between Purchaser and Seller and any such additional tax payment for the
Property for any year prior to the year of Closing shall be paid by Seller.
This agreement shall expressly survive the Closing.
(c) Utility Charges. Except for utilities which are the
---------------
responsibility of Tenant, Seller shall pay all utility bills received prior
to Closing and shall be responsible for utilities furnished to the Property
prior to Closing. Purchaser shall be responsible for the payment of all
bills for utilities furnished to the Property subsequent to the Closing.
Seller and Purchaser hereby agree to prorate and pay their respective
shares of all utility bills received subsequent to Closing, which agreement
shall survive Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Earnest Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever. It is hereby agreed
that Seller's damages will be difficult to ascertain and that the Earnest Money
constitutes a reasonable liquidation thereof and is intended not as a penalty,
but as fully liquidated damages. Seller agrees that in the event of default by
Purchaser, it shall not initiate any proceeding to recover damages from
Purchaser, but shall limit its recovery to the retention of the Earnest Money.
Seller's Initial /s/ JS Purchaser's Initials /s/ LW
------ ------
16. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, including, without limitation, the failure of Seller to cure
any title defects or objections, except as otherwise specifically set forth
herein, at Purchaser's option: (i) if any such defects or objections arose by,
through, or under Seller or if any such defects or objections consist of taxes,
mortgages, deeds of trust, deeds to secure debt, mechanic's or materialman's
liens, or other such monetary encumbrances, Purchaser shall have the right to
cure such defects or objections, in which event the Purchase Price shall be
reduced by an amount equal to the costs and expenses incurred by Purchaser in
connection with the curing of such defects or objections, and upon such curing,
the Closing hereof shall proceed in accordance with the terms of this Agreement;
or (ii) Purchaser shall have the right to terminate this Agreement by giving
written notice of such termination to Seller, whereupon Escrow Agent shall
promptly refund all Earnest Money to Purchaser, and Purchaser and Seller shall
have no further rights, obligations, or liabilities hereunder, except as may be
expressly provided to the contrary herein; or (iii) Purchaser shall have the
right to accept title to the Property subject to such defects and objections
with no reduction in the Purchase Price, in which event such defects and
objections shall be deemed "Permitted Exceptions"; or (iv) Purchaser may elect
to seek specific performance of this Agreement.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within thirty (30) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
Earnest Money shall be returned immediately to Purchaser by Escrow Agent and the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect. If Purchaser does
not elect to cancel this Agreement in accordance herewith, this Agreement shall
remain in full force and effect and the sale of the Property contemplated by
this Agreement, less any interest taken by eminent domain or condemnation, or
sale in lieu thereof, shall be effected with no further adjustment and without
reduction of the Purchase Price, and at the Closing, Seller shall assign,
transfer, and set over to Purchaser all of the right, title, and interest of
Seller in and to any awards that have been or that may thereafter be made for
such taking.
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<PAGE>
18. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds $100,000.00 or if the Lease shall terminate as a result of such damage,
Purchaser may, by written notice given to Seller within twenty (20) days after
receipt of written notice from Seller of such damage or destruction, elect to
terminate this Agreement, in which event the Earnest Money shall immediately be
returned by Escrow Agent to Purchaser and except as expressly provided herein to
the contrary, the rights, duties, obligations, and liabilities of all parties
hereunder shall immediately terminate and be of no further force or effect. If
Purchaser does not elect to terminate this Agreement pursuant to this Paragraph
18, or has no right to terminate this Agreement (because the damage or
destruction does not exceed $100,000.00 and the Lease remains in full force and
effect), and the sale of the Property is consummated, Purchaser shall be
entitled to receive all insurance proceeds paid or payable to Seller by reason
of such destruction or damage under the insurance required to be maintained by
Seller pursuant to Paragraph 9(d) hereof (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said casualty
or rent loss insurance proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and other
similar instruments to ensure that Purchaser shall receive all of Seller's
right, title, and interest in and under said insurance proceeds.
19. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable except to an affiliate of Purchaser without the consent of
Seller which consent shall not be unreasonably withheld.
20. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
brokerage commission to CB Commercial Real Estate Group (the "Broker").
Purchaser and Seller hereby represent each to the other that they have not
discussed this Agreement or the subject matter hereof with any real estate
broker or agent other than Broker so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the conveyance
of the Property contemplated by this Agreement. Seller shall and does hereby
indemnify and hold harmless Purchaser from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, including any claim asserted by Brokers and any
broker or agent claiming under Broker. Likewise, Purchaser shall and does
hereby indemnify and hold harmless Seller from and against any claim, whether or
not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Broker and
any broker or agent claiming under Broker. This Paragraph 20 shall survive the
Closing or any termination of this Agreement.
21. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by telecopy, overnight courier, by hand, or sent by U.S.
registered or certified mail, return receipt requested, postage prepaid, to the
addresses set out below or at such other addresses as are specified by written
notice delivered in accordance herewith:
PURCHASER: c/o Wells Capital, Inc.
6200 The Corners Parkway, Suite 250
Norcross, Georgia 30092
Attn: Chief Investment Officer
with a copy to: O'Callaghan & Stumm LLP
127 Peachtree Street, N. E., Suite 1330
Atlanta, Georgia 30303
Attn: William L. O'Callaghan, Esq.
SELLER: Ryan Companies US, Inc.
700 International Centre
900 Second Avenue South
Minneapolis, MN 55402-3387
Attn: Timothy M. Gray
10
<PAGE>
with a copy to : Ryan Companies US, Inc.
700 International Centre
900 Second Avenue South
Minneapolis, MN 55402-3387
Attn: Dennis Buratti, Esq.
Any notice or other communication mailed as herein above provided shall be
deemed effectively given or received on the date of delivery, if delivered by
telecopy, hand or by overnight courier, or otherwise on the third (3rd) business
day following the postmark date of such notice or other communication.
22. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
23. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
24. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement for a period of two years
from Closing except with respect to paragraphs 8(u) and 31 which shall survive
for an unlimited time.
25. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
26. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
27. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Arizona. Except as otherwise provided herein, all
rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
29. Effective Date. The "effective date" of this Agreement shall be
--------------
deemed to be the date set forth in the preamble of this Agreement.
30. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice
11
<PAGE>
of its counsel or in reliance upon any instrument, including any written notice
or instruction provided for in this Agreement, not only as to its due execution
and the validity and effectiveness of its provision, but also as to the truth
and accuracy of any information contained therein that Escrow Agent shall in
good faith believe to be genuine, to have been signed or presented by a proper
person and to conform to the provisions of this Agreement. Seller and Purchaser
hereby agree to indemnify and hold harmless Escrow Agent against any and all
losses, claims, damages, liabilities and expenses, including reasonable costs of
investigation and legal fees and disbursements, that may be imposed upon Escrow
Agent or incurred by Escrow Agent in connection with its acceptance or
performance of its duties hereunder as escrow agent, including without
limitation, any litigation arising out of this Agreement. If any dispute shall
arise between Seller and Purchaser sufficient in the discretion of Escrow Agent
to justify its doing so, Escrow Agent shall be entitled to tender into the
registry or custody of the clerk of the Court for the county in which the
Property is located or the clerk for the United States District Court having
jurisdiction over the county in which the Property is located, any or all money
(less any sums required to pay Escrow Agent's attorneys' fees in filing such
action), property or documents in its hands relating to this Agreement, together
with such pleadings as it shall deem appropriate, and thereupon be discharged
from all further duties under this Agreement. Seller and Purchaser shall bear
all costs and expenses of any such legal proceedings.
31. Expansion. If Buyer proposes to expand the building which is a part
---------
of the Property, it will negotiate in good faith with Seller to provide
design/build services with respect to such expansion and will contract with
Seller for such work if its proposal therefor is competitive and is otherwise
approved by the Tenant.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
"SELLER":
RYAN COMPANIES US, INC.
By: /s/ John Strittmatter
---------------------
Its: V. President
---------------------
"PURCHASER":
WELLS CAPITAL, INC.
By: /s/ Leo F. Wells, III
----------------------
Its: President
----------------------
"ESCROW AGENT":
OLD REPUBLIC TITLE AGENCY
By: _____________________
Its: ____________________
12
