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EXHIBIT 10.44
AMENDED AND RESTATED PURCHASE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AGREEMENT ("AGREEMENT") is made as of
February 23, 2000, between WESTERN DIGITAL CORPORATION, a Delaware corporation
("SELLER"), and MAYO FOUNDATION, a Minnesota nonprofit Corporation ("BUYER").
RECITALS:
FIRST: Seller is the owner of real property located in the City of Rochester,
Olmsted County, Minnesota legally described on the attached Exhibit A ("LAND",
and the respective Lots described therein "LOT 1", "LOT 2" and "LOT 3"),
together with (1) all buildings and improvements constructed or located on the
Land ("BUILDING") and (2) all easements and rights benefiting or appurtenant to
the Land (collectively the "REAL PROPERTY"); and
SECOND: Seller is the owner of other items of property situated in or pertaining
to the Real Property as described in Section 1 hereafter (collectively the
"PERSONAL PROPERTY"); and
THIRD: Seller and Buyer entered into a Purchase Agreement (the "OLD PURCHASE
AGREEMENT") dated as of January 18, 2000 with respect to a portion of the Real
Property, but have now agreed to make certain changes to the terms of such
Purchase Agreement.
In consideration of the mutual promises of the parties set forth in this
Agreement, Seller and Buyer agree that the Old Purchase Agreement is hereby
amended and restated to read as follows:
1. SALE OF PROPERTY. Seller agrees to sell to Buyer, and Buyer agrees to buy
from Seller, the following property (collectively, "PROPERTY"):
1.1 REAL PROPERTY. The Real Property, subject to the "Permitted
Encumbrances" described on Exhibit B.
1.2 PERSONAL PROPERTY. All of the personal property situated in or
about the Real Property owned by Seller including any attached
property or systems, such as the generator, or any components
thereof which might be technically labeled as personal property
except the items described in Exhibit ("PERSONAL PROPERTY").
1.3 LEASES. Seller's interest as lessor in any lease affecting the Real
Property ("LEASES").
1.4 CONTRACTS, PERMITS, WARRANTIES, RECORDS, MISCELLANEOUS. Seller's
interests in the following items all of which relate to the
Property, to the extent transferable without the consent of any
other party thereto (or to the extent that the necessary consents
are obtained), and to the extent such items survive the Closing:
all
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service and maintenance contracts, equipment leases, parking area
leases, design, construction and other contracts, land surveys
related to the Property ("CONTRACTS"); all permits and licenses
related to the Property ("PERMITS"); all warranties and guaranties
relating to the Property ("WARRANTIES"); and the right to inspect
and receive copies, from time to time, both before and after
Closing, of all records, including management, leasing, real estate
taxes, assessments, insurance, rents, construction, maintenance,
repairs, blue prints, surveys, soil test results, and capital
improvements and services related to the Property ("RECORDS").
Seller agrees to use commercially reasonable efforts to obtain any
consents required to allow transfer of these interests.
2. PURCHASE PRICE AND MANNER OF PAYMENT. The total purchase price ("PURCHASE
PRICE") to be paid for the Property shall be Thirty Million Four Hundred
Eight Thousand Nine Hundred Seventeen and 67/100 Dollars ($30,408,917.67).
The Purchase Price shall be payable as follows:
2.1 Seven Hundred Fifty Thousand Dollars ($750,000.00) as earnest money
("EARNEST MONEY") which Earnest Money shall be held by Rochester
Title and Escrow Company ("ESCROW AGENT
2.2 The balance of the Purchase Price in cash or by wire transfer of
funds on the Closing Date.
3. CONTINGENCIES.
3.1 BUYER'S CONTINGENCIES. The obligations of Buyer under this
Agreement are contingent upon each of the following:
3.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement must be true
now and on the Closing Date as if made on the Closing Date.
3.1.2 TITLE. Title shall have been found acceptable, or been made
acceptable, in accordance with the requirements and terms of
Section 6 below.
3.1.3 ACCESS AND INSPECTION. Seller shall have allowed Buyer, and
Buyer's agents, access to the Real Property without charge
and at all reasonable times for the purpose of Buyer's
investigation, surveying, and testing the same. Seller shall
make available to Buyer and Buyer's Agents without charge all
Records related to the Property. Buyer shall have the right
to interview employees of Seller who may have knowledge of
such matters. Buyer shall pay all costs and expenses of such
investigation and testing, shall restore the Real Property,
and shall hold Seller and the Real Property harmless from all
costs and liabilities relating to the Buyer's activities
pursuant to Section 3.3. Buyer shall have been satisfied with
the results of all tests and investigations of Lot 3
performed by it or on its behalf as of the Contingency Date.
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3.1.4 ESTOPPEL CERTIFICATES. On or before the Contingency Date,
Buyer shall have received from all tenants under Leases or
from Seller, estoppel certificates (the "ESTOPPELS"), which
are reasonably acceptable to Buyer or a certificate from
Seller certifying to the status of each Lease.
3.1.5 DOCUMENT REVIEW. Buyer shall have determined, on or before
the Contingency Date, that it is satisfied with its review
and analysis of the Leases, Contracts, Permits, Warranties
and Records.
3.1.6 SELLER'S GOVERNMENTAL APPROVALS. Seller shall demonstrate to
Buyer's satisfaction that Seller has obtained, at its sole
cost and expense on or before the Contingency Date, all final
governmental approvals or reimbursement of any governmental
assistance that may be due as a result of this sale of the
Property to Buyer, including, but not limited to, any
approval or payment resulting from any tax increment
financing agreements that affect the Property (collectively,
the "Governmental Approvals").
3.2 SELLER'S CONTINGENCIES. The obligations of Seller under this
Agreement are contingent upon each of the following:
3.2.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer contained in this Agreement must be true
now and on the Closing Date as if made on the Closing Date.
3.2.2 SELLER'S GOVERNMENTAL APPROVALS. Seller shall have obtained
the Governmental Approvals upon terms and conditions
acceptable to Seller. Seller agrees to use commercially
reasonable efforts to obtain the Governmental Approvals.
All the Buyer's contingencies are specifically for the benefit of the Buyer
and all Seller's contingencies are specifically for the benefit of the
Seller. Each party shall have the right to waive any contingency for its
benefit. The "Contingency Date" shall be February 28, 2000. If any
contingency has not been satisfied or waived on or before the Contingency
Date, then this Agreement may be terminated by notice from the party
benefited by the contingency to the other party, which notice shall be given
on or before the Contingency Date. In the event a party fails to so terminate
this Agreement on or before the Contingency Date, all contingencies shall be
deemed to be satisfied or waived by such party. Upon termination, the Earnest
Money, and any interest accrued thereon, shall be released to Buyer and upon
return, neither party will have any further rights or obligations regarding
this Agreement or the Property. Notwithstanding other provisions of this
Section, the contingencies in Section 3.1.1 and 3.2.1 shall continue until
the Closing Date.
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4. CLOSING. The closing of the purchase and sale contemplated by this Agreement
(the "CLOSING") shall occur February 28, 2000 (the "CLOSING DATE"). The
Closing shall take place at 11:00 a.m. local time at the office of Dorsey &
Whitney LLP in Rochester, Minnesota. Seller agrees to deliver possession of
the Property to Buyer on the Closing Date.
4.1 SELLER'S CLOSING DOCUMENTS. On the Closing Date, Seller shall
execute and deliver to Buyer the following (collectively, "SELLER'S
CLOSING DOCUMENTS"), all in form and content reasonably
satisfactory to Buyer:
4.1.1 DEED. A Warranty Deed in recordable form conveying good and
marketable title to the Real Property to Buyer, free and
clear of all encumbrances, except as permitted in Section 6
below.
4.1.2 SELLER'S AFFIDAVIT. A standard Seller's Affidavit acceptable
in form to Escrow Agent and to Buyer.
4.1.3 BILL OF SALE. A Warranty Bill of Sale in the form attached to
the Old Purchase Agreement as Attachment A conveying any
Personal Property to Buyer, free and clear of all
encumbrances.
4.1.4 ASSIGNMENT OF LEASES. An Assignment of Leases in the form
attached to the Old Purchase Agreement as Attachment B
assigning the Leases and any security deposits, prepaid rents
or collections and guarantees regarding the Leases to Buyer,
free and clear of all encumbrances.
4.1.5 ASSIGNMENT OF CONTRACTS, PERMITS, AND WARRANTIES. An
Assignment of Contracts, Permits, Warranties and
Miscellaneous Documents in the form attached to the Old
Purchase Agreement as Attachment C conveying Seller's
interest to Buyer together with the consent of all parties
having a right to consent to such Assignment.
4.1.6 SECURITY DEPOSITS AND PREPAID RENTS. Any security deposits
and prepaid rents under the Leases, including valid transfers
of any noncash securities or documents held for such
purposes, together with notices to tenants and third parties
of such transfers.
4.1.7 ORIGINAL DOCUMENTS. Copies (original copies, if available) of
the Leases, Contracts, Permits, and Warranties, plus, to the
extent available, all plans and specifications for the
Property in Seller's possession and to the extent requested
copies of those Records requested by Buyer. Copies of all
records required to be kept concerning the presence, location
and quantity of asbestos containing materials and presumed
asbestos containing materials in the Property.
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4.1.8 FIRPTA AFFIDAVIT. A non-foreign affidavit in the form
attached to the Old Purchase Agreement as Attachment D,
properly executed, containing such information as is required
by Internal Revenue Code Section 1445(b)(2) and its
regulations.
4.1.9 IRS FORM. A Designation Agreement designating the "reporting
person" for purposes of completing Internal Revenue Form 1099
and, if applicable, Internal Revenue Form 8594.
4.1.10 WELL CERTIFICATE. A Certificate signed by Seller warranting
that there are no "Wells" on the Property within the meaning
of Minn. Stat. Section 103I or if there are "Wells", a Well
Certificate in the form required by law.
4.1.11 STORAGE TANKS. If the Property contains or contained a
storage tank, an affidavit with respect thereto, if required
by Minn. Stat. Section 116.48.
4.1.12 OTHER DOCUMENTS. All other documents reasonably determined
by Buyer or Title to be necessary to transfer the Property to
Buyer free and clear of all encumbrances other than the
Permitted Encumbrances.
4.2 BUYER'S CLOSING DOCUMENTS. On the Closing Date, Buyer will execute
and deliver to Seller the following (collectively, "BUYER'S CLOSING
DOCUMENTS"):
4.2.1 PURCHASE PRICE. Funds representing the Purchase Price by wire
transfer of U.S. Federal funds.
4.2.2 IRS FORM. A Designation Agreement designating the "reporting
person" for purposes of completing Internal Revenue Form 1099
and, if applicable, Internal Revenue Form 8594.
4.2.3 ASSIGNMENT OF LEASES. An Assignment of Leases in the form
attached to the Old Purchase Agreement as Attachment B by
which Buyer accepts assignment of the Leases and assumes
Seller's obligations thereunder.
4.2.4 ASSIGNMENT OF CONTRACTS, PERMITS, AND WARRANTIES. An
Assignment of Contracts, Permits, Warranties and
Miscellaneous Documents in the form attached to the Old
Purchase Agreement as Attachment C by which Buyer accepts
assignment of the Contracts, Permits, Warranties and
Miscellaneous Documents and assumes Seller's obligations
under those items which have been identified and provided to
Buyer pursuant to Section 8.3.
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5. PRORATIONS. Seller and Buyer agree to the following pro-rations (made as of
the Closing Date unless otherwise stated) and allocation of costs regarding
this Agreement:
5.1 TITLE INSURANCE AND CLOSING FEE. Seller will pay all costs of the
Title Evidence (as defined below) and one-half of any closing fee
or charge imposed by Title. Buyer will pay the Title Policy
premiums and one-half of any closing fee or charge imposed by
Title.
5.2 DEED TAX. Seller shall pay all State Deed Tax payable in connection
with this transaction.
5.3 REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. . Real estate taxes
payable in 2000 shall be prorated as of the Closing Date. Seller
shall pay all Real Estate Taxes payable in 1999 and all prior
years. Buyer will assume all Real Estate Taxes due and payable in
2001 and thereafter. Seller shall pay all special assessments
levied, pending or certified as of the Closing, including all
future special assessments proposed with respect to public
improvements which have been constructed or are being constructed
as of the Closing Date and any portions of such assessments which
have been certified to the 2000 payable taxes.
5.4 RENTS. All rents and other charges under the Leases will be
pro-rated as of the Closing Date. If at -------------- the Closing
Date a tenant under any of the Leases is delinquent, then if Buyer
received from such tenant amounts in excess of the payments due
Buyer, Buyer will remit such excess amounts to Seller. Buyer will
have no obligation to collect any payments and will only be
obligated to make payment to Seller after Buyer is fully paid for
all amounts due it. Seller shall deliver to Buyer all records
regarding operating expenses and cash in the amount of any prepaid
deposits. At the request of either Seller or Buyer within thirty
(30) days after the amount of operating expenses and reimbursement
from tenants is determined and verified the parties shall
re-prorate those items based upon the facts as finally determined.
5.5 OTHER COSTS. All other operating costs of the Property shall be
allocated between Seller and Buyer as of 12:01 a.m. on the Closing
Date.
6. TITLE EXAMINATION. Title Examination will be conducted as follows:
6.1 SELLER'S TITLE EVIDENCE. Seller has furnished the following
(collectively, "TITLE EVIDENCE") to Buyer: (a) an Abstract of Title
to the Real Property certified to a current date to include all
appropriate judgment and bankruptcy searches; (b) a commitment
("TITLE COMMITMENT") for an ALTA Owner's Policy of Title Insurance
insuring title to the Real Property, in the amount of the Purchase
Price, issued by Chicago Title Insurance Company ("TITLE"); (c)
legible copies of all documents affecting the Real Property which
are referred to in the Title Commitment; (d) a copy of all existing
land surveys in Seller's possession related to the Property; (e)
the Estoppels, and (f) a UCC search showing no UCC filings
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regarding any of the Property. Buyer may also obtain such title
endorsements and other evidence of title as it may elect, such as a
survey, reports of liens for unpaid sales or withholding taxes on
file against Seller or its predecessors in title (or against any
trade name or business name used by Seller or its predecessors in
title) which are on file in the office of the Minnesota Secretary
of State or any applicable County Recorder, all of which shall be
part of the Title Evidence. Buyer understands and agrees that
Seller may elect to keep certain retainages under its construction
contract and Buyer consent thereto so long as Title will insure
Buyer against mechanics liens.
6.2 OBJECTIONS TO TITLE. Buyer has accepted the Title Evidence.
7. OPERATION PRIOR TO CLOSING. During the period from the date of this Agreement
to the Closing Date (the "EXECUTORY PERIOD"), Seller shall operate and
maintain the Property in the ordinary course of business in accordance with
prudent, reasonable business standards, including the maintenance of adequate
liability insurance and insurance against loss by fire, windstorm and other
hazards, casualties and contingencies, including vandalism and malicious
mischief. Seller shall execute no contracts, leases or other agreements
regarding the Property during the Executory Period that are not terminable on
or before the Closing Date, without the prior written consent to Buyer, which
consent may be withheld by Buyer at its sole discretion.
8. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents and warrants to
Buyer as follows:
8.1 LEASES. Seller has delivered to Buyer a correct and complete copy
of each Lease and all its amendments. The Leases are in full force
and neither Seller, nor any tenant, is in default under the Leases.
There are no other leases or possessory rights of others regarding
the Real Property except for the Permitted Encumbrances.
8.2 TITLE TO REAL PROPERTY. Seller owns the Real Property, free and
clear of all encumbrances except the Permitted Encumbrances
identified on Exhibit B attached hereto (the "Permitted
Encumbrances").
8.3 CONTRACTS. Seller has delivered to Buyer a correct and complete
copy of each Contract, Lease, Permit, Warranty and any amendments
which will survive the closing of the transaction contemplated in
this Agreement.
8.4 OPERATIONS. Seller has received no notice of actual or threatened
cancellation or suspension of any utility services or certificate
of occupancy for any portion of the Real Property. Seller has
received no written notice of actual or threatened special
assessments or reassessments of the Real Property. To Seller's best
knowledge, during the period of Seller's ownership of the Property,
Seller has used the Property in compliance with all governmental
permits, statutes, and ordinances. All necessary permits have been
obtained and are in full force and effect and no default exists
thereunder.
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8.5 ENVIRONMENTAL LAWS. To the best of Seller's knowledge, and except
as identified in that certain Phase I Environmental Report
("Seller's Phase I") dated December 10, 1997, by Braun/Intertec,
Project Number CMXX-97-0912, no toxic or hazardous substances or
wastes, pollutants or contaminants (including, without limitation,
asbestos, urea formaldehyde, the group of organic compounds known
as polychlorinated biphenyls, petroleum products including
gasoline, fuel oil, crude oil and various constituents of such
products), and any hazardous substance as defined in any
Environmental Law (as that term is defined below) (collectively,
"Hazardous Substances") have been generated, treated, stored,
transferred from, released or disposed of, or otherwise placed,
deposited in or located on the Property in violation of any such
Environmental Law, nor has any activity been undertaken on the
Property that would cause or contribute to the Property becoming a
treatment, storage or disposal facility within the meaning of any
Environmental Law. The term "Environmental Law" shall mean any and
all federal, state and local laws, statutes, codes, ordinances,
regulations, rules, policies, consent decrees, judicial orders,
administrative orders or other requirements relating to the
environment or to human health or safety associated with the
environment, all as amended or modified from time to time. To the
best of Seller's knowledge, and except as identified in the
Seller's Phase I, there has been no discharge, release or
threatened release of Hazardous Substances or conditions in or on
the Property that may support a claim or cause of action under any
Environmental Law. The Property is not now, and to the best of the
Seller's knowledge never has been, listed on any list of sites
contaminated with Hazardous Substances, nor used as landfill, dump,
disposal or storage site for Hazardous Substances. The phrase "to
the best of Seller's knowledge" shall mean to the knowledge of
Michael Zell and John Porcelli, Jr., the officers and employees of
Seller primarily responsible for the acquisition and development of
the Property
8.6 SELLER'S DEFAULTS. Seller is not in default concerning any of its
obligations or liabilities which are binding upon the Property or
which would have a material adverse effect on the Buyer's use,
occupancy or enjoyment of the Property after Closing.
8.7 FIRPTA. Seller is not a "foreign person", "foreign partnership",
"foreign trust" or "foreign estate", as those terms are defined in
Section 1445 of the Internal Revenue Code.
8.8 PROCEEDINGS. There is no action, litigation, investigation,
condemnation or proceeding of any kind pending or to the best
knowledge of Seller threatened against any portion of the Property
or against Seller with respect to the Property.
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8.9 CONDITION. The buildings, structures and improvements included
within the Property are entirely within the boundary line of the
Property. All heating and air conditioning, wiring and plumbing
shall be in proper working order as of the Closing Date. Attached
to the Old Purchase Agreement as Exhibit E is a copy of the "punch
list" of uncompleted work on the Building. Seller will diligently
pursue completion of those items not so excluded through the
Closing Date. To the extent there remain any such items that are
not completed on the Closing Date, Seller's representatives will
work with Buyer's representatives in good faith to keep Buyer's
representatives updated on the status of any such items, so that
Buyer's representatives are in a position to follow-up with the
contractors and to enforce contracts/warranties to cause completion
after closing without additional expense to Buyer. Seller will keep
and not assign to Buyer any and all retainages under its
construction contract and shall hold Buyer harmless against any
mechanics liens which may arise out of work on the Property ordered
by Seller.
8.10 WELLS. Except as disclosed on Exhibit D, the Seller certifies and
warrants that the Seller does not know of any "Wells" on the
described Property within the meaning of Minn. Stat. Section 103I.
This representation is intended to satisfy the requirements of that
statute.
8.11 STORAGE TANKS. Except as disclosed on Exhibit D, to the best of
Seller's knowledge, no above ground or underground tanks are
located in or about the Property, or have been located under, in or
about the Property and have subsequently been removed or filled. To
the extent storage tanks exist on or under the Real Property, such
storage tanks have been duly registered with all appropriate
regulatory and governmental bodies, and otherwise are in compliance
with applicable federal, state and local statutes, regulations,
ordinances and other regulatory requirements.
8.12 REPORTS. Seller has delivered to Buyer copies of all environmental
reports, surveys, and studies relating to the Property which are in
the possession of or are reasonably available to Seller.
8.13 INDIVIDUAL SEWAGE TREATMENT SYSTEMS. Solely for purposes of
satisfying the requirements on Minn. Stat. Section 115.55 Seller
represents that except as disclosed on Exhibit D there is no
"individual sewage treatment system" (within the meaning of that
statute) on or serving the Property.
8.14 AUTHORITY. The individual or individuals executing this Agreement
have authority to do so and to legally bind Seller to perform this
Agreement. Upon request, seller shall promptly deliver to Buyer a
Certificate of Secretary evidencing such authority.
8.15 RIGHTS OF OTHERS IN PROPERTY. Seller has not entered into any other
contracts for the sale of the Property nor are there any rights of
first refusal or options to purchase the Property or any other
rights of others that will prevent the consummation of this
Agreement.
8.16 LEAD PAINT. The RIDER TO PURCHASE AGREEMENT (LEAD PAINT) attached
to the Old Purchase Agreement is hereby incorporated into this
purchase agreement.
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The maximum obligation of Seller to Buyer for breach of any representations
or warranties shall be limited to the Purchase Price of the Property and
Seller shall be liable for such breach only if (a) such breach is discovered
within 24 months from the Closing Date and (b) any legal action on such
breach shall have been commenced within 36 months from the Closing Date.
Consummation of this Agreement by Buyer with knowledge of any such breach by
Seller will not constitute a waiver or release by Buyer, its successors and
assigns, of any claims due to such breach. Seller will indemnify Buyer, its
successors and assigns, against and will hold Buyer, its successors and
assigns, harmless from, any expenses or damages, including reasonable
attorneys' fees, that Buyer, its successors and assigns, incurs because of
the breach of any of the above representations and warranties, whether such
breach is discovered before or after Closing, but only if (a) such breach is
discovered within 24 months from the Closing Date and (b) any legal action
on such breach shall have been commenced within 36 months from the Closing
Date.
9. CASUALTY; CONDEMNATION. If any of the Real Property or other improvements
are partially damaged by fire or other casualty or if there is a notice of
condemnation with respect to any such portion of the Real Property, Seller
shall give immediate written notice thereof to Buyer. Buyer may terminate
this Agreement upon delivery of written notice to Seller within ten (10)
days following the receipt of such notice, in which case, Seller and Buyer
shall have no further obligation or liabilities under this Agreement and the
Earnest Money (and any interest thereon) shall be immediately returned to
Buyer. In the event Buyer does not elect to so terminate this Agreement, the
Purchase Price shall not be reduced, but the Buyer shall be entitled to all
insurance proceeds and/or condemnation proceeds that the Seller is entitled
to receive as a result of such destruction or condemnation and Seller shall
not be obligated to restore the Real Property.
10. BROKER'S COMMISSION. Seller and Buyer represent to each other that they have
dealt with no brokers, finders or the like in connection with this
transaction, and agree to indemnify and hold each other harmless from all
claims, damages, costs or expenses of or for any other such fees or
commissions resulting from their respective actions or agreements regarding
the execution or performance of this Agreement.
11. ASSIGNMENT. Either party may assign its rights under this Agreement with the
prior written consent of the other party, before or after the Closing. Any
such assignment will not relieve such assigning party of its obligations
under this Agreement.
12. SURVIVAL; FURTHER ASSURANCES. All of the terms of this Agreement and
warranties and representations herein contained shall survive and be
enforceable after the Closing. Seller and Buyer each agree that they will,
upon the request of the other party, take all reasonable actions in a prompt
manner to provide reasonably necessary documents or assurances required by
the requesting party to implement this Agreement or for assisting Buyer in
the collection and reducing to possession of any or all of the assets or
property which is the subject of this Agreement, at the sole cost of the
requesting party.
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13. NOTICES. All notices and demands hereunder shall be in writing, and shall be
deemed to have been properly given or served as of (a) the date of personal
delivery with acknowledgment of receipt; (b) three (3) days after the same
is deposited in the United States mail, prepaid, for delivery by registered
or certified mail, return receipt requested; (c) the first business day
after the date delivered to a reputable overnight courier service providing
proof of delivery; or (d) on the day of facsimile transmission, if the
sending machine prints out evidence of successful transmission and such
transmission is made so that the recipient receives the facsimile prior to
5:00 p.m. local time of the recipient on a business day (and if not prior to
5:00 p.m. local time of the recipient on a business day, then service shall
be deemed given on the next business day), with a copy mailed by regular
mail no later than the next business day. The initial addresses of Landlord
and Tenant are set forth below:
If to Buyer: Mayo Foundation
201 First Street SW
Rochester, MN 55905
Attn: John Herrell--Vice President
Fax: (507) 284-5760
With Copy to: Mayo Foundation
201 First Street SW
Rochester, MN 55905
Attn: Legal Department--Jonathan J. Oviatt
Fax: (507) 284-0929
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If to Seller: Western Digital Corporation
8105 Irvine Center
Irvine, CA 92618
Attn: Matt Massengill, President
Fax: (949) 932-7837
With Copy to: Western Digital Corporation
8105 Irvine Center
Irvine, CA 92618
Attn: Raymond Bukaty, VP Corporate Law
Fax: (949) 932-5633
Such addresses may be changed at any time or from time to time or additional
notice parties added, by notice as above provided.
14. MISCELLANEOUS. The Section and paragraph headings or captions appearing in
this Agreement are for convenience only, are not a part of this Agreement,
and are not to be considered in interpreting this Agreement. This written
Agreement constitutes the complete agreement between the parties and
supersedes any prior or contemporaneous oral or written agreements between
the parties regarding the Property. There are no verbal agreements that
change this Agreement, and no waiver of any of its terms will be effective
unless in writing executed by the parties. This Agreement binds and benefits
the parties and their successors and assigns. This Agreement has been made
under the laws of the State of Minnesota, and such laws will control its
interpretation. This Agreement may be signed in one or more counterparts,
all of which, taken together, shall be deemed one original.
15. REMEDIES FOR NON-PERFORMANCE.
15.1 SELLER'S REMEDIES. If the Buyer defaults in performing any of the
Buyer's Closing obligations under the terms of this Agreement on
the Closing Date for any reason other than Seller's default,
Seller's sole remedy shall be to terminate this Agreement and to
receive the Earnest Money (and any interest thereon) as liquidated
damages or to enforce specific performance of this Agreement as
Seller's exclusive remedies
15.2 BUYER'S REMEDIES. If the Seller defaults in performing any of the
Seller's Closing obligations under the terms of this Agreement on
the Closing Date for any reason other than Buyer's default, Buyer
shall be entitled to terminate this Agreement and to receive the
Earnest Money (and any interest thereon) or to enforce specific
performance of this Agreement as Buyer's exclusive remedies.
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Seller and Buyer have executed this Agreement as of the date first
written above.
SELLER: WESTERN DIGITAL CORPORATION
a Delaware corporation
Date of Signature By
February ___, 2000 ------------------------------------
Its
-----------------------------------
By
------------------------------------
Its
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Tax I.D. Number: 95-2647125
BUYER: MAYO FOUNDATION,
a Minnesota nonprofit corporation
Date of Signature By
February ___, 2000 ------------------------------------
Its President
And
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Its Assistant Secretary
Tax I.D. Number: 41-1937751
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
LOTS 1, 2, AND 3, BLOCK 1; WESTERN DIGITAL TECHNOLOGY PARK, ACCORDING TO THE
RECORDED PLAT THEREOF, OLMSTED COUNTY, MINNESOTA.
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EXHIBIT B
PERMITTED ENCUMBRANCES
(1) Building and zoning laws, ordinances, and State and Federal regulations.
(2) Reservation of any mineral or mineral rights to the State of Minnesota.
(3) Real estate taxes as provided in Section 5.2(c).
(4) Special assessments levied or pending or certified after the Closing Date.
(5) Easements covenants, conditions, restrictions, reservation, and all other
matters of record or which is disclosed by the ALTA survey of Lots 1 and 2
which was provided to Buyer or which would be disclosed by an ALTA survey of
Lot 3.
(6) Interests of Alton and Louise Shefelbine in Lot 1, Block 1, Western Digital
Technology Park under Lease dated May 1, 1998 referenced in that certain
Memorandum of Lease dated May 1, 1998 and recorded on May 6, 1998 as
Document No. 778665 in the Olmsted County Minnesota Recorder's office.
(7) Possible interest of tenant under any farming lease affecting Lot 3.
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EXHIBIT C
EXCESS AND OBSOLETE EQUIPMENT
AT
WESTERN DIGITAL CORPORATION
4001 41ST STREET, NW
ROCHESTER, MN 55901
CLEANROOM-ASSOCIATED
Gowning racks
Gowning hooks
Ulpa Filters
Latex Gloves and wipes
Misc. Cleanroom garb and cleanroom supplies
Hangers
REMAINING GENERAL
Sensible Cooling Units (six)
Items of Equipment from Seller's other buildings
that were relocated to the Property
DATA CENTER (DC211)
2 Cisco 6500's with Modules
- - 2 Cisco MSM
- - 2 Supervisor Engines with Gigabyte Ports
- - 4 8 Port Gigabyte cards
- - 2 48 Port 10/100 cards
4 PC's w/ monitors
1 Sun Station w/monitors
1 Compaq Prolaint 6500 w/monitors
1 Compaq Prolaint 800 w/monitors
1 Cisco Probe
1 Phone
1 Laptop
TELECOMMUNICATIONS CLOSET TC 124
2 Cisco 5513 with 2 power supplies
2 Supervisor modules with Gigabyte ports
20 10/100 24 port fast Ethernet cards
MAIN CROSS-CONNECT CLOSET MC 125
2 Cisco 5513 with 2 power supplies
2 Supervisor modules with Gigabyte ports
21 10/100 24 port fast Ethernet cards
1 Cisco 4500 Router
4 T-1 CSU/DSU's
1 Lucent EPN
1 Lucent PPN
TELECOMMUNICATIONS CLOSET TC 136
3 Cisco 5513 with 2 power supplies
3 Supervisor modules with Gigabyte ports
32 10/100 24 port fast Ethernet cards
TELECOMMUNICATIONS CLOSET TC 137
3 Cisco 5513 with 2 power supplies
3 Supervisor modules with Gigabyte ports
32 10/100 24 port fast Ethernet cards
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EXHIBIT D
WELL DISCLOSURE
To the best of Seller's knowledge there is one domestic well located on
Lot 1, Block 1, Western Digital Technology which is in use. Attached hereto is a
map showing the approximate location of the well.
This Disclosure is not a warranty of any kind by the Seller and is not a
substitute for any inspections or warranties Buyer may wish to obtain.
This Disclosure is given pursuant to Minn. Stat. Section 103I.235.
STORAGE TANK DISCLOSURE
To the best of Seller's knowledge there is a 10,000 gallon diesel fuel
underground storage tank located on Lot 2, Block 1, Western Digital Technology
Park.
INDIVIDUAL WASTE TREATMENT SYSTEM DISCLOSURE
To the best of Seller's knowledge there is private sewer system
consisting of a septic tank with drain field located on Lot 1, Block 1, Western
Digital Technology. The sewer system which is currently in use was installed in
1993. Attached hereto is a map showing the approximate location of the septic
tank.
This Disclosure is not a warranty of any kind by the Seller and is not a
substitute for any inspections or warranties Buyer may wish to obtain.
This Disclosure is given pursuant to Minn. Stat. Section 115.55.
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EXHIBIT E
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