Exhibit 10.1
PURCHASE AND SALE AGREEMENT
BETWEEN AND AMONG
WELLS OPERATING PARTNERSHIP, L.P.,
WELLS FUND XII - REIT JOINT VENTURE PARTNERSHIP,
WELLS FUND XIII - REIT JOINT VENTURE PARTNERSHIP,
WELLS REIT, LLC - VA I,
WELLS BREA I, L.P.,
WESTLAKE WELLS, L.P.,
DANACQ FARMINGTON HILLS LLC,
DANACQ KALAMAZOO LLC,
WELLS - EDS DES MOINES, L.P.,
AND
THE WELLS FUND XI-FUND XII-REIT JOINT VENTURE,
AS SELLERS
AND
LEXINGTON CORPORATE PROPERTIES TRUST,
AS PURCHASER
February 25, 2005
Purchase and Sale Agreement
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............................................................................................3
ARTICLE 2. PURCHASE AND SALE.....................................................................................40
2.1. Agreement to Sell and Purchase the Wells Affiliate Properties..................................40
2.2. Agreement to Sell and Purchase the Wells OP Properties.........................................41
2.3. Permitted Exceptions...........................................................................41
2.4. Earnest Money..................................................................................41
2.5. Purchase Price.................................................................................42
2.6. Independent Contract Consideration.............................................................42
2.7. Closing........................................................................................42
ARTICLE 3. PURCHASER'S INSPECTION AND REVIEW RIGHTS..............................................................44
3.1. Due Diligence Inspections......................................................................44
3.2. Deliveries to Purchaser by Sellers; Purchaser's Access to Property Records of Sellers..........45
3.3. Condition of the Properties....................................................................48
3.4. Title and Survey...............................................................................49
3.5. Service Contracts..............................................................................50
3.6. Confidentiality................................................................................50
ARTICLE 4. REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS......................................................51
4.1. Representations and Warranties of Seller.......................................................51
4.2. Knowledge Defined..............................................................................59
4.3. Covenants and Agreements of Sellers............................................................59
4.4. Representations and Warranties of Purchaser....................................................66
4.5 Covenants and Agreements of Purchaser..........................................................67
ARTICLE 5. CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS......................................................68
5.1. Sellers' Closing Deliveries....................................................................68
5.2. Purchaser's Closing Deliveries.................................................................74
5.3. Closing Costs..................................................................................76
5.4. Prorations and Credits.........................................................................77
ARTICLE 6. CONDITIONS TO CLOSING.................................................................................80
6.1. Conditions Precedent to Purchaser's Obligations................................................80
6.2. Conditions Precedent to Seller's Obligations...................................................84
6.3. Conditions Precedent to Purchase and Sale of Certain Properties................................85
Purchase and Sale Agreement
ARTICLE 7. CASUALTY AND CONDEMNATION............................................................................85
7.1. Casualty.......................................................................................85
7.2. Condemnation...................................................................................86
ARTICLE 8. DEFAULT AND REMEDIES.................................................................................87
8.1. Purchaser's Default............................................................................87
8.2. Seller's Default...............................................................................88
ARTICLE 9. ASSIGNMENT............................................................................................88
9.1. Assignment.....................................................................................88
ARTICLE 10. BROKERAGE COMMISSIONS...............................................................................89
10.1. Broker.........................................................................................89
ARTICLE 11. INDEMNIFICATION......................................................................................90
11.1. Indemnification by Sellers.....................................................................90
11.2. Indemnification by Purchaser...................................................................90
11.3. Limitations on Indemnification.................................................................91
11.4. Survival.......................................................................................91
11.5. Indemnification as Sole Remedy.................................................................91
ARTICLE 12. MISCELLANEOUS........................................................................................92
12.1. Notices........................................................................................92
12.2 Possession.....................................................................................93
12.3 Time Periods...................................................................................93
12.4 Publicity......................................................................................93
12.5 Discharge of Obligations.......................................................................93
12.6 Severability...................................................................................93
12.7 Construction...................................................................................94
12.8 Sale Notification Letters......................................................................94
12.9 Access to Records Following Closing............................................................94
12.10 Submission to Jurisdiction.....................................................................94
12.11 General Provisions.............................................................................95
12.12 Like-Kind Exchange by Sellers..................................................................95
12.13 Attorney's Fees................................................................................96
12.14 Counterparts...................................................................................96
12.15 Effective Agreement............................................................................96
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Purchase and Sale Agreement
SCHEDULE OF EXHIBITS
Exhibit "A-1" Description of Wells OP Lands
Exhibit "A-2" Description of Wells Affiliate Lands
Exhibit "A-3" Description of Wells OP Leasehold Interest Lands
Exhibit "B" List of Personal Property
Exhibit "B-1" List of Property Excluded from Wells OP Personal Property
Exhibit "B-2" List of Property Excluded from Wells Affiliate Personal Property
Exhibit "C" List of Existing Commission Agreements
Exhibit "D" List of Associations and Declarations of Covenants, Conditions,
Easements and Restrictions
Exhibit "E" Form of Escrow Agreement
Exhibit "F" List of Existing Environmental Reports
Exhibit "G" List of Existing Surveys
Exhibit "H" Forms of Ground Lessor Estoppel Certificates
Exhibit "I" List of Leases
Exhibit "J" List of Letters of Credit
Exhibit "K-1" Title Exceptions for Wells OP Lands
Exhibit "K-2" Title Exceptions for Wells Affiliate Lands
Exhibit "K-3" Title Exceptions for Wells OP Leasehold Interest Lands
Exhibit "L" List of Service Contracts
Exhibit "M" Form of Tenant Estoppel Certificate
Exhibit "N" Allocation of Earnest Money to Properties
Exhibit "O" List of Purchase Prices for Each Property
Schedule of Exhibits
Purchase and Sale Agreement Page 1
Exhibit "P" List of Exceptions
Exhibit "Q" List of Third Party Management Agreements
Exhibit "R" Property Tax Appeals
Exhibit "S" List of Knowledge Parties
Exhibit "T" Form of Lease Guarantor Estoppel Certificate
Exhibit "U" Obligations as to Certain Leasing Commission Obligations
Exhibit "V" List of Additional Matters for Confirmation in Estoppel
Certificates
Exhibit "W" Excluded Computer Software
Exhibit "X" List of Security Deposits
Exhibit "Y" Form of Highwoods Estoppel Certificate
Exhibit "Z" Form of Pending Kerr McGee Sewer Easement
Exhibit "AA" Form of Pending Capital One Lake Easement Deed
Exhibit "BB" Intentionally Deleted
Exhibit "CC" Form of Second Amendment to Gartner Office Lease
Exhibit "DD" Form of Letter Amendment to ISS Building III Lease
Exhibit "EE" Alstom Power Property / French Drain Work
Exhibit "FF" Gartner Parking Plans
Schedule of Exhibits
Purchase and Sale Agreement Page 2
SCHEDULE OF CLOSING DOCUMENTS
Schedule 1 Form of Assignment and Assumption of ASML Sub-Ground Lease
Schedule 2 Form of Assignment and Assumption of Ingram Micro Bond Lease
Schedule 3 Form of Assignment and Assumption of ISS Bond Lease
Schedule 4 Form of Assignment and Assumption of Leases and Security
Deposits and Leasing Commission Obligations arising after
Closing
Schedule 5 Form of Assignment and Assumption of ASML Sublease
Schedule 6 Form of Assignment and Assumption of Ingram Micro Sublease
Schedule 7 Form of Assignment and Assumption of ISS Subleases
Schedule 8 Form of Bill of Sale to Personal Property
Schedule 9 Form of Assignment and Assumption of Ingram Micro Loan Documents
Schedule 10 Form of Assignment and Assumption of ISS Bond Documents
Schedule 11 Form of Assignment and Assumption of Service Contracts
Schedule 12 Form of General Assignment of Seller's Interest in Intangible
Property
Schedule 13 Form of Seller's Affidavit (for Purchaser's Title Insurance
Purposes)
Schedule 14 Form of Seller's Certificate (as to Seller's Representations and
Warranties)
Schedule 15 Form of Seller's FIRPTA Affidavit
Schedule 16 Form of Ingram Micro Bond Certificate
Schedule 17 Form of ISS Home Office Payment Agreement
Schedule 18 Form of Assignment and Assumption of Agreements Regarding ISS
Letters of Credit
Schedule 19 Form of Assignment of Letters of Credit
Schedule 20 Forms of Seller's Estoppels
Schedule 21 Form of Assignment and Assumption of Highwoods Rental Guaranty
Purchase and Sale Agreement
Agreements
Schedule 22 Form of Assignment and Assumption of Pacificare Escrow Agreement
Schedule 23 Form of Purchaser's Certificate (as to Purchaser's
Representations and Warranties)
Schedule of Closing Documents
Purchase and Sale Agreement Page 2
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), made and entered
into this 25th day of February, 2005, by and among WELLS OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership ("Wells OP"), WELLS FUND XII - REIT JOINT
VENTURE PARTNERSHIP, a Georgia general partnership having Wells Real Estate Fund
XII, L.P., a Georgia limited partnership and Wells OP as all of its general
partners ("Wells Fund XII - REIT JV"), WELLS FUND XIII - REIT JOINT VENTURE
PARTNERSHIP, a Georgia general partnership having Wells Real Estate Fund XIII,
L.P., a Georgia limited partnership and Wells OP as all of its general partners
("Wells Fund XIII-REIT JV"), WELLS REIT, LLC, VA I, a Georgia limited liability
company having Wells OP as its sole member ("Wells Virginia REIT"), WELLS BREA
I, L.P., a Delaware limited partnership having Wells Brea, LLC, a Delaware
limited liability company as its sole general partner ("Wells Brea"), WESTLAKE
WELLS, L.P., a Texas limited partnership having Wells Real Estate Westlake, TX,
LLC, a Delaware limited liability company as its sole general partner ("Wells
Westlake"), DANACQ FARMINGTON HILLS LLC, a Delaware limited liability company,
having Wells OP as its sole member ("Wells Farmington Hills"), DANACQ KALAMAZOO
LLC, a Delaware limited liability company having Wells OP as its sole member
("Wells Kalamazoo"), WELLS - EDS DES MOINES, L.P., a Texas limited partnership
having Wells Real Estate - Des Moines, IA, LLC, a Delaware limited liability
company as its sole general partner ("Wells EDS"), THE WELLS FUND XI - FUND XII
- - REIT JOINT VENTURE, a Georgia general partnership having Wells Real Estate
Fund XI, L.P., a Georgia limited partnership, Wells Real Estate Fund XII, L.P.,
a Georgia limited partnership and Wells OP as all of its general partners
("Wells Funds XI and XII REIT JV") (Wells OP, Wells Fund XII - REIT JV, Wells
Fund XIII - REIT JV, Wells Virginia REIT, Wells Brea, Wells Westlake, Wells
Farmington Hills, Wells Kalamazoo, Wells EDS, and Wells Funds XI and XII REIT JV
being collectively referred to as "Sellers" and sometimes individually referred
to as "Seller") and LEXINGTON CORPORATE PROPERTIES TRUST, a Maryland statutory
real estate investment trust (together with its permitted successors and
assigns, "Purchaser").
W I T N E S S E T H:
-------------------
WHEREAS, Wells OP (doing business in the State of North Carolina as
Wells Operating Partnership, Limited Partnership) desires to sell its fee simple
estate in certain improved real property defined herein as the "Allstate
Property" located in Decatur Township, Marion County, Indiana; the "AT&T (PA)
Property" located in Susquehanna Township, Dauphin County, Pennsylvania; the
"Capital One Property" located in the Three Chopt District, Henrico County,
Virginia; the "Dial Corporation Property" located at 15501 N. Dial Boulevard,
Scottsdale, Maricopa County, Arizona; the "Experian Property" located in the
City of Allen, Collin County, Texas; the "Gartner Surface Parking Property"
located in Fort Myers, Lee County, Florida; the "IKON Property" located at 810
and 820 Gears Road, Harris County, Texas; the "Kerr McGee Property" located in
Harris County, Texas; the "Kraft Foods Property" located in Forsyth County,
Georgia; the "Lucent Property" located in Wake County, North Carolina; the
"Metris
Purchase and Sale Agreement
Property" located in the City of Tulsa, Tulsa County, Oklahoma; the "Nissan
Property" located in the City of Irving, Dallas County, Texas; the "Pacificare
Property" located in the City of San Antonio, Bexar County, Texas; the
"Transocean Property" located in Harris County, Texas; and the "Travelers
Express Property" located in Jefferson County, Colorado, together with certain
related personal and intangible property, and Purchaser desires to purchase such
real, personal and intangible property; and
WHEREAS, Wells OP also desires to sell its leasehold estates in certain
improved real property and associated improvements defined herein as the "ASML
Property" located in Maricopa County, Arizona; the "Ingram Micro Property"
located in Millington, Tennessee; and the "ISS Property" located in the City of
Atlanta, Fulton County, Georgia, together with certain related personal and
intangible property, and Purchaser desires to purchase such real, personal and
intangible property; and
WHEREAS, Wells Fund XII - REIT JV desires to sell its fee simple estate
in certain improved real property defined herein as the "AT&T (OK) Property"
located in Oklahoma County, Oklahoma, together with certain related personal and
intangible property, and Purchaser desires to purchase such real, personal and
intangible property; and
WHEREAS, Wells Fund XIII - REIT JV desires to sell its fee simple state
in certain improved real property defined herein as the "Americredit Property"
located in Clay County, Florida, and the "John Wiley Property" located in
Delaware Township, Hamilton County, Indiana; together with certain related
personal and intangible property, and Purchaser desires to purchase such real,
personal and intangible property; and
WHEREAS, Wells Virginia REIT desires to sell its fee simple estate in
certain improved real property defined herein as the "Alstom Power Property"
located in the Clover Hill District, Chesterfield County, Virginia, together
with certain related personal and intangible property, and Purchaser desires to
purchase such real, personal and intangible property; and
WHEREAS, Wells Brea desires to sell its fee simple estate in certain
improved real property defined herein as the "Bank of America Property" located
at 275 S. Valencia Avenue, Brea, Orange County, California, together with
certain related personal and intangible property, and Purchaser desires to
purchase such real, personal and intangible property; and
WHEREAS, Wells Westlake desires to sell its fee simple estate in
certain improved real property defined herein as the "Daimler Chrysler Property"
located in the City of Westlake, Tarrant County, Texas, together with certain
related personal and intangible property, and Purchaser desires to purchase such
real, personal and intangible property; and
WHEREAS, Wells Farmington Hills and Wells Kalamazoo desire to sell
their respective fee simple estates in certain improved real property defined
herein, respectively, as the "Dana (Farmington Hills) Property" and the "Dana
(Kalamazoo) Property", together with certain related personal and intangible
property associated with each of said properties, and Purchaser desires to
purchase such real, personal and intangible properties; and
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Purchase and Sale Agreement
WHEREAS, Wells EDS desires to sell its fee simple estate in certain
improved real property defined herein as the "EDS Property" located in the City
of Des Moines, Polk County, Iowa, together with certain related personal and
intangible property, and Purchaser desires to purchase such real, personal and
intangible property; and
WHEREAS, Wells Funds XI and XII REIT JV desire to sell its fee simple
estate in certain improved real property defined herein as the "Gartner Office
Building Property" located at 12600 Gateway Boulevard, in Fort Myers, Lee
County, Florida, together with certain related personal and intangible property,
and Purchaser desires to purchase such real, personal and intangible property;
and
WHEREAS, the parties hereto desire to provide for said sale and
purchase on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby covenant and agree
as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, each of the following capitalized terms
shall have the meaning ascribed to such terms as set forth below:
"Allstate Property" shall mean that certain improved real property
located in Decatur Township, Marion County, Indiana, together with certain
related personal and intangible property, being the Wells OP Land identified as
the "Allstate Property" on EXHIBIT "A-1" attached hereto, together with the
related Wells OP Improvements, the Wells OP Personal Property, the Wells OP
Intangible Property and all right, title and interest of Wells OP as "landlord"
or "lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells OP Land and Wells OP Improvements.
"Allstate Purchase Option" shall mean that certain Purchase Option
Agreement, dated as of September 11, 2002, between Midwest Logistics Partners,
L.P. and Hartsfield Building, LLC, the interest of Hartsfield Building, LLC
having been assigned to Wells OP pursuant to that certain Assignment and
Assumption of Lease, Contracts and Option Contract, dated September 27, 2002,
between Hartsfield Building LLC and Wells OP, and as affected by that certain
Letter, dated December 16, 2004, from Wells OP to Midwest Logistics Partners,
L.P. extending said option.
"Alstom Power Property" shall mean that certain improved real property
located in the Clover Hill District, Chesterfield County, Virginia, together
with certain related personal and intangible property, being the Wells Virginia
REIT Land identified as the "Alstom Power Property" on EXHIBIT "A-2" attached
hereto and made a part hereof, together with the related Wells Virginia REIT
Improvements, Wells Virginia REIT Personal Property, and Wells Virginia
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Purchase and Sale Agreement
REIT Intangible Property, and all right, title and interest of Wells Virginia
REIT as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells Virginia REIT Land
and Wells Virginia REIT Improvements.
"Americredit Property" shall mean that certain improved real property
located in Clay County, Florida, together with certain related personal and
intangible property, being the Wells Fund XIII - REIT JV identified as the
"Americredit Property" on EXHIBIT "A-2" attached hereto and made a part hereof,
together with the related Wells Fund XIII -REIT JV Improvements, Wells Fund XIII
- - REIT JV Personal Property, and Wells Fund XIII - REIT JV Intangible Property,
and all right, title and interest of Wells Fund XIII - REIT JV as "landlord" or
"lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells Fund XIII - REIT JV Land and Wells Fund
XIII - REIT JV Improvements.
"ASML Non-Disturbance Agreement" shall have the meaning ascribed
thereto in Section 4.3(t) hereof.
"ASML Prime Ground Lease" shall mean that certain Ground Lease, dated
October 8, 1984, between the Arizona Board of Regents, as lessor, and
Price-Elliott Research Park, Inc., an Arizona nonprofit corporation, as lessee,
with respect to the land on which the ASML Property is located.
"ASML Prime Ground Lease Estoppel Certificate" shall mean an estoppel
certificate substantially in the form attached hereto as EXHIBIT "H-1" and made
a part hereto executed by the ASML Prime Ground Lessor with respect to the ASML
Prime Ground Lease.
"ASML Prime Ground Lessor" shall mean the Arizona Board of Regents.
"ASML Property" shall mean the leasehold estate of Wells OP in that
certain improved real property located in Maricopa County, Arizona, together
with certain related personal and intangible property, being the Wells OP
Property identified as the "ASML Property" on EXHIBIT "A-1" attached hereto and
made a part hereof, together with the related Wells OP Improvements, Wells OP
Personal Property, and Wells OP Intangible Property, and all right, title and
interest of Wells OP as "landlord" or "lessor" in and to the Leases, any
guaranties of the Leases and the Security Deposits, with respect to such Wells
OP Leasehold Estate.
"ASML Sub-Ground Lease" shall mean that certain Ground Lease, dated
August 22, 1997, between Price-Elliott Research Park, Inc., an Arizona nonprofit
corporation, as lessor, and Ryan Companies US, Inc., a Minnesota corporation, as
lessee, as the interest of the "lessee" was assigned to Wells OP pursuant to
that certain Assignment and Assumption Agreement, dated March 29, 2000, between
Ryan Companies US, Inc., as assignor, and Wells OP, as assignee.
"ASML Sub-Ground Lease Estoppel Certificate" shall mean an estoppel
certificate substantially in the form attached hereto as EXHIBIT "H-2" and made
a part hereof executed by the ASML Sub-Ground Lessor with respect to the ASML
Sub-Ground Lease.
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Purchase and Sale Agreement
"ASML Sub-Ground Lessor" shall mean Price-Elliott Research Park, Inc.,
an Arizona nonprofit corporation.
"ASML Sublease" shall mean that certain sublease between Wells OP as
landlord and ASM Lithography, Inc. as tenant, as more particularly described on
Exhibit "I" attached hereto and made a part hereof.
"Assignment and Assumption of Agreements Regarding ISS Letters of
Credit" shall mean that certain Assignment and Assumption of Agreements
Regarding ISS Letters of Credit to be executed by Wells OP and Purchaser at the
Closing, in the form attached hereto as SCHEDULE 19 and made a part hereof.
"Assignment and Assumption of ASML Sub-Ground Lease" shall mean that
certain Assignment and Assumption of Lease to be executed and delivered by Wells
OP and Purchaser at the Closing with respect to the ASML Sublease, in the form
attached hereto as SCHEDULE 1 and made a part hereof.
"Assignment and Assumption of Highwoods Rental Guaranty Agreements"
shall mean that certain Assignment and Assumption of Highwoods Rental Guaranty
Agreements to be executed by Wells OP and Purchaser at the Closing, in the form
attached hereto as SCHEDULE 21 and made a part hereof.
"Assignment and Assumption of Ingram Micro Bond Lease" shall mean that
certain Absolute Assignment of Lease and Assumption Agreement to be executed and
delivered by Wells OP and Purchaser at the Closing with respect to the Ingram
Micro Bond Lease, in the form attached hereto as SCHEDULE 2 and made a part
hereof.
"Assignment and Assumption of Ingram Micro Loan Documents" shall mean
that certain Assignment of Fee Construction Mortgage Deed of Trust and
Assignment of Rents and Leases to be executed and delivered by Wells OP and
Purchaser at the Closing, in the form attached hereto as SCHEDULE 9 and made a
part hereof.
"Assignment and Assumption of Ingram Micro Sublease" shall mean that
certain Assignment and Assumption of Lease to be executed and delivered by Wells
OP and Purchaser at the Closing with respect to the Ingram Micro Sublease, in
the form attached hereto as SCHEDULE 6 and made a part hereof.
"Assignment and Assumption of ISS Bond Documents" shall mean that
certain Assignment and Assumption of ISS Bond Documents to be executed and
delivered by Wells OP and Purchaser at the Closing with respect to the ISS Bond
Documents, in the form attached hereto as SCHEDULE 10 and made a part hereof.
"Assignment and Assumption of ISS Bond Lease" shall mean that certain
Assignment and Assumption of Lease to be executed and delivered by Wells OP and
Purchaser at the Closing with respect to the ISS Bond Lease, in the form
attached hereto as SCHEDULE 3 and made a part hereof.
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Purchase and Sale Agreement
"Assignment and Assumption of ISS Subleases" shall mean that certain
Assignment and Assumption of Leases to be executed and delivered by Wells OP and
Purchaser at the Closing with respect to the ISS Subleases, in the form attached
hereto as SCHEDULE 7 and made a part hereof.
"Assignment and Assumption of Leases" shall mean the form of assignment
and assumption of Leases and Security Deposits and obligations under the
Commission Agreements to be executed and delivered by Purchaser and the
applicable Seller as to the Leases, Security Deposits and Commission Agreements
with respect to the Property or Properties owned by such Seller, at the Closing
in the form attached hereto as SCHEDULE 4.
"Assignment and Assumption of Service Contracts" shall mean the form of
assignment and assumption of the Service Contracts to be executed and delivered
by Purchaser and the applicable Seller as to the Service Contracts with respect
to the Property or Properties owned by such Seller, at the Closing in the form
attached hereto as SCHEDULE 11.
"Assignment of Letters of Credit" shall mean the form of Assignment of
Letters of Credit to be executed and delivered by Purchaser and the applicable
Sellers at the Closing with respect to the Letters of Credit in the form
attached hereto as SCHEDULE 19 and made a part hereof.
"Association" and "Associations" shall mean each and any one or more of
those certain property owners associations established and existing with respect
to the Properties identified on EXHIBIT "D" attached hereto and made a part
hereof.
"Association Estoppel Certificate" or "Association Estoppel
Certificates" shall mean those certain estoppel certificates executed on behalf
of the applicable Associations, substantially in the forms required pursuant to
Section 6.1(e) hereof, with respect to the Properties described on EXHIBIT "D"
attached hereto and made a part hereof.
"Association Notices of Sale" shall have the meaning ascribed therein
in Section 5.1(ff) hereof.
"AT&T (OK) Property" shall mean that certain improved real property
located in Oklahoma City, Oklahoma County, Oklahoma, together with certain
related personal and intangible property, being the Wells Fund XII - REIT JV
Property identified as the "AT&T (OK) Property" on EXHIBIT "A-2" attached hereto
and made a part hereof, together with the related Wells Fund XII - REIT JV
Improvements, Wells Fund XII - REIT JV Personal Property, and Wells Fund XII -
REIT JV Intangible Property, and all right, title and interest of Wells Fund XII
- - REIT JV as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells Fund XII - REIT JV
Land and Wells Fund XII - REIT JV Improvements.
"AT&T (PA) Property" shall mean that certain improved real property
located in Susquehanna Township, Dauphin County, Pennsylvania, together with
certain related personal
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Purchase and Sale Agreement
and intangible property, being the Wells OP Property identified as the "AT&T
(PA) Property" on EXHIBIT "A-1" attached hereto and made a part hereof, together
with the related Wells OP Improvements, Wells OP Personal Property, and Wells OP
Intangible Property, and all right, title and interest of Wells OP as "landlord"
or "lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells OP Land and Wells OP Improvements.
"Bank of America Property" shall mean that certain improved real
property located in Brea, Orange County, California, together with certain
related personal and intangible property, being the Wells Brea Property
identified as the "Bank of America Property" on EXHIBIT "A-2" attached hereto
and made a part hereof, together with the related Wells Brea Improvements, Wells
Brea Personal Property, and Wells Brea Intangible Property, and all right, title
and interest of Wells Brea as "landlord" or "lessor" in and to the Leases, any
guaranties of the Leases and the Security Deposits, with respect to such Wells
Brea Land and Wells Brea Improvements.
"Bank of America ROFR Notice" shall mean that certain letter, dated
January 11, 2005, from Wells Brea to Bank of America, NT & SA (now known as Bank
of America N.A.), together with that certain term sheet accompanying said
letter, as described in Section 4.3(l) hereof.
"Basket Limitation" shall mean an amount equal to $100,000.00;
"Bill of Sale" shall mean the form of bills of sale to the Personal
Property to be executed and delivered to Purchaser by Wells Affiliate as to the
Wells Affiliate Personal Property, and to Purchaser by Wells OP as to the Wells
OP Personal Property, at the Closing in the form attached hereto as SCHEDULE 8.
"Bond Documents" shall have the meaning ascribed thereto in Section
4.1(w) hereof.
"Broker" shall have the meaning ascribed thereto in Section 10.1
hereof.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banking institutions in the States of Georgia or New York are
authorized by law or executive action to close.
"Cap Limitation" shall mean, with respect to each Property, an amount
equal to five percent (5%) of the Purchase Price of such Property, not to exceed
two percent (2%) of the total Purchase Price in the aggregate.
"Capital One Lake Easement Deed" shall mean that certain instrument of
deed among Loch Levan Land Limited Partnership, Highwoods Realty Limited
Partnership, Wells OP and Wyndham Commercial Association, Inc., substantially in
the form of Exhibit "AA" attached hereto and made a part hereof, with such
changes thereto as may be reasonably requested by any party thereto.
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Purchase and Sale Agreement
"Capital One Property" shall mean that certain improved real property
located in the Three Chopt District, Henrico County, Virginia, together with
certain related personal and intangible property, being the Wells OP Property
identified as the "Capital One Property" on EXHIBIT "A-1" attached hereto and
made a part hereof, together with the related Wells OP Improvements, Wells OP
Personal Property, and Wells OP Intangible Property, and all right, title and
interest of Wells OP as "landlord" or "lessor" in and to the Leases, any
guaranties of the Leases and the Security Deposits, with respect to such Wells
OP Land and Wells OP Improvements.
"Closing" shall mean the consummation of the purchase and sale of the
Properties pursuant to the terms of this Agreement.
"Closing Date" shall mean the First Closing Date or any Deferred
Closing Date, as the context may permit or require.
"Closing Documents" shall mean any certificate, instrument or other
document delivered pursuant to this Agreement.
"Commission Agreements" shall have the meaning ascribed thereto in
Section 4.1(g) hereof, and such agreements are more particularly described on
EXHIBIT "C" attached hereto and made a part hereof.
"Daimler Chrysler Property" shall mean that certain improved real
property located in the City of Westlake, Tarrant County, Texas, together with
certain related personal and intangible property, being the Wells Westlake
Property identified as the "Daimler Chrysler Property" on EXHIBIT "A-2" attached
hereto and made a part hereof, together with the related Wells Westlake
Improvements, Wells Westlake Personal Property, and Wells Westlake Intangible
Property, and all right, title and interest of Wells Westlake as "landlord" or
"lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells Westlake Land and Wells Westlake
Improvements.
"Dana (Farmington Hills) Property" shall mean that certain improved
real property located in the City of Farmington Hills, Oakland County, Michigan,
together with certain related personal and intangible property, being the Wells
Farmington Hills Property identified as the "Wells (Farmington Hills) Property"
on EXHIBIT "A-2" attached hereto and made a part hereof, together with the
related Wells Farmington Hills Improvements, Wells Farmington Hills Personal
Property, and Wells Farmington Hills Intangible Property, and all right, title
and interest of Wells Farmington Hills as "landlord" or "lessor" in and to the
Lease, any guaranties of the Lease and the Security Deposit, with respect to
such Wells Farmington Hills Land and Wells Farmington Hills Improvements.
"Dana (Kalamazoo) Property" shall mean that certain improved real
property located in Kalamazoo County, Michigan, together with certain related
personal and intangible property, being the Wells Kalamazoo Property identified
as the "Wells Kalamazoo Property" on EXHIBIT "A-2" attached hereto and made a
part hereof, together with the related Wells Kalamazoo Improvements, Wells
Kalamazoo Personal Property, and Wells Kalamazoo Intangible Property,
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Purchase and Sale Agreement
and all right, title and interest of Wells Kalamazoo as "landlord" or "lessor"
in and to the Lease, any guaranties of the Lease and the Security Deposit, with
respect to such Wells Kalamazoo Land and Wells Kalamazoo Improvements.
"Declarant" or "Declarants" shall mean with respect to each applicable
Property the "declarant" or similar person under any Declaration affecting such
Property.
"Declarant Estoppel Certificate" or "Declarant Estoppel Certificates"
shall mean estoppel certificates executed by the holders of the rights of
"Declarant" or similar rights under the Declarations, substantially in the form
required pursuant to Section 6.1(f) hereof, affecting the Properties described
on EXHIBIT "D" attached hereto and made a part hereof.
"Declaration" and "Declarations" shall mean those certain declarations
of easements, covenants and conditions more particularly described on EXHIBIT
"D" attached hereto and made a part hereof.
"Deferred Closing Date" shall have the meaning ascribed thereto in
Section 2.7(b) hereof.
"Deferred Closing Property" shall have the meaning ascribed thereto in
Section 2.7(b) hereof.
"Dial Corporation Property" shall mean that certain improved real
property located in Scottsdale, Maricopa County, Arizona, together with certain
related personal and intangible property, being the Wells OP Property identified
as the "Dial Corporation Property" on EXHIBIT "A-1" attached hereto and made a
part hereof, together with the related Wells OP Improvements, Wells OP Personal
Property, and Wells OP Intangible Property, and all right, title and interest of
Wells OP as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
"Due Diligence Deliveries" shall have the meaning ascribed thereto in
Section 3.2 hereof.
"Due Diligence Material" shall have the meaning ascribed thereto in
Section 3.7 hereof.
"Earnest Money" shall mean the sum of Forty Million Five Hundred
Thousand and No/100 Dollars ($40,500,000.00 U.S.), together with all interest
which accrues thereon as provided in Section 2.4(b) hereof and in the Escrow
Agreement.
"EDS Property" shall mean that certain improved real property located
in Des Moines, Polk County, Iowa, together with certain related personal and
intangible property, being the Wells EDS Property identified as the "EDS
Property" on EXHIBIT "A-2" attached hereto and made a part hereof, together with
the related Wells EDS Improvements, Wells EDS Personal Property, and Wells EDS
Intangible Property, and all right, title and interest of Wells EDS as
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Purchase and Sale Agreement
"landlord" or "lessor" in and to the Leases, any guaranties of the Leases and
the Security Deposits, with respect to such Wells EDS Land and Wells EDS
Improvements.
"Effective Date" shall mean the date upon which Sellers and Purchaser
shall have executed and delivered at least two (2) fully executed counterparts
of this Agreement to each other party, and at least three (3) executed
counterparts of the Escrow Agreement to Escrow Agent.
"Environmental Law" shall mean any law, ordinance, rule, regulation,
order, judgment, injunction or decree relating to pollution or substances or
materials which are considered to be hazardous or toxic, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Emergency Planning and Community Right to Know Act, any state and local
environmental law, all amendments and supplements to any of the foregoing and
all regulations and publications promulgated or issued pursuant thereto.
"Escrow Agent" shall mean the Title Company, at its office at 4170
Ashford Dunwoody Road, Suite 460, in Atlanta, Georgia, 30319.
"Escrow Agreement" shall mean that certain Escrow Agreement in the form
attached hereto as EXHIBIT "E" entered into contemporaneously with the execution
and delivery of this Agreement by Sellers, Purchaser and Escrow Agent with
respect to the Earnest Money.
"Excess Amount" shall have the meaning ascribed thereto in Section 11.3
hereof.
"Excluded Property" shall have the meanings set forth in Sections 7.1
and 7.2 hereof.
"Existing Environmental Reports" shall mean those certain reports,
correspondence and related materials, if any, more particularly described on
EXHIBIT "F" attached hereto and made a part hereof.
"Existing Survey" and "Existing Surveys" shall mean any one or more of
those certain surveys with respect to the Land and the Improvements or the Wells
Affiliate Ground Lease Lands or the Wells OP Ground Lease Land, if any, more
particularly described on EXHIBIT "G" attached hereto and made a part hereof.
"Experian Property" shall mean that certain improved real property
located in the City of Allen, Collin County, Texas, together with certain
related personal and intangible property, being the Wells OP Property identified
as the "Experian Property" on EXHIBIT "A-1" attached hereto and made a part
hereof, together with the related Wells OP Improvements, Wells OP Personal
Property, and Wells OP Intangible Property, and all right, title and interest of
Wells OP as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
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Purchase and Sale Agreement
"FIRPTA Affidavit" shall mean the form of FIRPTA Affidavit to be
executed and delivered to Purchaser at Closing by each Seller as to the Property
owned by such Seller, substantially in the form attached hereto as SCHEDULE 15.
"First Closing Date " shall have the meaning ascribed thereto in
Section 2.7(a) hereof.
"Gartner Lease Amendment" shall mean an amendment to that certain Lease
with Gartner Group, Inc. relating to the Gartner Office Building Property
substantially in the form attached hereto as Exhibit "CC" and made a part
hereof.
"Gartner Office Building Property" shall mean that certain improved
real property located in Lee County, Florida, together with certain related
personal and intangible property, being the Wells Funds XII and XIII REIT JV
Property identified as the "Gartner Office Building Property" on EXHIBIT "A-2"
attached hereto and made a part hereof, together with the related Wells Funds
XII and XIII REIT JV Improvements, Wells Funds XII and XIII REIT JV Personal
Property, and Wells Funds XII and XIII REIT JV Intangible Property, and all
right, title and interest of Wells Funds XII and XIII REIT JV as "landlord" or
"lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells Funds XII and XIII REIT JV Land and Wells
Funds XII and XIII REIT JV Improvements.
"Gartner Office Lease" shall mean that certain office lease affecting
the Gartner Property as more particularly described on the attached Exhibit "I".
"Gartner Parking Lease" shall mean that certain parking lease affecting
the Gartner Property as more particularly described on the attached Exhibit "I".
"Gartner Parking Plans" shall mean those certain plans for the
construction and installation of surface parking and related improvements on the
Gartner Surface Parking Property as more particularly described on Exhibit "FF"
attached hereto and made a part hereof.
"Gartner Parking Work" shall having the meaning ascribed thereto in
Section 4.3(s) hereof and shall include the work contemplated under the Gartner
Parking Plans.
"Gartner Property" shall mean, collectively, the Gartner Office
Building Property, which is owned by Wells Funds XI and XII REIT JV, and the
Gartner Surface Parking Property, which is owned by Wells OP.
"Gartner Surface Parking Property" shall mean that certain real
property located in Lee County, Florida, improved as surface parking, which is
adjacent to the Gartner Office Building Property owned by Wells Funds XI and XII
REIT JV, together with certain related personal and intangible property, being
the Wells OP Land identified as "Gartner Surface Parking Parcels" on EXHIBIT
"A-2" attached hereto and made a part hereof, together with the related Wells OP
Improvements, the Wells OP Personal Property, the Wells OP Intangible Property
and all right, title and interest of Wells OP as "landlord" or "lessor" in and
to the Lease with respect to such Wells OP Land and Wells OP Improvements.
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Purchase and Sale Agreement
"General Assignment" shall mean an assignment by each applicable Seller
of its interest in intangible property owned by such Seller (being such Seller's
interest in the Intangible Property) and being conveyed as a part of such
Seller's Property, to be executed by such Seller at Closing, substantially in
the form attached hereto as SCHEDULE 12 and made a part hereto, with such
changes thereto as may be agreed upon by such Seller and Purchaser to convey
such Seller's intangible property associated with the Property of such Seller.
"Ground Lessor Estoppel Certificates" shall mean the ASML Prime Ground
Lease Estoppel Certificate, the ASML Sub-Ground Lease Estoppel Certificate and
the Ingram Micro Bond Lease Estoppel Certificate, substantially in the forms
attached hereto as EXHIBIT "H-1", EXHIBIT "H-2" and EXHIBIT "H-3", respectively.
"Hazardous Substances" shall mean any and all pollutants, contaminants,
toxic or hazardous wastes or any other substances that might pose a hazard to
health or safety, the removal of which may be required or the generation,
manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage
or filtration of which is or shall be restricted, prohibited or penalized under
any Environmental Law (including, without limitation, lead paint, asbestos, urea
formaldehyde foam insulation, petroleum and polychlorinated biphenyls).
"Highwoods Estoppel Certificate" or "Highwoods Estoppel Certificates"
shall mean estoppel certificates to be sought from Highwoods Properties, Inc., a
Maryland corporation, with respect to each of the Highwoods Rental Guaranty
Agreements, in substantially the form attached hereto as EXHIBIT "Y" and made a
part hereof.
"Highwoods Rental Guaranty Agreements" shall mean (a) that certain
Rental Guaranty Agreement (East Shore I), dated as of November 26, 2002, between
Highwoods Properties, Inc., a Maryland corporation, and Wells OP, (b) that
certain Rental Guaranty Agreement (East Shore II), dated as of November 26,
2002, between Highwoods Properties, Inc., a Maryland corporation, and Wells OP,
and (c) that certain Rental Guaranty Agreement (East Shore III), dated as of
November 26, 2002, between Highwoods Properties, Inc., a Maryland corporation,
and Wells OP, with respect to certain Leases affecting the Capital One Property.
"IKON Property" shall mean that certain improved real property located
in Harris County, Texas, together with certain related personal and intangible
property, being the Wells OP Property identified as the "IKON Property" on
EXHIBIT "A-1" attached hereto and made a part hereof, together with the related
Wells OP Improvements, Wells OP Personal Property, and Wells OP Intangible
Property, and all right, title and interest of Wells OP as "landlord" or
"lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells OP Land and Wells OP Improvements.
"Improvements" shall mean the Wells OP Improvements and the Wells
Affiliate Improvements.
"Ingram Micro Bond Certificate" shall mean that certain Bond
Certificate substantially in the form attached hereto as SCHEDULE 13 and made a
part hereof.
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Purchase and Sale Agreement
"Ingram Micro Bond Lease" shall mean that certain Bond Real Property
Lease, dated as of December 20, 1995, between the Ingram Micro Ground Lessor and
Lease Plan North America, Inc., an Illinois corporation, as lessee, as the
interest of the "lessee" thereunder was assigned pursuant to that certain
Absolute Assignment of Lease and Assumption Agreement, dated as of December 20,
2000, between Lease Plan North America, Inc., as assignor, and Ingram Micro,
L.P., a Tennessee limited partnership, as assignee, and as the interest of the
"lessee" thereunder was further assigned pursuant to that certain Absolute
Assignment of Lease and Assumption Agreement, dated as of September 20, 2001,
between Ingram Micro, L.P., as assignor, and Wells OP, as assignee.
"Ingram Micro Bond Lease Estoppel Certificate" shall mean an estoppel
certificate executed by the Ingram Micro Ground Lessor substantially in the form
and substance as attached hereto as EXHIBIT "H-3" and made a part hereof with
respect to the Ingram Micro Bond Lease.
"Ingram Micro Fee Construction Mortgage Deed of Trust and Assignment of
Rents and Leases" shall mean that certain Fee Construction Mortgage Deed of
Trust and Assignment of Rents and Leases, dated December 20, 1995, recorded as
Instrument No. FN 4355 in the Register's Office of Shelby County, Tennessee from
the Ingram Micro Ground Lessor to First American Title Insurance Company for the
benefit of Lease Plan North America, Inc., as mortgagee, as the interest of the
"mortgagee" thereunder was assigned pursuant to that certain Assignment of Fee
Construction Mortgage Deed of Trust and Assignment of Rents and Leases, dated as
of December 20, 1995, between Lease Plan North American, Inc., as assignor, and
ABN Amro Bank N.V., Atlanta Branch, as assignee, recorded as Instrument No.
4356, aforesaid records, as the interest of the "mortgagee" thereunder was
further assigned pursuant to that certain Absolute Assignment of Bond and Deed
of Trust, dated December 20, 2000, recorded as Instrument No. KV 3969, aforesaid
records, between ABN Amro Bank N.V. (formerly referred to as ABN Amro Bank N.V.,
Atlanta Branch), as assignor, and Ingram Micro L.P., as assignee, as the
interest of the "mortgagee" thereunder was further assigned pursuant to that
certain Assignment of Fee Construction Mortgage Deed of Trust and Assignment of
Rents and Leases, dated as of September 7, 2001, between Ingram Micro L.P., as
assignor, and Wells OP, as assignee.
"Ingram Micro Ground Lessor" shall mean The Industrial Development
Board of the City of Millington, Tennessee, a Tennessee public nonprofit
corporation.
"Ingram Micro Industrial Development Revenue Note" shall mean that
certain Industrial Development Revenue Note (Ingram Micro L.P.) Series 1995 of
The Industrial Development Board of the City of Millington, Tennessee, dated as
of December 20, 1995, by the Ingram Micro Ground Lessor to and in favor of Lease
Plan North American, Inc., in the original principal amount of Twenty-Two
Million and No/100 Dollars ($22,000,000.00), the original of which has been lost
or misplaced and is not in the possession of Sellers.
"Ingram Micro Leasehold Estate" shall mean the leasehold estate in the
land and improvements forming a part of the Ingram Micro Property, created and
existing under and by virtue of the Ingram Micro Bond Lease.
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Purchase and Sale Agreement
"Ingram Micro Loan Documents" shall mean the Ingram Micro Fee
Construction Mortgage Deed of Trust and Assignment of Rents and Leases, the
Ingram Micro Industrial Development Revenue Note, the Ingram Micro PILOT
Agreement, and any other documents or agreements executed in connection with
such documents to the extent of any or all of the interest of Wells OP therein.
"Ingram Micro PILOT Agreement" shall mean that certain Payment in Lieu
of Tax Agreement, dated December 20, 1995, by and between Ingram Micro L.P. and
the Ingram Micro Ground Lessor.
"Ingram Micro Property" shall mean the leasehold estate of Wells OP in
that certain improved real property located in Millington, Shelby County,
Tennessee, together with certain related personal and intangible property, being
the Wells OP Property identified as the "Ingram Micro Property" on EXHIBIT "A-1"
attached hereto and made a part hereof, together with the related Wells OP
Improvements, Wells OP Personal Property, and Wells OP Intangible Property, and
all right, title and interest of Wells OP as "landlord" or "lessor" in and to
the Leases, any guaranties of the Leases and the Security Deposits, with respect
to such Wells OP Leasehold Interest.
"Ingram Micro Sublease" shall mean that certain Indenture of Lease
between Wells OP as landlord and Ingram Micro L.P. as tenant, as more
particularly described on EXHIBIT "I" attached hereto and made a part hereof.
"Inspection Period" shall mean the period commencing on December 29,
2004, and expiring at 5:00 P.M. Eastern Standard Time on February 21, 2005.
"Intangible Property" shall mean the Wells OP Intangible Property and
the Wells Affiliate Intangible Property.
"ISS" shall mean Internet Security Systems, Inc., a Georgia
corporation.
"ISS Bond Documents" shall mean (a) that certain Bond Purchase
Agreement between the ISS Issuer and Mount Vernon Place Partners, LLC, a Georgia
limited liability company, dated as of September 1, 2000, relating to Taxable
Revenue Bonds (Internet Security Systems, Inc. Project), Series 2000A, (b)
Payment and Indemnity Agreement by and among the ISS Issuer, SunTrust Bank,
Mount Vernon Place Partners, LLC, and ISS, dated as of September 1, 2000,
relating to Taxable Revenue Bonds (Internet Security Systems, Inc. Project),
Series 2000A, and (c) Home Office Payment Agreement by and among SunTrust Bank,
the ISS Issuer and Mount Vernon Place Partners, LLC, dated as of September 1,
2000, as the interests of Mount Vernon Place Partners, LLC thereunder were
assigned to Wells OP pursuant to that certain Assignment and Assumption of Bond
Documents between Mount Vernon Place Partners, LLC and Wells OP, dated as of
July 1, 2002.
"ISS Bond Lease" shall mean that certain Series 2000A Lease Agreement
between the ISS Issuer and Mount Vernon Place Partners, LLC, a Georgia limited
liability company, dated as
14
Purchase and Sale Agreement
of September 1, 2000, recorded in Deed Book 29773, Page 621, Fulton County,
Georgia records; as amended by that certain Amendment to Lease Agreement between
the ISS Issuer and Mount Vernon Place Partners, LLC, dated as of December 20,
2001, recorded in Deed Book 31888, Page 436, aforesaid records; as amended by
Second Amendment to Series 2000A Lease Agreement, between the ISS Issuer and
Mount Vernon Place Partners, LLC, dated as of July 1, 2002, recorded in Deed
Book 32669, Page 299, aforesaid records; as the interest of the "lessee"
thereunder was assigned to Wells OP pursuant to that certain Assignment and
Assumption of Lease between Mount Vernon Place Partners, LLC and Wells OP, dated
as of July 1, 2002, recorded in Deed Book 32669, Page 313, aforesaid records;
and as amended by that certain Amendment No. 3 to Series 2000A Lease Agreement
between the ISS Issuer and Wells OP, dated December 29, 2003, recorded in Deed
Book 36785, Page 24, aforesaid records.
"ISS Bonds" shall mean, collectively, (a) that certain Development
Authority of Fulton County Taxable Revenue Bond (Internet Security Systems, Inc.
Project), Series 2000A, issued by the ISS Issuer, dated as of September 14,
2000, Numbered AR-3, in the stated amount of $26,000,000, (b) that certain
Development Authority of Fulton County Taxable Revenue Bond (Internet Security
Systems, Inc. Project), Series 2000A, issued by the ISS Issuer, dated as of
December 20, 2001, Numbered AR-4, in the stated amount of $6,500,000, and (c)
that certain Development Authority of Fulton County Taxable Revenue Bond
(Internet Security Systems, Inc. Project), Series 2000A, issued by the ISS
Issuer, dated as of December 29, 2003, Numbered AR-5, in the stated amount of
$10,000,000.
"ISS Ground Lessor" shall mean the Development Authority of Fulton
County, Georgia.
"ISS Home Office Payment Agreement" shall mean that certain Home Office
Payment Agreement among the ISS Trustee, the ISS Issuer and Purchaser, in its
capacities as the purchaser of the ISS Series 2000A Bonds and the successor
lessee under the ISS Bond Lease, in the form and substance of SCHEDULE 17
attached hereto and made a part hereof.
"ISS Issuer" shall mean the Development Authority of Fulton County,
Georgia.
"ISS Lease Amendment" shall mean a letter amendment to that certain
Lease with Internet Security Systems, Inc. for Building III substantially in the
form attached hereto as Exhibit "DD" and made a part hereof.
"ISS Leasehold Estate" shall mean that certain leasehold estate in and
to the land and improvements which are a part of the ISS Property, as said
leasehold estate is created and established pursuant to the ISS Bond Lease.
"ISS Property" shall mean the leasehold estate of Wells OP in that
certain improved real property located in the City of Atlanta, Fulton County,
Georgia, together with certain related personal and intangible property, being
the Wells OP Property identified as the "ISS Property" on EXHIBIT "A-3" attached
hereto and made a part hereof, together with the related Wells OP Improvements,
Wells OP Personal Property, and Wells OP Intangible Property, and all right,
title and interest of Wells OP as "landlord" or "lessor" in and to the Leases,
any guaranties of the
15
Purchase and Sale Agreement
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
"ISS Subleases" shall mean those two (2) certain subleases between
Wells OP as landlord and ISS as tenant, as more particularly described on
EXHIBIT "I" attached hereto and made a part hereof.
"ISS Trustee" shall mean SunTrust Bank, a state banking corporation, as
trustee under the ISS Bond Documents.
"John Wiley Property" shall mean that certain improved real property
located in Delaware Township, Hamilton County, Indiana, together with certain
related personal and intangible property, being the Wells Fund XIII - REIT JV
Property identified as the "John Wiley Property" on EXHIBIT "A-1" attached
hereto and made a part hereof, together with the related Wells Fund XIII - REIT
JV Improvements, Wells Fund XIII - REIT JV Personal Property, and Wells Fund
XIII - REIT JV Intangible Property, and all right, title and interest of Wells
Fund XIII - REIT JV as "landlord" or "lessor" in and to the Leases, any
guaranties of the Leases and the Security Deposits, with respect to such Wells
Fund XIII - REIT JV Land and Wells Fund XIII - REIT JV Improvements.
"Kerr McGee Property" shall mean that certain improved real property
located in Houston, Harris County, Texas, together with certain related personal
and intangible property, being the Wells OP Property identified as the "Kerr
McGee Property" on EXHIBIT "A-1" attached hereto and made a part hereof,
together with the related Wells OP Improvements, Wells OP Personal Property, and
Wells OP Intangible Property, and all right, title and interest of Wells OP as
"landlord" or "lessor" in and to the Leases, any guaranties of the Leases and
the Security Deposits, with respect to such Wells OP Land and Wells OP
Improvements.
"Kerr McGee Sewer Easement" shall mean that sewer easement to be
granted by Wells OP to the owner of certain property adjoining the Kerr McGee
Property, substantially in the form attached hereto as EXHIBIT "Z" attached
hereto and made a part hereof, which easement Wells OP agreed to grant and which
has been in the process of negotiation with said adjoining property owner for
more than one year.
"Kraft Foods Property" shall mean that certain improved real property
located in Forsyth County, Georgia, together with certain related personal and
intangible property, being the Wells OP Property identified as the "Kraft Foods
Property" on EXHIBIT "A-1" attached hereto and made a part hereof, together with
the related Wells OP Improvements, Wells OP Personal Property, and Wells OP
Intangible Property, and all right, title and interest of Wells OP as "landlord"
or "lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells OP Land and Wells OP Improvements.
"Land" shall mean, as the context permits or requires, the Wells OP
Lands and the Wells Affiliate Lands and the real property in which Wells OP owns
a leasehold interest pursuant to the Wells OP Ground Leases.
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Purchase and Sale Agreement
"Lease" and "Leases" shall mean, as to Wells OP, the leases or
occupancy agreements (and all amendments and modifications thereto) (other than
the Wells OP Ground Leases), which affect all or any portion of the Wells OP
Land or Wells OP Improvements, including those in effect on the Effective Date,
which are more particularly identified on EXHIBIT "I" attached hereto, and any
amended or new leases entered into pursuant to Section 4.3(a) of this Agreement,
which as of the Closing affect all or any portion of the Wells OP Land or Wells
OP Improvements, and shall mean, as to the Wells Affiliates, the leases or
occupancy agreements and all amendments and modifications thereto which affect
all or any portion of the Wells Affiliate Land or Wells Affiliate Improvements,
including those in effect on the Effective Date, which are more particularly
identified on EXHIBIT "I" attached hereto, and any amended or new leases entered
into pursuant to Section 4.3(a) of this Agreement, which as of the Closing
affect all or any portion of the Wells Affiliate Lands or Wells Affiliate
Improvements.
"Lease Guarantor" or "Lease Guarantors" shall mean each or more of the
following guarantors of certain Leases or certain obligations of the tenants
under such Leases affecting one or more of the following Properties:
(a) AmeriCredit Corp., as guarantor of the certain obligations
of the tenant under the Lease with AmeriCredit Financial Services,
Inc., affecting the Americredit Property;
(b) ASM Lithography Holding NV, as guarantor of certain
obligations of the tenant under the Lease with ASM Lithography, Inc.,
affecting the ASML Property;
(c) Vanguard Cellular Financial Corp. (or its successor by
merger), as guarantor of certain obligations of the tenant under the
Lease with Pennsylvania Cellular Telephone Corp., affecting the AT&T
(PA) Property;
(d) Electronic Data Systems Corporation, as guarantor of
certain obligations of the tenant under the Lease with EDS Information
Services LLC, affecting the EDS Property;
(e) Ingram Micro, Inc., as guarantor of certain obligations of
the tenant under the Lease with Ingram Micro LP, affecting the Ingram
Micro Property;
(f) Internet Security Systems, Inc., a Delaware corporation,
as guarantor of certain obligations of the tenant under the Leases with
Internet Security Systems, Inc., a Georgia corporation, affecting the
ISS Property;
(g) Kerr-McGee Corporation, as guarantor of certain
obligations of the tenant under the Lease with Kerr-McGee Oil & Gas
Corporation, affecting the Kerr McGee Property;
(h) Metris Companies, Inc., as guarantor of certain
obligations of the tenant under the Lease with Metris Direct, Inc.,
under its Lease, affecting the Metris Property;
17
Purchase and Sale Agreement
(i) Nissan North America, Inc., as guarantor of certain
obligations of the tenant under the Lease with Nissan Motor Acceptance
Corporation, affecting the Nissan Property;
(j) Transocean Sedco Forex, Inc, as guarantor of certain
obligations of the tenant under the Lease with Transocean Offshore
Deepwater Drilling, Inc., affecting the Transocean Property; and
(k) Newpark Resources, Inc., as guarantor of certain
obligations of the tenant under the Lease with Newpark Drilling Fluids,
Inc., affecting the Transocean Property.
"Lease Guarantor Estoppel Certificate" or "Lease Guarantor Estoppel
Certificates" shall mean those certain estoppel certificates executed on behalf
of the applicable Lease Guarantors substantially in the form attached hereto as
EXHIBIT "T" and made a part hereof.
"Lease Guaranty" or "Lease Guaranties" shall mean any one or more of
those certain guaranties of certain obligations of the tenants made by each
Lease Guarantor.
"Lender" or "Lenders" shall mean Bank of America, N.A. with respect to
the Experian Property, the IKON Property and the Kraft Foods Property; and
SouthTrust Bank, National Association with respect to the Alstom Power Property,
the ASML Property and the Dial Corporation Property.
"Letter of Credit" and "Letters of Credit" shall mean any one or more
of those certain letters of credit delivered by certain tenants of the
Properties to the Sellers who are the owners of such Properties, as more
particularly described on EXHIBIT "J" attached hereto and made a part hereof.
"Limited Warranty Deed" shall have the meaning ascribed thereto in
Section 5.1(a) hereof.
"Loan" or "Loans" shall mean each and all of the mortgage loans
secured, respectively, by the following Properties: the Alstom Power Property,
the ASML Property, the Dial Corporation Property, the Experian Property, the
IKON Property and the Kraft Foods Property.
"Losses" shall have the meaning ascribed thereto in Section 11.1
hereof.
"Lucent Property" shall mean that certain improved and unimproved real
property located in Cary, Wake County, North Carolina, together with certain
related personal and intangible property, being the Wells OP Property identified
as the "Lucent Property" on EXHIBIT "A-1" attached hereto and made a part
hereof, together with the related Wells OP Improvements, Wells OP Personal
Property, and Wells OP Intangible Property, and all right, title and interest of
Wells OP as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
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Purchase and Sale Agreement
"Lucent Property Declaration" shall mean that certain Declaration of
Covenants, Conditions and Restrictions for Regency Park, dated February 1, 1996,
recorded in Book 6933, page 342, Wake County, North Carolina Registry, as
amended by First Amendment to Declaration of Covenants, Conditions and
Restrictions for Regency Park, dated August 14, 1996, recorded in Book 7112,
page 641, aforesaid records, as amended by Second Amendment to Declaration of
Covenants, Conditions and Restrictions for Regency Park, dated August 30, 1996,
recorded in Book 7135, page 870, aforesaid records, as amended by Third
Amendment to Declaration of Covenants, Conditions and Restrictions for Regency
Park, dated September 27, 1996, recorded in Book 7164, page 610, aforesaid
records.
"Major Tenant" or "Major Tenants" shall mean each one or more of the
following tenants of the Properties:
(a) with respect to the Allstate Property, Allstate
Insurance Company, an Illinois corporation;
(b) with respect to the Alstom Power Property, Alstom
Power, Inc., a Delaware corporation;
(c) with respect to the AmeriCredit Property, AmeriCredit
Financial Services, Inc., a Delaware corporation;
(d) with respect to the ASML Property, ASM Lithography,
Inc., a Delaware corporation;
(e) with respect to the AT&T (OK) Property, AT&T Wireless
Services, Inc., a Delaware corporation (successor in interest to AT&T Corp., a
New York corporation);
(f) with respect to the AT&T (PA) Property, Pennsylvania
Cellular Telephone Corp., a North Carolina corporation (d/b/a AT&T Wireless
Services);
(g) with respect to the Bank of America Property, Bank of
America NT & SA, a national banking corporation;
(h) with respect to the Capital One Property, Capital One
Services, Inc., a Delaware corporation;
(i) with respect to the Daimler Chrysler Property,
Chrysler Financial Company, LLC, a Michigan limited liability company;
(j) with respect to the Dana Farmington Hills Property,
Dana Corporation, a Virginia corporation;
(k) with respect to the Dana Kalamazoo Property, Dana
Corporation, a Virginia corporation;
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Purchase and Sale Agreement
(l) with respect to the Dial Corporation Property, The
Dial Corporation, a Delaware corporation;
(m) with respect to the EDS Property, EDS Information
Services L.L.C., a Delaware limited liability company;
(n) with respect to the Experian Property, Experian
Information Solutions, Inc., an Ohio corporation;
(o) with respect to the Gartner Property, Gartner, Inc.,
a Delaware corporation;
(p) with respect to the IKON Property, IKON Office
Solutions, Inc., an Ohio corporation;
(q) with respect to the Ingram Micro Property, Ingram
Micro L.P., a Tennessee limited partnership;
(r) with respect to the ISS Property, Internet Security
Systems, Inc., a Georgia corporation;
(s) with respect to the John Wiley Property, John Wiley &
Sons, Inc., a New York corporation;
(t) with respect to the Kerr McGee Property, Kerr-McGee
Oil & Gas Corporation, a Delaware corporation;
(u) with respect to the Kraft Foods Property, Kraft Foods
North America, Inc. a Delaware corporation;
(v) with respect to the Lucent Property, Lucent
Technologies Inc., a Delaware corporation;
(w) with respect to the Metris Property, Metris Direct,
Inc., a Delaware corporation;
(x) with respect to the Nissan Property, Nissan Motor
Acceptance Company, a Delaware corporation;
(y) with respect to the Pacificare Property, PacifiCare
Health Systems, Inc., a Delaware corporation;
(z) with respect to the Transocean Property, Transocean
Offshore Deepwater Drilling Inc., a Delaware corporation, and Newpark Drilling
Fluids, LLC, a Texas limited liability company; and
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Purchase and Sale Agreement
(aa) with respect to the Travelers Express Property,
Travelers Express Company, Inc., a Minnesota corporation.
"Metris Property" shall mean that certain improved real property
located in the City of Tulsa, Tulsa County, Oklahoma, together with certain
related personal and intangible property, being the Wells OP Property identified
as the "Metris Property" on EXHIBIT "A-1" attached hereto and made a part
hereof, together with the related Wells OP Improvements, Wells OP Personal
Property, and Wells OP Intangible Property, and all right, title and interest of
Wells OP as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
"Monetary Objection" or "Monetary Objections" with respect to each
individual Property shall mean (a) any mortgage, deed to secure debt, deed of
trust or similar security instrument encumbering all or any part of such
Property, (b) any mechanic's, materialman's or similar lien (unless resulting
from any act or omission of Purchaser or any of its agents, contractors,
representatives or employees or any tenant of such Property), (c) the lien of ad
valorem real or personal property taxes, assessments and governmental charges
affecting all or any portion of such Property which are delinquent, (d) any
judgment of record (other than a judgment of record against a tenant under a
Lease at such Property) against such Property in the county or other applicable
jurisdiction in which such Property is located, (e) any other lien or other
encumbrance affecting title to such Property which can be removed according to
its terms by payment of a liquidated sum of money, excluding any such other
liens or encumbrances which are (x) identified in clauses (a)-(d) in the
definition of "Permitted Exceptions" or (y) are required to be removed by a
tenant or other occupant under a Lease at such Property, and (f) Post Effective
Date Encumbrances.
"Nissan Property" shall mean that certain improved real property
located in the City of Irving, Dallas County, Texas, together with certain
related personal and intangible property, being the Wells OP Property identified
as the "Nissan Property" on EXHIBIT "A-1" attached hereto and made a part
hereof, together with the related Wells OP Improvements, Wells OP Personal
Property, and Wells OP Intangible Property, and all right, title and interest of
Wells OP as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
"Nissan Quitclaim Deed" shall mean a quitclaim deed executed on behalf
of Nissan Motor Acceptance Corporation confirming the termination of the
repurchase option set forth in that certain vesting deed pursuant to which Wells
OP acquired the Nissan Property.
"Opus Indemnity" shall mean the agreement of Opus South Corporation to
indemnify Wells OP with respect to the "Retained Obligations" (including certain
corrective work to the building slab at the Pacificare Property), all as set
forth (and as the term "Retained Obligations" is defined) in that certain
Assignment and Assumption of Lease and Certain Agreements, dated July 12, 2002,
by and among Opus South Corporation, Opus Management Corporation and Wells OP.
21
Purchase and Sale Agreement
"Other Notices of Sale" shall have the meaning ascribed thereto in
Section 5.1(ee) hereof.
"Other Third Party Estoppel Certificate" and "Other Third Party
Estoppel Certificates" shall have the meanings set forth in Section 4.3(i)
hereof.
"Outstanding ROFO/ROFR Party" shall mean Bank of America, NT & SA with
respect to the Bank of America Property.
"Pacificare Escrow Agreement" shall mean that certain Escrow Agreement,
dated December 11, 2002, among PacifiCare Health Systems, Inc., Wells OP, as
"beneficiary", and Wells Fargo Bank, National Association as "escrow agent".
"Pacificare Property" shall mean that certain improved real property
located in San Antonio, Bexar County, Texas, together with certain related
personal and intangible property, being the Wells OP Property identified as the
"Pacificare Property" on EXHIBIT "A-1" attached hereto and made a part hereof,
together with the related Wells OP Improvements, Wells OP Personal Property, and
Wells OP Intangible Property, and all right, title and interest of Wells OP as
"landlord" or "lessor" in and to the Leases, any guaranties of the Leases and
the Security Deposits, with respect to such Wells OP Land and Wells OP
Improvements.
"Permitted Exceptions" as to any individual Land and related
Improvements shall mean, collectively, (a) liens for taxes, assessments and
governmental charges not yet due and payable or due and payable but not yet
delinquent with respect to such Land and related Improvements, (b) the Leases
affecting such Land and related Improvements, (c) such state of facts as would
be disclosed by a current survey of such Land, (d) the matters identified as
affecting such Land and related Improvements on EXHIBIT "K" attached hereto and
made part hereof, and (e) such other easements, restrictions and encumbrances
with respect to such Land and related Improvements that do not constitute
Monetary Objections, and that are approved (or are deemed approved) by Purchaser
in accordance with the provisions of Section 3.4 hereof. In addition, the term
"Permitted Exceptions" as to the Kerr McGee Property shall also mean and include
the Kerr McGee Sewer Easement substantially in the form attached hereto as
EXHIBIT "Z" and made a part hereof; and the term "Permitted Exceptions" as to
the Capital One Property shall also mean and include the Capital One Lake
Easement Deed substantially in the form attached hereto as Exhibit "AA" and made
a part hereof.
"Personal Property" shall mean the Wells Affiliate Personal Property
and the Wells OP Personal Property.
"Post Effective Date Encumbrances" shall mean all encumbrances to title
to the Properties, other than the matters identified in clauses (a)-(e) of the
definition of "Monetary Objections" which first encumber title to any of the
Properties by act or omission of Seller or any of Seller-Related Entities, which
act or omission was committed or accrued after the Effective Date of this
Agreement and in violation or breach by any Seller or any Seller-Related Entity
of this Agreement.
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Purchase and Sale Agreement
"Property" shall mean any individual Wells OP Property or Wells
Affiliate Property.
"Property of such Seller" shall refer to the Wells OP Property as to
Wells OP, the AT&T (OK) Property as to Wells Fund XII - REIT JV, the Americredit
Property and the John Wiley Property as to Wells Fund XIII - REIT JV, the Alstom
Power Property as to Wells Virginia REIT, the Bank of America Property as to
Wells Brea, the Daimler Chrysler Property as to Wells Westlake, the Dana
(Farmington Hills) Property as to Wells Farmington Hills, the Dana (Kalamazoo)
Property as to Dana Kalamazoo, the EDS Property as to Wells EDS, and the Gartner
Office Building Property as to Wells Funds XI and XII - REIT JV.
"Property Management Agreement" and "Property Management Agreements"
shall mean any one or more of those certain third party management agreements
more particularly described on Exhibit "Q" attached hereto and made a part
hereof.
"Property Manager" and "Property Managers" shall mean any one or more
of the third party property managers retained by Sellers to provide property
management services with respect to the Property or Properties of such Seller
pursuant to the Property Management Agreements described on the attached Exhibit
"Q".
"Properties" shall mean the Wells OP Properties and the Wells Affiliate
Properties collectively.
"Properties of such Seller" shall refer to the Wells OP Properties as
to Wells OP, and to the Americredit Property and the John Wiley Property as to
Wells Fund XIII - REIT JV.
"Purchase Price" shall be the amount specified in Section 2.5 hereof.
"Purchaser-Related Entities" shall have the meaning ascribed thereto in
Section 11.1 hereof.
"Purchaser-Waived Breach" shall have the meaning ascribed thereto in
Section 11.3 hereof.
"Purchaser's Certificate" shall have the meaning ascribed thereto in
Section 5.2(p) hereof.
"Purchaser's Counsel" shall mean Paul, Hastings, Janofsky & Walker,
LLP, 75 East 55th Street, New York, New York 10022, Attention: Katherine B.
Lipton.
"Purchaser's Title Commitment" and "Purchaser's Title Commitments"
shall have the meanings ascribed thereto in Section 3.4 hereof.
"Real Estate Transfer Tax" and "Real Estate Transfer Taxes" shall mean
the transfer tax, excise tax, documentary stamp tax or similar tax (however
denominated) which may be imposed by the state, county and/or municipality in
which each applicable Property is located
23
Purchase and Sale Agreement
and be payable in connection with the conveyance of such Property by the
applicable Seller to Purchaser hereunder.
"Right of Entry Agreement" shall mean that certain Right of Entry
Agreement, dated as of December 29, 2004 (as amended), between and among Sellers
and Purchaser.
"ROFO/ROFR Endorsement" shall have the meaning ascribed thereto in
Section 2.7(b) hereof.
"ROFO/ROFR Party" and "ROFO/FOFR Parties" shall have the meanings
ascribed thereto in Section 4.1(f) hereof.
"ROFO/ROFR Rights" shall have the meaning ascribed thereto in Section
2.7(b) hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Security Deposits" shall mean, with respect to the Properties, any
security deposits, rent or damage deposits or similar amounts (other than rent
paid for the month in which the Closing occurs) actually held by Wells OP or the
applicable Wells Affiliate with respect to any of the Leases affecting each
Property owned by Wells OP or such Wells Affiliate.
"Seller-Related Entities" shall have the meaning ascribed thereto in
Section 11.2 hereof.
"Seller's Affidavit" shall mean the form of owner's affidavit to be
given by each of the Sellers at Closing to the Title Company in the form
attached hereto as SCHEDULE 13.
"Seller's Certificate" shall mean the form of certificate to be
executed and delivered by each of the Sellers to Purchaser at the Closing with
respect to the truth and accuracy of such Seller's warranties and
representations contained in this Agreement (modified and updated as the
circumstances require), in the form attached hereto as SCHEDULE 14.
"Seller's Counsel" shall mean Troutman Sanders LLP, Bank of America
Plaza, Suite 5200, 600 Peachtree Street, N.E., Atlanta, Georgia 30308-2216,
Attention: John W. Griffin and Leslie Fuller Secrest.
"Seller's Estoppel" and "Sellers' Estoppels" shall mean estoppel
certificates in the forms attached hereto as SCHEDULE 16 and made a part hereof,
which may be executed and delivered by certain Sellers at Closing as
contemplated in Sections 6.1(g) and 6.1(h) hereof.
"Seller's Partial Termination Notice" shall have the meaning ascribed
thereto in Section 6.2(d) hereof.
"Seller's Title Commitment" and "Sellers' Title Commitments" shall have
the meanings ascribed thereto in Section 3.4 hereof.
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Purchase and Sale Agreement
"Service Contracts" shall mean with respect to each applicable Seller
all those certain contracts and agreements more particularly described as
Service Contracts on EXHIBIT "L" attached hereto and made a part hereof relating
to the repair, maintenance or operation of the Land, Improvements or Personal
Property owned by such Seller which will extend beyond the Closing Date,
including, without limitation, all equipment leases, and including those certain
service agreements in the process of being completed and executed as described
on the attached Exhibit "L", so long as the same shall be terminable on no more
than thirty (30) days' notice, and without payment of penalty or premium.
"SNDA" and "SNDAs" shall have the meanings ascribed thereto in Section
4.3(k) hereof.
"Subsequent Title Notice" shall have the meaning ascribed thereto in
Section 3.4 hereof.
"Survey" and "Surveys" shall have the meaning ascribed thereto in
Section 3.4 hereof.
"Tax Abatement Agreement" and "Tax Abatement Agreements" shall mean
each and any one or more of the following:
(a) with respect to the Kerr McGee Property, (i) that
certain Tax Abatement Agreement, dated on or about May 6, 2003, among the City
of Houston, Texas, Wells OP, Kerr-McGee Oil & Gas Onshore, LLC and Kerr-McGee
Oil & Gas Corporation, and (b) that certain Tax Abatement Agreement for Real
Property Located in the Kerr-McGee Oil & Gas Reinvestment Zone, dated May 6,
2003, among Harris County, the Harris County Flood Control District, the Harris
County Hospital District, the Port Authority of Harris County, Texas
(collectively as the "County"), Wells OP, Kerr-McGee Oil & Gas Onshore LLC and
Kerr-McGee Oil & Gas Corporation;
(b) with respect to the Pacificare Property, that certain
Tax Phase-In Agreement with the City of Antonio, dated April 12, 2000, among
PacifiCare Health Systems, Incorporated, Opus South Corporation and the City of
San Antonio, Texas.
"Taxes" shall have the meaning ascribed thereto in Section 5.4(a)
hereof.
"Tenant Estoppel Certificate" or "Tenant Estoppel Certificates" shall
mean certificates to be sought from the tenants under the Leases in
substantially the form attached hereto as EXHIBIT "M"; provided, however, if any
Lease provides for the form or content of an estoppel certificate from the
tenant thereunder, the Tenant Estoppel Certificate with respect to such Lease
may be in the form as called for therein.
"Tenant Inducement Costs" shall mean any out-of-pocket payments
required under a Lease to be paid by the landlord thereunder to or for the
benefit of the tenant thereunder which is in the nature of a tenant inducement,
including specifically, but without limitation, tenant improvement costs, lease
buyout payments, and moving, design, refurbishment and club
25
Purchase and Sale Agreement
membership allowances and costs. The term "Tenant Inducement Costs" shall not
include loss of income resulting from any free rental period, it being
understood and agreed that the Seller of the applicable Property shall bear the
loss resulting from any free rental period until the Closing Date and that
Purchaser shall bear such loss from and after the Closing Date.
"Tenant Notices of Sale" shall have the meaning ascribed thereto in
Section 5.1(cc) hereof.
"Title Company" shall mean Chicago Title Insurance Company.
"Title Commitment" and "Title Commitments" shall have the meanings
ascribed thereto in Section 3.4 hereof.
"Transfer Fees" shall mean the fee(s), if any, charged by the
respective issuers of the Letters of Credit to transfer the Letters of Credit
from the applicable Sellers to Purchaser as the beneficiary thereof.
"Transocean Property" shall mean that certain improved real property
located in Harris County, Texas, together with certain related personal and
intangible property, being the Wells OP Property identified as the "Transocean
Property" on EXHIBIT "A-1" attached hereto and made a part hereof, together with
the related Wells OP Improvements, Wells OP Personal Property, and Wells OP
Intangible Property, and all right, title and interest of Wells OP as "landlord"
or "lessor" in and to the Leases, any guaranties of the Leases and the Security
Deposits, with respect to such Wells OP Land and Wells OP Improvements.
"Travelers Express Property" shall mean that certain improved real
property located in Lakewood, Jefferson County, Colorado, together with certain
related personal and intangible property, being the Wells OP Property identified
as the "Travelers Express Property" on EXHIBIT "A-1" attached hereto and made a
part hereof, together with the related Wells OP Improvements, Wells OP Personal
Property, and Wells OP Intangible Property, and all right, title and interest of
Wells OP as "landlord" or "lessor" in and to the Leases, any guaranties of the
Leases and the Security Deposits, with respect to such Wells OP Land and Wells
OP Improvements.
"Wells Affiliate" and "Wells Affiliates" shall mean each and any one or
more of Wells Funds XII - REIT JV, Wells Fund XIII - REIT JV, Wells Virginia
REIT, Wells Brea, Wells Westlake, Wells Farmington Hills, Wells Kalamazoo, Wells
EDS and Wells Funds XI and XII REIT JV.
"Wells Affiliate Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the Wells Affiliate Lands,
including without limitation, all parking areas and facilities, improvements and
fixtures located on the Wells Affiliate Lands.
"Wells Affiliate Intangible Property" shall mean all intangible
property, if any, owned by each applicable Wells Affiliate and related to the
Wells Affiliate Land and Wells Affiliate Improvements owned by such Wells
Affiliate, including without limitation, the rights and
26
Purchase and Sale Agreement
interests, if any, of each Wells Affiliate in and to the following (to the
extent assignable): (i) all assignable plans and specifications and other
architectural and engineering drawings for the Wells Affiliate Lands and Wells
Affiliate Improvements; (ii) all assignable warranties or guaranties given or
made in respect of the Wells Affiliate Improvements or Wells Affiliate Personal
Property; (iii) all transferable consents, authorizations, variances or waivers,
licenses, permits and approvals from any governmental or quasi-governmental
agency, department, board, commission, bureau or other entity or instrumentality
solely in respect of the Wells Affiliate Lands or Wells Affiliate Improvements;
and (iv) all of the right, title and interest of each applicable Wells Affiliate
in and to all assignable Service Contracts with respect to the Wells Affiliate
Properties owned by each such Wells Affiliate that Purchaser agrees to assume
(or is deemed to have agreed to assume).
"Wells Affiliate Lands" shall mean those certain tracts or parcels of
real property which are more particularly identified on EXHIBIT "A-2" attached
hereto as the Alstom Power Property, the AmeriCredit Property, the Bank of
America Property, the Daimler Chrysler Property, the Dana (Farmington Hills)
Property, the AT&T (OK) Property, the Dana (Kalamazoo) Property, the EDS
Property, the Gartner Office Building Property and the John Wiley Property,
together with all rights, privileges and easements appurtenant to each of said
real properties, and all right, title and interest, if any, of each applicable
Wells Affiliate in and to any land lying in the bed of any street, road, alley
or right-of-way, open or closed, adjacent to or abutting the Wells Affiliate
Land owned by such Wells Affiliate.
"Wells Affiliate Personal Property" shall mean all furniture (including
common area furnishings and interior landscaping items), carpeting, draperies,
appliances, personal property (excluding the computer software which either is
licensed to a Wells Affiliate or which such Wells Affiliate deems proprietary [a
listing of such excluded computer software being set forth on EXHIBIT "W"
attached hereto and made a part hereof]), machinery, apparatus and equipment
owned by each Wells Affiliate and currently used exclusively in the operation,
repair and maintenance of the Wells Affiliate Land and Wells Affiliate
Improvements owned by such Wells Affiliate and situated thereon, including,
without limitation, those specific items of personal property (if any) more
particularly described on EXHIBIT "B" attached hereto and made a part hereof,
and all non-confidential books, records and files (excluding any appraisals,
budgets, strategic plans for the Wells Affiliate Properties, internal analyses,
information regarding the marketing of the Wells Affiliate Properties for sale,
submissions relating to obtaining of corporate authorization for any Wells
Affiliate, attorney and accountant work product, attorney-client privileged
documents, or other similar information in the possession or control of any
Wells Affiliate or any Wells Affiliate property manager which such Wells
Affiliate reasonably deems proprietary) relating to the Wells Affiliate Lands
and Wells Affiliate Improvements owned by each applicable Wells Affiliate;
provided, however, the property described on EXHIBIT "B-2" attached hereto and
made a part hereof is expressly excluded from the definition of Wells Affiliate
Personal Property. The Wells Affiliate Personal Property does not include any
property owned by tenants, contractors or licensees, and shall be conveyed by
each applicable Wells Affiliate to Purchaser subject to depletions, replacements
and additions in the ordinary course of such Wells Affiliate's business.
27
Purchase and Sale Agreement
"Wells Affiliate Property" shall mean and refer to any Wells Affiliate
Land, together with the items set forth in Section 2.1(b), (c), (d) and (e)
hereof with respect to such Wells Affiliate Land.
"Wells Affiliate Properties" shall have the meaning ascribed thereto in
Section 2.1 hereof.
"Wells Brea" shall mean Wells Brea I, L.P., a Delaware limited
partnership.
"Wells Brea Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the Wells Brea Land,
including, without limitation, all parking areas and facilities, improvements
and fixtures located on such Wells Brea Land.
"Wells Brea Intangible Property" shall mean all intangible property, if
any, owned by Wells Brea and related to the Wells Brea Land identified on
EXHIBIT "A-2" as the Bank of America Property and to the Wells Brea Improvements
located on the Wells Brea Land, including, without limitation, the rights and
interests, if any, in and to the following (to the extent assignable): (i) all
assignable plans and specifications and other architectural and engineering
plans for such Wells Brea Land and the Wells Brea Improvements located thereon;
(ii) all assignable warranties or guaranties given or made in respect of the
Wells Brea Improvements or Wells Brea Personal Property; (iii) all transferable
consents, authorizations, variances or waivers, licenses, permits and approvals
from any governmental or quasi-governmental agency, department, board,
commission, bureau or other entity or instrumentality solely in respect of the
Wells Brea Land or Wells Brea Improvements located thereon; and (iv) all of the
right, title and interest of Wells Brea in and to all assignable Service
Contracts with respect to the Wells Brea Property that Purchaser agrees to
assume (or is deemed to have agreed to assume).
"Wells Brea Land" shall mean those certain tracts or parcels of real
property more particularly described on EXHIBIT "A-2" attached hereto and made a
part hereof as the Bank of America Property.
"Wells Brea Personal Property" shall mean all furniture (including
common area furnishings and interior landscaping items), carpeting, draperies,
appliances, personal property (excluding the computer software which is either
licensed to Wells Brea or which such Wells Affiliate deems proprietary [a
listing of such excluded computer software being set forth on EXHIBIT "W"
attached hereto and made a part hereof]), machinery, apparatus and equipment
owned by such Wells Affiliate and currently used exclusively in the operation,
repair and maintenance of the Wells Brea Land and Wells Brea Improvements and
owned by such Wells Affiliate and situated thereon, including, without
limitation, those specific items of personal property (if any) more particularly
described on EXHIBIT "B" attached hereto and made a part hereof, and all
non-confidential books, records and files (excluding any appraisals, budgets,
strategic plans for such Wells Brea Property, internal analyses, information
regarding the marketing of the Wells Brea Property for sale, submissions
relating to obtaining of corporate authorization for Wells Brea, attorney and
accountant work product, attorney-client privileged documents, or other similar
information in the possession or control of Wells Brea or any third party
property manager which such Wells Affiliate reasonably deems proprietary)
relating to the
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Purchase and Sale Agreement
Wells Brea Land and Wells Brea Improvements; provided, however, the property
described on EXHIBIT "B-2" attached hereto and made a part hereof is expressly
excluded from the definition of Wells Brea Personal Property. The Wells Brea
Personal Property does not include any property owned by tenants, contractors or
licensees, and shall be conveyed by Wells Brea to Purchaser subject to
depletions, replacements and additions in the ordinary course of Wells Brea's
business.
"Wells Brea Property" shall mean and refer to the Wells Brea Land,
together with the items set forth in Sections 2.1(b), (c), (d) and (e) with
respect to the Wells Brea Land.
"Wells EDS" shall mean Wells - EDS Des Moines, L.P., a Texas limited
partnership.
"Wells EDS Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the Wells EDS Land,
including, without limitation, all parking areas and facilities, improvements
and fixtures located on such Wells EDS Land.
"Wells EDS Intangible Property" shall mean all intangible property, if
any, owned by Wells EDS and related to the Wells EDS Land identified on EXHIBIT
"A-2" as the EDS Property and to the Wells EDS Improvements located on the Wells
EDS Land, including, without limitation, the rights and interests, if any, in
and to the following (to the extent assignable): (i) all assignable plans and
specifications and other architectural and engineering plans for such Wells EDS
Land and the Wells EDS Improvements located thereon; (ii) all assignable
warranties or guaranties given or made in respect of the Wells EDS Improvements
or Wells EDS Personal Property; (iii) all transferable consents, authorizations,
variances or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Wells EDS Land or Wells EDS
Improvements located thereon; and (iv) all of the right, title and interest of
Wells EDS in and to all assignable Service Contracts with respect to the Wells
EDS Property that Purchaser agrees to assume (or is deemed to have agreed to
assume).
"Wells EDS Land" shall mean those certain tracts or parcels of real
property more particularly described on EXHIBIT "A-2" attached hereto and made a
part hereof as the EDS Property.
"Wells EDS Personal Property" shall mean all furniture (including
common area furnishings and interior landscaping items), carpeting, draperies,
appliances, personal property (excluding the computer software which is either
licensed to Wells EDS or which such Wells Affiliate deems proprietary [a listing
of such excluded computer software being set forth on EXHIBIT "W" attached
hereto and made a part hereof]), machinery, apparatus and equipment owned by
such Wells Affiliate and currently used exclusively in the operation, repair and
maintenance of the Wells EDS Land and Wells EDS Improvements and owned by such
Wells Affiliate and situated thereon, including, without limitation, those
specific items of personal property (if any) more particularly described on
EXHIBIT "B" attached hereto and made a part hereof, and all non-confidential
books, records and files (excluding any appraisals, budgets, strategic plans for
such Wells EDS Property, internal analyses, information regarding the marketing
of the Wells EDS Property for sale, submissions relating to obtaining of
corporate
29
Purchase and Sale Agreement
authorization for Wells EDS, attorney and accountant work product,
attorney-client privileged documents, or other similar information in the
possession or control of Wells EDS or any third party property manager which
such Wells Affiliate reasonably deems proprietary) relating to the Wells EDS
Land and Wells EDS Improvements; provided, however, the property described on
EXHIBIT "B-2" attached hereto and made a part hereof is expressly excluded from
the definition of Wells EDS Personal Property. The Wells EDS Personal Property
does not include any property owned by tenants, contractors or licensees, and
shall be conveyed by Wells EDS to Purchaser subject to depletions, replacements
and additions in the ordinary course of Wells EDS's business.
"Wells EDS Property" shall mean and refer to the Wells EDS Land,
together with the items set forth in Section 2.1(b), (c), (d) and (e) with
respect to the Wells EDS Land.
"Wells Farmington Hills" shall mean Danacq Farmington Hills LLC, a
Delaware limited liability company.
"Wells Farmington Hills Improvements" shall mean all buildings,
structures and improvements now or on the Closing Date situated on the Wells
Farmington Hills Land, including, without limitation, all parking areas and
facilities, improvements and fixtures located on such Wells Farmington Hills
Land.
"Wells Farmington Hills Intangible Property" shall mean all intangible
property, if any, owned by Wells Farmington Hills and related to the Wells
Farmington Hills Land identified on EXHIBIT "A-2" as the Dana (Farmington Hills)
Property and to the Wells Farmington Hills Improvements located on the Wells
Farmington Hills Land, including, without limitation, the rights and interests,
if any, in and to the following (to the extent assignable): (i) all assignable
plans and specifications and other architectural and engineering plans for such
Wells Farmington Hills Land and the Wells Farmington Hills Improvements located
thereon; (ii) all assignable warranties or guaranties given or made in respect
of the Wells Farmington Hills Improvements or Wells Farmington Hills Personal
Property; (iii) all transferable consents, authorizations, variances or waivers,
licenses, permits and approvals from any governmental or quasi-governmental
agency, department, board, commission, bureau or other entity or instrumentality
solely in respect of the Wells Farmington Hills Land or Wells Farmington Hills
Improvements located thereon; and (iv) all of the right, title and interest of
Wells Farmington Hills in and to all assignable Service Contracts with respect
to the Wells Farmington Hills Property that Purchaser agrees to assume (or is
deemed to have agreed to assume).
"Wells Farmington Hills Land" shall mean that certain tract or parcel
of real property more particularly described on EXHIBIT "A-2" attached hereto
and made a part hereof as the Dana (Farmington Hills) Property.
"Wells Farmington Hills Personal Property" shall mean all furniture
(including common area furnishings and interior landscaping items), carpeting,
draperies, appliances, personal property (excluding the computer software which
is either licensed to Wells Farmington Hills or which such Wells Affiliate deems
proprietary [a listing of such excluded computer software being set forth on
EXHIBIT "W" attached hereto and made a part hereof]), machinery,
30
Purchase and Sale Agreement
apparatus and equipment owned by such Wells Affiliate and currently used
exclusively in the operation, repair and maintenance of the Wells Farmington
Hills Land and Wells Farmington Hills Improvements and owned by such Wells
Affiliate and situated thereon, including, without limitation, those specific
items of personal property (if any) more particularly described on EXHIBIT "B"
attached hereto and made a part hereof, and all non-confidential books, records
and files (excluding any appraisals, budgets, strategic plans for such Wells
Farmington Hills Property, internal analyses, information regarding the
marketing of the Wells Farmington Hills Property for sale, submissions relating
to obtaining of corporate authorization for Wells Farmington Hills, attorney and
accountant work product, attorney-client privileged documents, or other similar
information in the possession or control of Wells Farmington Hills or any third
party property manager which such Wells Affiliate reasonably deems proprietary)
relating to the Wells Farmington Hills Land and Wells Farmington Hills
Improvements; provided, however, the property described on EXHIBIT "B-2"
attached hereto and made a part hereof is expressly excluded from the definition
of Wells Farmington Hills Personal Property. The Wells Farmington Hills Personal
Property does not include any property owned by tenants, contractors or
licensees, and shall be conveyed by Wells Farmington Hills to Purchaser subject
to depletions, replacements and additions in the ordinary course of Wells
Farmington Hills' business.
"Wells Farmington Hills Property" shall mean and refer to the Wells
Farmington Hills Land, together with the items set forth in Sections 2.1(b),
(c), (d) and (e) with respect to the Wells Farmington Hills Land.
"Wells Fund XII - REIT JV" shall mean Wells Fund XII - REIT Joint
Venture Partnership, a Georgia general partnership.
"Wells Fund XII - REIT JV Improvements" shall mean all buildings,
structures and improvements now or on the Closing Date situated on the
applicable Wells Fund XII - REIT JV Land including, without limitation, all
parking areas and facilities, improvements and fixtures located on such Wells
Fund XII - REIT JV Land.
"Wells Fund XII - REIT JV Intangible Property" shall mean all
intangible property, if any, owned by Wells XII - REIT JV and related to the
Wells Fund XII - REIT JV Land identified on EXHIBIT "A-2" as the AT&T (OK)
Property and to the Wells Fund XII - REIT JV Improvements located on the AT&T
(OK) Property, including, without limitation, the rights and interests, if any,
in and to the following (to the extent assignable): (i) all assignable plans and
specifications and other architectural and engineering plans for such Wells Fund
XII - REIT JV Land and the Wells Fund XII - REIT JV Improvements located on such
land; (ii) all assignable warranties or guaranties given or made in respect of
the Wells Fund XII - REIT JV Improvements or Wells Fund XII - REIT JV Personal
Property; (iii) all transferable consents, authorizations, variances or waivers,
licenses, permits and approvals from any governmental or quasi-governmental
agency, department, board, commission, bureau or other entity or instrumentality
solely in respect of such Wells Fund XII - REIT JV Land or Wells Fund XII - JV
Improvements located thereon; and (iv) all of the right, title and interest of
Wells Funds XII - REIT JV in and to all assignable Service Contracts with
respect to the Wells Fund XII - REIT JV Property that Purchaser agrees to assume
(or is deemed to have agreed to assume).
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Purchase and Sale Agreement
"Wells Fund XII - REIT JV Land" shall mean that certain tract or parcel
of real property more particularly described on EXHIBIT "A-2" attached hereto
and made a part hereof as the AT&T (OK) Property.
"Wells Fund XII - REIT JV Personal Property" shall mean all furniture
(including common area furnishings and interior landscaping items), carpeting,
draperies, appliances, personal property (excluding the computer software which
is either licensed to Wells Fund XII - REIT JV or which such Wells Affiliate
deems proprietary [a listing of such excluded computer software being set forth
on EXHIBIT "W" attached hereto and made a part hereof]), machinery, apparatus
and equipment owned by such Wells Affiliate and currently used exclusively in
the operation, repair and maintenance of the Wells Fund XII - REIT JV Land and
Wells Fund XII - REIT JV Improvements and owned by such Wells Affiliate and
situated thereon, including, without limitation, those specific items of
personal property (if any) more particularly described on EXHIBIT "B" attached
hereto and made a part hereof, and all non-confidential books, records and files
(excluding any appraisals, budgets, strategic plans for the Wells Fund XII -
REIT JV Property, internal analyses, information regarding the marketing of the
Wells Fund XII - REIT JV Property for sale, submissions relating to obtaining of
corporate authorization for Wells Fund XII - REIT JV, attorney and accountant
work product, attorney-client privileged documents, or other similar information
in the possession or control of Wells Fund XII - REIT JV or any third party
property manager which such Wells Affiliate reasonably deems proprietary)
relating to the Wells Fund XII - REIT JV Land and Wells Fund XII - REIT JV
Improvements; provided, however, the property described on EXHIBIT "B-2"
attached hereto and made a part hereof is expressly excluded from the definition
of Wells Fund XII - REIT JV Personal Property. The Wells Fund XII - REIT JV
Personal Property does not include any property owned by tenants, contractors or
licensees, and shall be conveyed by Wells Fund XII - REIT JV to Purchaser
subject to depletions, replacements and additions in the ordinary course of
Wells XII - REIT JV's business.
"Wells Fund XII - REIT JV Property" shall mean and refer to the Wells
Fund XII - REIT JV Land, together with the items set forth in Sections 2.1(b),
(c), (d) and (e) with respect to the Wells Fund XII - REIT JV Land.
"Wells Fund XIII - REIT JV" shall mean Wells Fund XIII - REIT Joint
Venture Partnership, a Georgia general partnership.
"Wells Fund XIII - REIT JV Improvements" shall mean all buildings,
structures and improvements now or on the Closing Date situated, respectively,
on the applicable Wells Fund XIII - REIT JV Lands, including, without
limitation, all parking areas and facilities, improvements and fixtures located
on such Wells Fund XIII - REIT JV Lands.
"Wells Fund XIII - REIT JV Intangible Property" shall mean all
intangible property, if any, owned by Wells XIII - REIT JV and related,
respectively, to the Wells Fund XIII - REIT JV Land identified on EXHIBIT "A-2"
as the Americredit Property and the John Wiley Property and to the Wells Fund
XIII - REIT JV Improvements located respectively on the Americredit Property and
the John Wiley Property, including, without limitation, the rights and
interests, if any, in and to the following (to the extent assignable): (i) all
assignable plans and specifications
32
Purchase and Sale Agreement
and other architectural and engineering plans for such Wells Fund XIII - REIT JV
Land and the Wells Fund XIII - REIT JV Improvements located on such land; (ii)
all assignable warranties or guaranties given or made in respect of the
applicable Wells Fund XIII - REIT JV Improvements or Wells Fund XIII - REIT JV
Personal Property; (iii) all transferable consents, authorizations, variances or
waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of such Wells Fund XIII - REIT JV Lands or
Wells Fund XIII - JV Improvements located thereon; and (iv) all of the right,
title and interest of Wells Funds XIII - REIT JV in and to all assignable
Service Contracts with respect to each of such Wells Fund XIII - REIT JV
Properties owned by Wells Fund XIII - REIT JV that Purchaser agrees to assume
(or is deemed to have agreed to assume).
"Wells Fund XIII - REIT JV Land" and "Wells Fund XIII - REIT JV Lands"
shall mean those certain tracts or parcels of real property more particularly
and respectively described on EXHIBIT "A-2" attached hereto and made a part
hereof as the Americredit Property and the John Wiley Property.
"Wells Fund XIII - REIT JV Personal Property" shall mean all furniture
(including common area furnishings and interior landscaping items), carpeting,
draperies, appliances, personal property (excluding the computer software which
is either licensed to Wells Fund XIII - REIT JV or which such Wells Affiliate
deems proprietary [a listing of such excluded computer software being set forth
on EXHIBIT "W" attached hereto and made a part hereof]), machinery, apparatus
and equipment owned by such Wells Affiliate and currently used exclusively in
the operation, repair and maintenance of either of the Wells Fund XIII - REIT JV
Lands and Wells Fund XIII - REIT JV Improvements and owned by such Wells
Affiliate and situated thereon, including, without limitation, those specific
items of personal property (if any) more particularly described on EXHIBIT "B"
attached hereto and made a part hereof, and all non-confidential books, records
and files (excluding any appraisals, budgets, strategic plans for such Wells
Fund XIII - REIT JV Properties, internal analyses, information regarding the
marketing of the Wells Fund XIII - REIT JV Properties for sale, submissions
relating to obtaining of corporate authorization for Wells Fund XIII - REIT JV,
attorney and accountant work product, attorney-client privileged documents, or
other similar information in the possession or control of Wells Fund XIII - REIT
JV or any third party property manager which such Wells Affiliate reasonably
deems proprietary) relating to the Wells Fund XIII - REIT JV Lands and Wells
Fund XIII - REIT JV Improvements; provided, however, the property described on
EXHIBIT "B-2" attached hereto and made a part hereof is expressly excluded from
the definition of Wells Fund XIII - REIT JV Personal Property. The Wells Fund
XIII - REIT JV Personal Property does not include any property owned by tenants,
contractors or licensees, and shall be conveyed by Wells Fund XIII - REIT JV to
Purchaser subject to depletions, replacements and additions in the ordinary
course of Wells XIII - REIT JV's business.
"Wells Fund XIII - REIT JV Property" shall mean and refer to the Wells
Fund XIII - REIT JV Lands, together with the items set forth in Sections 2.1(b),
(c), (d) and (e) with respect to such Wells Fund XIII - REIT JV Land.
33
Purchase and Sale Agreement
"Wells Funds XI and XII REIT JV" shall mean The Wells Funds XI - Fund
XII - REIT Joint Venture Partnership, a Georgia general partnership.
"Wells Funds XI and XII REIT JV Improvements" shall mean all buildings,
structures and improvements now or on the Closing Date situated on the Wells
Funds XI and XII REIT JV Land, including, without limitation, all parking areas
and facilities, improvements and fixtures located on such Wells Funds XI and XII
REIT JV Land.
"Wells Funds XI and XII REIT JV Intangible Property" shall mean all
intangible property, if any, owned by Wells Funds XI and XII REIT JV and related
to the Wells Funds XI and XII REIT JV Land identified on EXHIBIT "A-2" as the
Gartner Property and to the Wells Funds XI and XII REIT JV Improvements located
on the Wells Funds XI and XII REIT JV Land, including, without limitation, the
rights and interests, if any, in and to the following (to the extent
assignable): (i) all assignable plans and specifications and other architectural
and engineering plans for such Wells Funds XI and XII REIT JV Land and the Wells
Funds XI and XII REIT JV Improvements located thereon; (ii) all assignable
warranties or guaranties given or made in respect of the Wells Funds XI and XII
REIT JV Improvements or Wells Funds XI and XII REIT JV Personal Property; (iii)
all transferable consents, authorizations, variances or waivers, licenses,
permits and approvals from any governmental or quasi-governmental agency,
department, board, commission, bureau or other entity or instrumentality solely
in respect of the Wells Funds XI and XII REIT JV Land or Wells Funds XI and XII
REIT JV Improvements located thereon; and (iv) all of the right, title and
interest of Wells Funds XI and XII REIT JV in and to all assignable Service
Contracts with respect to the Wells Funds XI and XII REIT JV Property that
Purchaser agrees to assume (or is deemed to have agreed to assume).
"Wells Funds XI and XII REIT JV Land" shall mean those certain tracts
or parcels of real property more particularly described on EXHIBIT "A-2"
attached hereto and made a part hereof as the Gartner Property.
"Wells Funds XI and XII REIT JV Personal Property" shall mean all
furniture (including common area furnishings and interior landscaping items),
carpeting, draperies, appliances, personal property (excluding the computer
software which is either licensed to Wells Funds XI and XII REIT JV or which
such Wells Affiliate deems proprietary [a listing of such excluded computer
software being set forth on EXHIBIT "W" attached hereto and made a part
hereof]), machinery, apparatus and equipment owned by such Wells Affiliate and
currently used exclusively in the operation, repair and maintenance of the Wells
Funds XI and XII REIT JV Land and Wells Funds XI and XII REIT JV Improvements
and owned by such Wells Affiliate and situated thereon, including, without
limitation, those specific items of personal property (if any) more particularly
described on EXHIBIT "B" attached hereto and made a part hereof, and all
non-confidential books, records and files (excluding any appraisals, budgets,
strategic plans for such Wells Funds XI and XII REIT JV Property, internal
analyses, information regarding the marketing of the Wells Funds XI and XII REIT
JV Property for sale, submissions relating to obtaining of corporate
authorization for Wells Funds XI and XII REIT JV, attorney and accountant work
product, attorney-client privileged documents, or other similar information in
the possession or control of Wells Funds XI and XII REIT JV or any third party
property manager which such Wells Affiliate reasonably deems proprietary)
relating to the Wells Funds
34
Purchase and Sale Agreement
XI and XII REIT JV Land and Wells Funds XI and XII REIT JV Improvements;
provided, however, the property described on EXHIBIT "B-2" attached hereto and
made a part hereof is expressly excluded from the definition of Wells Funds XI
and XII REIT JV Personal Property. The Wells Funds XI and XII REIT JV Personal
Property does not include any property owned by tenants, contractors or
licensees, and shall be conveyed by Wells Funds XI and XII REIT JV to Purchaser
subject to depletions, replacements and additions in the ordinary course of
Wells Funds XI and XII REIT JV's business.
"Wells Funds XI and XII REIT JV Property" shall mean and refer to the
Wells Funds XI and XII REIT JV Land, together with the items set forth in
Sections 2.1(b), (c), (d) and (e) with respect to the Wells Funds XI and XII
REIT JV Land.
"Wells Kalamazoo" shall mean Danacq Kalamazoo LLC, a Delaware limited
liability company.
"Wells Kalamazoo Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the Wells Kalamazoo Land,
including, without limitation, all parking areas and facilities, improvements
and fixtures located on such Wells Kalamazoo Land.
"Wells Kalamazoo Intangible Property" shall mean all intangible
property, if any, owned by Wells Kalamazoo and related to the Wells Kalamazoo
Land identified on EXHIBIT "A-2" as the Dana (Kalamazoo) Property and to the
Wells Kalamazoo Improvements located on the Wells Kalamazoo Land, including,
without limitation, the rights and interests, if any, in and to the following
(to the extent assignable): (i) all assignable plans and specifications and
other architectural and engineering plans for such Wells Kalamazoo Land and the
Wells Kalamazoo Improvements located thereon; (ii) all assignable warranties or
guaranties given or made in respect of the Wells Kalamazoo Improvements or Wells
Kalamazoo Personal Property; (iii) all transferable consents, authorizations,
variances or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Wells Kalamazoo Land or Wells
Kalamazoo Improvements located thereon; and (iv) all of the right, title and
interest of Wells Kalamazoo in and to all assignable Service Contracts with
respect to the Wells Kalamazoo Property that Purchaser agrees to assume (or is
deemed to have agreed to assume).
"Wells Kalamazoo Land" shall mean that certain tract or parcel of real
property more particularly described on EXHIBIT "A-2" attached hereto and made a
part hereof as the Dana (Kalamazoo) Property.
"Wells Kalamazoo Personal Property" shall mean all furniture (including
common area furnishings and interior landscaping items), carpeting, draperies,
appliances, personal property (excluding the computer software which is either
licensed to Wells Kalamazoo or which such Wells Affiliate deems proprietary [a
listing of such excluded computer software being set forth on EXHIBIT "W"
attached hereto and made a part hereof]), machinery, apparatus and equipment
owned by such Wells Affiliate and currently used exclusively in the operation,
repair and maintenance of the Wells Kalamazoo Land and Wells Kalamazoo
Improvements and owned
35
Purchase and Sale Agreement
by such Wells Affiliate and situated thereon, including, without limitation,
those specific items of personal property (if any) more particularly described
on EXHIBIT "B" attached hereto and made a part hereof, and all non-confidential
books, records and files (excluding any appraisals, budgets, strategic plans for
such Wells Kalamazoo Property, internal analyses, information regarding the
marketing of the Wells Kalamazoo Property for sale, submissions relating to
obtaining of corporate authorization for Wells Kalamazoo, attorney and
accountant work product, attorney-client privileged documents, or other similar
information in the possession or control of Wells Kalamazoo or any third party
property manager which such Wells Affiliate reasonably deems proprietary)
relating to the Wells Kalamazoo Land and Wells Kalamazoo Improvements; provided,
however, the property described on EXHIBIT "B-2" attached hereto and made a part
hereof is expressly excluded from the definition of Wells Kalamazoo Personal
Property. The Wells Kalamazoo Personal Property does not include any property
owned by tenants, contractors or licensees, and shall be conveyed by Wells
Kalamazoo to Purchaser subject to depletions, replacements and additions in the
ordinary course of Wells Kalamazoo's business.
"Wells Kalamazoo Property" shall mean and refer to the Wells Kalamazoo
Land, together with the items set forth in Sections 2.1(b), (c), (d) and (e)
with respect to the Wells Kalamazoo Land.
"Wells OP" shall mean Wells Operating Partnership, L.P., a Delaware
limited partnership.
"Wells OP Ground Lease" and "Wells OP Ground Leases" shall mean each
and any one or more of the ASML Sub-Ground Lease, the Ingram Micro Bond Lease
and the ISS Bond Lease and all amendments and modifications thereto.
"Wells OP Ground Lease Land" and "Wells OP Ground Lease Lands" shall
mean any one or more of those certain tracts or parcels of real property more
particularly described on EXHIBIT "A-3" attached hereto and made a part hereof
as the ASML Property in Maricopa County, Arizona, the Ingram Micro Property in
Shelby County, Tennessee, and the ISS Property in Atlanta, Fulton County,
Georgia.
"Wells OP Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the applicable Wells OP
Land, including without limitation, all parking areas and facilities,
improvements and fixtures located on each applicable Wells OP Land.
"Wells OP Intangible Property" shall mean all intangible property, if
any, owned by Wells OP and related to each applicable Wells OP Property,
including without limitation, the rights and interests, if any, of Wells OP in
and to the following (to the extent assignable): (i) all assignable plans and
specifications and other architectural and engineering drawings for the Wells OP
Improvements located on the applicable Wells OP Land; (ii) all assignable
warranties or guaranties given or made in respect of such Wells OP Improvements
or Wells OP Personal Property; (iii) all transferable consents, authorizations,
variances or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board,
36
Purchase and Sale Agreement
commission, bureau or other entity or instrumentality solely in respect of the
applicable Wells OP Lands; and (iv) all of the right, title and interest of
Wells OP in and to all assignable Service Contracts with respect to the
applicable Wells OP Land to which such Service Contracts relate and that
Purchaser agrees to assume (or is deemed to have agreed to assume).
"Wells OP Lands" shall mean all those certain tracts or parcels of real
property which are more particularly identified on EXHIBIT "A-1" attached hereto
as the Allstate Property in Decatur Township, Marion County, Indiana, the AT&T
(PA) Property in Susquehanna Township, Dauphin County, Pennsylvania, the Capital
One Property in Henrico County, Virginia, the Dial Corporation Property, in
Maricopa County, Arizona, the Experian Property in Collin County, Texas, the
Gartner Surface Parking Property in Lee County, Florida, the IKON Property in
Harris County, Texas, the Kerr McGee Property in Harris County, Texas, the Kraft
Foods Property in Forsyth County, Georgia, the Lucent Property in Wake County,
North Carolina, the Metris Property in Tulsa County, Oklahoma, the Nissan
Property in the City of Irving, Dallas County, Texas, the Pacificare Property in
Bexar County, Texas, the Transocean Property in Harris County, Texas, and the
Travelers Express Property in Jefferson County, Colorado, and the Wells OP
Leasehold Interests in those certain tracts or parcels of land more particularly
described on the attached EXHIBIT "A-3" as the ASML Property in Maricopa County,
Arizona, the Ingram Micro Property in Shelby County, Tennessee, and the ISS
Property in Atlanta, Fulton County, Georgia, together with all rights,
privileges and easements appurtenant to each of said real properties or
leasehold estates, and all right, title and interest, if any, of Wells OP in and
to any land lying in the bed of any street, road, alley or right-of-way, open or
closed, adjacent to or abutting each applicable Wells OP Land.
"Wells OP Leasehold Interests" shall mean the interests of the "lessee"
existing under and by virtue of the ASML Sub-Ground Lease, the Ingram Micro Bond
Lease and the ISS Bond Lease.
"Wells OP Personal Property" shall mean all furniture (including common
area furnishings and interior landscaping items), carpeting, draperies,
appliances, personal property (excluding the computer software which either is
licensed to Wells OP or which Wells OP deems proprietary [a listing of such
excluded computer software being set forth on EXHIBIT "W" attached hereto and
made a part hereof]), machinery, apparatus and equipment owned by Wells OP and
currently used exclusively in the operation, repair and maintenance of the
applicable Wells OP Land and Wells OP Improvements and situated thereon,
including, without limitation, those specific items of personal property (if
any) more particularly described on EXHIBIT "B" attached hereto and made a part
hereof, and all non-confidential books, records and files (excluding any
appraisals, budgets, strategic plans for the Wells OP Properties, internal
analyses, information regarding the marketing of the Wells OP Properties for
sale, submissions relating to Wells OP's obtaining of corporate authorization,
attorney and accountant work product, attorney-client privileged documents, or
other similar information in the possession or control of Wells OP or Wells OP's
property managers which Wells OP reasonably deems proprietary) relating to the
Wells OP Land and Wells OP Improvements or Wells OP Leasehold Estates; provided,
however, the property described on EXHIBIT "B-1" attached hereto and made a part
hereof is expressly excluded from the definition of Wells OP Personal Property.
The Wells OP Personal Property does not include any property owned by tenants,
contractors or licensees, and shall be
37
Purchase and Sale Agreement
conveyed by Wells OP to Purchaser subject to depletions, replacements and
additions in the ordinary course of Wells OP's business.
"Wells OP Property" shall mean and refer to (x) the Wells OP Lands,
together with the items set forth in Section 2.2(b), (d), (e) and (f) hereof
with respect to each such Wells OP Land, or (y) Wells OP Ground Lease Land and
the interest of Wells OP under the Wells OP Ground Leases together with all the
rights of Wells OP under and pursuant to the Ingram Micro Bond Lease and the ISS
Bond Lease to purchase the fee simple title to the Land and Improvements subject
to each of said Wells OP Ground Leases, together with the items set forth in
Section 2.2(e) and (f) hereof with respect to the Wells OP Ground Lease Land.
"Wells OP Properties" shall have the meaning ascribed thereto in
Section 2.2 hereof.
"Wells Virginia REIT" shall mean Wells REIT, LLC, VA I, a Georgia
limited liability company.
"Wells Virginia REIT Improvements" shall mean all buildings, structures
and improvements now or on the Closing Date situated on the Wells Virginia REIT
Land, including, without limitation, all parking areas and facilities,
improvements and fixtures located on such Wells Virginia REIT Land.
"Wells Virginia REIT Intangible Property" shall mean all intangible
property, if any, owned by Wells Virginia REIT and related to the Wells Virginia
REIT Land identified on EXHIBIT "A-2" as the Alstom Power Property and to the
Wells Virginia REIT Improvements located on the Wells Virginia REIT Land,
including, without limitation, the rights and interests, if any, in and to the
following (to the extent assignable): (i) all assignable plans and
specifications and other architectural and engineering plans for such Wells
Virginia REIT Land and the Wells Virginia REIT Improvements located thereon;
(ii) all assignable warranties or guaranties given or made in respect of the
Wells Virginia REIT Improvements or Wells Virginia REIT Personal Property; (iii)
all transferable consents, authorizations, variances or waivers, licenses,
permits and approvals from any governmental or quasi-governmental agency,
department, board, commission, bureau or other entity or instrumentality solely
in respect of the Wells Virginia REIT Land or Wells Virginia REIT Improvements
located thereon; and (iv) all of the right, title and interest of Wells Virginia
REIT in and to all assignable Service Contracts with respect to the Wells
Virginia REIT Property that Purchaser agrees to assume (or is deemed to have
agreed to assume).
"Wells Virginia REIT Land" shall mean that certain tract or parcel of
real property more particularly described on EXHIBIT "A-2" attached hereto and
made a part hereof as the Alstom Power Property.
"Wells Virginia REIT Personal Property" shall mean all furniture
(including common area furnishings and interior landscaping items), carpeting,
draperies, appliances, personal property (excluding the computer software which
is either licensed to Wells Virginia REIT or which such Wells Affiliate deems
proprietary [a listing of such excluded computer software being set forth on
EXHIBIT "W" attached hereto and made a part hereof]), machinery, apparatus
38
Purchase and Sale Agreement
and equipment owned by such Wells Affiliate and currently used exclusively in
the operation, repair and maintenance of the Wells Virginia REIT Land and Wells
Virginia REIT Improvements and owned by such Wells Affiliate and situated
thereon, including, without limitation, those specific items of personal
property (if any) more particularly described on EXHIBIT "B" attached hereto and
made a part hereof, and all non-confidential books, records and files (excluding
any appraisals, budgets, strategic plans for such Wells Virginia REIT Property,
internal analyses, information regarding the marketing of the Wells Virginia
REIT Property for sale, submissions relating to obtaining of corporate
authorization for Wells Virginia REIT, attorney and accountant work product,
attorney-client privileged documents, or other similar information in the
possession or control of Wells Virginia REIT or any third party property manager
which such Wells Affiliate reasonably deems proprietary) relating to the Wells
Virginia REIT Land and Wells Virginia REIT Improvements; provided, however, the
property described on EXHIBIT "B-2" attached hereto and made a part hereof is
expressly excluded from the definition of Wells Virginia REIT Personal Property.
The Wells Virginia REIT Personal Property does not include any property owned by
tenants, contractors or licensees, and shall be conveyed by Wells Virginia REIT
to Purchaser subject to depletions, replacements and additions in the ordinary
course of Wells Virginia REIT's business.
"Wells Virginia REIT Property" shall mean and refer to the Wells
Virginia REIT Land, together with the items set forth in Sections 2.1(b), (c),
(d) and (e) with respect to the Wells Virginia REIT Land.
"Wells Westlake" shall mean Westlake Wells, L.P., a Texas limited
partnership.
"Wells Westlake Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the Wells Westlake Land,
including, without limitation, all parking areas and facilities, improvements
and fixtures located on such Wells Westlake Land.
"Wells Westlake Intangible Property" shall mean all intangible
property, if any, owned by Wells Westlake and related to the Wells Westlake Land
identified on EXHIBIT "A-2" as the Daimler Chrysler Property and to the Wells
Westlake Improvements located on the Wells Westlake Land, including, without
limitation, the rights and interests, if any, in and to the following (to the
extent assignable): (i) all assignable plans and specifications and other
architectural and engineering plans for such Wells Westlake Land and the Wells
Westlake Improvements located thereon; (ii) all assignable warranties or
guaranties given or made in respect of the Wells Westlake Improvements or Wells
Westlake Personal Property; (iii) all transferable consents, authorizations,
variances or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Wells Westlake Land or Wells
Westlake Improvements located thereon; and (iv) all of the right, title and
interest of Wells Westlake in and to all assignable Service Contracts with
respect to the Wells Westlake Property that Purchaser agrees to assume (or is
deemed to have agreed to assume).
"Wells Westlake Land" shall mean those certain tracts or parcels of
real property more particularly described on EXHIBIT "A-2" attached hereto and
made a part hereof as the Daimler Chrysler Property.
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Purchase and Sale Agreement
"Wells Westlake Personal Property" shall mean all furniture (including
common area furnishings and interior landscaping items), carpeting, draperies,
appliances, personal property (excluding the computer software which is either
licensed to Wells Westlake or which such Wells Affiliate deems proprietary [a
listing of such excluded computer software being set forth on EXHIBIT "W"
attached hereto and made a part hereof]), machinery, apparatus and equipment
owned by such Wells Affiliate and currently used exclusively in the operation,
repair and maintenance of the Wells Westlake Land and Wells Westlake
Improvements and owned by such Wells Affiliate and situated thereon, including,
without limitation, those specific items of personal property (if any) more
particularly described on EXHIBIT "B" attached hereto and made a part hereof,
and all non-confidential books, records and files (excluding any appraisals,
budgets, strategic plans for such Wells Westlake Property, internal analyses,
information regarding the marketing of the Wells Westlake Property for sale,
submissions relating to obtaining of corporate authorization for Wells Westlake,
attorney and accountant work product, attorney-client privileged documents, or
other similar information in the possession or control of Wells Westlake or any
third party property manager which such Wells Affiliate reasonably deems
proprietary) relating to the Wells Westlake Land and Wells Westlake
Improvements; provided, however, the property described on EXHIBIT "B-2"
attached hereto and made a part hereof is expressly excluded from the definition
of Wells Westlake Personal Property. The Wells Westlake Personal Property does
not include any property owned by tenants, contractors or licensees, and shall
be conveyed by Wells Westlake to Purchaser subject to depletions, replacements
and additions in the ordinary course of Wells Westlake's business.
"Wells Westlake Property" shall mean and refer to the Wells Westlake
Land, together with the items set forth in Sections 2.1(b), (c), (d) and (e)
with respect to the Wells Westlake Land.
ARTICLE 2.
PURCHASE AND SALE
2.1. Agreement to Sell and Purchase the Wells Affiliate Properties.
Subject to and in accordance with the terms and provisions of this Agreement,
each Wells Affiliate agrees to sell and Purchaser agrees to purchase, the
following properties respectively owned by such Wells Affiliate (collectively,
the "Wells Affiliate Properties"):
(a) the Wells Affiliate Lands;
(b) the Wells Affiliate Improvements;
(c) all right, title and interest of the applicable Wells
Affiliate as "landlord" or "lessor" in and to the
Leases, any guaranties of the Leases and the Security
Deposits, with respect to the Wells Affiliate Lands
and Wells Affiliate Improvements owned by such Wells
Affiliate;
(d) the Wells Affiliate Personal Property; and
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Purchase and Sale Agreement
(e) the Wells Affiliate Intangible Property.
2.2. Agreement to Sell and Purchase the Wells OP Properties.
Subject to and in accordance with the terms and provisions of this Agreement,
Wells OP agrees to sell and Purchase agrees to purchase, the following
properties (the "Wells OP Properties"):
(a) the Wells OP Lands;
(b) the Wells OP Improvements;
(c) the Wells OP Leasehold Estates, together with the
rights of Wells OP under and pursuant to the Ingram
Micro Bond Lease and the ISS Bond Lease to purchase
the Wells OP Land and Wells OP Improvements located
respectively on such Land;
(d) all right, title and interest of Wells OP as
"landlord" or "lessor" in and to the Leases, any
guaranties of the Leases and the Security Deposits,
with respect to the Wells OP Land and Wells OP
Improvements;
(e) the Wells OP Personal Property; and
(f) the Wells OP Intangible Property.
2.3. Permitted Exceptions. Each of the Properties shall be conveyed
subject to the matters which are, or are deemed to be, Permitted Exceptions with
respect to such Property subject to Purchaser's objection rights and Sellers'
cure obligations under Section 3.4 hereof.
2.4. Earnest Money.
(a) Within one (1) Business Day following the execution
and delivery of this Agreement by Seller and Purchaser, Purchaser shall deliver
the Earnest Money to Escrow Agent by federal wire transfer, payable to Escrow
Agent, which Earnest Money shall be held and released by Escrow Agent in
accordance with the terms of the Escrow Agreement. The parties hereto mutually
acknowledge and agree that time is of the essence in respect of Purchaser's
timely deposit of the Earnest Money with Escrow Agent; and that if Purchaser
fails to timely deposit the Earnest Money with Escrow Agent, this Agreement
shall terminate, and neither party hereto shall have any further rights or
obligations hereunder, except those provisions of this Agreement which by their
express terms survive the termination of this Agreement.
(b) The Earnest Money shall be applied to the Purchase
Price at the Closing and shall otherwise be held, refunded, or disbursed in
accordance with the terms of the Escrow Agreement and this Agreement. The
Earnest Money shall be applied to the Properties as set forth on EXHIBIT "N"
attached hereto and made a part hereof. Interest and other income from time to
time earned on the Earnest Money shall be earned for the account of Purchaser,
and shall be a part of the Earnest Money; and the Earnest Money hereunder shall
be comprised of the Earnest Money and all such interest and other income.
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Purchase and Sale Agreement
2.5. Purchase Price. Subject to adjustment and credits as otherwise
specified in this Section 2.5 and elsewhere in this Agreement, the aggregate
purchase price (the "Purchase Price") to be paid by Purchaser to Sellers for the
Properties shall be Seven Hundred Eighty-Six Million and No/100 Dollars
($786,000,000.00 U.S.). The Purchase Price shall be allocated to Wells OP and to
each Wells Affiliate with respect to each of the Properties as set forth on
EXHIBIT "P" attached hereto and made a part hereof. The Purchase Price shall be
paid by Purchaser to Sellers at the Closing as follows:
(a) The Earnest Money shall be paid by Escrow Agent to
Sellers at Closing; and
(b) At Closing, the balance of the Purchase Price
allocated to each Seller and such Seller's Property, after applying, as partial
payment of the Purchase Price allocated to such Seller, an amount equal to the
Earnest Money and subject to prorations and other adjustments specified in this
Agreement, shall be paid by Purchaser in immediately available funds to the
Title Company, for further delivery to an account or accounts designated by each
Seller. If the amount due from Purchaser pursuant to this Agreement is not
received by the Title Company on or before the later of 3:00 p.m. Eastern
Standard Time or in sufficient time for reinvestment on the Closing Date or in
sufficient time for the Lenders to receive the amount required for payoff of the
Loans on the Closing Date, then Purchaser shall reimburse Sellers for loss of
interest due to the inability to reinvest Sellers' funds on the Closing Date or
the inability of the applicable Seller to pay off any Loan payable to its Lender
on the Closing Date, calculated at the rate of eight percent (8%) per annum
(calculated on a per diem basis, using a 365-day year). The provisions of the
preceding sentence of this Section 2.5(b) shall survive the Closing.
2.6. Independent Contract Consideration. In addition to, and not in
lieu of, the delivery to Escrow Agent of the Earnest Money, concurrently with
Purchaser's execution and delivery of this Agreement to Sellers, Purchaser shall
deliver to Wells OP, as a Seller or as a general partner or member of each
Seller, Purchaser's check, payable to the order to Wells OP, as Seller and as
agent of each other Seller, in the amount of One Hundred and No/100 Dollars
($100.00). Sellers and Purchaser hereby mutually acknowledge and agree that said
sum represents adequate bargained for consideration for Sellers' execution and
delivery of this Agreement and Purchaser's right to inspect the Properties
pursuant to Article III. Said sum is in addition to and independent of any other
consideration or payment provided for in this Agreement and is nonrefundable in
all events.
2.7. Closing.
(a) Except as specifically provided to the contrary in
subsections (b), (c) and (d) of this Section 2.7, the consummation of the sale
by Sellers and purchase by Purchaser of the Properties (the "Closing") shall be
held on March 25, 2005 (the "First Closing Date") at the offices of Sellers'
Counsel, Troutman Sanders, LLP, Suite 5200, Bank of America Plaza, 600 Peachtree
Street, N.E., Atlanta, Georgia 30308-2216, at 10:00 A.M. It is contemplated that
the transaction shall be closed with the concurrent delivery of the documents of
title and the payment of the Purchase Price. Notwithstanding the foregoing,
there shall be no requirement that Sellers
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Purchase and Sale Agreement
and Purchaser physically meet for the Closing, and all documents to be delivered
at the Closing shall be delivered to the Title Company or in escrow to Sellers'
Counsel unless the parties hereto mutually agree otherwise. Sellers and
Purchaser agree to use reasonable efforts to complete all requirements for the
Closing prior to the First Closing Date.
(b) Specifically notwithstanding the foregoing, and
except as specifically provided to the contrary in subsections (c) and (d) of
this Section 2.7, and subject to the terms of this Agreement, if on the First
Closing Date, the rights of the Outstanding ROFO/ROFR Party (the "ROFO/ROFR
Rights") to purchase the Bank of America Property pursuant to the terms of the
Bank of America Lease and Sellers' Offer Notice in connection therewith, shall
not have been waived (or deemed to have been waived) by the Outstanding
ROFO/ROFR Party pursuant to the terms of such Lease, then, as to said Property
(the "Deferred Closing Property"), the Closing as to such Deferred Closing
Property shall take place at the offices of Sellers' Counsel as set forth above
(or such other location in Atlanta, Georgia as Seller and Purchaser may mutually
agree), at 10:00 A.M. on the date that is no later than fifteen (15) days
following the date on which the Outstanding ROFO/ROFR Party shall have waived
(or shall be deemed to have waived) its right to purchase the Bank of America
Property pursuant to the terms of such Lease or such earlier date as the Seller
and Purchaser may agree in writing; provided, however, Purchaser shall have no
obligations with respect to such Deferred Closing Property unless the Title
Company is prepared to issue its title policy insuring Purchaser's title to such
Deferred Closing Property either (a) including coverage affirming that the
ROFO/ROFR Rights with respect to the sale of such Deferred Closing Property to
Purchaser have been waived, or (b) providing that the ROFO/ROFR Rights with
respect to the sale of such Property to Purchaser are not an encumbrance to
title thereto (an "ROFO/ROFR Endorsement"). Subject to the foregoing, the
Closing as to such Deferred Closing Property shall take place at such specific
place, time and date (a "Deferred Closing Date") as shall be designated by
Purchaser in a written notice to Sellers not less than three (3) Business Days
prior to such Closing. If Purchaser fails to give notice of the Deferred Closing
Date, then, subject to delivery of the applicable ROFO/ROFR Endorsement, the
Closing of the Deferred Closing Property shall be held on the thirtieth (30th)
day following the date on which the Outstanding ROFO/ROFR Party shall have
waived (or been deemed to have waived) its right to purchase the Deferred
Closing Property, as such waiver has been confirmed by written notice from
Sellers to Purchaser, with such Closing to be held at the offices of Sellers'
Counsel, at the address set forth in Section 2.7(a) above. Notwithstanding the
foregoing, there shall be no requirement that Sellers and Purchaser physically
meet for the Closing, and all documents to be delivered at the Closing shall be
delivered to the Title Company or in escrow to Sellers' Counsel unless the
parties hereto mutually agree otherwise. Sellers and Purchaser agree to use
reasonable efforts to complete all requirements for the Closing prior to the
Deferred Closing Date.
(c) Notwithstanding anything to the contrary contained in
this Section 2.7, Sellers and Purchaser each shall have the right to adjourn the
First Closing Date to a date not earlier than April 4, 2005, nor later than
April 29, 2005, by written notice to other party and Escrow Agent given on or
before March 22, 2005, and specifying in said notice the date for the adjourned
Closing (a "Deferred Closing Date"). In the event Sellers or Purchaser shall so
elect to adjourn the Closing, then the Closing shall take place at the offices
of Sellers' Counsel as set forth above (or such other location in Atlanta,
Georgia as Sellers and Purchaser may mutually
43
Purchase and Sale Agreement
agree), at 10:00 A.M. on the date so specified in Sellers' notice or Purchaser's
notice; and if Sellers or Purchaser fail to specify the date in said notice,
then such Deferred Closing Date shall be deemed to be April 29, 2005.
(d) If at any time after the Effective Date of this
Agreement but prior to the Closing Date, (i) trading in securities generally on
the New York Stock Exchange shall have been suspended, or (ii) national banks
shall have been closed, then either party shall have the right to extend the
Closing Date until such time as trading in securities generally on the New York
Stock Exchange has recommenced or national banks have re-opened, by giving
written notice to the other and to Escrow Agent; but in no event shall the
Closing occur later than June 30, 2005.
ARTICLE 3.
PURCHASER'S INSPECTION AND REVIEW RIGHTS
3.1. Due Diligence Inspections.
(a) From and after the "Effective Date" (as defined in
and pursuant to the Right of Entry Agreement) until the Closing Date or earlier
termination of the inspection rights of Purchaser under the Right of Entry
Agreement or under this Agreement, Sellers shall permit Purchaser and its
authorized representatives to inspect the Properties, to perform due diligence
and environmental investigations, to examine the records of Sellers with respect
to the Properties, and make copies thereof, at such times during normal business
hours as Purchaser or its representatives may request. All such inspections
shall be nondestructive in nature, and specifically shall not include any
physically intrusive testing. All such inspections shall be performed in such a
manner to minimize any interference with the business of the tenants under the
Leases and the Wells OP Ground Leases at the Properties and, in each case, in
compliance with the rights and obligations of the applicable Seller as landlord
under the applicable Leases and as lessee under the Ground Leases. Purchaser
agrees that Purchaser shall make no contact with and shall not interview tenants
without the express prior consent of Sellers. All inspection fees, appraisal
fees, engineering fees and all other costs and expenses of any kind incurred by
Purchaser relating to the inspection of the Properties shall be solely
Purchaser's expense. Sellers reserve the right to have a representative present
at the time of making any such inspection. Purchaser shall notify Sellers not
less than two (2) Business Days in advance of making any such inspection.
(b) If any Closing is not consummated hereunder,
Purchaser shall promptly deliver to Sellers (if contractually permitted to do
so) copies of all reports, surveys and other information furnished to Purchaser
by third parties in connection with such inspections with respect to any
Property as to which the Closing fails to occur, provided that Purchaser is not
contractually prohibited from doing so; provided further, however, that delivery
of such copies and information shall be without warranty or representation
whatsoever, express or implied, including, without limitation, any warranty or
representation as to ownership, accuracy, adequacy or completeness thereof or
otherwise. Purchaser shall use commercially reasonable efforts to avoid any
contractual obligations prohibiting the delivery to Sellers of copies of such
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Purchase and Sale Agreement
reports, surveys and information. This Section 3.1(b) shall survive the
termination of this Agreement.
(c) To the extent that Purchaser or any of its
representatives, agents or contractors damages or disturbs the Properties or any
portion thereof, Purchaser shall return the same to substantially the same
condition which existed immediately prior to such damage or disturbance.
Purchaser hereby agrees to and shall indemnify, defend and hold harmless Sellers
from and against any and all expense, loss or damage which Sellers may incur
(including, without limitation, reasonable attorney's fees actually incurred) as
a result of any act or omission of Purchaser or its representatives, agents or
contractors, other than any expense, loss or damage to the extent arising from
any act or omission of Sellers during any such inspection. Said indemnification
shall not extend to pre-existing conditions merely discovered by Purchaser. Said
indemnification agreement shall survive the final Closing under this Agreement,
or earlier termination of this Agreement, until the expiration of any applicable
statute of limitations. Purchaser shall maintain and shall ensure that
Purchaser's consultants and contractors maintain commercial general liability
insurance in an amount not less than $2,000,000, combined single limit, and in
form and substance adequate to insure against all liability of Purchaser and its
consultants and contractors, respectively, and each of their respective agents,
employees and contractors, arising out of inspections and testing of the
Properties or any part thereof made on Purchaser's behalf. Purchaser agrees to
provide to Sellers, upon Sellers' request, a certificate of insurance with
regard to each applicable liability insurance policy prior to any entry upon the
Properties by Purchaser or its consultants or contractors, as the case may be,
pursuant to this Section 3.1.
(d) Sellers hereby agree that prior to the termination of
this Agreement, neither Sellers nor any of Sellers' respective affiliates,
subsidiaries, agents, representatives or successors shall enter into any
contract to sell or transfer (directly or indirectly) any one or more of the
Properties or any interest therein or negotiate with any third party respecting
the sale of the Properties or any interest therein, except that this Section
3.1(d) shall not affect or limit any action the Sellers may take in order to
comply with any rights of first offer or rights of first refusal under existing
Leases affecting the Properties.
3.2. Deliveries by Sellers to Purchaser; Purchaser's Access to
Property Records of Sellers.
(a) Sellers and Purchaser acknowledge that all of the
following (the "Due Diligence Deliveries") either have been or shall be
delivered or made available to Purchaser (and Purchaser further acknowledges
that no additional items are required to be delivered by Sellers or any of them
to Purchaser except as may be expressly set forth in other provisions of this
Agreement):
(i) Copies of current property tax bills with
respect to each Property.
(ii) Copies of operating statements for the past
twenty-four (24) months with respect to each
Property.
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Purchase and Sale Agreement
(iii) Copies of all Leases and guarantees relating
thereto existing as of the Effective Date
with respect to each Property.
(iv) An aged tenant receivable report, if any,
regarding income from the tenants with
respect to each Property.
(v) Copies of all Commission Agreements in the
possession of Sellers with respect to each
Property.
(vi) Copies of all Service Contracts currently in
place with respect to each Property.
(vii) Copies of the current commitments for title
insurance issued by the Title Company with
respect to each of the Properties.
(viii) Copies of the Existing Surveys with respect
to the Land and the Wells OP Ground Lease
Land.
(ix) Copies of the Wells OP Ground Leases, and
each of the title documents listed on
EXHIBIT "I" attached hereto.
(x) Copies of the Existing Environmental Reports
with respect to each Property.
(xi) Copies of Sellers' offering notices to each
of the tenants and the Declarant as
described in clauses (i), (iii), (iv), (v),
(viii), (ix), (x), (xi) and (xii) of Section
4.1(f) hereof.
(xii) Copies of all certificates of occupancy with
respect to each Property which are in
Sellers' possession.
(b) From the "Effective Date" (as defined in and pursuant
to the Right of Entry Agreement) until the last Closing Date under this
Agreement, or earlier termination of this Agreement, Sellers shall allow
Purchaser and Purchaser's representatives, on reasonable advance notice and
during normal business hours, to have access to Sellers' existing
non-confidential books, records and files relating to the Properties, at
Sellers' respective on-site management offices at the Properties, at the office
of the Broker, or at the office of Sellers at 6200 The Corners Parkway,
Norcross, Georgia 30092, for the purpose of inspecting and (at Purchaser's
expense) copying the same, including, without limitation, the materials listed
below (to the extent any or all of the same are in the possession of Sellers),
subject, however, to the limitations of any confidentiality or nondisclosure
agreement to which Sellers or any of them may be bound, and provided that none
of the Sellers shall be required to deliver or make available to Purchaser any
appraisals, third party reports (other than the Existing Environmental Reports)
obtained by any Seller prior to the acquisition of the Property or Properties by
such Seller, strategic plans for the Properties or any of them, internal
analyses, information regarding the marketing for sale of the Properties or any
of them, submissions relating to such Seller's obtaining of corporate
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Purchase and Sale Agreement
authorization, attorney and accountant work product, attorney-client privileged
documents, or other information in the possession or control of Sellers or any
of them which Sellers or any of them deem proprietary. Purchaser acknowledges
and agrees, however, that Sellers make no representation or warranty of any
nature whatsoever, express or implied, with respect to the ownership,
enforceability, accuracy, adequacy or completeness or otherwise of any of such
records, evaluations, data, investigations, reports or other materials. If the
Closing contemplated hereunder fails to take place for any reason, Purchaser
shall promptly return (or certify as having destroyed) all copies of materials
copied from the books, records and files of Sellers or any of them relating to
the Properties. It is understood and agreed that none of the Sellers shall have
any obligation to obtain, commission or prepare any such books, records, files,
reports or studies not now in the possession or control of such Sellers. Subject
to the foregoing, Sellers agree to make available to Purchaser for inspection
and copying, without limitation, the following books, records and files relating
to the Properties, all to the extent the same are in the possession of Sellers:
(i) Tenant Information. Copies of any financial
statements or other financial information of
any tenants under the Leases (and the Lease
guarantors), written information relative to
the tenants' payment histories, tenant
correspondence, and copies of all
certificates of insurance provided by such
tenants pursuant to the terms of their
respective Leases at the Properties, to the
extent the applicable Wells Affiliate or
Wells OP has the same in its possession;
(ii) Plans. All available construction plans and
specifications in the possession of the
applicable Wells Affiliate or Wells OP
relating to the development, condition,
repair and maintenance of the Properties,
the Improvements and the Personal Property;
(iii) Permits; Licenses. Copies of any permits,
licenses, or other similar documents in the
possession of the applicable Wells Affiliate
or Wells OP relating to the use, occupancy
or operation of the Properties; and
(iv) Operating Costs and Expenses. All available
records of any operating costs and expenses
for the Properties in the possession of the
applicable Wells Affiliate or Wells OP.
(c) Subject to Section 12.4 hereof, for a period of time
commencing on the Effective Date of this Agreement and continuing through the
date that is seventy-five (75) days after the date of Closing, if Purchaser
determines in good faith that it is required to file financial statements, pro
formas and any other required financial information in compliance with (i) any
or all of Rule 3-05 or 3-14 of Regulation S-X of the SEC, or (ii) any
registration statement, 424(b) prospectus, report or disclosure statement filed
with the SEC by or on behalf of Purchaser, Sellers, upon reasonable advance
written notice from Purchaser, and at Purchaser's sole cost and expense, shall
use good faith efforts to provide Purchaser and its representatives with
reasonable
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Purchase and Sale Agreement
access to financial information and documentation relating to the Properties
pertaining to the period from January 1, 2004 through the date of Closing,
provided the same shall then be in the possession of any Seller or an Affiliate
of any Seller in the form and content reasonably requested and such information
is relevant and reasonably necessary to enable Purchaser and Purchaser's outside
accountants to file such financial statements, pro formas and other financial
information with the SEC as required by applicable laws, rules and regulations.
Purchaser shall reimburse Sellers for all reasonable out-of-pocket costs and
expenses paid to third parties by Sellers in connection therewith. At or within
seventy-five (75) days after Closing, Seller shall use good faith efforts to
provide to the Purchaser's independent accounting firm a signed representation
letter from such Seller or such Seller's Property Manager which would be
reasonably sufficient in the judgment of such Seller's independent public
accountants to enable Purchaser's independent public accountant to render an
opinion on the financial statements of the Properties pertaining to the period
from January 1, 2004 through the date of Closing.
3.3. Condition of the Properties.
(a) The parties hereto acknowledge that Purchaser has
employed independent zoning consultants, and engineering and/or environmental
professionals to review zoning and to perform engineering, environmental and
physical assessments on Purchaser's behalf in respect of the Properties and the
condition thereof. Purchaser and Sellers mutually acknowledge and agree that the
Properties are being sold in an "AS IS" condition and "WITH ALL FAULTS," known
or unknown, contingent or existing. Purchaser has the sole responsibility to
fully inspect the Properties, to investigate all matters relevant thereto,
including, without limitation, the condition of the Properties, and to reach its
own, independent evaluation of any risks (environmental or otherwise) or rewards
associated with the ownership, leasing, management and operation of the
Properties; and Purchaser hereby acknowledges and agrees that it has been
afforded sufficient time and access to the Properties, the tenants of such
Properties and books and records relating to the Properties to fully inspect the
Properties, to investigate all matters relevant thereto, including, without
limitation, the condition of the Properties, and to reach its own, independent
evaluation of all risks (environmental or otherwise) or rewards associated with
the ownership, leasing, management and operation of the Properties. Effective as
of the Closing and except as expressly set forth in this Agreement, Purchaser
hereby waives and releases Sellers and each of them, and their respective
officers, directors, shareholders, members, partners, agents, affiliates,
employees and successors and assigns from and against any and all claims,
obligations and liabilities arising out of or in connection with the Properties.
(b) To the fullest extent permitted by law, Purchaser
does hereby unconditionally waive and release Sellers, and each of them, and
their respective officers, directors, shareholders, members, partners, agents,
affiliates and employees from any present or future claims and liabilities of
any nature arising from or relating to the presence or alleged presence of
Hazardous Substances in, on, at, from, under or about the Properties or any
adjacent property, including, without limitation, any claims under or on account
of any Environmental Law, regardless of whether such Hazardous Substances are
located in, on, at, from, under or about the Properties or any adjacent property
prior to or after the date hereof (collectively, "Environmental Liabilities");
provided, however, that the foregoing release as it applies to any Seller, its
officers, directors, shareholders, members, partners, agents, affiliates and
employees, shall not release such
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Purchase and Sale Agreement
Seller, or its general partners or members from any Environmental Liabilities of
(i) such Seller relating to any Hazardous Substances which may be placed,
located or released on any of the Properties by any Seller after the date of
Closing, or (ii) the general partners or members of such Seller relating to any
Hazardous Substances which may be placed, located or released by any Seller
after the date of Closing. The terms and provisions of this Section 3.3 shall
survive the Closing.
3.4. Title and Survey. Seller has provided Purchaser with a
preliminary title commitment with respect to each of the Properties
(individually, a "Seller Title Commitment", and collectively, the "Sellers'
Title Commitments"). Purchaser has had and shall have the right, but not the
obligation, to order from the Title Company, a preliminary title commitment with
respect to each of the Properties or updates or revisions to any of Sellers'
Title Commitments (individually, a "Purchaser's Title Commitment", and
collectively, the "Purchaser's Title Commitments"). Purchaser shall also have
the right to have Lawyers Title Insurance Corporation and/or Land America Title
Insurance Company participate with the Title Company in the title insurance to
be obtained by Purchaser (and its lenders); provided, however, that no such
participation shall result in any obligation of Sellers to pay for any increase
in the cost of "standard" or "base" title insurance coverage for any policy or
policies of owner's title insurance coverage issued to Purchaser with respect to
the Properties at Closing as a result of such title insurance participation by
Lawyers Title Insurance Corporation and/or Land America Title Insurance Company
(or any of its or their affiliated title companies). Purchaser shall direct the
Title Company to send a copy of each of the Purchaser's Title Commitments to
Sellers. "Title Commitment" shall mean a Seller's Title Commitment or a
Purchaser's Title Commitment. The Seller's Title Commitments and Purchaser's
Title Commitments are collectively referred to as the "Title Commitments".
Sellers and Purchaser mutually acknowledge and agree that prior to the Effective
Date, Sellers and Purchaser have made arrangements for the preparation of one or
more updates of each Existing Survey (and in the case of the Alstom Power
Property, the Americredit Property, the Kerr McGee Property, the Nissan Property
and the Traveler's Express Property, Sellers and Purchaser have made
arrangements for as-built Surveys to be prepared where no such as-built survey
currently exists) (individually, a "Survey", and collectively, the "Surveys").
Copies of all such Surveys and any updates or revisions to any of the same shall
be made available concurrently to Sellers and Purchasers. From time to time at
any time after the Effective Date of this Agreement and prior to the Closing
Date, Purchaser may give written notice to Seller's Counsel (a "Subsequent Title
Notice") of exceptions to title first appearing of record with respect to such
Property after the effective date of the most recent previous Title Commitment
or updated Title Commitment with respect to such Property or matters of survey,
which matters of record or matters of survey would not have been disclosed by an
accurate updated examination of title or preparation of an updated ALTA survey
prior to date of the most recently revised Title Commitment or the most recently
revised Survey with respect to such Property. Sellers shall have the right, but
not the obligation (except as to Monetary Objections), to attempt to remove,
satisfy or otherwise cure any exceptions to title to which the Purchaser so
objects. Within five (5) Business Days after receipt of any Subsequent Title
Notice, Sellers shall give written notice to Purchaser's Counsel informing the
Purchaser of the election of Sellers with respect to the objections in such
Subsequent Title Notice. If Sellers fail to give written notice of election
within such five (5) Business Day period, Sellers shall be deemed to have
elected not to attempt to cure the objections (other than Monetary Objections)
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Purchase and Sale Agreement
set forth in such Subsequent Title Notice; it being specifically understood and
agreed that except as specifically set forth in this Agreement to the contrary,
Sellers have elected not to attempt to cure any objections (other than Monetary
Objections) set forth in any of the notices of title and survey objections and
comments provided by Purchaser's Counsel to Sellers' Counsel prior to the
Effective Date of this Agreement. If Sellers elect to attempt to cure any
objections, Sellers shall be entitled to one or more reasonable adjournments of
the Closing of up to but not beyond the thirtieth (30th) day following the
initial date set for the Closing to attempt such cure, but, except for Monetary
Objections, Sellers shall not be obligated to expend any sums, commence any
suits or take any other action to effect such cure. Except as to Monetary
Objections, if Sellers elect, or are deemed to have elected, not to cure any
exceptions to title to which Purchaser has objected or if, after electing to
attempt to cure, Sellers determine that they are unwilling or unable to remove,
satisfy or otherwise cure any such exceptions, Purchaser's sole remedy hereunder
in such event shall be either (i) to accept title to the applicable Property
subject to such exceptions as if Purchaser had not objected thereto and without
reduction of the Purchase Price, (ii) if such exceptions are matters first
appearing of record or first disclosed by any Survey or updated Title Commitment
after the date of this Agreement, to terminate this Agreement as to such
Property or Properties, or (iii) to terminate this Agreement within three (3)
Business Days after receipt of written notice from Sellers either of the
election of Sellers not to attempt to cure any objection or of the determination
of Sellers, having previously elected to attempt to cure, that Sellers are
unable or unwilling to do so, or three (3) Business Days after Sellers are
deemed hereunder to have elected not to attempt to cure such objections (and
upon any such termination under clause (iii) above, Escrow Agent shall return
the Earnest Money to Purchaser). Notwithstanding anything to the contrary
contained elsewhere in this Agreement, Sellers shall be obligated to cure or
satisfy all Monetary Objections at or prior to Closing, and may use the proceeds
of the Purchase Price at Closing for such purpose.
3.5. Service Contracts. At Closing, Purchaser shall assume the
obligations of Sellers arising from and after Closing under all of the Service
Contracts relating to each Property that is the subject of such Closing;
provided, however, Seller shall be required to terminate any Service Contracts
which are with any Seller-Related Entities. Subject to the foregoing, and taking
into account any credits or prorations to be made pursuant to Article 5 hereof
for payments coming due after Closing but accruing prior to Closing, Purchaser
will assume the obligations arising from and after the Closing Date under the
Service Contracts.
3.6. Confidentiality. All information acquired by Purchaser or any
of its designated representatives (including by way of example, but not in
limitation, the officers, directors, shareholders and employees of Purchaser,
and Purchaser's engineers, consultants, counsel and potential lenders, and the
officers, directors, shareholders and employees of each of them) with respect to
the Properties, whether delivered by Sellers or any representatives of Sellers
or obtained by Purchaser as a result of its inspection and investigation of the
Properties, examination of the books, records and files of Sellers in respect of
the Properties, or otherwise (collectively, the "Due Diligence Material") shall
be used solely for the purpose of determining whether the Properties are
suitable for Purchaser's acquisition and ownership thereof and for no other
purpose whatsoever. Prior to Closing, the terms and conditions which are
contained in this Agreement and all Due Diligence Material which is not
published as public knowledge or which is not generally available in the public
domain shall be kept in strict confidence by Purchaser and
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Purchase and Sale Agreement
shall not be disclosed to any individual or entity other than to those
authorized representatives of Purchaser and Purchaser's prospective and actual
counsel, accountants, professionals, consultants, attorneys and lenders, who
need to know the information for the purpose of assisting Purchaser in
evaluating the Properties for Purchaser's potential acquisition thereof;
provided, however, that Purchaser shall have the right to disclose any such
information if required by applicable law or as may be necessary in connection
with any court action or proceeding with respect to this Agreement. Purchaser
shall and hereby agrees to indemnify and hold Sellers and each of them harmless
from and against any and all loss, liability, cost, damage or expense that
Sellers or any of them may suffer or incur (including, without limitation,
reasonable attorneys' fees actually incurred) as a result of the unpermitted
disclosure of any of the Due Diligence Material to any individual or entity
other than an appropriate representative of Purchaser and Purchaser's
prospective and actual counsel, accountants, professionals, consultants,
attorneys and lenders, and/or the use of any Due Diligence Material for any
purpose other than as herein contemplated and permitted. The foregoing indemnity
shall not extend to disclosure of any Due Diligence Material (i) as may be
required by applicable law, or (ii) that is or becomes public knowledge other
than by virtue of a breach of Purchaser's covenant under this Section 3.6. If
Purchaser or Sellers elect to terminate this Agreement pursuant to any provision
hereof permitting such termination, or if the Closing contemplated hereunder
fails to occur for any reason, Purchaser will promptly return to Sellers all Due
Diligence Material in the possession of Purchaser and any of its
representatives, and destroy all copies, notes or abstracts or extracts thereof,
as well as all copies of any analyses, compilations, studies or other documents
prepared by Purchaser or for its use (whether in written or electronic form)
containing or reflecting any Due Diligence Material. In the event of a breach or
threatened breach by Purchaser or any of its representatives of this Section
3.6, Sellers and each of them shall be entitled, in addition to other available
remedies, to an injunction restraining Purchaser or its representatives from
disclosing, in whole or in part, any of the Due Diligence Material and any of
the terms and conditions of this Agreement. Nothing contained herein shall be
construed as prohibiting or limiting Sellers from pursuing any other available
remedy, in law or in equity, for such breach or threatened breach. The
provisions of this Section shall survive any termination of this Agreement.
ARTICLE 4.
REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS
4.1. Representations and Warranties of Sellers. Each Seller,
individually, solely as to such Seller and not as to any other Seller, hereby
makes the following representations and warranties to Purchaser:
(a) Organization, Authorization and Consents.
(i) Seller has the right, power and authority to
enter into this Agreement and to sell the
Property or Properties of such Seller in
accordance with the terms and provisions of
this Agreement, to engage in the
transactions contemplated in this Agreement
and to perform and observe the terms and
provisions hereof.
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Purchase and Sale Agreement
(ii) Wells OP. Wells OP is a duly organized and
validly existing limited partnership under
the laws of the State of Delaware, whose
sole general partner is Wells Real Estate
Investment Trust, Inc., a Maryland
corporation.
(iii) Wells Real Estate Investment Trust, Inc.
Wells Real Estate Investment Trust, Inc. is
a duly organized and validly existing
corporation under the laws of the State of
Maryland.
(iv) Wells Fund XII - REIT JV. Wells Fund XII -
REIT JV is a duly organized and validly
existing general partnership under the laws
of the State of Georgia, whose general
partners are Wells Real Estate Fund XII,
L.P. and Wells OP. Wells Real Estate Fund
XII, L.P. is a duly organized and validly
existing limited partnership under the laws
of the State of Georgia, whose general
partners are Leo F. Wells, III and Wells
Partners, L.P., a Georgia limited
partnership.
(v) Wells Partners, L.P. Wells Partners, L.P. is
a duly formed and validly existing limited
partnership under the laws of the State of
Georgia, whose general partner is Wells
Capital, Inc.
(vi) Wells Capital, Inc. Wells Capital, Inc. is a
duly organized and validly existing
corporation under the laws of the State of
Georgia.
(vii) Wells Fund XIII - REIT JV. Wells Fund XIII -
REIT JV is a duly organized and validly
existing general partnership under the laws
of the State of Georgia, whose general
partners are Wells Real Estate Fund XIII,
L.P. and Wells OP. Wells Real Estate Fund
XIII, L.P. is a duly organized and validly
existing limited partnership under the laws
of the State of Georgia, whose general
partners are Leo F. Wells, III and Wells
Capital, Inc.
(viii) Wells Virginia REIT. Wells Virginia REIT is
a duly organized and validly existing
limited liability company under the laws of
the State of Georgia, whose sole member is
Wells OP.
(ix) Wells Brea. Wells Brea is a duly organized
and validly existing limited partnership
under the laws of the State of Delaware,
whose sole general partner is Wells Brea,
LLC. Wells Brea, LLC is a duly organized and
validly existing limited liability company
under the laws of the State of Delaware,
whose sole member is Wells OP.
(x) Wells Westlake. Wells Westlake is a duly
organized and validly existing limited
partnership under the laws of the State of
Texas, whose sole general partner is Wells
Real Estate Westlake, TX,
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Purchase and Sale Agreement
LLC. Wells Real Estate Westlake, TX, LLC is
a duly organized and validly existing
limited liability company under the laws of
the State of Delaware, whose sole member is
Wells OP.
(xi) Wells Farmington Hills. Wells Farmington
Hills is a duly formed and validly existing
limited liability company under the laws of
the State of Delaware, whose sole member is
Wells OP.
(xii) Wells Kalamazoo. Wells Kalamazoo is a duly
formed and validly existing limited
liability company under the laws of the
State of Delaware, whose sole member is
Wells OP.
(xiii) Wells EDS. Wells EDS is a duly formed and
validly existing limited partnership under
the laws of the State of Texas, whose sole
general partner is Wells Real Estate - Des
Moines, IA, LLC. Wells Real Estate - Des
Moines, IA, LLC is a duly formed and validly
existing limited liability company under the
laws of the State of Delaware, whose sole
member is Wells OP.
(xiv) Wells Fund XI and XII REIT JV. Wells Funds
XI and XII REIT JV is a duly formed and
validly existing general partnership under
the laws of the State of Georgia, whose
general partners are Wells Real Estate Fund
XI, L.P., a Georgia limited partnership,
Wells Real Estate Fund XII, L.P., a Georgia
limited partnership and Wells OP. Wells Real
Estate Fund XI, L.P. is a duly formed and
validly existing limited partnership under
the laws of the State of Georgia, whose
general partners are Leo F. Wells, III and
Wells Partners, L.P. Wells Partners, L.P. is
a duly formed and validly existing limited
partnership under the laws of the State of
Georgia whose general partner is Wells
Capital, Inc. Wells Real Estate Funds XII,
L.P. is a duly formed and validly existing
limited partnership under the laws of the
State of Georgia, whose general partners are
Leo F. Wells, III and Wells Partners, L.P.
(b) Action of Sellers, Etc. Seller has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement, and upon the execution and delivery of any document to be delivered
by such Seller on or prior to the Closing, this Agreement and such document
shall constitute the valid and binding obligation and agreement of such Seller,
enforceable against such Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors.
(c) No Violations of Agreements. Subject to obtaining
such consents or approvals of the ASML Prime Ground Lessor and the ASML
Sub-Ground Lessor to the transfer of the ASML Property to Purchaser as may be
required under the ASML Prime Ground Lease and the ASML Sub-Ground Lease, and
such consent or approval of the Ingram Micro Ground
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Purchase and Sale Agreement
Lessor to the transfer of the Ingram Micro Property to Purchaser as may be
required under the Ingram Micro Bond Lease, neither the execution, delivery or
performance of this Agreement by such Seller, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon the respective Property or
Properties of such Seller or any portion thereof pursuant to the terms of any
indenture, deed to secure debt, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument by which such Seller is bound,
including, without limitation, the Wells OP Ground Leases, the Ingram Micro Loan
Documents, the ISS Bond Documents and the ISS Bonds.
(d) Litigation. Except as disclosed on EXHIBIT "P"
attached hereto and made a part hereof, such Seller has not received written
notice of any pending or threatened suit, action or proceeding, which (i) if
determined adversely to such Seller, adversely affects the use or value of the
Property or Properties of such Seller, (ii) questions the validity of this
Agreement or any action taken or to be taken pursuant hereto, (iii) involves
condemnation or eminent domain proceedings involving such Properties or any
portion thereof, or (iv) relates to the revocation or modification of any
license, permit or other approval (including zoning and entitlements approvals)
related to the development, ownership, use or operation of such Seller's
Property for the current use of such Property.
(e) Existing Leases. Other than the Wells OP Ground
Leases and the Leases listed on EXHIBIT "I" attached hereto, such Seller has not
entered into any contract or agreement with respect to the occupancy of the
Property or Properties of such Seller or any portion or portions thereof which
will be binding on Purchaser or such Seller's Property after the Closing. The
copies of the Wells OP Ground Leases and the Leases affecting the Property or
Properties of such Seller heretofore delivered or made available by such Seller
to Purchaser are true, correct and complete copies thereof in all material
respects, and the Wells OP Ground Leases and the Leases affecting the Property
or Properties of such Seller have not been amended except as evidenced by
amendments similarly delivered and constitute the entire agreement between such
Seller and the tenants or other parties thereto. Except as set forth in EXHIBIT
"P" attached hereto, such Seller has not given or received any written notice of
any party's default or failure to comply with the terms and provisions of the
Wells OP Ground Leases and the Leases affecting the Property or Properties of
such Seller which remain uncured.
(f) Right of First Offer or Right of First Refusal. No
tenant of such Seller or any other person or entity has any right or option
(including any right of first refusal or right of first offer) to purchase all
or any part of the Property or Properties of such Seller or any interest
therein, except as follows:
(i) the right of first refusal of Bank of
America NT & SA, as tenant under its Lease
affecting the Bank of America Property, to
purchase such Property upon the terms set
forth in its Lease, and with respect to
which Seller delivered the Bank of America
ROFR Notice to such tenant, dated January
11, 2005;
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Purchase and Sale Agreement
(ii) the right of Capital One Services, Inc., as
tenant under each of its Leases affecting
the Capital One Property, to purchase the
respective buildings subject to such Leases,
except that in accordance with the terms of
such Leases, such right of first refusal
does not apply in the event the landlord
desires to sell the building subject to any
such Lease in conjunction with the sale of
any other building or buildings owned by
landlord or in which landlord has an
interest;
(iii) the right of Chrysler Financial Company,
LLC, as tenant under its Lease affecting the
Daimler Chrysler Property, to purchase such
Property pursuant to the terms of its Lease,
and with respect to which Seller delivered
an offer notice to such tenant, dated
November 1, 2004;
(iv) the right of Dana Corporation, as tenant
under its Lease affecting the Dana
(Farmington Hills) Property, to purchase
such Property in accordance with the terms
of such Lease, and with respect to which
Seller delivered an offer notice to such
tenant, dated November 1, 2004, and such
tenant delivered a letter to Seller in
response thereto, dated November 5, 2004;
(v) the right of Dana Corporation, as tenant
under its Lease affecting the Dana
(Kalamazoo) Property, to purchase such
Property in accordance with the terms of
such Lease, and with respect to which Seller
delivered an offer notice to such tenant,
dated November 1, 2004, and such tenant
delivered a letter to Seller in response
thereto, dated November 5, 2004;
(vi) the right of The Dial Corporation, as tenant
under its Lease affecting the Dial Property,
to purchase such Property in accordance with
the terms of such Lease; provided, however,
that in accordance with the terms of such
Lease, such right does not apply to a
portfolio sale of properties;
(vii) the right of Experian Information Solutions,
Inc., as tenant under its Lease affecting
the Experian Property, to purchase such
Property after the expiration of the
"Primary Term" of such Lease (as defined
therein) in accordance with the terms and
provisions of such Lease, which Primary Term
has not yet expired;
(viii) the right of Gartner, Inc., as tenant under
its Lease affecting the Gartner Surface
Parking Property, to purchase the Gartner
Property in accordance with the terms of
such Lease, and with respect to which Seller
delivered an offer notice to such tenant,
dated December 8, 2004;
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Purchase and Sale Agreement
(ix) the right of Ingram Micro L.P., as tenant
under its Lease affecting the Ingram Micro
Property, to purchase such Property in
accordance with the terms of such Lease, and
with respect to which Seller delivered an
offer notice to such tenant, dated November
1, 2004;
(x) the right of Kerr-McGee Oil & Gas
Corporation, as tenant under its Lease
affecting the Kerr McGee Property, to
purchase such Property in accordance with
the terms of such Lease, and with respect to
which Seller delivered an offer notice to
such tenant, dated November 1, 2004;
(xi) the right of Merisel Properties, Inc., as
the Declarant under the Lucent Property
Declaration affecting the Lucent Property,
to purchase such Property in accordance with
the terms of said Declaration, and with
respect to which Seller delivered an offer
notice to said Declarant, dated December 6,
2004; and
(xii) the right of Nissan Motor Acceptance
Company, as tenant under its Lease affecting
the Nissan Property, to purchase such
Property in accordance with the terms of
such Lease, and with respect to which Seller
delivered an offer notice to such tenant,
dated November 1, 2004.
As of the Effective Date hereof, none of the tenants named above or the
Declarant named above (each, a "ROFO/ROFR Party", and any one or more,
"ROFO/ROFR Parties") to whom an offer notice was sent by Sellers has exercised
its right of first offer or right of first refusal by written notice received by
any of the Sellers. Except as disclosed in this Agreement, Sellers have not
received from or given any written notice to any of the ROFO/ROFR Parties with
respect to such rights of first offer or rights of first refusal in respect of
the transactions contemplated under this Agreement.
(g) Leasing Commissions. There are no lease brokerage
agreements, leasing commission agreements or other agreements providing for
payments of any amounts for leasing activities or procuring tenants with respect
to the Properties of such Seller or any portion or portions thereof other than
as disclosed in EXHIBIT "C" attached hereto (the "Commission Agreements"), and
all leasing commissions and brokerage fees accrued or due and payable under the
Commission Agreements with respect to the Properties of such Seller as of the
date hereof and at the Closing have been or shall be paid in full.
Notwithstanding anything to the contrary contained herein, (i) the respective
obligations of Sellers and Purchaser with respect to certain leasing commissions
are set forth on EXHIBIT "U" attached hereto, and (ii) Purchaser shall be
responsible for the payment of all leasing commissions payable for (a) any new
leases entered into after the Effective Date that have been approved (or deemed
approved) by Purchaser, and (b) except as expressly otherwise provided on
EXHIBIT "U" attached hereto, the
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Purchase and Sale Agreement
renewal, expansion or extension of any Leases existing as of the Effective Date
and exercised or effected after the Effective Date.
(h) Bond Documents. The copies of the Ingram Micro Loan
Documents, the ISS Bond Documents and the ISS Bonds (the "Bond Documents")
heretofore delivered or made available to Purchaser are true, correct and
complete copies thereof in all material respects. Wells OP has not given or
received any written notice of any party's default or failure to comply with the
terms and provisions of the Bond Documents.
(i) Property Management Agreements. Except for those
certain management agreements more particularly described on EXHIBIT "Q"
attached hereto and made a part hereof (each and any one or more, a "Property
Management Agreement" or the "Property Management Agreements"), there is no
agreement currently in effect relating to the management of the Properties of
such Seller by any third-party management company; and except for the Kraft
Foods Property Management Agreement, all of such Property Management Agreements
are terminable without penalty on or before the last day of the calendar month
following thirty (30) days prior written notice of termination, and except that
the Kraft Foods Property Management Agreement is terminable without penalty upon
sixty (60) days prior written notice.
(j) Taxes and Assessments. Except as may be set forth on
EXHIBIT "R" attached hereto and made a part hereof, Seller has not filed, and
has not retained anyone to file, notices of protests against, or to commence
action to review, real property tax assessments against any Property of such
Seller.
(k) Compliance with Laws. To such Seller's knowledge and
except as set forth on EXHIBIT "P", such Seller has received no written notice
alleging any violations of law (including any Environmental Law), municipal or
county ordinances, or other legal requirements with respect to the Properties of
such Seller where such violations remain outstanding.
(l) Other Agreements. To such Seller's knowledge, except
for the Leases, the Wells OP Ground Leases, the Service Contracts, the
Commission Agreements, the Management Agreements, and the Permitted Exceptions
with respect to the Properties of such Seller, there are no leases, management
agreements, brokerage agreements, leasing agreements or other agreements or
instruments in force or effect that grant to any person or any entity (other
than such Seller) any right, title, interest or benefit in and to all or any
part of the Properties of such Seller or any rights relating to the use,
operation, management, maintenance or repair of all or any part of the
Properties of such Seller which will survive the Closing or be binding upon
Purchaser other than those which Purchaser has agreed in writing to assume (or
is deemed to have agreed to assume) or which are terminable upon thirty (30)
days notice without payment of premium or penalty.
(m) Seller Not a Foreign Person. Such Seller is not a
"foreign person" which would subject Purchaser to the withholding tax provisions
of Section 1445 of the Internal Revenue Code of 1986, as amended.
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Purchase and Sale Agreement
(n) Employees. Such Seller has no employees to whom by
virtue of such employment Purchaser will have any obligation after the Closing.
(o) Security Deposits. Attached hereto as EXHIBIT "X" is
a chart of all Security Deposits currently held by Sellers with respect to the
Property or Properties owned by such Sellers.
(p) Adjoining Properties. No Seller owns any real
property that is adjacent to any of the Properties.
(q) Lucent Undeveloped Parcel. To the knowledge of Wells
OP, Wells OP has not encumbered that certain portion of the Lucent Property
described as Lot 1-B-II on Exhibit "A-1" attached hereto in any fashion except
as may be disclosed in that certain Title Commitment issued by the Title Company
to Purchaser with respect to that portion of the Lucent Property described as
Lot 1-B-I on Exhibit "A-1" attached hereto; and Wells OP has no knowledge of any
exceptions affecting said Lot 1-B-II that do not also affect said Lot 1-B-I as
disclosed in said Title Commitment.
(r) Tenant Allowances and Inducements. To such Seller's
knowledge, and except as disclosed in this Agreement and provisions for payment
of which are contained elsewhere in this Agreement, there are no tenant
allowances or inducements outstanding or unpaid to any tenant of such Seller's
Property as of the Effective Date hereof and as of the date of Closing; and if
any such tenant allowance or other inducement shall be outstanding and unpaid as
of the date of Closing in accordance with the terms of such tenant's Lease, such
Seller agrees to pay the same to Purchaser at Closing by means of a credit
against the Purchase Price of such Property.
The representations and warranties made in this Agreement by such
Seller shall be continuing and shall be deemed made as of the Effective Date of
this Agreement, and remade by such Seller as of the Closing Date in all material
respects, with the same force and effect as if made on, and as of, such date,
subject to such Seller's right to update such representations and warranties by
written notice to Purchaser and in the certificate of such Seller to be
delivered pursuant to Section 5.1(o) hereof.
Except as otherwise expressly provided in this Agreement or in any
documents to be executed and delivered by Sellers to Purchaser at the Closing,
none of the Sellers has made, and Purchaser has not relied on, any information,
promise, representation or warranty, express or implied, regarding the Property,
whether made by Sellers, or any of them, on behalf of Sellers or any of them, or
otherwise, including, without limitation, the physical condition of the
Properties, the financial condition of the tenants under the Leases, the Wells
OP Ground Leases, title to or the boundaries of the Properties, pest control
matters, soil conditions, the presence, existence or absence of hazardous
wastes, toxic substances or other environmental matters, compliance with
building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns, market data,
economic conditions or projections, past or future economic performance of the
tenants or the Properties, and any other information pertaining to the
Properties or the market and physical environments in which the Properties are
located. Purchaser acknowledges (i) that Purchaser has entered into this
Agreement with the
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Purchase and Sale Agreement
intention of making and relying upon its own investigation or that of
Purchaser's own consultants and representatives with respect to the physical,
environmental, economic and legal condition of the Properties and (ii) that
Purchaser is not relying upon any statements, representations or warranties of
any kind, other than those specifically set forth in this Agreement or in any
document to be executed and delivered by Sellers or any of them to Purchaser at
the Closing, made (or purported to be made) by Sellers or any of them or anyone
acting or claiming to act on behalf of Sellers or any of them. Purchaser has
inspected the Properties and has become fully familiar with the physical
condition thereof and, subject to the terms and conditions of this Agreement,
shall purchase the Properties in their "as is" condition, "with all faults," on
the Closing Date. The provisions of this paragraph shall survive the Closing for
a period of one hundred eighty (180) days following the Closing.
4.2. Knowledge Defined. All references in this Agreement to the
"knowledge of Wells OP" or "to Wells OP's knowledge" or "to the "knowledge of a
Wells Affiliate" or "to a Wells Affiliate's knowledge" or to the "knowledge of
such Seller" or "to such Seller's knowledge", shall refer only to the actual
knowledge of David H. Steinwedell, Chief Investment Officer, and Frank Parker
Hudson, Managing Director of Dispositions, for Sellers, and of the persons named
on EXHIBIT "S" attached hereto and made a part hereof with respect to each
Property owned by such Seller, each of which persons named on the attached
EXHIBIT "S" whom has been actively involved in the management of such Seller's
business in respect of the designated Property or Properties owned by such
Seller in the capacity as Asset Manager for such Seller. The term "knowledge of
Wells OP" or "to Wells OP's knowledge" or to the "best knowledge of a Wells
Affiliate" or "to a Wells Affiliate's knowledge" or to the "best knowledge of
such Seller" or "to such Seller's knowledge", shall not be construed, by
imputation or otherwise, to refer to the knowledge of Wells OP or such Wells
Affiliate, or any affiliate of Wells OP or such Wells Affiliate, or to any other
partner, member, beneficial owner, officer, director, agent, manager,
representative or employee of Wells OP or such Wells Affiliate, or any of their
respective affiliates, or to impose on David H. Steinwedell or Frank Parker
Hudson or any of the individuals named on the attached EXHIBIT "S" any duty to
investigate the matter to which such actual knowledge, or the absence thereof,
pertains. There shall be no personal liability on the part of David H.
Steinwedell, Frank Parker Hudson or the individuals named on the attached
EXHIBIT "S" arising out of any representations or warranties made herein or
otherwise.
4.3. Covenants and Agreements of Sellers.
(a) Leasing Arrangements. During the pendency of this
Agreement, no Seller will enter into any lease affecting the Properties of such
Seller, or modify or amend in any respect, or terminate, any of the existing
Leases or the Wells OP Ground Leases affecting the Properties of such Seller
without Purchaser's prior written consent in each instance, which consent, prior
to the end of the Inspection Period, shall not be unreasonably withheld, delayed
or conditioned and which shall be deemed given unless withheld by written notice
to such Seller given within five (5) Business Days after Purchaser's receipt of
such Seller's written request therefor, each of which requests shall be
accompanied by a copy of any proposed modification or amendment of an existing
Lease, Wells OP Ground Leases or of any new lease that such Seller wishes to
execute between the Effective Date and the Closing Date, including, without
limitation, a description of any Tenant Inducement Costs and leasing commissions
associated
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Purchase and Sale Agreement
with any proposed renewal or expansion of an existing Lease or Wells OP Ground
Lease or with any such new lease. If Purchaser fails to notify such Seller in
writing of its approval or disapproval within said five (5) Business Day period,
such failure by Purchaser shall be deemed to be the approval of Purchaser. After
the end of the Inspection Period and Purchaser's timely deposit of the Earnest
Money, Seller shall not enter into any lease affecting any Property of such
Seller, or modify or amend in any respect, or terminate any of the existing
Leases or the Wells OP Ground Leases without Purchaser's prior written consent
in each instance, which consent may be withheld in Purchaser's sole discretion.
At Closing, Purchaser shall reimburse each Seller for any Tenant Inducement
Costs, leasing commissions or other expenses, including reasonable attorneys'
fees, actually incurred by such Seller pursuant to a renewal or expansion of any
existing Lease or Wells OP Ground Lease or new lease approved by Purchaser
hereunder.
(b) New Contracts. During the pendency of this Agreement,
except for the Capital One Lake Easement Deed and the Kerr McGee Sewer Easement
(which sewer easement agreement has been circulated for execution), none of the
Sellers will enter into any contract, or modify, amend, renew or extend any
existing contract, that will be an obligation affecting the Properties of such
Seller or any part thereof subsequent to the Closing without Purchaser's prior
written consent in each instance (which Purchaser agrees not to withhold or
delay unreasonably), except contracts entered into in the ordinary course of
business that are terminable without cause (and without penalty or premium) on
thirty (30) days (or less) notice.
(c) Operation of Property. During the pendency of this
Agreement, each Seller shall continue to operate the Properties of such Seller
in a good and businesslike fashion consistent with such Seller's past practices.
(d) Insurance. During the pendency of this Agreement,
each Seller shall, at such Seller's expense, continue to maintain the insurance
policies covering the Improvements of such Seller which are currently in force
and effect.
(e) Tenant Estoppel Certificates. Each Seller shall
endeavor in good faith (but without obligation to incur any cost or expense) to
obtain and deliver to Purchaser prior to Closing a written Tenant Estoppel
Certificate in the form attached hereto as EXHIBIT "M" signed by each tenant
under each of the Leases affecting the Properties of such Seller; provided that
delivery of such signed Tenant Estoppel Certificates shall be a condition of
Closing only to the extent set forth in Section 6.1(c) hereof; and in no event
shall the inability or failure of such Seller to obtain and deliver said Tenant
Estoppel Certificates (each Seller having used its good faith efforts as set
forth above as to tenants under Leases of the Properties of such Seller) be a
default of such Seller hereunder. In addition to the foregoing, Sellers shall
use their good faith efforts (but without obligation to incur any cost or
expense) to have the tenants of certain of the Properties confirm the
information requested by Purchaser as set forth on Exhibit "V" attached hereto
and made a part hereof in such tenants' respective tenant estoppel certificates;
it being specifically understood and agreed, however, that the confirmation by
said tenants of the applicable information on the attached Exhibit "V" except as
specifically set forth to the contrary in Section 6.1(c) hereof with regard to
certain information identified as "critical" as to the Tenant Estoppel
Certificates for the Alstom Property, the AT&T (PA) Property and the Capital One
Property, shall not be a condition to Closing and the failure or inability of
Sellers to
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Purchase and Sale Agreement
obtain such written confirmation from said tenants (Sellers having used their
good faith efforts as aforesaid) shall not be a default of Sellers.
(f) Lease Guarantor Estoppel Certificates. Each
applicable Seller shall endeavor in good faith (but without obligation to incur
any cost or expense) to obtain and deliver to Purchaser prior to Closing a
written Lease Guarantor Estoppel Certificate in the form attached hereto as
EXHIBIT "T" signed by each Lease Guarantor with respect to the guaranty given or
made by such Lease Guarantor with respect to certain Leases affecting the
Properties of such Seller; provided that the delivery of such signed Lease
Guarantor Estoppel Certificates shall be a condition of Closing only to the
extent set forth in Section 6.1(d) hereof, and in no event shall the inability
or failure of such Seller to obtain and deliver said Lease Guarantor Estoppel
Certificates (each applicable Seller having used its good faith efforts as set
forth above as to the Lease Guarantor(s) of Leases of the Properties of such
Seller) be a default of such Seller hereunder.
(g) Highwoods Estoppel Certificates. Wells OP shall
endeavor in good faith (but without obligation to incur any cost of expense) to
obtain and deliver to Purchaser prior to Closing a written estoppel certificate
in the form attached hereto as EXHIBIT "Y" signed by Highwoods Properties, Inc.,
a Maryland corporation, with respect to each of the Highwoods Rental Guaranty
Agreements given and made with respect to certain Leases affecting the Capital
One Property; provided that the delivery of the Highwood Estoppel Certificates
shall be a condition of Closing only to the extent set forth in Section 6.1(e)
hereof, and in no event shall the inability or failure of Wells OP to obtain and
deliver the Highwoods Estoppel Certificates (Wells OP having used its good faith
efforts as set forth above) be a default of Wells OP hereunder.
(h) Association Estoppels. Sellers shall endeavor in good
faith (but without obligation to incur any cost or expense other than such
incidental cost or expense as may be specifically contemplated in the applicable
Declaration) to obtain and deliver to Purchaser prior to Closing a written
Association Estoppel Certificate signed on behalf of the applicable Associations
with respect to the Declarations more particularly described on the attached
EXHIBIT "D"; provided that in no event shall the inability or failure of any
Seller to obtain and deliver said Association Estoppel Certificates (Sellers
having used their respective good faith efforts as set forth above) be a default
of such Seller hereunder.
(i) Declarant Estoppels. Sellers shall endeavor in good
faith (but without obligation to incur any cost or expense other than such
incidental cost or expense as may be specifically contemplated in the applicable
Declaration) to obtain and deliver to Purchaser prior to Closing a written
Declarant Estoppel Certificate signed by the applicable Declarant under those
certain Declarations more particularly described on the attached EXHIBIT "D";
provided that in no event shall the inability or failure of any Seller to obtain
and deliver said Declarant Estoppel Certificates (Sellers having used their
respective good faith efforts as set forth above) be a default of such Seller
hereunder.
(j) Ground Lessor Estoppels. Wells OP shall endeavor in
good faith (but without obligation to incur any cost or expense) to obtain and
deliver to Purchaser prior to
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Purchase and Sale Agreement
Closing a written Ground Lessor Estoppel Certificate in the forms attached
hereto as EXHIBIT "H" signed by the applicable ground lessors under the ASML
Sub-Ground Lease, the Ingram Micro Bond Lease and the ISS Bond Lease; provided
that in no event shall the inability or failure of Wells OP to obtain and
deliver said Ground Lessor Estoppel Certificates (Wells OP having used its good
faith efforts as set forth above) be a default of Wells OP hereunder.
(k) Other Third Party Estoppels. Sellers shall endeavor
in good faith (but without obligation to incur any cost or expense) to obtain
and deliver to Purchaser prior to Closing a written estoppel certificate signed
on behalf of any other third party as may be reasonably requested by Purchaser
and in such form as may be reasonably requested by Purchaser (each an "Other
Third Party Estoppel Certificate" and any one or more, "Other Third Party
Estoppel Certificates"), including, without limitation, estoppel certificates
with respect to any Tax Abatement Agreements which, by their express terms,
contain provisions for the giving of estoppel certificates; provided that in no
event shall the inability or failure of any Seller to obtain and deliver said
Other Third Party Estoppel Certificates (Sellers having used their respective
good faith efforts as set forth above) be a default of such Seller or a
condition to Closing; and provided further that it is expressly understood and
agreed that any one or more estoppel certificates with respect to any of said
Tax Abatement Agreement may not be available, if at all, until after Closing.
(l) ROFR Notice to Bank of America. Sellers and Purchaser
mutually acknowledge and agree that prior to the Effective Date of this
Agreement, Wells Brea delivered an offer notice (the "Bank of America ROFR
Notice") to Bank of America NT & SA, the tenant of the Bank of America Property,
notifying it of Purchaser's offer to purchase the Bank of America Property for
the Purchase Price provided hereunder for said Property, and containing other
relevant terms of Purchaser's offer to purchase the Bank of America Property as
required pursuant to the terms of said tenant's right of first refusal to
purchase said Property as set forth in its Lease, and offering Bank of America
NT & SA the right to purchase the Bank of America Property on the terms set
forth in its Lease and the Bank of America ROFR Notice. Wells Brea shall keep
Purchaser promptly apprised of any written response received by Wells Brea from
Bank of America NT & SA in response to such notice.
(m) SNDAs. Sellers shall endeavor in good faith (but
without obligation to incur any cost or expense) to obtain from the Major
Tenants of the Properties subordination, nondisturbance and attornment
agreements in the form reasonably requested by Purchaser's lender or in the form
attached to such tenants' respective Leases ("SNDA" or "SNDAs"); provided,
however, that in no event shall the inability or failure of any Seller to obtain
and deliver said SNDAs (Sellers having used their respective good faith efforts
as set forth above) be a default of such Seller hereunder; and provided further
that Purchaser shall deliver to Sellers the completed forms of all such SNDAs as
soon as reasonably practicable following the Effective Date of this Agreement.
(n) Termination of Existing Property Management
Agreements. Following the Effective Date of this Agreement and prior to Closing,
Sellers agree to give written notice to each of the Property Managers of
termination of each such Property Manager's Property Management Agreement, such
termination to be effective only in the event of the closing of the
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Purchase and Sale Agreement
purchase and sale of the Property between such Seller and Purchaser; provided,
however, that Purchaser acknowledges and agrees that the respective Property
Management Agreements for the Allstate Property, the Alstom Power Property, the
AT&T (OK) Property, the Daimler Chrysler Property, the IKON Property, the John
Wiley Property, the Kerr McGee Property, the Pacificare Property, the Transocean
Property and the Travelers Express Property provide that the effective date of
the termination of the engagement of the respective Property Manager thereunder
is the last day of the calendar month occurring at least thirty (30) days after
the delivery of written notice of termination, and that the Property Management
Agreement for the Kraft Foods Property provides that the effective date of the
termination of the engagement of the Property Manager thereunder is the last day
of the calendar month occurring at least sixty (60) days after the delivery of
written notice of termination. At Closing, Purchaser hereby agrees to assume the
obligations of each applicable Seller under all of said Property Management
Agreements first accruing on or after the Closing through the effective date of
such termination of each such Property Management Agreement. Following the
Effective Date of this Agreement and prior to Closing, Purchaser shall have the
right to negotiate in good faith new property management agreements and related
agreements with the Property Manager, using Purchaser's standard forms for same
and incorporating the same or substantially equivalent economic terms as each
such Property Manager's Property Management Agreement with the applicable
Seller. Sellers and Purchaser mutually acknowledge and agree that the execution
and delivery by any Property Manager of replacement property management
agreements and related agreements on Purchaser's forms shall not be a condition
to Closing, and Sellers shall have no obligations whatsoever to Purchaser with
respect to Purchaser's negotiations with the Property Managers.
(o) Second Amendment to Gartner Office Lease. Sellers
shall endeavor in good faith (but without obligation to incur any cost or
expense) to obtain the execution and delivery by Gartner, Inc., at or prior to
Closing of the Gartner Property, of that certain Second Amendment to Gartner
Office Lease substantially in the form attached hereto as Exhibit "CC" and made
a part hereof (the "Gartner Lease Amendment"), with such modifications thereto
as may be reasonably approved requested by Gartner, Inc. and approved by
Purchaser; provided, however, that the failure or inability of Sellers to obtain
and deliver the Gartner Lease Amendment by Closing (Sellers having used their
good faith efforts as aforesaid) shall in no event be deemed a default of
Sellers.
(p) Letter Amendment to ISS Building III Lease. Sellers
shall endeavor in good faith (but without obligation to incur any cost or
expense) to obtain the execution and delivery by Internet Security Systems,
Inc., at or prior to Closing of the ISS Property, of that certain letter
amendment to the ISS Building III Lease substantially in the form attached
hereto as Exhibit "DD" and made a part hereof (the "ISS Lease Amendment"), with
such modifications thereto as may be reasonably approved requested by Internet
Security Systems, Inc. and approved by Purchaser; provided, however, that the
failure or inability of Sellers to obtain and deliver the ISS Lease Amendment by
Closing (Sellers having used their good faith efforts as aforesaid) shall in no
event be deemed a default of Sellers.
(q) Alstom Power Property / French Drain Work. Prior to
the Effective Date hereof, Wells Virginia REIT has disclosed to Purchaser that
certain work at the Alstom Power Property, which consists of the installation of
a so-called "french drain" system as more
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Purchase and Sale Agreement
particularly shown in the plans attached hereto as Exhibit "EE" and made a part
hereof, has been planned and is in progress, with all such work anticipated to
be completed on or about February 22, 2005, as set forth on the schedule
included as a part of the attached Exhibit "EE" (the "Alstom Power Property
Drain Work"), and that such work is being prosecuted by and under the direction
of Wells Virginia REIT's developer of the Alstom Power Property, ADEVCO
Corporation. As between Sellers and Purchaser, Wells Virginia REIT shall be and
remain responsible for assuring that the Alstom Power Property Drain Work is
completed in accordance with the plans therefor, and in a good and workmanlike
and lien-free manner and in accordance with all applicable laws. Within ten (10)
days following the date of substantial completion (as certified by the general
contractor performing such work), representatives of Wells Virginia REIT,
Purchaser and the tenant of the Alstom Power Property shall jointly conduct a
walk-through and inspection of the Alstom Power Drain Work and jointly prepare
and approve a list of punch list items to be completed in accordance with the
terms hereof. Wells Virginia REIT shall promptly and with due diligence complete
all such punch list items. If for any reason beyond the reasonable control of
Wells Virginia REIT, any portion of the Alstom Power Property Drain Work is not
so completed prior to the Closing Date, Wells Virginia REIT agrees that it shall
remain responsible for assuring the completion of all of such work as aforesaid
following the Closing of such Property; and in such event the provisions of this
subsection shall survive the Closing.
(r) Consents to Assignment of Tax Abatement Agreements,
Bond Documents and Leasehold Interests. Sellers and Purchaser mutually
acknowledge and agree that the transfer of certain of the Tax Abatement
Agreements to Purchaser requires the consent and approval of certain
governmental or quasi-governmental entities, that the transfer of the Ingram
Micro Bond Lease to Purchaser requires the consent and approval of certain
governmental and quasi-governmental entities, that the transfer of the ASML
Property to Purchaser requires the approval of the ASML Ground Lessors, and that
the transfer of the ISS Bonds requires action by the Development Authority of
Fulton County, Georgia. Sellers and Purchaser shall cooperate and use their
respective good faith efforts to prepare and the necessary applications for seek
such approvals and consents, including, without limitation, the delivery by
Purchaser to Sellers as expeditiously as possible information regarding the
ownership structures of Purchaser's acquisition entities for the affected
Properties. Subject to the foregoing, Sellers and Purchaser shall seek to obtain
such approvals and consents prior to Closing. In the event, however, that the
transfer and assignment of the Tax Abatement Agreements for the Kerr McGee
Property and the Pacificare Property have not been obtained prior to the outside
date for Closing, or replacement original ISS Bonds issued in the name of
Purchaser or a replacement Ingram Micro Industrial Development Revenue Note
shall not have been obtained prior to the outside date for Closing, the same
shall not be conditions to Closing; and the parties shall continue to pursue
obtaining such approvals and the issuance of such replacement ISS Bonds and the
replacement Ingram Micro Industrial Development Revenue Note as expeditiously as
practicable following the Closing of said Properties. The provisions of this
subsection shall survive the Closing.
(s) Construction of Gartner Surface Parking Expansion.
Wells Funds XI and XII REIT JV and Wells OP hereby covenant and agree to
construct and install no fewer than one hundred twenty-five (125) surface
parking spaces on the Gartner Surface Parking Property in accordance with the
Gartner Parking Plans and all applicable governmental laws, statutes,
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Purchase and Sale Agreement
ordinances, codes, rules and regulations (such work is herein referred to as the
"Gartner Parking Work"), with all of such work to be completed within the time
and otherwise in accordance with the terms of the Gartner Parking Lease. All of
such Gartner Parking Work shall be performed in a good and workmanlike manner,
employing reasonable standards of construction, in no event later June 30, 2005
(the "Delivery Date" as defined in the Gartner Parking Lease) (subject to force
majeure in accordance with the Gartner Parking Lease) and on a lien-free basis
and in accordance with the terms of the Gartner Parking Lease. Purchaser's
engineer shall be permitted to inspect the Gartner Parking Work on a periodic
basis until the completion thereof. For purposes hereof, "substantial
completion" shall mean the date upon which the work contemplated herein and by
the Gartner Parking Lease and the Gartner Parking Plans shall have been
substantially completed in accordance with the standards set forth herein and
therein (inclusive of landscaping, to the extent landscaping can be feasibly
installed due to the season), as evidenced by a certificate to such effect from
the engineer who prepared plans for such work, and subject only to minor punch
list items approved by Gartner, Inc., as tenant, and Purchaser. Within ten (10)
days following the date of substantial completion (as certified by Seller's
engineer), representatives of such Sellers, Purchaser and said tenant shall
jointly conduct a walk-through and inspection of the Gartner Parking Work and
jointly prepare and approve a list of punch list items to be completed in
accordance with the terms hereof (the "Gartner Punch List Items"). Such Sellers
shall promptly and with due diligence complete such Gartner Punch List Items.
Upon final completion of such work, such Sellers shall assign to Purchaser all
warranties and guaranties given or made in connection with such work, including,
without limitation, a one-year guaranty of such work given by the general
contractor performing such work, and such Sellers shall provide to Purchaser:
(i) such Sellers' engineer's certificate of final completion, (ii) copies of all
governmental permits or approvals required to be issued in connection with the
construction and use of the additional surface parking improvements; (iii) the
sworn final lien waiver and affidavit of the general contractor, (iv) final lien
waivers from all contractors, subcontractors and materialmen; and (v) any other
information or documentation reasonably requested by Purchaser and available at
no additional cost or expense to Sellers to evidence the lien-free completion of
construction and payment of all costs associated with the Gartner Parking Work.
In addition to the foregoing, promptly following the final completion of the
Gartner Parking Work, but in no event later than July 15, 2005, Sellers shall
pay to Purchaser an amount equal to the remaining balance of the $468,000.00
tenant allowance provided under the first amendment to the Gartner Office Lease
after deducting therefrom, as contemplated pursuant to Section 5 of the first
amendment to the Gartner Office Lease (x) the initial $5,000.00 for payment of
rent under the Gartner Parking Lease, and (y) the cost of the Gartner Parking
Work (including, without limitation, the actual cost of the fixed price contract
and a five percent (5%) construction management fee, all subject to and in
accordance with the applicable provisions of the Gartner Parking Lease),
together with copies of all invoices, bills and other reasonable supporting
information relating to the cost of the Gartner Parking Work. Wells Funds XI and
II REIT JV and Wells OP hereby reserve and retain the right and privilege, on
behalf of such Sellers, their agents, contractors and employees, of entering
upon the Gartner Property from and after the Closing as reasonably necessary to
complete the construction and installation of the Gartner Parking Work. Such
Sellers shall maintain or shall cause the general contractor performing the
Gartner Parking Work to maintain commercially reasonable insurance coverage at
all times during the performance of such work. Such Sellers shall and hereby
agree to indemnify and hold Purchaser harmless from and against any and all
loss, liability, cost, damage
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Purchase and Sale Agreement
or expense that Purchaser may suffer or incur (including, without limitation,
reasonable attorneys' fees actually incurred) proximately caused by the
performance of the Gartner Parking Work or by such Sellers' failure to complete
the Gartner Parking Work in accordance with the provisions of this Section
4.3(s). In the event that such Sellers shall default in the performance of their
obligations pursuant to this Section 4.3(s) and such default shall continue for
a period of five (5) Business Days after written notice from Purchaser or
Gartner, Inc. to such Sellers (provided, however, that such Sellers shall not be
deemed in default hereunder if such Sellers commence such remedy or cure within
five (5) Business Days after receipt of such notice, and thereafter diligently
pursues to remedy or cure such default so long as such cure is completed on or
before June 30, 2005), then Purchaser may, but shall not be obligated, to
complete the Gartner Parking Work at such Sellers' expense. The provisions of
this Section 4.3(s) shall survive the Closing for a period of one (1) year
following the date of substantial completion of said work.
(t) ASML Non-Disturbance Agreement. Wells OP agrees to
use good faith efforts to seek to obtain (at no cost or expense to Wells OP) the
execution and delivery by the Prime Ground Lessor of a non-disturbance agreement
in a form reasonably requested by Purchaser and provided to Wells OP promptly
following the Effective Date hereof by Purchaser's Counsel (the "ASML
Non-Disturbance Agreement"). In no event, however, shall the inability or
failure of Wells OP to obtain and deliver the ASML Non-Disturbance Agreement
(Wells OP having used its good faith efforts as set forth above) be a default of
Wells OP hereunder, and in no event shall the execution and delivery of the ASML
Non-Disturbance Agreement be a condition to Closing hereunder.
(u) Nissan Quitclaim Deed. Wells OP agrees to use good
faith efforts to obtain (at no cost or expense to Wells OP) the execution and
delivery of the Nissan Quitclaim Deed. In no event, however, shall the inability
or failure of Wells OP to obtain and deliver the Nissan Quitclaim Deed (Wells OP
having used its good faith efforts as set forth above) be a default of Wells OP
hereunder, and in no event shall the execution and delivery of the Nissan
Quitclaim Deed be a condition to Closing hereunder.
4.4. Representations and Warranties of Purchaser.
(a) Organization, Authorization and Consents. Purchaser
is a duly organized and validly existing statutory real estate investment trust
under the laws of the State of Maryland. Purchaser has the right, power and
authority to enter into this Agreement and to purchase the Property in
accordance with the terms and conditions of this Agreement, to engage in the
transactions contemplated in this Agreement and to perform and observe the terms
and provisions hereof.
(b) Action of Purchaser, Etc. Purchaser has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement, and upon the execution and delivery of any document to be delivered
by Purchaser on or prior to the Closing, this Agreement and such document shall
constitute the valid and binding obligation and agreement of Purchaser,
enforceable against Purchaser in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors.
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Purchase and Sale Agreement
(c) No Violations of Agreements. Neither the execution,
delivery or performance of this Agreement by Purchaser, nor compliance with the
terms and provisions hereof, will result in any breach of the terms, conditions
or provisions of, or conflict with or constitute a default under the terms of
any indenture, deed to secure debt, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument by which Purchaser is bound.
(d) Litigation. To Purchaser's knowledge, Purchaser has
received no written notice that any action or proceeding is pending or
threatened, which questions the validity of this Agreement or any action taken
or to be taken pursuant hereto.
The representations and warranties made in this Agreement by Purchaser
shall be continuing and shall be deemed remade by Purchaser as of the Closing
Date, with the same force and effect as if made on, and as of, such date subject
to Purchaser's right to update such representations and warranties by written
notice to Sellers and in Purchaser's certificate to be delivered pursuant to
Section 5.2(o) hereof.
4.5 Covenants and Agreements of Purchaser. Sellers and Purchaser
hereby mutually acknowledge and agree that prior to the Effective Date of this
Agreement, Sellers and Purchaser engaged in extensive negotiations, and
Purchaser undertook due diligence investigations [including, without limitation,
an interview with representative(s) of Matsushita (as defined below)], with
respect to the potential sale by Wells OP and the purchase by Purchaser, in
addition to the Properties that are the subject of this Agreement, of that
certain improved real property located at 26200 Enterprise Way, in the City of
Lake Forest, Orange County, California, which is leased by Wells OP to
Matsushita Avionics Systems Corporation pursuant to that certain Office Lease,
dated February 18, 1999, between Wells OP and Matsushita Avionics Systems
Corporation, as amended by amendments dated July 30, 1999, April 30, 2001, and
September 18, 2002 (said lease, as so amended, is herein referred to as the
"Existing Matsushita Lease"). Matsushita Avionics Systems Corporation, together
with Matsushita Electric Corporation of America, and its or their direct or
indirect affiliates, subsidiaries, parents or divisions, are herein referred to
collectively as "Matsushita"; and the real property which is the subject of the
Existing Matsushita Lease is herein referred to as the "Matsushita Property".
Sellers and Purchaser hereby further acknowledge and agree that at the request
of Purchaser, the Matsushita Property is not included in the Properties which
are the subject of this Agreement. As a material inducement to the agreement of
Sellers to enter into this Agreement for the purchase and sale of the Properties
without the inclusion of the Matsushita Property, Purchaser, for itself and the
Purchaser-Related Entities, hereby covenants and agrees that, for a period of
five (5) years after the Effective Date of this Agreement, neither Purchaser nor
any Purchaser-Related Entity shall, directly or indirectly, lease, offer or
agree to lease, sell or offer to sell to Matsushita, or accept an offer to lease
or purchase from Matsushita, with respect to any real property or any interest
in any real property, or in any space now or hereafter available in any real
property, which is located within Orange County, California, and which Purchaser
or any Purchaser-Related Entity now or hereafter owns, manages or leases, or in
which Purchaser or any Purchaser-Related Entity now has or hereafter acquires an
ownership interest (a "Purchaser-Controlled Competing Property"). Purchaser
agrees that in addition to any other remedy that may be available at law, in
equity or under this Agreement, Sellers shall
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Purchase and Sale Agreement
be entitled to specific performance and injunctive relief, without posting bond
or any other security to enforce or prevent the violation of the covenants
contained in this Section. The covenants and agreements contained in this
Section shall be presumed to be enforceable, and any reading causing
unenforceability shall yield to a construction permitting enforcement. In the
event a court should determine not to enforce the covenants contained herein as
written due to overbreadth, the parties specifically agree that said covenant
shall be enforced to the maximum extent reasonable, whether said revisions shall
be in time, territory, scope of prohibited activities or other respects. The
provisions of this Section 4.5 shall survive the Closing under this Agreement or
any earlier termination of this Agreement.
ARTICLE 5.
CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS
5.1. Sellers' Closing Deliveries. For and in consideration of, and
as a condition precedent to Purchaser's delivery to Sellers of the Purchase
Price, Sellers shall obtain or execute and deliver to Purchaser at Closing the
following documents, all of which shall be duly executed, acknowledged and
notarized where required:
(a) Limited Warranty Deeds. A limited warranty deed,
special warranty deed, grant deed or similar deed in the form customarily used
in the jurisdiction in which the applicable Property is located pursuant to
which a grantor warrants title only as to parties claiming by, through or under
the grantor but not otherwise, from each Seller with respect to the Wells OP
Land and associated Wells OP Improvements or applicable Wells Affiliate Land and
associated Wells Affiliate Improvements owned by such Seller (each, a "Limited
Warranty Deed"), subject only to the Permitted Exceptions applicable to such
Property, and executed and acknowledged by such Seller. The legal descriptions
of the Wells OP Lands and Wells Affiliate Lands set forth in the Limited
Warranty Deeds shall be based upon and conform to the applicable legal
descriptions attached hereto as EXHIBIT "A-1" and EXHIBIT "A-2". If and to the
extent that any of the Permitted Exceptions to which a particular Property is
subject requires the recitation or incorporation in any deed of any provisions
of such Permitted Exception, the Limited Warranty may conform to such
requirements;
(b) Quitclaim Deed. Upon request, each Seller shall
deliver a quitclaim deed in the form customarily used in the jurisdiction or
jurisdictions in which the Property or Properties of such Seller are located to
convey the Property or Properties owned by such Seller by reference to the metes
and bounds legal description of such Property as reflected on an updated Survey
of such Property obtained by Purchaser;
(c) Assignment and Assumption of Lessee's Interests in
Wells OP Ground Leases. With respect to each of the Wells OP Ground Leases, the
following:
(i) Assignment and Assumption of ASML Sub-Ground
Lease. Two (2) counterparts of an assignment
and assumption of the lessee's interest in
the ASML Sub-Ground Lease in the form
attached hereto as SCHEDULE 1 and made a
part hereof (the "Assignment and Assumption
of ASML Sub-Ground Lease");
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Purchase and Sale Agreement
(ii) Assignment and Assumption of Ingram Micro
Bond Lease. Two (2) counterparts of an
assignment and assumption of the lessee's
interest in the Ingram Micro Bond Lease in
the form attached hereto as SCHEDULE 2 and
made a part hereof (the "Assignment and
Assumption of Ingram Micro Bond Lease"); and
(iii) Assignment and Assumption of ISS Bond Lease.
Two (2) counterparts of an assignment and
assumption of the lessee's interest in the
ISS Bond Lease in the form attached hereto
as SCHEDULE 3 and made a part hereof (the
"Assignment and Assumption of ISS Bond
Lease");
(d) Assignment and Assumption of Leases and Security
Deposits. Two (2) counterparts with respect to each Seller of an assignment and
assumption of the Leases and Security Deposits with respect to the Properties of
such Seller and, to the extent required elsewhere in this Agreement, the
obligations of such Seller under the Commission Agreements with respect to the
Properties of such Seller in the form attached hereto as SCHEDULE 4 (the
"Assignment and Assumption of Leases"), executed and acknowledged by such
Seller,
(e) Assignment and Assumption of ASML Sublease. Two (2)
counterparts of an assignment and assumption of the ASML Sublease in the form
attached hereto as SCHEDULE 5 (the "Assignment and Assumption of ASML
Sublease");
(f) Assignment and Assumption of Ingram Micro Sublease.
Two (2) counterparts of an assignment and assumption of the Ingram Micro
Sublease in the form attached hereto as SCHEDULE 6 (the "Assignment and
Assumption of Ingram Micro Sublease");
(g) Assignment and Assumption of ISS Subleases. Two (2)
counterparts of an assignment and assumption of the ISS Subleases in the form
attached hereto as SCHEDULE 7 (the "Assignment and Assumption of ISS
Subleases");
(h) Bill of Sale. A bill of sale from each Seller for the
Personal Property of such Seller in the form attached hereto as SCHEDULE 8 (the
"Bill of Sale"), without warranty as to the title or condition of the Personal
Property of such Seller;
(i) Assignment and Assumption of Ingram Micro Loan
Documents. Two (2) counterparts of an assignment and assumption of the Ingram
Micro Loan Documents in the form attached hereto as SCHEDULE 9 (the "Assignment
and Assumption of Ingram Micro Loan Documents");
(j) Assignment of ISS Bonds. A transfer and assignment of
the ISS Bonds, executed on behalf of Wells OP, accompanied by the original ISS
Bonds, transferring the same to Purchaser;
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Purchase and Sale Agreement
(k) Assignment and Assumption of ISS Bond Documents. Two
(2) counterparts of an assignment and assumption of the ISS Bond Documents in
the form attached hereto as SCHEDULE 10 (the "Assignment and Assumption of ISS
Bond Documents");
(l) Assignment and Assumption of Service Contracts. Two
(2) counterparts with respect to each Seller of an assignment and assumption of
Service Contracts with respect to the Properties of such Seller in the form
attached hereto as SCHEDULE 11 (the "Assignment and Assumption of Service
Contracts"), executed, acknowledged and sealed by each such Seller;
(m) General Assignment. An assignment with respect to
each Seller of the Intangible Property of such Seller in the form attached
hereto as SCHEDULE 12 (the "General Assignment"), executed and acknowledged by
each such Seller;
(n) Seller's Affidavit. An owner's affidavit from each
Seller substantially in the form attached hereto as SCHEDULE 13 ("Seller's
Affidavit"), stating that there are no known boundary disputes with respect to
the Properties of such Seller, that there are no parties in possession of the
Properties of such Seller other than such Seller and the tenants under the
Leases of such Properties, and as to the Wells Affiliate Ground Lease Lands, the
tenants and other persons and entities permitted by the Wells Affiliate Ground
Leases, and, as to the Wells OP Ground Lease Land, the tenants and other persons
and entities permitted by the Wells OP Ground Lease, that any improvements or
repairs made by, or for the account of, or at the instance of such Seller to or
with respect to the Properties of such Seller within ninety-five (95) days (or
such longer period as may be required by the Title Company to comply with the
lien laws of the applicable jurisdiction in which such Property is situated)
prior to the Closing have been paid for in full (or that adequate provision has
been made therefor to the reasonable satisfaction of the Title Company), and
including such other matters as may be reasonably requested by the Title
Company;
(o) Seller's Certificate. A certificate from each Seller
in the form attached hereto as SCHEDULE 14 ("Seller's Certificate"), evidencing
the reaffirmation of the truth and accuracy in all material respects of such
Seller's representations and warranties set forth in Section 4.1 hereof, with
such modifications thereto as may be appropriate in light of any change in
circumstance since the Effective Date;
(p) FIRPTA Certificate. A FIRPTA Certificate from each
Seller in the form attached hereto as SCHEDULE 15, or in such other form as
applicable laws may require;
(q) Ingram Micro Bond Certificate. A bond certificate
executed by the Industrial Development Board of the City of Millington,
Tennessee in the form attached hereto as SCHEDULE 16 (the "Ingram Micro Bond
Certificate");
(r) ISS Home Office Payment Agreement. Three (3)
counterparts of a home office payment agreement executed by the ISS Trustee and
the ISS Issuer in the form attached hereto as SCHEDULE 17 (the "ISS Home Office
Payment Agreement");
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Purchase and Sale Agreement
(s) Assignment and Assumption of Agreements Regarding ISS
Letters of Credit. Two (2) counterparts of an assignment and assumption of
agreements regarding letter of credit executed by Wells OP and Purchaser in the
form attached hereto as SCHEDULE 18 (the "Assignment and Assumption of
Agreements Regarding ISS Letters of Credit");
(t) Assignment of Letters of Credit. Two (2) counterparts
of an assignment of letters of credit executed by the applicable Sellers in the
form attached hereto as SCHEDULE 19 (the "Assignment of Letters of Credit");
(u) Assignment and Assumption of Highwoods Rental
Guaranty Agreements. Two (2) counterparts of an assignment and assumption of the
interests and obligations of Wells OP under the Highwoods Rental Guaranty
Agreements in the form attached hereto as SCHEDULE 21 (the "Assignment and
Assumption of Highwoods Rental Guaranty Agreements");
(v) Assignment and Assumption of Pacificare Escrow
Agreement. Two (2) counterparts of an assignment and assumption of the interests
and obligations of Wells OP under the Pacificare Escrow Agreement in the form
attached hereto as SCHEDULE 22 (the "Assignment and Assumption of Pacificare
Escrow Agreement");
(w) Evidence of Authority. Such documentation as may
reasonably be required by Purchaser's title insurer to establish that this
Agreement, the transactions contemplated herein, and the execution and delivery
of the documents required hereunder, are duly authorized, executed and delivered
on behalf of the applicable Seller;
(x) Settlement Statements. A settlement statement setting
forth the amounts paid by or on behalf of and/or credited to each of Purchaser
and each Seller pursuant to this Agreement;
(y) Surveys and Plans. Such surveys, site plans, plans
and specifications, and other matters relating to the Property as are in the
possession of Sellers to the extent not theretofore delivered to Purchaser;
(z) Certificates of Occupancy. To the extent the same are
in the possession of Sellers, original or photocopies of certificates of
occupancy for all space within the improvements located on the Property;
(aa) Leases. To the extent the same are in the possession
or control of Sellers, original executed counterparts of the Leases and the
Wells OP Ground Leases;
(bb) Tenant Estoppel Certificates. All originally executed
Tenant Estoppel Certificates as may be in the possession of Sellers;
(cc) Lease Guarantor Estoppel Certificates. All originally
executed Lease Guarantor Estoppel Certificates as may be in the possession of
Sellers;
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Purchase and Sale Agreement
(dd) Highwoods Estoppel Certificate. All originally
executed Highwoods Estoppel Certificates as may be in the possession of Sellers;
(ee) SNDAs. All originally executed SNDAs as may be in the
possession of Sellers;
(ff) Ground Lessor Estoppel Certificates. All originally
executed Ground Lessor Estoppel Certificates as may be in the possession of
Wells OP;
(gg) Association Estoppel Certificates. All originally
executed Association Estoppel Certificates as may be in the possession of
Sellers;
(hh) Declarant Estoppel Certificates. All originally
executed Declarant Estoppel Certificates as may be in the possession of Sellers;
(ii) Other Third Party Estoppel Certificates. All
originally executed Other Third Party Estoppel Certificates as may be in the
possession of Sellers;
(jj) Notices of Sale to Tenants. Each Seller, as to each
Property owned by such Seller, will join with Purchaser in executing a notice,
in form and content reasonably satisfactory to such Seller and Purchaser (the
"Tenant Notices of Sale"), which Purchaser shall send to each tenant under the
Leases affecting the Properties of such Seller informing such tenant of the sale
of such Properties and of the assignment to and assumption by Purchaser of such
Seller's interest in the Leases and the Security Deposits affecting such
Properties and directing that all rent and other sums payable for periods after
the Closing under such Lease shall be paid as set forth in said notices;
(kk) Notices of Sale to Ground Lessors. Wells OP will join
with Purchaser in executing a notice, in form and content reasonably
satisfactory to Wells OP and Purchaser (the "Ground Lessor Notices of Sale"),
which Purchaser shall send to the ASML Prime Ground Lessor, the ASML Sub-Ground
Lessor, the Ingram Micro Ground Lessor and the ISS Ground Lessor informing such
ground lessor of the sale of the ASML Property, the Ingram Micro Property and
the ISS Property and of the assignment to and assumption by Purchaser of the
interest of Wells OP under the ASML Sub-Ground Lease, the Ingram Micro Bond
Lease and the ISS Bond Lease affecting such Properties and directing that all
notices to the lessee under such leases after the Closing be sent to Purchaser;
(ll) Notices of Sale to Service Contractors and Leasing
Agents. Each Seller, as to the Properties of such Seller, will join with
Purchaser in executing notices, in form and content reasonably satisfactory to
such Seller and Purchaser (the "Other Notices of Sale"), which Purchaser shall
send to each service provider and leasing agent under the Service Contracts and
Commission Agreements (as the case may be) affecting the Properties of such
Seller assumed by Purchaser at Closing informing such service provider or
leasing agent (as the case may be) of the sale of such Properties and of the
assignment to and assumption by Purchaser of such Seller's obligations under the
Service Contracts and Commission Agreements affecting the Properties of such
Seller arising after the Closing Date and directing that all future
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Purchase and Sale Agreement
statements or invoices for services under such Service Contracts and/or
Commission Agreements for periods after the Closing be directed to Purchaser as
set forth in said notices;
(mm) Notices of Sale to Associations. Each applicable
Seller, as to the Properties of such Seller, will join with Purchaser in
executing a notice, in form and content reasonably satisfactory to such Seller
and Purchaser (the "Association Notices of Sale"), which Purchaser shall send to
the Associations informing the Associations of the sale of the Properties of
such Seller and directing that all requests for payments due to such Association
for periods after the Closing be directed to Purchaser as set forth in said
notice and providing a notice address for Purchaser;
(nn) Notices of Sale to Declarants under Declarations.
Each applicable Seller, as to the Properties of such Seller, will join with
Purchaser in executing a notice, in form and content reasonably satisfactory to
such Seller and Purchaser (the "Declarant Notices of Sale"), which Purchaser
shall send to the Declarants under the Declarations informing the Declarants of
the sale of the Properties of such Seller and directing that all requests for
payments under the Declarations for periods after the Closing be directed to
Purchaser as set forth in said notice and providing a notice address for
Purchaser under the Declarations;
(oo) Assignment of Interest in Alstom Power Lease
Amendments. An assignment executed by Wells OP (as the sole member of Wells
Virginia REIT) transferring and assigning to Wells Virginia REIT all right,
title and interest of Wells OP in and to that certain Third Amendment to Lease
Agreement, dated May 4, 2002, between Wells OP and Alstom Power Inc., that
certain Fourth Amendment to Lease Agreement, dated May 31, 2002, between Wells
OP and Alstom Power Inc., and that certain Fifth Amendment to Lease Agreement,
dated July 29, 2004, between Wells OP and Alstom Power Inc.;
(pp) Gartner Lease Amendment. An original fully executed
counterpart of the Gartner Lease Amendment, to the extent the same is in
Sellers' possession;
(qq) ISS Lease Amendment. An original fully executed
counterpart of the ISS Lease Amendment, to the extent the same is in Sellers'
possession;
(rr) ASML Non-Disturbance Agreement. An originally fully
executed counterpart of the ASML Non-Disturbance Agreement, to the extent the
same is in Seller's possession;
(ss) Replacement Ingram Micro Industrial Development
Revenue Note. A replacement original of the Ingram Micro Industrial Development
Revenue Note, as endorsed or assigned to Purchaser, to the extent the same is in
Seller's possession; or in the absence of such original replacement note, an
affidavit executed on behalf of Wells OP that such note has been lost and that
Wells OP has not assigned such note to any other person;
(tt) Replacement ISS Bonds. Replacement originals of the
ISS Bonds, issued in the name of Purchaser, to the extent the same are in
Seller's possession;
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Purchase and Sale Agreement
(uu) Assignment of Opus Indemnity. An assignment of all
rights of Wells OP with respect to the Opus Indemnity;
(vv) Assignment of Allstate Purchase Option. An assignment
by Wells OP to Purchaser of all rights of Wells OP under and pursuant to the
Allstate Purchase Option;
(ww) Nissan Quitclaim Deed. The Nissan Quitclaim Deed, to
the extent the same is in the possession of Wells OP;
(xx) Keys and Records. All of the keys to any door or lock
on the Properties and the original tenant files and other non-confidential books
and records (excluding any appraisals, budgets, third party reports obtained by
Sellers prior to the acquisition of the respective Properties by such Sellers,
strategic plans for the Properties, internal analyses, information regarding the
marketing of the Properties for sale, submissions relating to Sellers' obtaining
of corporate authorization, attorney and accountant work product,
attorney-client privileged documents, or other information in the possession or
control of Sellers which Sellers or either of them deem proprietary) relating to
the Property in the possession of Sellers;
(yy) Property Manager Lien Waivers. Executed lien waivers
from the managers under the Management Agreements in those jurisdictions in
which property managers may have statutory lien rights, to the extent such lien
waivers may be in Sellers' possession (Sellers hereby agreeing to use good faith
efforts to obtain the same);
(zz) Original Letters of Credit. All original Letters of
Credit in the possession of Sellers, together with transfers executed by each
applicable Seller, directing the respective issuers of the Letters of Credit to
transfer the Letters of Credit to Purchaser as beneficiary thereunder; and
(aaa) Other Documents. Such other documents as shall be
reasonably requested by Purchaser's title insurer to effectuate the purposes and
intent of this Agreement.
5.2. Purchaser's Closing Deliveries. Purchaser shall obtain or
execute and deliver to Sellers at Closing the following documents, all of which
shall be duly executed, acknowledged and notarized where required:
(a) Assignment and Assumption of Leases. Two (2)
counterparts of the Assignment and Assumption of Leases with respect to each
Seller, executed and acknowledged by Purchaser;
(b) Assignment and Assumption of ASML Sub-Ground Lease.
Two (2) counterparts of the Assignment and Assumption of ASML Sub-Ground Lease,
executed and acknowledged by Purchaser;
(c) Assignment and Assumption of Ingram Micro Bond Lease.
Two (2) counterparts of the Assignment and Assumption of Ingram Micro Bond
Lease, executed and acknowledged by Purchaser;
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Purchase and Sale Agreement
(d) Assignment and Assumption of ISS Bond Lease. Two (2)
counterparts of the Assignment and Assumption of ISS Bond Lease, executed and
acknowledged by Purchaser;
(e) Assignment and Assumption of Ingram Micro Loan
Documents. Two (2) counterparts of the Assignment and Assumption of Ingram Micro
Loan Documents, executed and acknowledged by Purchaser;
(f) Assignment and Assumption of ISS Bond Documents. Two
(2) counterparts of the Assignment and Assumption of ISS Bond Documents,
executed and acknowledged by Purchaser;
(g) Assignment and Assumption of ASML Sublease. Two (2)
counterparts of the Assignment and Assumption of ASML Sublease, executed and
acknowledged by Purchaser;
(h) Assignment and Assumption of Ingram Micro Sublease.
Two (2) counterparts of the Assignment and Assumption of Ingram Micro Sublease,
executed and acknowledged by Purchaser;
(i) Assignment and Assumption of ISS Subleases. Two (2)
counterparts of the Assignment and Assumption of ISS Subleases, executed and
acknowledged by Purchaser;
(j) Assignment and Assumption of Service Contracts. Two
(2) counterparts of the Assignment and Assumption of Service Contracts with
respect to each Seller, executed and acknowledged by Purchaser;
(k) General Assignment. Two (2) counterparts of the
General Assignment with respect to each Seller, executed and acknowledged by
Purchaser;
(l) ISS Home Office Payment Agreement. Two (2)
counterparts of the ISS Home Office Payment Agreement, executed and acknowledged
by Purchaser;
(m) Assignment and Assumption of Agreements Regarding ISS
Letters of Credit. Two (2) counterparts of the Assignment and Assumption of
Agreements Regarding ISS Letters of Credit, executed and acknowledged by
Purchaser;
(n) Assignment of Letters of Credit. Two (2) counterparts
of the Assignment of Letters of Credit, executed by Purchaser;
(o) Assignment and Assumption of Highwoods Rental
Guaranty Agreements. Two (2) counterparts of the Assignment and Assumption of
Highwoods Rental Guaranty Agreements.
(p) Purchaser's Certificate. A certificate in the form
attached hereto as SCHEDULE 22 ("Purchaser's Certificate"), evidencing the
reaffirmation of the truth and accuracy in all material respects of Purchaser's
representations and warranties contained in
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Purchase and Sale Agreement
Section 4.4 hereof, with such modifications thereto as may be appropriate in
light of any change in circumstances since the Effective Date;
(q) Notice of Sale to Tenants. The Tenant Notices of
Sale, executed by Purchaser, as contemplated in Section 5.1(cc) hereof;
(r) Notices of Sale to Ground Lessors. The Ground Lessor
Notices of Sale, executed by Purchaser, as contemplated in Section 5.1(dd)
hereof;
(s) Notices of Sale to Service Contractors and Leasing
Agents. The Other Notices of Sale to service providers and leasing agents, as
contemplated in Section 5.1(ee) hereof;
(t) Notices of Sale to Associations. The Association
Notices of Sale, executed by Purchaser, as contemplated in Section 5.1(ff)
hereof;
(u) Notices of Sale to Declarants. The Declarant Notices
of Sale, executed by Purchaser, as contemplated in Section 5.1(gg) hereof;
(v) SNDAs. Such SNDAs as may have been executed and
delivered by any Major Tenants;
(w) Assignment and Assumption of Pacificare Escrow
Agreement. Two (2) counterparts of the Assignment and Assumption of Pacificare
Escrow Agreement;
(x) Settlement Statement A settlement statement setting
forth the amounts paid by or on behalf of and/or credited to each of Purchaser
and Sellers pursuant to this Agreement;
(y) Evidence of Authority. A copy of resolutions of the
Board of Directors of Purchaser, certified by the Secretary or Assistant
Secretary of Purchaser to be in force and unmodified as of the date and time of
Closing, authorizing the purchase contemplated herein, the execution and
delivery of the documents required hereunder, and designating the signatures of
the persons who are to execute and deliver all such documents on behalf of
Purchaser or if Purchaser is not a corporation, such documentation as Seller may
reasonably require to establish that this Agreement, the transaction
contemplated herein, and the execution and delivery of the documents required
hereunder, are duly authorized, executed and delivered; and
(z) Other Documents. Such other documents as shall be
reasonably requested by Sellers' counsel to effectuate the purposes and intent
of this Agreement.
5.3. Closing Costs. Sellers shall pay the attorneys' fees of
Sellers, any escrow closing fees charged by the Title Company, the cost of
recording the Limited Warranty Deeds, the Capital One Lake Easement Deed, the
Kerr McGee Sewer Easement and the satisfactions of the Loans to be paid by
Sellers at Closing, the cost of title examination fees and title insurance
premiums for the "standard" or "base" coverage under all owner's title insurance
policies issued
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Purchase and Sale Agreement
by the Title Company to Purchaser with respect to the Properties, but not in
excess of the sum of $738,804.61 in the aggregate (as reduced by the title
insurance premium for "standard" or "base" coverage as to any Excluded
Property), the Transfer Fees with respect to the Letters of Credit, the costs
(if any) to transfer the certificates of occupancy for the Properties to
Purchaser, and all other costs and expenses incurred by Sellers in closing and
consummating the purchase and sale of the Properties pursuant hereto. Purchaser
shall pay the cost of all title insurance premiums for "extended" coverage and
all endorsements as to all owner's title insurance policies issued by the Title
Company to Purchaser with respect to the Properties, all title insurance
premiums payable with respect to all mortgagee title insurance policies that may
be issued by the Title Company to any lender(s) of Purchaser, all other
recording fees on all instruments to be recorded in connection with these
transactions, the attorneys' fees of Purchaser, and all other costs and expenses
incurred by Purchaser in the performance of Purchaser's due diligence inspection
of the Properties and in closing and consummating the purchase and sale of the
Properties pursuant hereto. Purchaser and the Seller of each applicable Property
shall each pay fifty percent (50%) of the Surveys and fifty percent (50%) of
Real Estate Transfer Taxes (if any) imposed by the applicable jurisdiction(s) in
which each such Property is located upon the conveyance of each such Property
pursuant hereto; provided, however, that Purchaser's share of said aggregate
Real Estate Transfer Taxes shall not exceed $850,000.00.
5.4. Prorations and Credits. The following items in this Section
5.4 shall be adjusted and prorated between each Seller and Purchaser as of 11:59
P.M. on the day preceding the Closing, based upon the actual number of days in
the applicable month or year:
(a) Taxes. All general real estate taxes imposed by any
governmental authority ("Taxes") shall be prorated between Purchaser and each
Seller as to the Taxes with respect to the Properties of such Seller as of the
Closing. If the Closing occurs prior to the receipt by Sellers of the tax bill
for any of the Properties for the calendar year or other applicable tax period
in which the Closing occurs, Taxes with respect to such Property or Properties
shall be prorated for such calendar year or other applicable tax period based
upon the prior year's tax bill. Notwithstanding the foregoing, Taxes shall not
be prorated with respect to any Property as to which the tenant under the
Lease(s) with respect to such Property is obligated to pay Taxes directly to the
applicable taxing authority.
(b) Reproration of Taxes. After receipt of final Taxes
and other bills, Purchaser shall prepare and present to each Seller a
calculation of the reproration of such Taxes and other items with respect to the
Properties of such Seller, based upon the actual amount of such items charged to
or received by the parties for the year or other applicable fiscal period.
Purchaser and each Seller shall make the appropriate adjusting payment between
them within thirty (30) days after presentment to such Seller of Purchaser's
calculation and appropriate back-up information. Purchaser shall provide each
Seller with appropriate backup materials related to the calculation, and each
Seller may inspect Purchaser's books and records related to the Properties of
such Seller to confirm the calculation. The provisions of this Section 5.4(b)
shall survive the Closing for a period of one (1) year after the Closing Date.
(c) Rents, Income and Other Expenses. As to each Seller,
rents and any other amounts (including Taxes) paid by tenants of the Properties
of such Seller shall be prorated as of
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Purchase and Sale Agreement
the Closing Date and be adjusted against the Purchase Price allocated to such
Seller on the basis of a schedule which shall be prepared by such Seller and
delivered to Purchaser for Purchaser's review and approval at least five (5)
Business Days prior to Closing. With respect to each Seller, Purchaser shall
receive at Closing a credit for Purchaser's pro rata share of the rents,
additional rent, common area maintenance charges, tenant reimbursements and
escalations, and all other payments paid for the month of Closing with respect
to the Properties of such Seller and for all other rents and other amounts with
respect to the Properties of such Seller that apply to periods from and after
the Closing, but which are received by such Seller prior to Closing. Purchaser
agrees to pay to each Seller, upon receipt, any rents or other payments by
tenants under their respective Leases with respect to the Properties of such
Seller that apply to periods prior to Closing but are received by Purchaser
after Closing; provided, however, that any delinquent rents or other payments by
tenants shall be applied first to any current amounts owing by such tenants from
and after Closing, then to delinquent rents in the order in which such rents are
most recently past due, with the balance, if any, paid over to such Seller to
the extent of delinquencies existing at the time of Closing to which such Seller
is entitled; it being understood and agreed that Purchaser shall not be legally
responsible to such Seller for the collection of any rents or other charges
payable with respect to such Leases or any portion thereof, which are delinquent
or past due as of the Closing Date; but Purchaser agrees that Purchaser shall
send monthly notices for a period of three (3) consecutive months in an effort
to collect any rents and charges not collected as of the Closing Date. With
respect to each Seller, any reimbursements payable by any tenant under the terms
of any tenant lease affecting any of the Properties of such Seller as of the
Closing Date, which reimbursements pertain to such tenant's pro rata share of
increased operating expenses or common area maintenance costs incurred with
respect to such Properties at any time prior to the Closing, shall be prorated
upon Purchaser's actual receipt of any such reimbursements, on the basis of the
number of days of such Seller's and Purchaser's respective ownership of such
Properties during the period in respect of which such reimbursements are
payable; and Purchaser agrees to pay to such Seller such Seller's pro rata
portion of such reimbursements within thirty (30) days after Purchaser's receipt
thereof. Conversely, if any tenant under any such Lease affecting the Properties
of such Seller shall become entitled at any time after Closing to a refund of
tenant reimbursements actually paid by such tenant prior to Closing, then, such
Seller shall, within thirty (30) days following Purchaser's demand therefor, pay
to Purchaser an amount equal to such Seller's pro rata share of such
reimbursement refund obligations, said proration to be calculated on the same
basis as hereinabove set forth. The applicable Sellers shall be and remain
responsible for the payment of all Florida sales tax that may be payable on
rents and rental income paid by the tenants under their leases affecting the
Americredit Property and the Gartner Property, respectively, prior to the
Closing Date (and to the extent that the tenants under such Leases are required
to reimburse the landlord for all or any part of such Florida sales tax, such
tenant reimbursement paid with respect to the rents payable for all periods
prior to the Closing Date shall belong to the applicable Sellers). Conversely,
Purchaser shall be responsible for the payment of all Florida sales tax that may
be payable on rents and rental income paid by such tenants under their Leases
for all periods from and after the Closing Date (and to the extent that the
tenants under such Leases are required to reimburse the landlord for all or any
part of such Florida sales tax, such tenant reimbursements with respect to rents
paid by such tenants for all periods from and after the Closing Date shall
belong to Purchaser). Each Seller hereby retains its right to pursue any tenant
under the Leases affecting the Properties of such Seller for sums due such
Seller for periods attributable to such Seller's ownership of such Properties;
provided, however, that such Seller (i) shall be required to
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Purchase and Sale Agreement
notify Purchaser in writing of its intention to commence or pursue such legal
proceedings, and to provide Purchaser with copies of all correspondence with
such tenant relative to such proceedings; (ii) shall only be permitted to
commence or pursue any legal proceedings after the date which is three (3)
months after Closing, except that such Seller shall be entitled to continue to
pursue any legal proceedings commenced prior to Closing; and (iii) shall not be
permitted to commence or pursue any legal proceedings against any tenant seeking
eviction of such tenant or the termination of the applicable Lease. The
provisions of this Section 5.4(c) shall survive the Closing for a period of
eighteen (18) months after the Closing Date; provided, however, that in the
event the tenant under any Lease affecting any Property currently has rights to
audit operating expenses under its Lease for calendar year 2005 which extend
beyond eighteen (18) months after the Closing Date of such Property, then as to
any such Property and Lease, the provisions of this Section 5.4(c) shall survive
the Closing for a period of time equal to any such tenant's audit rights under
such Lease.
(d) Security Deposits. As to each Seller, Purchaser shall
receive at Closing a credit with respect to the Purchase Price allocated to such
Seller for all Security Deposits transferred and assigned to Purchaser at
Closing in connection with the Leases affecting the Properties of such Seller,
together with a detailed inventory of such Security Deposits.
(e) Operating Expenses. As to each Seller, personal
property taxes, installment payments of special assessment liens, vault charges,
sewer charges, utility charges, and normally prorated operating expenses
actually paid or payable as of the Closing Date with respect to the Properties
of such Seller (including, without limitation, amounts payable pursuant to the
Service Contracts and Property Management Agreements) shall be prorated as of
the Closing Date and adjusted against the Purchase Price allocated to such
Seller, provided that within ninety (90) days after the Closing, Purchaser and
such Seller will make a further adjustment for such taxes, charges and expenses
affecting the Properties of such Seller which may have accrued or been incurred
prior to the Closing Date, but not collected or paid at that date. In addition,
as to each Seller, within ninety (90) days after the close of the fiscal year(s)
used in calculating the pass-through to tenants of operating expenses and/or
common area maintenance costs under the Leases affecting the Properties of such
Seller (where such fiscal year(s) include(s) the Closing Date), such Seller and
Purchaser shall, upon the request of either, re-prorate on a fair and equitable
basis in order to adjust for the effect of any credits or payments due to or
from tenants for periods prior to the Closing Date. All prorations shall be made
based on the number of calendar days in such year or month, as the case may be.
Notwithstanding the foregoing, personal property taxes, installment payments of
special assessment liens, vault charges, sewer charges, utility charges, and
operating expenses shall not be prorated with respect to any Property as to
which the tenant under the Lease(s) with respect to such Property is obligated
to pay the same directly to the provider thereof. The provisions of this Section
5.4(e) shall survive the Closing for a period of eighteen (18) months after the
Closing Date; provided, however, that in the event the tenant under any Lease
affecting any Property currently has rights to audit operating expenses under
its Lease for calendar year 2005 which extend beyond eighteen (18) months after
the Closing Date of such Property, then as to any such Property and Lease, the
provisions of this Section 5.4(e) shall survive the Closing for a period of time
equal to any such tenant's audit rights under such Lease.
(f) Tenant Inducement Costs.
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Purchase and Sale Agreement
(i) At the Closing of the ISS Property,
Purchaser shall receive a credit against the Purchase Price of such Property in
the amount of $888,076.88, said sum representing the unpaid tenant improvement
allowance payable to the tenant under and pursuant to the Lease for Building 3
of the ISS Property. At such Closing, Purchaser shall assume the obligation to
pay such tenant improvement allowance to such tenant as and when the same
becomes payable pursuant to the terms of said Lease.
(ii) At the Closing of the John Wiley Property,
Purchaser shall receive credits against the Purchase Price of such Property (x)
in the amount of $69,492.00, said sum representing the unpaid tenant improvement
allowance payable to John Wiley & Sons, Inc. under and pursuant to its Lease at
the John Wiley Property as set forth on the attached Exhibit "I", and (y) in the
amount of $48,239.00, said sum representing the unpaid leasing commission
payable to CB Richard Ellis, Inc. in connection with the Lease with John Wiley &
Sons, Inc. pursuant to the Commission Agreement described on the attached
Exhibit "C". At such Closing, Purchaser shall assume the obligations to pay such
tenant improvement allowance and such leasing commission to said tenant and
leasing agent as and when the same become payable pursuant to the terms of said
Lease and Commission Agreement.
ARTICLE 6.
CONDITIONS TO CLOSING
6.1. Conditions Precedent to Purchaser's Obligations. Subject to
the last paragraph of this Section 6.1, the obligations of Purchaser hereunder
to consummate the transaction contemplated hereunder shall in all respects be
conditioned upon the satisfaction of each of the following conditions prior to
or simultaneously with the Closing, any of which may be waived by Purchaser in
its sole discretion by written notice to Sellers at or prior to the Closing
Date:
(a) Covenants. Sellers shall have performed, in all
material respects, all covenants, agreements and undertakings of Sellers
contained in this Agreement;
(b) Representations and Warranties. All representations
and warranties of each Seller as set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of
Closing, provided that solely for purposes of this subparagraph such warranties
and representations shall be deemed to be given without being limited to such
Seller's knowledge and without modification (by update or otherwise, as provided
in Section 5.1 hereof);
(c) Tenant Estoppel Certificates. Tenant Estoppel
Certificates from each of the Major Tenants shall have been delivered to
Purchaser, with each such estoppel certificate (i) to be substantially in the
form attached hereto as EXHIBIT "M" (or if the applicable Lease provides for a
particular form of estoppel certificate to be given by the tenant thereunder,
the Tenant Estoppel Certificate with respect to such Lease may be in the form as
called for therein), (ii) to be dated within thirty (30) days prior to the First
Closing Date, (iii) to confirm the material terms of the applicable Lease as
contained in the copies of the Leases obtained by or delivered to Purchaser,
(iv) to confirm the absence of any material defaults under the applicable Lease
as of the date thereof; and (v) the Tenant Estoppel Certificates for the Alstom
Property, the AT&T
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Purchase and Sale Agreement
(PA) Property and the Capital One Property must confirm the applicable
information identified on EXHIBIT "V" as "critical"; provided; however, that if
the closing of the purchase and sale of any Property is adjourned or postponed
beyond the First Closing Date set forth in Section 2.7(a) hereof, for any reason
permitted under this Agreement or as otherwise may be agreed by Sellers and
Purchaser, and Sellers theretofore shall have obtained and delivered a Tenant
Estoppel Certificate meeting the requirements of this Section 6.1(c) and dated
within thirty (30) days of First Closing Date, then this condition shall be
deemed satisfied as to such Property and Sellers shall have no obligation to
seek or obtain an updated Tenant Estoppel Certificate as to such Property to
comply with clause (ii) hereinabove. Subject to the last paragraph of this
Section 6.1, the delivery of said Tenant Estoppel Certificates from the Major
Tenants shall be a condition of Closing, and the failure or inability of Sellers
to obtain and deliver any of said Tenant Estoppel Certificates, each Seller
having used its good faith efforts to obtain the same from the tenants under
Leases of the Properties of such Seller, shall not constitute a default by
Sellers under this Agreement;
(d) Lease Guarantor Estoppel Certificates. Lease
Guarantor Estoppel Certificates from each of the Lease Guarantors under the
Lease Guaranties shall have been delivered to Purchaser, with each such estoppel
certificate (i) to be substantially in the form attached hereto as EXHIBIT "T"
and (ii) to be dated within thirty (30) days prior to the First Closing Date;
provided, however, that if the closing of the purchase and sale of any Property
is adjourned or postponed beyond the First Closing Date set forth in Section
2.7(a) hereof for any reason permitted under this Agreement or as otherwise may
be agreed by Sellers and Purchaser, and Sellers theretofore shall have obtained
and delivered a Lease Guarantor Estoppel Certificate meeting the requirements of
this Section 6.1(d) and dated within thirty (30) days of the First Closing Date,
then this condition shall be deemed satisfied as to such Property and Sellers
shall have no obligation to seek or obtain an updated Lease Guarantor Estoppel
Certificate as to such Property to comply with clause (ii) hereinabove. Subject
to the last paragraph of this Section 6.1, the delivery of said Lease Guarantor
Estoppel Certificates from the Lease Guarantors shall be a condition of Closing,
and the failure or inability of Sellers to obtain and deliver any of said Lease
Guarantor Estoppel Certificates, each Seller having used its good faith efforts
to obtain the same from the Lease Guarantors of any Lease affecting the
Properties of such Seller, shall not constitute a default by Sellers under this
Agreement;
(e) Highwood Estoppel Certificates. The Highwoods
Estoppel Certificates in substantially the form attached hereto as EXHIBIT "Y",
executed by Highwoods Properties, Inc. Subject to the last paragraph of this
Section 6.1, the delivery of said Highwoods Estoppel Certificates shall be a
condition of Closing, and the failure or inability of the applicable Seller to
obtain and deliver any of said Highwoods Estoppel Certificates, such Seller
having used its good faith efforts to obtain the same, shall not constitute a
default by Sellers under this Agreement
(f) Ground Lessor Estoppel Certificates. Ground Lessor
Estoppel Certificates from each of the ground lessors under the ASML Prime
Ground Lease, the ASML Sub-Ground Lease and the Ingram Micro Bond Lease, with
each such estoppel certificate (i) to be substantially in the forms attached
hereto as EXHIBIT "H-1", EXHIBIT "H-2" and EXHIBIT "H-3", respectively (or if
the applicable Ground Lease provides for a particular form of estoppel
certificate to be given by the lessor thereunder, the Ground Lessor Estoppel
Certificate with
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Purchase and Sale Agreement
respect to such ground lease may be in the form as called for therein), (ii) to
be dated within thirty (30) days prior to the First Closing Date, (iii) to
confirm the material terms of the applicable ground lease, as contained in the
copies of the Ground Leases obtained by or delivered to Purchaser, and (iv) to
confirm the absence of any material defaults under the applicable Ground Leases
as of the date of such estoppel certificate; provided, however, that if the
closing of the purchase and sale of the property is adjourned or postponed
beyond the First Closing Date set forth in Section 2.7(a) hereof for any reason
permitted under this Agreement or as otherwise may be agreed by Sellers and
Purchaser, and Sellers theretofore shall have obtained and delivered a Ground
Lessor Estoppel Certificate meeting the requirements of this Section 6.1(f) and
dated within thirty (30) days of the First Closing Date, then this condition
shall be deemed satisfied as to such Property and Sellers shall have no
obligation to seek or obtain an updated Ground Lessor Estoppel Certificate as to
such Property to comply with clause (ii) hereinabove. Subject to the last
paragraph of this Section 6.1, the delivery of Ground Lessor Estoppel
Certificates from the ASML Prime Ground Lessor, the ASML Sub-Ground Lessor and
the Ingram Micro Ground Lessor shall be a condition of Closing, and the failure
or inability of Wells OP to obtain and deliver said Ground Lessor Estoppel
Certificates, Wells OP having used its good faith efforts to obtain the same
from the ground lessors under the Ground Leases, shall not constitute a default
by Wells OP under this Agreement;
(g) Association Estoppel Certificates. An Association
Estoppel Certificate from each of the Associations listed on the attached
EXHIBIT "D" shall have been delivered to Purchaser, with each such Association
Estoppel Certificate (i) to be dated within thirty (30) days prior to the First
Closing Date, and (ii) to confirm (A) the absence of any material defaults or
violations by the applicable Seller with respect to the payment of any
assessments (whether annual, periodic or special) to such Association with
respect to the applicable Property or Properties owned by such Seller as
"owner", (B) the amount of any annual, periodic or regular assessments and
specific assessments to become payable by the owner of the applicable Property
and as to which such Association has given written notice to such Seller prior
to or concurrently with the date of such Association Estoppel Certificate, (C)
if the Association (or architectural review committee, board or other group) is
required under the terms of the applicable Declaration to confirm that the plans
and specifications for the applicable Wells OP Improvements or Wells Affiliate
Improvements have been approved as may be required under the terms of such
Declaration, then a statement that such plans and specifications have been so
approved, and (D) all amendments or modifications of the applicable Declaration;
provided, however, that if the closing of purchase and sale of any Property is
adjourned or postponed beyond the First Closing Date set forth in Section 2.7(a)
hereof for any reason permitted under this Agreement or as otherwise may be
agreed by Seller and Purchaser and Sellers theretofore shall have obtained and
delivered an Association Estoppel Certificate meeting the requirements of this
Section 6.1(g) and dated within thirty (30) days of the First Closing Date, then
this condition shall be deemed satisfied as to such Property and Sellers shall
have no obligation to seek or obtain an updated Association Estoppel Certificate
as to such Property to comply with clause (i) hereinabove. Subject to the last
paragraph of this Section 6.1, the delivery of said Association Estoppel
Certificates from such Associations shall be a condition of Closing, and the
failure or inability of Sellers to obtain and deliver said Association Estoppel
Certificates, each applicable Seller having used its good faith efforts to
obtain the same shall not constitute a default by Sellers under this Agreement.
Notwithstanding anything to the contrary contained
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Purchase and Sale Agreement
herein, if the applicable Seller has been unable to obtain and deliver to
Purchaser by Closing the applicable Association Estoppel Certificate meeting the
requirements set forth above, then, at the option of such Seller, this condition
to Closing may be satisfied by such Seller's execution and delivery to Purchaser
at Closing, on behalf of any Association having rights with respect to the
Property of such Seller and which has failed to provide the required Association
Estoppel Certificate an estoppel certificate substantially in the form attached
hereto as SCHEDULE 20 ("Seller's Estoppel"); and provided that the applicable
Seller's liability under any such Seller's Estoppel so executed and delivered by
such Seller to Purchaser at Closing shall cease and terminate upon the receipt
by Purchaser after Closing of a duly executed Association Estoppel Certificate
from the Association covered in such Seller's Estoppel to the extent that such
Association Estoppel Certificate conforms to Seller's Estoppel in all material
respects; and
(h) Declarant Estoppel Certificates. A Declarant Estoppel
Certificate from each of the Declarants under the Declarations shall have been
delivered to Purchaser, with each such estoppel certificate (i) to be dated
within thirty (30) days prior to the Closing Date, and (ii) to confirm (A) the
absence of any material defaults or violations under the applicable Declaration
by the applicable Seller as "owner" as defined in such Declaration, (B) the
payment of all amounts due from such Seller, (C) if Declarant is required under
the terms of the applicable Declaration to confirm that the plans and
specifications for the applicable Wells OP Improvements or Wells Affiliate
Improvements have been approved as may be required under the terms of such
Declaration, then a statement that such plans and specifications have been so
approved, and (D) all amendments or modifications of the applicable Declaration.
Subject to the last paragraph of this Section 6.1, the delivery of said
Declarant Estoppel Certificates from such Declarants shall be a condition of
Closing, and the failure or inability of Sellers to obtain and deliver said
Declarant Estoppel Certificates, each applicable Seller having used its good
faith efforts to obtain the same, shall not constitute a default by Sellers
under this Agreement; provided, however, that if the closing of purchase and
sale of any Property is adjourned or postponed beyond the initial First Closing
Date set forth in Section 2.7(a) hereof for any reason permitted under this
Agreement or as otherwise may be agreed by Seller and Purchaser and Sellers
theretofore shall have obtained and delivered an Declarant Estoppel Certificate
meeting the requirements of this Section 6.1(h) and dated within thirty (30)
days of said initial First Closing Date, then this condition shall be deemed
satisfied as to such Property and Sellers shall have no obligation to seek or
obtain an updated Declarant Estoppel Certificate as to such Property to comply
with clause (i) hereinabove. Notwithstanding anything to the contrary contained
herein, if the applicable Seller has been unable to obtain and deliver to
Purchaser by Closing the applicable Declarant Estoppel Certificate meeting the
requirements set forth above, then, at the option of such Seller, this condition
to Closing may be satisfied by such Seller's execution and delivery to Purchaser
at Closing, on behalf of any Declarant having rights with respect to the
Property of such Seller and which has failed to provide the required Declarant
Estoppel Certificate, a Seller's Estoppel substantially in the form attached
hereto as SCHEDULE 20; and provided that the applicable Seller's liability under
any such Seller's Estoppel so executed and delivered by such Seller to Purchaser
at Closing shall cease and terminate upon the receipt by Purchaser after Closing
of a duly executed Declarant Estoppel Certificate from the Declarant covered in
such Seller's Estoppel to the extent that such Declarant Estoppel Certificate
conforms to Seller's Estoppel in all material respects.
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Purchase and Sale Agreement
(i) Gartner Lease Amendment and ISS Lease Amendment. The
Gartner Lease Amendment as executed by Wells Funds XI and XII REIT JV and
Gartner, Inc., and the ISS Lease Amendment as executed by Wells OP and Internet
Security Systems, Inc., each of which lease amendments shall be substantially in
the forms attached hereto as Exhibit "CC" and Exhibit "DD", respectively.
Subject to the last paragraph of this Section 6.1, the delivery of the Gartner
Lease Amendment and the ISS Lease Amendment shall be conditions to Closing, and
the failure or inability of Sellers to obtain and delivery either of said lease
amendments, each applicable Seller having used its good faith efforts to obtain
the same from said tenants, shall not constitute a default by Sellers hereunder.
(j) Final C.O.'s for Alstom Power Property and Capital
One Property. The delivery by Wells Virginia REIT and Wells OP to Purchaser of
copies of final certificates of occupancy for all improvements located on the
Alstom Power Property and the Capital One Property, or the delivery by Wells
Virginia REIT and Wells OP to Purchaser of other evidence satisfactory to
Purchaser that final certificates of occupancy have been issued by the
applicable governing authorities for all improvements located on the Alstom
Power Property and the Capital One Property.
In the event any condition in this Section 6.1 has not been satisfied (or
otherwise waived in writing by Purchaser) prior to or on the Closing Date (as
the same may be extended or postponed as provided in this Agreement), Purchaser
shall have the right to terminate this Agreement by written notice to Sellers
given prior to the Closing, whereupon (i) Escrow Agent shall promptly return the
Earnest Money to Purchaser; and (ii) except for those provisions of this
Agreement which by their express terms survive the termination of this
Agreement, no party hereto shall have any other or further rights or obligations
under this Agreement.
6.2. Conditions Precedent to Sellers' Obligations. The obligations
of Sellers hereunder to consummate the transactions contemplated hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing (or at such earlier time
as may be provided below), any of which may be waived by Sellers in their sole
discretion by written notice to Purchaser at or prior to the Closing Date:
(a) Purchaser shall have paid and Sellers shall have
received the Purchase Price, as adjusted pursuant to the terms and conditions of
this Agreement, which Purchase Price shall be payable in the amount and in the
manner provided for in this Agreement;
(b) Purchaser shall have performed, in all material
respects, all covenants, agreements and undertakings of Purchaser contained in
this Agreement; and
(c) All representations and warranties of Purchaser as
set forth in this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of Closing, provided that solely for
purposes of this subparagraph such warranties and representations shall be
deemed to be given without being limited to Purchaser's knowledge and without
modification (by update or otherwise, as provided in Section 5.2 hereof).
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Purchase and Sale Agreement
6.3. Conditions Precedent to Purchase and Sale of Certain
Properties.
(a) In addition to and not in lieu of Sections 6.1 and
6.2 above, the respective obligations of Purchaser and Sellers to consummate the
transaction contemplated hereunder with respect to the Bank of America Property
shall in all respects be conditioned upon the failure (or deemed failure) of
Bank of America NT & SA, as tenant under its Lease affecting the Bank of America
Property, to timely exercise its right to purchase the Bank of America Property
pursuant to the terms of its Lease. In the event that the Outstanding ROFO/ROFR
Party shall timely exercise its right to purchase the Bank of America Property,
Sellers shall promptly notify Purchaser in writing thereof, which notice shall
be accompanied by a true and correct copy of the notice of exercise received by
the applicable Seller ("Seller's Partial Termination Notice"). Upon the delivery
by Seller to Purchaser of Seller's Partial Termination Notice, this Agreement
shall terminate the Bank of America Property which is the subject of Seller's
Partial Termination Notice, whereupon (1) the aggregate Purchase Price for the
Properties as set forth in Section 2.5 hereof shall be reduced by the Purchase
Price for the Bank of America Property as set forth on EXHIBIT "O" attached
hereto; (2) Escrow Agent shall promptly return the Earnest Money allocated to
the Bank of America Property (i.e., $1,500,000.00) to Purchaser; (3) the parties
hereto shall proceed to close the purchase and sale of the other Properties
which are the subject of this Agreement; and (4) except for those provisions of
this Agreement which by their express terms survive the termination of this
Agreement, no party hereto shall have any other or further rights or obligations
under this Agreement with respect to the Bank of America Property.
(b) In addition to and not in lieu of Section 6.1 and
Section 6.2 above, the respective obligations of Purchaser and Seller to
consummate the transactions contemplated hereunder with respect to the ASML
Property and the Ingram Micro Property shall in all respects be conditioned upon
the written approval or consent of the lessors under the ASML Prime Ground
Lease, the ASML Sub-Ground Lease and the Ingram Micro Bond Lease to the
transfers, respectively, of the leasehold estates in the ASML Property and the
Ingram Micro Property to Purchaser.
ARTICLE 7.
CASUALTY AND CONDEMNATION
7.1. Casualty. Risk of loss up to and including the Closing Date
shall be borne by Sellers. In the event of any immaterial damage or destruction
to the Properties of a Seller or any portion thereof, Sellers and Purchaser
shall proceed to close under this Agreement, and Purchaser will receive (and the
applicable Seller whose Property or Properties was or were the subject of such
damage or destruction will assign to Purchaser at the Closing such Seller's
rights under insurance policies to receive) any insurance proceeds (including
any rent loss insurance applicable to any period on and after the Closing Date)
due such Seller as a result of such damage or destruction (less any amounts
reasonably expended for restoration or collection of proceeds) and assume
responsibility for such repair, and Purchaser shall receive a credit at Closing
for any deductible amount under said insurance policies. For purposes of this
Agreement, the term "immaterial damage or destruction" shall be applied on a
Property by Property basis and shall mean such instances of damage or
destruction of the subject Property:
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Purchase and Sale Agreement
(i) which can be repaired or restored at a cost equal to or less than an amount
equal to five percent (5%) of the Purchase Price of such Property, as set forth
on the attached Exhibit "O"; (ii) which can be restored and repaired within one
hundred eighty (180) days from the date of such damage or destruction; (iii)
which are not so extensive as to allow any Major Tenant of such Property to
terminate its Lease with respect to such Property or abate or reduce rent
payable thereunder (unless business loss or rent insurance shall be available in
the full amount of such abatement or reduction, subject to applicable
deductibles) on account of such damage or destruction; and (iv) in which such
Seller's rights under its rent loss insurance policies covering such Property
are assignable to Purchaser and will continue pending restoration and repair of
the damage or destruction.
In the event of any material damage or destruction to one or more of
the Properties or any portion thereof, Purchaser may, at its option, by notice
to Sellers given within the earlier of twenty (20) days after Purchaser is
notified by Sellers of such damage or destruction, or the Closing Date, but in
no event less than ten (10) days after Purchaser is notified by Seller of such
damage or destruction (and if necessary the Closing Date shall be extended to
give Purchaser the full 10-day period to make such election): (i) terminate this
Agreement as to any such Property which is the subject of material damage or
destruction (an "Excluded Property"), or (ii) proceed to close under this
Agreement, receive (and each Seller will assign to Purchaser at the Closing the
rights of such Seller under insurance policies to receive) any insurance
proceeds (including any rent loss insurance applicable to the period on or after
the Closing Date) due such Seller as a result of such damage or destruction
(less any amounts reasonably expended for restoration or collection of proceeds)
and assume responsibility for such repair, and Purchaser shall receive a credit
at Closing for any deductible amount under said insurance policies. If Purchaser
fails to deliver to Sellers notice of its election within the period set forth
above, Purchaser will conclusively be deemed to have elected to proceed with the
Closing as provided in clause (ii) of the preceding sentence. If Purchaser
elects clause (ii) above, each Seller will cooperate with Purchaser after the
Closing to assist Purchaser in obtaining the insurance proceeds from the
insurers of such Seller. For purposes of this Agreement "material damage or
destruction" shall mean all instances of damage or destruction that are not
immaterial, as defined herein.
7.2. Condemnation. If, prior to the Closing, all or any part of the
Properties of a Seller 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 a Seller has received written
notice that any condemnation action or proceeding with respect to the Properties
of such Seller is contemplated by a body having the power of eminent domain
(collectively, a "Taking"), such Seller shall give Purchaser immediate written
notice of such Taking. In the event of any immaterial Taking with respect to the
Properties of a Seller or any portion thereof, Sellers and Purchaser shall
proceed to close under this Agreement. For purposes of this Agreement, the term
"immaterial Taking" shall be applied on a Property by Property basis and shall
mean such instances of Taking of the subject Property: (i) which do not result
in a taking of any portion of the building structure of the building occupied by
tenants on such Property; (ii) which do not result in a decrease in the number
of parking spaces at such Property (taking into account the number of additional
parking spaces that can be provided within one hundred eighty (180) days of such
Taking); and (iii) which are not so extensive as to allow any Major
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Purchase and Sale Agreement
Tenant of such Property to terminate its Lease with respect to such Property or
abate or reduce rent payable thereunder [unless business loss or rent insurance
(subject to applicable deductibles) or condemnation award proceeds shall be
available in the full amount of such abatement or reduction, and Purchaser shall
receive a credit at Closing for such deductible amount] on account of such
Taking.
In the event of any material Taking of one or more of the Properties or
any portion thereof (any such Property also being referred to in this Agreement
as an "Excluded Property"), Purchaser may, at its option, by written notice to
Sellers given within thirty (30) days after the receipt of such notice from such
Seller, elect to terminate this Agreement only as to any such Excluded Property.
If Purchaser chooses to terminate this Agreement as to any such Excluded
Property in accordance with this Section 7.2, then the rights, duties,
obligations, and liabilities of the parties hereunder shall immediately
terminate as to any such Excluded Property only and be of no further force and
effect, except for those provisions of this Agreement which by their express
terms survive the termination of this Agreement. For purposes of this Agreement
"material Taking" shall mean all instances of a Taking that are not immaterial,
as defined herein.
If Purchaser does not elect to, or has no right to, terminate this
Agreement as to any Property in accordance herewith on account of a Taking, this
Agreement shall remain in full force and effect and the sale of the Properties
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, each
Seller shall assign, transfer, and set over to Purchaser all of the right,
title, and interest of such Seller in and to any awards applicable to the
Properties of such Seller that have been or that may thereafter be made for such
taking. At such time as all or a part of the Properties of a Seller is subjected
to a bona fide threat of condemnation and Purchaser shall not have elected to
terminate this Agreement as to any such Excluded Property only as provided in
this Section 7.2, and provided that the Inspection Period has expired and
Purchaser has delivered the Earnest Money to Escrow Agent, (i) Purchaser shall
thereafter be permitted to participate in the proceedings as if Purchaser were a
party to the action, and (ii) such Seller shall not settle or agree to any award
or payment pursuant to condemnation, eminent domain, or sale in lieu thereof
without obtaining Purchaser's prior written consent thereto in each case.
ARTICLE 8.
DEFAULT AND REMEDIES
8.1. Purchaser's Default. If Purchaser fails to consummate this
transaction for any reason other than the default of Sellers, failure of a
condition to Purchaser's obligation to close, or the exercise by Purchaser of an
express right of termination granted herein, Sellers shall be entitled, as their
sole remedy hereunder, to terminate this Agreement and to receive and retain the
Earnest Money as full liquidated damages for such default of Purchaser, the
parties hereto acknowledging that it is impossible to estimate more precisely
the damages which might be suffered by Sellers upon Purchaser's default, and
that said Earnest Money is a reasonable estimate of the probable loss of Sellers
in the event of default by Purchaser. The retention by Sellers of said Earnest
Money is intended not as a penalty, but as full liquidated damages. The
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right to retain the Earnest Money as full liquidated damages is the sole and
exclusive remedy of Sellers in the event of default hereunder by Purchaser, and
Sellers hereby waive and release any right to (and hereby covenant that they
shall not) sue the Purchaser: (a) for specific performance of this Agreement, or
(b) to recover actual damages in excess of the Earnest Money. The foregoing
liquidated damages provision shall not apply to or limit Purchaser's liability
for Purchaser's obligations under Sections 3.1(b), 3.1(c), 3.7 and 10.1 of this
Agreement or for Purchaser's obligation to pay to Sellers all attorney's fees
and costs of Sellers to enforce the provisions of this Section 8.1. Purchaser
hereby waives and releases any right to (and hereby covenants that it shall not)
sue Sellers or either of them or seek or claim a refund of said Earnest Money
(or any part thereof) on the grounds it is unreasonable in amount and exceeds
the actual damages of Sellers or that its retention by Sellers constitutes a
penalty and not agreed upon and reasonable liquidated damages.
8.2. Seller's Default. If Sellers or any of them fail to perform
any of their respective obligations under this Agreement for any reason other
than Purchaser's default or the permitted termination of this Agreement by
Sellers or any of them or Purchaser as expressly provided herein, Purchaser
shall be entitled, as its sole remedy, either (a) to receive the return of the
Earnest Money from Escrow Agent, which return shall operate to terminate this
Agreement and release Sellers from any and all liability hereunder; provided,
however, that in the event, and only in the event, such default by any Seller
was willful and intentional and Purchaser receives the return of the Earnest
Money, then Sellers shall pay to Purchaser an amount equal to the lesser of (i)
Purchaser's actual out-of-pocket expenditures incurred directly in conducting
due diligence activities contemplated under this Agreement and in negotiating
and finalizing this Agreement, or (ii) Ten Million and No/100 Dollars
($10,000,000.00), or (b) to enforce specific performance of the obligation of
each Seller to execute and deliver the documents required to convey the Property
owned by such Seller to Purchaser in accordance with this Agreement; it being
specifically understood and agreed that the remedy of specific performance shall
not be available to enforce any other obligation of Sellers or any of them
hereunder. Notwithstanding the foregoing, if after January 7, 2005, any Seller
shall have conveyed title to such Seller's Property to another party (other than
to the Outstanding ROFO/ROFR Party pursuant to the timely exercise by such
Outstanding ROFO/ROFR Party of its ROFO/ROFR Rights) or intentionally and
knowingly taken any other action to defeat the remedy of specific performance,
Purchaser shall be entitled to seek actual damages from Sellers. Except as
expressly provided to the contrary in this Section 8.2, Purchaser expressly
waives its rights to seek damages in the event of the default of Sellers or any
of them hereunder. Purchaser shall be deemed to have elected to terminate this
Agreement and to receive a return of the Earnest Money applicable to such
Property from Escrow Agent if Purchaser fails to file suit for specific
performance against each applicable Seller who is in breach of its obligations
hereunder in a court having jurisdiction on or before sixty (60) days following
the date upon which the Closing was to have occurred.
ARTICLE 9.
ASSIGNMENT
9.1. Assignment. Subject to the next following sentence, this
Agreement and all rights and obligations hereunder shall not be assignable by
any party without the written consent of the other. Notwithstanding the
foregoing to the contrary, (i) this Agreement and all of
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Purchase and Sale Agreement
Purchaser's rights hereunder may be transferred and assigned to any entity
controlled by Purchaser or one or more of Purchaser's joint venture partners,
and (ii) only contemporaneously with the Closing hereunder, Purchaser's rights
under this Agreement with respect to any one or more of the separate Properties
may be transferred and assigned to any entity controlled by Purchaser or one or
more of Purchaser's joint venture partners so that the applicable Property or
Properties as to which the transfer and assignment relates shall be conveyed to
the applicable assignee and such assignee shall become the "Purchaser" under
this Agreement as to such Property or Properties. Any assignee or transferee
under any such assignment or transfer by Purchaser as to which the written
consent of Seller has been given or as to which the consent of Seller is not
required hereunder shall expressly assume all of Purchaser's duties, liabilities
and obligations under this Agreement (whether arising or accruing prior to or
after the applicable assignment or transfer) by written instrument delivered to
Seller as a condition to the effectiveness of such assignment or transfer,
except that any assignee or transferee under a transfer or assignment
effectuated contemporaneously with the Closing under clause (ii) of the
preceding sentence shall be required to assume only such of Purchaser's duties,
liabilities and obligations under this Agreement that relate to the particular
Property or Properties as to which the transfer and assignment relates, and upon
such assumption by the assignee or transferee, except for the duties and
obligations arising under Purchaser's indemnities set forth in Sections 3.1(c)
and 10.1 of this Agreement, the original Purchaser shall be released and shall
have no further liabilities, duties or obligations under this Agreement that
relate to such particular Property or Properties as to which the transfer and
assignment relates. No assignment or transfer effectuated under clause (i) of
this Section 9.1 shall relieve the original Purchaser of any duties or
obligations hereunder, and the written assignment and assumption agreement shall
expressly so provide. No assignment or transfer effectuated under clause (ii)
above shall relieve the original Purchaser of any duties and obligations arising
under Purchaser's indemnities set forth in Sections 3.1(c) and 10.1 hereof. For
purposes of this Section 9.1, the term "control" shall mean the ownership of at
least fifty percent (50%) of the applicable entity. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns. This Agreement is not intended and shall not be construed to
create any rights in or to be enforceable in any part by any other persons.
ARTICLE 10.
BROKERAGE COMMISSIONS
10.1. Broker. Upon the Closing, and only in the event the Closing
occurs, Sellers shall pay a brokerage commission to Eastdil Realty Company, LLC,
a New York limited liability company ("Broker"), pursuant to a separate
agreement between Sellers and Broker. Broker is representing Sellers in this
transaction. Broker has joined in the execution of this Agreement for the
purpose of acknowledging and agreeing that no real estate commission shall be
earned by it or due it if the transaction contemplated herein does not close for
any reason whatsoever. Broker acknowledges and agrees that it shall look solely
to Sellers, and not to Purchaser, for the payment of such commission, and Broker
hereby waives and releases any present or future claims against Purchaser for
the payment of such commission. In addition, Broker (upon receipt of its
brokerage commission) agrees to execute and deliver to Sellers and Purchaser at
the Closing a release and waiver of any claim Broker may have against Purchaser
or the Properties.
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Broker shall and does hereby indemnify and hold Purchaser and Sellers harmless
from and against any and all liability, loss, cost, damage, and expense,
including reasonable attorneys' fees actually incurred and costs of litigation,
Purchaser or Sellers shall ever suffer or incur because of any claim by any
agent, salesman, or broker, whether or not meritorious, for any fee, commission
or other compensation with regard to this Agreement or the sale and purchase of
the Properties contemplated hereby, and arising out of any acts or agreements of
Broker. Each Seller shall and does hereby indemnify and hold Purchaser harmless
from and against any and all liability, loss, cost, damage, and expense,
including reasonable attorneys' fees actually incurred and costs of litigation,
Purchaser shall ever suffer or incur because of any claim by any agent,
salesman, or broker, whether or not meritorious, for any fee, commission or
other compensation with regard to this Agreement or the sale and purchase of the
Properties contemplated hereby, and arising out of any acts or agreements of
such Seller, including any claim asserted by Broker. Likewise, Purchaser shall
and does hereby indemnify and hold Sellers free and harmless from and against
any and all liability, loss, cost, damage, and expense, including reasonable
attorneys' fees actually incurred and costs of litigation, Sellers shall ever
suffer or incur because of any claim by any agent, salesman, or broker, whether
or not meritorious, for any fee, commission or other compensation with respect
to this Agreement or the sale and purchase of the Properties contemplated hereby
and arising out of the acts or agreements of Purchaser. This Section 10.1 shall
survive the Closing until the expiration of any applicable statute of
limitations and shall survive any earlier termination of this Agreement.
ARTICLE 11.
INDEMNIFICATION
11.1. Indemnification by Sellers. Following the Closing and subject
to Sections 11.3 and 11.4, each Seller shall indemnify and hold Purchaser, its
affiliates, members and partners, and the partners, shareholders, officers,
directors, employees, representatives and agents of each of the foregoing
(collectively, "Purchaser-Related Entities") harmless from and against any and
all costs, fees, expenses, damages, deficiencies, interest and penalties
(including, without limitation, reasonable attorneys' fees and disbursements)
suffered or incurred by any such indemnified party in connection with any and
all losses, liabilities, claims, damages and expenses ("Losses"), arising out
of, or in any way relating to, (a) any breach of any representation or warranty
of such Seller contained in this Agreement or in any Closing Document, and (b)
any breach of any covenant of such Seller or of Sellers jointly contained in
this Agreement which survives the Closing or in any Closing Document.
11.2. Indemnification by Purchaser. Following the Closing and
subject to Sections 11.3 and 11.4, Purchaser (and Purchaser's joint venture
partners to whom any rights of Purchaser are assigned pursuant to Section 9.1
hereof) shall indemnify and hold Sellers, their respective affiliates, members
and partners, and the partners, shareholders, officers, directors, employees,
representatives and agents of each of the foregoing (collectively,
"Seller-Related Entities") harmless from any and all Losses arising out of, or
in any way relating to, (a) any breach of any representation or warranty by
Purchaser contained in this Agreement or in any Closing Document, and (b) any
breach of any covenant of Purchaser contained in this Agreement which survives
the Closing or in any Closing Documents.
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11.3. Limitations on Indemnification. Notwithstanding the foregoing
provisions of Section 11.1, (a) Sellers shall not be required to indemnify
Purchaser or any Purchaser Related Entities under this Agreement unless the
aggregate of all amounts for which an indemnity would otherwise be payable by
Sellers under Section 11.1 above exceeds the Basket Limitation and, in such
event Sellers shall be responsible for only the amount in excess of the Basket
Limitation (the "Excess Amount"), with Wells OP responsible only for that amount
equal to the Excess Amount multiplied by a fraction, the numerator of which is
the sum of (i) the individual liability of Wells OP under Section 11.1 above,
plus (ii) a percentage of the joint (and not individual) liability of Sellers
under Section 11.1 above, with such percentage to be equal to one one-hundredth
(1/100th) multiplied by the quotient obtained by dividing the total Purchase
Price for the Wells OP Properties by the total Purchase Price for all of the
Properties, and with each Wells Affiliate responsible only for that amount equal
to the Excess Amount multiplied by a fraction, the numerator of which is the sum
of (i) the individual liability of such Wells Affiliate under Section 11.1
above, plus (ii) a percentage of the joint (and not individual) liability of
Sellers under Section 11.1 above, with such percentage to be equal to one
one-hundredth (1/100th) multiplied by the quotient obtained by dividing the
Purchase Price for the Wells Affiliate Property owned by such Wells Affiliate by
the total Purchase Price for all of the Properties, (b) in no event shall the
liability of Sellers with respect to the indemnification provided for in Section
11.1 above exceed in the aggregate the Cap Limitation, (c) if prior to the
Closing, Purchaser obtains knowledge in writing of any inaccuracy or breach of
any representation, warranty or covenant of Sellers or any of them contained in
this Agreement (a "Purchaser-Waived Breach") and nonetheless proceeds with and
consummates the Closing, then Purchaser and any Purchaser-Related Entities shall
be deemed to have waived and forever renounced any right to assert a claim for
indemnification under this Article 11 for, or any other claim or cause of action
under this Agreement, at law or in equity on account of any such
Purchaser-Waived Breach, and (d) notwithstanding anything herein to the
contrary, the Basket Limitation and the Cap Limitation shall not apply with
respect to Losses suffered or incurred as a result of breaches of any covenant
or agreement of Sellers or any of them set forth in Section 5.3, Section 5.4,
Section 10.1, EXHIBIT "R" or "EXHIBIT "V" of this Agreement. Notwithstanding
anything to the contrary set forth in Section 11.1 or in this Section 11.3,
Wells OP agrees that Wells OP shall be jointly and severally liable with Wells
Virginia REIT, Wells Brea, Wells Westlake, Wells Farmington Hills, Wells
Kalamazoo and Wells EDS with respect to all obligations of each such party to
Purchaser under Section 11.1 above and this Section 11.3.
11.4. Survival. The representations, warranties and covenants
contained in this Agreement and the Closing Documents with respect to each
Property shall survive until the first (1st) anniversary of the closing of each
such Property, unless a longer or shorter survival period is expressly provided
for in this Agreement, or unless prior to such first (1st) anniversary date of
such Closing, Purchaser or Seller, as the case may be, delivers written notice
to the other party of such alleged breach specifying with reasonable detail the
nature of such alleged breach and files an action with respect thereto within
one hundred twenty (120) days after the giving of such notice.
11.5. Indemnification as Sole Remedy. If the Closing has occurred,
the sole and exclusive remedy available to a party in the event of a breach by
the other party to this Agreement of any representation, warranty, or covenant
or other provision of this Agreement or
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any Closing Document which survives the Closing shall be the indemnifications
provided for under Section 3.1(c), Section 10.1, and this Article 11.
ARTICLE 12.
MISCELLANEOUS
12.1. 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 overnight courier, hand, facsimile or other
electronic transmission, or sent by U.S. registered or certified mail, return
receipt requested, postage prepaid, to the addresses or facsimile numbers set
out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
PURCHASER: Lexington Corporate Properties Trust
One Penn Plaza
Suite 4015
New York, New York 10119-4015
Attention: Richard Rouse and Natasha Roberts
Facsimile: 212.594.6600
Email: rrouse@lxp.com and nroberts@lxp.com
with a copy to: Paul, Hastings, Janofsky & Walker, LLP
75 East 55th Street
New York, New York 10022
Attention: Katherine B. Lipton, Esquire
Facsimile: 212.230.7673
Email: katherinelipton@paulhastings.com
SELLERS: c/o Wells Real Estate Funds
6200 The Corners Parkway
Norcross, Georgia 30092
Attention: Mr. F. Parker Hudson
Facsimile: 770.243.4684
Email: parker.hudson@wellsref.com
with a copy to: Troutman Sanders LLP
Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Attn: John W. Griffin and Leslie Fuller Secrest
Facsimile: 404.962.6577 and 404.962.6678
Email: john.griffin@troutmansanders.com and
leslie.secrest@troutmansanders.com
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) Business Day following
the postmark date of such
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notice or other communication, (ii) sent by overnight courier or by hand shall
be deemed effectively given or received upon receipt, and (iii) sent by
facsimile or other electronic transmission shall be deemed effectively given or
received on the day of such electronic transmission of such notice or other
communication and confirmation of such transmission if transmitted and confirmed
prior to 6:00 p.m. local Atlanta, Georgia time on a Business Day and otherwise
shall be deemed effectively given or received on the first Business Day after
the day of transmission of such notice and confirmation of such transmission.
Refusal to accept delivery shall be deemed delivered.
12.2 Possession. Full and exclusive possession of the Properties of
each Seller, subject to the Permitted Exceptions and the rights of the tenants
under the Leases affecting such Properties, shall be delivered by such Seller to
Purchaser on the Closing Date.
12.3 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.
12.4 Publicity. The parties agree that, prior to Closing, and
except for disclosures required by law or governmental regulations applicable to
such party, no party shall, with respect to this Agreement and the transactions
contemplated hereby, contact or conduct negotiations with public officials or
make any public announcements regarding this Agreement or the transactions
contemplated hereby to any third party without the prior written consent of the
other party hereto. Except for disclosures required by law or governmental
regulations applicable to such party, Sellers and Purchaser shall each deliver
to the other the press release of the other party to be issued in connection
with the execution of this Agreement and in connection with the Closing no less
than three (3) hours during normal business hours on a Business Day prior to the
issuance of any such press release. No party shall record this Agreement or any
notice hereof; and neither party shall file a copy of this Agreement with the
SEC until the filing of their respective Quarterly Reports on Form 10-Q for the
current quarter, except for any recording or filing otherwise required under the
United States securities laws or as may be required by the SEC; provided,
however, that (i) in the event Purchaser is so required, it shall provide
Sellers reasonable advance notice of any such required filing, and (ii) any such
required filing shall exclude all schedules and exhibits to this Agreement.
12.5 Discharge of Obligations. The acceptance by Purchaser of the
Limited Warranty Deeds of Sellers hereunder shall be deemed to constitute the
full performance and discharge of each and every warranty and representation
made by Sellers or any of them and Purchaser herein and every agreement and
obligation on the part of Sellers or either of them and Purchaser to be
performed pursuant to the terms of this Agreement, except those warranties,
representations, covenants and agreements which are specifically provided in
this Agreement to survive Closing.
12.6 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
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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.
12.7 Construction. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that this Agreement may have been prepared by counsel for one of the parties, it
being mutually acknowledged and agreed that Sellers and Purchaser and their
respective counsel have contributed substantially and materially to the
preparation and negotiation of this Agreement. Accordingly, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
12.8 Sale Notification Letters. Promptly following the Closing,
Purchaser shall deliver the Tenant Notices of Sale to each of the respective
tenants under the Leases, the Ground Lessor Notices of Sale to each of the
respective Ground Lessors under the Wells OP Ground Leases, the Declarant
Notices to each of the respective Declarants under the Declarations, and the
Other Notices of Sale to each service provider and leasing agent, the
obligations under whose respective Service Contracts and Commission Agreements
Purchaser has assumed at Closing.
12.9 Access to Records Following Closing. Purchaser agrees that for
a period of one (1) year following the Closing, each Seller shall have the right
during regular business hours, on five (5) days' written notice to Purchaser, to
examine and review at Purchaser's office (or, at Purchaser's election, at the
Properties), the books and records of such Seller relating to the ownership and
operation of the Properties of such Seller which were delivered by such Seller
to Purchaser at the Closing. Likewise, each Seller agrees that for a period of
one (1) year following the Closing, Purchaser shall have the right during
regular business hours, on five (5) days' written notice to such Seller, to
examine and review at such Seller's office, all books, records and files, if
any, retained by such Seller relating to the ownership and operation by Seller
prior to the Closing of the Properties of such Seller. The provisions of this
Section shall survive the Closing for a period of one (1) year after the Closing
Date.
12.10 Submission to Jurisdiction. Each of Purchaser and Sellers
irrevocably submits to the exclusive jurisdiction of (a) the Superior Court of
Gwinnett County, Georgia located in Lawrenceville, Georgia, and (b) the United
States District Court for the Northern District of Georgia for the purposes of
any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of Purchaser and Sellers further agrees
that service of any process, summons, notice or document by U.S. registered mail
to such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in Georgia with respect to any
matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each of Purchaser and Sellers irrevocably and
unconditionally waives trial by jury and irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in (a) the
Superior Court of Gwinnett County, Georgia located in Lawrenceville, Georgia,
and (b) the United States District Court for the Northern District of Georgia,
and hereby further irrevocably and unconditionally waives and agrees not to
plead or
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Purchase and Sale Agreement
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
12.11 General Provisions. No failure of any 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 any 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 Sellers or
Purchaser unless such amendment is in writing and executed by Sellers and
Purchaser. Subject to the provisions of Section 9.1 hereof, 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
permitted assigns. Time is of the essence in this 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, interpreted and enforced under the laws of the
State of Georgia. 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.
12.12 Like-Kind Exchange . The parties hereto desire, and each party
is willing to cooperate (subject to the limitations set forth below), to
effectuate the sale of any one or more of the Properties by means of an exchange
of "like-kind" property which will qualify as such under Section 1031 of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder. Each party expressly reserves the right to assign its rights, but
not its obligations, hereunder to a qualified intermediary as provided in I.R.C.
Reg. 1.1031(k)-1(g)(4) on or before the date of Closing. Upon written notice
from either party (a "Requesting Party") to the other, the party to whom such
notice is given (the "Other Party") agrees to cooperate with the Requesting
Party to effect one or more like-kind exchanges with respect to the Property
designated by such Requesting Party in its notice to the Other Party, provided
that such cooperation shall be subject to the following conditions: (a) such
exchange shall not delay the Closing and shall occur either simultaneously with
the Closing or the purchase money proceeds payable to such Seller shall be paid,
upon such Seller's prior written direction to Purchaser, to a third party escrow
agent or intermediary such that Purchaser shall not be required to participate
in any subsequent closing, (b) the Requesting Party shall not be obligated to
spend any sums or incur any expenses in excess of the sums and expenses which
would have been spent or incurred by the Requesting Party if there had been no
exchange, (c) Purchaser shall not be obligated to acquire or accept title to any
property other than the applicable Property to be conveyed to Purchaser pursuant
to this Agreement, and (d) Seller shall not be obligated to acquire or accept
title to any property. The Other Party makes no representation or warranty that
the conveyance of any Property or property made pursuant to this Section 12.12
shall qualify for a like-kind exchange. Once Purchaser has paid the purchase
money proceeds as directed by such Seller, or such Seller has conveyed the
Property as directed by Purchaser, it shall have no further obligation hereunder
with respect to such "like-kind" exchange. Each Requesting Party hereby
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Purchase and Sale Agreement
indemnifies and holds the Other Party harmless from and against any costs,
liabilities and expenses incurred or suffered by the Other Party in connection
with the "like-kind" exchange or exchanges described herein, which indemnity
shall survive the Closing until the expiration of any applicable statute of
limitations.
12.13 Attorney's Fees. If Purchaser or Sellers or any of them brings
an action at law or equity against the other in order to enforce the provisions
of this Agreement or as a result of an alleged default under this Agreement, the
prevailing party in such action shall be entitled to recover court costs and
reasonable attorney's fees actually incurred from the other.
12.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute one and the
same original. To facilitate the execution and delivery of this Agreement, the
parties may execute and exchange counterparts of the signature pages by
facsimile, and the signature page of either party to any counterpart may be
appended to any other counterpart.
12.15 Effective Agreement. The submission of this Agreement for
examination is not intended to nor shall constitute an offer to sell, or a
reservation of, or option or proposal of any kind for the purchase of the
Properties. In no event shall any draft of this Agreement create any obligation
or liability, it being understood that this Agreement shall be effective and
binding only when a counterpart of this Agreement has been executed and
delivered by each party hereto.
[Signatures commence on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, month and year first above written.
SELLERS:
WELLS OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Wells Real Estate Investment Trust, Inc.,
a Maryland corporation, its sole general
partner
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[Signatures Continued on Next Page]
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[Signatures Continued from Previous Page]
WELLS FUND XIII - REIT JOINT VENTURE
PARTNERSHIP, a Georgia general partnership
By: Wells Real Estate Fund XIII, L.P.,
a Georgia limited partnership, general
partner
By: Wells Capital, Inc.,
a Georgia corporation, general
partner
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
--------------------------------------
Leo F. Wells III, general partner
By: Wells Operating Partnership, L.P., a
Delaware limited partnership, general
partner
By: Wells Real Estate Investment Trust,
Inc., a Maryland corporation, general
partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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Purchase and Sale Agreement
[Signatures Continued From Previous Page]
WELLS FUND XII - REIT JOINT VENTURE
PARTNERSHIP, a Georgia general partnership
By: Wells Real Estate Fund XII, L.P.,
a Georgia limited partnership, general
partner
By: Wells Partners, L.P.,
a Georgia limited partnership, general
partner
By: Wells Capital, Inc.,
a Georgia corporation, general
partner
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
--------------------------------------
Leo F. Wells III, general partner
By: Wells Operating Partnership, L.P., a
Delaware limited partnership, general
partner
By: Wells Real Estate Investment Trust,
Inc., a Maryland corporation, as its
general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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Purchase and Sale Agreement
[Signatures Continued from Previous Page]
WELLS REIT, LLC, VA I,
a Georgia limited liability company
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Wells Real Estate Investment Trust,
Inc., a Maryland corporation, its
sole general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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100
Purchase and Sale Agreement
[Signatures Continued From Previous Page]
DANACQ FARMINGTON HILLS LLC,
a Delaware limited liability company
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Wells Real Estate Investment Trust,
Inc., a Maryland corporation, its
sole general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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101
Purchase and Sale Agreement
[Signatures Continued From Previous page]
DANACQ KALAMAZOO LLC,
a Delaware limited liability company
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Wells Real Estate Investment Trust,
Inc., a Maryland corporation, its
sole general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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102
Purchase and Sale Agreement
[Signatures Continued From Previous Page]
WELLS BREA I, L.P.,
a Delaware limited partnership
By: Wells Brea, LLC, a Delaware
limited liability company, its sole
general partner
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, its
sole member
By: Wells Real Estate Investment
Trust, Inc., a Maryland
corporation, its sole general
partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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103
Purchase and Sale Agreement
[Signatures Continued From Previous Page]
WESTLAKE WELLS, L.P.,
a Texas limited partnership
By: Wells Real Estate Westlake, TX, LLC, a
Delaware limited liability company,
general partner
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, sole
member
By: Wells Real Estate Investment
Trust, Inc., a Maryland
corporation, its sole general
partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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104
Purchase and Sale Agreement
[Signatures Continued From Previous Page]
THE WELLS FUND XI - FUND XII - REIT
JOINT VENTURE, a Georgia general partnership
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, general
partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By: Wells Real Estate Fund XI, L.P., a
Georgia limited partnership, general
partner
By: Wells Partners, L.P.,
a Georgia limited partnership, general
partner
By: Wells Capital, Inc.,
a Georgia corporation, general
partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
----------------------------------
Leo F. Wells III, general partner
By: Wells Real Estate Fund XII, L.P.,
a Georgia limited partnership, general
partner
By: Wells Partners, L.P.,
a Georgia limited partnership, general
partner
By: Wells Capital, Inc.,
a Georgia corporation, general
partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
--------------------------------------
Leo F. Wells III, general partner
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105
Purchase and Sale Agreement
[Signatures Continued from Previous Page]
WELLS - EDS DES MOINES, L.P.,
a Texas limited partnership
By: Wells Real Estate - Des Moines, IA, LLC,
a Delaware limited liability company,
general partner
By: Wells Operating Partnership, L.P.,
a Delaware limited partnership, its
sole member
By: Wells Real Estate Investment
Trust, Inc., a Maryland
corporation, its sole general
partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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106
Purchase and Sale Agreement
[Signatures Continued From Previous Page]
PURCHASER:
LEXINGTON CORPORATE PROPERTIES TRUST,
a Maryland statutory real estate investment
trust
By:
-----------------------------------------
Richard J. Rouse, Chief Investment
Officer
IN WITNESS WHEREOF, the undersigned Broker has joined in the execution
and delivery hereof solely for the purpose of evidencing its rights and
obligations under the provisions of Section 10.1 hereof.
BROKER:
EASTDIL REALTY COMPANY, LLC, a New
York limited liability company,
Date of Execution:
By:
--------------------------------------
Name:
------------------------------------
_____________________, 2005 Title:
-----------------------------------
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Purchase and Sale Agreement