PENDING PROJECTS ACQUISTION AGREEMENT
This Pending Project Acquisition Agreement ("Agreement") is entered into as
of December 29, 1998 by and between Mission West Properties, a California
corporation (the "Company"), Mission West Properties, L.P., a Delaware limited
partnership ("MWP"), Mission West Properties, L.P. I, a Delaware limited
partnership ("MWP I"), Mission West Properties, X.X. XX, a Delaware limited
partnership ("MWP II") and Mission West Properties, L.P. III, a Delaware limited
partnership ("MWP III"; MWP, MWP I, MWP II and MWP III are referred to as the
"Operating Partnership"; the Company and the Operating Partnership are referred
to collectively as the "Purchaser"), on the one hand, and the individuals and
entities listed on Appendix I who own the properties set forth opposite such
individuals' and entities' names thereon (the "Sellers") on the other hand.
RECITALS
A. The Sellers are the owners of certain real property located in Santa
Xxxxx County, California, and described in attached EXHIBIT A, together with all
rights, privileges, easements, and appurtenances (collectively, the "Pending
Projects"); and all personal property, entitlements, licenses, permits,
development rights, air rights, authorizations, certificates, surveys, plans,
specifications, reports, studies, test results and all unexpired warranties and
guaranties given by unaffiliated third parties owned by the Sellers and
pertaining to or used exclusively in connection with the Pending Projects (the
"Personal Property"); (the Pending Projects and Personal Property shall be
collectively referred to herein as the "Pending Projects").
B. In connection with the Acquisition Agreement dated as of May 14, 1998
(the "Acquisition Agreement"), to which the Purchaser and the Sellers all are
parties, the Operating Partnership has agreed to issue L.P. Units to all of the
limited partners therein, the Company has agreed to become the general partner
of the Operating Partnership, and the Company has agreed to permit holders of
L.P. Units to exchange them for shares of the Company's common stock ("Common
Stock") under certain circumstances.
C. The Operating Partnership is governed by the Operating Partnership
Agreement and the Acquisition Agreement.
D. The Purchaser desires to acquire the Pending Projects and the Sellers
desire to convey the Pending Projects on the terms and conditions of this
Agreement, and pursuant to the Acquisition Agreement have agreed that the
Company or the Operating Partnership shall acquire each of the 12 buildings
comprising the Pending Projects as soon as such building (each an "acquired
property" herein) has been completed and fully leased by issuing additional L.P.
Units to the Sellers at a value of $4.50 per L.P. Unit, or at the Sellers'
option, they may receive cash or a combination of cash and L.P. Units.
AGREEMENT
For good and valuable consideration, the receipt and adequacy of which are
acknowledged, the parties agree as follows:
1. ACQUISITION. At the Closing Date (as defined herein) for the acquisition
of each of the buildings included in the Pending Projects, the Sellers who own
that building (as indicated on Appendix I) (the "Participating Sellers") agree
to convey, and the Purchaser agrees to acquire, such property subject to the
terms and conditions of this Agreement. The Sellers' shall appoint one
representative to act as their agent in connection with the acquisition and
conveyance of each acquired property (the "Sellers' Representative"). The
Sellers' Representative is authorized to receive written notices from the
Purchaser on behalf of all of the Sellers of such property.
2. ACQUISITION VALUE. The acquisition value for the conveyance of each of
the buildings in the Pending Projects will be the amount set forth in Appendix
I, subject to adjustment if the actual average monthly rental per square foot
for the term of the lease or leases in effect with respect thereto as of the
Closing Date (as defined herein) differs from the projected rental rate set
forth in Appendix I. Consequently, the actual Acquisition Value will be equal to
the acquisition value set forth in Appendix I multiplied by the ratio of the
actual average monthly rental rate per square foot divided by the projected
rental rate set forth in Appendix I (the "Acquisition Value"):
3. CONSIDERATION.
(a) ITEMS. The Purchaser shall provide the following items of consideration
to the Sellers upon the Purchaser's acquisition of the Pending Projects:
(i) the Acquisition Value of each building as set forth in Appendix I, as
such amount shall be adjusted as of the Closing Date (as defined herein),
payable, at the election of the Participating Sellers, as provided in Section
3(b), (A) in cash in an amount equal to (x) such Acquisition Value minus (y) the
sum of the principal amount of all debt encumbering the building (other than
assessment xxxxx) as of the Closing Date, and all accrued, unpaid interest and
other financing charges applicable to such debt (the "Net Acquisition Value"),
or (ii) through the issuance to the Participating Sellers of that number of L.P.
Units (with each receiving his, her or its proportionate share based on their
ownership interests in the acquired property) equal to the quotient obtained by
dividing the Net Acquisition Value by $4.50;
(ii) the assumption of all indebtedness encumbering the acquired property
as of the Closing Date; and
(iii)assumption and payment of all prorations and reimbursements which the
Purchaser is obligated to pay pursuant to Section 10.
(b) The Participating Sellers shall decide among themselves whether to
receive cash or L.P. Units, or both, upon their conveyance of the acquired
property to the Purchaser, and through one representative who they select, shall
deliver to the Purchaser, a written notice of election specifying the number of
L.P. Units, the amount of cash, or the number and amount of each, to be
delivered to each Participating Seller not less than 10 days prior to the
Closing Date.
(c) The purchaser of each acquired property at the Closing may be the
Operating Partnership or the Company; provided that pursuant to the terms of the
Operating Partnership Agreement the Company shall contribute such property to
the Operating Partnership in exchange for additional partnership interests as
provided therein. The Purchaser shall notify the Sellers which entity will be
acquiring the property not less than 3 days prior to the Closing Date.
4. CLOSING DATE. The acquisition of each building in the Pending Projects
shall occur on the 3rd business day after the last to occur of (i) the
completion of the building and receipt of required occupancy permits; (ii) the
execution of written leases with respect to 100% of the rentable square footage
in such building, (iii) satisfaction of all closing conditions set forth in
Section 5 and 6 as set forth in certificates which each party shall deliver to
the other, and (iv) the Participating Sellers' delivery to the Purchaser of
their election as to the form of consideration they intend to receive for the
acquired property (the "Closing Date").
5. CONDITIONS TO THE PURCHASER'S PERFORMANCE. The Purchaser's obligation to
acquire any of the buildings included in the Pending Projects is subject in each
instance to the following conditions precedent:
(a) The Sellers' representations and warranties in this Agreement being
correct in all material respects as of each Closing Date;
(b) The Sellers' compliance with the provisions of Section 15 with respect
to such acquired property;
(c) There shall not have occurred after the date hereof any material
adverse physical change in the acquired property, other than as contemplated by
the parties in connection with the completion of the property, from its
condition as of the date hereof.
(d) The Purchaser shall not have elected to terminate such obligation in
conformity with the provisions of Section II or Section 12.
The foregoing conditions shall be for the benefit of, and may be waived by,
the Purchaser. Upon the non-satisfaction of any of the foregoing conditions,
unless waived by the Purchaser, the Purchaser's obligations to acquire the
particular property shall terminate.
6. CONDITIONS TO THE SELLERS' PERFORMANCE. The Sellers' obligation to
convey each building included in the Pending Projects is subject in each
instance to the following conditions precedent:
(a) The Purchaser's representations and warranties in this Agreement being
correct in all material respects as of each Closing Date; and
(b) The Purchaser's performance of all of its obligations to acquire such
property under this Agreement.
(c) The Purchaser shall not have elected to terminate such obligation in
conformity with the provisions of Section II or Section 12.
The foregoing conditions shall be for the benefit of, and may be waived
only by, the Participating Sellers with respect to each acquired property. Upon
the non-satisfaction of any of the foregoing conditions, unless waived by such
Participating Sellers, their obligation to convey the particular property shall
terminate.
7. ACCESS.
(a) Access to the Pending Projects prior to the Closing Date shall be given
to the Purchaser during normal business hours upon at least one (1) business
day's prior notice to the Seller.
(b) The Purchaser and the Purchaser's contractors and consultants shall
have the right, from the date hereof until the Closing Date for an acquired
property, to enter onto such property, at its own cost and risk, for any
purposes, including but not limited to, inspecting the property. The Purchaser's
contractors and consultants shall be duly licensed and insured. As a condition
of such entry, the Purchaser shall provide evidence reasonably satisfactory to
the Sellers of the existence of general liability insurance prior to any such
entry, inspection, test or study. The Sellers agree to cooperate reasonably with
the Purchaser in the inspection of the Pending Projects and agree to make
available to the Purchaser all information in the Sellers' possession or control
pertaining to the condition of the Pending Projects, including engineering and
environmental reports, studies, tests, monitoring results, and related
documentation.
(c) The Purchaser shall indemnify and defend the Sellers against and hold
the Sellers harmless from all losses, costs, damages, liabilities, and expenses,
arising out of any personal injury or physical damage to the Pending Projects in
connection with the Purchaser's inspection of or presence, prior to the Closing
Date, on the Pending Projects. Furthermore, the Purchaser shall indemnify,
defend and hold the Sellers harmless from and against any mechanic's lien claims
that may arise in connection with the Purchaser's inspection of or presence,
prior to the Closing Date, on the Pending Projects.
8. TITLE. Title to the Pending Projects shall be such as will be insured,
solely in the name of the applicable Purchasors as good and marketable title by
a title insurance company acceptable to the Purchaser at regular rates pursuant
to the standard stipulations and conditions of the 1970 Form B ALTA Owner's
Title Insurance Policy as revised in 1984, and as the same may be modified by
such endorsements, affirmative coverage and other matters which have been
requested by the Purchaser prior to each of the Closing Dates, free and clear of
all liens and encumbrances, except those liens and encumbrances which the
Purchaser agrees to accept and/or assume in writing as of each Closing Date.
9. CLOSE OF THE PURCHASE AND SALE.
(a) CONVEYANCE OF TITLE. At each close of escrow, good and marketable title
to the Pending Projects shall be conveyed by the Sellers to the Purchaser by the
Deed (as defined below) subject only to the following permitted liens:
(i) A lien for real property taxes and assessments not then
delinquent;
(ii) Matters of title respecting the Pending Projects approved or
deemed approved by the Purchaser in accordance with this Agreement;
(iii) Title and survey matters which would be disclosed by an ALTA
survey and approved or deemed approved by the Purchaser;
(iv) Matters affecting the condition of title to the Pending Projects
created by or with the written consent of the Purchaser; and
(v) Indebtedness for borrowed funds incurred by the Sellers with their
written agreement.
As of each of the Closing Dates, all of the Sellers' right, title and
interest in and to the Personal Property shall be conveyed by the Sellers to the
Purchaser by the Warranty Xxxx of Sale in the form attached hereto as EXHIBIT B
(the "Xxxx of Sale").
(b) THE SELLERS' DELIVERIES ON THE CLOSING DATE. The Sellers shall deliver
to the Purchaser on every Closing Date the following documents:
(i) Statutory grant deeds executed and acknowledged by the Sellers
(the "Deed");
(ii) The Sellers' affidavits of non-foreign status as contemplated by
Section 1445 of the Internal Revenue Code of 1986, as amended, or a release
from the Internal Revenue Service in form and content reasonably acceptable
to the Purchaser, indicating that the Purchaser is excused from any
withholding requirements under federal law ("FIRPTA Affidavit") executed by
the Sellers, but undated;
(iii)The Sellers' affidavits as contemplated by Revenue and Taxation
Code Section 18662 or a release from the California Franchise Tax Board in
form and content reasonably acceptable to the Purchaser, indicating that
the Purchaser is excused from any withholding requirements under California
law (the "Withholding Affidavit") executed by the Sellers, but undated;
(iv) Bills of Sale duly executed by the Sellers, but undated; and
(v) Such other documents as the Purchaser may reasonably require in
order to close the transactions in accordance with the terms hereof.
(c) PURCHASER'S DELIVERIES ON THE CLOSING DATE. The Purchaser shall deliver
to the Sellers on every Closing Date the following:
(i) The consideration in accordance with Section 3(a) together with
the Purchaser's share of closing costs; and
(ii) Such other documents as the Sellers may reasonably require to
close the transactions in accordance with the terms hereof.
(d) CLOSING COSTS. The closing costs shall be allocated and prorated as
follows:
(i) THE SELLERS SHALL PAY:
(A) any costs of clearing title to the Pending Projects;
(B) any document preparation fees for the Deed; and
(C) all documentary and/or real property transfer taxes due upon
the transfer of the Pending Projects.
(ii) THE PURCHASER SHALL PAY:
(A) all charges in connection with the issuance of a title
policy; and
(B) the recording charges in connection with recordation of the
Deed.
Any closing costs not addressed herein shall be allocated in accordance
with the custom and practice then prevailing in Santa Xxxxx County.
(iii) REAL ESTATE TAXES, BONDS AND ASSESSMENTS. Current real
property taxes, any current installment of any bond or assessment that
constitutes a lien on the Pending Projects, rents and license fees, if
any, including any additional property taxes or installments of any
bond or assessment lien that may be assessed after the Closing Date,
but that relate to a period prior to the Closing Date, regardless of
when notice of those taxes, dues or assessments are received or who
receives the notice shall be prorated as of the Closing Date.
10. POSSESSION. Exclusive possession of the Pending Projects shall be
delivered to the Purchaser on each Closing Date.
11. DAMAGE AND DESTRUCTION.
(a) In the event of damage or destruction of a building included in the
Pending Projects or any portion of the Pending Projects prior to a Closing Date
in an amount not exceeding Ten Thousand Dollars ($10,000), the Purchaser and the
Sellers shall consummate the transaction, provided that the Sellers shall assign
to the Purchaser such Sellers' rights under any insurance policy covering the
damage or destruction and shall indemnify the Purchaser with respect to any
costs incurred by the Purchaser in repairing and restoring the building after
the Closing Date that are not paid by the insurance up to the amount of Ten
Thousand Dollars ($10,000) or may, at the Sellers' election, grant the Purchaser
a credit in said amount against the Acquisition Value.
(b) In the event of damage or destruction of a building included in the
Pending Projects or any portion of the Pending Projects prior to the Closing
Date in an amount in excess of Ten Thousand Dollars ($10,000), the Purchaser may
elect within ten (10) days following such event of damage or destruction, either
to terminate its obligation to acquire such property under the terms of this
Agreement upon written notice to the Sellers, or to consummate the transaction,
in which event the Sellers shall assign to the Purchaser the Sellers' rights
under any insurance policy covering the damage or destruction, but without the
indemnity provided in subsection (a) above. The Purchaser's failure to
affirmatively elect whether to terminate or consummate the transaction within
said ten (10) day period shall be deemed the Purchaser's election to consummate
the transaction. If the Purchaser elects to terminate its obligation to acquire
such property under the terms of this Agreement pursuant to this provision,
neither party shall have any further obligations to acquire or convey such
property under this Agreement.
12. CONDEMNATION.
(a) If any portion of a building included in the Pending Projects is taken
by condemnation or eminent domain or is the subject of a threatened or pending
condemnation or eminent domain proceeding that has not been consummated prior to
the Closing Dates resulting in a decrease in the value of the Pending Projects
in an amount not exceeding Ten Thousand Dollars ($10,000), the Purchaser and the
Sellers shall consummate the transaction, provided that the Sellers shall assign
to the Purchaser such Sellers' rights to all awards for the condemnation or
taking and shall indemnify the Purchaser with respect to any costs incurred by
the Purchaser in repairing and restoring the property that are not paid by the
condemnation awards up to the amount of Ten Thousand Dollars ($10,000) or may,
at the Sellers' election, grant the Purchaser a credit in such amount against
the consideration payable for the acquired property.
(b) If any portion of a building included in the Pending Projects is taken
by condemnation or eminent domain or is the subject of a threatened or pending
condemnation or eminent domain proceeding that has not been consummated prior to
the Closing Date resulting in a decrease in the value of such property in an
amount in excess of Ten Thousand Dollars ($10,000), the Purchaser may elect
within ten (10) days following such event, either to terminate its obligation,
to acquire the property under this Agreement upon written notice to the Sellers,
or to consummate the transaction, in which event the Sellers shall assign to the
Purchaser such Sellers' rights to all awards for the condemnation or taking, but
without the indemnity provided in subsection (a) above. The Purchaser's failure
to affirmatively elect whether to terminate or consummate the transaction within
said ten (10) day period shall be deemed the Purchaser's election to consummate
the transaction. If the Purchaser elects to terminate its obligation to acquire
the property under this Agreement pursuant to this provision, neither party
shall have any further obligations to acquire or convey such property under this
Agreement, except as otherwise provided in this Agreement.
13. SELLERS' REPRESENTATIONS AND WARRANTIES. The Sellers jointly and
severally represent and warrant to the Purchaser that as of the date of this
Agreement and as of each of the respective Closing Dates:
(a) The Sellers have full right, power and authority to enter into and
perform the Sellers' obligations under this Agreement in accordance with its
terms;
(b) None of the Sellers is a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1954, as amended, and is a "resident"
of the State of California within the meaning of Section 18662 of the California
Revenue and Taxation Code, as amended;
(c) There is not pending, or to the Sellers' actual knowledge, threatened,
any litigation with respect to the Pending Projects (excluding any properties
conveyed to the Purchaser hereunder prior to the Closing Date); and
(d) Except as disclosed to the Purchaser and to the Sellers' actual
knowledge, no toxic or hazardous chemicals, waste, or substances of any kind
have ever been spilled, disposed of, or stored on, under, or at the Pending
Projects in violation of any applicable law, rule or regulation (excluding any
properties conveyed to the Purchaser hereunder prior to the Closing Date).
The continued accuracy in all respects of the Sellers' foregoing
representations and warranties of the Sellers shall be a condition precedent to
the Purchaser's obligation to close the acquisition of each property. All such
representations and warranties contained in this Agreement shall be deemed
remade as of the Closing Dates for each acquired property.
14. PURCHASER REPRESENTATIONS AND WARRANTIES. The Purchaser represents and
warrants to the Sellers that as of the date of this Agreement and as of each of
the respective Closing Dates the Purchaser has full right, power and authority
to buy the Pending Projects from the Sellers and to perform the Purchaser's
obligations under this Agreement in accordance with its terms.
15. SELLERS' COVENANTS. Commencing on the date hereof and continuing with
respect to each building included in the Pending Projects until the Closing Date
for the acquisition of such property:
(a) The Sellers shall not create or consent to any liens, encumbrances, or
easements on or affecting the Pending Projects, except for the permitted liens
described in Section 9(a) as contemplated by the submitted plans and issued
permits for such Projects and for secured debt.
(b) The Sellers shall not permit any act of waste or act that would
materially to diminish the value of the Pending Projects for any reason, except
that caused by ordinary wear and tear.
(c) The Sellers will promptly (after learning of same) notify the Purchaser
in writing of any adverse material changes affecting the physical condition of
the Pending Projects.
(d) The Sellers shall complete and maintain the Pending Projects in
conformity with applicable building codes, laws, and sound construction and
property management practices.
(e) Unless the acquisition of an acquired property is sooner terminated by
the Purchaser (when permitted under this Agreement), the Sellers will not make,
accept, negotiate or otherwise pursue any offers for the disposition (whether
directly, through a joint venture, ground lease, financing, or otherwise) of any
interest in the Pending Projects.
16. "AS-IS" SALE. Except as expressly set forth herein, the Purchaser
acknowledges that it is buying the Pending Projects in "As-Is, Where-Is"
condition, in reliance on its own investigations.
17. BROKERS AND FINDERS. The Purchaser and the Sellers each represent and
warrant to the other party that no broker or finder has been utilized in the
purchase and sale contemplated by this Agreement. In the event of a claim for
broker's fees, finder's fees, commissions or other similar compensation in
connection herewith: (i) the Purchaser, if such claim is based upon any
agreement alleged to have been made by the Purchaser, shall indemnify, defend,
and hold the Sellers harmless (using counsel reasonably satisfactory to the
Sellers) from and against any and all damages, liabilities, costs, expenses and
losses (including, but not limited to, attorneys' fees and costs) that the
Sellers sustain or incur by reason of such claim; and (ii) the Sellers, if such
claim is based upon any agreement alleged to have been made by the Sellers,
shall indemnify, defend and hold the Purchaser harmless (using counsel
reasonably satisfactory to the Purchaser) from and against any and all damages,
liabilities, costs, expenses and losses (including, but not limited to,
attorneys' fees and costs) that the Purchaser sustains or incurs by reason of
such claim.
18. SURVIVAL. Except to the extent specifically provided to the contrary
hereunder, each and every covenant, agreement, representation and warranty of
each of the parties hereto shall survive the Closing Date and shall not merge
with the Sellers' deliveries of the Deeds or other documents to the Purchaser.
19. ASSIGNMENT; SUCCESSORS AND ASSIGNS. The Purchaser shall have the right
to assign this Agreement with the prior written consent of the Sellers'
Representative or all Sellers, which consent shall not be unreasonably withheld.
This Agreement, and the terms, covenants and conditions herein contained, shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, heirs and assigns.
20. NOTICES. All notices to be given under this Agreement shall be in
writing and sent by:
(a) certified mail, return receipt requested, in which case notice shall be
deemed delivered three (3) business days after deposit, postage prepaid in the
United States Mail,
(b) a nationally recognized overnight courier, in which case notice shall
be deemed delivered one (1) business day after deposit with that courier, or
(c) facsimile or similar means if a copy of the notice is also sent by
United States Certified Mail, in which case notice shall be deemed delivered on
transmittal by facsimile or other similar means, provided that a transmission
report is generated by reflecting the accurate transmission of the notices, as
follows:
If to the Purchaser:
Mission West Properties
00000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Independent Directors Committee
Fax No. (000) 000-0000
If to the Sellers:
c/o Berg & Xxxx Enterprises, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Fax No. (000) 000-0000
21. ARBITRATION OF DISPUTES. Any dispute or claim in law or equity solely
between the Purchaser and Sellers arising out of this Agreement shall be decided
by neutral, binding arbitration. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association ("AAA") then
obtaining using a single arbitrator. The decision of the arbitrator shall be
final and binding. In all other respects, the arbitration shall be conducted in
accordance with Part III, Title 9 of the California Code of Civil Procedure.
Judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The parties shall have the right to discovery
in accordance with code of Civil Procedure Section 1283.05. The arbitration
shall take place in the County of Santa Xxxxx. The filing of a judicial action
to enable the recording of a notice of pending action, for order of attachment,
receivership, injunction, or other provisional remedies, shall not constitute a
waiver of the right to arbitrate under this provision.
22. ATTORNEYS' FEES. If any arbitration or court action is commenced
between the parties, the prevailing party in that arbitration or court action
shall be entitled to recover from the non-prevailing party all reasonable
attorneys' fees and costs.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties to this Agreement and shall not be modified in any manner except by
an instrument in writing executed by the parties or their respective successors
in interest.
24. SEPARATE CONTENTS. The acquisition and conveyance of the real property
and improvements constituting each of the buildings included in the Pending
Projects or identified on Appendix I is a separate transaction, and the parties'
obligations with respect to each such property constitutes a separate contract
under this Agreement.
25. SEVERABILITY. If any term or provision of this Agreement shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement shall
not be affected.
26. WAIVERS. A waiver or breach of covenant or provision in this Agreement
shall not be deemed a waiver of any other covenant or provision in this
Agreement, and no waiver shall be valid unless in writing and executed by the
waiving party. An extension of time for performance of any obligation or act
shall not be deemed an extension of the time for performance of any other
obligation or act.
27. CONSTRUCTION. The section headings and captions of this Agreement are,
and the arrangement of this instrument is, for the sole convenience of the
parties to this Agreement. The section headings, captions, and arrangement of
this instrument do not in any way affect, limit, amplify, or modify the terms
and provisions of this Agreement. The singular form shall include plural, and
vice versa. This Agreement shall not be construed as if it had been prepared by
one of the parties, but rather as if both parties have prepared it. Unless
otherwise indicated, all references to sections are to this Agreement. All
exhibits referred to in this Agreement are attached to it and incorporated in it
by this reference. Capitalized terms used in this Agreement have the meaning
ascribed to them in the Acquisition Agreement under indicated otherwise.
28. MERGER. All of the terms, provisions, representations and covenants of
the parties under this Agreement shall survive the Closing Dates and shall not
be merged in the Deeds.
29. COUNTERPARTS. This Agreement may be executed in one or more
counterparts.
30. TIME OF THE ESSENCE. Time is of the essence in this Agreement.
31. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
32. EXHIBITS. Each exhibit to which reference is made in this Agreement is
deemed incorporated into this Agreement in its entirety by such reference. The
exhibits to this Agreement are the following:
Exhibit A Legal Description of Pending Projects
Exhibit B Warranty Xxxx of Sale
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PURCHASER: SELLERS:
MISSION WEST PROPERTIES, a By: /s/Xxxx X. Xxxx
California Corporation ______________________________
Xxxx X. Xxxx
By: /s/ Xxxxxxx X. Xxxxxxxx
______________________________ By: /s/Xxxxx X. Xxxx
______________________________
Its: Vice President Xxxxx X. Xxxx
_____________________________
MISSION WEST PROPERTIES, L.P., a XXXX & XXXX ENTERPRISES, INC., a
Delaware Limited Partnership California Corporation
By: Mission West Properties, a By: /s/ Xxxx X. Xxxx
California Corporation, as ______________________________
General Partner
Its: President
By: /s/ Xxxxxxx X. Xxxxxxxx _____________________________
______________________________
Its: Vice President
_____________________________
MISSION WEST PROPERTIES, L.P. I, a BACCARAT FREMONT, LLC, a California
Delaware Limited Partnership Limited Liability Company
By: Mission West Properties, a By: /s/ Xxxxxxx Xxxxx
California Corporation, as ______________________________
General Partner
Its: Manager
By: /s/ Xxxxxxx X. Xxxxxxxx _____________________________
______________________________
Its: Vice President
_____________________________
MISSION WEST PROPERTIES, X.X. XX, a
Delaware Limited Partnership
By: Mission West Properties, a By: /s/ Xxxxxxx Xxxxxxxx
California Corporation, as ______________________________
General Partner Xxxxxxx Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s Xxxxxxxx Xxxxxxxx
______________________________ ______________________________
Xxxxxxxx Xxxxxxxx
Its: Vice President
_____________________________ By: /s/ Xxxxx X. Xxxx
______________________________
Xxxxx X. Xxxx, Trustee of the 1981
Kara Xxx Xxxx Trust
MISSION WEST PROPERTIES, L.P. III, a
Delaware Limited Partnership
By: Mission West Properties, a
California Corporation, as
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
______________________________
Its: Vice President
_____________________________
APPENDIX I
LIST OF PENDING PROJECTS, OWNERS
AND
INITIAL ACQUISITION VALUE
Projected
Projected Average
Triple Monthly
Approximate Net Rental Rate
Building Annual Per Square Acquisition
PENDING PROJECT AND OWNERS Size Base Rent Foot Value
=============================================================================================
GREAT OAKS 54,240 $715,968 $1.10 $5,226,043
Xxxx Xxxx and Xxxxx Xxxx
MEMOREX DRIVE 52,800 $ 535,560 $0.85 $3,347,250
Xxxx Xxxx and Xxxxx Xxxx
XXXXXXX AVE. 58,740 $599,148 $0.85 $3,744,675
Xxxx Xxxx and Xxxxx Xxxx
AUTOMATION PARKWAY
Xxxx & Xxxx Enterprises,
Inc. Xxxx. 0 114,028 $1,778,036 $1.30 $12,705,971
2 80,640 $1,257,984 $1.30 $8,985,600
3 80,640 $1,257,984 $1.30 $8,985,600
4 61,056 $952,474 $1.30 $6,803,386
X'XXXXXXX
Xxxxxxxx Xxxxxxx, XXX, Xxxx. 0 94,134 $3,219,382 $2.85 $18,937,541
a California limited
liability company, Xxxxxxx 2 101,622 $3,475,724 $2.85 $20,445,435
Xxxxxxxx and Xxxxxxxx
Xxxxxxxx, husband and wife, 3 93,314 $3,191,339 $2.85 $18,772,582
and Xxxxx Xxxx, Trustee of
the 1981 Kara Xxx Xxxx Trust 4 126,236 $4,317,271 $2.85 $25,395,717
5 98,166 $3,357,277 $2.85 $19,748,688
EXHIBIT A
LEGAL DESCRIPTION OF THE PENDING PROJECTS
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF CALIFORNIA, AND
IS DESCRIBED AS FOLLOWS:
GREAT OAKS:
This land is located in south San Jose, California and consists of approximately
3 gross acres of unimproved land. The land is described by the following
Assessor's Parcel Number:
000-00-000
XXXXXXX XXXXX XXX XXXXXXX XXX.:
This land is located in north Santa Clara, California and consists of
approximately a 6 acre portion of land. This portion of land is described by the
following Assessor's Parcel Number:
000-00-000
AUTOMATION PARKWAY:
This land is located in north San Jose, California and consists of approximately
21 gross acres of unimproved land. The land is described by the following
Assessor's Parcel Numbers:
Portions of 000-00-00, and 000-00-00.
L' AVENIDA:
This land is located in Mountain View, California and consists of approximately
32 gross acres of unimproved land. The land is described by the following
Assessor's Parcel Numbers:
000-00-00, 000-00-00, 000-00-00, 000-00-00, 000-00-00, 000-00-00, 000-00-00,
000-00-00
EXHIBIT B
WARRANTY XXXX OF SALE
This Warranty Xxxx of Sale ("Xxxx of Sale") is executed as of March ___,
1998 by the individuals and entities listed on Appendix I ("Sellers") in favor
of Mission West Properties, a California corporation (the "Company"), Mission
West Properties, L.P. ("MWP"), Mission West Properties, L.P. I ("MWP I"),
Mission West Properties, X.X. XX ("MWP II"), Mission West Properties, L.P. III
("MWP III, and collectively with the Company, MWP, MWP I and MWP II, the
"Purchaser")
RECITALS
A. The Sellers and the Purchaser have entered into that certain Pending
Projects Acquistion Agreement dated of even date herewith (the "Purchase
Agreement"), in which the Purchaser has agreed to purchase real property in
Santa Xxxxx County, State of California, more particularly described in attached
Schedule 1, (the "Pending Projects") incorporated in this Xxxx of Sale.
B. Pursuant to the Purchase Agreement, the Sellers have agreed to transfer
to the Purchaser all the Sellers' right, title and interest in all licenses,
permits, development rights, air rights, authorizations, certificates, surveys,
plans, specifications, reports, studies, test results and all unexpired
warranties and guaranties given by unaffiliated third parties owned by the
Sellers and pertaining to or used exclusively in connection with the Pending
Projects (collectively, "Personal Property") concurrent with the Closing Dates
(as defined in the Purchase Agreement).
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Sellers agree as follows:
AGREEMENT
1. TRANSFER. Effective as of the Closing Dates, the Sellers hereby
transfer, sell, assign, grant and convey to the Purchaser all of the Sellers'
right, title, and interest in the Personal Property.
2. SELLERS'S COVENANTS. The Sellers covenant to the Purchaser that the
Sellers have good and marketable title to the Personal Property, free of all
liens, and has the right to transfer the Personal Property. The Sellers further
agree that the Sellers will defend the Purchaser's title to the Personal
Property against the demands of anyone claiming through the Sellers.
3. ATTORNEYS' FEES. If any suit, action or other proceeding is instituted
to enforce the rights of either party under this Xxxx of Sale, the successful
party, as adjudicated by a court, shall be entitled to reasonable attorney fees
and court costs.
4. GOVERNING LAW. This Xxxx of Sale shall be governed and construed in
accordance with California law.
The Sellers have executed this Xxxx of Sale as of the date first above
written.
SELLERS:
_______________________________________
By:
____________________________________
Its:
___________________________________
By:
____________________________________
Its:
___________________________________
