EXHIBIT 10.4
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE - CEDARPOINTE (CALIFORNIA)", as more particularly described on
Exhibit A to the Agreement, together with certain personal property, lease
interests and intangible property, all as more particularly described in the
Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including September 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Xxxxxx X. Xxxxxx
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Xxxxxxx X. Xxxxxxxx
Its: Vice President
2
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
CEDARPOINTE (CALIFORNIA)", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
3
4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Xxxxx Xxxxxx
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Xxxxxxx X. Xxxxxxxx
Its: Vice President
4
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
CEDARPOINTE (CALIFORNIA)", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Fifteen Million Six Hundred Fifty-Nine Thousand Nine
Hundred Two and No/100 Dollars ($15,659,902.00).
2. ESTOPPEL LETTERS. If Xxxx Industries and/or Staples Office
Products, tenants in the Property, do not indicate in their estoppel letters
that their rights set forth in their Leases to purchase a portion of the
Property are waived or are otherwise inapplicable to the transaction
contemplated herein, then Seller shall certify same to Buyer in Seller estoppel
letter(s), which certifications shall not be qualified by or limited to
"Seller's Knowledge", as such term is defined in SECTION 8.3.3 of the Agreement.
3. NON-FOREIGN STATUS AFFIDAVIT. Buyer and Seller acknowledge and
agree that (i) the form of non-foreign status affidavit attached to the
Agreement and labelled as "EXHIBIT J" is hereby relabelled as "EXHIBIT J-1" in
accordance with Section 6.4(g) of the Agreement and (ii) the form of affidavit
to be signed by Seller (California Form 590-RE), which form was to be attached
to the Agreement as EXHIBIT J-2 but was inadvertently omitted, is attached
hereto as EXHIBIT A.
4. PENDING LITIGATION. Pursuant to Section 8.2.4(a) of the
Agreement, Seller represents that Seller has not received any notice of any
pending or threatened litigation against Seller with respect to the Property.
5
5. NOTICE OF VIOLATIONS. Pursuant to Section 8.2.4(b) of the
Agreement, Seller represents that Seller has not received any written notice(s)
from governmental authorities concerning violations of zoning, building, fire,
or health codes, statutes, ordinances, rules or regulations applicable to the
Property.
6. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the "Designated Employees" in accordance with Section 8.3.3 of the
Agreement for all projects comprising the Property, are those persons set forth
on EXHIBIT B attached hereto.
7. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer acknowledges that Seller
has advised Buyer of the existence of those certain environmental reports or
surveys relating to the Property listed on EXHIBIT C attached hereto, which
replaces EXHIBIT Q to the Agreement.
8. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of that certain Assignment of Operating Agreements to be executed
by Buyer and Seller with respect to the project comprising the Property (the
"Assignment") pursuant to the Agreement, Seller and Buyer hereby agree that only
those operating agreements set forth on SCHEDULE A to such Assignment that are
cancellable upon thirty (30) days' notice shall be assigned by Seller and
assumed by Buyer pursuant to such Assignment. The assignment and assumption of
any operating agreement listed on such SCHEDULE A which is not so cancellable
shall be void AB INITIO. The terms and provisions of this Paragraph 8 of this
Sixth Amendment shall survive the Closing.
9. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
10. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
6
11. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Xxxxxx X. Xxxxxx
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By:
------------------------------
Xxxxxxx X. Xxxxxxxx
Its: Vice President
7
YEAR Withholding Exemption Certificate for CALIFORNIA FORM
19 Real Estate Sales (For use by sellers
-- of California real estate) 590-RE
--------------------------------------------------------------------------------
File this form with your withholding agent or buyer. |Withholding agent's name
--------------------------------------------------------------------------------
Seller's name
--------------------------------------------------------------------------------
Seller's address (number and street) |Seller's daytime telephone number
--------------------------------------------------------------------------------
City State Zip Code
--------------------------------------------------------------------------------
Read the following carefully and check the box that applies to the seller:
CERTIFICATE OF RESIDENCY -- INDIVIDUALS:
I am a resident of California and I reside at the address shown above.
/ / CERTIFICATE OF PRINCIPAL RESIDENCE -- INDIVIDUALS:
The California real property located at
--------------------------
qualifies as my principal residence within the meaning of the Internal
Revenue Code Section 1034.
/ / CORPORATIONS:
The above-named corporation has a permanent place of business in
California at the address shown above or is qualified to do business
in California.
/ / PARTNERSHIPS:
The above-named entity is a partnership and the recorded title to the
property is in the name of the partnership. The partnership will file
a California return to report the sale and will withhold on foreign
and domestic nonresident partners when required.
/ / LIMITED LIABILITY COMPANIES (LLCS):
The above-named entity is an LLC and the recorded title to the
property is in the name of the LLC. The LLC will file a California
return to report the sale and will withhold on foreign and domestic
nonresident partners when required.
8
/ / TAX-EXEMPT ENTITIES AND NONPROFIT ORGANIZATIONS:
The above-named entity is exempt from tax under California or federal
law.
/ / IRREVOCABLE TRUSTS:
At least one trustee of the above-named irrevocable trust is a
California resident. The trust will file a California fiduciary
return reporting the sale and will withhold on foreign and domestic
nonresident beneficiaries when required.
/ / CERTIFICATE OF RESIDENCY OF DECEASED PERSON -- ESTATES:
I am the executor of the above-named person's estate. The decedent
was a California resident at the time of death. The estate will file a
California fiduciary return reporting the sale and will withhold on
foreign and domestic nonresident beneficiaries when required.
/ / BANK:
The above-named entity is a bank or a bank acting as a fiduciary for a
trust. beneficiaries when required.
--------------------------------------------------------------------------------
CERTIFICATE: Please complete and sign below.
Under penalties of perjury, I hereby certify that the information provided
herein is, to the best of my knowledge, true and correct. If conditions change,
I will promptly inform the withholding agent.
Seller's name and title (type or print)
----------------------------------------
Seller's social security number, California corporation number,
FEIN or California Secretary of State file number
-----------------------
(NOTE: Failure to provide your identification number will render this
certificate void.)
Seller's signature Date
----------------------------------------------- ---------
For Privacy Act Notice, see form FTB 1131 (individuals only).
--------------------------------------------------------------------------------
9
