WAIVER AGREEMENT
This Agreement is made and entered into as of November __, 1998, by and
among 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, L.P. II, a Delaware limited partnership ("MWP II"), Mission West
Properties, L.P. III, a Delaware limited partnership ("MWP III"), and each of
the Berg Group parties identified on the signature pages hereof (the "Berg Group
Parties").
RECITALS
This Agreement is made and entered into as of November __, 1998, by and
among 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, L.P. II, a Delaware limited partnership ("MWP II"), Mission West
Properties, L.P. III, a Delaware limited partnership ("MWP III"), and each of
the Berg Group parties identified on the signature pages hereof (the "Berg Group
Parties").
RECITALS
WHEREAS, the Company is liable to each of MWP, MWPI, MWPII and MWPIII (the
"Operating Partnerships") under the terms of a Partnership Interest Purchase
Demand Note ("Demand Note") dated as of July 1, 1998, which may be called on
demand upon the earlier of the Company's closing of certain private placement
transactions involving the sale of common stock of the Company (the "Private
Placement") and the second anniversary of the issuance date of each Demand Note.
WHEREAS, the Company is the sole general partner of each of the Operating
Partnerships and has acquired such interest from the Operating Partnerships and
has entered into that and other transactions, directly or indirectly, with the
Berg Group Parties in order to organize itself as an Umbrella Partnership Real
Estate Investment Trust ("UPREIT") entity.
WHEREAS, the Berg Group Parties own and have acquired units of limited
partnership interests ("L.P. Units") of the Operating Partnerships that
collectively represent at least 50% of the total number of L.P. Units currently
outstanding in each of the Operating Partnerships.
WHEREAS, demand under the Demand Notes can be made by action of the
holders of a majority of the L.P. Units of each Operating Partnership.
WHEREAS, upon the approval of the shareholders of the Company of an
Exchange Rights Agreement the L.P. Units may be exchanged by the holders thereof
for common stock ("Common Stock") of the Company under certain circumstances.
WHEREAS, the offer and sale of L.P. Units to the Berg Group and the offer
and sale of Common Stock in exchange for the L.P. Units has not been registered
under the Act pursuant to the exemption provided under Section 4(2) of the Act.
WHEREAS, the Berg Group Parties desire that the Company form an UPREIT and
have entered into the related transactions with the Company and the Operating
Partnerships to benefit themselves.
WHEREAS, the parties hereto believe that it is in their mutual interest
for the Berg Group Parties to waive certain rights that may present a financial
risk to the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions and promises hereinafter set forth, the parties agree as follows:
1. NON-EXEMPT OFFERING CLAIMS. The Berg Group Parties hereby acknowledge and
agree that the offer and sale to them of the L.P. Units and the proposed offer
and sale of Common Stock in exchange therefor were made pursuant to an exempt
private placement transaction within the meaning of Section 4(2) of the Act.
Each of the undersigned Berg Group Parties hereby waives any claim that he, she
or it might have against the Company or the Operating Partnerships with respect
to any failure to register such offers and sales pursuant to Section 5 of the
Act, and each agrees not to initiate or join any action, suit or proceeding,
including any counterclaim, against the Company or any of the Operating
Partnerships which seeks recovery of any damages or property based upon any
allegation that such offers and sales should have been so registered. Each of
the Berg Group Parties further agrees not to take action against the Operating
Partnerships based upon any allegation that offers and sales of L.P. Units to
them should have been qualified under the California Corporate Securities Law of
1968, as amended.
2. WAIVER OF DEMAND. In the event the Company closes the Private Placement prior
to the second anniversary of the date of issuance of the Demand Notes and is
unable to repay the full principal amount thereof after application of the
proceeds of the Private Placement and of any line of credit then available to
the Company, the undersigned Berg Group Parties agree not to take action to make
a demand under any Demand Note prior to the second anniversary of the date of
its issuance.
3. MISCELLANEOUS. This Agreement and (unless otherwise provided) any waivers and
consents hereunder shall be governed by the laws of the State of California,
without regard to the conflict of laws principles thereof. This Agreement
constitutes the full and entire understanding and agreement among the parties
with regard to the subject matter contained herein, and supersedes all prior
written and oral agreements, representations and commitments, if any, among the
parties with respect to such subject matter, provided that each party hereto
hereby agrees to take such other actions and execute such additional documents
as may be necessary to effectuate the terms of this Agreement. This Agreement
may be executed in counterparts and delivered by electronic facsimile
transmission, and each signed counterpart transmitted by electronic facsimile
shall be considered an original, but all of which together shall constitute the
same instrument. Any provision of this Agreement may be waived or modified only
with the written consent of all parties hereto. If any provision of this
Agreement shall be determined to be invalid, it shall be severed from this
Agreement and the remaining provisions of this Agreement shall remain in full
force and effect.
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SIGNATURE PAGES OF WAIVER AGREEMENT
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the first date written above, and a party's signature hereon in
any capacity shall constitute such party's execution of this Agreement in all
capacities which the party holds for purposes of this Agreement.
MISSION WEST PROPERTIES, L.P., A DELAWARE LIMITED PARTNERSHIP
By: Mission West Properties, a California corporation
Its: General Partner
By: _________________________________
Michael J. Anderson
Its: Vice President and Chief Operating Officer
1981 KARA ANN BERG TRUST
By: _________________________________
Clyde J. Berg, Trustee
SONYA L. BERG TRUST
By: _________________________________
Thelmer Aalgaard, Trustee
SHERRI L. BERG TRUST
By: _________________________________
Thelmer Aalgaard, Trustee
MISSION WEST PROPERTIES, L.P. I, A DELAWARE LIMITED PARTNERSHIP
By: Mission West Properties
Its: General Partner
By: _________________________________
Michael J. Anderson
Its: Vice President and Chief Operating Officer
BERG LIVING TRUST UTA DATED MAY 1, 1981
By: _________________________________
Carl E. Berg
Its: Trustee
By: _________________________________
Mary Ann Berg
Its: Trustee
CLYDE J. BERG, TRUSTEE, 1995 CLYDE J. BERG REVOCABLE TRUST, DATED APRIL 4, 1995
By: _________________________________
Clyde J. Berg
Its: Trustee
CLYDE J. BERG, TRUSTEE, CARL BERG CHILD'S TRUST UTA DATED JUNE 2, 1978
By: _________________________________
Clyde J. Berg
Its: Trustee
MISSION WEST PROPERTIES, L.P. II, A DELAWARE LIMITED PARTNERSHIP
By: Mission West Properties limited liability
Its: General Partner
By: _________________________________
Michael J. Anderson
Its: Vice President and Chief Operating Officer
_________________________________
CARL E. BERG
_________________________________
MARY ANN BERG
_________________________________
CLYDE J. BERG
BACCARAT FREMONT DEVELOPERS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
By: _________________________________
Michael L. Knapp
Its: Managing Member
BACCARAT CAMBRIAN, A CALIFORNIA GENERAL PARTNERSHIP
By: _________________________________
Carl E. Berg
Its: General Partner
BERG & BERG ENTERPRISES INC., A CALIFORNIA CORPORATION
By: _________________________________
Carl E. Berg
Its: President
DE ANZA OFFICE PARTNERS, A CALIFORNIA GENERAL PARTNERSHIP
By: _________________________________
Carl E. Berg
Its: General Partner
MISSION WEST PROPERTIES, L.P. III, A DELAWARE LIMITED PARTNERSHIP
By: Mission West Properties, a California corporation
Its: General Partner
By: _________________________________
Michael J. Anderson
Its: Vice President and Chief Operating Officer