PENDING PROJECTS ACQUISITION AGREEMENT
This Pending Project Acquisition Agreement ("Agreement") is entered into as
of ___________, 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, L.P. II, 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 Clara
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 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 __ 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 __ days
prior to the Closing Date.
4. CLOSING DATE. The acquisition of each building in the Pending Projects
shall occur on the __ 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 I5 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 Sellers 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 Bill of Sale in the form attached hereto
as EXHIBIT B (the "Bill 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 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 Clara
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 ______________ Dollars ($__________), 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 _______________ Dollars ($___________) or
may, at the Sellers' election, grant the Purchaser a credit in said amount
against the Acquisition Value.
(b) In the event of damage or destruction of a building included in the
Pending Projects or any portion of the Pending Projects prior to the
Closing Date in an amount in excess of ______________ Dollars
($__________), 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 ______________ Dollars
($__________), the Purchaser and the Sellers shall consummate the
transaction, provided that the Sellers shall assign to the Purchaser such
Sellers' rights to all awards for the condemnation or taking and shall
indemnify the Purchaser with respect to any costs incurred by the Purchaser
in repairing and restoring the property that are not paid by the
condemnation awards up to the amount of ______________ Dollars ($_________)
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 ____________ Dollars ($_______),
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
10050 Bandley Drive
Cupertino, CA 95014
Attention: Independent Directors Committee
Fax No. (408) 725-1626
If to the Sellers:
c/o Berg & Berg Enterprises, Inc.
10050 Bandley Drive
Cupertino, CA 95014
Attention: Carl E. Berg
Fax No. (408) 725-1626
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 Clara. 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 Bill of Sale
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
PURCHASER: SELLERS:
By: By:
Its: Its:
By: By:
Its: Its:
APPENDIX I
LIST OF PENDING PROJECTS, OWNERS
AND
INITIAL ACQUISITION VALUE
Projected
Projected Average
Triple Monthly
Approximate Net Rental Rate Acquisition
PENDING PROJECT AND BUILDING Annual Per SQUARE VALUE
OWNERS SIZE BASE RENT FOOT
GREAT OAKS 54,240 $ 715,968 $1.10 $ 5,226,043
Carl Berg and Clyde Berg
MEMOREX DRIVE 52,800 $ 535,560 $0.85 $ 3,347,250
Carl Berg and Clyde Berg
RICHARD AVE. 58,740 $ 599,148 $0.85 $ 3,744,675
Carl Berg and Clyde Berg
AUTOMATION PARK
[______________]
Bldg. 1 114,028 $1,778,036 $1.30 $12,705,971
Bldg. 2 80,640 $1,257,984 $1.30 $ 8,985,600
Bldg. 3 80,640 $1,257,984 $1.30 $ 8,985,600
Bldg. 4 61,056 $ 952,474 $1.30 $ 6,803,386
L'AVENIDA
Baccarat Fremont, LLC,
a California limited
liability company,
Thelmer Aalgaard and
Patricia Aalgaard,
husband and wife, and
Clyde Berg, Trustee of the
1981 Kara Ann Berg Trust
Bldg. 1 94,134 $3,219,382 $2.85 $18,937,541
Bldg. 2 101,622 $3,475,724 $2.85 $20,445,435
Bldg. 3 93,314 $3,191,339 $2.85 $18,772,582
Bldg. 4 126,236 $4,317,271 $2.85 $25,395,717
Bldg. 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:
706-02-025
MEMOREX DRIVE AND RICHARD AVE.:
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:
224-65-006
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 244-13-10, and 244-15-18.
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:
116-16-63, 116-16-60, 116-16-65, 116-16-59, 116-16-75, 116-16-70, 116-16-69,
116-16-74
EXHIBIT B
WARRANTY BILL OF SALE
This Warranty Bill of Sale ("Bill 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, L.P. II ("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 Clara County, State of California, more particularly described in
attached Schedule 1, (the "Pending Projects") incorporated in this Bill 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 Bill of Sale, the successful
party, as adjudicated by a court, shall be entitled to reasonable attorney
fees and court costs.
4. GOVERNING LAW. This Bill of Sale shall be governed and construed in
accordance with California law.
The Sellers have executed this Bill of Sale as of the date first above
written.
SELLERS:
By:
Its:
By:
Its: