<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
___________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: AUGUST 22, 1997
---------------
MERIDIAN POINT REALTY TRUST '83
(Exact name of registrant as specified in its charter)
CALIFORNIA
(State of Organization)
0-12166 94-6542723
(Commission File No.) (IRS Employer I.D. #)
655 MONTGOMERY STREET, SUITE 800
SAN FRANCISCO, CA 94111
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (415) 981-4900
NOT APPLICABLE
(Former name or former address, if changed since last report)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On August 22, 1997, Meridian Point Realty Trust '83, a California business
trust (the "Company"), sold Charleston Business Park, located in Mountain View,
California (the "Property"). The Property consists of six research and light
industrial buildings, aggregating 119,041 square feet on an 8-acre site adjacent
to the Bayshore Freeway. The Property was sold to 2400 Charleston Associates,
LLC, a California limited liability corporation (the "Buyer"). No relationship
exists between the Buyer and the Company, any Company affiliate, any Company
director or officer, or any associate of any Company director or officer.
The total purchase price for the Property was $13,000,000 less a $1,350,000
credit for potential remediation work and related costs, resulting in a net
sales price of $11,650,000. The purchase price was paid entirely in cash. Out
of escrow, the Company used $4,557,500 of the sales proceeds to pay off existing
financing on the Property and used or will pay $1,071,000 to pay brokerage
commissions, prepayment penalty on early retirement of debt and closing costs
associated with the transaction. This will represent a gain of approximately
$4,350,000.
As a result of the sale of the Charleston property, the board of trustees
on August 22, 1997 declared a dividend in the amount of $3.00 cash per share
payable on September 12, 1997 to shareholders of record on September 2, 1997.
Since the Charleston Property was the Company's sole remaining real estate
holding, the board of trustees is in the process of evaluating the options
available, including the sale or termination of the Company. The Company's
remaining assets consist almost entirely of cash and cash equivalents. The
Company will retain assets to satisfy its liabilities, as well as to cover
overhead and operating expenses.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Not applicable.
(b) Pro forma financial information. The following pro forma financial
--------------------------------
statements are filed as part of this report:
Pro forma Balance Sheet as of June 30, 1997 (unaudited)
Pro Forma Statement of Operations for the Six Month Period Ended June
30, 1997 (unaudited.
Pro Forma State of Operations for the Year Ended December 31, 1996
(unaudited).
(c) Exhibits. The following exhibits are attached to this report:
---------
10.1 Purchase and Sale Agreement entered into August 4, 1997 by and
between Meridian Point Realty Trust '83, a California business trust
and 2400 Charleston Associates, LLC, a California limited liability
corporation.
28.1 Press Release dated August 22, 1997.
<PAGE>
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned, hereunto duly authorized.
By: MERIDIAN POINT REALTY TRUST '83
By: /s/ Lorraine O. Legg
-------------------
Lorraine O. Legg
President
Date: September 5, 1997
<PAGE>
MERIDIAN POINT REALTY TRUST '83
PRO FORMA BALANCE SHEET
AS OF JUNE 30, 1997
(UNAUDITED)
The following statement sets forth the unaudited, pro forma Balance Sheet of the
Company as of June 30, 1997 as if the sale of the Charleston Business Park
property and payment of the dividend of $3.00 per share had occurred on that
date.
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
ACTUAL ADJUSTMENTS RESULTS
------------- ------------- ------------
<S> <C> <C> <C>
ASSETS
- ------
Investment in Real Estate:
Rental Properties, Net $ 8,724,742 ($8,724,742) $ --
Less: Accumulated Depreciation (2,532,066) 2,532,066 --
- -----------------------------------------------------------------------------------------------------------------
6,192,676 (6,192,676) --
Other Assets:
Cash and Cash Equivalents 4,299,259 6,232,149 (1) 3,257,574
1,821,020 (2)
(9,094,854) (3)
Restricted Cash 1,821,020 (1,821,020) (2) --
Capitalized Loan Costs, Net 13,833 (13,833) --
Capitalized Lease Commissions, Net 26,284 (26,284) --
Other Assets, Net 168,326 (97,589) 70,737
- -----------------------------------------------------------------------------------------------------------------
Total Assets $ 12,521,398 ($9,193,087) $ 3,328,311
=================================================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------
Liabilities:
Mortgage Note Payable $ 4,567,652 ($4,567,652) (4) $ --
Accounts Payable 15,941 235,000 (5) 250,941
Tenant Deposits and Other Liabilities 174,102 (122,480) 51,622
- -----------------------------------------------------------------------------------------------------------------
Total Liabilities 4,757,695 (4,455,132) 302,563
- -----------------------------------------------------------------------------------------------------------------
Shareholders' Equity:
Shares of Beneficial Interest - $1.00 stated
value; authorized - unlimited,
3,031,618 shares issued and outstanding 3,031,618 3,031,618
Paid-in Capital 22,755,694 22,755,694
Distributions in Excess of Income (18,023,609) 4,356,899 (6) (22,761,564)
(9,094,854) (3)
- -----------------------------------------------------------------------------------------------------------------
Total Shareholder's Equity 7,763,703 (4,737,955) 3,025,748
- -----------------------------------------------------------------------------------------------------------------
Total Liabilities and Shareholders' Equity $ 12,521,398 ($9,193,087) $ 3,328,311
=================================================================================================================
</TABLE>
(1) Represents the net cash proceeds received from the sale of the Property
(2) Represents restricted cash becoming available for general purposes of the
Company.
(3) Represents distribution of $3.00 per share, payable September 12, 1997.
(4) Represents the principal balance of the mortgage note securing the
Property.
(5) Represents the additional commission payable in connection with the sale of
the Property.
(6) Represents the approximate gain on the sale of the Property
<PAGE>
MERIDIAN POINT REALTY TRUST '83
PRO FORMA STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1997
(UNAUDITED)
The following statement sets forth the unaudited, pro forma Statement of
Operations of the Company for the six month period ended June 30, 1997 as if the
sale of the Charleston Business Park property had occurred on that date.
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
ACTUAL ADJUSTMENTS RESULTS
-------- ------------ -----------
<S> <C> <C> <C>
REVENUES:
- ---------
Rental Income $711,058 ($711,058) $ --
Interest and Other 140,606 140,606
- -----------------------------------------------------------------------------------------------
Total Revenues 851,664 (711,058) 140,606
- -----------------------------------------------------------------------------------------------
EXPENSES:
- ---------
Interest and Amortization of Loan Costs 205,512 (205,512) (1) --
Property Taxes 61,693 (61,693) --
Property Operating Costs 175,710 (115,710) (2) 60,000
General and Administrative 144,548 144,548
Depreciation and Amortization 13,846 (13,846) --
- -----------------------------------------------------------------------------------------------
Total Expenses 601,309 (396,761) 204,548
- -----------------------------------------------------------------------------------------------
Net Income (Loss) $250,355 (314,297) ($ 63,942)
===============================================================================================
Net Income (Loss) per Common Share $0.08 ($0.02)
===============================================================================================
</TABLE>
(1) Represents the interest expense on the underlying mortgage note on the
Property.
(2) Represents operating costs incurred for the maintenance of the Property.
Pro forma balance represents management fee paid to E & L Associates, Inc.
<PAGE>
MERIDIAN POINT REALTY TRUST '83
PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1996
(UNAUDITED)
The following statement sets forth the unaudited, pro forma Statement of
Operations of the Company for the year period ended December 31, 1996 as if the
sale of the Charleston Business Park property had occurred on that date.
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
ACTUAL ADJUSTMENTS RESULTS
---------- ------------ -----------
<S> <C> <C> <C>
REVENUES:
- ---------
Rental Income $2,026,861 $(1,274,648) $ 752,213
Interest and Other 264,902 264,902
- -------------------------------------------------------------------------------------------------
Total Revenues 2,291,763 (1,274,648) 1,017,115
- -------------------------------------------------------------------------------------------------
EXPENSES:
- ---------
Interest and Amortization of Loan Costs 651,111 (418,525) (1) 232,586
Property Taxes 183,136 (104,019) 79,117
Property Operating Costs 664,101 (183,788) (2) 480,313
General and Administrative 324,007 324,007
Depreciation and Amortization 372,240 (166,539) 205,701
- -------------------------------------------------------------------------------------------------
Total Expenses 2,194,595 (872,871) 1,321,724
- -------------------------------------------------------------------------------------------------
Income Before Gain on Sale of Properties 97,168 (401,777) (304,609)
Gain on Sale of Properties 2,582,606 2,582,606
- -------------------------------------------------------------------------------------------------
Net Income (Loss) $2,679,774 $(401,777) $2,277,997
=================================================================================================
Net Income (Loss) per Common Share $0.88 $0.75
=================================================================================================
</TABLE>
(1) Represents the interest expense on the underlying mortgage note on the
Property.
(2) Represents operating costs incurred for the maintenance of the Property.
Pro forma balance represents operating costs of other properties owned by
the Company until February 22, 1996, the management fee paid to E & L
Associates, Inc. and management reimbursements paid to the former manager,
Meridian Point Properties, Inc.
<PAGE>
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made by and between
MERIDIAN POINT REALTY TRUST '83, a California business trust ("SELLER"), and
RUBIN-PACHULSKI PROPERTIES, INC., a California corporation ("PURCHASER"), as of
the "Effective Date" specified in Section 10.12 below.
-------------
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:
SECTION 1.
PURCHASE AND SALE
-----------------
1.1 Purchase and Sale. Subject to the terms and conditions of this
-----------------
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "PROPERTY"):
(a) Land. That certain tract of land (the "LAND") located in the City
----
of Mountain View, Santa Clara County, California, being more particularly
described on Exhibit A attached hereto and made a part hereof.
---------
(b) Easements. All easements, if any, benefiting the Land or the
---------
Improvements (as hereinafter defined).
(c) Rights and Appurtenances. All rights and appurtenances pertaining
------------------------
to the Land, including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way.
(d) Improvements. All improvements and related amenities known as
------------
"Charleston Business Park" (the "IMPROVEMENTS") in and on the Land, and
having an address of 2400-2476 Charleston Road, Mountain View, California
94043
(e) Leases. All leases (the "LEASES") of space in the Property,
------
concession leases, and all tenant security deposits held by Seller on the
Closing Date (as defined in Section 6.1).
-----------
(f) Tangible Personal Property. All appliances, fixtures, equipment,
--------------------------
machinery, furniture, carpet, drapes and other personal property, if any,
owned by Seller, located on and used in connection with the Land and the
Improvements (the "TANGIBLE PERSONAL PROPERTY").
1
<PAGE>
(g) Contracts. To the extent assignable without the consent of third
---------
parties, all written contracts and agreements pertaining to the Property,
and not cancelable on thirty (30) days notice without penalty or premium,
identified and described on Exhibit B attached hereto or as may hereafter
---------
be approved in writing by Purchaser as provided in this Agreement
(collectively, the "CONTRACTS"), including, but not limited to, management
contracts, service contracts, equipment leases and maintenance contracts.
(h) Intangible Property. To the extent assignable without the consent
-------------------
of third parties, all intangible property (the "INTANGIBLE PROPERTY"), if
any, owned by Seller and pertaining to the Land, the Improvements, or the
Tangible Personal Property including, without limitation, transferable
utility contracts, transferable telephone exchange numbers, plans and
specifications, engineering plans and studies, warranties, warranty claims,
floor plans and landscape plans.
(i) Additional Assets. Any and all of Seller's assignable claims
-----------------
(including, without limitation, insurance claims, claims against current or
past tenants and claims against former owners of the Land), rights, causes
of action or other rights of recovery which have arisen or may arise as a
result of the presence of Hazardous Materials (as defined below) at, in,
on, upon or about the Land, or the soil or groundwater thereof
(collectively, the "ADDITIONAL ASSETS").
SECTION 2.
PURCHASE PRICE
--------------
2.1 Purchase Price. The purchase price (the "PURCHASE PRICE") for the
--------------
Property shall be THIRTEEN MILLION DOLLARS ($13,000,000.00) and shall be paid in
cash by Purchaser to Seller at the Closing (as defined in Section 6.1) by wire
-----------
transfer in accordance with wire transfer instructions to be provided by Seller.
SECTION 3.
EARNEST MONEY
-------------
3.1 Earnest Money.
-------------
(a) Purchaser shall deliver to the Title Company (as defined in Section
-------
6.1) within two (2) business days after the date a fully-executed copy of this
- ----
Agreement is delivered to the Title Company by Seller, by wire transfer in
accordance with wire transfer instructions provided by the Title Company, the
amount of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) (which amount, together
with all interest accrued thereon, if any, is herein called the "EARNEST MONEY")
to be invested by the Title Company in an interest-bearing account as Purchaser
and Seller shall direct.
2
<PAGE>
(b) [Intentionally Omitted]
(c) Seller shall have the option of terminating this Agreement if the full
amount of required Earnest Money is not timely and fully delivered to the Title
Company at the time(s) and in the manner as prescribed in this Section 3.
---------
(d) If the sale of the Property is consummated under this Agreement, the
Earnest Money shall be paid to Seller and applied to the payment of the Purchase
Price at Closing.
(e) If this Agreement terminates for any reason other than Purchaser's
default hereunder, the Earnest Money shall be immediately returned to Purchaser,
and no party hereto shall have any further obligation under this Agreement
except for such obligations which by their terms expressly survive the
termination of this Agreement (the "SURVIVING OBLIGATIONS"). Provided that
Seller is not in default under this Agreement, Purchaser agrees to deliver to
Seller copies of all Reports (as defined in Section 4.4) (i) at the time notice
-----------
to terminate this Agreement is given by Purchaser or, (ii) in the event this
Agreement is terminated for any other reason whatsoever, at the time of such
termination. The obligations to deliver the Reports shall survive the
termination of this Agreement.
(f) If Seller terminates this Agreement in accordance with Section 8.2(a),
--------------
the Earnest Money Deposit shall be immediately released by Title Company to
Seller as liquidated damages as provided in Section 8.2(a), and no party hereto
--------------
shall have any further obligation under this Agreement except for the Surviving
Obligations.
SECTION 4.
DELIVERIES, INSPECTIONS AND REPRESENTATIONS
-------------------------------------------
4.1 Seller's Delivery Obligations. Prior to or concurrently herewith,
-----------------------------
Seller shall deliver or cause to be delivered to Purchaser (at Seller's
expense), the following:
(1) Title Commitment. Commitment for Owner's Policy of Title
----------------
Insurance with respect to the Property, issued by the Title Company, and
legible copies of any restrictive covenants, easements, and other items
listed as title exceptions therein (the "TITLE COMMITMENT").
(2) Survey. The most recent and existing "as-built" survey of the
------
Property (the "SURVEY"), if any, in Seller's possession.
(3) Contracts. Copies of all Contracts, to the extent in the
---------
possession of Seller.
3
<PAGE>
(4) Rent Roll. A rent roll identifying all Leases of space within the
---------
Improvements current as of a date not earlier than thirty (30) days prior
to the Effective Date.
(5) Leases. Copies of all Leases.
------
(6) Additional Items. Those additional documents, items and things
----------------
relating to the Property and particularly described in Schedule 1 attached
----------
hereto.
4.2 Purchaser's Satisfaction. Purchaser hereby acknowledges satisfaction
------------------------
of the following matters:
(a) That the Property is suitable for Purchaser's intended uses, as
determined by Purchaser in Purchaser's sole discretion; and
(b) That Purchaser has reviewed and approved, in Purchaser's sole
discretion, the items delivered pursuant to Section 4.1(3), (4) and (5) above,
---------------------------
including the information reflected therein.
4.3 Title Commitment and Survey.
---------------------------
(a) In the event (i) the Survey shows any easement, right-of-way,
encroachment, conflict, protrusion or other matter affecting the Land or
Improvements that is unacceptable to Purchaser, or (ii) any exceptions appear in
the Title Commitment (other than the standard printed exceptions set forth in
the standard form of Title Commitment) that are unacceptable to Purchaser,
Purchaser shall within three (3) business days after the Effective Date of this
Agreement (the "TITLE APPROVAL PERIOD"), notify Seller in writing of such facts
and the reasons therefor ("PURCHASER'S TITLE OBJECTIONS"). Upon the expiration
of the Title Approval Period, except for Purchaser's Title Objections, Purchaser
shall be deemed to have accepted the form and substance of the Survey, all
matters shown or addressed thereon, all existing conditions of title to the Land
and Improvements including, without limitation, any easement, right of way,
encroachment, conflict, discrepancy, overlapping of improvements, protrusion,
lien, encumbrance, restriction, condition, covenant, exception or other matter
with respect thereto and all items shown or addressed in the Title Commitment
(collectively, the "APPROVED TITLE MATTERS").
(b) Notwithstanding anything to the contrary contained herein, Seller shall
have no obligation to take any steps or bring any action or proceeding or
otherwise to incur any effort or expense whatsoever to eliminate or modify any
of the Purchaser's Title Objections except that Seller shall remove all deeds of
trust affecting the Property and all Committed Cure Items (as defined below);
provided, however, Seller, at its sole option, may attempt to eliminate or
modify all or a portion of Purchaser's Title Objections to Purchaser's
satisfaction prior to the Closing Date
4
<PAGE>
but Seller shall have no obligation or liability for its failure to eliminate or
modify the same to Purchaser's satisfaction other than with respect to removal
of the Committed Cure Items and the deeds of trust. In the event Seller is
willing to attempt to eliminate or modify some or all of Purchaser's Title
Objections to the satisfaction of Purchaser, Seller shall provide written notice
thereof to Purchaser ("SELLER'S NOTICE") within five (5) business days of
Seller's receipt of Purchaser's Title Objections. Seller's Notice shall specify
which, if any, of Purchaser's Title Objections that Seller commits to cure and
the specific nature of the cure of the same to which Seller shall be committed
(the "Committed Cure Items"). If Seller does not deliver a Seller's Notice in
which Seller designates as Committed Cure Items all of Purchaser's Title
Objections or if the specified nature of the cure thereof is not satisfactory to
Purchaser, Purchaser may (as its sole and exclusive remedy) terminate this
Agreement by delivering notice thereof in writing to Seller by the earlier to
occur of (i) the Closing Date, or (ii) ten (10) business days after the date of
delivery of Purchaser's Title Objections, in which event neither party shall
have any obligation hereunder other than the Surviving Obligations. In the
event that Purchaser shall not terminate this Agreement as provided in the
preceding sentence, Purchaser shall be deemed to have waived its objection to
the matters giving rise to Purchaser's Title Objections (other than the
Committed Cure Items, if any, set forth in the Seller's Notice and the deeds of
trust) all of which matters shall be deemed Approved Title Matters. Nothing
contained herein shall in any way affect Purchaser's right to approve any
subsequent or additional title matters not contained in the Title Commitment or
Survey as to which Title Company shall modify or amend its Title Commitment
following the Title Approval Period.
(c) The term "PERMITTED ENCUMBRANCES" as used herein includes: (i) all of
the Approved Title Matters, (ii) any Purchaser's Title Objection cured to the
satisfaction of Purchaser but not removed of record with Purchaser's consent,
and (iii) the rights and interests of the tenants, as tenants only, under the
Leases.
4.4 Inspection.
----------
(a) Prior to the Effective Date, Purchaser has been provided an adequate
opportunity to inspect, test, investigate and survey: (i) the Property, (ii) all
of Seller's financial records pertaining to the operation of the Property, and
(iii) photocopies of all Leases and Contracts in the possession of Seller.
Prior to the Effective Date hereof and subsequent thereto, neither Purchaser,
nor any of its agents, representatives or independent contractors, has or shall
contact any Federal or California agency, including without limitation the
California Regional Water Quality Control Board for the San Francisco Bay
Region, with any inquiries concerning the condition of the Property without
Seller's prior written approval. Further, prior to the Effective Date hereof
and
5
<PAGE>
subsequent thereto, neither Purchaser, nor any of its agents, representatives or
independent contractors, has or shall contact any tenant at the Property
directly without Seller's prior written approval.
(b) Such inspections, tests, investigations or surveys have not revealed
any fact or condition unacceptable to Purchaser. Purchaser hereby acknowledges
that all inspections, tests, investigations and surveys of the Property, and all
conditions relating to the Property, are satisfactory to Purchaser and Purchaser
has agreed to assume all obligations from and after the date of Closing with
respect to the Leases and the Contracts.
(c) All information provided by Seller to Purchaser or obtained by
Purchaser relating to the Property in the course of Purchaser's review,
including, without limitation, any environmental assessment or audit
(collectively, the "REPORTS") shall be treated as confidential information by
Purchaser and Purchaser shall instruct all of its employees, agents,
representatives and contractors as to the confidentiality of all such
information. In the event that this transaction is not closed for any reason,
then Purchaser shall maintain the confidentiality of such information, and shall
require its agents, representatives and accountants not to disclose any such
information to any other party.
(d) Purchaser shall restore the Property to its condition existing
immediately prior to Purchaser's inspection, testing, investigation and survey
thereof, and Purchaser shall be liable for all damage or injury to any person or
property resulting from, relating to or arising out of any such inspection,
testing, investigation or survey, whether occasioned by the acts of Purchaser or
any of its employees, agents, representatives or contractors, and Purchaser
shall indemnify, defend and hold harmless Seller and its trustees,
beneficiaries, shareholders, agents, employees, officers, directors, affiliates,
advisors and asset managers from any liability resulting therefrom. This
indemnification by Purchaser shall survive the Closing or the termination of
this Agreement, as applicable.
4.5 Purchaser's Representations and Warranties. Purchaser represents and
------------------------------------------
warrants to Seller that:
(a) Purchaser is a corporation, duly organized and in good standing under
the laws of the State of California, is qualified to do business in the State of
California and has the power to enter into this Agreement and to execute and
deliver this Agreement and to perform all duties and obligations imposed upon it
hereunder, and Purchaser has obtained all necessary corporate, partnership or
other organizational authorizations required in connection with the execution,
delivery and performance of this Agreement and the transaction contemplated
herein and has obtained the consent of all
6
<PAGE>
entities and parties (whether private or governmental) necessary to bind
Purchaser to this Agreement;
(b) neither the execution nor the delivery of this Agreement, nor the
consummation of the purchase and sale transaction contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions or
provisions of any agreement or instrument to which Purchaser, or any
shareholder, partner or related entity or affiliate of Purchaser, is a party or
by which Purchaser, any shareholder, partner or related entity or affiliate of
Purchaser, or any of Purchaser's assets is bound;
(c) Purchaser has the financial resources to timely consummate the purchase
and sale transaction contemplated by this Agreement;
(d) Purchaser has examined and investigated to Purchaser's full
satisfaction the physical, economic and legal condition of the Property and made
all other inquiries the Purchaser deemed necessary in connection with the
transaction herein contemplated; and
(e) except to the limited extent, if any, specifically and expressly set
forth in this Agreement, Purchaser shall accept the Property "AS IS" and "WHERE
IS" at Closing, and Purchaser has not relied upon and will not rely upon, and
Seller is not liable for or bound by any, express or implied, warranties,
guarantees, statements, representations or information pertaining to the
Property or relating thereto made or furnished by Seller or any of its advisors,
or any of their agents, representatives, contractors, employees, attorneys or
brokers, to whomever made or given, directly or indirectly, verbally or in
writing, unless specifically and expressly set forth herein.
The Purchaser's representations and warranties set forth in this Section 4.5
-----------
shall survive the Closing or termination of this Agreement. As a condition
precedent to Seller's obligation to close the purchase and sale transaction
contemplated in this Agreement, Purchaser's representations and warranties
contained herein must remain and be true and correct as of the Closing Date.
Prior to the Closing Date, Purchaser shall notify Seller in writing of any
facts, conditions or circumstances which render any of the representations and
warranties set forth in this Section 4.5 in any way inaccurate, incomplete,
-----------
incorrect or misleading.
4.6 Seller's Representations and Warranties. Seller represents and
---------------------------------------
warrants to Purchaser that:
(a) Seller has the full right, power, and authority, without the joinder of
any other person or entity, to enter into, execute
7
<PAGE>
and deliver this Agreement, and to perform all duties and obligations imposed on
Seller under this Agreement;
(b) neither the execution nor the delivery of this Agreement, nor the
consummation of the purchase and sale contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement conflict with
or will result in the breach of any of the terms, conditions, or provisions of
any agreement or instrument to which Seller is a party or by which Seller or any
of Seller's assets is bound;
(c) to Seller's knowledge (as hereinafter defined), Seller has not been
served with process in any litigation with respect to the Property which would
adversely affect Seller's ability to perform its obligations under this
Agreement;
(d) to Seller's knowledge (as hereinafter defined), Seller has not received
any written notices of zoning changes or special assessments with respect to the
Property;
(e) to Seller's knowledge (as hereinafter defined), Exhibit B contains a
---------
complete list of all Contracts affecting the Property including all amendments
and modifications thereto;
(f) to Seller's knowledge (as hereinafter defined), Exhibit C contains a
---------
complete list of all Leases affecting the Property and all amendments and
modifications thereto;
(g) Seller has not agreed to indemnify, defend and/or hold harmless any
third party (other than Seller's lender(s) or as expressly set forth in Exhibit
-------
L attached hereto) from any liabilities, claims, obligations, actions,
- -
judgments, costs or expenses arising out of or in connection with the actual or
suspected presence of Hazardous Materials upon the Property, except as expressly
set forth in the Leases or the written rental or lease agreements with any prior
tenant of the Property;
(h) with respect to the existing Leases and the written rental or lease
agreements with prior tenants of the Property identified on Exhibit K attached
---------
hereto, other than to the extent if any expressly set forth in Exhibit L
---------
attached hereto, Seller has not agreed to indemnify, defend and/or hold harmless
any third party from any liabilities, claims, obligations, actions, judgments,
costs or expenses arising out of or in connection with the actual or suspected
presence of Hazardous Materials upon the Property; and
(i) to Seller's knowledge (as hereinafter defined), Exhibit K is a complete
---------
list of all existing Leases and written rental or lease agreements with prior
tenants of the Property in the possession or under the control of Seller.
8
<PAGE>
As used herein, the term "to Seller's knowledge" shall mean only the "current
actual knowledge without inquiry" (as defined below) of the following
designee(s) of Seller: Michael Gilbert. As used herein, the term "current
actual knowledge without inquiry" shall mean only the actual, current conscious
and not constructive, imputed or implied knowledge of such designee. Anything
herein to the contrary notwithstanding, such designee shall not have any
personal liability or obligation whatsoever with respect to any of the matters
set forth in this Agreement or any of the Seller's representations herein being
or becoming untrue, inaccurate or incomplete in any respect.
4.7 Tenant Estoppel Certificates.
----------------------------
(a) Seller agrees to submit or cause its property manager to submit to each
tenant or lessee under a Lease an Estoppel Certificate and a Subordination, Non-
Disturbance and Attornment Agreement, in form substantially in accordance with
Exhibit D-1 and D-2, respectively, attached hereto (respectively, the "TENANT
- -------------------
ESTOPPEL" and the "SUBORDINATION"). Each executed Tenant Estoppel and
Subordination containing non-material exceptions, qualifications or
modifications as determined by Buyer in its good faith business judgment shall
be deemed to be substantially in compliance with Exhibit D-1 and D-2. Purchaser
-------------------
acknowledges and agrees that any executed Tenant Estoppel having (i) Paragraph 5
thereof modified or qualified to except therefrom existing Hazardous Materials
(other than Additional Hazardous Substances as defined in the Indemnity
Agreement) in, on, under or about the Property, or (ii) Paragraph 5A thereof
deleted, modified or qualified in any way, shall be deemed to be substantially
in compliance with Exhibit D-1. Seller shall have no liability or obligation to
-----------
Purchaser with respect to any Tenant Estoppel or Subordination other than to
submit or cause its property manager to submit such Tenant Estoppel and
Subordination to the tenant or lessee with a request that such Tenant Estoppel
and Subordination be executed and returned not later than five (5) business days
prior to the Closing Date. In the event that the form of Subordination required
by Purchaser is not available as of the date of execution of this Agreement,
Exhibit D-2 shall be left blank and, within three (3) business days following
- -----------
the Effective Date, Purchaser shall deliver to Seller the form of Subordination
required by Purchaser which form of Subordination shall then become Exhibit D-2
-----------
hereto. In the event that Purchaser shall fail to timely deliver its required
form of Subordination to Seller, Seller may select and utilize such commercially
reasonable form of Subordination as Seller shall reasonably determine and such
form selected by Seller shall upon notice to Purchaser become Exhibit D-2
-----------
hereto.
(b) In the event that Seller is unable to obtain and deliver to Purchaser
on or before that date which is two (2) business days prior to the Closing Date
(i) an executed Tenant Estoppel from each
9
<PAGE>
of the three (3) existing tenants of the Property that substantially complies
with Exhibit D-1, or (ii) an executed Subordination from TVA/Television
-----------
Associates, Inc. that substantially complies with Exhibit D-2, then Purchaser
-----------
may terminate this Agreement by delivering notice thereof in writing to Seller
on or before the Closing Date, in which event neither party shall have any
obligation hereunder other than the Surviving Obligations.
4.8 Definitions.
-----------
As used herein, the term "Hazardous Materials" shall mean any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Laws as a
"hazardous substance," "hazardous material," "hazardous waste," "extremely
hazardous waste," "infectious waste," "toxic substance," "toxic pollutant" or
any other formulation intended to define, list, or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity including any petroleum, natural gas, natural gas
liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas). "Hazardous Substances" shall include,
without limitation, any hazardous or toxic substance, material or waste or any
chemical, compound or mixture which is (i) defined as "extremely hazardous
waste" under Section 25115, "hazardous waste" under Section 25117, "restricted
hazardous waste" under Section 25122.7, or listed pursuant to Section 25140, of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-
Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous
material", "hazardous substance", or "hazardous waste" under Section 25501 of
the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory), (iv) defined as a "hazardous
substance" under Section 25281 of the California Health and Safety Code,
petroleum, (vi) asbestos, (vii) listed under Article 9 or defined as hazardous
or extremely hazardous pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (viii) designated as a "hazardous
substance" pursuant to Section 1317 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1251 et seq.), (ix) defined as a "hazardous waste" pursuant
to Section 6903 of the Federal Resource Conservation and Recovery Act, (42
U.S.C. Section 6901 et seq., (x) defined as "hazardous substances" pursuant to
-- ---
Section 9601 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq.) or (xi) identified in Sections
-- ---
66680 through 66685 of Title 22 of the California Administrative Code,
10
<PAGE>
Division 4, Chapter 30, as all of the foregoing may be amended from time to
time.
As used herein, the term "ENVIRONMENTAL REQUIREMENTS" shall mean all laws,
ordinances, statutes, codes, rules, regulations, agreements, judgments, orders,
and decrees, now or hereafter enacted, promulgated, or amended, of the United
States, the states, the counties, the cities, or any other political
subdivisions in which the Property is located, and any other political
subdivision, agency or instrumentality exercising jurisdiction over the owner of
the Property, the Property, or the use of the Property, relating to pollution,
the protection or regulation of human health, natural resources, or the
environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
4.9 Environmental Insurance. As a condition precedent to Purchaser's
-----------------------
obligation to purchase the Property, Purchaser shall have obtained a policy of
insurance, or a commitment for a policy of insurance (the "Environmental
Policy"), from an insurer and upon terms and conditions in all respects
satisfactory to Purchaser, in Purchaser's reasonable discretion, providing not
less than $5,000,000 stop loss/remediation coverage (with SIR not to exceed
$200,000) and not less than $10,000,000 third party/personal injury coverage for
a period through the later of that date which is ten (10) years from Closing or
the issuance of a No Further Action Letter (as defined in the Indemnity
Agreement, as defined below). Purchaser shall be solely responsible for and
shall pay all costs and expenses incurred in connection with the Environmental
Policy (including, without limitation, premiums costs and consultants' fees).
Purchaser shall cause Seller to be named as an additional insured under the
Environmental Policy. Purchaser agrees to use commercially diligent efforts to
obtain the Environmental Polity upon or prior to Closing including, without
limitation, payment of a commercially reasonable premium therefor. Consummation
and Closing of the transaction contemplated herein shall constitute Purchaser's
satisfaction or waiver of the condition precedent contained in this Section 4.9.
-----------
Except to the extent, if any, specifically agreed in writing by Purchaser and
Seller (in each of their sole and absolute discretion), the Closing Date shall
not be extended because of the unavailability of the Environmental Policy on or
prior to the Closing Date. In the event that the Environmental Policy is not
available on or before the Closing Date, Purchaser's sole and exclusive remedy
shall be to terminate this Agreement and, provided Purchaser is not in default
under this Agreement, receive a refund of the Earnest Money.
11
<PAGE>
SECTION 5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER
ACCEPTANCE OF PROPERTY
----------------------
5.1 Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES SELLER HAS NOT
----------
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES (OTHER THAN THE WARRANTY OF TITLE CONTAINED IN THE DEED, AS DEFINED
IN SECTION 6.5 BELOW AND THE REPRESENTATIONS SET FORTH IN SECTION 4.6 ABOVE),
-----------
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO:
(A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY;
(C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER OR ANY TENANT MAY CONDUCT THEREON;
(D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY;
(E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;
(F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY;
(G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY;
(H) COMPLIANCE WITH ANY ENVIRONMENTAL REQUIREMENTS;
(I) THE PRESENCE OR SUSPECTED PRESENCE IN, ON, UNDER OR ABOUT THE PROPERTY
OR THE SOIL OR GROUND WATER THEREOF OF ANY HAZARDOUS MATERIALS;
(J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE,
AND BY EXECUTION HEREOF, PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY
REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING
THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREIN (EXCEPT AS SPECIFICALLY SET
FORTH IN THIS AGREEMENT); AND NO SUCH REPRESENTATION, WARRANTY, AGREEMENT,
GUARANTY, STATEMENT OR PROMISE, IF ANY, MADE BY ANY
12
<PAGE>
PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS
EXPRESSLY SET FORTH HEREIN.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN A FULL AND
ADEQUATE OPPORTUNITY TO INSPECT, TEST AND INVESTIGATE THE PROPERTY, PURCHASER IS
RELYING SOLELY ON ITS OWN INVESTIGATION, TESTING AND INVESTIGATION OF THE
PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER, AND
PURCHASER AGREES TO ACCEPT THE PROPERTY IN ITS THEN EXISTING "AS-IS" CONDITION
AND BASIS WITH ALL FAULTS AT THE CLOSING AND WAIVES ALL OBJECTIONS OR CLAIMS
AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR ITS PHYSICAL,
ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITION (INCLUDING, WITHOUT LIMITATION, THE
ACTUAL OR SUSPECTED EXISTENCE OF ANY HAZARDOUS MATERIALS IN, ON UNDER OR ABOUT
THE PROPERTY OR THE SOIL OR GROUND WATER THEREOF).
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR
TO BE PROVIDED WITH RESPECT TO THE PROPERTY BY OR ON BEHALF OF SELLER WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION AND THAT
SELLER IS NOT, AND SHALL NOT BE, LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR
THE OPERATION OR CONDITION THEREOF, FURNISHED BY ANY ADVISOR, ATTORNEY, REAL
ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS
BEEN ADJUSTED BY NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY
SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING.
PURCHASER HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND, SAVE AND HOLD
HARMLESS SELLER FROM AND AGAINST ANY AND ALL DEBTS, DUTIES, OBLIGATIONS,
LIABILITIES, SUITS, CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES, LOSSES, FEES AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES AND COURT
COSTS) IN ANY WAY RELATING TO, OR IN CONNECTION WITH OR ARISING OUT OF
PURCHASER'S ACQUISITION, OWNERSHIP, LEASING, USE, OPERATION, MAINTENANCE AND
MANAGEMENT OF THE PROPERTY FIRST ARISING ON OR AFTER THE CLOSING DATE. THE
PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE CLOSING OR ANY TERMINATION
---------
HEREOF.
5.2 Waiver and Release. Except with respect to (i) any claims arising out
------------------
of any breach of express and specific covenants, representations or warranties
of Seller set forth in this Agreement, (ii) personal injury or property damage
claims asserted by third parties arising out of or in connection with facts,
events or circumstances first occurring prior to the Closing Date, or
13
<PAGE>
(iii) any claims arising out of any fraudulent acts or fraudulent omissions by
Seller, Purchaser, for itself and its agents, affiliates, successors and
assigns, effective as of the Closing Date hereby releases and forever discharges
Seller, its agents, partners, affiliates, successors and assigns from any and
all rights, claims and demands at law or in equity, whether known or unknown as
of the Closing Date, which Purchaser has or may thereafter have in the future,
arising out of the physical, environmental, economic or legal condition of the
Property, including, without limitation, any and all rights, claims and causes
of action under or with respect to California Health and Safety Code Section
25359.7(a) and/or Title 42 of the United States Code, Section 6901, et seq. or
-- ---
Section 9601 et seq. Purchaser hereby specifically acknowledges that Purchaser
-- ---
has carefully reviewed this subsection and discussed its import with legal
counsel and that the provisions of this subsection are a material part of this
Agreement.
PURCHASER SPECIFICALLY WAIVES THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA
CIVIL CODE WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS TO WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
5.3 Purchaser's Intended Use. Purchaser represents that its intended use
------------------------
of the Property is for investment, development and industrial and manufacturing
purposes and that Purchaser has had an adequate opportunity to perform and to
the full extent Purchaser has deemed necessary has performed and is relying
solely upon its own investigation concerning the Property and its fitness for
such intended use.
5.4 Section 25359.7 Notice. Pursuant to California Health and Safety Code
----------------------
Section 25359.7, Seller hereby gives notice to Purchaser, and Purchaser hereby
acknowledges receipt of such notice from Seller, that Seller has reasonable
cause to believe based upon the Property's present and past use, occupancy and
operation as an industrial/manufacturing business park that a release of
Hazardous Materials has come to be located on or beneath the Property.
SECTION 6.
CLOSING
-------
6.1 Closing. The closing of the purchase and sale transaction
-------
contemplated herein (the "Closing") shall be held at or conducted through the
offices of First American Title Insurance Company (the "TITLE COMPANY") at 1737
North First Street, San Jose, California 95112, Attn: Susan Melton, at a date
designated by Seller and Purchaser on or before August 1, 1997 (the "CLOSING
DATE"), unless the parties mutually agree in writing upon another
14
<PAGE>
place, time or date. On the Closing Date, all documents to be recorded shall be
appropriately recorded and all other closing documents and funds shall be deemed
to be simultaneously delivered.
6.2 Possession. Possession of the Property shall be delivered to
----------
Purchaser at the Closing, subject to the Permitted Encumbrances.
6.3 Proration. All rents, other amounts payable by the tenants under the
---------
Leases, income, utilities and all other operating expenses with respect to the
Property, and real estate and personal property taxes and other assessments with
respect to the Property, shall be prorated as of 12:01 a.m on the Closing Date
with Purchaser receiving the benefits and burdens of ownership on the Closing
Date.
(a) If the Closing shall occur before rents and all other amounts payable
by the tenants under the Leases and all other income from the Property have
actually been paid for the month in which the Closing occurs, the apportionment
of such rents and other amounts and other income shall be upon the basis of such
rents, other amounts and other income actually received by Seller. Subsequent
to the Closing, if any such rents, other amounts and other income are actually
received by Purchaser, all such amounts shall first be applied to post-closing
rents due to Purchaser which are past due and the balance, if any, owing to
Seller shall be immediately paid by Purchaser to Seller. Purchaser shall make a
good faith effort and attempt to collect any such rents and other amounts and
other income not apportioned at the Closing for the benefit of Seller, however,
Purchaser shall not be required to expend any funds or institute any litigation
in its collection efforts. Nothing in this paragraph shall restrict Seller's
right to collect delinquent rents directly from a tenant by any legal means;
provided, however, that without Purchaser's prior written consent (which consent
shall not be unreasonably withheld), Seller shall not commence any legal
proceeding against any of the tenants after the Closing for collection of such
delinquent rents owed to Seller. At Closing, prepaid rents and refundable
security deposits (together with any interest accrued thereon only if interest
is specifically required to be paid thereon under applicable law or under the
terms of a specific Lease) shall be adjusted by way of a credit in favor of
Purchaser.
(b) If the Closing shall occur before the tax rate or the assessed
valuation of the Property is fixed for the then current year, the apportionment
of taxes and assessments shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Subsequent to the
Closing, when the tax rate and the assessed valuation of the Property is fixed
for the year in which the Closing occurs, the parties agree to adjust the
proration of taxes and assessments and, if necessary, to refund or repay such
sums as shall be necessary to effect such adjustment. If the
15
<PAGE>
Property is not assessed as a separate parcel for tax or assessment purposes,
then such taxes and assessments attributable to the Property shall be determined
by Purchaser and Seller.
(c) If the Closing shall occur before the actual amount of utilities and
all other operating expenses with respect to the Property for the month in which
the Closing occurs are determined, the apportionment of such utilities and other
operating expenses shall be upon the basis of the most recent actual amounts of
such utilities and other operating expenses for such month. Subsequent to the
Closing, when the actual amount of such utilities and other operating expenses
with respect to the Property for the month in which the Closing occurs are
determined, the parties agree to adjust the proration of such utilities and
other operating expenses and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
(d) Provided that Purchaser, in its sole discretion, shall have approved in
writing, any new Lease or modification to an existing Lease executed on or after
the Effective Date, any tenant-improvement and/or leasing-commission costs
(including, without limitation, referral or locator fees) and all other out-of-
pocket fees and costs (including, without limitation, legal fees and costs)
(collectively, "NEW TENANT COSTS") paid or incurred by Seller after the
Effective Date with respect to such approved new Lease or modification shall be
credited in favor of Seller at Closing. Seller shall supply invoices and
statements for all New Tenant Costs to Purchaser on or prior to the Closing
Date. Provided that Purchaser, in its sole discretion, shall have approved in
writing, any new Lease or modification to an existing Lease executed on or after
the Effective Date, Purchaser shall be solely responsible for the payment of all
New Tenant Costs in connection with any options, renewals, or extensions
exercisable under such approved new Leases or modifications after the Closing
Date and Purchaser shall indemnify, protect, defend, save and hold harmless
seller from and against any and all debts, duties, obligations, liabilities,
suits, claims, demands, causes of action, damages, losses, fees and expenses
(including, without limitation, attorneys' fees and expenses and court costs) in
any way relating to, or in connection with or arising out of such New Tenant
Costs.
(e) If Leases contain obligations ("LEASE OBLIGATIONS") on the part of the
Tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii)
escalation payments for taxes, labor or operations, or (iv) other expenses
including, without limitation, common area maintenance or any other operating
cost pass-throughs, the amount of such Lease Obligations shall be prorated as of
the Closing Date subsequent to the Closing Date when the actual amount of such
Lease Obligations with respect to the Property through the Closing Date is
determined and such funds are actually collected from the tenants. The parties
agree to adjust the proration of
16
<PAGE>
such Lease Obligations and, if necessary, to refund or repay such sums as shall
be necessary to effect such adjustment.
The agreements of Seller and Purchaser set forth in this Section 6.3 shall
-----------
survive the Closing.
6.4 Closing Costs. Seller shall pay, on the Closing Date, the standard
-------------
coverage portion of the title insurance premium for the Owner's Policy (as
defined in Section 6.5(a) below), all of the documentary transfer taxes, one-
--------------
half (1/2) of any escrow fees and other customary fees, costs and charges of the
closing and consummation of the purchase and sale transaction contemplated in
this Agreement as customarily charged to and payable by the seller in such
transactions in the location in which the Land is situate. Purchaser shall pay,
on the Closing Date, the extended coverage portion, if applicable, of the title
insurance premium for the Owner's Policy, the costs of any endorsements to the
Owner's Policy requested by Purchaser, all recording costs, one-half (1/2) of
any escrow fees and other customary fees, costs and charges of the closing and
consummation of the purchase and sale transaction contemplated in this Agreement
as customarily charged to and payable by the purchaser in such transactions in
the location in which the Land is situate. Notwithstanding the foregoing, each
party shall pay its own attorneys' fees incurred in connection with the
transaction contemplated in this Agreement.
6.5 Seller's Obligations at the Closing. At the Closing, Seller shall
-----------------------------------
deliver or cause to be delivered to Purchaser the following:
(a) Title Policy. An Owner's Policy of Title Insurance in standard form
------------
(the "OWNER'S POLICY"), issued by Title Company naming Purchaser (or its
permitted assignee, if any) as insured, in the amount of the Purchase Price,
insuring that Purchaser owns good and indefeasible fee simple title to the
Property, subject only to the Permitted Encumbrances. Purchaser, at Purchaser's
sole expense, may elect to cause the Title Company to provide extended coverage
or issue certain endorsements provided that the availability of the same shall
not be a condition to closing. Notwithstanding the foregoing, Seller shall have
no obligation or liability to Purchaser in the event that Title Company is
unwilling or unable to (i) issue the Owner's Policy other than as a result of
any breach or default by Seller of its obligations under this Agreement, or (ii)
provide, at Purchaser's request, extended coverage or endorsements.
(b) Evidence of Authority. Such organizational and authorizing documents
---------------------
of Seller as shall be reasonably required by the Title Company to evidence
Seller's authority to consummate the transactions contemplated by this
Agreement.
17
<PAGE>
(c) Deed. A duly executed and acknowledged deed to the Land and
----
Improvements in the form attached to this Agreement as Exhibit E (the "DEED").
---------
(d) Assignment. A duly executed and acknowledged counterpart Assignment
----------
and Assumption of Personal Property, Service Contracts, Warranties and Leases in
the form attached to this Agreement as Exhibit F (the "ASSIGNMENT").
---------
(e) FIRPTA Affidavit. A duly executed affidavit of Seller in form attached
----------------
hereto as Exhibit G certifying that Seller is not a "foreign person," as defined
---------
in Section 1445 of the Internal Revenue Code of 1986, as amended, and in any
applicable state laws for the state in which the Property is located.
(f) Tenant Notices. Duly executed notices to all tenants or lessees under
--------------
the Leases in form attached hereto as Exhibit H.
---------
(g) Original Documents. The original of all Leases and Contracts in
------------------
Seller's possession.
6.6 Purchaser's Obligations at the Closing. At the Closing, Purchaser
--------------------------------------
shall deliver or cause to be delivered to Seller the following:
(a) Purchase Price. The Purchase Price by wire transfer of immediately
--------------
available funds.
(b) Indemnity. An Environmental Indemnity and Access Easement Agreement in
---------
the form attached hereto as Exhibit I ("Indemnity Agreement").
--------- -------------------
(c) Evidence of Authority. Such organizational and authorizing documents
---------------------
of Purchaser as shall be reasonably required by Seller and/or the Title Company
authorizing Purchaser's acquisition of the Property pursuant to this Agreement
and the execution of this Agreement and any documents to be executed by
Purchaser at the Closing.
(d) Assignment. A duly executed and acknowledged counterpart Assignment.
----------
(e) Taxpayer Certification. A duly executed Taxpayer I.D. Certification in
----------------------
the form attached to this Agreement as Exhibit J.
---------
(f) Environmental Policy. A duplicate original of the Environmental
--------------------
Policy.
6.7 Insurance. Seller's existing liability and property insurance
---------
pertaining to the Property shall be canceled as of the Closing Date, and Seller
shall receive any premium refund due thereon.
18
<PAGE>
6.8 Filing of Reports. Title Company shall be solely responsible for the
-----------------
timely filing of any reports or returns required pursuant to the provisions of
Section 6045(e) of the Internal Revenue Code of 1986 (and any similar reports or
returns required under any state or local laws) in connection with the closing
of the transaction contemplated in this Agreement.
SECTION 7.
RISK OF LOSS
------------
7.1 Condemnation. If, prior to the Closing, action is initiated to take
------------
any of the Property by eminent domain proceedings or by deed in lieu thereof,
Purchaser may either at or prior to Closing (a) terminate this Agreement, or (b)
consummate the Closing, in which latter event all of Seller's assignable right,
title and interest in and to the award of the condemning authority shall be
assigned to Purchaser at the Closing and there shall be no reduction in the
Purchase Price.
7.2 Casualty. Except as otherwise provided in this Agreement, Seller
--------
assumes all risks and liability for damage to or injury occurring to the
Property by fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any part thereof, suffers any
damage in excess of $50,000.00 prior to the Closing from fire or other casualty
which Seller, at its sole option, does not elect to repair, Purchaser may either
at or prior to Closing (a) terminate this Agreement, or (b) consummate the
Closing, in which latter event all of Seller's right, title and interest in and
to the proceeds of any insurance covering such damage (less an amount equal to
any expenses and costs incurred by Seller to collect or adjust such insurance or
to repair or restore the Property and all rental loss insurance proceeds paid or
to be paid on account of the loss of rents or other income from the Property for
the period prior to and including the Closing Date, all of which shall be
payable to Seller), to the extent the amount of such insurance does not exceed
the Purchase Price, shall be assigned to Purchaser at the Closing and Purchaser
shall receive a credit in an amount equal to Seller's deductible under its
insurance policy. If the Property, or any part thereof, suffers any damage less
than $50,000.00 prior to the Closing, Purchaser agrees that it will consummate
the Closing and accept a credit for the amount of such damage (Seller shall be
entitled to receive and retain the proceeds of any insurance covering such
damage).
SECTION 8.
DEFAULT
-------
8.1 Breach by Seller.
----------------
(a) Pre-Closing. In the event that Seller shall breach or default in the
-----------
performance of any of its obligations to be
19
<PAGE>
performed prior to Closing and/or fail to consummate the transaction
contemplated by this Agreement for any reason (except Purchaser's breach or
default under this Agreement or a termination of this Agreement by Purchaser or
Seller pursuant to a right to do so under the provision hereof), Purchaser, as
Purchaser's sole and exclusive remedy, may either (i) terminate this Agreement,
receive a refund of the Earnest Money and pursue Seller for actual damages,
subject to the limitations contained in Section 8.1(c) below, or (ii) sue for
--------------
specific performance of Seller's obligations under this Agreement.
(b) Breach of Representations. In the event that Seller shall breach or
-------------------------
default in the performance of any of its representations, warranties or
covenants which by the express terms of this Agreement survive the Closing,
Purchaser, as Purchaser's sole and exclusive remedy may pursue Seller for actual
damages, subject to the limitations contained in Section 8.1(c) below, incurred
--------------
by Purchaser solely as the result of such breach or default.
(c) Damages. Notwithstanding anything to the contrary contained in this
-------
Agreement, in no event whatsoever shall Purchaser have the right to seek or
recover money damages from Seller in excess of Two Hundred Thousand and No/100
Dollars ($200,000.00) as a result of any breach or default by Seller under any
of the terms of this Agreement. Purchaser specifically and without limitation
hereby waives and relinquishes any right to seek or recover from Seller, and
specifically acknowledges and agrees that in no event shall Seller be liable to
Purchaser for, any damages in excess Two Hundred Thousand and No/100 Dollars
($200,000.00) whether as punitive, speculative or consequential damages.
Purchaser hereby agrees that prior to its exercise of any right or remedy as a
result of any breach or default by Seller, Purchaser will first deliver written
notice of said breach or default to Seller and give Seller ten (10) days
thereafter in which to cure said breach or default, if Seller so elects.
8.2 Breach by Purchaser.
-------------------
(a) Liquidated Damages. In the event, that prior to the Closing Date,
------------------
Purchaser is in default hereunder, Seller may terminate this Agreement and
thereupon Seller shall be entitled to receive and retain the Earnest Money as
liquidated damages (and not as a penalty or forfeiture) and as Seller's sole
remedy and relief hereunder (except for the Surviving Obligations) and Seller
expressly waives any right of specific performance.
SELLER AND PURCHASER ACKNOWLEDGE THAT THE ACTUAL DAMAGES TO SELLER WHICH
WOULD RESULT FROM SUCH FAILURE WOULD BE EXTREMELY DIFFICULT TO CALCULATE OR
ESTABLISH ON THE DATE HEREOF. IN ADDITION, PURCHASER DESIRES TO HAVE A
LIMITATION PUT UPON ITS
20
<PAGE>
POTENTIAL LIABILITY TO SELLER IN THE EVENT OF SUCH FAILURE BY PURCHASER.
BY PLACING THEIR INITIALS IN SPACES HEREINAFTER PROVIDED, SELLER AND
PURCHASER SPECIFICALLY ACKNOWLEDGE AND AGREE, AFTER NEGOTIATION BETWEEN
SELLER AND PURCHASER, THAT THE AMOUNT OF THE EARNEST MONEY CONSTITUTES
REASONABLE COMPENSATION TO SELLER FOR SUCH FAILURE BY PURCHASER AND SHALL
BE DISBURSED TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES IN THE EVENT
OF SUCH DEFAULT BY PURCHASER.
PURCHASER (_____) SELLER (_____)
(b) Other Remedies. In the event of any breach or default by Purchaser
--------------
other than as specifically described in Section 8.2(a) above, Seller shall have
--------------
any and all rights and remedies available at law or in equity by reason of such
breach or default.
None of the provisions of this Section 8.2 shall limit, impair or affect any of
-----------
Purchaser's indemnities of Seller or other Surviving Obligations as provided in
elsewhere in this Agreement.
21
<PAGE>
SECTION 9.
FUTURE OPERATIONS
-----------------
9.1 Maintenance and Contracts. From the Effective Date of this Agreement
-------------------------
until the Closing or earlier termination of this Agreement:
(a) Seller will keep and maintain the Property in substantially its
condition as of the date of this Agreement ordinary wear and tear and casualties
excepted.
(b) Seller will perform all Seller's material obligations under the
Contracts. Seller will not, without the prior written consent of Purchaser
(which consent will not be unreasonably withheld or delayed), modify, enter
into, or renew any Contract which cannot be canceled upon thirty (30) days prior
written notice.
9.2 Leasing. From the Effective Date until the Closing or earlier
-------
termination of this Agreement, Seller will not, without the prior written
consent of Purchaser (which consent shall be in Purchaser's sole and absolute
discretion), modify, enter into, or renew any Leases.
SECTION 10.
MISCELLANEOUS
-------------
10.1 Notices. All notices, demands and requests which may be given or
-------
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, postage prepaid, return
receipt requested, addressed to the intended recipient at the address specified
below; or (c) on the first (1st) business day after being deposited into the
custody of a nationally recognized overnight delivery service such as Federal
Express Corporation, Emery or Purolator, addressed to such party at the address
specified below. For purposes of this Section 10.1,
------------
22
<PAGE>
the addresses of the parties for all notices are as follows (unless changed by
similar notice in writing given by the particular person whose address is to be
changed):
If to Seller: c/o Meridian Point Realty Trust VIII Company
655 Montgomery, Suite 800
San Francisco, CA 94111
Attn: Mr. Michael Gilbert
Telephone: (415) 274-1808
Facsimile: (415) 393-8009
with a copy to: Landels, Ripley & Diamond, LLP
350 The Embarcadero
San Francisco, CA 94105
Telephone: (415) 512-8700
Facsimile: (415) 512-8750
Attn: Thomas D. Trapp, Esq.
If to Purchaser: Rubin-Pachulski Properties, Inc.
10351 Santa Monica Blvd., Suite 410
Los Angeles, CA 90025
Attn: Scott Dew, Esq.
Telephone: (310) 557-1311
Facsimile: (310) 557-0605
with a copy to: David C. Klein, Esq.
1875 Century Park East, Suite 700
Los Angeles, CA 90067
Telephone: (310) 788-2737
Facsimile: (310) 788-2738
If to Title
Company: First American Title Insurance Company
1737 North First Street
San Jose, CA 95112
Attn: Susan Melton
Telephone: (408) 451-7858
Facsimile: (408) 451-7836
10.2 Real Estate Commissions. Seller shall pay to Colliers Parish
-----------------------
International, Inc. (hereinafter called "AGENT" whether one or more) upon the
Closing of the transaction contemplated hereby, and not otherwise, a cash
commission in the amount agreed on in a separate listing agreement between
Seller and Agent. Said commission shall in no event be payable unless and until
the transaction contemplated hereby is closed in accordance with the terms of
this Agreement; if such transaction is not closed for any reason, including,
without limitation, failure of title or default by Seller or Purchaser or
termination of this Agreement pursuant to the terms hereof, then such commission
will be deemed not to have been earned and shall not be due or payable. Except
as set forth above with respect to Agent, neither Seller nor Purchaser has
23
<PAGE>
authorized any broker or finder to act on Purchaser's or Seller's behalf in
connection with the sale and purchase hereunder and neither Seller nor Purchaser
has dealt with any broker or finder purporting to act on behalf of any other
party. Purchaser agrees to indemnify, defend, protect and hold harmless Seller
from and against any and all claims, losses, damages, liabilities, costs or
expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify,
defend, protect and hold harmless Purchaser from and against any and all claims,
losses, damages, liabilities, costs or expenses of any kind or character arising
out of or resulting from any agreement, arrangement or understanding alleged to
have been made by Seller or on Seller's behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby.
Notwithstanding anything to the contrary contained herein, this Section 10.2
------------
shall survive the Closing or any earlier termination of this Agreement.
10.3 Entire Agreement. This Agreement embodies the entire agreement between
----------------
the parties relative to the subject matter hereof, and there are no oral or
written agreements between the parties, nor any representations made by either
party relative to the subject matter hereof, which are not expressly set forth
herein.
10.4 Amendment. This Agreement may be amended only by a written instrument
---------
executed by the party or parties to be bound thereby.
10.5 Headings. The captions and headings used in this Agreement are for
--------
convenience only and do not in any way limit, amplify, or otherwise modify the
provisions of this Agreement.
10.6 Time of Essence. Time is of the essence of this Agreement; however,
---------------
if the final date of any period which is set out in any provision of this
Agreement falls on a Saturday, Sunday or legal holiday under the laws of the
United States or the State in which the Property is located, then, in such
event, the time of such period shall be extended to the next day which is not a
Saturday, Sunday or legal holiday.
10.7 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of California and the laws of the United States pertaining to transactions
in California.
10.8 Successors and Assigns; Assignment. This Agreement shall bind and
----------------------------------
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall
24
<PAGE>
not assign Purchaser's rights under this Agreement without the prior written
consent of Seller, which consent may be withheld absolutely; provided, however,
that Purchaser shall be permitted, with not less than three (3) business days'
notice to Seller, to assign its rights hereunder to any entity affiliated or
under common control with Purchaser (a "Permitted Assignment"). In the event
Seller consents to such assignment or in the event of a Permitted Assignment,
Purchaser and such assignee shall execute and deliver an Assignment of Purchase
and Sale Agreement in such form as Seller shall require in its reasonable
discretion. In addition, Purchaser shall join with such assignee in the
execution and delivery of all documents and instruments required to be executed
and delivered upon Closing by the Purchaser hereunder for the express purpose of
evidencing and confirming Purchaser's joint and several liability under all such
documents and instruments. Any subsequent assignment may be made only with the
prior written consent of Seller. No assignment of Purchaser's rights hereunder
shall relieve Purchaser of its liabilities or indemnities under this Agreement
or the documents and instruments to be executed and delivered by Purchaser upon
Closing. This Agreement is solely for the benefit of Seller and Purchaser;
there are no third party beneficiaries hereof. Any assignment of this Agreement
in violation of the foregoing provisions shall be null and void.
10.9 Invalid Provision. If any provision of this Agreement is held to be
-----------------
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement; and, the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
10.10 Multiple Counterparts; Facsimile. This Agreement may be executed
--------------------------------
in a number of identical counterparts which, taken together, shall constitute
collectively one (1) agreement; in making proof of this Agreement, it shall not
be necessary to produce or account for more than one such counterpart with each
party's signature. Counterparts of this Agreement may be delivered by facsimile
transmission to the other party hereto and each party so delivering this
Agreement by facsimile transmission shall forward a hard copy original hereof to
the other party by overnight delivery service.
10.11 [INTENTIONALLY OMITTED]
10.12 Effective Date. As used herein the term "EFFECTIVE DATE" shall
--------------
mean the first date the Title Company is in receipt of both this Agreement
executed by Purchaser and Seller (whether in counterparts or not) and the
Earnest Money.
25
<PAGE>
10.13 Exhibits. The exhibits attached to this Agreement and referred
--------
to herein are hereby incorporated into this Agreement by this reference and made
a part hereof for all purposes.
10.14 Construction. Seller and Purchaser acknowledge that each party
------------
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
10.15 No Recordation. Seller and Purchaser hereby acknowledge that
--------------
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in the county in which the Property is located or any other
county. Should Purchaser ever record or attempt to record this Agreement, or a
memorandum or affidavit thereof, or any other similar document, then,
notwithstanding anything herein to the contrary, said recordation or attempt at
recordation shall constitute a default by Purchaser hereunder, and, in addition
to the other remedies provided for herein, Seller shall have the express right
to terminate this Agreement by filing a notice of said termination in the county
in which the Land is located.
10.16 Merger Provision. Except as otherwise expressly provided herein,
----------------
any and all rights of action of Purchaser for any breach by Seller of any pre-
closing covenant or agreement contained in this Agreement shall merge with the
Deed and other instruments executed at Closing, shall terminate at Closing and
shall not survive Closing.
10.17 DISPUTES SUBJECT TO ARBITRATION. ANY DISPUTE BETWEEN THE PARTIES
-------------------------------
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED SOLELY BY
ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 10.17. THE TERMS
OF THIS SECTION 10.17 SHALL SURVIVE CLOSE OF ESCROW AND RECORDATION OF THE GRANT
DEED. ANY DEMAND FOR ARBITRATION SHALL BE IN WRITING AND MUST BE MADE WITHIN A
REASONABLE TIME AFTER THE CLAIM, DISPUTE OR OTHER MATTER IN QUESTION HAS ARISEN.
IN NO EVENT SHALL THE DEMAND FOR ARBITRATION BE MADE AFTER THE DATE THAT
INSTITUTION OF LEGAL OR EQUITABLE PROCEEDINGS BASED ON SUCH CLAIM, DISPUTE OR
OTHER MATTER WOULD BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.
10.17.1 ARBITRATION OF DISPUTES. ANY DISPUTE BETWEEN THE PARTIES THAT
-----------------------
IS TO BE RESOLVED BY ARBITRATION SHALL BE SUBMITTED TO BINDING ARBITRATION UNDER
THE LARGE AND COMPLEX CASE RULES OF THE COMMERCIAL MEDIATION RULES ("AAA RULES")
OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), AS THEN IN EFFECT, AND TITLE 9
OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. ANY SUCH ARBITRATION SHALL BE HELD
AND CONDUCTED IN SANTA CLARA COUNTY, CALIFORNIA.
26
<PAGE>
10.17.2 ARBITRATION RULES. THE FOLLOWING RULES SHALL APPLY TO THE
-----------------
ARBITRATION:
(A.) ONE ARBITRATOR OR A PANEL OF THREE ARBITRATORS SHALL BE APPOINTED IN
ACCORDANCE WITH THE AAA RULES AND PRACTICES THEN IN EFFECT AND EACH SUCH
ARBITRATOR(S) SHALL BE A LICENSED ATTORNEY WHO HAS PRACTICED IN THE SAN
FRANCISCO BAY AREA IN THE AREA OF COMMERCIAL REAL ESTATE LAW OR COMMERCIAL REAL
ESTATE LITIGATION FOR AT LEAST TWENTY (20) YEARS AND WHO HAS NOT HAD A
PROFESSIONAL RELATIONSHIP WITH EITHER PARTY FOR THE PAST TEN (10) YEARS. IN
ADDITION, IF THE CONTROVERSY OR CLAIM BETWEEN THE PARTIES INVOLVES ANY
ENVIRONMENTAL ISSUES, THE ARBITRATOR(S) SHALL HAVE FAMILIARITY WITH
ENVIRONMENTAL LAWS AND REGULATIONS.
(B.) WITHIN THIRTY (30) DAYS AFTER THE PANEL HAS BEEN CONVENED, (i) A
PRELIMINARY HEARING DATE SHALL BE SET BY THE ARBITRATORS, (ii) THE ARBITRATORS
AND THE PARTIES SHALL ESTABLISH AN EXPEDITED SCHEDULE FOR ANY DISCOVERY THAT MAY
BE PROVIDED PURSUANT TO THIS PROVISION, AND (iii) THE ARBITRATORS SHALL SET AN
ARBITRATION HEARING DATE FOLLOWING THE CUTOFF OF DISCOVERY. NO LATER THAN TEN
(10) DAYS BEFORE THE ARBITRATION HEARING DATE, (i) WRITTEN SUBMITTALS SHALL BE
PRESENTED AND EXCHANGED BY BOTH PARTIES, INCLUDING REPORTS PREPARED BY EXPERTS
UPON WHOM EITHER PARTY INTENDS TO RELY, (ii) THE PARTIES SHALL EXCHANGE COPIES
OF ALL DOCUMENTARY EVIDENCE UPON WHICH EACH WILL RELY AT THE ARBITRATION
HEARING, AND A LIST OF THE WITNESSES EACH INTENDS TO CALL TO TESTIFY AT THE
HEARING, AND (iii) EACH PARTY SHALL MAKE ITS RESPECTIVE EXPERTS AVAILABLE FOR
DISPOSITION BY THE OTHER PARTY.
(C.) THE ARBITRATION HEARING SHALL BE CONCLUDED NO LATER THAN THIRTY (30)
DAYS AFTER THE FIRST ARBITRATION HEARING DATE. THE ARBITRATORS SHALL MAKE THEIR
AWARD WITHIN SEVEN (7) DAYS AFTER THE CONCLUSION OF THE HEARING. IN THE EVENT OF
A THREE-MEMBER PANEL, THE DECISION IN WHICH TWO OF THE MEMBERS OF THE
ARBITRATION PANEL CONCUR SHALL BE THE AWARD OF THE ARBITRATORS. IN THE EVENT THE
HEARING CANNOT BE CONCLUDED WITHIN THE SPECIFIED THIRTY (30) DAYS AND THE
PARTIES CANNOT MUTUALLY AGREE ON AN EXTENSION OF THE DATE FOR THE CONCLUSION OF
THE HEARING, THE CHAIRMAN OF THE ARBITRATION PANEL SHALL PREPARE A DECLARATION
REQUESTING AN EXTENSION OF TIME WHICH SHALL NOT EXCEED THIRTY (30) DAYS AND
STATING THE REASON FOR THE REQUIRED EXTENSION. IF THE PARTIES DO NOT AGREE TO
SUCH AN EXTENSION, THEN THIS DECLARATION MAY BE PRESENTED TO A COURT OF
COMPETENT JURISDICTION BY ANY PARTY BY MOTION REQUESTING AN EXTENSION OF THE
DATE BY WHICH THE HEARING IS TO BE COMPLETED, AND WHICH MOTION MAY BE BROUGHT ON
FIVE (5) DAYS NOTICE OR ON AN ORDER SHORTENING TIME, IF NECESSARY.
(D.) EXCEPT AS OTHERWISE SPECIFIED HEREIN, THERE SHALL BE NO DISCOVERY OR
DISPOSITIVE MOTION PRACTICE (SUCH AS MOTIONS FOR SUMMARY JUDGMENT OR TO DISMISS,
OR THE LIKE) EXCEPT AS MAY BE PERMITTED BY THE ARBITRATORS, WHO SHALL AUTHORIZE
ONLY SUCH DISCOVERY AS IS SHOWN TO BE NECESSARY TO INSURE A FAIR HEARING AND
27
<PAGE>
NO SUCH DISCOVERY OR MOTIONS PERMITTED BY THE ARBITRATORS SHALL IN ANY WAY
CONFLICT WITH THE TIME LIMITS CONTAINED HEREIN. THE ARBITRATORS SHALL NOT BE
BOUND BY THE RULES OF EVIDENCE OR CIVIL PROCEDURE, BUT RATHER MAY CONSIDER SUCH
WRITINGS AND ORAL PRESENTATIONS AS REASONABLE BUSINESSPERSONS WOULD USE IN THE
CONDUCT OF THEIR DAY-TO-DAY AFFAIRS, AND MAY REQUIRE THE PARTIES TO SUBMIT SOME
OR ALL OF THEIR PRESENTATION AS THE ARBITRATORS MAY DEEM APPROPRIATE.
INTERROGATORIES SHALL BE LIMITED TO IDENTIFICATION OF DOCUMENTS AND WITNESSES.
IT IS THE INTENTION OF THE PARTIES TO LIMIT LIVE TESTIMONY AND CROSS-EXAMINATION
TO THE EXTENT ABSOLUTELY NECESSARY TO INSURE A FAIR HEARING TO THE PARTIES OF
THE SIGNIFICANT MATTERS SUBMITTED TO ARBITRATION. THE PARTIES HAVE INCLUDED THE
FOREGOING PROVISIONS LIMITING THE SCOPE AND EXTENT OF THE ARBITRATION WITH THE
INTENTION OF PROVIDING FOR PROMPT ECONOMIC AND FAIR RESOLUTION OF ANY DISPUTE
SUBMITTED TO ARBITRATION.
(E.) THE ARBITRATORS SHALL HAVE THE DISCRETION TO ALLOCATE IN THEIR AWARD
THE COSTS OF ARBITRATION, ARBITRATORS' FEES AND THE RESPECTIVE ATTORNEYS' FEES
AND COSTS, INCLUDING EXPERT WITNESS FEES AND COSTS, OF EACH PARTY TO THE
PREVAILING PARTY. JUDGMENT UPON THE AWARD ENTERED BY THE ARBITRATORS MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
(F.) ALL PROCEEDINGS INVOLVING THE PARTIES SHALL BE REPORTED BY A CERTIFIED
SHORTHAND COURT REPORTER AND WRITTEN TRANSCRIPTS OF THE PROCEEDINGS SHALL BE
PREPARED AND MADE AVAILABLE TO THE PARTIES.
(G.) THE ARBITRATORS SHALL MAKE THEIR AWARD BASED UPON THE APPLICABLE LEGAL
PRINCIPLES AND BASED ON THE EVIDENCE PRESENTED BY THE PARTIES, AND SHALL PROVIDE
A REASONED AWARD AND SHALL INCLUDE IN THEIR AWARD FINDINGS OF FACT AND
CONCLUSIONS OF LAW SUPPORTING THEIR AWARD.
(H.) NOTWITHSTANDING THE PARTIES' AGREEMENT TO MEDIATE OR ARBITRATE THEIR
DISPUTES AS PROVIDED IN THIS AGREEMENT, ANY PARTY MAY SEEK EMERGENCY RELIEF OR
PROVISIONAL REMEDIES IN A COURT OF LAW WITHOUT WAIVING THE RIGHT TO ARBITRATE OR
MEDIATE THE MERITS OF THE DISPUTE.
(I.) THE AWARD OR DECISION OF THE ARBITRATOR, WHICH MAY INCLUDE EQUITABLE
RELIEF, SHALL BE FINAL AND JUDGMENT MAY BE ENTERED ON IT IN ACCORDANCE WITH
APPLICABLE LAW IN ANY COURT HAVING JURISDICTION OVER THE MATTER.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE
THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING
28
<PAGE>
IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THIS "ARBITRATION
OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THIS "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
INITIALS: ____________ _____________
Purchaser Seller
10.18 No Personal Liability of Representatives of Seller. Purchaser
--------------------------------------------------
acknowledges that this Agreement is entered into by a business trust as Seller
and Purchaser agrees that no individual trustee, beneficiary, shareholder or
other representative of Seller shall have any personal liability under this
Agreement or any document executed in connection with the transactions
contemplated by this Agreement.
10.19 Cooperation in Exchange. Seller agrees to accommodate Buyer in
-----------------------
effecting a tax-deferred exchange under Internal Revenue Code, Section 1031
provided that Buyer's election to complete a tax-deferred exchange transaction
shall not be a condition to closing, delay Closing beyond the Closing Date, nor
subject Seller to any additional costs, expenses or liabilities. Subject to the
foregoing, Seller agrees to execute and deliver such additional escrow
instructions, documents and agreements as may be reasonably necessary to
complete such tax-deferred exchange.
10.20 Special Provision Relating to Additional Assets. Upon the
-----------------------------------------------
occurrence of an Event of Default (as defined in the Indemnity Agreement), all
of Purchaser's right, title and interest in and to the Additional Assets as
acquired pursuant to this Agreement shall (i) automatically and without further
action by either Purchaser or Seller revert to Seller's ownership, and (ii)
conclusively be deemed to have been resold, reassigned and reconveyed to Seller.
Purchaser specifically acknowledges and agrees to execute and deliver to Seller,
within five (5) business days of Seller's written request, any and all
instruments of transfer, assignment and/or conveyance reasonably requested by
Seller following such Event of Default to confirm and reflect the reversion of
the Additional Assets to Seller (the "Reversion Confirmation Instruments").
Purchaser further specifically acknowledges and agrees that Purchaser's
obligation to execute the Reversion Confirmation Instruments as provided in
preceding
29
<PAGE>
sentence is a unique and special covenant which has been bargained for by Seller
and constitutes a material and substantial inducement to Seller to enter into
this Agreement on the terms set forth herein. Seller and Purchaser acknowledge
and agree that in the event of breach of such obligation by Purchaser, (i)
Seller would be irrevocably harmed, (ii) Seller would have no adequate legal
remedy, and (iii) Seller shall be entitled to have and obtain specific
performance of Purchaser's obligation to execute the Reversion Confirmation
Instruments.
For so long as there shall not have occured an Event of Default, Seller (at
Purchaser's sole cost, liability and expense) shall reasonably cooperate with
and assist Purchaser in pursuit of, and/or efforts to realize upon, the
insurance claims of Seller included in the Addtional Assets. Seller's
cooperation and assistance (at Purchaser's sole cost, liability and expense)
shall include, without limitation, the filing and prosecution of all appropriate
claims, actions and other proceedings against such persons or entities
(including insurance companies) as Purchaser may in good faith direct for the
purpose of pursuit of, and/or realization upon, such insurance claims.
Purchaser, in Purchaser's good faith business judgment, shall be entitled to
control and direct the strategy for and the implementation of the pursuit of
and/or realization upon the insurance claims including, without limitation, the
selection and direction of counsel subject to Seller's reasonable approval.
Seller, at Seller's cost, shall be entitled to retain separate counsel if and to
the extent that Seller in good faith believes that separate counsel is necessary
and advisable to protect Seller's interests in connection with the pursuit of
and/or realization upon the insurance claims.
30
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth next to their signature.
PURCHASER:
- ---------
RUBIN-PACHULSKI PROPERTIES, INC.,
a California corporation
By: ____________________
Its: _____________________
Date of Execution
by Purchaser:
July __, 1997
[Signatures Continued on Next Page]
SELLER:
- ------
MERIDIAN POINT REALTY TRUST '83,
a California Business Trust
By: ____________________
Its: _____________________
Date of Execution
by Seller:
July __, 1997
The undersigned Title Company hereby acknowledges receipt of the Earnest Money
and a copy of this Agreement, and agrees to hold and dispose of the Earnest
Money in accordance with the provisions of this Agreement.
TITLE COMPANY:
- -------------
FIRST AMERICAN TITLE INSURANCE COMPANY,
a corporation
By: ____________________
Its: ____________________
Date of Execution
by Title Company:
July __, 1997
31
<PAGE>
SCHEDULE 1
----------
ADDITIONAL ITEMS TO BE DELIVERED
--------------------------------
1. Correspondence with regulatory agencies.
2. Claims files.
3. Insurance files (inclusive of Owner's policies and certificates and
those provided by current and/or former tenants).
4. Operating and income statements for prior years as well as the current
year.
5. Maintenance files.
6. Lease files.
7. Budgets for prior years as well as the current year.
8. ADA reports and inspections results.
9. Roof, mechanical and HVAC reports.
10. Soils reports, if any.
11. Common area maintenance expense/estimate files.
32
<PAGE>
EXHIBIT A
---------
LEGAL DESCRIPTION OF LAND
-------------------------
All that certain REAL PROPERTY in the County of Santa Clara, described as
follows:
Parcel 1, as shown on that certain Map entitled "Parcel Map being a
Redivision of Parcel A as shown upon that certain Map titled "Record of
Survey, being a portion of Rancho Rincon De San Francisquito", filed for
record June 18, 1964 in Book 181 of Maps at page 7, Santa Clara County
Records also Lot 1 in Block 4 of Tract No. 1645, as shown upon a Map
recorded January 5, 1956, in Book 66 of Maps at pages 18 and 19, Santa
Clara County Records, also a portion of the lands shown on the Record of
Survey filed for record February 19, 1954 in Book 47 of Maps at page 40,
Santa Clara Records, City of Mountain View, Santa Clara County, California"
which Map was filed for record in the office of the Recorder of the County
of Santa Clara, State of California on May 8, 1972, in Book 300 of Maps
page(s) 43.
APN: 147-02-016, 017
ARB: 147-02-016, 017
33
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EXHIBIT B
---------
LIST OF CONTRACTS
-----------------
34
<PAGE>
EXHIBIT C
---------
LIST OF LEASES
--------------
1. TENCOR INSTRUMENTS:
Master Lease dated as of July 5, 1988
Letter Agreement dated as of December 9, 1988
Letter Agreement dated as of December 14, 1988
Amendment to Lease dated as of June 15, 1992
Second Amendment to Lease dated as of January 1995
Third Amendment to Lease dated as of December 7, 1995
2. TELEVISION ASSOCIATES:
Lease Agreement dated as of June 30, 1974
Extension of Lease dated June 30, 1979
Lease Agreement dated as of June 24, 1981
Extension of Lease dated January 13, 1982
Amendment of Lease dated as of January 31, 1986
Lease Modification Agreement dated as of October 3, 1989
Correction to Lease Modification Agreement
Extension of Lease dated as of November 26, 1990
Standard Form Lease dated as of July 28, 1994
First Amendment to Lease dated as of January 20, 1995
3. NORCAL TEC, INC./DAVILA INTERNATIONAL CIRCUITS:
Lease Agreement dated as of April 11, 1973
Letter Amendment dated as of June 13, 1973
Letter Amendment dated as of January 26, 1976
Lease Agreement dated as of February 11, 1976
Extension Agreement dated as of May 18, 1978
Extension of Lease dated as of October 21, 1982
Amendment of Lease dated as of April 1, 1987
Second Amendment of Lease dated as of July 27, 1988
35
<PAGE>
EXHIBIT D-1
-----------
FORM OF TENANT ESTOPPEL
-----------------------
[PURCHASER'S FORM OF TENANT ESTOPPEL TO BE ATTACHED]
36
<PAGE>
EXHIBIT D-2
-----------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
[PURCHASER'S LENDER'S FORM TO BE ATTACHED]
37
<PAGE>
EXHIBIT E
---------
FORM OF DEED (FOR USE IN CALIFORNIA, ONLY)
------------------------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
_________________________________
_________________________________
_________________________________
_________________________________
Attn: ___________________________
================================================================================
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(S):
<TABLE>
<CAPTION>
Documentary Transfer Tax is $__________________
( ) Unincorporated Area ( ) City of ___________________________________
<S> <C>
( ) Computed on Full Value of Interest or Property Conveyed, or
( ) Computed on Full Value Less Liens and Encumbrances Remaining at Time
of Sale.
</TABLE>
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
hereby GRANT(S) to
the following described real property in the
County of _____________________________________, State of California:
The foregoing grant is made upon the express condition and covenant that the
Grantee shall not use or permit the real property conveyed hereby, or any
portion thereof, to be used at any time for any of the following purposes:
(i) a residence including, without limitation, a mobilehome or
factory built housing;
(ii) a hospital for humans;
38
<PAGE>
(iii) a school;
(iv) a daycare center for children or the elderly.
The use restrictions hereby created shall burden the fee ownership of the real
property conveyed hereby, and shall be binding upon each successive owner,
during its ownership, of any portion of such real property and upon each person
having any interest therein derived through any owner of such real property or
any portion thereof. Each successive conveyance of the real property conveyed
hereby, or any portion thereof, shall be made expressly subject to the use
restrictions contained herein.
Dated:________________________ ____________________________________________,
a ___________________________________________
By:__________________________________________
Its:__________________________________________
[ALL SIGNATURES MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC]
39
<PAGE>
EXHIBIT F
---------
FORM OF ASSIGNMENT
------------------
Recording Requested By and
When Recorded Mail To:
_________________________
_________________________
_________________________
Attn: __________________
_______________________________________________________________________________
ASSIGNMENT AND ASSUMPTION OF PERSONAL PROPERTY,
-----------------------------------------------
SERVICE CONTRACTS, WARRANTIES AND LEASES
----------------------------------------
MERIDIAN POINT REALTY TRUST '83, a California business trust ("Assignor"), for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, has Granted, Sold, Assigned, Transferred, Conveyed, and Delivered
and does by these presents Grant, Sell, Assign, Transfer, Convey and Deliver
unto ______________________, a ___________________________ ("Grantee"), all of
Assignor's rights, titles, and interests in and to the following described
properties located in, affixed to, and/or arising or used in connection with the
improved property with parking and other amenities (the "Project") situated on
the land in the County of Santa Clara, State of California, more particularly
described on EXHIBIT A attached hereto and made a part hereof for all purposes
---------
(the "Land," which together with the Project is sometimes hereinafter called the
"Property"):
(a) All fixtures, equipment, machinery, building materials, furniture,
furnishings, and other personal property owned by Assignor, including the name
"Charleston Business Park" (the "Personal Property"), and located on, attached
to, or used in connection with the operation and maintenance of the Property;
(b) Any leases for space in the Project (the "Leases"), together with all
guarantees thereof and all refundable security and other deposits owned or held
by Assignor pursuant to the Leases, which Leases and security deposits are
described on EXHIBIT B attached hereto;
---------
(c) The assignable service, maintenance, or management contracts relating
to the ownership and operation of the Property (the "Service Contracts")
attached hereto as EXHIBIT C;
---------
(d) Any assignable warranties and guaranties relating to the Property or
any portion thereof (collectively, the "Warranties").
40
<PAGE>
(e) The Additional Assets (as defined in the Purchase Agreement referred to
below)
41
<PAGE>
Assignor and Assignee hereby covenant and agree as follows:
(i) Assignee accepts the aforesaid assignment and Assignee assumes and
agrees to be bound by and timely perform, observe, discharge, and otherwise
comply with each and every one of the agreements, duties, obligations,
covenants and undertakings upon the lessor's part to be kept and performed
under the Leases and any obligations of Assignor under the Service
Contracts from and after the date hereof.
(ii) Assignee hereby indemnifies and agrees to hold harmless Assignor
from and against any and all liabilities, claims, demands, obligations,
assessments, losses, costs, damages, and expenses of any nature whatsoever
(including, without limited the generality of the foregoing, attorneys'
fees and court costs) which Assignor may incur, sustain, or suffer, or
which may be asserted or assessed against Assignor on or after the date
hereof, arising out of, pertaining to or in any way connected with the
obligations, duties, and liabilities under the Leases and the Service
Contracts, or any of them, first arising from and after the date hereof.
(iii) The burden of the indemnity made in paragraph (ii) hereof shall
not be assigned. Except as aforesaid, this Agreement shall bind and inure
to the benefit of the parties and their respective successors, legal
representatives and assigns.
(iv) Neither this Agreement nor any term, provision, or condition
hereof may be changed, amended or modified, and no obligation, duty or
liability or any party hereby may be released, discharged or waived, except
in a writing signed by all parties hereto.
GRANTEE SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT TO THE LIMITED EXTENT,
IF ANY, SPECIFICALLY AND EXPRESSLY SET FORTH IN SECTION 5.1 OF THAT CERTAIN
PURCHASE AND SALE AGREEMENT DATED AS OF ____________, 199_ (THE "PURCHASE
AGREEMENT") BETWEEN ASSIGNOR, AS SELLER, AND ASSIGNEE, AS PURCHASER, SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE LAND,
PROPERTY, PROJECT, PERSONAL PROPERTY, LEASES, SERVICE CONTRACTS OR WARRANTIES.
42
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment of
Personal Property, Service Contracts, Warranties and Leases effective as of the
_____ day of __________________, 199_.
Assignor:
- --------
MERIDIAN POINT REALTY TRUST '83,
a California business trust
By: ____________________
Its: ____________________
Assignee
- --------
_________________________,
a _______________________
By: ____________________
Its: ____________________
[AFFIX ACKNOWLEDGEMENTS]
43
<PAGE>
EXHIBIT G
---------
FORM OF FIRPTA AFFIDAVIT
------------------------
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
------------------------------------------------
To inform _________________________, a __________________________
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, [AS AMENDED, AND SECTION 18662 OF THE CALIFORNIA REVENUE
AND TAXATION CODE], as amended (collectively, the "Code"), will not be required
upon transfer of certain real property to Transferee by Meridian Point Realty
Trust '83, a California business trust ("Transferor"), the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferor's U.S. taxpayer identification number is as follows:
___________.
3. Transferor's office address is as follows:
__________________________________
__________________________________
__________________________________
__________________________________
Attn: ____________________________
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service [AND THE CALIFORNIA FRANCHISE TAX BOARD] by Transferee
and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Transferor understands that Transferee is relying on this Certification in
determining whether withholding is required upon said transfer.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Transferor.
Date: ____________, 199_
TRANSFEROR:
- ----------
MERIDIAN POINT REALTY TRUST '83,
a California business trust
By: ________________
Its: ________________
44
<PAGE>
EXHIBIT H
---------
FORM OF TENANT NOTICE
---------------------
_______________, 19___
__________________________
__________________________
__________________________
This is to notify you that Meridian Point Realty Trust '83, a California
business trust, has sold its fee interest in the property described above and in
connection therewith has assigned its interest as landlord under your lease to
__________________________, a _________________("Buyer").
You are further notified that any security deposits or any prepaid rents
under your lease have been transferred to Buyer.
The project will be managed by:
______________________________
______________________________
______________________________
Telephone No. _________________
Commencing as of _____________________, all rental payments under your
lease shall be paid to Buyer. Please make your rent checks payable to Buyer at
the above address.
Any written notices you desire or are required to make to the landlord under
your lease should hereafter be sent to Buyer at the above address.
Very truly yours,
SELLER:
------
MERIDIAN POINT REALTY TRUST '83,
a California business trust
By: ___________________________
Its: _____________________
45
<PAGE>
EXHIBIT I
---------
ENVIRONMENTAL INDEMNITY AND ACCESS EASEMENT AGREEMENT
-----------------------------------------------------
Recording Requested By and
- --------------------------
When Recorded Mail To:
Meridian Point Realty Trust '83
c/o Meridian Point Realty
Trust VIII Company
655 Montgomery, Suite 800
San Francisco, CA 94111
Attn: Mr. Michael Gilbert
_________________________________________________________________
ENVIRONMENTAL INDEMNITY AND ACCESS EASEMENT AGREEMENT
-----------------------------------------------------
THIS ENVIRONMENTAL INDEMNITY AND ACCESS EASEMENT AGREEMENT ("Agreement") is
made this _____ day of __________ 1997, by RUBIN-PACHULSKI PROPERTIES, INC., a
California corporation (Indemnitor"), to and for the benefit of MERIDIAN POINT
REALTY TRUST '83, a California business trust ("Indemnitee"), with reference to
the following:
Recitals
--------
A. Indemnitee is the owner of that certain real property located in the
City of Mountain View, County of Santa Clara, State of California, together with
all appurtenances thereto and improvements thereon, and more particularly
described in Exhibit A attached hereto and incorporated herein by reference (the
---------
"Property").
B. Indemnitor and Indemnitee entered into that certain Purchase and Sale
Agreement effective as of July __, 1997 for the purchase of the Property (the
"Purchase Agreement").
C. The execution of this Agreement (i) is a condition precedent to close
the sale of the Property pursuant to the Purchase Agreement, (ii) constitutes a
material and substantial portion of the consideration to be paid by Indemnitor
to Indemnitee for the Property pursuant to the Purchase Agreement. Further, in
the absence of this Agreement, Indemnitee would be unwilling to consummate the
sale of the Property to Indemnitor.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Indemnitor agrees as follows:
1. Definitions. As used in this Agreement, the following terms shall be
-----------
defined as follows:
46
<PAGE>
(a) "Additional Hazardous Substances" shall mean any Hazardous
-------------------------------
Substances on, in, under or about the Property, or the soil or
groundwater thereof, as of the date of this Agreement other than
those currently existing Hazardous Substances which are
identified and/or described in one or more of the reports,
surveys, assessments, evaluations, results, data, documents,
instruments or other writings provided by or on behalf of
Indemnitee to Indemnitor prior to the date hereof whether
pursuant to or in connection with the Purchase Agreement or
otherwise.
(b) "Environmental Laws" shall mean any and all present and future
------------------
federal, state and local laws (whether under common law, statute,
rule, regulation or otherwise), requirements under permits issued
with respect thereto, and other requirements of Governmental
Authorities (as defined below) relating to the environment,
Industrial Operations (as defined below) or to any Hazardous
Substance (as defined below) or to any activity involving
Hazardous Substances, and shall include without limitation, the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. Section 9601, et seq.), the Federal Resource
-- ---
Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.),
-- ---
the California Integrated Waste Management Act (California Public
Resources Code Section 40000, et seq.), Title 7.3 of the
-- ---
California Government Code Section 66758 et seq., Title 14,
-- ----
Division 7 of the California Code of Regulations, Title 23,
Division 3, Chapter 15 of the California Code of Regulations and
all other applicable provisions of the California Health and
Safety Code, the California Public Resources Code, the California
Government Code and the California Water Code.
(c) "Event of Default" shall mean the failure of Indemnitor to fully
----------------
and timely indemnify, protect, hold harmless and defend the
Indemnitees (as defined below) as provided in Section 6 below
---------
after thirty (30) days written notice to Indemnitor of such
failure from Indemnitee; provided, however, that if such failure
is curable but is not reasonably susceptible to cure within such
thirty (30) day period, there shall not be deemed to have
occurred an Event of Default if Indemnitor shall have commenced
commercially reasonable efforts to cure such failure within such
thirty (30) day period and shall thereafter continue to use
commercially reasonable and diligent efforts to prosecute such
cure to completion in all events within ninety (90) days or such
longer period as may be reasonably approved in writing by
Indemnitee upon presentation of evidence by Indemnitor that such
additional time is necessary to complete such cure.
47
<PAGE>
(d) "Governmental Authority" shall mean any local, state or federal
----------------------
governmental agency, court, board, bureau or other authority
having jurisdiction with respect to Hazardous Substances or
Industrial Operations at or about the Property.
(e) "Hazardous Substances" shall mean any chemical, compound,
--------------------
material, mixture or substance that is now or hereafter defined
or listed in, or otherwise classified pursuant to, any
Environmental Laws as a "hazardous substance," "hazardous
material," "hazardous waste," "extremely hazardous waste,"
"infectious waste," "toxic substance," "toxic pollutant" or any
other formulation intended to define, list, or classify
substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, or
toxicity including any petroleum, natural gas, natural gas
liquids, liquified natural gas, or synthetic gas usable for fuel
(or mixtures of natural gas and such synthetic gas). "Hazardous
Substances" shall include, without limitation, any hazardous or
toxic substance, material or waste or any chemical, compound or
mixture which is (i) defined as "extremely hazardous waste" under
Section 25115, "hazardous waste" under Section 25117, "restricted
hazardous waste" under Section 25122.7, or listed pursuant to
Section 25140, of the California Health and Safety Code, Division
20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"hazardous substance" under Section 25316 of the California
Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-
Presley-Tanner Hazardous Substance Account Act), (iii) defined as
a "hazardous material", "hazardous substance", or "hazardous
waste" under Section 25501 of the California Health and Safety
Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) defined as a "hazardous
substance" under Section 25281 of the California Health and
Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) listed
under Article 9 or defined as hazardous or extremely hazardous
pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (viii) designated as
a "hazardous substance" pursuant to Section 1317 of the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.),
-- ---
(ix) defined as a "hazardous waste" pursuant to Section 6903 of
the Federal Resource Conservation and Recovery Act, (42 U.S.C.
Section 6901 et seq., (x) defined as "hazardous substances"
-- ---
pursuant to Section 9601 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq.) or (xi) identified in Sections 66680 through 66685 of
-- ---
Title 22 of the California Administrative Code, Division 4,
Chapter 30, as all of the foregoing may be amended from time to
time.
48
<PAGE>
(f) "Industrial Operations" shall mean and refer to any and all
---------------------
past, present, and/or future use, operation or occupancy of the
Property, or any portion thereof, for industrial and/or
manufacturing purposes.
(g) "No Further Action Letter" shall mean issuance by the
------------------------
Governmental Authority exercising "lead agency" jurisdiction over the Property,
and the Remedial Activities thereon, of a letter, report or other writing
stating that no further, additional or continuing Remedial Activities
(including, without limitation, groundwater monitoring) shall be currently
required for the Property.
(h) "Permitted Transfer" shall mean a transaction satisfying all of
------------------
the following requirements: (i) the sale of all but not a portion
of Indemnitor's interest in the Property, (ii) the sale shall be
a bone fide arms length transaction with an unaffiliated third
party purchaser, (iii) the third party purchaser shall have a net
worth (as determined under generally acceptable accounting
principles) as of the date of such transfer of not less than
$3,000,000, (iv) the third party purchaser shall have reasonably
sufficient business expertise and experience in the management
and operation of real property similar to the Property, and (v)
the third party purchaser shall execute and deliver to Indemnitee
an express written assumption of all of Indemnitor's obligations
and liabilities hereunder in form and substance reasonably
satisfactory to Indemnitee.
(i) "Remedial Activities" shall mean any investigatory, monitoring,
-------------------
closure, post-closure or remediation actions, orders or judgments
requested, demanded, required or ordered by any Governmental
Authority or voluntarily undertaken by Indemnitee or Indemnitor
relating to, arising out of, or in connection with the (i)
presence or suspected presence of Hazardous Substances at, on,
under or about the Property or the soil or groundwater thereof,
or (ii) Industrial Operations conducted at, on or about the
Property.
2. Acknowledgment. Indemnitor acknowledges and agrees that the Recitals
--------------
set forth above are true and correct and are incorporated herein by this
reference. Indemnitor acknowledges that the Property has been used and occupied
for Industrial Operations over a substantial period of time and that as a result
of such use and occupancy Hazardous Substances may be present on the Property.
3. Remedial Activities. Notwithstanding Indemnitor's indemnification of
-------------------
Indemnitee as provided in Section 6 below, and without in any way affecting
---------
Indemnitor's liability to Indemnitee as provided therein, for so long as there
shall exist any Event of Default, Indemnitee shall, as between Indemnitor and
Indemnitee, have the option in its sole and absolute discretion (but without any
obligation to do so) to take complete
49
<PAGE>
responsibility for all Remedial Activities on the Property. To the extent
allowed by law, for so long as there shall exist any Event of Default,
Indemnitee shall at all times have and retain the exclusive right, in
Indemnitee's sole and absolute discretion, to negotiate with, and to fulfill,
oversee and manage any Remedial Activities upon the Property including, without
limitation, any requirement or claim made by any Governmental Authority or third
party related to Hazardous Substances that existed on the Property during the
term of Indemnitee's ownership of the Property. Indemnitor shall promptly notify
Indemnitor of any apparent failures or irregularities in the operation of the
equipment or procedures used in any Remedial Activities.
4. Property Use Restrictions. Indemnitor covenants and agrees that it
-------------------------
shall not use or permit the Property, or any portion thereof, to be used at any
time for any of the following purposes:
(a) a residence including, without limitation, a mobilehome or
factory built housing;
(b) a hospital for humans;
(c) a school;
(d) a daycare center for children or the elderly.
The use restrictions hereby created shall burden the fee ownership interest of
Indemnitor in the Property, and shall be binding upon each successive owner,
during its ownership, of any portion of such Property and upon each person
having any interest therein derived through any owner of the Property or any
portion thereof. Indemnitor agrees that any conveyance of the Property shall be
made expressly subject to the use restrictions contained herein.
5. Grant of Access Easement. Indemnitor, for itself, its successors and
------------------------
assigns, hereby grants to Indemnitee, and its successors and assigns, an
easement to enter into and upon any and all of the Property at any time while
there shall exist any Event of Default for the purpose of carrying out and
performing any and all Remedial Activities requested or demanded by any
Governmental Authority. The easement granted hereby shall extend to all of
Indemnitee's agents, employees, consultants, contractors and subcontractors in
connection with their duties with respect to any Remedial Activities. The
easement hereby created and granted in favor of Indemnitee and its successors
and assigns shall burden the fee ownership interest of Indemnitor in the
Property, and shall be binding upon each successive owner, during its ownership,
of any portion of such Property and upon each person having any interest therein
derived through any owner of the Property or any portion thereof. Indemnitor
agrees that any conveyance of the Property shall be made expressly subject to
the easement granted herein.
50
<PAGE>
6. Indemnification. Effective upon execution hereof, Indemnitor shall
---------------
indemnify, protect, hold harmless, and defend (with counsel selected by
Indemnitor and reasonably approved by Indemnitee) Indemnitee and its subsidiary
corporations and investment entities (and each of their subsidiary corporations
and investment entities), predecessors or successors in interest, transferees,
assigns, trustees, beneficiaries, shareholders, officers, directors, employees,
managers, attorneys, accountants, agents and servants, and each of them, in all
capacities including, individually (collectively, the "Indemnitees"), from and
against all claims, costs, damages, (including, consequential damages), fines,
judgments, penalties, losses, liabilities or expenses suffered or incurred by
Indemnitees, or any of them, arising directly or indirectly out of or as a
consequence of the actual or suspected use, storage, handling, generation,
transportation, manufacture, production, release, discharge, disposal or
presence of Hazardous Substances on, in, under or about the Property or the soil
or groundwater thereof, including, without limitation, those Hazardous
Substances used or suspected to have been used in connection with the Industrial
Operations conducted at, on or about the Property (collectively, "Liabilities").
The foregoing indemnification shall include, without limitation, the following:
(a) personal injury and property damage claims, (b) payment of liens, (c) sums
paid in settlement of Liabilities, (d) attorney fees, consulting fees and expert
fees, (e) cost (including, without limitation, capital and operating costs) of
any investigation or monitoring of site conditions, (f) the costs (including,
without limitation, capital and operating costs) of any Remedial Activities, and
(g) damage to natural resources or to property (other than the Property),
persons or animals. The obligations of Indemnitor pursuant to this Paragraph 6
-----------
with respect to Additional Hazardous Substances on, in, under or about the
Property (other than with respect to Liabilities arising out of or relating to
Additional Hazardous Substances as to which any specific claim shall have
previously been submitted in good faith by Indemnitee to Indemnitor in writing)
shall terminate upon the earlier of that date which is ten (10) years from the
date hereof or the date of delivery to Indemnitee of a copy of a No Further
Action Letter. The obligations of Indemnitor pursuant to this Paragraph 6 with
-----------
respect to Remedial Activities on, in, under or about the Property shall
terminate upon delivery to Indemnitee of a copy of a No Further Action Letter.
The remaining obligations of Indemnitor pursuant to this Paragraph 6, other than
-----------
with respect to Liabilities as to which any specific claim shall have previously
been submitted in good faith by Indemnitee to Indemnitor in writing, and
Indemnitee's right of access to the Property as provided in Paragraph 5 above,
-----------
shall terminate on that date which is ten (10) years following delivery to
Indemnitee of a copy of a No Further Action Letter. The foregoing
indemnification shall not include (i) additional, increased or exacerbated
Liabilities to the extent resulting directly from the negligent or willful
misconduct of Indemnitee in the exercise of its right to enter upon the
Property as provided in Paragraph 5 above and its performance of Remedial
-----------
Activities upon the Property as provided in Paragraph 3 above, and (ii)
-----------
any Liabilities relating to claims (other than claims for contribution following
an Event of Default hereunder by Indemnitor) by one or more of the Indemnitees
against one or more of the other Indemnitees.
7. No Admission by Indemnitee. In accepting the benefits of this
--------------------------
Agreement or in performing Remedial Activities upon the Property, Indemnitee
does not admit or acknowledge, nor shall Indemnitee be deemed to have admitted
or acknowledged, liability
51
<PAGE>
for the Industrial Operations conducted at, on or about the Property and/or the
presence of any Hazardous Substances or other substances or chemicals in the
soil or groundwater at or about the Property.
8. Entire Agreement; Modification. This instrument contains the entire
------------------------------
understanding and agreement among Indemnitor and Indemnitee with respect to the
matters covered hereby and all prior and contemporaneous understandings and
agreements between Indemnitor and Indemnitee, whether oral or written, are
merged herein and are of no further force or effect. This instrument may be
modified only by a writing signed by both Indemnitor and Indemnitee.
9. Attorneys' Fees. In the event of any litigation between Indemnitor
---------------
and Indemnitee arising out of or concerning the Property, this Agreement or the
rights and obligations of Indemnitor and Indemnitee in connection thereto
(including, without limitation, any action or proceeding in or with respect to
any bankruptcy, insolvency, reorganization or similar proceeding or action
involving Indemnitor), the prevailing party in such litigation shall be entitled
to its reasonable attorneys' fees and costs of such action.
10. Successors. This Agreement shall bind and inure to the benefit of
----------
Indemnitor and Indemnitee and their respective successors and legal
representatives. The use restrictions applicable to the Property as provided in
Paragraph 4 above shall constitute a covenant running with the land and shall be
- -----------
binding upon all subsequent owners of the Property. Notwithstanding anything
herein to the contrary, Indemnitor's obligations and liabilities hereunder shall
not be released, diminished, impaired or otherwise affected by any sale,
transfer, assignment, encumbrance or other conveyance of all or any part of or
interest in the Property, except that Indemnitor shall be released from any
further obligation or liability for any claims first made following a Permitted
Transfer whether the facts or circumstances giving rise to such claim shall have
occurred before or after such Permitted Transfer.
11. Section Headings. The section headings in this Agreement are only for
----------------
the purpose of reference and shall in no way define or interpret any provision
hereof.
12. Notices. Indemnitor shall promptly (and in all events within five (5)
-------
business days) notify Indemnitee of any inquiry, investigation, order, or
enforcement proceeding by or against Indemnitor in connection with the Property.
Any notice required or permitted to be given hereunder shall be in writing and
delivered personally, by private courier with acknowledgement of receipt, or
mailed by certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
52
<PAGE>
INDEMNITEE: Meridian Point Realty Trust '83
c/o Meridian Point Realty Trust VIII Company
655 Montgomery, Suite 800
San Francisco, CA 94111
Attn: Mr. Michael Gilbert
Telephone: (415) 274-1808
Facsimile: (415) 393-8009
with a copy to: Landels, Ripley & Diamond, LLP
350 The Embarcadero
San Francisco, CA 94105
Telephone: (415) 512-8700
Facsimile: (415) 512-8750
Attn: Thomas D. Trapp, Esq.
INDEMNITOR: Rubin-Pachulski Properties, Inc.
10351 Santa Monica Blvd., Suite 410
Los Angeles, CA 90025
Attn: Scott Dew, Esq.
Telephone: (310) 557-1311
Facsimile: (310) 557-0605
with a copy to: David C. Klein, Esq.
1875 Century Park East, Suite 700
Los Angeles, CA 90067
Telephone: (310) 788-2737
Facsimile: (310) 788-2738
The foregoing addresses may be changed by written notice given in the
manner provided above.
13. Recordation of Agreement. Upon the occurrence of an Event of Default,
------------------------
Indemnitee may, at its sole option and expense, cause this Agreement to be
recorded in the Official Records in Office of the County Recorder of the County
in which the Property is located.
14. Nature of Obligations. Indemnitor acknowledges and agrees that its
---------------------
obligations under this Agreement are fully recourse against Indemnitor and
constitute general obligations of Indemnitor.
15. Record Keeping. Indemnitor acknowledges and agrees that it shall
--------------
keep, maintain and preserve any and all records and information which Indemnitor
shall presently possess or control relating to the Industrial Operations
conducted at, on or about the Property or relating to the environmental
condition of the Property (the "Existing Records") and that the Existing Records
shall not be voluntarily purged, destroyed or otherwise made
53
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or rendered unusable by Indemnitor or any agent, employee, contractor of
Indemnitor, or any other person or entity under the direction or control of
Indemnitor. The Existing Records, and all subsequent records of or controlled by
Indemnitor relating to Industrial Operations conducted at, on or about the
Property, shall be available to Indemnitee for Indemnitee's review and copying
during business hours upon not less than two (2) business days prior written
notice.
IN WITNESS WHEREOF, Indemnitor has executed this Environmental Indemnity
and Access Easement Agreement as of the date first mentioned above.
INDEMNITOR:
----------
RUBIN-PACHULSKI PROPERTIES, INC.,
a California corporation
By: ____________________
Its: _____________________
54
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EXHIBIT A TO INDEMNITY
----------------------
Description of Property
-----------------------
All that certain REAL PROPERTY in the County of Santa Clara, described as
follows:
Parcel 1, as shown on that certain Map entitled "Parcel Map being a
Redivision of Parcel A as shown upon that certain Map titled "Record of
Survey, being a portion of Rancho Rincon De San Francisquito", filed for
record June 18, 1964 in Book 181 of Maps at page 7, Santa Clara County
Records also Lot 1 in Block 4 of Tract No. 1645, as shown upon a Map
recorded January 5, 1956, in Book 66 of Maps at pages 18 and 19, Santa
Clara County Records, also a portion of the lands shown on the Record of
Survey filed for record February 19, 1954 in Book 47 of Maps at page 40,
Santa Clara Records, City of Mountain View, Santa Clara County, California"
which Map was filed for record in the office of the Recorder of the County
of Santa Clara, State of California on May 8, 1972, in Book 300 of Maps
page(s) 43.
APN: 147-02-016, 017
ARB: 147-02-016, 017
55
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EXHIBIT J
---------
FORM OF TAXPAYER I.D. CERTIFICATE
---------------------------------
TAXPAYER IDENTIFICATION CERTIFICATE
-----------------------------------
In connection with certain Internal Revenue Service reporting requirements
imposed upon Seller, Purchaser hereby certifies that listed below is Purchaser's
address and taxpayer identification number, true and correct as of the Closing
Date.
Address: _________________________
_________________________
_________________________
Taxpayer I.D. Number:
Purchaser hereby consents to Seller's release of the above information in
connection with any reporting requirements imposed upon Seller by any
governmental authority.
________________________,
a _______________________
By: ____________________
Its: ____________________
56
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EXHIBIT K
---------
LIST OF EXISTING AND PRIOR OCCUPANCY AGREEMENTS
-----------------------------------------------
1. TENCOR INSTRUMENTS:
Master Lease dated as of July 5, 1988
Letter Agreement dated as of December 9, 1988
Letter Agreement dated as of December 14, 1988
Amendment to Lease dated as of June 15, 1992
Second Amendment to Lease dated as of January 1995
Third Amendment to Lease dated as of December 7, 1995
2. TELEVISION ASSOCIATES:
Lease Agreement dated as of June 30, 1974
Extension of Lease dated June 30, 1979
Lease Agreement dated as of June 24, 1981
Extension of Lease dated January 13, 1982
Amendment of Lease dated as of January 31, 1986
Lease Modification Agreement dated as of October 3, 1989
Correction to Lease Modification Agreement
Extension of Lease dated as of November 26, 1990
Standard Form Lease dated as of July 28, 1994
First Amendment to Lease dated as of January 20, 1995
3. NORCAL TEC, INC./DAVILA INTERNATIONAL CIRCUITS:
Lease Agreement dated as of April 11, 1973
Letter Amendment dated as of June 13, 1973
Letter Amendment dated as of January 26, 1976
Lease Agreement dated as of February 11, 1976
Extension Agreement dated as of May 18, 1978
Extension of Lease dated as of October 21, 1982
Amendment of Lease dated as of April 1, 1987
Second Amendment of Lease dated as of July 27, 1988
4. CHARLESTON BUSINESS PARK INVESTMENT COMPANY:
Master Lease Agreement dated as of December 13, 1983
57
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EXHIBIT L
---------
SCHEDULE OF CERTAIN INDEMNITY OBLIGATIONS
-----------------------------------------
1. TENCOR INSTRUMENTS:
Master Lease dated as of July 5, 1988 - Sections 5.3(d) and 9.1
Second Amendment to Lease dated as of January 1995 - Section 10.2
as to obligations of Tencor as sublessor under subleases to
Davila International Circuits, Inc. and Television Associates
(see below)
2. TELEVISION ASSOCIATES:
Lease Agreement dated as of June 30, 1974 - Section 13
3. NORCAL TEC, INC./DAVILA INTERNATIONAL CIRCUITS:
Lease Agreement dated as of April 11, 1973 - Section 15A
4. CHARLESTON BUSINESS PARK INVESTMENT COMPANY:
Purchase Agreement dated as of December 5, 1983 - Section 14
Assignment of Leases, Etc. dated as of December 15, 1983 - Section 6
as to Seller's obligations under certain leases
5. MATTISON & SHIDLER:
Property Management Agreement dated as of December 15, 1983 - Section
5
58
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FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "AMENDMENT") is
made by and between MERIDIAN POINT REALTY TRUST '83, a California business trust
("SELLER"), RUBIN-PACHULSKI PROPERTIES, INC., a California corporation
("PURCHASER"), and 2400 CHARLESTON ASSOCIATES, LLC, a California limited
liability company ("Assignee"), effective as of August 7, 1997.
RECITALS:
--------
A. Seller and Purchaser entered into that certain Purchase and Sale
Agreement having an effective date of August 4, 1997 ("Agreement") with respect
to certain real property located in Mountain View, California and commonly known
as "Charleston Business Park", and which real property is more particularly
described in the Agreement.
B. Purchaser has requested, and Seller has agreed, to extend the closing
date from August 8, 1997 to August 15, 1997 upon all of the terms and conditions
contained herein.
C. Purchaser also desires to assign to Assignee, and Assignee desires to
acquire from Purchaser, all of Purchaser's right, title and interest under the
Agreement upon all of the terms and conditions contained herein.
AGREEMENT:
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller, Purchaser and Assignee
agree as follows:
1. Each of the above recitals is true and correct and is incorporated
herein by this reference.
2. All words and phrases having their initial letters capitalized in this
Amendment but not specifically defined shall have the meanings set forth in the
Agreement.
3. At Closing, there shall be credited against the Purchase Price an
amount equal to One Million and No/100 Dollars ($1,000,000.00) in consideration
of the environmental remediation of the Property to be undertaken by
Purchaser/Assignee following the Closing.
4. The Closing Date specified in Section 6.1 of the Agreement is hereby
extended from August 8, 1997 to August 15, 1997.
59
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5. As provided in Section 10.8 of the Agreement, Purchaser hereby sells,
transfers and assigns to Assignee all of Purchaser's right, title and interest
under and with respect to the Agreement. Assignee hereby accepts such sale,
transfer and assignment of Purchaser's right, title and interest under and with
respect to the Agreement and specifically agrees to assume and perform all of
Purchaser's obligations, indemnities and liabilities arising under or in
connection with the Agreement. Purchaser and Assignee specifically acknowledge
and agree that the foregoing sale, transfer and assignment shall not in any way
release, impair or diminish Purchaser's obligations, indemnities and liabilities
arising under or in connection with the Agreement. Seller hereby consents to and
acknowledges such sale, assignment and transfer to Assignee.
6. This Amendment contains the entire agreement between Seller, Purchaser
and Assignee as to the matters addressed herein and all other and prior
discussions, representations and agreements relating to such matters are merged
herein and shall be of no further force or effect. Except to the limited extent
expressly provided herein, the terms and conditions of the Agreement remain
unchanged and in full force and effect.
7. This Amendment may be executed in or more counterparts and each such
counterpart may be delivered by facsimile transmission. All counterparts so
executed shall constitute one agreement, binding on all parties, even though all
parties are not signatory to the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first set forth above.
PURCHASER:
- ---------
RUBIN-PACHULSKI PROPERTIES, INC.,
a California corporation
By: ____________________
Its: _____________________
60
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ASSIGNEE:
- --------
2400 CHARLESTON ASSOCIATES, LLC,
a California limited liability company
By: RPP XV, L.P.,
a California limited partnership,
Its Managing Member
By: Rubin-Pachulski Properties, Inc.,
a California corporation,
Its General Partner
By: ___________________
Richard Pachulski,
Secretary
SELLER:
- ------
MERIDIAN POINT REALTY TRUST '83,
a California Business Trust
By: ____________________
Its: _____________________
61
<PAGE>
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Second
Amendment") is made by and between MERIDIAN POINT REALTY TRUST '83, a California
business trust ("Seller"), 2400 CHARLESTON ASSOCIATES, LLC, a California limited
liability company ("Purchaser"), effective as of August 15, 1997.
RECITALS:
--------
A. Seller and Purchaser's predecessor in interest, Rubin-Pachulski
Properties, Inc., a California corporation, entered into that certain Purchase
and Sale Agreement having an effective date of August 4, 1997 (the "Original
Agreement") and that certain First Amendment to Purchase and Sale Agreement,
effective as of August 7, 1997 (the "First Amendment", collectively with the
Original Agreement, the "Agreement") with respect to certain real property
located in Mountain View, California and commonly known as "Charleston Business
Park", and which real property is more particularly described in the Agreement.
B. Purchaser has requested, and Seller has agreed, to provide for an
additional credit against the purchase price and to extend the closing date from
August 15, 1997 to August 22, 1997 upon all of the terms and conditions
contained herein.
AGREEMENT:
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser agree as
follows:
1. Each of the above recitals is true and correct and is incorporated
herein by this reference.
2. All words and phrases having their initial letters capitalized in this
Second Amendment but not specifically defined shall have the meanings set forth
in the Agreement.
3. At Closing, there shall be credited against the Purchase Price an
additional amount equal to Three Hundred and Fifty Thousand and No/100 Dollars
($350,000.00) in consideration of the environmental remediation of the Property
to be undertaken by Purchaser following the Closing, which is in addition to the
amount of One Million and No/100
62
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Dollars ($1,000,000.00) provided for in Section 3 of the First Amendment, which
equals a total amount of One Million Three Hundred Fifty Thousand Dollars and
No/100 Dollars for such environmental remediation credits. The net purchase
price, which is less the environmental remediation credits described above,
shall be Eleven Million Six Hundred Fifty Thousand and No/100 Dollars
($11,650,000.00).
4. The Closing Date specified in Section 4 of the First Amendment is
hereby extended from August 15, 1997 to August 22, 1997.
5. This Second Amendment contains the entire agreement between Seller and
Purchaser as to the matters addressed herein and all other and prior
discussions, representations and agreements relating to such matters are merged
herein and shall be of no further force or effect. Except to the limited extent
expressly provided herein, the terms and conditions of the Original Agreement
and the First Amendment remain unchanged and in full force and effect.
6. This Second Amendment may be executed in or more counterparts and each
such counterpart may be delivered by facsimile transmission. All counterparts
so executed shall
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
63
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constitute one agreement, binding on all parties, even though all parties are
not signatory to the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first set forth above.
PURCHASER:
- ---------
2400 CHARLESTON ASSOCIATES, LLC,
a California limited liability company
By: RPP XV, L.P.,
a California limited partnership,
Its Managing Member
By: Rubin-Pachulski Properties, Inc.,
a California corporation,
Its General Partner
By: ___________________
Richard Pachulski,
Secretary
SELLER:
- ------
MERIDIAN POINT REALTY TRUST '83,
a California Business Trust
By: ____________________
Its: _____________________
64
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EXHIBIT 28.1
NEWS RELEASE
================================================================================
FOR RELEASE: Immediately (NASDAQ: MPTBS)
DATE: August 22, 1997
CONTACT: John E. Castello
(415) 274-1808
MERIDIAN POINT REALTY TRUST '83 ANNOUNCES SALE OF
CHARLESTON BUSINESS PARK AND DECLARES CASH DIVIDEND
San Francisco, August 22, 1997--Meridian Point Realty Trust '83,
(NASDAQ:MPTBS) an equity real estate investment trust, today announced that it
completed the sale of Charleston Business Park, located in Mountain View,
California, for a total purchase price of $13,000,000, less a $1,350,000 credit
for potential remediation work and related costs, resulting in a net sales price
of $11,650,000 before deducting fees and costs of the transaction. This will
represent a gain of approximately $5 million. The Charleston Business Park
consists of six research and light industrial buildings aggregating 119,041
square feet on an eight acre site adjacent to the Bayshore Freeway.
As a result of the sale of the Charleston property, the board of trustees has
declared a dividend in the amount of $3.00 cash per share payable on September
12, 1997 to the shareholders of record September 2, 1997.
Since the Charleston Property was Trust '83's sole remaining real estate
holding, the board of trustees is in the process of evaluating the options
available, including the sale or termination of Trust '83. Trust '83's remaining
assets consist almost entirely of cash and cash equivalents. The Company will
retain assets to satisfy its liabilities, as well as to cover overhead and
operating expenses.
Trust '83 was originally formed as a finite life, self-liquidating real estate
investment trust. The Company has a total of 3,031,619 shares of beneficial
interest held by approximately 2,340 registered shareholders.
Certain statements contained in this press release may be deemed to be
forward looking statements within the meaning of the federal securities laws.
Although the Company believes that the expectations reflected in such
forward-looking statements are based upon reasonable assumptions, it can give no
assurance that its expectations will be achieved. Factors that could cause
actual results to differ materially from the Company's present expectations
include general economic conditions, local real estate conditions and other
risks, as detailed from time to time in the Company's SEC reports.
