SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Burnham Pacific Properties, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
12232C108
- --------------------------------------------------------------------------------
(CUSIP Number)
with a copy to:
Stephen Feinberg Robert G. Minion, Esq.
450 Park Avenue Lowenstein Sandler PC
28th Floor 65 Livingston Avenue
New York, New York 10022 Roseland, New Jersey 07068
(212) 421-2600 (973) 597-2500
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
December 22, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box: [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Pursuant to a Termination Agreement, dated as of December 22, 1999
(the "Termination Agreement"), by and between Blackacre SMC Master Holdings, LLC
(Blackacre"), Westbrook Burnham Holdings, L.L.C., Westbrook Burnham Co-Holdings,
L.L.C., MJL Associates, SAB Associates, Eugene J. Rosenfeld, Steven A.
Berlinger, Jack L. Mahoney and Mark Cassidy (collectively, the "Parties"), an
agreement, dated as of December 5, 1997, by and between the Parties (the
"Existing Agreement") was terminated. The Existing Agreement provided, among
other things, that, in certain circumstances, Blackacre and certain other
parties to the Existing Agreement would, in their capacities as holders of
shares of Preferred Stock, jointly consent to certain matters involving the
Company, jointly vote, and/or jointly refrain from voting the shares of
Preferred Stock held by them, based upon certain factors set forth in the
Existing Agreement.
Blackacre is a party to an Agreement to Contribute, dated as of
December 5, 1997, with, among other parties, the Company, which provides, among
other things, that Blackacre and certain other parties have the right, in
certain circumstances, to acquire additional Units, shares of Preferred Stock
and/or shares of Common Stock.
The Company and Blackacre, among others, are party to a Registration
Rights Agreement, dated as of December 31, 1997.
No other contracts, arrangements, understandings or similar
relationships exist with respect to the securities of the Company between
Stephen Feinberg or Blackacre and any person or entity.
Item 7. Material to be Filed as Exhibits.
1. Termination Agreement, dated as of December 22, 1999, by and
between Blackacre, Westbrook Burnham Holdings, L.L.C., Westbrook Burnham
Co-Holdings, L.L.C., MJL Associates, SAB Associates, Eugene J. Rosenfeld, Steven
A. Berlinger, Jack L. Mahoney and Mark Cassidy.
<PAGE>
Signature
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned hereby certifies that the information set
forth in this statement is true, complete and correct.
January 17, 2000
/s/ Stephen Feinberg
____________________________________________
Stephen Feinberg, in his capacity as the
investment manager for Blackacre SMC Master
Holdings, LLC
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
<PAGE>
EXHIBIT 1
TERMINATION AGREEMENT
Termination Agreement (this "Agreement") dated as of December 22,
1999, by and among Blackacre SMC Master Holdings, LLC, a Delaware limited
liability company; Westbrook Burnham Holdings, L.L.C., a Delaware limited
liability company; Westbrook Burnham Co-Holdings, L.L.C., a Delaware limited
liability company; MJL Associates, a California Limited Partnership; SAB
Associates, a California Limited Partnership; Eugene S. Rosenfeld; Steven A.
Berlinger; Jack L. Mahoney; and Mark Cassidy (the "Parties").
W I T N E S S E T H
WHEREAS, the Parties are party to the Agreement, dated as of December
5, 1997 (the "Existing Agreement") under which the Parties provided for the
resolution of certain issues arising in connection with their respective
ownerships of Series 1997-A Convertible Preferred Stock, par value $0.01 per
share, of Burnham Pacific Properties, Inc., a Maryland corporation and Series
1997-A units of preferred limited partner interests of Burnham Pacific Operating
Partnership, L.P., a Delaware limited partnership; and
WHEREAS, the Parties wish to terminate the Existing Agreement.
THEREFORE, the Existing Agreement is hereby terminated and shall be of
no further force and effect, and the Parties shall be forever released and
discharged from, and shall also be deemed to have satisfied all of their
respective obligations under, the provisions thereof.
This Agreement may be executed in one or more counterparts, each of
which call be deemed an original, but all of which shall be considered one and
the same agreement. Copies of executed counterparts transmitted by telecopy,
telefax or other electronic transmission service shall be considered original
executed counterparts for purposes of this Agreement, provided receipt of copies
of such counterparts is confirmed.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAW
PRINCIPLES THEREOF.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed on its behalf as of the date first set forth above.
BLACKACRE SMC MASTER HOLDINGS, LLC
By: Blackacre SMC Holdings, L.P.,
its managing member
By: Blackacre Capital Group, L.P.,
its general partner
By: Blackacre Capital Management
Corp., its general partner
By: ____________________________________
Name:
Title:
By: Blackacre SMC II Holdings, LLC,
its managing member
By: Blackacre Capital Group, L.P.,
its managing member
By: Blackacre Capital Management
Corp., its general partner
By: ____________________________________
Name:
Title:
WESTBROOK BURNHAM HOLDINGS, L.L.C.
By:_____________________________________
Name:
Title:
WESTBROOK BURNHAM CO-HOLDINGS, L.L.C.
By:_____________________________________
Name:
Title:
MJL ASSOCIATES, a California limited
partnership
By: MJL Investments, Inc., its general
partner
By:_____________________________________
Name:
Title:
SAB ASSOCIATES, a California limited
partnership
By: SAB Investments, Inc., its general
partner
By:_____________________________________
Name:
Title:
________________________________________
Eugene S. Rosenfeld
________________________________________
Steven A. Berlinger
________________________________________
Jack L. Mahoney
________________________________________
Mark Cassidy
