SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
Burnham Pacific Properties, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
12232C108
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(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) 597-2424
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(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
August 31, 2000
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(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 Section 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>
Cusip No. 12232C108
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1) Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(entities only):
Stephen Feinberg
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) Not (b) Applicable
________________________________________________________________________________
3) SEC Use Only
________________________________________________________________________________
4) Source of Funds (See Instructions): WC
________________________________________________________________________________
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e):
Not Applicable
________________________________________________________________________________
6) Citizenship or Place of Organization: United States
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Number of 7) Sole Voting Power: *
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Shares Beneficially 8) Shared Voting Power: *
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Owned by
Each Reporting 9) Sole Dispositive Power: *
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Person With: 10) Shared Dispositive Power: *
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________________________________________________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting Person: 2,601,626*
________________________________________________________________________________
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions):
Not Applicable
________________________________________________________________________________
13) Percent of Class Represented by Amount in Row (11): 7.4%*
________________________________________________________________________________
14) Type of Reporting Person (See Instructions): IA, IN
________________________________________________________________________________
* Blackacre SMC Master Holdings, LLC ("Blackacre") is the holder of 1,600,000
shares of Series 2000-C Convertible Preferred Stock, par value $.01 per share
(the "Series C Preferred Stock") of Burnham Pacific Properties, Inc. (the
"Company"). Pursuant to the Company's Articles Supplementary designating the
Series C Preferred Stock, the shares of the Series C Preferred Stock are
convertible, at the option of the holder thereof, into shares of the Common
Stock, par value $.01 per share, of the Company (the "Common Stock"). Based upon
Blackacre's holdings of 1,600,000 shares of the Series C Preferred Stock,
Blackacre presently has the right to convert such 1,600,000 shares of Series C
Preferred Stock into 2,601,626 shares of Common Stock. Stephen Feinberg
possesses sole power to vote and direct the disposition of all securities of the
Company owned by Blackacre.
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Blackacre is the holder of 1,600,000 shares of Series 2000-C
Convertible Preferred Stock, par value $.01 per share (the "Series C Preferred
Stock") of the Company. Pursuant to the Company's Articles Supplementary to the
Articles of Amendment and Restatement of the Company designating the Series C
Preferred Stock (the "Articles Supplementary"), the Series C Preferred Stock is
convertible, at the option of the holder thereof, into shares of Common Stock of
the Company, par value $.01 per share (the "Common Stock"). Based upon
Blackacre's holdings of 1,600,000 shares of the Series C Preferred Stock,
Blackacre presently has the right to convert such 1,600,000 shares of Series C
Preferred Stock into 2,601,626 shares of the Common Stock.
Blackacre acquired the shares of Series C Preferred Stock held by it
pursuant to the terms of (i) the Thirteenth Amendment (the "Thirteenth
Amendment") to Agreement of Limited Partnership of Burnham Pacific Operating
Partnership, L.P. (the "Partnership"), (ii) the Notice of Redemption provided by
Blackacre to the Company and the Partnership (the "Redemption Notice"), (iii)
the Assumption of Redemption Right between the Partnership and the Company (the
"Redemption Assumption") and (iv) the Exchange Agreement (as defined in, and
described in, Item 6 below). Pursuant to the terms of the Thirteenth Amendment,
the Redemption Notice and the Redemption Assumption, Blackacre elected its right
to have the Partnership redeem all of the 1,599,990 Units of the Partnership
held by it in exchange for 1,599,990 shares of Series 1997-A Convertible
Preferred Stock of the Company. Pursuant to the Exchange Agreement, Blackacre
exchanged the 1,600,000 shares of Series 1997-A Convertible Preferred Stock of
the Company held by it (the 1,599,990 shares of Series 1997-A Convertible
Preferred Stock received by it pursuant to the Units exchange plus the 10 shares
of Series 1997-A Convertible Preferred Stock previously held by it) for
1,600,000 shares of Series C Preferred Stock.
All funds or other consideration used to purchase or acquire
securities of the Company on behalf of Blackacre came directly from the assets
of Blackacre.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Based upon information set forth in the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 2000, as of August 11, 2000,
there were issued and outstanding 32,324,046 shares of Common Stock. Blackacre
is the holder of 1,600,000 shares of Series C Preferred Stock, which are
presently convertible into 2,601,626 shares of the Common Stock. Stephen
Feinberg possesses sole power to vote and direct the disposition of all
securities of the Company owned by Blackacre. Pursuant to Reg. Section
240.13d-3, Mr. Feinberg is therefore deemed to beneficially own 7.4% of the
shares of Common Stock deemed issued and outstanding.
During the past sixty days, there were no transactions in shares of
Common Stock, or any securities directly or indirectly convertible into or
exchangeable for shares of Common Stock, by Stephen Feinberg or any person or
entity controlled by him or any person or entity for which he possesses voting
or investment control over the securities thereof, except as described in this
Schedule 13D.
<PAGE>
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
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On August 31, 2000, Blackacre, Westbrook, the Company and the
Partnership entered into an Exchange Agreement (the "Exchange Agreement")
pursuant to which, among other things, Blackacre agreed to exchange (the
"Exchange") the shares of the Series 1997-A Convertible Preferred Stock of the
Company held by it for shares of newly-issued Series C Preferred Stock. The
terms of the Series C Preferred Stock are set forth in the Articles
Supplementary. The Exchange Agreement includes, in addition to the terms of the
Exchange, (i) numerous covenants of the Company which the Company must perform
at all times that any shares of the Series C Preferred Stock remain outstanding
(including but not limited to covenants with respect to (a) the approval of the
plan of liquidation of the Company, (b) the nomination and approval of certain
persons as members of the board of directors of the Company, (c) the approval of
certain matters relating to current and former executive officers of the
Company, (d) the closure of certain of the Company offices, (e) the granting to
the holders of the Series C Preferred Stock approval rights with respect to
certain matters involving the Company, (f) the determination of accrued
distributions and accrued dividends owing to each of Blackacre and Westbrook,
(g) certain registration rights granted to Blackacre and Westbrook and (h) the
distribution of liquidation proceeds and various other matters relating to the
plan of liquidation), (ii) certain covenants of Blackacre and Westbrook
(including but not limited to covenants with respect to (a) Blackacre and
Westbrook not reinstating their election of a Change of Control Preference (as
defined in the Articles Supplementary) or otherwise delivering a notice of
election of a Change of Control Preference unless certain conditions are
satisfied and (b) Blackacre and Westbrook voting all voting securities of the
Company held by them in favor of the Company's plan of liquidation and for
certain persons nominated to serve on the board of directors of the Company) and
(iii) certain provisions granting to Blackacre and Westbrook benefits accorded
pursuant to the terms of the Stock Purchase Agreement, dated as of December 5,
1997, by and among the Company, the Partnership and Westbrook (the "1997 Stock
Purchase Agreement") and amending the 1997 Stock Purchase Agreement to effect
such provisions.
On August 31, 2000, the Company, the Partnership, Blackacre, Westbrook
and certain other parties entered into the Thirteenth Amendment described in
Item 3 above.
On August 31, 2000, Blackacre delivered to the Company and the
Partnership the Redemption Notice described in Item 3 above, and the Company and
the Partnership entered into the Redemption Assumption described in Item 3
above.
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.
Blackacre and Westbrook have had certain discussions between them with
respect to the possibility that they may enter into a voting agreement or
similar agreement, the terms of which would provide, among other things, that,
in certain circumstances, Blackacre and Westbrook would, in their capacities as
holders of shares of the Series C Preferred Stock, jointly consent to certain
matters involving the Company, jointly vote, and/or jointly refrain from voting
the shares of the Series C Preferred Stock held by them, based upon certain
factors that they may mutually determine. No such agreement has been entered
into as of this time.
<PAGE>
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.
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1. Exchange Agreement, dated as of August 31, 2000, by and among
Burnham Pacific Properties, Inc., Burnham Pacific Operating Partnership, L.P.,
Westbrook Burnham Holdings, L.L.C., Westbrook Burnham Co-Holdings, L.L.C., and
Blackacre SMC Master Holdings, LLC., incorporated by reference to Exhibit 10.1
to the Current Report on Form 8-K filed by Burnham Pacific Properties, Inc. on
September 6, 2000.
2. Thirteenth Amendment to Agreement of Limited Partnership of the
Partnership, dated as of August 31, 2000, by and among, among others, Burnham
Pacific Properties, Inc., Burnham Pacific Operating Partnership, L.P., Westbrook
Burnham Holdings, L.L.C., Westbrook Burnham Co-Holdings, L.L.C., and Blackacre
SMC Master Holdings, LLC.
3. Redemption Notice, dated as of August 31, 2000, provided by
Blackacre SMC Master Holdings, LLC to Burnham Pacific Properties, Inc. and
Burnham Pacific Operating Partnership, L.P.
4. Assumption of Redemption Right, dated as of August 31, 2000, by and
between Burnham Pacific Properties, Inc. and Burnham Pacific Operating
Partnership, L.P.
5. Agreement to Contribute by and among, among others, Burnham Pacific
Properties, Inc., Burnham Pacific Operating Partnership, L.P., Westbrook Burnham
Holdings, L.L.C., Westbrook Burnham Co-Holdings, L.L.C., and Blackacre SMC
Master Holdings, LLC, dated as of December 5, 1997, incorporated by reference to
Exhibit 10.2 to the Current Report on Form 8-K filed by Burnham Pacific
Properties, Inc. on December 16, 1997.
6. Stock Purchase Agreement, dated as of December 5, 1997, by and
among Burnham Pacific Properties, Inc., Burnham Pacific Operating Partnership,
L.P., Westbrook Burnham Holdings, L.L.C. and Westbrook Burnham Co-Holdings,
L.L.C., incorporated by reference to Exhibit 4.1 to the Current Report on Form
8-K filed by Burnham Pacific Properties, Inc. on January 14, 1998.
<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.
September 12, 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 2
THIRTEENTH AMENDMENT
TO AGREEMENT OF LIMITED PARTNERSHIP
OF
BURNHAM PACIFIC OPERATING PARTNERSHIP, L.P.
THIRTEENTH AMENDMENT
TO AGREEMENT OF LIMITED PARTNERSHIP
OF
BURNHAM PACIFIC OPERATING PARTNERSHIP, L.P.
THIS THIRTEENTH AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP, dated
as of August __, 2000 (the "Thirteenth Amendment"), is entered into by and among
BURNHAM PACIFIC PROPERTIES, INC., a Maryland corporation, as the General
Partner, and the current and former holders of the Series 1997-A Preferred Units
(the "Preferred Units") of Burnham Pacific Operating Partnership L.P., a
Delaware limited partnership (the "Operating Partnership").
RECITALS
A. On December 31, 1997, 2,000,000 Preferred Units were issued
pursuant to the First Amendment dated December 31, 1997 to the Agreement of
Limited Partnership of the Operating Partnership dated as of November 14, 1997
(the "Partnership Agreement").
B. Since the date of the initial issuance, one of the existing holders
of Preferred Units, Mark Cassidy, transferred all his Preferred Units to his
former spouse, Sherri F. Cassidy, which transfer has not been recorded on the
books and records of the Operating Partnership, which the Operating Partnership
and such transferee now desire to record.
C. Concurrently herewith, each of Blackacre SMC Master Holdings, LLC
("Blackacre"), Westbrook Burnham Holdings, L.L.C. ("Holdings") and Westbrook
Burnham Co-Holdings, L.L.C. ("Co-Holdings") is electing its right (each, a
"Redemption Right") to cause the Operating Partnership to redeem its Preferred
Units. Blackacre is electing its right to cause the Operating Partnership to
redeem 1,599,990 Preferred Units and the General Partner is assuming the
obligations of the Operating Partnership arising from the election of such
Redemption Right and is issuing to Blackacre in exchange therefor 1,599,990
shares of Series 1997-A Convertible Preferred Stock (the "1997 Series A Stock")
in the General Partner which, in turn, will be exchanged for new Series 2000-C
Convertible Preferred Stock in the General Partner (the "2000 Series C Stock").
Holdings is electing its right to cause the Operating Partnership to redeem 9
Preferred Units and the General Partner is assuming the obligations of the
Operating Partnership arising from the election of such Redemption Right and is
<PAGE>
issuing to Holdings in exchange therefor 9 shares of 1997 Series A Stock in the
General Partner which, in turn, will be exchanged for new 2000 Series C Stock.
Co-Holdings is electing its right to cause the Operating Partnership to redeem 1
Preferred Unit and the General Partner is assuming the obligations of the
Operating Partnership arising from the election of such Redemption Right and is
issuing to Co-Holdings in exchange therefor 1 share of 1997 Series A Stock in
the General Partner which, in turn, will be exchanged for new 2000 Series C
Stock.
D. The current holders of the Preferred Units have agreed with the
General Partner and the Operating Partnership to amend the rights, privileges
and preferences of the Preferred Units so that they have comparable economic
terms to the 2000 Series C Stock.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Thirteenth
Amendment hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined in this Thirteenth
Amendment, the capitalized terms used in this Thirteenth Amendment shall have
the meanings ascribed to such terms in the Partnership Agreement.
Section 2. Amendment of Operating Partnership Agreement. The
Partnership Agreement is hereby amended to provide for the following:
(a) Set forth on Exhibit A is the name of each holder of Preferred
Units and the number of Preferred Units duly issued to such holder
after taking into account the transfers and redemptions referred to in
the RECITALS.
(b) The respective rights, privileges and preferences of the Preferred
Units are hereby amended and restated to read in their entirety as set
forth on Exhibit B hereto.
(c) The Operating Partnership hereby is reconstituted and the business
of the Operating Partnership hereby is continued pursuant to the
Partnership Agreement, as the same has been amended by this Thirteenth
Amendment. Except as amended by this Thirteenth Amendment, the
Partnership Agreement shall continue in full force and effect. In the
event of a conflict between the provisions of this Thirteenth
Amendment and the provisions of the Partnership Agreement, the
provisions of this Thirteenth Amendment shall control.
(d) Interpretation. This Thirteenth Amendment shall be deemed to be a
part of the Partnership Agreement for all purposes, including, without
limitation, the general provisions of Article 15 (accordingly,
counterpart execution of this Thirteenth Amendment is permitted).
Section 3. Effect of Redemption. The Operating Partnership and
Blackacre hereby agree that upon the issuance of 1,599,990 shares of 1997 Series
A Stock to Blackacre, in satisfaction of the election by Blackacre of its
Redemption Right, the 1,599,990 Preferred Units previously owned by Blackacre
shall be automatically deemed canceled and Blackacre shall have no further
<PAGE>
rights or obligations to any other party under the Partnership Agreement
relating to the Preferred Units. The Operating Partnership and Holdings hereby
agree that upon the issuance of 9 shares of 1997 Series A Stock to Holdings, in
satisfaction of the election by Holdings of its Redemption Right, the 9
Preferred Units previously owned by Holdings shall be automatically deemed
canceled and Holdings shall have no further rights or obligations to any other
party under the Partnership Agreement relating to the Preferred Units. The
Operating Partnership and Co-Holdings hereby agree that upon the issuance of 1
share of 1997 Series A Stock to Co-Holdings, in satisfaction of the election by
Co-Holdings of its Redemption Right, the 1 Preferred Unit previously owned by
Holdings shall be automatically deemed canceled and Co-Holdings shall have no
further rights or obligations to any other party under the Partnership Agreement
relating to the Preferred Units.
IN WITNESS WHEREOF, the parties hereto have executed this Thirteenth
Amendment on the day and year first above written.
[SIGNATURE PAGES TO FOLLOW]
GENERAL PARTNER:
BURNHAM PACIFIC PROPERTIES, INC.
By: __________________________________
Name:
Title:
HOLDERS OF PREFERRED UNITS:
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: ________________________
Authorized Signatory
WESTBROOK BURNHAM
CO-HOLDINGS, L.L.C.
By: ________________________
Authorized Signatory
Mark Cassidy
EXISTING HOLDERS OF PREFERRED
MJL Associates, a California
Limited Partnership
By: MJL Investments, Inc., a
California corporation, as
General Partner
By:
Name:
Title:
Eugene S. Rosenfeld
Steven A. Berlinger
Jack L. Mahoney
Sherri F. Cassidy
SAB ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP
By: SAB Investments, Inc., a
California corporation, as
general partner
By:
Name:
Title:
<PAGE>
EXHIBITS:
A __ EXISTING PARTNERS
B __ RIGHTS OF PREFERRED UNITS AND COMMON UNITS
<PAGE>
EXHIBIT A
HOLDER OF SERIES 1997-A PREFERRED UNITS
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Unitholders Preferred Units
MJL Associates, A California Limited Partnership 142,745
SAB Associates, A California Limited Partnership 48,366
Eugene S. Rosenfeld 102,763
Steven A. Berlinger 47,581
Jack L. Mahoney 51,084
Sherri F. Cassidy 7,461
TOTAL 400,000
<PAGE>
EXHIBITS 3 AND 4
TO: Burnham Pacific Operating Partnership, L.P.
Burnham Pacific Properties, Inc.
110 West A Street
San Diego, California 92101
NOTICE OF REDEMPTION
Subject to the execution, delivery and performance by Burnham Pacific
Properties, Inc. (the "General Partner") of the Assumption of Redemption Right
attached hereto, the undersigned hereby (i) elects its right (the "Redemption
Right") to cause Burnham Pacific Operating Partnership, L.P. (the "Operating
Partnership") to redeem 1,599,990 Series 1997-A Preferred Units (the "Preferred
Units") of the Operating Partnership pursuant to Section 5(a) of Exhibit C to
the First Amendment to the Agreement of Limited Partnership of the Operating
Partnership, dated December 31, 1997, as amended (the "Partnership Agreement"),
and the Redemption Right referred to therein, (ii) surrenders such Preferred
Units and all rights, title and interest therein and (iii) directs that the Cash
Amount or 1,599,990 shares of Series 1997-A Preferred Stock (upon the General
Partner's assumption of the Redemption Right) be delivered to the address
specified below, and if Series 1997-A Preferred Stock of the General Partner are
to be delivered, such Series 1997-A Preferred Stock be registered or placed in
the name and at the address specified below. The undersigned hereby represents,
warrants, and certifies that the undersigned (a) has marketable and unencumbered
title to such Preferred Units, free and clear of any liens and the rights of or
interests of any other person or entity, (b) has the full right, power and
authority to redeem and surrender such Preferred Units as provided herein, (c)
has obtained the consent or approval of all persons or entities, if any, having
the right to consent to or approve such redemption and surrender and (d) is an
"accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act of 1933, as amended.
Capitalized terms used but not otherwise defined in this Notice of
Redemption shall have the meanings set forth in the Partnership Agreement.
Dated: August __, 2000 Name of Limited Partner:
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:
IF SHARES ARE TO BE
ISSUED, ISSUE TO:
Blackacre SMC
Master Holdings, LLC
450 Park Avenue
New York, New York
<PAGE>
ASSUMPTION OF REDEMPTION RIGHT
Pursuant to Section 5(a)(ii) of Exhibit C to the First Amendment to the
Agreement of Limited Partnership of Burnham Pacific Operating Partnership, L.P.,
dated December 31, 1997, as amended (the "Partnership Agreement"), the General
Partner hereby assumes (the "Assumption") the obligations of the Operating
Partnership arising from the election of the Redemption Right of Blackacre SMC
Master Holdings, LLC (the "Redeeming Holder"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Partnership
Agreement. In connection with the Assumption, the General Partner and the
Operating Partnership confirm to the Redeeming Holder the following:
1. Concurrently with the Assumption the General Partner shall issue to the
Redeeming Holder 1,599,990 fully paid and non-assessable shares of the General
Partner's Series 1997-A Convertible Preferred Stock ("Preferred Stock"). Such
shares of Preferred Stock shall be represented by a certificate.
2. Notwithstanding anything to the contrary set forth in the Partnership
Agreement, the Operating Partnership, the General Partner and the Redeeming
Holder hereby agree that the Specified Redemption Date in respect of the
Redeeming Holder's Notice of Redemption shall be the date of such Notice of
Redemption.
3. The Operating Partnership will pay any and all documentary stamp or
similar issue taxes payable in respect of the Preferred Stock issued to the
Redeeming Holder in connection with its Notice of Redemption.
4. The General Partner, the Operating Partnership and the Redeeming Holder
hereby irrevocably waive any and all conditions set forth in the Partnership
Agreement or any other agreement, contract or understanding among the Redeeming
Holder and either or both of the General Partner and the Operating Partnership
in connection with the Redeeming Holder's Notice of Redemption and the General
Partner's Assumption of the related Redemption Right.
5. The General Partner represents and warrants to the Redeeming Holder that
the Preferred Stock to be issued in connection with the foregoing Notice of
Redemption have been duly authorized, and, when issued in accordance with the
terms of the Partnership Agreement, the Notice of Redemption and the Assumption,
will be validly issued and fully paid or credited as paid, and non-assessable
and free and clear of liens, encumbrances, security interests or charges created
by the General Partner.
Dated: August __, 2000
Burnham Pacific Properties, Inc.
By:______________________________
Name:
Title:
Burnham Pacific Operating
Partnership, L.P.
By: Burnham Pacific Properties,
Inc., its general partner
By:_________________________
Name:
Title:
