<PAGE>
AGREEMENT FOR PURCHASE AND SALE
SEPTEMBER 18, 2000
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
ARTICLE PAGE
<S> <C> <C>
ARTICLE 1 BASIC DEFINITIONS...............................................................................1
ARTICLE 2 PURCHASE........................................................................................4
ARTICLE 3 CONDITIONS PRECEDENT...........................................................................10
ARTICLE 4 COVENANTS, WARRANTIES AND REPRESENTATIONS......................................................12
ARTICLE 5 DEPOSIT; DEFAULT...............................................................................19
ARTICLE 6 CLOSING........................................................................................20
ARTICLE 7 MISCELLANEOUS..................................................................................28
</TABLE>
<PAGE>
List of Exhibits
* Exhibit A- Properties
* Exhibit B -- Disclosure Materials List & Statement
* Exhibit C -- Rent Rolls and Security Deposits
* Exhibit D -- Transfer Documents
* Exhibit E Litigation
* Exhibit F -- INTENTIONALLY DELETED
* Exhibit G -- Closing Cost Customs
* Exhibit H-- INTENTIONALLY DELETED
* Exhibit I-- Excluded Claims
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE is made and entered into as of
September 18, 2000, by and among BPP/GOLDEN STATE ACQUISITIONS, L.L.C., a
Delaware limited liability company ("Seller"), and GMS REALTY, LLC, a Delaware
limited liability company ("Buyer"). This Agreement shall be effective on the
"Effective Date", which is the date on which the last person signing this
Agreement shall have signed this Agreement.
RECITALS
A. The Seller holds ownership of a portfolio of properties listed on
EXHIBIT A to this Agreement and defined below with greater specificity as the
"Properties."
B. Buyer desires to acquire and Seller desires to convey, assign and
transfer, subject to the terms and conditions contained in this Agreement, the
entirety of its right, title and interest in the Properties.
AGREEMENT
NOW, THEREFORE, Buyer and Seller do hereby agree as follows:
ARTICLE 1
BASIC DEFINITIONS
"Closing" shall mean the consummation of the transaction contemplated
hereunder, as evidenced by the delivery of all required funds and documents to
the Escrow Agent.
"Closing Date" shall mean the date which is thirty (30) days after the
Due Diligence Expiration Date, as the same may be extended, as set forth in this
Agreement.
"Contract Period" shall mean the period from the Effective Date through
and including the Closing Date (or any earlier termination of this Agreement).
"Contracts" shall mean all maintenance, service and other operating
contracts, equipment leases and other arrangements or agreements to which Seller
is a party affecting the ownership, repair, maintenance, management, leasing or
operation of the Properties.
"Disclosure Materials" shall mean those materials described in EXHIBIT
B, the Disclosure Materials List & Statement, to which Buyer shall be afforded
access and review rights pursuant to this Agreement.
"Disclosure Materials List & Statement" shall mean the statement set
forth as EXHIBIT B to this Agreement.
"Due Diligence Expiration Date" shall mean the date which is forty (40)
days after the Effective Date.
1
<PAGE>
"Hazardous Materials" means any chemical, compound, pollutant material,
substance or other matter that: (a) is defined as a hazardous substance,
hazardous material, hazardous waste or toxic substance under any Hazardous
Materials Law, (b) is controlled or governed by any Hazardous Materials Law, (c)
actually or potentially gives rise to any remediation, permitting, licensing,
reporting, notice or publication requirement on the part of any party hereto,
(d) actually or potentially gives rise to any liability, responsibility or duty
on the part of any party hereto with respect to any third person or governmental
agency, (c) is asbestos or an asbestos-containing material, or (d) is flammable
or explosive material, oil, petroleum product, urea formaldehyde, radioactive
material, or nuclear medicine material.
"Hazardous Materials Laws" means any and all federal, state or local
laws, ordinances, rules, decrees, orders, regulations or court decisions
(including the so-called "common law") relating to Hazardous Materials,
environmental conditions on, under or about the Property, soil and ground water
conditions or other similar substances or conditions, including without
limitation the Comprehensive Environmental Response Compensation and Liability
Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the
Federal Clean Air Act, the Federal Water Pollution Control Act, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation Act, The
Clean Water Act, the Toxic Substance Control Act, California Health and Public
Safety Code Section 25117, Sections 6680 through 6685 of Title 22 of the
California Administrative Code, Division 4, Chapter 30, any amendments to any of
the foregoing, and all rules and regulations promulgated under any of the
foregoing, and any similar federal, state or local laws, ordinances, rules,
decrees, orders or regulations.
"Improvements" shall mean, as to each of the properties listed on
EXHIBIT A, the right, title and interest of the Seller in ownership of such
property in any and all structures, buildings, facilities, parking areas or
other improvements situated on such property's Land and all related fixtures,
improvements, building systems and equipment (including, without limitation,
HVAC, security and life safety systems).
"Intangible Property" shall mean, as to each Real Property, the right,
title and interest of the Seller in ownership of such Real Property in: (a) any
and all permits, entitlements, filings, building plans, specifications and
working drawings, certificates of occupancy, operating permits, sign permits,
development rights and approvals, certificates, licenses, warranties and
guarantees, engineering, soils, pest control, survey, environmental, appraisal,
market and other reports relating to such Real Property and associated Personal
Property; (b) all trade names, service marks, tenant lists, advertising
materials and telephone exchange numbers identified with such Real Property; (c)
the Contracts and the Leases; (d) except as set forth on EXHIBIT I attached
hereto (the "Excluded Claims"), claims, awards, actions, remedial rights and
judgments, and escrow accounts relating to environmental remediation, to the
extent relating to such Real Property and associated Personal Property; (e) all
books, records, files and correspondence relating to such Real Property and
associated Personal Property; and (f) all other transferable intangible
property, miscellaneous rights, benefits or privileges of any kind or character
with respect to such Real Property and associated Personal Property, including,
without limitation, under any REAs, provided that the Intangible Property shall
not include any Seller's name or any right to the reference "BPP," "Burnham
Pacific," or "Burnham".
2
<PAGE>
"Land" shall mean, as to each of the properties listed on EXHIBIT A,
the land component of the property as described with precision in the Title
Policies.
"Leases" shall mean, as to each Real Property, all leases, concession
agreements, rental agreements or other agreements (including all amendments or
modifications thereto) which entitle any person other than Seller to the
occupancy or use of any portion of the Real Property.
"Lender" shall mean Nomura Asset Capital Corporation, a Delaware
corporation.
"Loan" shall mean collectively that certain loan in the original
principal amount of One Hundred Thirty Five Million Thirty Nine Thousand Nine
Hundred Fifty and 82/100 ($135,039, 950.82) and that certain interest rate
buy-up premium in the original amount of Fourteen Million Nine Hundred Sixty
Thousand Forty Nine and 34/100 Dollars ($14,960,049.34), from Lender to Seller,
as evidenced by the Loan Documents. "Loan Documents" shall mean the Note, that
certain Loan Agreement dated December 31, 1997 between Lender and Seller, that
certain letter agreement regarding the loan amount dated December 31, 1997,
those certain Fee and Leasehold Deeds of Trust, Assignments of Rents, Security
Agreements and Fixture Filings from Seller for the benefit of Lender, those
certain Assignments of Leases and Rents from Seller for the benefit of Lender
dated December 31, 1997 and such other loan documents securing the Note.
"Note" shall mean that certain Promissory Note dated December 31, 1997
made by Seller in favor of Lender in the original principal amount of One
Hundred Thirty Five Million Thirty Nine Thousand Nine Hundred Fifty and 82/100
($135,039,950.82).
"Permitted Exceptions" shall mean the various matters affecting title
to the Properties that are approved or deemed approved by Buyer pursuant to
Section 2.5 below.
"Personal Property" shall mean, as to each Real Property, all
furniture, furnishings, trade fixtures and other tangible personal property
directly or indirectly owned by the Seller in ownership of such Real Property
that is located at and used exclusively in connection with the operation of any
Real Property.
"Property" shall mean, with respect to each of the properties described
on EXHIBIT A, the Real Property, the Personal Property and the Intangible
Property. Collectively, such properties shall be referred to as the
"Properties."
"Purchase Price" shall mean Three Hundred Five Million and 00/100
Dollars ($305,000,000.00), payable as set forth in Section 2.2 below.
"Real Property" shall mean, as to each property listed on EXHIBIT A,
the Land, the Improvements and all of Seller's right, title and interest in and
to the rights, privileges, easements, and appurtenances to the Land or the
Improvements, including, without limitation, any air, development, water,
hydrocarbon or mineral rights held by Seller, all licenses, easements,
rights-of-way, claims, rights or benefits, covenants, conditions and servitude
and other appurtenances used or connected with the beneficial use or enjoyment
of the Land or the
3
<PAGE>
Improvements and all rights or interests relating to any roads, alleys or
parking areas adjacent to or servicing the Land or the Improvements.
"REAs" shall have the meaning set forth in Section 2.6(b) below.
"Rent Rolls" shall refer to the information schedules attached as
EXHIBIT C-1 to this Agreement pertaining to the Leases.
"Title Company" shall mean Chicago Title Company; Attn: Chris Ghio
(Telephone: (619) 899-5322.
"Title Policies" shall refer to Seller's existing title insurance
policies with respect to the Properties, complete copies of which have been or
will be made available by Seller to Buyer.
ARTICLE 2
PURCHASE
SECTION 2.1 PURCHASE AND TRANSFER. Seller agrees to sell the Properties
to Buyer and Buyer agrees to purchase or cause to be purchased by an affiliate
of Buyer the Properties upon all of the terms, covenants and conditions set
forth in this Agreement.
SECTION 2.2 TERMS OF PAYMENT. Buyer shall pay the Purchase Price to
Seller as follows:
(a) On or before September 22, 2000, and as a condition
precedent to the effectiveness of this Agreement, Buyer shall deliver to Title
Company a cashier's check in the amount of Five Million and 00/100 Dollars
($5,000,000.00) (the "Initial Deposit"), as an earnest money deposit on account
of the Purchase Price. On the Due Diligence Expiration Date should Buyer elect
to proceed with the transaction contemplated under this Agreement, Buyer shall
deliver to Title Company an additional deposit ("Additional Deposit") in the
amount of Five Million and 00/100 Dollars ($5,000,000.00) . As used in this
Agreement, the term "Deposit" means the Initial Deposit, the Additional Deposit
and all amounts which, at the time in question, shall have been deposited into
escrow by Buyer.
(b) The balance of the Purchase Price shall be payable as
follows: (i) assumption by Buyer of the Loan, and (ii) the remainder (namely,
the Purchase Price minus the Deposit and all unpaid amounts under the Note and
the other Loan Documents as of the Closing; provided, however, that the unpaid
amounts under the Note and other Loan Documents shall be deemed to be One
Hundred Thirty Eight Million and 00/100 Dollars ($138,000,000.00)), in cash, at
Closing. For all purposes of this Agreement, the amount assumed by Buyer at
Closing under the Note shall be deemed to be One Hundred Thirty Eight Million
and 00/100 Dollars ($138,000,000.00).
4
<PAGE>
SECTION 2.3 DEPOSIT.
(a) Title Company shall deposit the Deposit in an
interest-bearing account, and the term "Deposit" as used in this Agreement shall
include any interest earned thereon. The Deposit shall be invested by Escrow
Agent in an interest-bearing account or accounts as directed by Buyer.
SECTION 2.4 BUYER'S REVIEW AND INSPECTION AND SELLER'S DISCLAIMER.
(a) Within five (5) days following the Effective Date, Seller
shall have delivered copies, or otherwise made available to Buyer for Buyer's
review at Seller's offices in San Diego, California, and Buyer shall have
reviewed and approved, on or before the Due Diligence Expiration Date, all of
the Disclosure Materials. Buyer shall assume fully the obligation to completely
and adequately review and consider any or all of such materials. The Disclosure
Materials shall be made continuously available to Buyer at such location
throughout the Contract Period.
(b) Following the execution and delivery of this Agreement and
until the Due Diligence Expiration Date, and subject to the restrictions,
limitations and other provisions of this Section 2.4, Seller shall allow Buyer
(and its authorized representatives and agents) reasonable access to the
Properties, during business hours, for the purpose of making examinations,
tests, analyses, investigations, surveys, inquiries and other inspections in
connection with Buyer's efforts to bring about satisfaction of the condition
precedent set forth in Section 3.1(a)(ii). Buyer's exercise of such right of
access shall be subject to the following limitations: (i) any entry onto any
Property by Buyer, its agents or representatives, shall be during normal
business hours, following not less than 24 hours' prior notice to Seller (which
notice may be by telephone, facsimile or email) and, at Seller's discretion,
accompanied by a representative of Seller; (ii) Buyer shall not conduct any
invasive or destructive physical diligence or inspections of the Properties
including, without limitation, drilling, test borings or other disturbance of
any Property for review of soils, compaction, environmental, structural or other
conditions, without Seller's prior written consent (which may be withheld in
Seller's sole and absolute discretion) provided that Seller shall respond in
writing to Buyer's request for permission to conduct any such diligence or
inspections within two (2) business days after Buyer's request; (iii) any
discussions or interviews with any third party, any partner of Seller, any
tenants of a Property or their respective personnel, at Seller's election, shall
be conducted in the presence of Seller or its representatives; (iv) any
discussions or interviews with employees at any Property shall be limited to
designated senior employees and, at Seller's election, shall be conducted in the
presence of Seller or its representatives; (v) Buyer not disturb the use or
occupancy or the conduct of business at any Property; (vi) prior to any entry
upon the Property by Buyer or any of its agents, representatives, Buyer shall
deliver to Seller a certificate of insurance evidencing that Buyer carries a
liability insurance policy in an amount not less than $5,000,000, which
liability insurance policy names Seller as an additional insured; and (vii)
Buyer shall indemnify, defend and hold Seller harmless from all loss, cost, and
expense relating to personal injury or property damage resulting from any entry
by Buyer, its agents or representatives; provided however that Buyer's indemnity
shall not include liability for the mere discovery of any condition already
5
<PAGE>
existing on the Properties and not the result of Buyer's activities. Following
the Due Diligence Expiration Date and for the remainder of the Contract Period,
but subject to the provisions of this Section 2.4, Seller shall permit Buyer,
and Buyer's representatives, continued access to the Properties, and to tenants,
parties to REAs, parties to options and rights of first refusal, and parties to
management agreements and Contracts, for Buyer's further investigation of the
Properties; provided, however that such continued access and investigation shall
have no effect on the waiver or satisfaction of Buyer's conditions as of the Due
Diligence Expiration Date.
(c) Buyer acknowledges that Seller will have afforded Buyer
and its agents and representatives an opportunity to conduct such appraisals and
investigations of the Properties including, without limitation, investigations
with respect to the physical, environmental, economic and legal condition of the
Properties, prior to the Due Diligence Expiration Date and, subject to the
express terms of this Agreement, the Buyer shall have completed all such
investigations to its satisfaction. Except in the case of fraud by Seller, Buyer
assumes the full risk that Buyer has failed completely and adequately to cause
such inspections and consider any and all results of such inspections. Buyer
acknowledges (i) that Buyer has entered into this Agreement with the intention
of making and relying upon its own investigation of the physical, environmental,
economic and legal condition of the Properties, (ii) that, other than those
specifically set forth in Article 4 below or in any document to be delivered
pursuant to Section 6.1, Seller is not making and have not at any time made any
warranty or representation of any kind, expressed or implied, with respect to
the Properties, including, without limitation, warranties or representations as
to habitability, merchantability, fitness for a particular purpose, title (other
than Seller's limited warranty of title set forth in the Deeds), zoning, tax
consequences, latent or patent physical or environmental condition, utilities,
operating history or projections, valuation, projections, compliance with law or
the truth, accuracy or completeness of the Disclosure Materials, (iii) that
other than those specifically set forth in Article 4 below or in any document to
be delivered pursuant to Section 6.1, Buyer is not relying upon and is not
entitled to rely upon any representations and warranties made by Seller or
anyone acting or claiming to act on Seller's behalf, (iv) that the Disclosure
Materials include soils, environmental and/or physical reports prepared for
Seller by third parties as to which Buyer has no right of reliance (provided,
however, that nothing herein shall be deemed to limit Buyer's right to seek to
obtain from the third parties which prepared such reports the right to rely on
such reports at no cost to Seller or to conduct Buyer's own independent
evaluation of the Properties with respect to the matters covered in such
reports), and (v) that the Disclosure Materials may include economic projections
which reflect assumptions as to future market status and future Property income
and expense with respect to the Properties which are inherently uncertain and as
to which Seller has not made any guaranty or representation whatsoever. With
respect to the soils, environmental and/or physical reports prepared for Seller
by third parties, Buyer acknowledges that Seller has made no representation
whatsoever as to accuracy, completeness or adequacy thereof. Buyer further
acknowledges that it has not received from Seller any accounting, tax, legal,
architectural, engineering, property management or other advice with respect to
this transaction and is relying solely upon the advice of its own accounting,
tax, legal, architectural, engineering, property management and other advisors.
Except as provided in the representations and warranties of Seller set forth in
Article 4 below and except as otherwise expressly set forth in this Agreement or
in any document to be delivered pursuant to Section 6.1, based upon Buyer's
familiarity with
6
<PAGE>
and due diligence to be conducted by Buyer relating to the
Properties and pertinent knowledge as to the markets in which the Properties are
situated and in direct consideration of Seller's decision to sell the Properties
to Buyer for the Purchase Price, and not to pursue available disposition
alternatives, Buyer shall purchase the Properties in an "as is, where is and
with all faults" condition on the Closing Date and (except in the case of fraud
by Seller ) assumes fully the risk that adverse latent or patent physical,
environmental, economic or legal conditions may not have been revealed by its
investigations. Seller and Buyer acknowledge that the compensation to be paid to
Seller for the Properties has taken into account that the Properties are being
sold subject to the provisions of this Section 2.4. Seller and Buyer agree that
the provisions of this Section 2.4 shall survive Closing.
(d) Consistent with the foregoing and subject solely to the
express covenants and indemnities set forth in this Agreement and the
representations set forth in Section 4.1 or in any document to be delivered
pursuant to Section 6.1 below (as such covenants, indemnities and
representations are limited pursuant to Section 4.4 hereof) and except for
rights, claims, demands and liabilities arising out of or based upon any fraud
by any of the Releasees (as defined below), effective as of the Closing Date,
Buyer, for itself and its agents, affiliates, successors and assigns, hereby
releases and forever discharges Seller, and its members and beneficial owners
and Burnham Pacific Properties, Inc., a Maryland corporation ("BPPI"), and its
shareholders, officers and directors (collectively, the "Releasees") from any
and all rights, claims and demands at law or in equity, whether known or unknown
at the time of this agreement, which Buyer has or may have in the future,
arising out of the physical, environmental, economic or legal condition of the
Properties, including, without limitation, all claims in tort or contract and
any claim for indemnification or contribution arising under the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601,
et. seq.) or any similar federal, state or local statute, rule or ordinance
relating to liability of property owners for environmental matters. Without
limiting the foregoing, Buyer, upon Closing, shall be deemed to have waived,
relinquished and released Seller and all other Releasees from and against any
and all matters arising out of latent or patent defects or physical conditions,
violations of applicable laws and any and all other acts, omissions, events,
circumstances or matters affecting the Properties, except for breach of the
express covenants and indemnities set forth in this Agreement and the
representations and warranties set forth in Section 4.1 or in any document to be
delivered pursuant to Section 6.1 (as such covenants, indemnities and
representations are limited pursuant to Section 4.4 hereof) and except for
rights, claims, demands and liabilities arising out of or based upon any fraud
by any of the Releasees. For the foregoing purposes, Buyer hereby specifically
waives the provisions of Section 1542 of the California Civil Code and any
similar law of any other state, territory or jurisdiction. Section 1542
provides:
A general release does not extend to claims 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.
7
<PAGE>
Buyer hereby specifically acknowledges that Buyer 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.
---------------
Buyer
(e) Subject to the express covenants and indemnities set forth
in this Agreement and the representations of Seller set forth in Section 4.1 or
in any document to be delivered pursuant to Section 6.1 (as such covenants,
indemnities and representations are limited pursuant to Section 4.4 hereof),
Buyer shall indemnify, defend, protect and hold Seller harmless from and against
any and all claims, actions, causes of action, demands, liabilities, damages,
costs and expenses (including attorneys' fees), whether direct or indirect,
known or unknown, foreseeable or unforeseeable, which may be asserted against or
suffered by Seller at any time after the Closing due to acts or omissions
occurring and first arising after Closing, on account of or in any way arising
out of or connected with the Property, including: (i) the physical condition,
nature or quality of the Property (including the soils and groundwater on and
under the Real Property); (ii) the presence or release in, under, on or about
the Property (including the soils and groundwater on and under the Real
Property) of any Hazardous Materials; and (iii) the ownership, management or
operation of the Property, including any claim or demand by any tenant for the
refund or return of any security deposit or other deposit. At the Closing, upon
the request of Seller, Buyer shall deliver to Seller a certificate reaffirming
the foregoing..
SECTION 2.5 TITLE EXCEPTIONS.
(a) Title to the Real Property shall be conveyed from Seller
to Buyer by grant deed (the "Deed"), subject to: (i) liens to secure payment of
real estate taxes and assessments not delinquent; (ii) applicable zoning and use
laws, ordinances, rules and regulations of any municipality, township, county,
state or other governmental agency or authority; (iii) all matters that would be
disclosed by a physical inspection or survey of the Real Property or that are
actually known to Buyer; (iv) the Loan Documents; (v) any exceptions or matters
created by Buyer, its agents, employees or representatives; (vi) all Leases,
(vii) Contracts accepted by Buyer pursuant hereto; and (viii) such other
exceptions as Buyer may approve in writing pursuant to Section 2.5(b). The
foregoing exceptions to title are referred to as the "Permitted Exceptions."
(b) Within five (5) days after the Effective Date, Seller
shall cause the Title Company to issue preliminary title reports for the Real
Property. On or before the Due Diligence Expiration Date, Buyer shall notify
Seller of any exceptions to title for such report which are objectionable to
Buyer or setting forth such changes or endorsements required to satisfy Buyer's
objections ("Buyer's Objection Notice"). If Seller does not intend to effect
such changes or endorsements, Seller shall advise Buyer in writing within five
(5) days after receipt of Buyer's Objection Notice (the "Response Notice"). If
Seller timely delivers a Response Notice to Buyer, then at Buyer's sole
election, to be made within five (5) days after receipt of the Response Notice,
either (i) this Agreement shall automatically terminate, or (ii) Buyer shall
agree to purchase the Property subject to the matters described in the Response
Notice. On or before the Closing, Seller shall eliminate any deeds of trust,
mortgages, judgment liens, mechanics' liens,
8
<PAGE>
and materialmen's liens encumbering the Properties, except the lien securing the
Loan, monetary liens not arising from the acts or omissions of Seller or any of
its employees, agents, contractors, or affiliates, or mechanic' liens or
material liens pertaining to work in progress as of the Closing, the completion
of which Buyer has agreed to undertake. If Seller does not remove or provide to
the satisfaction of Buyer for removal of the objectionable exceptions to title
(excluding the items set forth in any Response Notice) before Closing, Buyer
shall have the right (i) to terminate this Agreement and receive a refund of the
Deposit, or (ii) to proceed with consummation of this transaction
notwithstanding such objectionable items.
(c) Seller shall have no obligation to execute any affidavits
or indemnifications in connection with the issuance of Buyer's title insurance
excepting only the such customary affidavits as to authority, the rights of
tenants in occupancy, the status of mechanics' liens and other affidavits or
indemnifications reasonably necessary to address matters of title which Seller
has agreed to or is required to remove or cure pursuant to this Section 2.5.
SECTION 2.6 ESTOPPELS
(a) As of the Due Diligence Expiration Date, Buyer shall have
received and reasonably approved estoppel certificates ("Estoppels") from
tenants occupying the Properties and from the ground lessor of the Property
commonly known as Discovery Plaza. Seller shall use reasonable efforts to obtain
Estoppels in a reasonable form prepared by Buyer. Seller will prepare the actual
Estoppels to be presented to each tenant and the ground lessor of Discovery
Plaza once the general form for each type of Estoppel is agreed upon by Seller
and Buyer. For purposes of this Section 2.6(a), the obligation of Seller to use
"reasonable efforts" to obtain the Estoppels shall not include any obligation to
agree to an adverse modification of the terms of such lease for which the
Estoppel is sought or to incur additional obligations not contemplated by such
lease to such other parties unless Buyer agrees to such modification or
obligation at Closing. Seller shall provide to Buyer all Estoppels received by
Seller and all other responses to Seller's request for the Estoppels. Buyer
shall be entitled to object to any Estoppel if such Estoppel is not consistent
with any of the Disclosure Materials or with the representations and warranties
of Seller set forth herein.
(b) As of the Due Diligence Expiration Date, Buyer shall have
received estoppel certificates ("REA Estoppels") from all parties (other than
Seller) to any declaration of covenants, conditions and restrictions and/or
reciprocal easement agreements affecting any of the Properties ("REAs"). Seller
shall use reasonable efforts to obtain each such REA Estoppel in a reasonable
form prepared by Buyer after review of the applicable documents, and addressing,
among other things, the status of payment of common area expenses, the existence
or nonexistence of defaults or unperformed obligations, the status of any
amendments or modifications to such agreement. . For purposes of this Section
2.6(b), the obligation of Seller to use "reasonable efforts" to obtain the REA
Estoppels shall not include any obligation to agree to an adverse modification
of the terms of such REA for which the REA Estoppel is sought or to incur
additional obligations not contemplated by such REA to such other parties unless
Buyer agrees to such modification or obligation at Closing.
9
<PAGE>
ARTICLE 3
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS.
(a) Notwithstanding anything in this Agreement to the
contrary, Buyer's obligation to purchase the Properties shall be subject to and
contingent upon the satisfaction or waiver of the following conditions precedent
with respect to each Property:
(i) The willingness, upon the sole condition of the
payment of any regularly scheduled premium, of the
Title Company to issue an ALTA owner's policy of
title insurance with respect to each Property (or
such other form(s) as may be reasonably satisfactory
to Buyer), insuring Buyer (or Buyer's permitted
assignee or nominee) that title to the applicable
Real Property is vested of record in Buyer (or
Buyer's permitted assignee or nominee) on the Closing
Date subject only to the printed conditions and
exceptions of such policies (but deleting (by
endorsement or otherwise), where permitted under
applicable laws or regulations and at Buyer's
expense, any co-insurance, creditors rights and
so-called "standard" exceptions) and the Permitted
Exceptions applicable to such Real Property and
containing CLTA endorsements 100, 100.20, 101.4,
103.3, 103.1A, 103.7, 116, 116.1, 116.4, 116.7, and
123.2 (the "Buyer's Title Policies");
(ii) On or before the Due Diligence Expiration Date, Buyer
shall have reviewed and approved all Disclosure
Materials provided to Buyer by Seller pursuant to
Section 2.4(a), shall have completed and approved its
inspection of the Properties pursuant to Section
2.4(b), shall have reviewed and approved the Loan
Documents and shall have reviewed and approved the
economic feasibility of the Properties; and
(ii) Seller's performance or tender of performance of all
material obligations under this Agreement with
respect to the applicable Property, including
Seller's covenants under Section 4.2 with respect to
such Property.
(b) Notwithstanding anything in this Agreement to the contrary,
Seller's obligation to sell the Properties shall be subject to and contingent
upon the satisfaction or waiver of the following conditions precedent:
(i) Buyer's performance or tender of performance of all
material obligations under this Agreement;
10
<PAGE>
(ii) Within forty five (45) days after the Effective Date,
Seller and Buyer shall have obtained the written
approval of Buyer's purchase of the Properties, and
the assumption by Buyer (or Buyer's affiliated
designee) of the Note and the Loan Documents, from
the Lender, and the release of Seller and its
affiliates from all obligations under the Note and
Loan Documents, upon terms reasonably acceptable to
Seller and Buyer;
(iii) On or before the Closing Date, this Agreement and the
transaction contemplated herein shall have been
approved by the board of directors and by the
requisite vote of the shareholders of BPPI; provided,
however, that if the meeting of the shareholders of
BPPI currently scheduled for October 18, 2000 is
delayed in connection with the review of BPPI's proxy
statement ("BPPI's Proxy Statement") to be filed with
the Securities and Exchange Commission under the
Securities Exchange Act of 1934, Seller shall have
the right to extend the Closing Date to a date which
is ten (10) days after the shareholders' meeting as
it may be rescheduled from time to time but in no
event later than January 10, 2001;
(iv) On or before Closing Date, this Agreement and the
transaction contemplated herein shall have been
approved by the holders of operating partnership
units in the Seller ("OP Unit Holders"); provided
however that if Seller after good faith efforts is
not able to obtain the approval of the OP Unit
Holders on or before the Closing Date, Seller shall
have the right to extend the Closing to January 2,
2001; and
(v) On or before Closing Date, the consent of the ground
lessor of the Property commonly known as Discovery
Plaza shall have been obtained (to the extent
required under the terms of the ground lease relating
to such Property).
SECTION 3.2 FAILURE OR WAIVER OF CONDITIONS PRECEDENT.
(a) If any of the conditions set forth in Section 3.1(a) is not
fulfilled or waived by Buyer, Buyer may, by written notice to Seller, terminate
this Agreement. If any of the conditions set forth in Section 3.1(b) is not
fulfilled or waived by Seller, Seller may, by written notice to Buyer, terminate
this Agreement. Either party may, at its election, at any time or times on or
before the date specified for the satisfaction of the condition, waive in
writing the benefit of any of the conditions set forth in Sections 3.1(a) and
3.1(b) above. In any event, Buyer's consent to the close of escrow with respect
to the Properties pursuant to this Agreement shall
11
<PAGE>
waive any remaining unfulfilled conditions for the benefit of Buyer with respect
to the Properties.
(b) Notwithstanding the foregoing, if Buyer desires to
terminate this Agreement based upon a failure of the condition set forth in
Sections 3.1(a)(i), (iii) or (iv) above, Seller shall have the right, but not
the obligation, for a period of 30 days within which to cure such failure. If
Seller has not cured such failure within such cure period then Buyer may elect
to terminate this Agreement.
SECTION 3.3 BREAKUP FEE.
If Seller fails to obtain the requisite vote of the
shareholders of BPPI as provided in Sections 3.1 (b)(iii) and Seller
consequently terminates this Agreement, then as compensation to Buyer for
entering into this Agreement and the other matters described below, Seller shall
pay to Buyer, by cashier's check or wire transfer within ten (10) business days
after the failure of such condition and consequent termination, the sum of Three
Million Dollars ($3,000,000) (the "Breakup Fee"). Seller acknowledges and agrees
that the Breakup Fee is fully earned by Buyer upon execution of this Agreement
(subject only to satisfaction of such conditions). Seller further acknowledges
and agrees that (i) Buyer would not enter into this Agreement absent Seller's
agreement to pay the Breakup Fee, and (ii) the Breakup Fee is intended to
compensate Buyer for, among other things, its time, effort and expenses incurred
in pursuing the transaction contemplated hereby and investigating the
Properties, its foregoing other opportunities to pursue other properties for
acquisition, and to compensate Buyer for the lost advantages that the
consummation of this transaction would provide to Buyer.
ARTICLE 4
COVENANTS, WARRANTIES AND REPRESENTATIONS
SECTION 4.1 SELLER'S WARRANTIES AND REPRESENTATIONS. Seller expresses
to Buyer the representations and warranties set forth below as of the date of
this Agreement and as of the Closing Date, provided that each of such
representations and warranties shall be deemed expressly qualified by any
information set forth on the Disclosure Materials List & Statement or contained
in the Disclosure Materials, and any information set forth on the Disclosure
Materials List & Statement or contained in the Disclosure Materials shall be
deemed an exception to each and all of Seller's representations and warranties
set forth herein. Seller hereby represents and warrants with respect to itself
as follows:
(a) The Seller is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and the Seller is
qualified to do business in the California. The Seller has full power and lawful
authority to enter into and carry out the terms and provisions of this Agreement
and to execute and deliver all documents which are contemplated by this
Agreement, and all actions of the Seller necessary to confer such power and
authority upon the persons executing this Agreement (and all documents which are
contemplated by this Agreement) on behalf of the Seller have been taken;
12
<PAGE>
(b) Except with respect to the third party consents expressly
described in or contemplated under this Agreement or expressly required under
any agreements included in Intangible Property, the Seller's execution and
delivery of this Agreement, the consummation of the transactions contemplated
hereby and the performance of the Seller's obligations under the instruments
required to be delivered by the Seller at the Closing, do not and will not
require the consent, approval or other authorization of, or registration,
declaration or filing with, (collectively, "Consents") any governmental
authority (excepting the recordation of Closing documents contemplated in this
Agreement and any filings required under applicable state or federal securities
or tax laws) or any other person or entity, except such Consents as will be
obtained on or before Closing or as to which the failure to obtain would not
have a material and adverse effect on Seller's performance of its obligations
under this Agreement, and do not and will not result in any material violation
of, or material default under, any term or provision of any agreement,
instrument, mortgage, loan agreement or similar document to which the Seller is
a party or by which the Seller is bound;
(c) Except as set forth in EXHIBIT E, there is no litigation,
investigation or proceeding pending or, to the best of the Seller's knowledge,
contemplated or threatened which would impair or adversely affect the Seller's
ability to perform its obligations under this Agreement;
(d) The Seller is not a "foreign person" as defined in
Internal Revenue Code 1445(f)(3);
(e) Except as set forth in the Disclosure Materials, as of the
date of this Agreement, Seller has no knowledge that, and has received no
written notice from any governmental authorities that, eminent domain
proceedings for the condemnation of any Property or any part of a Property are
pending;
(f) Except as set forth in EXHIBIT E, as of the date of this
Agreement, Seller has no knowledge of, and has received no written notice of,
any threatened or pending litigation against Seller other than routine matters
covered by Seller's insurance or other matters which would not materially and
adversely affect any Property;
(g) Except as set forth in the Disclosure Materials, as of the
date of this Agreement, Seller has received no written notice from any
governmental authority that the improvements constituting any Property are
presently in material violation of any applicable building codes where such
violation has not been cured in all material respects;
(h) Except as set forth in the Disclosure Materials, as of the
date of this Agreement, Seller has received no written notice from any
governmental authority that any Property is presently in material violation of
any applicable zoning, land use or other law, order, ordinance, rule or
regulation affecting the Property which violation has not been cured, that any
investigation has been commenced or is contemplated with respect to any such
possible failure of compliance and Seller has not received written notice from
any insurance company or Board of Fire Underwriters any written notice of any
defect or inadequacy in connection with a Property or its operation where such
defect or inadequacy has not been cured in all material respects;
13
<PAGE>
(i) Except as set forth in the Disclosure Materials, as of the
date of this Agreement, no Contracts involving payment in excess of $5,000 per
annum with respect to any Property will be binding upon Buyer after the Closing,
other than such Contracts that are cancelable by the owner of the Property
within 30 days after written notice from such owner without penalty or premium;
(j) As of the date of this Agreement, except as set forth in
the environmental reports included within the Disclosure Materials and any
reports or studies prepared by or for Buyer, Seller has received no written
notice of the presence or release of any Hazardous Materials presently
deposited, stored, or otherwise located on, under, in or about any Property
which require reporting or potentially require reporting to any governmental
authority, monitoring, clean up or remediation or are otherwise not in material
compliance with environmental laws, regulations and orders;
(k) The Rent Rolls constituting EXHIBIT C-1 to this Agreement
accurately identify as to each Lease as of September 15, 2000; the date of
occupancy, the date of the rent start, the expiration date of the current term
of the Lease; ; the current base rental payable under such Lease and future rent
escalations; the amount of additional rent (i.e., cost recovery) currently
billed to the tenant under the Lease; and the approximate rentable area of the
premises and the list of security deposits attached hereto as EXHIBIT C-2
accurately identify as to each Lease the amount of any security deposit held by
Seller. As of September 15, 2000, Seller had not received written notice of any
material default by Seller under any Leases, which default had not been cured in
all material respects, and Seller has not delivered any default notice to a
tenant under any Lease and, to Seller's knowledge and except as set forth in the
delinquency reports provided by Seller to Buyer, Seller was not aware of any
other material default by a tenant under a Lease, which defaults have not been
cured in all material respects; and
(l) With respect to the matters contained in the Disclosure
Materials List & Statement and the Disclosure Materials, to Seller's knowledge,
Seller has not willfully and intentionally or as a result of gross negligence
omitted to state any material facts required to be stated therein or willfully
and intentionally or as a result of gross negligence made any untrue statement
of a material fact, which would render the Disclosure Materials List & Statement
or the Disclosure Materials materially misleading.
Subject to the provisions of Section 4.4, Seller shall be liable for
the breach of any representation and warranty of Seller set forth in this
Section 4.1.
* * * * *
For the foregoing purposes, the terms "Seller's knowledge" or words of
similar effect shall mean the current actual, subjective knowledge of Allison
Lynch, Karen Polivy, Courtney Trujillo, Jeanne Wilson, Colleen Dolan, Pat
Toomey, Lisa Cortese (who are the asset managers of one or more of the
Properties), Scott Verges, Dan Platt, and James Gaube (collectively, the
"Knowledge Persons"), in each case without independent investigation or inquiry.
Seller represents and warrants to Buyer that these individuals are the
individuals employed by Seller that have primary management, or maintenance
responsibility for the
14
<PAGE>
Properties so that no individual likely to have material and specialized
knowledge as to the Properties has been omitted from this list. Such
individuals' knowledge shall not include information or material which may be in
the possession of Seller or the named individuals, but of which the named
individuals are not actually aware. None of the named individuals whose sole
knowledge is imputed to a Seller under this Section nor any party other than the
Seller affording a representation shall bear responsibility for any breach of
such representation.
SECTION 4.2 SELLER'S COVENANTS. Seller hereby covenants and agrees as
follows:
(a) During the Contract Period, Seller will exercise
reasonable and good faith efforts (i) to operate and maintain the Properties in
a manner consistent with current practices and (ii) to comply, where such
compliance is the obligation of Seller (and not of a tenant or other party) in
all material respects with all material laws and regulations applicable to the
Properties;
(b) During the Contract Period, Seller will not sell or
otherwise dispose of any significant items of Personal Property unless replaced
with an item of like value, quality and utility;
(c) Following the Due Diligence Expiration Date and until the
end of the Contract Period, Seller shall not enter into or modify any Contracts
relating to the operation or maintenance of a Property, except for (i) those
entered into in the ordinary course of business with parties which are not
affiliates of Seller and (A) which are cancelable upon not more than thirty (30)
days prior notice without penalty or premium or (B) which require payments to
the applicable vendor of $2,000 or less per year , or (ii) those otherwise
approved by Buyer, which approval shall not be unreasonably withheld and shall
be deemed given if Buyer should fail to approve or disapprove proposed Contract
matters in writing within three (3) business days following Seller's written
request (which shall include all material information necessary to allow Buyer
to make an informed decision). At Buyer's written request provided at least
three (3) business days prior to the Closing Date, Seller shall deliver notice
of termination on the Closing Date as to any and all Contracts that Buyer
desires to terminate, provided that such termination shall be effective
following any notice or waiting period for such termination described in the
Contract and that Seller shall not be required to bear any termination or
cancellation fee or charge that may be assessed under such Contract based upon
an early termination. Notwithstanding the foregoing, Seller shall terminate all
property management agreements and exclusive leasing agreements applicable to
the Properties as of the Closing Date, at Seller's expense;
(d) Following the Due Diligence Expiration Date and until the
end of the Contract Period, Seller will not execute or modify in any material
fashion any Leases or any ground lease, other than with Buyer's prior consent,
which shall be deemed given if Buyer (in the person of William W. Gerrity, the
President of Buyer, or Matthew L. Golden, a Vice President of Buyer) should fail
to approve or disapprove proposed lease matters in writing within five (5)
business days following Seller's written request (which shall include all
material information necessary to allow Buyer to make an informed decision).
Buyer shall exercise its rights of approval of leasing matters reasonably and in
good faith. Seller shall use reasonable efforts to continue to seek leases for
the Properties in a manner consistent with present practice;
15
<PAGE>
(e) During the Contract Period, Seller shall not voluntarily
create, consent to or acquiesce in the creation of liens or exceptions to title
without Buyer's prior written consent, provided that Buyer shall not
unreasonably withhold or delay consent to any proposed matters affecting title
necessary to maintain or enhance the value of the pertinent Property;
(f) During the Contract Period, Seller shall maintain its
currently effective policies of property insurance and rental loss insurance for
the Improvements;
(g) During the Contract Period, Seller shall use commercially
reasonable efforts (but at no material cost to Seller except as may otherwise be
expressly provided in this Agreement) to obtain all third party and governmental
approvals and consents necessary to consummate the transactions contemplated
hereby;
(h) During the Contract Period, Seller shall maintain its
books accounts and records in a manner consistent with past practice;
(i) During the Contract Period, Seller shall observe and
comply with the material terms and conditions of all Contracts, Leases, Property
licenses, and Property approvals;
(j) During the Contract Period, Seller shall not knowingly and
intentionally take any action which would cause the representations and
warranties contained in Section 4.1 (other than as permitted in this Agreement)
to cease to be true and correct in all material respects as of the Closing Date
as though then made and shall promptly notify Buyer of any event, circumstances
or discovery inconsistent therewith;
(k) During the Contract Period, Seller shall comply in all
material respects with the Leases and all existing easements, covenants,
conditions, restrictions and other encumbrances affecting any Property;
(l) During the Contract Period, Seller shall reasonably
cooperate with Buyer, but at no cost to Seller, to assist Buyer in obtaining
environmental insurance coverage for the Properties (provided, that in no event
shall Buyer have the right to perform any environmental testing in connection
with obtaining such insurance except as otherwise permitted hereunder);
(m) During the Contract Period, Seller shall use reasonable
efforts to provide Buyer with copies of any written notices received by Seller
during the Contract Period, which notices relate to matters described in Section
4.1; and
(n) During the Contract Period, Seller shall notify Buyer of
any litigation filed against Seller or concerning any of the Properties during
the Contract Period within a reasonable period of time after Seller is made
aware of such litigation and EXHIBIT E shall be revised to include such
litigation.
SECTION 4.3 Buyer's Warranties and Representations.
Buyer hereby represents and warrants to Seller that the
following are true as of the date of this Agreement:
16
<PAGE>
(a) Buyer is a duly formed and validly existing limited
liability company under the law of the state of its formation and is (or on the
Closing Date will be) in good standing under the laws of the states where each
Property is located and Buyer has the full right, authority and power to enter
into this Agreement, to consummate the transactions contemplated herein and to
perform its obligations hereunder and under those documents and instruments to
be executed by it at the Closing, and each of the individuals executing this
Agreement on behalf of Buyer is authorized to do so, and this Agreement
constitutes a valid and legally binding obligation of Buyer enforceable against
Buyer in accordance with its terms.
(b) Buyer's execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance of
Buyer's obligations under the instruments required to be delivered by Buyer at
the Closing, do not and will not result in any material violation of, or
material default under, any term or provision of any agreement, instrument,
mortgage, loan agreement or similar document to which Buyer is a party or by
which Buyer is bound.
(c) There is no litigation, investigation or proceeding
pending or, to the best knowledge of Buyer's President and Vice Presidents,
contemplated or threatened against Buyer which would impair or adversely affect
Buyer's ability to perform its obligations under this Agreement or any other
instrument or document related hereto.
SECTION 4.4 SURVIVAL/LIMITATIONS.
(a) Subject to subsection (b) below, the parties agree that
Seller's warranties and representations contained in Sections 4.1 of this
Agreement shall survive Buyer's purchase of the Properties and the Closing Date
for a period ending one year following the Closing Date (the "Limitation
Period"). Such termination as of the close of the Limitation Period shall apply
to known as well as unknown breaches of such warranties or representations.
Subject to subsection (b) below, Buyer's waiver and release set forth in Section
2.4 shall apply fully to liabilities under such representations and warranties
not set forth in a Claim Notice as described below. Buyer specifically
acknowledges that such termination of liability represents a material element of
the consideration to Seller.
(b) Any claim of Buyer based upon a breach of any
representation or warranty or covenant or a claim under any indemnity contained
in this Agreement or any representation, warranty, covenant or indemnity
contained in any other document or instrument delivered by Seller to Buyer at
Closing (collectively a "Breach") shall be expressed, if at all, in writing
setting forth in reasonable detail the basis and character of the claim (a
"Claim Notice"), and must be delivered to Seller prior to the expiration of the
applicable Limitation Period. Notwithstanding the foregoing, Buyer's right to
make and recover any claim pursuant to a Claim Notice shall be subject to the
following: (i) with respect to a Breach of Seller's representations and
warranties contained in this Agreement or a Breach under an indemnity contained
in the Assignment of Intangibles or the Assignment of Leases (as such terms are
defined in Section 6.1(a) below), Buyer shall not make any claim on account of
such Breach unless and until the aggregate measure of such claims with respect
to the Property exceeds $250,000, in which event Buyer's claims shall be limited
to an amount equal to the amount by which such aggregate claims exceed
17
<PAGE>
such $250,000 threshold, (ii) Seller's aggregate liability for claims arising
out of all Breaches (i.e., those described in clause (i) above as well as all
other Breaches) shall not, in the aggregate, exceed $5,000,000 exclusive of the
amounts of any insurance proceeds actually received by Seller which are to be
applied to Breaches, and (iii) Buyer shall have no right to deliver a Claim
Notice with respect to a Breach of a representation and warranty of Seller
contained in this Agreement to the extent that Buyer had knowledge of such
Breach as of the Closing Date. Notwithstanding anything to the contrary provided
in this Agreement, in no event shall Seller be liable to Buyer for any
consequential or punitive damages based upon any breach of this Agreement,
including breaches of representation or warranty. Subject to applicable
principles of fraudulent conveyance, in no event shall Buyer seek satisfaction
for any obligation from any shareholders, officers, directors, employees,
agents, legal representatives, successors or assigns of such trustees or
beneficiaries, nor shall any such person or entity have any personal liability
for any such obligations of Seller. Provided, however, that the limitations set
forth in this Section 4.6(b) shall not apply in the event of fraud.
(c) Seller shall have a period of 30 days within which to cure
a Breach for which a Claim Notice has been received, or, if such Breach cannot
reasonably be cured within 30 days, an additional reasonable time period of up
to an additional 60 days (for a total of 90 days), so long as such cure has been
commenced within such 30 days and is at all times diligently pursued. If the
Breach is not cured after actual written notice and within such cure period,
Buyer's sole remedy shall be an action at law for damages against Seller, which
must be commenced with respect to a Breach of a representation or warranty
contained in this Agreement or a Breach of a covenant contained in Section 4.2
hereof, if at all, within fifteen (15) months after the Closing Date. The
existence or pendency of such cure rights shall not delay the Closing Date. The
provisions of this Section 4.4 shall survive the Closing or any termination of
this Agreement.
SECTION 4.5 OPERATING RECORDS
Each party agrees to make available to the other party from time to
time, but not more frequently than quarterly, upon reasonable notice, for a
period of two years following the Closing Date, such party's operating records
for the Properties, to the extent such party has operating records, in order to
permit the requesting party to prepare such historical financial statements for
the Properties as such party requires to satisfy legal or contractual
obligations. The party making its operating records available shall have no
obligation to prepare any operating statements or incur any expense in
connection with the provisions of this Section. Seller shall not be obligated to
retain operating records or make such operating records available to Buyer to
the extent such records have been delivered to Buyer.
SECTION 4.6 SELLER'S EMPLOYEES.
During the Contract Period, Buyer shall have the right to discuss with
any officer, director, employee or agent of Seller or any of Seller's affiliates
the possibility of becoming an officer, director, employee or agent of Buyer or
an affiliate of Buyer prior to or after the Closing.
18
<PAGE>
ARTICLE 5
DEPOSIT; DEFAULT
SECTION 5.1 BUYER'S DEFAULT & DEPOSIT. Buyer shall deliver the Deposit
as required under Section 2.2. In the event that this transaction is consummated
as contemplated by this Agreement, then the entire amount of the Deposit,
together with any interest accrued thereon, shall be credited against the
Purchase Price. The entire amount of the Deposit (or the portion of the Deposit
allocable to Properties with respect to which Seller refuses to perform their
material Closing obligations), together with any interest accrued thereon, shall
be returned immediately to Buyer in the event that the transaction fails to
close due to termination of this Agreement pursuant to Section 5.2. BUYER
ACKNOWLEDGES THAT THE CLOSING OF THE SALE OF THE PROPERTIES TO BUYER, ON THE
TERMS AND CONDITIONS AND WITHIN THE TIME PERIOD SET FORTH IN THIS AGREEMENT, IS
MATERIAL TO SELLER. BUYER ALSO ACKNOWLEDGES THAT SUBSTANTIAL DAMAGES WILL BE
SUFFERED BY SELLER IF SUCH TRANSACTION IS NOT SO CONSUMMATED DUE TO BUYER'S
DEFAULT UNDER THIS AGREEMENT. BUYER FURTHER ACKNOWLEDGES THAT, AS OF THE DATE OF
THIS AGREEMENT, SELLER'S DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO
COMPUTE IN LIGHT OF THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL
REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL
TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF
THE PROPERTIES. IN LIGHT OF THE FOREGOING AND ALL OF THE OTHER FACTS AND
CIRCUMSTANCES SURROUNDING THIS TRANSACTION, AND FOLLOWING NEGOTIATIONS BETWEEN
THE PARTIES, BUYER AND SELLER AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS A
REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WOULD SUFFER BY REASON OF
BUYER'S DEFAULT HEREUNDER. ACCORDINGLY, BUYER AND SELLER HEREBY AGREE THAT, IN
THE EVENT OF SUCH DEFAULT BY BUYER UNDER THIS AGREEMENT, SELLER MAY TERMINATE
THIS AGREEMENT BY GIVING NOTICE TO BUYER AND TITLE COMPANY. IN THE EVENT OF SUCH
TERMINATION, SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES IN LIEU OF
ANY OTHER CLAIM SELLER MAY HAVE AT LAW OR IN EQUITY (INCLUDING, WITHOUT
LIMITATION, SPECIFIC PERFORMANCE) ARISING BY REASON OF BUYER'S DEFAULT. THE
PARTIES HAVE INITIALED THIS SECTION 5.1 TO ESTABLISH THEIR INTENT SO TO
LIQUIDATE DAMAGES.
Seller's Buyer's
Initials: _________________ Initials: ___________________
This Section 5.1 is intended only to liquidate and limit Seller's rights to
damages arising due to Buyer's failure to purchase the Properties and shall not
limit the indemnification or other obligations of Buyer pursuant to (A) any
other documents delivered pursuant to this Agreement or (B) Sections 2.4(b),
2.4(e), 7.2, and 7.8 of this Agreement.
19
<PAGE>
SECTION 5.2 SELLER'S DEFAULT. If (a) the conditions precedent set forth
in Section 3.1(b) shall have been satisfied or waived and (b) Seller shall
refuse to perform its material closing obligations under this Agreement (e.g.,
by refusing to convey the Properties to Buyer at Closing), then Buyer's sole and
exclusive remedy shall be either (i) to receive (a) a return of the Deposit in
the event Seller refuses to perform its material closing obligations with
respect to the Properties plus all accrued interest and (b) reimbursement of
Buyer's out-of-pocket expenses incurred from and after September 1, 2000 in
connection with this transaction in an amount not to exceed One Million Five
Hundred Thousand and 00/100 Dollars ($1,500,000.00) or (ii) to pursue an action
for specific performance, provided, that notwithstanding anything to the
contrary contained herein, Buyer's right to pursue an action for specific
performance is expressly conditioned on Buyer not being in default hereunder.
Nothing contained in this Section 5.2 is intended to limit Buyer's rights under
Sections 3.3, 7.2, and 7.8 of this Agreement.
ARTICLE 6
CLOSING
SECTION 6.1 ESCROW ARRANGEMENTS. Escrow for the purchase and sale
contemplated by this Agreement shall be opened by Buyer and Seller with Title
Company. At least one business day prior to the Closing Date, Seller and Buyer
shall each deliver escrow instructions to Title Company consistent with this
Article 6, and designating Title Company as the "Reporting Person" for the
transaction pursuant to Section 6045(e) of the Code. By signing below, Title
Company agrees to act as the "Reporting Person" for the transaction pursuant to
Section 6045(e) of the Code and to complete and file with the IRS Forms 1099-S
(and furnish Buyer and Seller with copies thereof) on or before the due date
therefor. In addition, the parties shall deposit in escrow, at least one
business day prior to the Closing Date (unless otherwise provided below in this
Section 6.1) the funds and documents described below:
(a) Seller shall deposit (or cause to be deposited):
(i) a duly executed and acknowledged deed
pertaining to the Real Property portion of
each of the Properties, each in the form
attached to this Agreement as EXHIBIT D-1
(collectively, the "Deeds");
(ii) a duly executed bill of sale pertaining to
the Personal Property portion of each of the
Properties, each in the form attached to
this Agreement as EXHIBIT D-2 (collectively,
the "Bills of Sale");
(iii) a duly executed counterpart assignment and
assumption pertaining to the Intangible
Property portion of each of the Properties,
each in the form attached to this Agreement
as EXHIBIT D-3 (collectively, the
"Assignments of Intangibles");
(iv) a duly executed counterpart assignment and
assumption pertaining to the Leases, each in
the form attached to this Agreement as
EXHIBIT D-4 (collectively, the "Assignments
of Leases");
20
<PAGE>
(v) a certificate from Seller certifying the
information required by any of the states in
which any of the Properties are located to
establish that the transaction contemplated
by this Agreement is exempt from the tax
withholding requirements of such states (the
"State Certificates");
(vi) a certificate from Seller certifying the
information required by 1445 of the Code to
establish, for the purposes of avoiding
Buyer's tax withholding obligations, that
Seller is not a "foreign person" as defined
in 1445(f)(3) of the Code (the "FIRPTA
Certificate");
(vii) a letter executed by Seller and, if
applicable, its management agent and the
Buyer, in form and substance satisfactory to
Buyer, addressed to all tenants of each
respective Property, notifying all such
tenants of the transfer of ownership of the
Property and directing payment of all rents
accruing after the Closing Date to be made
to Buyer or such other party as Buyer
directs (the "Tenant Notices");
(viii) to the extent not previously delivered to
Buyer and in Buyer's possession or under its
control, originals of any of the Contracts,
Leases, licenses, approvals, plans,
specifications, warranties, other Intangible
Property and other books and records
relating to the ownership and operation of
the Property (or if the original is not in
the Seller's possession or control, copies
thereof to the extent in Seller's possession
or control);
(ix) an updated Rent Roll for each Property in
the same format as was used for the Rent
Rolls attached hereto as EXHIBIT C-1 or in
such other format as is reasonably
acceptable to Buyer dated no later than five
(5) days prior to Closing;
(x) subject to the provisions of Section 2.5,
such affidavits as may be reasonably and
customarily required by the Title Company to
issue the Buyer's Title Policies in the form
required hereby (including, without
limitation, without exception for
parties-in-possession (other than tenants
under the Leases) or mechanics' or
materialmen's liens which are to be
satisfied by Seller pursuant to Section 2.5)
together with such other documents
reasonably required by the Title Company for
Seller to comply with the obligations under
Section 2.5;
(xi) evidence reasonably satisfactory to the
Title Company as to the legal existence and
authority of the Seller and the authority
and incumbency of the persons signing
documents on behalf of the Seller;
21
<PAGE>
(xii) duly executed documentation required by the
Lender and acceptable to Seller evidencing
the assignment and assumption by the Buyer
of the Note and other Loan Documents and the
release of Seller and its affiliates from
all obligations under the Note and Loan
Documents (the "Loan Assignment and Release
Documents"); and
(xiii) such other documents and instruments as may
be required by any other provision of this
Agreement or as may reasonably be required
by Title Company or otherwise to carry out
the terms and intent of this Agreement.
In addition, Seller shall deliver to Buyer on the Closing Date, outside of
escrow, to the extent in Seller's possession or control, the originals of all
Leases, Contracts and tenant files and all keys to the Properties.
(b) Buyer shall deposit:
(i) on the Closing Date, immediately available
funds sufficient to pay the balance of the
Consideration, plus sufficient additional
cash to pay Buyer's share of all escrow
costs and closing expenses;
(ii) a duly executed counterpart for each of the
Assignments of Intangibles, the Loan
Assignment and Release Documents,
Assignments of Leases (and Tenant Notices
where required);
(iii) a certificate duly executed by Buyer in
favor of Seller confirming the waivers and
acknowledgments set forth in Sections 2.5
and 4.4 above;
(iv) evidence reasonably satisfactory to Title
Company as to the legal existence and
authority of the Buyer and the authority and
incumbency of the persons signing documents
on behalf of the Buyer; and.
(v) Such other documents and instruments as may
be required by any other provision of this
Agreement or as may reasonably be required
by Title Company or otherwise to carry out
the terms and intent of this Agreement.
SECTION 6.2 TITLE. Title Company shall close escrow on the
Closing Date by:
(a) recording the Deeds;
(b) issuing the Buyer's Title Policies to Buyer pursuant to
Section 3.1(a)(i) above;
22
<PAGE>
(c) delivering to Buyer originals of the Bills of Sale, the
FIRPTA Certificate, the State Certificates, executed counterparts of each of the
Assignments of Intangibles, Assignments of Leases, the Loan Assignment and
Release Documents, and all of the other documents in escrow under Section
6.1(a);
(d) delivering to Seller (i) a counterpart for each of the
Assignments of Intangibles, the Assignments of Leases and the Loan Assignment
and Release Documents executed by Buyer, (ii) the certificate described in
Section 6.1(b)(iii) above, and (iii) funds in the amount of the Purchase Price,
less the deemed amount for the assumption of the Loan equal to One Hundred
Thirty Eight Million Dollars ($138,000,000.00), as adjusted for credits,
adjustments, prorations and closing costs in accordance with this Article 6 and
as allocated pursuant to the direction of the Seller (upon which allocation
Buyer and Title Company shall have the right to conclusively rely); and
(e) if directed by the parties, delivering the Tenant Notices
to the tenants by certified mail, return receipt requested.
SECTION 6.3 PRORATIONS.
(a) Taxes. Real estate taxes, personal property taxes and any
general or special assessments with respect to the Properties which are not the
direct payment obligation of tenants pursuant to the Leases (as opposed to a
reimbursement obligation) shall be prorated as of the Closing Date -- to the end
that Seller shall be responsible for all taxes and assessments that are
allocable to any period prior to the Closing Date and Buyer shall be responsible
for all taxes and assessments that are allocable to any period from and after
the Closing Date. To the extent any real or personal property taxes subject to
apportionment in accordance with the foregoing are, as of the Closing Date, the
subject of any appeal filed by or on behalf of Seller, then notwithstanding
anything to the contrary contained in this subparagraph, (i) no apportionment of
the taxes being appealed shall occur at the closing, but instead such
apportionment shall be deferred until the outcome of the appeal is final and the
amount of taxes owing becomes fixed at which time Seller shall be responsible
for all such taxes that are allocable to any period prior to the Closing Date
and Buyer shall be responsible for all such taxes that are allocable to any
period from and after the Closing Date, and (ii) Seller shall provide Buyer with
adequate security, either in the form of a bond or by escrowing the amounts
being appealed, to assure Buyer that Seller's portion of such tax liability,
including any penalty, will be available. To the extent any taxes which are the
subject of an appeal have been paid by Seller under protest and the appeal
results in Buyer receiving a credit toward future tax liability or a refund,
then Buyer shall, within thirty (30) days following receipt of such refund or
notice of such credit, pay to Seller the full amount of such refund or credit
allocable to the period prior to the Closing Date, excluding, however, any
portion of such refund or credit that is required to be passed through to the
tenants pursuant to any Leases or to other parties by contract (existing on the
Closing Date).
(b) Prepaid Expenses. Buyer shall be charged for those prepaid
expenses paid by Seller allocable to any period from and after the Closing Date,
including, without limitation, annual permit and confirmation fees, fees for
licenses and all security or other deposits paid by
23
<PAGE>
Seller to third parties which Buyer elects to assume and to which Buyer then
shall be entitled to the benefits and refund following the Closing Date.
(c) Property Income and Expense. The following prorations and
adjustments shall occur as of the Closing. Prior to the Closing Date, Seller
shall provide all information to Buyer required to calculate such prorations and
adjustments and representatives of Buyer and Seller shall together make such
calculations:
(i) General. Subject to the specific provisions of
clauses (ii), (iii) and (iv) below, income and
expense shall be prorated on the basis of a 30-day
month and on a cash basis (except for items of income
and expense that are payable less frequently than
monthly, which shall be prorated on an accrual
basis). All such items attributable to the period
prior to the Closing Date shall be allocated to
Seller; all such items attributable to the period on
and following the Closing Date shall be allocated to
Buyer. Buyer shall be credited in escrow with (a) any
portion of rental agreement or lease deposits which
are refundable to the tenants and have not been
applied to outstanding tenant obligations in
accordance with the terms of the applicable Lease and
(b) rent prepaid beyond the Closing Date. Seller
shall transfer Seller's entire interest in any
letters of credit or certificates of deposit held by
Seller as the deposits described in clause (a) above
and shall diligently cooperate with Buyer in
obtaining any reissuance or confirmation of the
effect of the transfer of such instruments. Buyer
shall not be entitled to any interest on rental
agreement or lease deposits or prepaid rent accrued
on or before the Closing Date, except to the extent
any such amount of interest is refundable or payable
to any tenant under a Lease or applicable law. Seller
shall be credited in escrow with any refundable
deposits or bonds held by any utility, governmental
agency or service contractor, to the extent such
deposits or bonds are assigned to Buyer on the
Closing Date.
(ii) Leasing Costs. Buyer shall be credited in escrow
with any leasing commissions, tenant improvements or
other allowances to be paid by Buyer on or after the
Closing Date with respect to the current term of any
Lease or Lease modification executed, or any
extension term or expansion of premises exercised, in
each case, shown on the Rent Rolls attached hereto as
EXHIBIT C-1, and Seller shall pay on or before the
Closing Date all such items payable prior to the
Closing Date. Seller shall be credited in escrow with
an amount equal to (A) the amount of any leasing
commissions, tenant improvements and other allowances
paid by Seller after the Effective Date to the extent
such items relate to new Leases or Lease
modifications executed or extensions of terms or
expansions of premises that are not shown on the Rent
Rolls attached hereto as
24
<PAGE>
EXHIBIT C-1 and permitted under the terms of this
Agreement, multiplied by (B) a fraction in which the
numerator is the number of months or partial months
of the stabilized term (i.e., the term following the
tenant's entry into occupancy and commencement of
unabated rental obligations) of any such Lease
following the Closing Date and the denominator is the
number of months or partial months in the stabilized
term of such Lease. Buyer shall assume all
obligations for any leasing commissions, tenant
improvement or other allowances payable following the
Closing Date with respect to Leases or Lease
modifications executed or extensions of terms or
expansions of premises that are not shown on the Rent
Rolls attached hereto as EXHIBIT C-1 and which are
permitted under the terms of this Agreement. Any
expenditures or commitments to expenditures relating
to Leases or modifications or extensions of terms or
expansions of premises, in excess of the amounts
budgeted and approved as part of Buyer's approval of
the Lease (where such approval is required) shall be
subject to Buyer's specific approval, which shall not
be unreasonably withheld and shall be deemed given if
Buyer should fail to approve or disapprove such
excess expenditure within five (5) business days
following Seller's written request and delivery of
material information reasonably necessary to allow
Buyer to make an informed decision.
(iii) Rents. Rents payable by tenants under the
Leases, shall be prorated as and when collected
(whether such collection occurs prior to, on, or
after the Closing Date). Buyer shall receive a credit
for the amounts actually received before the Closing
Date and which pertain to any period after the
Closing Date. Buyer shall not receive a credit at the
Closing for any rents for the month in which the
Closing occurs which are in arrears and have not then
been received. As to any tenants who are delinquent
in the payment of rent on the Closing Date, Buyer
shall use reasonable efforts (but shall not be
required to commence legal action or terminate or
evict a tenant) to collect or cause to be collected
such delinquent rents following the Closing Date. Any
and all rents so collected by either party following
the Closing (less a deduction for all reasonable
collection costs and expenses incurred by the
collecting party) shall be successively applied
(after deduction for Buyer's reasonable collection
costs) to the payment of (x) rent due and payable in
the month in which the Closing occurs, (y) rent due
and payable in the months succeeding the month in
which the Closing occurs (through and including the
month in which payment is made) and (z) rent due and
payable in the months preceding the month in which
the Closing occurs. If all or part of any rents or
25
<PAGE>
other charges received by Buyer following the Closing
are allocable to Seller pursuant to the foregoing
sentence, then such sums shall be promptly paid to
Seller; if all or part of any rents or other charges
received by Seller following the Closing are
allocable to Buyer pursuant to the foregoing
sentence, then such sums shall be promptly paid to
Buyer. Seller reserves the right to pursue any
damages remedy Seller may have against any tenant
with respect to such delinquent rents, but shall have
no right to exercise any other remedy under the Lease
(including, without limitation, termination or
eviction).
(iv) Additional Rents. Any percentage rent,
escalation charges for real estate taxes, parking
charges, operating and maintenance expenses,
escalation rents or charges, electricity charges,
cost of living increases or any other charges of a
similar nature other than fixed or base rent under
the Leases (collectively, the "Additional Rents")
shall be prorated as of the Closing Date between
Buyer and Seller on or before the date which is
ninety (90) days following the end of the calendar
year in which the Closing occurs based on the actual
number of days of the year and month which shall have
elapsed as of the Closing Date. Prior to Closing
occurs, Seller shall provide Buyer on an estimated
basis with information regarding Additional Rents
which were received by Seller prior to Closing and
the amount of reimbursable expenses paid by Seller
prior to Closing. If Seller's collections of such
amounts is in excess of the amounts actually paid by
Seller for such items for the period prior to
Closing, then Buyer shall receive a credit at Closing
for the excess amounts collected. Buyer shall apply
all such excess amounts to the charges owed by Buyer
for such items for the period after the Closing and,
if required by the Leases, shall rebate or credit the
tenants with any remainder. If it is determined that
the amount collected during Seller's ownership period
was less than the amounts actually paid by Seller for
such items for the period prior to the Closing, then
the collection and remitting of such amounts shall be
governed by the provisions of subsection (iii) above
regarding the post-closing application of rents. On
or before the date which is sixty (60) days following
the end of the calendar year in which the Closing
occurs, Buyer shall deliver to Seller a
reconciliation of all expenses reimbursable by
tenants under the Leases, and the amount of
Additional Rents received by Seller and Buyer
relating thereto (the "Reconciliation"). Upon
reasonable notice and during normal business hours,
each party shall make available to the other all
information reasonably required to confirm the
Reconciliation. In the event of any overpayment of
Additional Rents by the tenants to Seller, Seller
shall promptly, but
26
<PAGE>
in no event later than fifteen (15) days after
receipt of the Reconciliation, pay to Buyer the
amount of such overpayment and Buyer, as the landlord
under the particular Leases, shall pay or credit to
each applicable tenant the amount of such
overpayment. In the event of an underpayment of
Additional Rents by the tenants to Seller, Buyer
shall pay to Seller the amount of such underpayment
within fifteen (15) days following Buyer's receipt of
any such amounts from the tenants.
(d) Adjustments to Prorations. Subject to Section 6.3(a) and
6.3(c)(iv) above, after the Closing, the parties shall from time to time, as
soon as is practicable after accurate information becomes available and in any
event within one (1) year following the Closing Date, recalculate and
reapportion any of the items subject to proration or apportionment (i) which
were not prorated and apportioned at the Closing because of the unavailability
of the information necessary to compute such proration, or (ii) which were
prorated or apportioned at the Closing based upon estimated or incomplete
information, or (iii) for which any errors or omissions in computing prorations
at the Closing are discovered subsequent thereto, and thereafter the proper
party shall be reimbursed based on the results of such recalculation and
reapportionment. Unless otherwise specified herein, all such reimbursements
shall be made on or before thirty (30) days after receipt of notice of the
amount due. Any such reimbursements not timely paid shall bear interest at a per
annum rate equal to ten percent (10%) from the due date until all such unpaid
sums together with all interest accrued thereon is paid if payment is not made
within ten (10) days after receipt of a bill therefor.
(e) Prior Year's Reconciliation. If the Closing occurs before
Seller has performed the annual reconciliation of Additional Rent for the
calendar year immediately preceding the calendar year in which the Closing
occurs, then Seller shall, as soon as practicable after Closing, perform such
reconciliation at its sole cost and expense. Upon completion of such annual
reconciliation, Seller shall immediately deliver to Buyer a detailed description
of any Additional Rent which are payable by or reimbursable to any present
tenant (the "Prior Year Reconciliation"). The Prior Year Reconciliation shall be
accompanied by all applicable back-up documentation, together with Seller's
check for such Additional Rent which is reimbursable to a tenant. Based upon
Seller's calculations, Buyer shall send customary statements for reimbursement
of Additional Rent to tenants under the Leases based on the Prior Year
Reconciliation, and shall remit to Seller within thirty (30) days of receipt,
all sums so collected. If Seller's calculations show that Additional Rent has
been overpaid by any present tenant and Seller has submitted its check to Buyer
for such amounts, Buyer shall refund such Additional Rent to such tenant.
(f) Survival. The provisions of this Section 6.3 shall survive
the Closing.
SECTION 6.4 OTHER CLOSING COSTS.
(a) Payment of the premium for the issuance of the Buyer's
Title Policies (other than that portion of the premium for obtaining an ALTA,
rather than a CLTA, owner's policy of title insurance and the premium for any
endorsements to Buyer's Title Pollicies) in the
27
<PAGE>
amount of the Purchase Price shall be paid by Buyer or Seller according to
custom as set forth in EXHIBIT G. Buyer shall pay the additional premium for
obtain an ALTA , rather than a CLTA, owner's policy of title insurance and the
premium for the issuance of any endorsements to Buyer's Title Policies. Seller
shall pay all county documentary transfer or transaction taxes or fees due on
the transfer of the Properties. All other Closing costs, except as otherwise
provided below, shall be paid by Seller and Buyer according to custom in the
county in which the applicable Property is located as set forth on EXHIBIT G
attached hereto.
(b) Seller shall pay 50% of any escrow or other costs charged
by or reimbursable to the Title Company.
(c) Buyer shall pay 50% of any escrow or other costs charged
by or reimbursable to the Title Company.
SECTION 6.5 FURTHER DOCUMENTATION. At or following the close of escrow,
Buyer and Seller shall execute any certificate, memoranda, assignment or other
instruments required by this Agreement, law or local custom or otherwise
reasonably requested by the other party to effect the transactions contemplated
by this Agreement and shall take such other actions (but at no material cost or
expense) as are reasonably requested by the other party to effect the
transactions contemplated by this Agreement.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 DAMAGE OR DESTRUCTION. If at any time prior to the Closing,
Seller determines that any of the Properties has been destroyed or damaged by
earthquake, flood or other casualty and that such damage will require more than
$750,000 for any one Property or more than $2,000,000 in the aggregate for all
Properties, (a "Casualty"), or if a proceeding is instituted for the taking of
all or any material portion of any of the Properties under the power of eminent
domain (a "Taking"), then Buyer shall have the right by giving written notice to
Seller and Title Company within fifteen (15) days after the date of receipt of
written notice of any such Casualty or Taking, either to: (i) consummate the
purchase of all of the Properties in accordance with this Agreement, in which
event Seller shall assign to Buyer at the Closing (A) any insurance proceeds
payable to Seller on account of such Casualty (excluding rental income insurance
proceeds allocable to the period prior to Closing) or (B) any award payable to
Seller by reason of the Taking (excluding any award for a temporary taking to
the extent allocable to the period prior to Closing), as the case may be; or
(ii) terminate this Agreement effective as of the date such notice of
termination is given. If Buyer fails to give such notice within such 15-day
period, then Buyer shall be deemed to have elected to terminate this Agreement
pursuant to this Section 7.1. The Closing Date shall be deferred, if necessary,
to permit Buyer to have the 15-day period following receipt of notice of a
Casualty or a Taking to make the election specified hereinabove. If Buyer
terminates this Agreement pursuant to this Section 7.1, then the Deposit shall
be returned to Buyer, and neither Seller nor Buyer shall have any further
obligations under this Agreement, except Buyer's obligation to perform those
obligations set forth in Sections 2.4(b),
28
<PAGE>
2.4(e), 7.2, and 7.8 of this Agreement. Nothing herein shall be deemed to
constitute an obligation on the part of Seller to carry or maintain any
insurance of any kind whatsoever pertaining to the Property.
SECTION 7.2 FEES & COMMISSIONS. Each party to this Agreement warrants
to the other that no person or entity can properly claim a right to a real
estate or investment banker's commission, finder's fee, acquisition fee or other
brokerage-type compensation (collectively, "Real Estate Compensation") based
upon the acts of that party with respect to the transaction contemplated by this
Agreement. Each party hereby agrees to indemnify and defend the other against
and to hold the other harmless from any and all loss, cost, liability or expense
(including but not limited to attorneys' fees and returned commissions)
resulting from any claim for Real Estate Compensation by any person or entity
based upon such acts.
SECTION 7.3 SUCCESSORS AND ASSIGNS. Buyer may not assign any of Buyer's
rights or duties hereunder without the prior written consent of Seller, which
may be withheld in Seller's sole discretion; provided, however, that Buyer shall
have the right to assign all or a portion of its rights hereunder to an entity
which is at least majority owned, directly or indirectly, by Buyer, without the
prior consent of Seller, except that any such assignment to such an affiliate of
Buyer shall not relieve Buyer of any of its obligations under this Agreement.
SECTION 7.4 NOTICES. Any notice, consent or approval (or request for
consent or approval) required or permitted to be given under this Agreement
shall be in writing and shall be given or requested by (i) hand delivery, (ii)
Federal Express or another reliable overnight courier service, (iii) facsimile
telecopy, or (iv) United States mail, registered or certified mail, postage
prepaid, return receipt required, and addressed as follows:
To Seller:
Burnham Pacific Properties, Inc.
100 Bush Street, Suite 2400
San Francisco, California 94104
Attn: Scott C. Verges
Fax No.: (415) 352-1711
With a copy at the same time to:
Burnham Pacific Properties
110 West A Street, Suite 900
San Diego, California 92101
Attn: John A. Waters
Fax No.: (619) 652-4710
29
<PAGE>
With a copy at the same time to:
MBV Law LLP
101 Vallejo Street
San Francisco, California 94111
Attention: Danna Kozerski
Fax No.: (415) 433-6563
To Buyer:
GMS Realty, LLC
5973 Avenida Encinas, Suite 300
Carlsbad, California 92008
Attn: Matthew L. Golden
Fax No: (760) 804-8602
With a copy at the same time to:
Stipanov & Mebane, A Professional Law Corporation
501 West Broadway, Suite 520
San Diego, California 92101
Attn: Kenneth J. Stipanov, Esq.
Fax No.: (619) 235-2692
Any such notice, consent or approval (or request for consent or approval) shall
be deemed given or requested (i) if given by hand delivery, upon such hand
delivery, (ii) one (1) business day after being deposited with Federal Express
or another reliable overnight courier service, (iii) if sent by facsimile, the
day the facsimile is successfully transmitted, or (iv) if sent by registered or
certified mail, three (3) business days after being deposited in the United
States mail. Any address or name specified above may be changed by notice given
to the addressee by the other party in accordance with this Section 7.4. The
inability to deliver because of a changed address of which no notice was given,
or rejection or other refusal to accept any notice, shall be deemed to be the
receipt of the notice as of the date of such inability to deliver or rejection
or refusal to accept. Any notice to be given by any party hereto may be given by
the counsel for such party.
SECTION 7.5 ENTIRE AGREEMENT. Excepting this Agreement and the attached
exhibits, which are by this reference incorporated herein, and all documents in
the nature of such exhibits, when executed, contain the entire understanding of
the parties and supersede any and all other written or oral understanding.
SECTION 7.6 TIME. Time is of the essence of every provision contained
in this Agreement.
30
<PAGE>
SECTION 7.7 INCORPORATION BY REFERENCE. All of the exhibits attached to
this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
SECTION 7.8 ATTORNEYS' FEES. In the event any dispute between Buyer and
should result in litigation, the prevailing party shall be reimbursed for all
reasonable costs incurred in connection with such litigation or arbitration,
including, without limitation, reasonable attorneys' fees and costs, and the
cost of experts. For purposes of this Agreement, the terms "attorneys' fees" and
"attorneys' costs" shall include the fees and expenses of counsel to the
prevailing party, which may include printing, photocopying, duplicating and
other expenses, air freight charges and fees billed for law clerks, paralegals
and other persons not admitted to the bar but performing services under the
supervision of an attorney
SECTION 7.9 CONSTRUCTION. The parties 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.
SECTION 7.10 GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of California (without giving effect
to conflicts of laws principles).
SECTION 7.11 CONFIDENTIALITY. Following the full execution of this
Agreement and Buyer's delivery of the Deposit to Title Company, the parties
shall issue a joint press release with respect to this transaction, which press
release shall be in a form approved by Seller and Buyer. Buyer also consents to
the disclosure of the terms and conditions set forth in this Agreement in BPPI's
Proxy Statement.
SECTION 7.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
SECTION 7.13 REPRESENTATIVE. Buyer shall be entitled to rely upon any
notice, approval or decision expressed by Scott C. Verges or Daniel Platt acting
alone on behalf Seller. Seller shall be entitled to rely upon any notice,
approval or decision expressed by William W. Gerrity or Matthew L. Golden acting
alone or on behalf of Buyer.
SECTION 7.14 STATE SPECIFIC PROVISIONS.
(a) Buyer is hereby apprised of and shall determine whether
any Real Property is located within the coastal zone under the California
Coastal Act.
(b) Buyer is hereby apprised of and shall determine whether
any Real Property is located within a special studies zone under the
Alquist-Priolo Geologic Hazard Act.
(c) To the extent required by law, Seller and Buyer agree to
provide a Real Estate Transfer Disclosure Statement.
31
<PAGE>
(d) Seller shall provide Buyer with a form California 590-RE.
(e) Buyer and Seller acknowledge that Seller is required to
disclose if the Property lies within the following natural hazard areas or
zones: (1) a special flood hazard area designated by the Federal Emergency
Management Agency (Cal. Civ. Code ? 1102.17); (2) an area of potential flooding
(Cal. Gov. Code ? 8589.4); (3) a very high fire hazard severity zone (Cal. Gov.
Code ? 51183.5); (4) a wild land area that may contain substantial forest fire
risks and hazards (Pub. Resources Code ? 4136); (5) an earthquake fault zone
(Pub. Resources Code ? 2621.9); or (6) a seismic hazard zone (Pub. Resources
Code ? 2694). Buyer and Seller acknowledge that they have employed the services
of either Vista Information Solutions, Inc. or Environmental Data Resources,
Inc. (which, in such capacity is herein called "Natural Hazard Expert") to
examine the maps and other information specifically made available to the public
by government agencies for the purpose of enabling each of Seller to fulfill its
disclosure obligations with respect to the natural hazards referred to in
California Civil Code Section 1102.6c(a) and to report the result of its
examination to Buyer and Seller in writing. The written report prepared by the
Natural Hazard Expert regarding the results of its examination fully and
completely discharges Seller from their disclosure obligations referred to
herein, and, for the purpose of this Agreement, the provisions of Civil Code
Section 1102.4 regarding the non-liability of Seller for errors or omissions not
within its personal knowledge shall be deemed to apply and the Natural Hazard
Expert shall be deemed to be an expert, dealing with matters within the scope of
its expertise with respect to the examination and written report regarding the
natural hazards referred to above. In no event shall Seller have any
responsibility for matters not actually known to Seller.
SECTION 7.15 CALCULATION OF TIME PERIODS.
The term "business days" when used in this Agreement means all days
excluding Saturdays, Sundays, and any state or national holidays (including the
optional bank holidays listed in California Civil Code Section 7.1). All periods
of time referred to in this Agreement shall include all Saturdays, Sundays and
state and national holidays unless the period of time specifies business days.
In the computation of any period of time provided for in this Agreement or by
law, the day of the actor event from which said period of time runs shall be
excluded, and the last day of such period shall be included, unless it is not a
business day, in which case the period shall be deemed to run until the end of
the next business day.
[NO FURTHER TEXT ON THIS PAGE; SIGNATURES FOLLOW ON NEXT PAGE]
32
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
SELLER:
BPP/GOLDEN STATE ACQUISITIONS, L.L.C.,
a Delaware limited liability company
By: Burnham Pacific Operating Partnership, L.P.,
a Delaware limited partnership
Its: Managing Member
By: Burnham Pacific Properties, Inc.,
a Maryland corporation
Its: General Partner
By: /s/ Scott C. Verges
-------------------------
Its: President
-------------------------
BUYER:
GMS REALTY, LLC,
a Delaware limited liability company
By: /s/ Karen A. Sztraicher
-------------------------
Its: Chief Financial Officer
-------------------------
The undersigned party is joining this Agreement solely for the purpose of
acknowledging and agreeing to the provisions of Article V hereof and any other
provisions of this Agreement expressly applicable to Title Company.
CHICAGO TITLE COMPANY
By: ____________________________
Name: __________________________
Title: ___________________________
33
<PAGE>
EXHIBIT A
PROPERTIES
580 Marketplace
Castro Valley, CA
Arcade Square
Sacramento, CA
Buena Vista Marketplace
Duarte, CA
Centerwood Plaza
Bellflower, CA
Creekside Shopping Center
Vacaville, CA
Discovery Plaza
Sacramento, CA
Fremont Gateway Plaza
Fremont, CA
Hallmark Town Center
Madera, CA
Menifee Town Center
Menifee, CA
Prospector's Plaza
Placerville, CA
Ralph's Center
Redondo Beach, CA
San Marcos Lucky Plaza
San Marcos, CA
Shasta Crossroads
Redding, CA
Silver Creek Plaza
San Jose, CA
Southampton Center
Benecia, CA
<PAGE>
Stony Pont Plaza
Santa Rosa, CA
Summerhills Shopping Center
Sacramento, CA
Sunset Center
Suisun City, CA
Westminster Center
Westminster, CA
<PAGE>
EXHIBIT B
DISCLOSURE MATERIALS LIST & STATEMENT
<PAGE>
EXHIBIT C
RENT ROLLS
<PAGE>
EXHIBIT D
TRANSFER DOCUMENT FORMS
<PAGE>
EXHIBIT D-1
GRANT DEED
Recorded at the Request of and
When Recorded, Return and
Mail Tax Statements to:
---------------------------------------
GRANT DEED
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ____________________ ("Grantor") hereby grants to
___________________________________ ("Grantee") that certain real property
located in _________________, California, more particularly described in Exhibit
A attached hereto and incorporated herein by this reference ("Property").
The conveyance by Grantor to Grantee pursuant to this Grant Deed is
subject to: (i) a lien securing payment of real estate taxes and assessments;
(ii) applicable zoning and use laws, ordinances, rules and regulations of any
municipality, township, county, state or other governmental agency or authority;
(iii) all matters that would be disclosed by a physical inspection or survey of
the Property or that are actually known to Grantee; and (iv) all covenants,
conditions, easements, restrictions, liens, encumbrances and other exceptions of
record.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed this _____ day
of ____, 200___.
"Grantor"
By: ______________________________
Its: ___________________________
<PAGE>
EXHIBIT D-2
BILL OF SALE
For good and valuable consideration, the receipt of which is hereby
acknowledged, _________________________ a ____________________________
("Seller") does hereby sell, transfer, and convey to __________________________,
a ______________ ("Buyer"), any and all Personal Property (as defined in that
certain Purchase and Sale Agreement (the "Agreement") dated ______, 2000 between
Seller and certain other persons and Buyer) directly or indirectly owned by
Seller and relating to that certain property identified on EXHIBIT A attached
hereto (including, without limitation, the personal property more particularly
described in the attached SCHEDULE 1).
BUYER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE
AGREEMENT, SELLER IS CONVEYING AND BUYER IS PURCHASING SUCH PERSONAL PROPERTY ON
AN "AS IS WITH ALL FAULTS" BASIS AND THAT BUYER IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM
SELLER, ITS AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING SUCH PERSONAL
PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTHING
CONTAINED HEREIN SHALL LIMIT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS
CONTAINED IN THE AGREEMENT.
This Bill of Sale may be executed in two or more counterparts, each of which
shall be deemed an original but all of which taken together shall constitute one
and the same instrument.
Dated this ____ day of __________, 2000.
SELLER:
-----------------------------
a
----------------------------
By:
--------------------------
Its:
-------------------------
BUYER:
-----------------------------
a
----------------------------
By:
--------------------------
Its:
-------------------------
<PAGE>
EXHIBIT D-3
ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
WARRANTIES AND GUARANTIES
AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION (the "Assignment") dated as of ______________,
2000, is between ________________________., a _____________________________
("Assignor"), and _____________________________, a ________________________
("Assignee").
A. Assignor owns certain real property and certain improvements thereon
located in the City of _________, County of ____________, State of
__________________, and more particularly described in attached EXHIBIT A (the
"Property").
B. Assignor has entered into certain contracts which affect the
Property, which contracts are described on EXHIBIT B attached hereto (the
"Contracts").
C. Assignor, together with certain other parties, and Assignee have
entered into an Agreement for Purchase and Sale dated as of ____________, 2000
(the "Agreement"), pursuant to which Assignee agreed to purchase the Property
from Assignor and Assignor agreed to sell the Property to Assignee, on the terms
and conditions contained therein.
D. Assignor desires to assign to Assignee its interest in the Contracts
and in certain warranties, guaranties, and intangible personal property with
respect to the Property, and Assignee desires to accept the assignment thereof,
on the terms and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. As of the date on which the Property is conveyed to Assignee
pursuant to the Agreement (the "Conveyance Date"), Assignor hereby assigns
without recourse or warranty of enforceability (except as otherwise set forth
herein or in the Agreement) all of its right, title and interest in and to the
following:
(a) all of the Contracts listed on EXHIBIT B;
(b) any warranties and guaranties ("Warranties and Guaranties") made by
or received from any third party with respect to any improvements owned by
Assignor on the Property;
(c) except as otherwise set forth in the Agreement, any Intangible
Property (as defined in the Agreement) now owned by Assignor in connection with
the Property other than (i) Excluded Claims (as defined in the Agreement) and
(ii) Contracts (as defined in the Agreement) other than those listed on Exhibit
B; and
(d) any indemnifications or covenants from third parties relating to
the environmental condition of the Property (but Seller reserves solely Seller's
rights to the benefit of such
<PAGE>
indemnifications and covenants protecting Seller with respect to Seller's
ownership of the Property).
2. Concurrently with the conveyance of Assignor's interest in the
Property to Assignee, Assignee hereby assumes all of Assignor's obligations
under the Contracts listed on Exhibit B and agrees to indemnify Assignor against
and hold Assignor harmless from any and all liabilities, losses, damages,
claims, costs or expenses, including, without limitation, reasonable attorneys'
fees and costs, to the extent occurring or arising out of acts or events in
connection with the Contracts originating on or subsequent to the Conveyance
Date .
3. Assignor shall indemnify Assignee against the hold Assignee harmless
from any and all liabilities, costs, damages, claims, costs or expenses,
including, without limitation, reasonable attorneys' fees and costs, to the
extent occurring or arising out of acts or events in connection with the
Contracts originating prior to the Conveyance Date and arising out of Assignor's
obligations under the Contracts.
4. In the event of any dispute between Assignor and Assignee arising
out of the obligations of Assignor under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such dispute, including,
without limitation, reasonable attorneys' fees and costs.
5. This Assignment shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
6. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
7. This Assignment shall be governed by and conferred in accordance
with the laws of the State of California.
<PAGE>
ASSIGNOR:
-----------------------------
a
----------------------------
By:
--------------------------
Its:
-------------------------
ASSIGNEE:
-----------------------------
a
----------------------------
By:
--------------------------
Its:
-------------------------
<PAGE>
Exhibit A to
Assignment and Assumption of Contracts
REAL PROPERTY DESCRIPTION
<PAGE>
Exhibit B to Assignment
and Assumption of Contracts
LIST OF CONTRACTS
<PAGE>
EXHIBIT D-4
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment") dated as of
__________________, 2000, is between ___________________________,
_______________________________ ("Assignor"), and _______________________, a
_________________________ ("Assignee").
A. Assignor is the lessor under certain Leases (as defined in the
Agreement) executed with respect to that certain real property and improvements
thereon located in the City of __________, County of ____________,
______________, and more particularly described in EXHIBIT A attached hereto
(the "Property"), including, without limitation, the leases are described in
SCHEDULE 1 attached hereto and all guarantees and similar agreements including,
without limitation, the agreements described in SCHEDULE 2 attached hereto with
respect to such leases (collectively, the "Leases").
B. Assignor, together with certain other parties, and Assignee
have entered into an Agreement for Purchase and Sale dated as of _____________,
2000 (the "Agreement"), pursuant to which Assignee agreed to purchase the
Property from Assignor and Assignor agreed to sell the Property to Assignee, on
the terms and conditions contained therein.
C. Assignor desires to assign its interest as Lessor in the
Leases to Assignee, and Assignee desires to accept the assignment thereof, on
the terms and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. As of the date on which the Property is conveyed to Assignee
pursuant to the Agreement (the "Conveyance Date"), Assignor hereby assigns to
Assignee all of its right, title and interest in and to the Leases; provided,
that Assignor reserves its right to sue a tenant (but without instituting an
involuntary bankruptcy action) under a Lease for damages suffered by Assignor as
a result of such tenant's failure to have paid any rents to Assignor which were
payable prior to the Conveyance Date so long as any such suit does not seek a
termination of such tenant's Lease and Assignee reserves its rights with respect
to the Excluded Claims (as defined in the Agreement).
2. As of the Conveyance Date, Assignee hereby assumes all of Assignor's
obligations under the Leases (other than any financial obligations of the
landlord not otherwise assumed under the Agreement by Assignee and which were to
have been satisfied prior to the Conveyance Date) and agrees to indemnify
Assignor against and hold Assignor harmless from any and all liabilities,
losses, claims, damages, costs or expenses, including, without limitation,
reasonable attorneys' fees and costs to the extent occurring or arising out of
acts or events originating on or subsequent to the Conveyance Date and arising
out of the landlord's obligations under the Leases.
3. Assignor shall indemnify Assignee against and hold Assignee harmless
from any and all liabilities, costs, claims, damages, costs or expenses
including, without limitation,
<PAGE>
reasonable attorneys' fees and costs to the extent occurring or arising out of
acts or events originating prior to the Conveyance Date and arising out of the
landlord's obligations under the Leases, except to the extent such obligations
are expressly assumed by Assignee pursuant to the Agreement or this Assignment;
provided, however, that notwithstanding anything to the contrary contained in
this paragraph 3, Assignor's indemnity shall not extend to any obligation of the
landlord to correct, repair, maintain or replace any aspect of the physical or
environmental condition of the Property, including, without limitation, the roof
or mechanical or structural systems of any building or remediating any
environmental contamination at the Property, subject, however, to any liability
of Assignor pursuant to representations and warranties set forth in the
Agreement, as limited by Section 4.4 thereof.
4. In the event of any dispute between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such dispute, including,
without limitation, reasonable attorneys' fees and costs.
5. This Assignment shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
6. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
7. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
Assignor and Assignee have executed this Agreement the day and year first above
written.
ASSIGNOR:
------------------------------------,
a
-----------------------------------
By:
---------------------------------
Its:
--------------------------------
ASSIGNEE:
------------------------------------,
a
-----------------------------------
By:
---------------------------------
Its:
--------------------------------
<PAGE>
Exhibit A to
Assignment and Assumption of Leases
REAL PROPERTY DESCRIPTION
<PAGE>
Schedule 1 to Assignment
and Assumption of Leases
LIST OF LEASES
<PAGE>
EXHIBIT E
LITIGATION
<PAGE>
EXHIBIT F
INTENTIONALLY DELETED
<PAGE>
EXHIBIT G
CLOSING COST CUSTOMS
<TABLE>
<CAPTION>
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
PROPERTY LOCATION TITLE POLICY TRANSFER TAX RECORDING FEES
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
<S> <C> <C> <C> <C>
580 Marketplace Castro Valley, CA Buyer Seller Split
Alameda County County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Arcade Square Sacramento, CA Seller Seller Buyer
Sacramento County County: $1.10/thousand
City: $2.75/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Buena Vista Marketplace Duarte, CA Seller Seller Buyer
Los Angeles County County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Centerwood Plaza Bellflower, CA Seller Seller Buyer
Los Angeles County County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Creekside Shopping Vacaville, CA Buyer Seller Buyer
Center Solano County County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Discovery Plaza Sacramento, CA Seller Seller Buyer
Sacramento County County: $1.10/thousand
City: $2.75/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Fremont Gateway Plaza Fremont, CA Buyer Seller Split
Alameda County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Hallmark Town Center Madera, CA Seller Seller Buyer
Madera County County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
Menifee Town Center Menifee, CA Seller Seller Buyer
Riverside County County: $1.10/thousand
------------------------- ---------------------------- ---------------- ----------------------------- -------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Prospector's Plaza Placerville, CA Split Seller Buyer
El Dorado County County: $1.10/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Ralph's Center Redondo Beach, CA Seller Seller Buyer
Los Angeles County County: $1.10/thousand
City: $2.20/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
San Marcos Lucky Plaza San Marcos, CA Seller Seller Buyer
San Diego County County: $1.10/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Shasta Crossroads Redding, CA Split Seller Buyer
Shasta County County: $1.10/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Silver Creek Plaza San Jose, CA Seller Seller Buyer
Santa Clara County County: $1.10/thousand
City: Seller $3.30/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Southampton Center Benecia, CA Buyer Seller Buyer
Solano County County: $1.10/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Stony Point Plaza Santa Rosa, CA Buyer Seller Buyer
Sonoma County County: $1.10/thousand
City: $2.00/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Summerhills Shopping Sacramento, CA Seller Seller Buyer
Center Sacramento County County: $1.10/thousand
City: $2.75/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Sunset Center Suisun City, CA Buyer Seller Buyer
Solano County County: $1.10/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
Westminster Center Westminster, CA Seller Seller Buyer
Orange County County: $1.10/thousand
------------------------- ---------------------------- ------------- ----------------------------- -------------------------
</TABLE>
<PAGE>
EXHIBIT H
INTENTIONALLY DELETED
<PAGE>
EXHIBIT I
EXCLUDED CLAIMS
