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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
BURNHAM PACIFIC PROPERTIES, INC.
(Name of Issuer)
Shares of Common Stock, par value $0.01 per share
(Title of Class of Securities)
12232C108
(CUSIP Number)
Patrick K. Fox
Westbrook Real Estate Partners, L.L.C.
13155 Noel Road-LB54
Suite 2300
Dallas, Texas 75240
(972) 934-0100
with a copy to:
Allen Curtis Greer II
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
(212) 504-6660
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 13, 2000
(Date of Event which Requires Filing of this Statement) If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box .|X| NOTE: Schedules filed in paper format shall include a
signed original and five copies of the schedule, including all exhibits. See
ss. 240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Potential persons who are to respond to the collection of information
contained in this form are not required to respond unless the form displays a
currently valid OMB control number.
SEC 1746 (2-98)
CUSIP NO. 12232C108.
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 2 of 28 Pages
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) WESTBROOK REAL ESTATE PARTNERS, L.L.C. --I.R.S.
IDENTIFICATION NO. ____
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
[ ] (b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
OO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 3 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) WESTBROOK REAL ESTATE PARTNERS MANAGEMENT II, L.L.C.
--I.R.S. IDENTIFICATION NO. ____
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
[ ] (b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) | |
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
OO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 4 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) WESTBROOK REAL ESTATE FUND II, L.P. --I.R.S.
IDENTIFICATION NO. ____
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)
[ ] (b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 5 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) WESTBROOK REAL ESTATE CO-INVESTMENT PARTNERSHIP II, L.P.
--I.R.S. IDENTIFICATION NO. ____
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)
[ ] (b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ------------------------------------------------
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 6 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) WESTBROOK BURNHAM HOLDINGS, L.L.C. --I.R.S.
IDENTIFICATION NO. ____
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GAOUP (See Instructions) (a)
[ ] (b)[ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) | |
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
OO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 7 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
WESTBROOK BURNHAM CO-HOLDINGS, L.L.C. --I.R.S. IDENTIFICATION NO. ____
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
[ ] (b) [ ]
3 SEC USE ONLY
SOURCE OF FUNDS (See Instructions)
4 WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
OO
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 8 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) Gregory J. Hartman
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)
[ ] (b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 9 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY)
Paul D. Kazilionis
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
[ ](b)[ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY ------------------------------------------------
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 10 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) Jonathan H. Paul
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF ------------------------------------------------
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 11 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) William H. Walton III
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 12 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) Patrick K. Fox
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 13 of 28 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
(ENTITIES ONLY) Keith Gelb
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -----------------------------
8 SHARED VOTING POWER
4,552,828
------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,552,828
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,828
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.36%
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
Page 14 of 28 Pages
A statement on Schedule 13G relating to the Common Stock (as defined
below) was filed with the Securities and Exchange Commission (the
"Commission") on behalf of the Reporting Persons (as defined below) on
February 9, 1999.
Item 1. Security and Issuer.
This statement on Schedule 13D (this "Schedule 13D") relates to the
Common Stock, par value $0.01 per share (the "Common Stock"), of Burnham
Pacific Properties, Inc., a Maryland corporation (the "Issuer"). The principal
executive offices of the Issuer are located at 110 West "A" Street, San Diego,
California 92101.
Item 2. Identity and Background.
(a) This Schedule 13D is being filed by (i) Westbrook Real Estate
Partners, L.L.C., a Delaware limited liability company ("WREP"), (ii)
Westbrook Real Estate Partners Management II, L.L.C., a Delaware limited
liability company ("WREM II"), (iii) Westbrook Real Estate Fund II, L.P., a
Delaware limited partnership ("WREF II"), (iv) Westbrook Real Estate
Co-Investment Partnership II, L.P., a Delaware limited partnership ("WRECIP
II"), (v) Westbrook Burnham Holdings, L.L.C., a Delaware limited liability
company ("Holdings"), (vi) Westbrook Burnham Co-Holdings, L.L.C., a Delaware
limited liability company ("Co-Holdings"), (vii) Gregory J. Hartman
("Hartman"), a member of WREP, (viii) Paul D. Kazilionis ("Kazilionis"), a
member of WREP, (ix) Jonathan H. Paul ("Paul"), a member of WREP, (x) William
H. Walton III ("Walton"), a member of WREP, (xi) Patrick K. Fox, a member of
WREP ("Fox"), and (xii) Keith Gelb, a member of WREP ("Gelb"). WREP, WREM II,
WREF II, WRECIP II, Holdings, Co-Holdings, Hartman, Kazilionis, Paul, Walton,
Fox and Gelb are sometimes referred to collectively herein as the "Reporting
Persons." The agreement among the Reporting Persons relating to the joint
filing of this statement is attached as Exhibit 7.1 hereto.
(b) The principal executive offices of WREP, WREM II, WREF II,
WRECIP II, Holdings and Co-Holdings are located at 599 Lexington Avenue, Suite
3800, New York, New York 10022. The principal business address for Hartman is
345 California Street, Suite 3450, San Francisco, California 94104. The
principal business address for Kazilionis is 284 South Beach Road, Hobe Sound,
Florida 33455. The principal business address for Paul and Gelb is 265
Franklin Street, Suite 1800, Boston, Massachusetts 02110. The principal
business address for Walton is 599 Lexington Avenue, Suite 3800, New York, New
York 10022. The principal business address for Fox is 13155 Noel Road-LB54,
Suite 2300, Dallas, Texas 75240.
(c) The principal business of Holdings and Co-Holdings is to hold
the equity securities of the Issuer. The principal business of WREF II and
WRECIP II is to make direct and indirect investments in real estate and real
estate interests. The principal business of WREM II is to serve as the general
partner of
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 15 of 28 Pages
- -------------------------------------------------------------------------------
each WREF II and WRECIP II. The principal business of WREP is to serve as the
managing member of WREM II and as the managing member of other similar funds.
The principal occupations of Hartman, Kazilionis, Paul, Walton, Fox and Gelb
are their activities on behalf of WREP.
(d) and (e) During the last five years, none of the Reporting
Persons, to the best knowledge of the Reporting Persons: (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which he or it
was or is subject to a judgment, decree or final order enjoining further
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
(f) The state of organization for each of WREP, WREM II, WREF II,
WRECIP II, Holdings and Co-Holdings is Delaware. Each of Hartman, Kazilionis,
Paul, Walton, Fox and Gelb is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
On December 5, 1997, Holdings and Co-Holdings acquired 2,495,529 and
304,461 shares, respectively of the Issuer's Series 1997-A Convertible
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), for a
total purchase price of $70,000,000. The acquisition of the 2,799,990 shares
of the Preferred Stock by Holdings and Co-Holdings was made pursuant to the
terms of a Stock Purchase Agreement, dated as of December 5, 1997, by and
between Holdings, Co-Holdings, the Issuer and Burnham Pacific Operating
Partnership, L.P. (the "Stock Purchase Agreement"), filed as Exhibit 7.2
attached hereto and hereby incorporated herein by reference. The source of
funds for such purchases reported herein was the Reporting Persons' capital
contributions. As of the date of this filing, Holdings and Co-Holdings have
acquired 2,799,990 shares of the Preferred Stock. No part of the purchase
price was or will be represented by funds or other consideration borrowed or
otherwise obtained for the purpose of acquiring, holding, trading or voting
the Preferred Stock.
Item 4. Purpose of the Transaction.
Holdings and Co-Holdings acquired the Issuer's securities for
investment purposes. Initially, the securities were not acquired or held for
the purpose or with the effect of changing or influencing the control of the
Issuer or in connection with or as a participant in any transaction having
that purpose or effect. However, in light of certain events described below,
the Reporting Persons intend to review their investment in the Issuer on a
continuing basis and to consider various alternative courses of action and
will in the future take such actions with respect to such investment as they
deem appropriate in light of the
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 16 of 28 Pages
- -------------------------------------------------------------------------------
circumstances existing from time to time, including without limitation any of
the actions described below.
On June 7, 1999, the Issuer received a letter from Schottenstein
Stores Corporation (together with its affiliates, "Schottenstein") proposing
that Schottenstein would acquire all of the outstanding capital stock of the
Issuer, as well as all of the interest in its operating partnership (the
"Schottenstein bid"). The Issuer reported the Schottenstein bid by filing a
Current Report on Form 8-K with the Commission on June 11, 1999. Despite
subsequent revisions of the Schottenstein bid, the Issuer did not pursue
discussion of the bid with Schottenstein and reported the rejection of the
Schottenstein bid in its Current Report on Form 8-K filed on July 30, 1999.
On June 23, 1999, the Issuer filed a Current Report on Form 8-K with
the Commission reporting the adoption on June 19, 1999, of a Shareholder
Rights Agreement (the "Rights Plan"). On August 6, 1999, the Issuer filed a
Current Report on Form 8-K with the Commission reporting the adoption on June
19, 1999, of an Executive Severance Plan, a Management Severance Plan and a
Rank and File Severance Plan, as well as the adoption on June 30, 1999, of
certain Senior Executive Severance Agreements with certain senior executives
and the adoption as of August 1, 1999 of certain Phantom Shares Agreements
with certain senior executives.
During the approximately five month period subsequent to the foregoing
events, the Issuer has failed to honor the rights of the Reporting Persons to
have a representative of such Persons attend and observe the meetings of the
Board of Directors and certain Board committee meetings of the Issuer in
accordance with the Stock Purchase Agreement. In addition, during such period,
the Reporting Persons have repeatedly notified the Issuer of their desire to
purchase shares of the Common Stock in the open market for purposes of
investment in accordance with the Stock Purchase Agreement and the related
resolutions of the Board of Directors, which purchases would be prevented by
the Rights Plan. The Issuer has refused to amend the Rights Plan to permit
such purchases by the Reporting Persons, and has advised that it will not do
so.
On November 12, 1999, the Issuer announced that the Board of Directors
had instructed management and Goldman, Sachs & Co. to expand the scope of
their activities to include actively pursuing a full range of strategic
alternatives in order to maximize shareholder value. In light of the summary
rejection by the Issuer of the Schottenstein bid and the subsequent
implementation of the measures described above which the Reporting Persons
believe have the effect of frustrating a change of control of the Issuer and
the actions described in the preceding paragraph, the Reporting Persons have
become increasingly concerned that the Issuer may not actively pursue such
strategic alternatives, and that the Issuer may not conduct an open,
transparent and fair process for the maximization of shareholder value to the
extent it does pursue such strategic alternatives.
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 17 of 28 Pages
- -------------------------------------------------------------------------------
Accordingly, the Reporting Persons now intend to closely evaluate
the commitment of the Issuer to the pursuit of such strategic alternatives,
including the overall fairness of the process implemented by the Issuer in
that effort, and to evaluate the performance of the Common Stock, including
but not limited to the continued analysis and assessment of the Issuer's
business, assets, operations, financial condition, capital structure,
management and prospects. Depending upon the Issuer's financial condition,
results of operations, future prospects and other factors which the Reporting
Persons deem relevant, including but not limited to the commitment of the
Issuer to the pursuit of strategic alternatives designed to maximize
shareholder value, the Reporting Persons may, among other things, (i)
communicate with other shareholders of the Issuer or persons who may desire to
become shareholders of the Issuer regarding the replacement of the Issuer's
existing executive officers and/or existing members of the Board of Directors
of the Issuer, (ii) seek the removal of one or more members of the Issuer's
Board of Directors and/or executive officers, (iii) solicit proxies, to be
used at either the Issuer's regular annual meeting of shareholders, or at a
special meeting of shareholders, for the purposes described in clauses (i)
and/or (ii) above or for the election of one or more nominees of the Reporting
Persons and/or such other shareholders (which may include one or more
designees of the Reporting Persons) to the Board of Directors of the Issuer,
(iv) seek to cause the Issuer to merge with or into, consolidate with,
transfer all or substantially all of its assets to, or otherwise engage in any
business combination with, one or more other parties other than the Reporting
Persons, (v) acquire or dispose of additional securities of the Issuer and/or
(vi) take such other actions as the Reporting Persons may determine.
Other than as described above, the Reporting Persons have no plans
or proposals which relate to or would result in (a) the acquisition by any
person of additional securities of the Issuer or the disposition of any such
securities, (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its
subsidiaries, (c) a sale or transfer of a material amount of assets of the
Issuer or any of its subsidiaries, (d) any change in the present Board of
Directors or management of the Issuer, (e) any material change in the present
capitalization or dividend policy of the Issuer, (f) any other material change
in the Issuer's business or corporate structure, (g) any change in the
Issuer's charter, bylaws or instruments corresponding thereto or other actions
which may impede the acquisition of control of the Issuer by any person, (h) a
class of securities of the Issuer being delisted from a national securities
exchange or ceasing to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association, (i) a class of equity
securities of the Issuer becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Act, or (j) any action similar to any of
those enumerated in (a) through (i) above.
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 18 of 28 Pages
- -------------------------------------------------------------------------------
Item 5. Interest in Securities of the Issuer.
(a) Holdings is the record owner of 2,495,529 shares of Preferred
Stock which are presently convertible into 4,057,770 shares of Common Stock of
the Issuer (such 4,057,770 shares, the "Holdings Conversion Shares"). The
number of Holdings Conversion Shares was calculated in accordance with Section
5 of the Articles Supplementary.
Co-Holdings is the record owner of 304,461 shares of Preferred Stock
which are presently convertible into 495,058 shares of Common Stock of the
Issuer (such 495,058 shares, the "Co-Holdings Conversion Shares"). The number
of Co-Holdings Conversion Shares was calculated in accordance with Section 5
of the Articles Supplementary.
Because of their relationship as affiliated entities, both Holdings
and Co-Holdings may be deemed to own beneficially both the Holdings Conversion
Shares and the Co-Holdings Conversion Shares. As the sole managing member of
Holdings, WREF II may be deemed to own beneficially both the Holdings
Conversion Shares and the Co-Holdings Conversion Shares. As the sole managing
member of Co-Holdings, WRECIP II may be deemed to own beneficially both the
Holdings Conversion Shares and the Co-Holdings Conversion Shares. As the sole
general partner of WREF II and WRECIP II, WREM II may be deemed to own
beneficially the Holdings Conversion Shares and the Co-Holdings Conversion
Shares. As the sole managing member of WREM II, WREP may be deemed to own
beneficially the Holdings Conversion Shares and the Co-Holdings Conversion
Shares. As the managing members of WREP, Hartman, Kazilionis, Paul, Walton,
Fox and Gelb may be deemed to own beneficially the Holdings Conversion Shares
and the Co-Holdings Conversion Shares.
Holdings disclaims beneficial ownership of the Co-Holdings
Conversion Shares. Co-Holdings disclaims beneficial ownership of the Holdings
Conversion Shares. WREF II, WRECIP II, WREM II, WREP, Hartman, Kazilionis,
Paul, Walton, Fox and Gelb each disclaim beneficial ownership of the Holdings
Conversion Shares and the Co-Holdings Conversion Shares.
Each of the Reporting Persons may be deemed to own beneficially
12.36% of the Issuer's Common Stock, which percentage is calculated based upon
(i) 32,268,296 shares of Common Stock reported outstanding by the Issuer as of
November 12, 1999, and (ii) that number of shares of Common Stock (4,552,828)
issuable upon the conversion of Preferred Stock owned by Holdings and
Co-Holdings.
According to the terms of Section 6.4 of the Stock Purchase
Agreement, Holdings and Co-Holdings also have certain preemptive rights
exercisable upon the issuance by the Issuer of additional Common Stock.
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 19 of 28 Pages
- -------------------------------------------------------------------------------
(b) Number of Shares as to which each such person has
(i) Sole power to vote or direct the vote: 0 shares for each
Reporting Person;
(ii) Shared power to vote or direct the vote: 4,552,828 shares for
each Reporting Person;
(iii) Sole power to dispose or to direct the disposition: 0 shares
for each Reporting Person;
(iv) Shared power to dispose or to direct the disposition: 4,552,828
shares for each Reporting Person.
(c) The Reporting Persons have not effected any transactions in
Common Stock directly or indirectly during the 60 days prior to the date of
this Schedule 13D.
(d) No one other than the Reporting Persons has the right to
receive, or the power to direct the receipt of, dividends from, or the
proceeds from the sale of, the 2,799,990 shares of Preferred Stock or any
other securities of the Issuer acquired by the Reporting Persons as described
in Item 3.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Section 10(e) of the Articles Supplementary sets forth certain
circumstances in which all holders of the Preferred Stock are required or
permitted to vote, grant or deny approvals or make or decline elections, in
each case with respect to the Preferred Stock, and provides that in each case
the matter shall be determined for all holders as WREF II may indicate. The
Issuer has granted to the holders of the Preferred Stock registration rights,
pursuant to a Registration Rights Agreement. In the second quarter of 1998,
WREF II and WRECIP II as borrowers entered into a loan facility with a
national lending institution in the maximum amount of $100 million. Various
asset owning entities owned directly or indirectly by WREF II or WRECIP II
guaranteed the loan facility, including Holdings and Co-Holdings, and WREF II
and WRECIP II pledged their respective interests in their respective asset
owning entities, including Holdings and Co-Holdings, in connection with such
facility. Except as described herein, to the best knowledge of the Reporting
Persons, there are no contracts, arrangements, understandings or relationships
(legal or otherwise) among the Reporting Persons or between the Reporting
Persons and any other person with respect to any securities of the Issuer,
including but not limited to transfer or voting of any such securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or
withholding of proxies, or a pledge or contingency the occurrence of which
would give another person voting power or investment power over the securities
of the Issuer.
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 20 of 28 Pages
- -------------------------------------------------------------------------------
Item 7. Material to be Filed as Exhibits.
Exhibit Description
------- -----------
7.1 Joint Filing Agreement and Power of Attorney,
dated as of February 25, 1999, by and among
Holdings, Co-Holdings, WREF II, WRECIP II,
WREM II, WREP, Hartman, Kazilionis, Paul,
Walton, Fox and Gelb and certain affiliated
entities relating to the joint filing of a
statement on Schedule 13D and other matters.
7.2 Stock Purchase Agreement, dated as of
December 5, 1997, by and among Holdings,
Co-Holdings, the Issuer and Burnham Pacific
Operating Partnership, L.P., incorporated by
reference to Exhibit 4.1 of the current
report on Form 8-K of Issuer dated
January 14, 1998.
7.3 Articles Supplementary of the Issuer
Designating 4,800,000 shares of Preferred
Stock as 4,800,000 shares of SERIES 1997-A
CONVERTIBLE PREFERRED STOCK, as filed with
the Maryland State Department of Assessments
and Taxation on December 31, 1997,
incorporated by reference to Exhibit 3.1-2 of
the current report on Form 8-K of Issuer
dated January 14, 1998.
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 21 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
WESTBROOK REAL ESTATE PARTNERS, L.L.C.
By: /s/ Patrick K. Fox
-------------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 22 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
WESTBROOK REAL ESTATE PARTNERS
MANAGEMENT II, L.L.C.
By: /s/ Patrick K. Fox
------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 23 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
WESTBROOK REAL ESTATE FUND II, L.P.
By: /s/ Patrick K. Fox
---------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 24 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 14, 2000
WESTBROOK REAL ESTATE CO-INVESTMENT
PARTNERSHIP II, L.P.
By: /s/ Patrick K. Fox
---------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 25 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
WESTBROOK BURNHAM HOLDINGS, L.L.C.
By: /s/ Patrick K. Fox
--------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 26 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
WESTBROOK BURNHAM CO-HOLDINGS, L.L.C.
By: /s/ Patrick K. Fox
------------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 27 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
GREGORY J. HARTMAN
/s/ Patrick K. Fox
--------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 28 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
PAUL D. KAZILIONIS
/s/ Patrick K. Fox
-------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 29 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
JONATHAN H. PAUL
/s/ Patrick K. Fox
-----------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 30 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
WILLIAM H. WALTON III
/s/ Patrick K. Fox
-------------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 31 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
/s/ Patrick K. Fox
---------------------------
Patrick K. Fox
<PAGE>
SCHEDULE 13D
CUSIP No. 12232C108 Page 32 of 28 Pages
- -------------------------------------------------------------------------------
Signature.
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct. Date: January 13, 2000
KEITH GELB
/s/ Patrick K. Fox
---------------------------
Name: Patrick K. Fox
Title: Attorney-in-Fact
COUNTERPART
JOINT FILING AGREEMENT
and
POWER OF ATTORNEY
This JOINT FILING AGREEMENT and POWER OF ATTORNEY, dated as of
February 25, 1999 (this "Agreement"), is by and among (i) Westbrook Real
Estate Partners, L.L.C. ("WREP"), (ii) Westbrook Real Estate Partners
Management I, L.L.C., (iii) Westbrook Real Estate Partners Management II,
L.L.C., (iv) Westbrook Real Estate Fund I, L.P., (v) Westbrook Real Estate
Fund II, L.P., (vi) Westbrook Real Estate Co-Investment Partnership I, L.P.,
(vii) Westbrook Real Estate Co-Investment Partnership II, L.P. (viii)
Westbrook Berkshire Holdings, L.L.C., (ix) Westbrook Berkshire Co-Holdings,
L.L.C., (x) Gregory J. Hartman, (xi) Paul D. Kazilionis, (xii) Jonathan H.
Paul, (xiii) William H. Walton III, and each other person or entity which
shall execute and deliver a counterpart of this Agreement pursuant to Section
4 hereof (each person or entity listed in clauses (i) through (xiv) above and
each such other person or entity, a "Reporting Person" and, collectively, the
"Reporting Persons").
Recitals:
A. Each Reporting Person except for WREP is a subsidiary or other
affiliate of WREP.
B. Certain of the Reporting Persons have made or will make a direct
or indirect equity investment in one or more of the business entities
(collectively, the "Public Companies") listed on Schedule I hereto (as the
same may be amended from time to time as set forth herein, "Schedule I"). Each
of the Public Companies has issued a class of securities registered pursuant
to Section 12 of the Securities Exchange Act of 1934, as amended (the "Act").
C. One or more of the Reporting Persons may now or in the future be
required to file statements or reports with the Securities and Exchange
Commission (the "Commission") in respect of such equity investments, pursuant
to Section 13 and/or Section 16 of the Act and the rules and regulations
thereunder (each such statement or report, an "SEC Filing").
Agreements:
1. Joint Filing Agreement. The Reporting Persons hereby agree that
any SEC Filing (including, without limitation, any statement on Schedule 13D,
Schedule 13G, Form 3, Form 4 or Form 5) filed with the Commission by any
Reporting Person in respect of any Public Company is, and any amendment
thereto filed by any Reporting Person will be, filed on behalf of each
Reporting Person named in such SEC Filing or amendment.
2. Power of Attorney. Each Reporting Person hereby constitutes and
appoints Patrick K. Fox and Susan Merkel, and each of them, its or his true
and lawful attorney-in-fact, with full powers of substitution and
resubstitution, for it or him and in its or his name, place and stead, in any
and all capacities, to sign any SEC Filing (including, without limitation, any
statement on Schedule 13D, Schedule 13G, Form 3, Form 4 or Form 5) relating to
any Public Company, and any and all amendments thereto, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto each of said attorneys-in-fact full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as they might or could do in person, hereby ratifying and confirming
all that each of said attorneys-in-fact or his or her substitute may lawfully
do or cause to be done by virtue hereof.
3. Amendment to Schedule I. At any time and from time to time, WREP
may, in its sole discretion and without the consent of any other party hereto,
amend Schedule I by adding one or more Public Companies to, and/or deleting
one or more Public Companies from, Schedule I hereof and inserting the date of
such amendment thereon. WREP shall thereupon file or cause to be filed with
the Commission a copy of this Agreement, as so amended, as an attachment to an
appropriate SEC Filing. Such Schedule I, as the same may be so amended from
time to time, is hereby incorporated herein and made a part hereof.
4. Additional Reporting Persons. Any subsidiary or other affiliate
of WREP designated by WREP may become a party to this Agreement by dating,
executing and delivering to WREP a counterpart hereof. WREP shall file or
cause to be filed with the Commission a copy of such counterpart as an
attachment to an appropriate SEC Filing, whereupon such signatory shall be,
and shall be bound as, a Reporting Person for all purposes of this Agreement.
<PAGE>
2
5. Miscellaneous. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. This Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
[SIGNATURE PAGES FOLLOW.]
<PAGE>
3
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement pursuant
to the requirements of the Act as of the date first above written.
WESTBROOK REAL ESTATE
PARTNERS, L.L.C.
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
WESTBROOK REAL ESTATE
PARTNERS MANAGEMENT I,
L.L.C.
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
WESTBROOK REAL ESTATE
PARTNERS MANAGEMENT II,
L.L.C.
By: Westbrook Real Estate Partners,
L.L.C., Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
<PAGE>
4
WESTBROOK REAL ESTATE FUND I,
L.P.
By: Westbrook Real Estate Partners
Management I, L.L.C., General
Partner
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
WESTBROOK REAL ESTATE FUND II,
L.P.
By: Westbrook Real Estate Partners
Management II, L.L.C., General
Partner
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
WESTBROOK REAL ESTATE CO-
INVESTMENT PARTNERSHIP I,
L.P.
By: Westbrook Real Estate Partners
Management I, L.L.C., General
Partner
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
<PAGE>
5
WESTBROOK REAL ESTATE CO-
INVESTMENT PARTNERSHIP II,
L.P.
By: Westbrook Real Estate Partners,
L.L.C.,
Management II, L.L.C., General
Partner
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
WESTBROOK BERKSHIRE HOLDINGS,
L.L.C.
By: Westbrook Real Estate Fund II, L.P.,
Managing Member
By: Westbrook Real Estate Partners
Management II, L.L.C., General
Partner
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
<PAGE>
6
WESTBROOK BERKSHIRE CO-
HOLDINGS, L.L.C.
By: Westbrook Real Estate Co-
Investment Partnership II, L.P.,
Managing Member
By: Westbrook Real Estate Partners
Management II, L.L.C., General
Partner
By: Westbrook Real Estate Partners,
L.L.C., Managing Member
By: /s/ Paul D. Kazilionis
-------------------------------
Name: Paul D. Kazilionis
Title: Managing Member
By: /s/ William H. Walton III
-------------------------------
Name: William H. Walton III
Title: Managing Member
/s/ Gregory J. Hartman
-------------------------------
Gregory J. Hartman
/s/ Paul D. Kazilionis
-------------------------------
Paul D. Kazilionis
/s/ Jonathan H. Paul
-------------------------------
Jonathan H. Paul
/s/ William H. Walton III
-------------------------------
William H. Walton III
<PAGE>
7
Schedule I
PUBLIC COMPANIES
February 25, 1999
Public Company Ticker Symbol
Berkshire Realty Company, Inc. BRI
Burnham Pacific Properties, Inc. BPP
Corporate Office Property Trust OFC
Essex Property Trust, Inc. ESS
Sunstone Hotel Investors, Inc. SSI
<PAGE>
8
IN WITNESS WHEREOF, the undersigned have duly executed this "Counterpart
Agreement" pursuant to the requirements of the Act as of December 22, 1999.
/s/ Patrick K. Fox
-------------------------------
Patrick K. Fox
/s/ Keith Gelb
-------------------------------
Keith Gelb
