SECURITIES AND EXCHANGE COMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 24, 1994
BEDFORD PROPERTY INVESTORS, INC.
(Exact name of Registrant as specified in its chapter)
Maryland 1-8822 68-03065-14
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
3658 Mt. Diablo Boulevard, Suite 210, Lafayette, California 94549
(Address of principal executive offices)
Registrant telephone number,
including area code: (510) 283-8910
Item 2: Acquisition or Disposition of Assets
On May 24, 1994, Bedford Property Investors, Inc.
completed the acquisition of Dupont Industrial Center
(formerly known as Leed-Ontario VI) , a three-building,
451,542 square foot industrial complex located in Ontario,
California for $9.75 million. The complex was acquired from
Deansbank Ontario Partners, a major client of Aldrich Eastman
Waltch, which is a Boston-based investment advisory firm
specializing in real estate. The purchase was financed using
the Company's $20 million revolving line of credit from Bank
of America.
Item 7: Financial Statements and Exhibits
(A) Financial Statements
Required financial information disclosures with respect to
the acquisition of Dupont Industrial Center will be filed
within sixty (60) days of this notice.
(B) Proforma Financial Information
Required proforma financial information disclosures with
respect to the acquisition of Dupont Industrial Center
will be filed within sixty (60) days of this notice.
(C) Exhibits and Exhibits Index
10.12 Purchase Contract for Dupont Industrial Center
99.4 Press Release regarding the acquisition in
Ontario, California
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the
registrant has duly caused this report to be signed on its
behalf by the undersigned,
thereto duly authorized.
BEDFORD PROPERTY INVESTORS, INC.
By: ____________________________________
Jay Spangenberg
Chief Financial Officer
Date:___________________________________________
EXHIBIT INDEX
Exhibit No. Exhibit
Page No.
10.12 Purchase Contract for Dupont Indistrial
Center 3
- - -
99.4 Press Release regarding the acquisition
in Ontario, California
<PAGE>
AGREEMENT OF PURCHASE AND SALE
1. SALIENT TERMS
1.1 Date: March 1, 1994
1.2 General Location: 1505, 1555, 1595 DuPont Avenue
Ontario, CA
1.3 Parties: Buyer: BEDFORD PROPERTY INVESTORS,
INC.,
A Real Estate Investment Trust
3658 Mount Diablo Boulevard
Lafayette, CA 94549
Facsimile No.: (510) 293-5697
Seller: DEANSBANK ONTARIO PARTNERS,
A California General
Partnership
c/o Aldrich Eastman Waltch
225 Franklin Street
Boston, MA 02110-2803
Facsimile No.: (617) 261-9555
Attention: J. Grant Monahon
1.4 Purchase Price: $9,750,000
1.5 Deposit: (a) Initial Deposit: $100,000
(b) Additional Deposit: $100,000
(c) Extension Deposit: $100,000
1.6 Escrow Holder: First American Title Guaranty
Co.
323 Court Street
San Bernardino, CA 92412
Facsimile No.: (909) 384-8481
Attention: Joan Somers
1.7 Scheduled Closing
Date: May 20, 1994
1.8 Extended Closing Date: June 20, 1994
1.9 Contingency Period: March 1, 1994 through April 22, 1994
2. DEFINITIONS
"Agreement." This Agreement of Purchase and Sale.
"Closing" or "Close of Escrow." Recordation of the
Grant Deed and disbursing of funds from the Escrow in
consequence thereof.
"Closing Date." The date upon which the Close of
Escrow occurs.
"Code." The Internal Revenue Code.
"Contingency Period." The period of time specified in
Section 1.9.
"Deed." The Grant Deed conveying title to the Realty
as provided in Section 7.5(a).
"Deposit." The amount described in Section 1.5 as may
be increased from time to time in accordance with the
provisions of Sections 6.2 and 6.3.
"Disapproved Exceptions." The exceptions to title
described in the Preliminary Report to which Buyer objects by
written notice to Seller within the Review Period.
"Environmental Laws." All laws, ordinances, statutes,
codes, rules, regulations, agreements, judgments, orders and
decrees now or hereafter enacted, promulgated or amended, of
the United States, the state, the county, the city or any
other political subdivision in which the Realty is located
and any other political subdivision, agency or
instrumentality exercising jurisdiction over the owner of the
Realty, the Realty or the use of the Realty relating to
pollution, the protection or regulation of human health,
natural resources or the environment, or the emission,
discharge, release or threatened release of pollutants,
contaminants, chemicals or industrial, toxic or hazardous
substances or waste or Hazardous Materials (defined below)
into the environment (including, without limitation, ambient
air, surface water, ground water or land or soil).
"Escrow." That certain escrow to be opened with the
Escrow Holder in respect of this Agreement and the Closing
thereof.
"Escrow Holder." The company described in Section
1.6.
"Hazardous Materials." Any substance which is or
contains: (i) any "hazardous substance" as now or hereafter
defined in Section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous
waste" as now or hereafter defined in the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.) ("RCRA") or regulations promulgated under RCRA; (iii)
any substance regulated by the Toxic Substances Control Act
(15 U.S.C. Section 2601 et. seq.); (iv) gasoline, diesel fuel
or other petroleum hydrocarbons; (v) asbestos and asbestos
containing materials, in any form, whether friable or
non-friable; (vi) polychlorinated biphenyls; (viii) radon
gas; and (ix) any additional substances or materials which
are now or hereafter classified or considered to be hazardous
or toxic under "Environmental Laws" or the common law, or any
other applicable laws related to the Realty.
"Improvements." All buildings, fixtures (including,
without limitation, mechanical, heating, ventilation and air
conditioning systems) and other improvements now located upon
the land described in Exhibit A.
"Leases." All leases with Tenants for the Realty in
effect as of the date hereof, or which are executed
subsequent to the date hereof, in accordance with the
provisions of Section 10.1 which are to be assigned to Buyer
upon Closing.
"Personal Property." All furniture, personal
property, machinery, apparatus and equipment owned by Seller
and located upon the Realty, including that property listed
in the inventory attached hereto as Exhibit B and
incorporated herein by reference.
"Preliminary Report." A report of the status of title
issued by Escrow Holder's title insurance divisions
describing the state of title to the Realty.
"Property." The Realty, the Improvements, all
appurtenances thereto, the Personal Property, the Leases and
the Service Contracts.
"Purchase Price." The amount stated in Section 1.4.
"Realty." All that certain real property generally
described in Section 1.2 and more particularly described in
Exhibit A attached hereto and made a part hereof by
reference, together with the Improvements now located
thereupon and all mineral rights, easements, hereditaments
and appurtenances pertaining thereto.
"Rental Income Guaranty Fund." The escrow account
described in Section 7.10.
"Review Period." From March 1, 1994 to the date as of
which this Agreement has been executed by both Buyer and
Seller.
"Service Contracts." All contracts to be assumed by
Buyer which may be necessary to operate the Realty and
Personal Property, including, without limitation, utility
contracts, water and sewer contracts, maintenance contracts,
management contracts and any other contracts or documents of
any nature relating to the Realty or Personal Property which
are to be assigned by Buyer at the closing.
"Situs State." The state in which the Property is
located.
"Tenants." All the Tenants under the Leases.
3. PARTIES
On the date specified in Section 1.1 hereof, the
parties specified in Section 1.3 hereof have entered into
this Agreement.
4. PROPERTY
Subject to all of the terms, conditions and provisions
of this Agreement, and for the consideration herein set
forth, Seller hereby agrees to sell and Buyer hereby agrees
to buy the following:
(a) The Realty;
(b) The Personal Property;
(c) All of Seller's right, title and interest in the
Leases, Service Contracts, Lease deposits, permits,
certificates of occupancy and whatever rights of any kind and
nature belonging to Seller and relating to the Property which
may be necessary to operate the Property.
5. PURCHASE PRICE
The Purchase Price shall be paid in cash on the
Closing Date at which time the Property shall be delivered to
Buyer as hereinafter described.
6. DEPOSIT
6.1 Initial Deposit. Buyer has heretofore deposited
the Initial Deposit of $100,000 with the Escrow Holder. The
Initial Deposit shall be placed in an interest bearing
account at the direction of Buyer. All interest earned on
such account shall belong to and be remitted to Buyer. If
this Agreement is terminated by Buyer during the Contingency
Period, the Initial Deposit shall be returned to Buyer.
6.2 Early Release to Buyer. Seller agrees that
until the expiration of the Contingency Period as hereinafter
defined, the Escrow Holder is authorized to take instruction
solely from Buyer regarding the release of the Deposit, and
Seller does hereby so instruct the Escrow Holder. The Escrow
Holder shall release the Deposit to Buyer, or apply the
Deposit to the Purchase Price, at the option of Buyer, upon
Close of Escrow. Upon delivery of the notice specified in
Section 9.3, Buyer shall place the Additional Deposit of one
hundred thousand dollars ($100,000) with the Escrow Holder
and the total Deposit shall then be two hundred thousand
dollars ($200,000).
6.3 Extension Deposit. Should Buyer elect to extend
the Closing Date as provided in Section 7.2, as a condition
thereto, Buyer shall increase the Deposit by the amount of
the Extension Deposit specified in Section 1.5(c).
6.4 Deposit as Liquidated Damages. IN EVENT THE
SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT
CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS AGREEMENT, SOLELY
ON THE PART OF BUYER, THE DEPOSIT SHALL BE PAID TO AND
RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN EVENT OF A
DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. THEREFORE, BY INITIALING BELOW,
THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED
UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE
OF SELLER'S DAMAGES AS SELLER'S EXCLUSIVE REMEDY AGAINST
BUYER IN THE EVENT OF A DEFAULT ON THE PART OF BUYER.
BUYER:_________________________
SELLER:_______________________
7. ESCROW
7.1 Opening of Escrow. Within two (2) business days
after the execution of this Agreement by both parties, a
signed copy of this Agreement shall be deposited by Buyer
with the Escrow Holder in order to open the Escrow. Refer-
ences herein to the opening of Escrow shall mean the date
that a copy of this Agreement is deposited with Escrow
Holder. By such deposit, Escrow Holder is hereby authorized
and instructed to act in accordance with the provisions of
this Agreement, which Agreement together with Escrow Holder's
standard general provisions, shall constitute Escrow Holder's
escrow instructions. Seller and Buyer shall each deposit
such other instruments and funds as are necessary to close
the Escrow and complete the sale and purchase of the Property
in accordance with the terms hereof.
7.2 The Closing Date. The Escrow is scheduled to
close at the offices of the Escrow Holder, on the date
specified in Section 1.7 unless (a) Buyer notifies Seller of
its election to extend the Closing for thirty (30) days and
(b) concurrently places the Extension Deposit with the Escrow
Holder as described in Section 6.3, in which case the Closing
Date shall be extended to the date specified in Section 1.8.
Time is specifically a matter of essence with respect to the
Closing Date, which may not be extended except by mutual
consent of the parties. If Escrow shall fail to close
because of failure of Buyer to comply with its obligations
hereunder, the costs incurred through the Escrow to the date
the Escrow is terminated, including the cost of the
Preliminary Report, shall be paid by Buyer. If the Escrow
shall fail to close because of failure of Seller to comply
with its obligations hereunder, such costs, without
limitation of Buyer's remedies, shall be paid by Seller. If
the Escrow should fail to close for any other reason, the
cost of terminating the Escrow shall be divided between the
parties.
7.3 Execution of Additional Instructions. The
obligations of each party which are herein agreed to be
undertaken by each party in the Escrow shall be and are
hereby made agreements of such party in and under this
Agreement independent of the Escrow. If any requirements
relating to the duties or obligations of Escrow Holder
hereunder are not acceptable to Escrow Holder, or if Escrow
Holder requires additional instructions, the parties agree to
make such deletions, substitutions and additions to these
escrow instructions relating to such duties or obligations of
Escrow Holder or clarification of these instructions as
counsel for Seller and for Buyer shall mutually approve, and
which do not substantially change this Agreement or its
intent. Seller and Buyer agree to perform, observe and
fulfill the requirements of this Agreement notwithstanding
said deletions, substitutions or additions to said escrow
instructions.
7.4 Closing Costs. Subject to the provisions of
Section 7.2 above, the expenses of the Escrow, the cost of
the policies of title insurance as described in Section 8.2,
all documentary transfer tax on the Deed, all sales and
excise taxes, Escrow fees, recording charges and other costs
of Closing shall be divided equally between Buyer and Seller,
except that each party shall bear its own attorneys' fees.
7.5 Documents to be Delivered by Seller. At the
Closing, Seller shall deposit into Escrow, for delivery to
Buyer at the Close of Escrow, the following documents:
(a) The Grant Deed fully executed, in
recordable form, sufficient to convey marketable and
insurable fee simple title to the Realty as previously
approved by Buyer in accordance with the provisions of
Section 8.1, in the form attached hereto as Exhibit C.
(b) The assignment of Leases described in
subsection (k) below and the security deposits related
thereto in the form of Exhibit D.
(c) The Tenant estoppel certificates in the
manner described in Section 10.2. The Tenant estoppel
certificates may be delivered to Buyer prior to the Closing
Date and outside of Escrow.
(d) Notices to Tenants under the Leases, in
the form of Exhibit E attached hereto, duly executed by
Seller.
(e) An assignment of Service Contracts
covering those Service Contracts to be assumed by Buyer, duly
executed by Seller in the form attached hereto as Exhibit F.
(f) The bill of sale for all Personal Property
in the form attached hereto as Exhibit G.
(g) A certificate from the Secretary of State
of the Situs State indicating that, as of a date no earlier
than fifteen (15) days prior to the Closing Date, there are
no filings against Seller in the office of the Secretary of
State under the Situs State Uniform Commercial Code which are
a lien on any of the Personal Property.
(h) A rent roll, current as of the Closing
Date, containing the information updating Exhibit H.
(i) An assignment to Buyer of Seller's rights,
if any, in all warranties which it may have from vendors,
contractors or servicing agents with respect to the physical
condition of the Property and in all permits, licenses and
certificates of occupancy relating to the Property or
required from governmental authority as a condition to
operation or occupation of the Property or any part thereof,
together with the originals or true copies thereof, if
available to Seller. This assignment will be included as part
of the assignment of Service Contracts in the form attached
hereto as Exhibit F.
(j) All Tenant correspondence, Tenant ledger
cards, keys, books, records (or copies thereof) and other
items used in connection with the operation of the Property.
Such items may be delivered to Buyer at the Property or at
the office of Seller's property manager and need not be
physically present at the Closing.
(k) The original executed copy of each Lease
(including any amendments), or, if the original executed copy
of any Lease cannot be located, a copy of such Lease
certified as true and correct by Seller. Such Leases may be
delivered to Buyer at the Property or at the office of
Seller's property manager and need not be physically present
at the Closing.
(l) The affidavit or the qualifying statement
described in Section 9.4 and attached hereto as Exhibit K.
(m) A certificate in the form of Exhibit L
stating that all of Seller's representations and warranties
in this Agreement remain true and correct as of the Closing
Date except as to matters of which Buyer was previously
notified or except as to matters set forth in the
certificate.
7.6 Buyer. At the Closing, Buyer shall deposit into
Escrow for delivery to Seller at the Close of Escrow the
following:
(a) The Purchase Price, as adjusted in
accordance with the prorations in Section 7.7.
(b) Executed and, where applicable
acknowledged, counterparts of the documents described in
Sections 7.5(b), (d), (e) and (i).
7.7 Closing and Prorations.
(a) All revenues and all expenses of the
Property shall be prorated and apportioned as of 12:01 a.m.
on the Closing Date, so that Seller shall bear all expenses
with respect to the Property and shall have the benefit of
all income with respect to the Property through and including
midnight of the day preceding the Closing Date. Any revenue
or expense amount which cannot be ascertained with certainty
as of the Closing Date shall be prorated on the basis of the
parties' reasonable estimates of such amount (other than
reimbursements for expenses, including taxes, not billed
currently to tenants) and shall be the subject of a final
proration 30 days after the Closing Date or as soon
thereafter as the precise amounts can be ascertained. A
statement setting forth such agreed prorations shall be
delivered to Escrow Holder. Escrow Holder shall not be
required to calculate any prorations.
(b) Prepaid rents and unapplied security
deposits under the Leases shall be credited to Buyer.
(c) Subject to the provisions of subsection
(d) below, expenses to be prorated shall include taxes
(including personal property taxes on Personal Property),
water rates and sewer rents, if any, payments under any
Service Contracts (provided that any delinquent payments
owing to Seller shall be treated in the same manner as
delinquent rents), gas, electricity and other utility
charges, any unfixed meter charges, if any (apportioned on
the basis of the last meter reading), license and permit fees
and other expenses customarily prorated. Buyer shall assume
all of Seller's obligations, if any, for broker's commissions
under the Leases which are not yet due and payable but con-
tingent upon renewals and/or the exercise of options or
acceptance of space, and shall reimburse Seller for its pro
rata share of any commissions paid by Seller on Leases
executed after February 22, 1994 applicable to the post-
Closing term of the applicable Leases. All other commissions
arising from the Leases which have been executed prior to
February 22, 1994, whether or not currently due or payable,
shall be credited to Buyer, or paid through escrow. If
possible, in lieu of prorating, utilities and other expenses
shall be contracted for in the name of Buyer as of the
Closing Date.
(d) Final proration of expenses (including
taxes) which are reimbursable by any then existing Tenant of
the Realty or any portion thereof shall not be prorated
hereunder (except to the extent that Seller is due a credit
for having already paid such expense). Buyer shall send
customary statements for reimbursement of operating expenses
and taxes to Tenants under the Leases after consulting with
Seller with respect to appropriate amounts due therefor, and
shall remit to Seller, upon receipt, Seller's prorated share
thereof, by allocating to Seller the product of the
apportionable item for the entire interval multiplied by a
fraction, the numerator of which is the number of days within
the specified interval which occur before the Closing Date
and the denominator of which is the number of days in the
specified interval.
7.8 Payment of Adjustments to Proration. If Buyer
shall become liable after the Closing for payment of any
property taxes assessed against the Property which are not
prorated at the Closing for any period of time prior to the
Closing Date, or if either party owes the other party a sum
of money based on adjustments made to prorations after the
Closing Date the obligor shall promptly pay that sum to the
other party within thirty (30) days after mutual agreement of
the amount due. If payment is not made within thirty (30)
days after mutual agreement of the amount due, interest
thereon shall be due at the rate of the lesser of (i) the
maximum interest rate permitted by law in the Situs State or
(ii) thirteen and one-half percent (13.5%) per annum, to the
date of payment.
7.9 Costs and Expenses. Seller and Buyer shall
share equally all recording charges, documentary transfer
taxes, transfer taxes, surtaxes, all premiums for the Title
Policy (provided the costs of any endorsements to the Title
Policy requested by the Buyer for additional coverage shall
be paid for by the Buyer), all survey costs, the escrow fees
charged by the Title Company and all other costs and expenses
in connection with the closing of the transactions
contemplated by this Agreement. Each party shall bear its own
attorneys' fees.
7.10 (a) Rental Guaranty. On the Closing Date,
Seller shall guaranty the rental income to Buyer for all
space within the Property in excess of 22,560 square feet
(the "Rental Guaranty") that is:
(i) Not subject to valid executed
leases under which the lease terms have commenced ("Unleased
Space"); or
(ii) Leased, but pursuant to the lease
the Tenant is not paying rent (in other words, a lease in
which the Tenant is occupying the leased space under a free
rent agreement ("Nonpaying Space"); provided, however, that
for purposes hereof, periods of free rent in excess of one-
half (1/2) of one (1) month per year of lease term under
leases generated after the Closing Date shall not be
considered free rent in determining Nonpaying Space.
The space which is subject to the Rental Guaranty is
hereinafter referred to as the "Rental Guaranty Space."
(b) Terms of Rental Guaranty.
(i) At the Closing, in full satisfaction
of Seller's obligations under this Section 7.10, the Escrow
Holder shall be instructed to deduct from the Purchase Price
and establish a separate escrow account for the management
thereof, an amount, not to exceed $400,000, derived by
multiplying $3.27 times the net rentable square footage of
the Rental Guaranty Space determined as provided above (the
"Rental Income Guaranty Fund"). Effective on the last day of
the calendar month next following the Closing Date and
continuing monthly thereafter (except as regards the Closing
Month defined below) until the Rental Income Guaranty Fund is
terminated (the "Fund Termination Date"), the Buyer shall
earn from the Rental Income Guaranty Fund a monthly rental
sum equal to 27.3 cents for each square foot of Rental Guaranty
Space in the Improvements in excess of 22,560 square feet.
(ii) On the fifth day of each month
following the Closing, the Escrow Holder shall disburse from
the Rental Income Guaranty Fund the amount billed to it by
the Buyer in satisfaction of the Rental Guaranty rent
obligation described in (i) above, provided the Seller has
received five (5) days' prior written notice thereof. For
purposes of Buyer's calculation of the balance of Rental
Guaranty Space for the period commencing on the Closing Date
and terminating on the last day of the calendar month in
which the Closing occurs (the "Closing Month"), Buyer shall
multiply the calculation by a fraction, the numerator of
which shall be the number of days after the Closing up to and
including the last day of the Closing Month, and the
denominator of which shall be the total number of days in the
Closing Month. Thereafter, Buyer's billing to the Rental
Income Guaranty Fund shall, in each month, be calculated as
the then balance of Rental Guaranty Space (as of the last day
of the preceding month) multiplied by 27.3 cents.
(iii) For purposes hereof, the Fund
Termination Date shall be the earlier of (1) the date on
which all funds are fully disbursed from the Rental Income
Guaranty Fund to the Buyer pursuant to the provisions set
forth above; or (2) the date as of which leases have been
executed for at least 406,072 square feet of space within the
Improvements (the "Rent-up Date").
(iv) To the extent there are funds
available in the Rental Income Guaranty Fund on the Rent-up
Date, such amount shall be distributed by the Escrow Holder
as follows:
(A) First, to the Buyer: an
amount equal to: (1) $1.092 times all Rental Guaranty Space
in the Improvements in excess of 22,560 square feet; less (2)
any rent payable by any Tenant for any Rental Guaranty Space
attributable to the four-month period immediately following
the Rent-up Date; and
(B) The balance, if any, to
Seller.
8. TITLE CONDITION OF THE PROPERTY
8.1 Preliminary Report. As soon as reasonably
possible after the opening of Escrow, Escrow Holder shall
deliver to Buyer a Preliminary Report together with copies of
all instruments giving rise to the exceptions contained in
the Preliminary Report. Buyer shall have the right to object
to any exceptions contained in the Preliminary Report within
the Review Period. Should Buyer fail to make any objections
by notice to Seller within the Review Period, the Preliminary
Report shall be deemed approved. In the event Buyer objects
to any exceptions contained in the Preliminary Report, Seller
shall have until the Closing Date to attempt to clear all
Disapproved Exceptions, but except for clearing monetary
liens, Seller shall not be obligated to clear any Disapproved
Exceptions. Seller's efforts to clear recorded monetary
liens shall include, if necessary, the posting of bonds.
Seller shall obtain and deliver to Escrow Holder a demand for
payment from any lien holder of record whose lien is to be
discharged at the Close of Escrow, and after approval of such
demand by Seller, Escrow Holder shall pay such demand at the
Close of Escrow. In the event Seller cannot remove from
title any Disapproved Exception by the Close of Escrow, Buyer
shall have the right to elect one of the following
alternatives:
(a) To waive such Disapproved Exceptions and
close the Escrow, or
(b) Terminate this Agreement and receive from
the Escrow Agent the Deposit and any interest thereon, or
(c) At its own initiative, clear any monetary
lien and close the Escrow, in which event the actual cost of
clearing any such monetary lien shall be paid by Seller
through Escrow.
8.2 Title Insurance. At the Close of Escrow and as
a condition thereto, the title insurer shall issue an ALTA
Owners Extended Form (B-1970) Policy of Title Insurance to
Buyer containing such endorsements as Buyer's counsel may
reasonably require, with liability in the amount of the
Purchase Price, showing title to the Realty vested in Buyer,
subject only to the exceptions approved by Buyer pursuant to
Section 8.1 above and to the non-delinquent real property
taxes and special assessments referred to in Section 7.7
above. Indemnification of the title insurer by Seller or any
other party, in order to induce the title insurer to insure
any otherwise Disapproved Exception, or to obtain any
endorsement required by Buyer, shall not be allowed except
with the prior written consent of Buyer after full disclosure
to Buyer of the nature and substance of the indemnity in the
matter to be indemnified against.
8.3 Survey. Buyer shall obtain a survey of the
Property, showing the boundaries thereof, the location of all
Improvements thereon and the location of all recorded
easements which affect the Property in form and substance
sufficient to enable the title insurer to issue an ALTA
policy as described in Section 8.2 hereof. The cost of such
survey shall be borne equally by Buyer and Seller. Seller
shall remit its share of the cost to Buyer with five (5) days
following billing therefor. Buyer shall have the right to
deduct such charge from the Purchase Price, among all other
remedies available to it at law, in equity or under the terms
of this Agreement.
9. CONDITIONS TO BUYER'S OBLIGATION
9.1 Contingency Period.
(a) As a condition to Buyer's obligation to
purchase hereunder, Buyer shall be entitled to examine the
Property, documents, and other information specified in
Section 9.2, along with such other economic, governmental,
development and marketing feasibility, and physical studies
and analyses as Buyer may require. Such examination,
analyses and studies shall be completed by Buyer by the date
specified in Section 1.9. Seller shall cooperate with Buyer
and will assist in obtaining and providing information
requested by Buyer.
(b) The conditions of this Article 9 are for
the benefit of Buyer, any or all of which may be waived by
Buyer in writing, at Buyer's sole option.
9.2 Seller's Obligation. Seller has or shall
provide to Buyer the following with respect to the Property:
(a) Financial records and statements,
including
(i) monthly operating statements for
the Property for the previous twelve (12) months;
(ii) monthly cash flow statements for
the Property for the previous twelve (12) months, and annual
cash flow statements for the previous three (3) calendar
years, each stating all income, expense, capital
expenditures, cash receipts of any kind, and cash balances;
(iii) access to all backup information
and records to the statements provided in (i) and (ii) above,
which access shall be made available to Buyer for a period of
twenty-four (24) months following the Closing.
(b) Access to the Property by Buyer, its
agents or representatives to inspect the physical condition
of every portion thereof, including, without limitation,
soils conditions, geology, archaeology, hazardous waste,
asbestos, endangered species, availability, capacity and
costs of utilities.
(c) Copies of date stamped architectural
plans, soils reports and engineering reports available to
Seller. Seller makes no representation as to the accuracy
thereof.
(d) Copies of all Leases affecting the
Property, insurance policies of the Tenants (if available to
Seller), Tenant payment records for the preceding twenty-four
(24) months, all warranties and other contracts or documents
of significance to the Property, including agreements
evidencing any landlord obligations arising from the leases
which may not be described therein, such as, by example,
commissions due or which may become due, construction
obligations and the like.
(e) The rent roll attached hereto as Exhibit
H.
(f) Copies of all building permits,
certificates of occupancy and all other governmental licenses
and permits for the Improvements in the possession of Seller.
(g) Any other information in Seller's
possession pertaining to the Property reasonably requested by
Buyer.
9.3 Notice. Buyer shall have until the end of the
Contingency Period to make all audits, inspections or
investigations with respect to the Property or any of the
items furnished pursuant to Section 9.2 above. If Buyer
approves all of the above, which Buyer may do or refuse to do
in its sole subjective judgment, it shall so notify Seller in
writing prior to the expiration of the Contingency Period.
If Buyer does not notify Seller in writing that it has
approved the above items, this Agreement shall become null
and void upon the expiration of the Contingency Period, the
Initial Deposit shall be returned to Buyer forthwith, this
Agreement shall become null and void and there shall be no
further obligation on the part of either party. Buyer shall
indemnify and hold Seller harmless from any claims, damages,
causes of action or costs (including reasonable attorneys'
fees) resulting from inspections and audits conducted by
Buyer or its agents or representatives. Notwithstanding any
other provision of this Agreement to the contrary, this
indemnification shall survive the termination or closing of
this Agreement. Prior to the expiration of the Contingency
Period, Buyer shall notify Seller in writing of all Service
Contracts affecting the Realty which Buyer wishes to assume
at the Closing. All Service Contracts which Buyer does not
wish to assume at the Closing shall be terminated by Seller
on or prior to the Closing.
9.4 Foreign Person.
(a) As a condition to the closing of this
transaction, Seller shall deliver to Buyer on the Closing
Date (or such earlier date as may be required pursuant to
regulations promulgated by the Secretary of the Treasury
under Section 1445 of the Code an affidavit of Seller, or an
authorized officer of Seller, sworn under penalty of perjury
setting forth Seller's United States tax identification
number and stating that Seller is not a foreign person, and
is an United States Person as defined in the Code.
(b) It is understood and agreed that in lieu
of furnishing such nonforeign affidavit, Seller may furnish
to Buyer a qualifying statement issued by the United States
Treasury, at such time and in such manner and subject to such
terms and conditions as may be proscribed by regulations and
promulgated under Code Section 1445. Such qualifying
statement shall be in form and content satisfactory to
Buyer's counsel and shall provide adequate assurance that
Seller has met its obligations with respect to the taxation
of foreign persons and entities under the Code.
(c) If by the Closing Date Seller shall not
have furnished to Buyer either the affidavit specified in
paragraph (a) or the qualifying statement described in
paragraph (b) hereof with respect to this transaction, or
such statement is false, Buyer may at its sole option either:
(i) adjourn the Closing until such time as Seller has
complied with the conditions set forth herein, and such
adjournment shall not place Buyer in default of its
obligations hereunder; or, alternatively, (ii) Buyer may
withhold from the Purchase Price payable to Seller at Close
of Escrow and remit to the Internal Revenue Service, a sum
equal to ten per cent (10%) of the gross selling price of the
Property in accordance with the withholding obligations
imposed upon Buyer pursuant to Code Section 1445. Such with-
holding shall not place Buyer in default under this
Agreement, and Seller shall not be entitled to claim that
such withholding shall excuse Seller's performance under the
Agreement.
9.5 Waiver. In the event of a breach by Seller of
any of its covenants or other agreements set forth in this
Agreement, Buyer may elect (i) nevertheless to proceed with
the purchase of the Property, reserving all of its other
rights and remedies available to it under this Agreement or
otherwise at law or in equity including, without limitation,
the right to collect damages for such breach from Seller and
the right to indemnification as provided in Section 14.1, or
(ii) to terminate this Agreement by written notice to Seller
delivered prior to Closing, and upon such termination Buyer
and Seller shall be relieved of all further obligations
hereunder. Notwithstanding the above, if Buyer has actual
knowledge of any breach by Seller under this Section 9.5
prior to the Closing and Buyer nevertheless proceeds with the
Closing, Buyer shall be deemed to have waived any right or
claim to monetary recovery for Seller's breach under (i)
above.
9.6 Approval of Board of Directors. This Agreement
is subject to approval of the Board of Directors of Buyer on
or before the expiration of the Contingency Period. If Buyer
does not terminate this Agreement on or before the expiration
of the Contingency Period, it shall be conclusively presumed
that the Board of Directors of Buyer has approved this
Agreement and this Agreement shall be fully binding on Buyer.
10. TENANT LEASES AND OTHER MATTERS
10.1 Existing Tenants. Portions of the Property have
been leased by Seller or its predecessors to various Tenants.
Attached hereto as Exhibit H and incorporated herein by
reference is a Rent Roll and list of such Tenants, which list
includes the termination date of each Lease, the rent payable
thereunder, any renewal options, and the security deposit, if
any, posted by each Tenant, as of the date of this Agreement.
Seller shall furnish to Buyer copies of any new Lease or
Change (defined below) entered into prior to the expiration
of the Contingency Period and, if Buyer does not approve of
same, Buyer may terminate this Agreement by written notice to
the Seller prior to the expiration of the Contingency Period.
If Buyer fails to terminate this Agreement by the end of the
Contingency Period, any new Tenant Lease or Change entered
into by Seller prior to the end of the Contingency Period
shall be deemed approved by Buyer. After the end of the
Contingency Period, Seller shall not enter into any new Lease
or modify, extend, supplement, replace, terminate, assign or
otherwise change or amend any existing Lease or enter into
any contracts or agreements, or permits Tenants to enter into
any contracts or agreements pertaining to the Property which
require the consent of Seller unless those contracts can be
terminated without penalty on thirty (30) days' notice
(collectively, a "Change") without the prior written consent
of Buyer. Failure to respond in writing within five (5)
business days following written request therefor from Seller
shall be deemed conclusively to constitute Buyer's approval
of the requested Change. In the event Buyer timely notifies
Seller of its disapproval of any requested new Lease or
Change, the reason for such disapproval shall be stated in
sufficient detail to allow Seller the ability to satisfy
Buyer's objections, if possible. Buyer shall, upon Closing,
be responsible for the payment of all Tenant improvements,
leasing commissions and other costs to landlord associated
with any new Lease or Change executed after February 22,
1994. Upon the Close of Escrow, Buyer shall notify each
Tenant, in writing, of its acquisition of the Property. Said
notice shall set forth Buyer's address for payment of rent
and the giving of notices and shall also recite that the
Tenant's security deposit, if any, has been delivered to
Buyer. Seller shall, if requested by Buyer, join in the
execution of such notice at Close of Escrow, as a condition
to Closing.
10.2 Estoppel Certificates. Seller shall use its
best efforts to obtain and furnish to Buyer as soon as
reasonably possible following the expiration of the
Contingency Period and, in any event, no later than the day
before the Closing Date, estoppel certificates from each of
the Tenants on Exhibit H and each Tenant with whom a Lease
has been executed after the date hereof, such estoppel
certificates to be substantially in the form attached hereto
as Exhibit J. If Seller obtains estoppel certificates from
each Tenant (i) certifying that the Lease is unmodified and
in full force and effect (or, if modified, stating the nature
of such modification and certifying that the Lease, as so
modified, is in full force and effect) and the date to which
the rent and other charges are paid, (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on
the part of the landlord under the Lease, or specifying such
defaults if any are claimed and (iii) that any such statement
may be conclusively relied upon by Buyer, but fails to obtain
the remaining information requested in the estoppel
certificates (the "Voluntary Information"), such incomplete
estoppel certificates shall be deemed sufficient and Seller
shall be deemed to have complied with this Section 10.2.
However, if the information provided by any Tenant in the
estoppel certificates (i) conflicts with information
previously provided by Seller to Buyer pursuant to this
Agreement, or (ii) discloses additional information not
provided by Seller which is materially adverse to the Lease,
Buyer may terminate this transaction based solely upon the
conflicting or additional adverse information provided in the
estoppel certificates. In the event that Seller is unable to
obtain an estoppel certificate from any Tenant listed in
Exhibit H, then at the Closing Buyer may, at its option,
accept Seller's certificate for each Lease for which an
estoppel certificate is not obtained, containing a repre-
sentation that such Lease is in full force and effect, that
there are no modifications or amendments to such Lease except
as delivered to Buyer, that Tenant is not in default there-
under (or stating such default as may exist) that Seller, as
landlord, is not in default thereunder, and stating the
commencement and expiration dates of such Lease.
Notwithstanding the above, if Seller (i) obtains estoppel
certificates from Tenants whose payments of rent to Seller
comprise at least eighty percent (80%) of the total amount
stated on the Rent Roll as of the date of this Agreement,
(ii) obtains estoppel certificates from one hundred percent
(100%) of those Tenants with whom Seller executes Leases
between the date of this Agreement and the Closing and (iii)
executes a Seller's certificate as described above for each
of the remaining Tenants who are not included under (i) or
(ii), Seller shall be deemed to have complied with this
Section 10.2. Upon the Close of Escrow, Buyer shall notify
each Tenant, in writing, of its acquisition of the Property
as specified in Section 7.5(d). Seller shall, if requested
by Buyer, join in the execution of such notice at Close of
Escrow, as a condition to Closing.
10.3 Delinquent Tenants. Nondelinquent rents shall
be prorated up to the Closing Date through the Escrow, based
upon schedules to be given to Escrow Holder by Seller and
approved by Buyer. Rents delinquent at the Closing Date but
collected later, shall be prorated to the Closing Date when
collected. Rents collected after the Closing Date from
Tenants whose rental was delinquent at Closing shall be
deemed to apply first to the current rental due at the time
of payment and second to rentals which were delinquent at
closing. Rents collected by Buyer after the Closing Date to
which Seller is entitled, shall be promptly paid to Seller.
For a period of ninety (90) days after the Closing Date,
Buyer shall use reasonable efforts to collect all rents which
are delinquent at the Closing Date with no obligation to
commence litigation to collect such rents. Commencing as of
ninety-one (91) days after the Closing Date, Seller may take
all steps it deems appropriate, including litigation, to
collect all rents delinquent at the Closing Date which are
still uncollected.
10.4 Insurance. Seller shall maintain its existing
insurance coverage on the Property in full force and effect
through the Closing Date.
10.5 Operations. Seller shall operate and maintain
the Property in a businesslike manner, substantially in
accordance with Seller's past practices, and make any and all
repairs and replacements reasonably required in accordance
with Seller's past practices, to deliver the Property to
Buyer at Closing in its present condition, normal wear and
tear excepted.
11. MISCELLANEOUS DATA TO BE PROVIDED BY SELLER
11.1 Construction Contracts. Within five (5) days of
execution hereof Seller shall provide Buyer with a schedule
which sets forth all obligations for Tenant improvement work
in progress or committed to be done in the Improvements as of
the date of this Agreement. Said schedule need not include
obligations for routine maintenance work or periodic
remodeling work which may be set forth in any of the Tenant
Leases. Seller shall be responsible for the completion of
any payment for construction as set forth therein. From and
after the date hereof, Seller shall not enter into any new
contracts or agreements for such work where the total cost of
the work under the contract or agreement exceeds Five
Thousand Dollars ($5,000), without the prior consent of
Buyer, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the above, Buyer's
consent shall not be required for work completed pursuant to
Tenant improvements under Leases approved by Seller under
Section 10.1.
12. WARRANTIES AND REPRESENTATIONS
12.1 Warranties and Representations by Seller.
(a) Seller hereby makes the following
additional representations, covenants and warranties and
acknowledges that the execution of this Agreement by Buyer
has been made and the acquisition by Buyer of the Property
will have been made in material reliance by Buyer on such
covenants, representations and warranties:
(i) Litigation. To the best knowledge
and belief of Seller, there is presently no claim,
litigation, proceeding or governmental investigation pending
or threatened against or relating to the Property or the
transactions contemplated hereby. Seller shall give Buyer
immediate notice of any such claim, litigation proceeding or
investigation which becomes known to it prior to the Closing
Date.
(ii) Compliance with Laws. No notice of
violation of any applicable zoning regulation or ordinance or
other law, order, ordinance, permit, rule, regulation or
requirement, or any covenants, conditions or restrictions
affecting or relating to the use, operation or occupancy of
the Property has been given to Seller by any governmental
agency having jurisdiction or by any other person entitled to
enforce the same.
(iii) Environmental.
(A) As of the date of this Agree-
ment Seller has not received any notice that Seller and/or
the Property are in violation of any federal, state or local
law, ordinance or regulation relating to industrial hygiene,
soil, water, or environmental conditions on, under or about
the Property including, but not limited to, the Environmental
Laws.
(B) During the period that Seller
has owned the Property, Seller has not received any notice
that there has been any use, presence, disposal, storage,
generation, release, or threatened release (as those terms
are used in the Environmental Laws, and hereinafter
collectively referred to as "Use") of Hazardous Materials on,
from or under the Property, in violation of the Environmental
Laws, except as previously disclosed by Seller to Buyer in
writing.
(C) Seller has no actual
knowledge of any Use of Hazardous Materials, on, from or
under the Property which may have occurred prior to Seller
taking title to the Property in violation of any
Environmental Law, except as previously disclosed by Seller
to Buyer in writing.
(D) During the period that Seller
has owned the Property, there has been no enforcement action
or litigation brought or threatened against Seller or the
Property, nor any settlements reached by or with any party or
parties alleging the Use of any Hazardous Materials on, from
or under the Property, except as previously disclosed by
Seller to Buyer in writing.
(iv) Foreign Person. Seller is not a
foreign person and is a "United States Person" as such term
is defined in Section 7701(a)(30) of the Internal Revenue
Code of 1954 as amended.
(v) Condemnation. Seller has received
no notice of any pending or contemplated condemnation of the
Property or any part thereof.
(vi) Default. The closing of the
various transactions contemplated by this Agreement will not
constitute or result in any default or event that with a
notice or lapse of time, or both, would be a default, breach
or violation of any lease, mortgage, deed of trust, covenant
or other agreement, instrument or arrangement by which Seller
or the Property are bound, or any event which would permit
any party to accelerate the maturity of any indebtedness or
other obligation. No consent or joinder by any partner of
Seller is required for this Agreement or the performance of
Seller's obligations hereunder.
(vii) Contracts. Other than the Leases
and Service Contracts being assumed by Buyer, at Closing
there shall be no outstanding contracts made by Seller for
any Improvements to the Property which have not been fully
paid for by Seller.
(viii) Authority of Seller. Seller is a
partnership duly organized and validly existing and in good
standing under the laws of the State of California and has
the authority to own and convey the Property, this Agreement
and all documents executed by Seller which are to be
delivered to Buyer at the Closing are or at the time of
Closing will be duly authorized, executed and delivered by
Seller and do not and at the time of Closing will not violate
any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Property is
subject.
(ix) Lease Status. Except as provided
in the Leases and/or the Changes delivered to Buyer by Seller
pursuant to Section 10.1, the Leases are in full force and
effect and there are no other agreements, modifications,
extensions, supplements or other amendments of any kind
whatsoever with respect to the Leases. To Seller's actual
knowledge, there are no defaults under any of the Leases by
either Seller or any Tenant thereunder.
(b) At and After Closing. All representations
and warranties contained in Subsection (a) of this Section or
made elsewhere in this Agreement shall be true and correct on
the date hereof, and on the Closing Date except to the extent
Buyer has been notified to the contrary after the date hereof
and prior to Closing Date, and liability for
misrepresentation or breach of warranty or covenant shall
survive the Closing. It is agreed that in addition to
Buyer's damages resulting from misrepresentation or breach of
warranty or covenant by Seller, Buyer shall be entitled to
court costs and reasonable attorney's fees. Notwithstanding
the above, Buyer shall not be entitled to punitive damages.
(c) Buyer's Rights. Upon notification prior
to Closing of any fact which would change any of the
representations or warranties contained herein or would
otherwise constitute a breach thereof, Buyer shall have the
option of (i) waiving the breach of warranty or change, (ii)
agreeing with Seller to adjust the terms hereof to compensate
Buyer for such change or (iii) to terminate this Agreement.
Seller covenants and agrees to notify Buyer of any change in
the representations and warranties as set forth herein which
occur prior to the Closing.
As used in this Agreement, the words "to the best
knowledge and belief of Seller" or similar language includes
the knowledge of any agent of and presently engaged by Seller
after due inquiry. The words "Seller's actual knowledge" or
similar language shall mean the actual knowledge of either
James J. Brinkerhoff ("Brinkerhoff"), George Fryer ("Fryer")
or Lloyd A. Doran ("Doran") who are the Seller's asset
managers for the Property. Brinkerhoff's, Fryer's or Doran's
actual knowledge shall mean that no information has come to
the attention of Brinkerhoff, Fryer or Doran after having
made reasonable inquiry of the local property manager that
would give Brinkerhoff, Fryer or Doran any conscious
awareness of the inaccuracy of any statement limited by the
term "Seller's actual knowledge" or similar language. Seller
does hereby represent and warrant that Brinkerhoff, Fryer and
Doran are the employees of Seller's agent who have acted as
Seller's asset managers of the Property since completion of
the Improvements and no other parties who are current
employees of Seller or Seller's agent have had any such
responsibility during Seller's ownership.
12.2 Representations of Authority. Each signatory
party hereby represents to the other that this Agreement has
been duly executed by duly authorized officers or general
partners of such party and constitutes a valid, binding and
enforceable obligation of such party.
12.3 Buyer's Representations. Buyer makes the
following representations and warranties to Seller:
(a) Buyer is a corporation duly formed and
validly existing in the State of Maryland and is qualified to
do business in the State of California. Except as provided
in Section 9.6, the execution and delivery of this Agreement
have been duly authorized to the extent required by Buyer's
organizational documents and no further action on the part of
Buyer is necessary in order to permit Buyer to enter into
this Agreement. This Agreement constitutes the valid and
binding obligation of Buyer enforceable in accordance with
its terms.
(b) Buyer has full right, power and authority
and is duly authorized to enter into this Agreement, to
perform each and every one of the covenants on its part to be
performed hereunder and to execute and deliver and to perform
its obligations under all documents required to be executed
and delivered by Buyer pursuant to this Agreement.
(c) The execution of this Agreement by Buyer
and Buyer's observance and performance of all of its
covenants and obligations hereunder do not contravene any
judgment, order or provision of the law or any agreement
binding upon the Buyer and, when executed and delivered by
Buyer, the documents and instruments required to be executed
and delivered by Buyer pursuant to this Agreement shall
constitute valid and binding obligations of the Buyer in
accordance with their respective terms.
(d) There has not been filed by, or to Buyer's
knowledge against Buyer, any petition in bankruptcy or other
insolvency proceedings or proceedings for reorganization of
Buyer or for the appointment of a receiver or trustee for all
or any substantial part of Buyer's property, nor has Buyer
made any assignment for the benefit of its creditors or filed
a petition for an arrangement, or entered into an
arrangement, with creditors or otherwise admitted in writing
its inability to pay its debts as they become due.
(e) There is no litigation or proceeding
pending, or to Buyer's knowledge, threatened against Buyer
which would affect Buyer entering into this Agreement or
completing the transactions contemplated hereunder.
(f) John Papini, Buyer's executive in charge
of acquisition for the Property, has no actual knowledge of
any facts or circumstances which if known to Sellers, would
make Sellers' representations and warranties to Buyer as set
forth in Section 12.1 above incorrect, untrue or misleading
except as he has so informed the Seller in writing prior to
Closing.
13. DAMAGE, DESTRUCTION AND CONDEMNATION
13.1 Risk of Physical Loss.
(a) Substantial Loss. Risk of physical loss
to the Improvements shall be borne by Seller prior to the
Closing Date and by Buyer thereafter. In the event that any
Improvements shall be damaged by fire, flood, earthquake or
other casualty in a material degree (that is, to the extent
that ten percent (10%) or more of the total floor space of
the Improvements are rendered unusable as of the Closing
Date), Buyer may, at its option: (i) elect not to acquire the
Property, in which case this Agreement shall be terminated;
or (ii) elect to proceed to close the purchase of the
Property, in which case Seller shall assign to Buyer all
insurance proceeds relating to such damage as well as the
right to negotiate the adjustment with the insurer. Seller
shall promptly thereupon provide Buyer with copies of its
insurance coverage so that Buyer may use such information in
making its election hereunder.
(b) Minor Loss. If less than ten percent
(10%) damage occurs to any of the Improvements, then Seller
shall assign to Buyer at the closing all insurance proceeds
relating to such damage.
13.2 Condemnation. In the event that, prior to the
Close of Escrow, a governmental entity shall commence any
action of eminent domain to take any portion of the Property,
Buyer shall have the option either to (i) elect not to
acquire the Property, in which case this Agreement shall be
terminated, or (ii) complete the acquisition of the Property,
in which case Buyer shall be entitled to the proceeds of such
taking.
14. INDEMNITY
14.1 Brokers and Finders. Each party represents and
warrants to the other that it has dealt with no real estate
brokers, agents, finders or similar persons in connection
with the negotiation and execution of this Agreement or the
transactions contemplated hereby other than CB Commercial
("Principal Agent"). If this Agreement closes, Seller agrees
to pay to Principal Agent all commissions and fees owed to
Principal Agent pursuant to a separate commission agreement
between Seller and Principal Agent. Seller shall indemnify
Buyer against any loss, cost, damage, or expense, including
reasonable attorney's fees and court costs, suffered or
incurred by Buyer, as a result of any broker, agent, finder
or similar person claiming by, through or under Seller. Buyer
agrees to indemnify Seller against any loss, cost, damage, or
expense including reasonable attorney's fees and court costs,
suffered or incurred by Seller, as a result of any broker,
agent, finder or similar person claiming by, through or under
Buyer, except for Seller's obligations to Principal Agent as
stated above.
15. MISCELLANEOUS
15.1 Attorneys' Fees. In the event of any action
between Buyer and Seller seeking enforcement of any of the
terms and conditions of this Agreement, or in connection with
the Property, the prevailing party in such action shall be
awarded, in addition to damage, injunctive or other relief,
its reasonable costs and expenses, including but not limited
to taxable costs and reasonable attorneys' fees.
15.2 Notices. All notices under this Agreement shall
be deemed delivered upon personal delivery to Buyer or
Seller, or on receipt, in the case of delivery by reputable
courier service which provides written evidence of delivery,
to the addresses stated in the first paragraph of this
Agreement, or such other address as the parties may from time
to time designate in writing. A copy of notices to Seller
shall be sent to:
Robert L. Trimble, Esq.
Andrews & Kurth
4400 Thanksgiving Tower
Dallas, TX 75201
Facsimile No. (214) 969-9334
A copy of any notice to Buyer shall be sent to:
Martin I. Zankel, Esq.
Zankel & McGrane
One Embarcadero Center, Suite 1200
San Francisco, CA 94111
Facsimile No. (415) 956-7237
As a matter of convenience, however, communications between
Buyer and Seller shall, to the extent feasible, be conducted
orally, by telephone or in person, between counsel or other
authorized agents of the parties, with such communications to
be confirmed and made effective in writing as set forth
above.
15.3 Entire Agreement. This Agreement and the items
incorporated herein contain all of the agreements of the
parties hereto with respect to the matters contained herein;
and no prior agreement or understanding pertaining to any
such matter shall be effective for any purpose. No
provisions of this Agreement may be amended or modified in
any manner whatsoever except by an agreement in writing
signed by duly authorized officers or general partners of
each of the parties hereto, except that any modifications
which relate to the adjustment of time limitations (except
the Closing Date) or the form of documents may be made by
legal counsel to the parties.
15.4 Successors. The terms, covenants and conditions
of this Agreement shall be binding upon and shall inure to
the benefit of the heirs, executors, administrators and
assigns of the respective parties hereto.
15.5 Assignment. Seller may not assign its rights
hereunder without the prior written consent of Buyer. Buyer
may assign its rights hereunder so long as it covenants to
remain responsible for the full performance hereof through
Close of Escrow.
15.6 Choice of Laws. This Agreement shall be
governed by the laws of the State of California and any
question arising hereunder shall be construed or determined
according to such law.
15.7 Headings. Headings at the beginning of each
numbered section of this Agreement are solely for the conve-
nience of the parties and are not a part of this Agreement.
15.8 Survival. The parties' obligations pursuant to
the Agreement shall survive only for a period of two (2)
years from the Closing Date.
15.9 Counterparts. This Agreement may be signed by
the parties in different counterparts and the signature pages
combined to create a document binding on all parties.
15.10 Confidentiality. Neither party shall disclose
the terms, provisions and conditions of this Agreement to any
person or entity without the prior written consent of the
other party; provided, however, that either party shall have
full right to disclose the terms, provisions and conditions
of this Agreement and any other matter concerning the
Property or this transaction to that party's brokers,
attorneys, accountants, consultants, advisors,
representatives, agents, employees, investors, lenders, loan
brokers, architects, engineers, successors and assigns, or
any other person with whom that party consults as to the
purchase or the sale of the Property, respectively, or as
otherwise may be required by law.
15.11 No Offer. The submittal or execution of this
Agreement, or a draft thereof, by either party shall not
constitute an offer, nor shall either party be bound to any
of the terms hereof until both parties have executed this
document and an original signature copy of such executed
document has been received by each party.
15.12 Buyer's Risk. Buyer agrees and acknowledges
that Buyer has been and will be furnished access to the
Property for the purpose of assessing its condition and
allowing Buyer to make Buyer's own determination as to
whether or not Buyer wishes to purchase the Property.
Therefore, it is agreed and acknowledged that the Property
shall be conveyed and accepted "AS IS, WHERE IS, WITH ALL
FAULTS", both latent and patent, and such conveyance shall be
made without, and Seller makes no representation or warranty
of any kind, express or implied, except those expressly set
forth in this Agreement. Notwithstanding anything contained
elsewhere in this Section 15.12 to the contrary, Buyer has
not waived and shall not be deemed to have waived any claim
or cause of action resulting from Seller's breach of any
representation, warranty, covenant or other obligation
contained in this Agreement.
16. EXHIBITS
The following Exhibits are attached hereto and made a
part hereof by reference:
Exhibit A - Legal Description of Property
Exhibit B - Description of Personal Property
Exhibit C - Grant Deed
Exhibit D - Assignment of Leases
Exhibit E - Notices to Tenants
Exhibit F - Blanket Assignment and Assumption
Exhibit G - Bill of Sale
Exhibit H - Rent Roll
Exhibit I - Intentionally Omitted
Exhibit J - Estoppel Certificate
Exhibit K - Foreign Seller Affidavit
Exhibit L - Closing Certificate
IN WITNESS WHEREOF, Buyer and Seller have executed this
Agreement as of the date first above written.
BUYER:
BEDFORD PROPERTY INVESTORS,
INC.
By:
_________________________
By:
_________________________
<PAGE>
SELLER:
DEANSBANK ONTARIO PARTNERS
By: Deansbank Twenty-Second
Freeholds, (Ontario) Inc., a
Delaware corporation
Its: General Partner
By:_________________________
James J. Brinkerhoff
Its: President<PAGE>
<PAGE>
Exhibit "A"
Legal Description of Property
<PAGE>
Exhibit B
Personal Property
NONE
<PAGE>
Exhibit C
Grant Deed
ASSIGNMENT AND ASSUMPTION OF LEASES
a. Assignment. For valuable consideration, receipt of which
is hereby acknowledged, DEANSBANK ONTARIO PARTNERS, a
California general partnership ("Assignor") hereby assigns
and transfers to BEDFORD PROPERTY INVESTORS, INC., a Maryland
corporation ("Assignee"), all of its right, title and
interest in and to the Leases as provided in Section 10.1 of
the Agreement of Purchase and Sale between Assignor and
Assignee dated March 1, 1994 (the "Purchase Agreement").
b. Effective Date. The Effective Date of this Assignment
and Assumption of Leases shall be the Closing Date of the
Purchase Agreement and Assignor shall transfer possession to
Assignee on said date.
c. Assignor's Obligations. Assignor agrees that it shall
continue to remain liable under the Leases in accordance with
its terms for any claims, actions or other obligation or
liability arising on or prior to the Effective Date.
d. Acceptance and Assumption of Obligations. Assignee
hereby accepts this assignment as of the Effective Date and
agrees for the benefit of Assignor to be bound by and to
faithfully, timely and fully perform all of the terms, condi-
tions, covenants and agreements contained in said Leases, to
pay promptly all payments (including refundable deposits, if
any) due thereunder of whatever nature, if any, and hereby
assumes all liabilities and obligations of Assignor
thereunder.
e. Prorations. All obligations under the Leases with respect
to real p roperty taxes, operating expenses, common area
charges, and insurance premiums have been prorated as of the
Effective Date between Assignor and Assignee as provided
under Section 7.7 of the Purchase Agreement.
f. Modification. Nothing in this Assignment and Assumption of
Leases is intended to modify, amend or alter in any respect
the right s and obligations of the parties under the Purchase
Agreement , which will remain in full force and effect
notwithst anding the execution and delivery of this Assignment
and Assumption of Leases.
g. Further Assurances. Each of the parties to this Assignment
and Assum ption of Leases agrees to take or cause to be taken
such furt her action, to execute, deliver and file or cause to
be execut ed, delivered and filed such further documents and
instrumen ts, and to obtain such further consents, as may be
necessary or as may be reasonably requested in order to
effectuate fully the purposes, terms and conditions of this
Assignment and Assumption of Leases.
h. Governing Law. This Assignment and Assumption of Leases
shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to
conflicts of laws.
i. Multiple Counterparts. This Assignment and Assumption of
Leases may be executed in multiple counterparts, each of
which will be deemed an original and all of which taken
together will constitute but a single instrument.
IN WITNESS WHEREOF, Buyer and Seller have executed and
delivered this Assignment and Assumption of Leases as of the
Effective Date.
ASSIGNOR:
DEANSBANK ONTARIO PARTNERS
By: Deansbank Twenty-Second Freeholds, (Ontario) Inc., a
Delaware corporation
Its: General Partner
By:___________________________
James J. Brinkerhoff
Its: President
ASSIGNEE:
BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation
By:________________________________
Its:_______________________________
<PAGE>
NOTICES TO TENANTS
Re: 1505, 1555 and 1595 DuPont Avenue
Ontario, CA
You are hereby notified that the captioned property has been
sold to BEDFORD PROPERTY INVESTORS, INC.
The address to which all payments and notices required
pursuant to your lease should be sent is the following:
BEDFORD PROPERTY INVESTORS, INC.,
3658 Mount Diablo Boulevard, Suite 210
Lafayette, CA 94549
DEANSBANK ONTARIO PARTNERS,
a California General Partnership
By: Deansbank Twenty-Second Freeholds, (Ontario) Inc., a
Delaware corporation
Its: General Partner
By:___________________________
James J. Brinkerhoff
Its: President
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASES
j. Assignment. For valuable consideration, receipt of which
is hereby acknowledged, DEANSBANK ONTARIO PARTNERS, a
California general partnership ("Assignor") hereby assigns
and transfers to BEDFORD PROPERTY INVESTORS, INC., a Maryland
corporation ("Assignee"), all of its right, title and
interest in and to the Leases as provided in Section 10.1 of
the Agreement of Purchase and Sale between Assignor and
Assignee dated March 1, 1994 (the "Purchase Agreement").
k. Effective Date. The Effective Date of this Assignment
and Assumption of Leases shall be the Closing Date of the
Purchase Agreement and Assignor shall transfer possession to
Assignee on said date.
l. Assignor's Obligations. Assignor agrees that it shall
continue to remain liable under the Leases in accordance with
its terms for any claims, actions or other obligation or
liability arising on or prior to the Effective Date.
m. Acceptance and Assumption of Obligations. Assignee
hereby accepts this assignment as of the Effective Date and
agrees for the benefit of Assignor to be bound by and to
faithfully, timely and fully perform all of the terms, condi-
tions, covenants and agreements contained in said Leases, to
pay promptly all payments (including refundable deposits, if
any) due thereunder of whatever nature, if any, and hereby
assumes all liabilities and obligations of Assignor
thereunder.
n. Prorations. All obligations under the Leases with respect
to real property taxes, operating expenses, common area
charges, and insurance premiums have been prorated as of the
Effective Date between Assignor and Assignee as provided
under Section 7.7 of the Purchase Agreement.
o. Modification. Nothing in this Assignment and Assumption of
Leases is intended to modify, amend or alter in any respect
the rights and obligations of the parties under the Purchase
Agreement, which will remain in full force and effect
notwithst anding the execution and delivery of this Assignment
and Assumption of Leases.
p. Further Assurances. Each of the parties to this Assignment
and Assumption of Leases agrees to take or cause to be taken
such further action, to execute, deliver and file or cause to
be executed, delivered and filed such further documents and
instruments, and to obtain such further consents, as may be
necessary or as may be reasonably requested in order to
effectuate fully the purposes, terms and conditions of this
Assignment and Assumption of Leases.
q. Governing Law. This Assignment and Assumption of Leases
shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to
conflicts of laws.
r. Multiple Counterparts. This Assignment and Assumption of
Leases may be executed in multiple counterparts, each of
which will be deemed an original and all of which taken
together will constitute but a single instrument.
IN WITNESS WHEREOF, Buyer and Seller have executed and
delivered this Assignment and Assumption of Leases as of the
Effective Date.
ASSIGNOR:
DEANSBANK ONTARIO PARTNERS
By: Deansbank Twenty-Second Freeholds, (Ontario) Inc., a
Delaware corporation
Its: General Partner
By:___________________________
James J. Brinkerhoff
Its: President
ASSIGNEE:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By:________________________________
Its:_______________________________
<PAGE>
BILL OF SALE
This Bill of Sale is made and entered into as of ___________,
1994 (the "Effective Date") by and between DEANSBANK ONTARIO
PARTNERS, a California general partnership ("Seller"), and
BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation
("Buyer").
Buyer and Seller are parties to that certain Agreement for
Purchase and Sale dated as of March 1, 1994 (the "Purchase
Agreement"). The Purchase Agreement provides that Seller
will sell, convey, transfer, assign and deliver to Buyer, and
that Buyer will purchase and assume from Seller all
furniture, fixtures, fittings, appliances, appurtenances,
equipment, machinery and other personal property of Seller
located at, or used in connection with the operation of, that
parcel of real property located in San Bernardino County,
California, being more particularly described on Exhibit "A"
attached hereto and incorporated herein by reference (said
personal property referred to in the Purchase Agreement and
herein as the "Personal Property"). Accordingly, in order to
effectuate such sale and conveyance and assumption, and for
and in consideration of the mutual covenants contained in
this Bill of Sale and in the Purchase Agreement, and other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Buyer and Seller, Buyer
and Seller have entered into this Bill of Sale. All
capitalized terms used in this Bill of Sale and not otherwise
defined have the same meanings as defined in the Purchase
Agreement.
s. Seller hereby (i) sells, conveys, transfers, assigns and
delivers to Buyer, its successors and assigns, all of
Seller's right, title and interest in and to the Personal
Property, and (ii) warrants that such assignment and transfer
is effective to vest in Buyer good and indefeasible title to
the Personal Property, free and clear of all liens, other
than those liens permitted by Buyer in writing pursuant to
the Purchase Agreement.
t. Buyer hereby assumes and agrees to perform and discharge in
accordanc e with their terms any and all obligations arising
from and after, and relating exclusively to the period from
and after , the Effective Date of this Bill of Sale (the
"Obligations").
u. Except for the Obligations, Buyer is not assuming, and does
not assume, any other obligations or liabilities of Seller of
any kind or nature, known, unknown, contingent or otherwise,
and all such obligations and liabilities not assumed will
remain the sole and exclusive responsibility of Seller.
v. Nothing in this Bill of Sale is intended to modify, amend
or alter in any respect the rights and obligations of the
parties under the Purchase Agreement, which will remain in
full force and effect notwithstanding the execution and
delivery of this Bill of Sale.
w. Each of the parties to this Bill of Sale agrees to take or
cause to be taken such further action, to execute, deliver
and file or cause to be executed, delivered and filed such
further documents and instruments, and to obtain such further
consents, as may be necessary or as may be reasonably
requested in order to effectuate fully the purposes, terms
and conditions of this Bill of Sale.
x. This Bill of Sale will be binding upon and will inure to
the benefit of the parties hereto and their respective
successors and permitted assigns. Except for the parties to
the Purchase Agreement and the parties hereto, no Person is
or shall be entitled to bring any action to enforce any
provisions of this Bill of Sale against any of the parties
hereto.
y. This Bill of Sale shall be governed by and construed in
accordanc e with the laws of the State of California, without
giving effect to conflicts of laws.
z. This Bill of Sale may be executed in multiple counterparts,
each of w hich will be deemed an original and all of which
taken tog ether will constitute but a single instrument.
IN WITNESS WHEREOF, Buyer and Seller have executed and
delivered this Bill of Sale as of the Effective Date.
BUYER:
BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation
By:________________________________
Its:_______________________________
SELLER:
DEANSBANK ONTARIO PARTNERS
By: Deansbank Twenty-Second Freeholds, (Ontario) Inc., a
Delaware corporation
Its: General Partner
By:___________________________
James J. Brinkerhoff
Its: President
<PAGE>
Exhibit H
Rent Roll Report
RENT ROLL REPORT PAGE 1
SYSTEM DATE: 03/01/94
LEED ONTARIO VI SELECT DATE: 02/28/94
FEBRUARY 28, 1994 12:57:57
=================================================================
===================================================================
T RENTABLE C **** RENT & OTHER CHARGES
**** DEPOSIT COMMENCE/ MOVE-IN/
SUITE ID NAME Y USEABLE D DESCRIPTION AMOUNT FRQ
$/SQFT L-M-R TERM RENT ST EXPIRATION MOVE-OUT
=================================================================
===================================================================
01 CORMAN FOODS INC R 9458 0 BASE RENT 4379.53 M01
5.56 9174.26 60M 12/18/89 12/17/1994 12/18/89
9458 1 C A M 803.93 M01 1.02 0.00 12/18/89
00 VACANT R 6,960 0.00 0.00
6,960
02 REFRIGERANT RECOVERY R 6,960 0 BASE RENT 2,533.00
M01 4.37 2,436.00 36M 09/01/92 08/31/1995 09/01/92
6,960 1 C A M 264.48 M01 0.46 0.00 10/01/92
01 WRISCO INDUSTRIES R 13,920 0 BASE RENT
4,955.92 M01 4,27 5,985.60 60M 04/01/90 03/31/1995 04/01/90
13,920 1 C A M 1,202.68 M01 1.04 0.00
04/01/90
01 WRISCO INDUSTRIES R 6,960 0 BASE RENT 2,289.44
M01 3.95 3,118.08 60M 04/01/90 03/31/1995 04/01/90
6,960 1 C A M 601.34 M01 1.04 0.00 04/01/90
01 PASSAGE SUPPLU R 6,960 0 BASE RENT 1,740.00 M01
3.00 2,782.08 36M 06/01/90 05/31/1996 06/01/90
6,960 1 C A M 661.00 M01 1.14 0.00 06/01/90
01 CIRCUIT FOIL USA R 13,920 1 C A M 4,384.00 M01 3.78
10,300.80 64M 08/01/90 11/30/1995 08/01/90
13,920 1 C A M 1,116.60 0.96 0.00
08/01/90
02 BRIGGS MEDICAL R 13,920 0 BASE RENT 4,315.00 M01
3.72 4,593.60 64M 09/01/92 12/31/1997 09/01/92
13,920 1 C A M 320.16 M01 0.28 0.00 01/01/93
01 FIBRE-GLASS EVERCOAT R 6,960 0 BASE RENT 2,280.92
M01 3.93 2,275.20 60M 04/01/90 03/31/1995 04/01/90
6,960 1 C A M 556.80 M01 0.96 0.00 04/01/90
9 TI AMORTIZATION 1,012.41 M01 1.75
01 FIBRE-GLASS EVERCOAT R 6,960 0 BASE RENT 2,280.92
M01 3.93 2,275.20 60M 04/01/90 03/31/1995 04/01/90
6,960 1 C A M 556.80 M01 0.96 0.00 04/01/90
01 FIBRE-GLASS EVERCOAT R 10,513 0 BASE RENT
3,445.30 M01 3.93 4,489.81 60M 04/01/90 03/31/1995 04/01/90
10,513 1 C A M 841.04 M01 0.96 0.00 04/01/90
02 INLAND EMPIRE RELOC R 18,833 0 BASE RENT
4,708.25 M01 3.00 6,214.89 63M 07/01/93 09/30/1998 07/01/93
18,833 0.00 10/01/93
02 WESTERN AIR R 15,696 0 BASE RENT 4,865.76 M01
3.72 7,000.00 12M 04/23/93 04/30/1994 04/23/93
15,696 0.00 04/23/93
02 FLUORO SEAL R 15,696 1 C A M 512.61 M01 0.39
4,551.84 63M 01/01/94 03/31/1999 01/01/94
15,696 0.00 04/01/94
01 LESBRO COMPANY R 31,392 0 BASE RENT 7,220.16 M01
2.76 7,220.16 24M 04/01/92 03/31/1994 04/01/92
31,392 1 C A M 0.00 M01 0.00 0.00 04/01/92
01 FOREMOST ATHLETIC R 31,392 0 BASE RENT
7,220.16 M01 2.76 7,535.00 90M 01/01/92 06/30/1999 01/06/92
31,392 0.00 07/01/92
01RETAIL EXPRESS R 15,696 0 BASE RENT 4,845.36 M01
3.70 0.00 52M 11/01/90 02/28/1995 11/01/90
15,696 1 C A M 1,098.72 M01 0.84 0.00
02/01/91
9 TI AMORTIZATION 832.10 M01 0.64
02 RETAIL EXPRESS R 15,696 0 BASE RENT 4,845.36 M01
3.70 0.00
15,696 1 C A M 1,098.72 M01 0.82 0.00
01 WESTERN RESERVE R 20,056 0 BASE RENT 5,615.68 M01
3.36 6,417.92 61M 05/15/92 05/31/1997 05/15/92
20,056 1 C A M 742.07 M01 0.44 0.00 06/16/92
00VACANT R 183,244 0.00 0.00
183.244
_________________________________________________________________________
__________________________________________________________________
TOTAL R 451,192 84,146.22 86,370.44
U 451,192 0.00
<PAGE>
Exhibit J
Estoppel Certificate
Re premises located at:_________________________, Dupont
Avenue, Ontario, California.
Attached hereto as Exhibit A is a true, correct, and
complete copy of that certain lease dated _________________ and
entered into by and between DEANSBANK ONTARIO PARTNERS, a
California general partnership as Lessor/Landlord and
____________
______________________ as Lessee/Tenant and all amendments,
modifications or additions thereto (the "Lease"). The
undersigned hereby certifies the following with respect to the
attached Lease:
1. The Lease has not been amended, modified or
supplemented other than as provided in Exhibit A except by
________
__________________. The Lease represents the entire and only
agreement between Lessor and Lessee respecting the premises
described above (the "Premises").
2. The undersigned is the current Lessee under the
Lease. Lessee's address for purposes of giving notice under
the Lease is
_____________________________________________________________
_____________________________________________________________
________.
3. The Premises leased to Lessee under the Lease are
described above. The Lease further provides that in addition
to the Premises, Lessee has the right to use or rent
_______________
parking spaces on an exclusive/non-exclusive, assigned/non-
assigned basis in the parking areas of the complex of which the
Premises form a part.
4. The current term of the Lease expires
_______________.
The Lease contains no option(s) to extend, renew the current
term other than provided in Exhibit A except as
follows:______________
_____________________________________________________________
____.
5. The security deposit held by Lessor under the
Lease is $________________.
6. Rent obligations under the Lease commenced or
shall commence ________________. Pursuant to the provisions of
the Lease, payments (exclusive of other charges) without offset
or deduction in the amount of $____________ on the 1st of each
month during the term. Lessee has paid such minimum monthly
rent through
________________. The next date for adjustment to the minimum
monthly rent under the Lease is ____________________.
7. There are no periods of free or reduced rent under
the Lease other than as provided in Exhibit A except
__________________
_________________________________. There are no offsets
against rent or other charges under the Lease other than as
provided in Exhibit A, except
________________________________________________.
8. Additional rent is payable under the Lease for (a)
operating, maintenance and repair expenses, (b) property taxes,
(c) insurance and (d)_______________________, and such
additional rent has been paid in accordance with billings or
estimated charges through __________________. The ceiling on
Lessee's share of such additional rents is $________________.
The base year amounts for such additional rents are as follows:
(a) operating, maintenance and repairs
$______________
(b) property taxes
$______________
(c) insurance
$______________
(d) other
$______________
9. Lessor has completed all construction work
reburied by the Lease and has performed all work of an
inducement nature to Lessee's satisfaction. Lessor has no
obligation to construct additional or expansion space for
Lessee. Lessee has unconditionally accepted the Premises and
all of Lessor's work, except as
follows:________________________________________________
_____________________________________________________________
____.
10. There are no unpaid tenant allowance or other
offsets, credits or payments due to Lessee under the Lease
other than as provided in Exhibit A, except as
follows:__________________________
_____________________________________________________________
____.
11. The Lease is in full force and effect and Lessee
has no knowledge of (a) any default of either Lessor or Lessee
which presently exists or (b) any condition which with the
passage of time or the giving of notice would become a default
under the terms of the Lease. Lessee has no defense or offset
against the enforcement of this Lease by Lessor, other than as
provided in Exhibit A.
12. The Lease contains and Lessee has no outstanding
options or rights of first refusal/offer to purchase the
Premises or any part thereof or to lease all or any part of the
real property of which the Premises forms a part other than as
provided in Exhibit A.
13. Lessee has not assigned, consigned, hypothecated
or transferred the Lease or sublet the Premises except as
indicated below. No one except Lessee and its employees
occupies the Premises, except as
follows:_______________________________________
_____________________________________________________________
____.
14. The undersigned is authorized to execute this
Lessee Estopped Certificate ("Certificate") on behalf of
Lessee.
15. This Certificate is made knowing that Landlord and
Bedford Property Investors, Inc., as a prospective purchaser of
the Premises, will rely upon the truth of this Certificate and
the representations herein made.
16. Lessee (i) is not presently engaged in nor does it
presently permit, (ii) has not at any time in the past engaged
in nor permitted, and (iii) has no knowledge that any third
person or entity engaging or permitted, any operations or
activities upon, or any use or occupancy of the Premises, or
any portion thereof, for the purpose of or in any way involving
the handling, manufacturing, treatment, storage, use,
transportation, spillage, leakage, accidental or intentional,
of any hazardous substances, materials or wastes, or any
wastes regulated under any local, state or federal law.
17. Lessee has no knowledge of any casualty affecting
the Premises or Lessee's rights under the Lease, nor any
knowledge of pending condemnation or other proceedings of
eminent domain.
IN WITNESS WHEREOF, Lessee has caused this Certificate
to be duly executed this ____ day of _________________, 19____.
<PAGE>
CERTIFICATION THAT SELLER IS NOT A FOREIGN PERSON
DEANSBANK ONTARIO PARTNERS, a California general
partnership, is the seller ("Seller") of that Realty identified
in the Agreement of Purchase and Sale dated March 1, 1994 (the
"Purchase Agreement"), involving Seller's real property located
in Ontario, California. Section 1445 of the Internal Revenue
Code of 1954, as amended, provides that a buyer of a U.S. real
property interest must withhold tax from its payments to the
seller if the seller is a foreign person. To inform the Buyer
(as defined in the Purchase Agreement) that withholding of tax
is not required upon the sale of the Realty pursuant to the
Purchase Agreement, the undersigned certifies on behalf of
Seller:
aa. Seller is not a foreign person as that term is
used in Section 1445(b)(2) of the Internal Revenue Code of 1986
and the related regulations.
bb. Seller is a United States Person as that term is
used in Section 1445(b)(2) of the Internal Revenue Code of 1986
and the related regulations.
cc. Seller's United States taxpayer identification
number is (employer identification number).
dd. Seller's address is c/o Aldrich Eastman Waltch,
225 Franklin Street, Boston, Massachusetts 02110-2803, Attn.
J. Grant Monahon (office address).
Seller understands that this certification may be
disclosed to the Internal Revenue Service by the Buyer and that
any false statement included in this certification could be
punished by fine, imprisonment or both.
Under penalty of perjury, the officer signing this
certificate for Seller declares that he or she has examined
this certificate and to the best of his or her knowledge and
belief it is true, correct, and complete and he or she further
declares that he or she has authority to sign this document on
behalf of Seller.
Dated: , 1994
DEANSBANK ONTARIO PARTNERS
By: Deansbank Twenty-
Second Freeholds,
(Ontario) Inc., a
Delaware
corporation
Its: General Partner
By:___________________________
James J.
Brinkerhoff
Its: President
<PAGE>
CLOSING CERTIFICATE
The undersigned general partner of DEANSBANK ONTARIO
PARTNERS, a California general partnership ("Seller"), pursuant
to Section 7.5(m) of that certain Agreement of Purchase and
Sale dated March 1, 1994 (referred to herein as the "Purchase
Agreement"), between Seller and BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation ("Buyer"), does hereby certify to
Buyer on behalf of Seller that (capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to
them in the Purchase Agreement):
ee. Except for a change in the Rent Roll as set forth
on the Exhibit H attached to the Purchase Agreement, each of
the representations and warranties of Seller contained in the
Purchase Agreement are true and correct on the Closing Date
with the same force and effect as if made on and as of the date
hereof.
ff. Seller has performed and complied with all of its
covenants and agreements set forth in, and satisfied all
conditions required to be satisfied by it pursuant to, the
Purchase Agreement, as of the date hereof.
This certificate is delivered to Buyer in connection
with the consummation of the transactions under the Purchase
Agreement, and Buyer is entitled to rely on this certificate
for such purpose.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of ___________________, 1994.
DEANSBANK ONTARIO
PARTNERS
By: Deansbank Twenty-
Second Freeholds,
(Ontario) Inc., a
Delaware
corporation
Its: General Partner
By:________________________
James J.
Brinkerhoff
Its: President
<PAGE>
CONTACT FOR
IMMEDIATE RELEASE
Peter B. Bedford
Chairman and Chief Executive Officer
Jay Spangenberg
Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS
ANNOUNCES FOURTH ACQUISITION
REIT Purchases Three-Building Industrial Complex in Ontario,
California
LAFAYETTE, California -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has purchased Leed-Ontario VI, a three-building industrial
complex in Ontario, California, for $9.75 million, or $22 a square foot.
This is the company's fourthacquisition in the past nine months.
The Leed-Ontario VI project is an attractive three-building, 451,542-square-
foot industrial complex which was completed in 1990. The property is
situated in the California Commerce Center Industrial Park, located
immediately southeast of the Ontario International Airport. The three
buildings feature spaces ranging from 6,960 square feet to
183,244 square feet.
The company purchased the project from a major client of Aldrich
Eastman Waltch, which is a Boston-based investment advisory firm specializing
in real estate. The
building is presently 68 percent leased by 13 tenants. Leasing activity is
being marketed for additional tenants. The purchase was financed using the
company's $20 million revolving line of credit from Bank of America.
(more)
Bedford Property Investors, page two
"The acquisition of Leed-Ontario VI is significant for several reasons,"
explained Peter B. Bedford, chairman and chief executive officer. "This
purchase significantly expands our industrial base at a low cost per square
foot in the active and recovering Inland-Empire West industrial market,
it will give our company the necessary critical mass to manage in-
house our three properties in Southern California and it will reduce the
average cost per square foot of our office and industrial portfolio to under
$50 per square foot. Leed is located one mile south of the interchange of
I-10 and I-15, which is one of the most strategic distribution locations
in the Western United States."
In addition, the purchase will positively impact the REIT's overall
portfolio by:
o Increasing the square footage of the portfolio 77 percent from
589,000 square feet to 1,040,000;
o Reducing the company's average book value per square foot by 27
percent from $62 per square foot to approximately $45 per square foot; and
o Increasing the REIT's annual gross income.
Bedford Property Investor's Inc. is a self-administered equity real estate
investment trust (REIT) with investments in suburban office buildings and
industrial properties concentrated in the western United States. It is
traded on the New York and Pacific Stock Exchanges
under the symbol "BED".
