SECURITIES AND EXCHANGE COMMISSION
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): December 30, 1993
BEDFORD PROPERTY INVESTORS, INC.
(Exact name of Registrant as specified in its charter)
Maryland 1-12222 68-0306514
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification
incorporation) Number)
270 Lafayette Circle, Lafayette, California 94549
(Address of principal executive offices) (Zip Code)
Registrant telephone number, including area code: (510) 283-8910
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On December 31, 1993, Bedford Property Investors, Inc.,
completed the acquisition of 1000 Town Center, a six story, Class "A,"
109,611 square foot suburban office building located in Oxnard,
California. The Town Center project was acquired from NCEC Realty,
Inc., a wholly owned subsidiary of Citicorp for $5.1 million. The
seller received $3.6 million in cash and a twelve-month letter of
credit $1.5 million. The $3.6 million of cash was financed using the
company's new $20 million revolving line of credit from Bank of
America, which was finalized on December 28, 1993.
On January 5, 1994, Bedford Property Investors, Inc., completed
the acquisition of Mariner Court, a three story, Class "B," 105,673
square foot suburban office building located in Torrance, California,
for $7.5 million from Mariner Court Associates, a partnership managed
by Watt Industries. The purchase was financed using the company's $20
million revolving line of credit with Bank of America.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
A. Financial Statements
Required financial information disclosures with respect to
the acquisitions of 1000 Town Center and Mariner court will
be filed within sixty (60) days of this notice.
B. Exhibits and Exhibits Index
10.7 Purchase Contract for 1000 Town Center
10.8 Purchase Contract for Mariner Court
99.1 Press Release dated January 4, 1994
99.2 Press Release dated January 5, 1994
99.3 Press Release dated January 6, 1994
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: __________________________
Donald A. Lorenz
Executive Vice President<PAGE>
EXHIBIT 10.7
SALE-PURCHASE AGREEMENT
between
NCEC REALTY, INC., Seller
and
BEDFORD PROPERTY INVESTORS, INC., Purchaser
Dated as of December 14, 1993
<PAGE>
TABLE OF CONTENTS
Sale of Premises 2
Purchase Price 2
Apportionments 3
Due Diligence Period and Closing Date 7
Permitted Encumbrances 8
Title 9
[Intentionally Omitted] 12
Representations and Warranties 12
Closing Costs 16
Conditions Precedent to Closing 17
Documents to be Delivered by Seller at Closing 19
Documents and Funds to be Delivered by Purchaser
at Closing 22
Operation of the Premises prior to the Closing Date 23
As Is 26
Broker 30
Casualty; Condemnation 31
Remedies 32
Purchaser's Access to the Premises 34
Purchaser's Indemnity 36
Escrow 36
Assignment 40
Access to Records 40
Notices 40
Property Information and Confidentiality 42
Miscellaneous 44
<PAGE>
LIST OF SCHEDULES
Schedule
1 Description of the Land
2 Excluded Property
3 Permitted Encumbrances
4 Leases
5 Actions
6 Additional Conditions to Seller's Obligations
7 Intangible Property
LIST OF EXHIBITS
Exhibit
A Deed
B Lease Assignment
C Contract and License Assignment
D Intangible Property Assignment
E Bill of Sale
F Notice of Tenants
G Tenant Estoppel Certificate
H Seller's FIRPTA Affidavit
<PAGE>
TABLE OF DEFINED TERMS
The following capitalized terms are defined in the respective
Section of the Agreement identified below:
"A & A Agreements" - as such term is defined in Section 11(d)
hereof.
"Additional Rents" - as such term is defined in Section 3(d)(ii)
hereof.
"Agreement" - as such term is defined in the opening paragraph
hereof.
"Approved Institution" - as such term is defined in Section
20(d) hereof.
"Approved Investment" - as such term is defined in Section 20(d)
hereof.
"Bill of Sale: - as such term is defined in Section 11(f)
hereof.
"Broker" - as such term is defined in Section 15 hereof.
"Buildings" - as such term is defined in Section 1(a) hereof.
"Closing" - as such term is defined in Section 4(b) hereof.
"Closing Costs" - as such term is defined in Section 9 hereof.
"Closing Date" - as such term is defined in Section 4(b) hereof.
"Contract and License Assignment" - as such term is defined in
Section 11(c) hereof.
"Contracts" - as such term is defined in Section 11(c) hereof.
"Deed" - as such term is defined in Section 11(a) hereof
"Downpayment" - as such term is defined in Section 2(a) hereof.
"Due Diligence Period" - as such term is defined in Section
4(a)(i) hereof.
"Escrow Agent" - as such term is defined in Section 2(a) hereof.
"Expiration of the Due Diligence Period" - as such term is
defined in Section 4(a) hereof.
"Fund" - as such term is defined in Section 20 hereof.
"Intangible Property Assignment" - as such term is defined in
Section 11(b) hereof.
"Investigations" - as such term is defined in Section 18 hereof.
"Land" - as such term is defined in Section 1(a) hereof.
"Laws" - as such term is defined in Section 8(a)(i)(C) hereof.
"Lease Assignment" - as such term is defined in Section 11(b)
hereof.
"Leases" - as such term is defined in Section 8(a)(i)(D) hereof.
"Legal Fees Deposit" as such term is defined in Section 2(b)
hereof.
"Letter of Intent" - as such term is defined in the second
recital paragraph of Page 1 hereof.
"Licenses" - as such term is defined in Section 11(c) hereof.
"Liens" - as such term is defined in Section 6(b) hereof.
"New Lease" - as such term is defined in Section 13(a)(ii)
hereof.
"New Lease Expense" - as such term is defined in Section
13(a)(ii)) hereof.
"Notice of Objection" - as such term is defined in Section
20(b)(i) hereof.
"Permitted Exceptions" - as such term is defined in Section 5
herof.
"Personal Property" - as such term is defined in Section 1(a)
hereof.
"Premises" - as such term is defined in Section 1(a) hereof.
SALE-PURCHASE AGREEMENT (this "Agreement"), dated as of the 14th
day of December, 1993, by and between NCEC REALTY, INC., a California
Corporation, having an office c/o 599 Lexington Avenue, New York, New
York 10043 ("Seller"), and BEDFORD PROPERTY INVESTORS, INC., a
Maryland corporation, having an office at 3658 Mt. Diablo Boulevard,
Suite 210, Lafayette, California 94549 ("Purchaser").
W I T N E S S E T H
WHEREAS, Seller is the owner of the Premises located at 1000
Town Center Drive, Oxnard, California;
WHEREAS, Seller and Purchaser have entered into a letter of
intent (the "Letter of Intent"), whereby, subject to the terms
contained therein, Seller expressed its intent to sell the Premises to
Purchaser and Purchaser expressed its intent to purchase the Premises
from Seller;
WHEREAS, Purchaser acknowledges that Seller acquired its
interest in the Premises through deed-in-lieu of foreclosure from the
prior owner of the Premises;
WHEREAS, Purchaser further acknowledges that, due to the
circumstances surrounding Seller's acquisition of the Premises, such
acquisition was subject to such facts, circumstances, defects and
problems which existed with respect to the Premises at the time of
such acquisition and for which Seller is not responsible and with
respect to which Seller has only limited knowledge;
WHEREAS, Purchaser agrees to purchase the Premises in its "AS-
IS-WHERE-IS AND WITH ALL FAULTS" condition and further acknowledges
that, except as set forth herein, Seller has made no representations
or warranties to Purchaser regarding the Premises or the operation
thereof; and
WHEREAS, Seller and Purchaser now desire to enter into an
agreement whereby, subject to the terms and conditions contained
herein, Seller shall sell the Premises to Purchaser and Purchaser
shall purchase the Premises from Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars and the
mutual covenants and agreements hereinafter set forth and intending to
be legally bound hereby, it is hereby agreed as follows:
1. Sale of Premises
(a) Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase from Seller, at the price and upon the
terms and conditions set forth in this Agreement, all those certain
plots, pieces and parcels of land located in the City of Oxnard,
County of Ventura and State of California, as more particularly
described in Schedule "1" annexed hereto and made a part hereof (the
"Land"), together with (i) all buildings and other improvements
situated on the Land (collectively, the "Buildings"), (ii) all
easements, rights of way, reservations, privileges, appurtenances, and
other estates and rights of Seller pertaining to the Land and the
Buildings, (iii) all right, title and interest of Seller in and to all
fixtures, machinery, equipment, supplies and other articles of
personal property attached or appurtenant to the Land or the
Buildings, or used in connection therewith (collectively, the
"Personal Property"), (iv) all oil, gas and mineral rights of Seller,
if any, in and to the Land, (v) all right, title and interest of
Seller, if any, in and to the trade names of the Buildings, and (vi)
all right, title and interest of Seller, if any, in and to all strips
and gores, all alleys adjoining the Land, and the land lying in the
bed of any street, road or avenue, opened or proposed, in front of or
adjoining the Land to the center line thereof, and all right, title
and interest of Seller, if any, in and to any award made or to be made
in lieu thereof and in and to any unpaid award for any taking by
condemnation of any damages to the Land or the Buildings by reason of
a change of grade of any street, road or avenue (the Land, together
with all of the foregoing items listed in clauses (i)-(vi) above being
hereinafter sometimes collectively referred to as the "Premises").
(b) Specifically excluded from the Premises and this sale are
all items of personal property not described in Section 1(a) and the
items (if any) described in Schedule "2" annexed hereto and made a
part hereof.
2. Purchase Price
The purchase price to be paid by Purchaser to Seller for the
Premises (the "Purchase Price") Is FIVE MILLION ONE HUNDRED THOUSAND
DOLLARS ($5,100,000), payable as follows:
(a) One Hundred Thousand Dollars ($100,000) (the
"Downpayment"), simultaneously with the execution and delivery of this
Agreement, by delivery to Lawyer's Title Insurance Corporation, acting
through its Los Angeles National Division ("Escrow Agent"), by a bank
wire transfer of immediately available funds to an account designated
by Escrow Agent. The Downpayment shall be held and disbursed by
Escrow Agent in accordance with the terms of Section 20. If the
Closing shall occur, Seller shall be entitled to receive the
Downpayment and all interest accrued thereon, if any, and such
interest shall be credited against the portion of the Purchase Price
payable pursuant to Section 2(b); and
(b) Three Million Six Hundred Thousand Dollars ($3,600,000) at
the Closing, by bank wire transfer, on or before the Closing Date, of
immediately available funds to an account designated by Escrow Agent,
less the amount of the Downpayment and all interest accrued thereon
and less the amount, if any, of the "Legal Fees Deposit" (the sum of
$15,000, plus any interest actually earned thereon while held by
Seller prior to the Closing) delivered to Seller pursuant to the
Letter of Intent.
(c) One Million Five Hundred Thousand Dollars ($1,500,000) in
the form of an irrevocable, unconditional and transferable letter of
credit issued by Bank of America, NT&SA, to and for the benefit of
Seller, payable upon demand on and after twelve (12) months from the
Closing Date, expiring no earlier than thirteen (13) months after the
Closing Date, and otherwise in a form reasonably acceptable to Seller.
3. Apportionments
(a) The following shall be apportioned between Seller and
Purchaser at the Closing as of midnight of the day preceding the
Closing Date:
(i) prepaid rents and Additional Rents and other amounts
payable by tenants, if, as and when received;
(ii) real estate taxes, water charges, sewer rents and
vault charges, if any, on the basis of the fiscal years, respectively,
for which same have been assessed;
(iii) charges and payments under transferable Contracts or
permitted renewals or replacements thereof;
(iv) any prepaid items, including, without limitation,
fees for licenses which are transferred to Purchaser at the Closing
and annual permit and inspection fees;
(v) utilities, including, without limitation, telephone,
steam, electricity and gas, on the basis of the most recently issued
bills therefor, subject to adjustment after the Closing when the next
bills are available, or if current meter readings are available, on
the basis of such readings;
(vi) deposits with telephone and other utility companies,
and any other persons or entities who supply goods or services in
connection with the Premises if same are assigned to Purchaser at the
Closing, which shall be credited in their entirety to Seller;
(vii) personal property taxes, if any, on the basis of the
fiscal year for which assessed;
(viii) Seller's share, if any, of all revenues from the
operation of the Premises other than rents and Additional Rents
(including, without limitation, parking charges, and telephone booth
and vending machine revenues), if, as and when received;
(ix) taxes payable by Seller relating to operations of the
Premises, including, without limitation, business and occupancy taxes
and sales taxes, if any;
(x) security deposits and accrued interest (if any)
thereon payable to tenants which are in the possession of or received
by Seller, the aggregate amount of which shall be credited in their
entirety to Purchaser (except that, where any such cash security
deposits and the interest thereon payable to tenants are held by a
bank, savings bank, trust company or savings and loan association, at
Seller's option, Seller may deliver to Purchaser, in lieu of such
credit, an assignment to Purchaser of such deposits and interest and
written instructions to the holder thereof to transfer such deposits
and interest to Purchaser, and except that, with respect to any such
security deposits which are held in other than cash, at Seller's
option, Seller in lieu of such credit may execute and deliver such
deposit to Purchaser at the Closing, in the same condition delivered
to Seller, together with any appropriate instruments of assignment or
transfer without warranty or representation); and
(xi) such other items as are customarily apportioned
between sellers and purchasers of real properties of a type similar to
the Premises and located in the City of Oxnard, County of Ventura and
State of California.
(b) New Lease Expenses shall be apportioned between Seller and
Purchaser at Closing in accordance with Section 13(a).
(c) If the Closing shall occur before a new real estate or
personal property tax rate or assessed valuation is fixed, the
apportionment of taxes at the Closing shall be upon the basis of the
tax rate for the preceding fiscal year applied to the latest assessed
valuation. Promptly after the new tax rate and/or assessed valuation
is fixed, the apportionment of taxes shall be recomputed and any
discrepancy resulting from such recomputation and any errors or
omissions in computing apportionments at Closing shall be promptly
corrected and the proper party reimbursed, which obligations shall
survive the Closing in accordance with Section 3(g).
(d) (i) If on the Closing Date any tenant is in arrears in the
payment of rent or has not paid the rent payable by it for the month
in which the Closing occurs (whether or not it is in arrears for such
month on the Closing Date), any rents received by Purchaser or Seller
from such tenant after the Closing shall be applied to amounts due and
payable by such tenant during the following periods in the following
order of priority: (A) first, to amounts due for the month in which
the Closing occurred, (B) second, to all amounts then due for months
following the month in which the Closing occurred, and (c) third, to
amounts due for months in which the Closing occured. If rents or any
portion thereof received by Seller or Purchaser after the Closing are
due and payable to the other party by reason of this allocation the
appropriate sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection with the
collection thereof, shall be promptly expended paid to the other
party.
(ii) If any tenants are required to pay percentage rent,
escalation charges for real estate taxes, parking charges, operating
expenses and maintenance escalation rents or charges, cost-of-living
increases or other charges of a similar nature ("Additional Rents")
and any Additional Rents are collected by Purchaser from a tenant
after the Closing Date, then Purchaser shall promptly pay to Seller
out of the first such sums received from such tenant (after Purchaser
recovers its collection costs, including reasonable attorneys fees and
expenses) the amount of all Additional Rents which are due and payable
by such tenant with respect to any period prior to the Closing Date
(whether or not such Additional Rents first became due and payable on
or after the Closing Date); provided, however, that the amounts
payable to Seller under this clause (ii) on account of taxes,
operating expenses and other costs of operating the Premises shall not
exceed the amounts of such costs which Seller has actually paid,
either prior to or (through prorations) at the Closing, or remains
responsible for paying after the Closing.
(iii) The provisions of this Section 3(d) shall
survive the Closing.
(e) If there is a water meter on the Premises, Seller shall
furnish a reading to a date not more than five (5) business days prior
to the Closing Date, and the unfixed water charges and sewer rent, if
any, based thereon for the intervening time shall be apportioned on
the basis of such last reading.
(f) If any of the items subject to apportionment under the
foregoing provisions of this Section 3 cannot be apportioned at the
Closing because of the unavailability of the information necessary to
compute such apportionment, or in any errors or omissions in computing
apportionments at the Closing are discovered subsequent to the
Closing, then such items shall be reapportioned and such errors and
omissions corrected as soon as practicable after the Closing Date and
the proper party reimbursed, which obligation shall survive the
Closing for a period of one hundred eighty (180) days after the
Closing Date as hereinafter provided. Neither party hereto shall have
the right to require a recomputation of a Closing apportionment or a
correction of an error or omission in a Closing apportionment unless
within the aforestated one hundred eighty (180) day period one of the
parties hereto (i) has obtained the previously unavailable information
or has discovered the error or omission, and (ii) has given notice
thereof to the other party, together with a copy of its good faith
recomputation of the apportionment and copies of all substantiating
information used in such recomputation. The failure of a party to
obtain any previously unavailable information or discover an error or
omission with respect to an item subject to apportionment hereunder
and to give notice thereof as provided above within one hundred eighty
(180) days after the Closing Date shall be deemed a waiver of its
right to cause a recomputation or a correction of an error or omission
with respect to such item after the Closing Date.
(g)(i) If prior to the Closing the Premises or any part
thereof shall now be or hereafter become affected by any assessment or
assessments which are or may become payable in installments, of which
the first installment is now a charge or lien, or has been paid, then
(A) Seller shall be obligated to pay all installments of any such
assessments which are payable for periods ending prior to the Closing
Date, (B) installments of any such assessments which are of become
payable for periods including the Closing Date shall be prorated in
like manner as real estate taxes, and (C) for the purposes of this
Agreement, all the unpaid installments of any such assessments which
are or become payable for periods beginning on or after the Closing
Date shall not be deemed to be liens upon the Premises and the payment
thereof shall be assumed by Purchaser without abatement of the
Purchase Price.
(ii) If, subsequent to the date hereof, the Premises or any
part thereof shall become affected by an assessment or assessments,
said assessments shall not be deemed to be liens upon the Premises and
the payment thereof shall be assumed by Purchaser without abatement of
the Purchase Price, except that any installment of such assessment
which is payable for a period ending before or including the Closing
Date shall be treated as provided in clause (i) above.
(iii) Nothing in this Section 3(h) shall be deemed to
limit Purchaser's rights to object to any such assessment as an
"Unacceptable Encumbrance" under Section 6, but in no event shall
Seller have any obligation to cure or credit Purchaser for any such
assessment, except for proration as provided in clause (i) above.
4. Due Diligence Period and Closing Date
(a)(i) Notwithstanding anything to the contrary contained
herein, Purchaser shall have until December 23, 1993 (the "Due
Diligence Period") to examine title to the Premises, to inspect the
physical and financial condition of the premises and to review the
Property Information. Purchaser's right (A) to undertake its due
diligence activities, including the review of all Property
Information, and (B) to enter upon the Premises for the purpose of
making inspections and tests, shall at all times be subject to
Purchasers's compliance with the provisions of Section 18 and Section
24 (including, without limitation, Purchaser's obligations contained
therein to obtain and maintain insurance, indemnify Seller and keep
confidential all Property Information obtained by Purchaser).
(ii) Promptly after execution and delivery of this
Agreement, Seller agrees to request an Estoppel Certificate in the
form hereinafter required by this Section 4(a)(ii) from each tenant
under a Lease, but in no event shall it be deemed to be an obligation
of Seller under this Agreement to obtain executed Estoppel
Certificates. The Estoppel Certificates shall be in the form annexed
hereto as Exhibit "G" and made a part hereof; provided, however, if
any tenant is required or permitted under its Lease to provide less
information or to otherwise make different statements in a certificate
of such nature than are set forth in Exhibit "G" annexed hereto, then
prior to requesting an Estoppel Certificate from such tenant, Seller
may modify the Estoppel Certificate for such tenant to set forth only
minimum statements, if any (as determined by Seller), required under
such tenant's Lease to be made by such tenant in such a certificate.
(iii) Purchaser shall have the right in its sole and
absolute discretion, to elect to terminate this Agreement by giving
written notice ("Purchaser's Termination Notice") of such election to
Seller at any time prior to five o'clock p.m. Pacific Time, on
December 23, 1993 (the "Expiration of the Due Diligence Period"). If
Purchaser shall timely elect to so terminate this Agreement, this
Agreement shall be terminated and neither party shall have any further
rights, obligations or liabilities hereunder, except as otherwise
expressly provided herein (collectively the "Surviving Obligations"),
and except that Purchaser shall be entitled to a return of the Fund
subject to Section 24(d) and provided Purchaser is not otherwise in
default hereunder. Notwithstanding the provisions of Section 23 to
the contrary, if for any reason whatsoever Seller shall not have
actually received Purchaser's Termination Notice prior to the
Expiration of the Due Diligence Period, Purchaser shall be deemed to
have irrevocably waived the right of termination granted under this
Section 4(a)(iii), and such right of termination shall be of no
further force or effect.
(b) The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the "Closing") shall take
place at the offices of Escrow Agent, 800 East Colorado Boulevard,
Suite 250, Pasadena, California 91101, at 10:00 A.M. on December 29,
1993 (subject to extension as expressly provided in this Agreement or
to foreshortening by the mutual written agreement of Seller and
Purchaser, the "Closing Date").
5. Permitted Encumbrances
Subject to Section 6, Seller shall convey and Purchaser shall
accept title to the Premises subject to those matters set forth on
Schedule "3" annexed hereto and made a part hereof (collectively the
"Permitted Encumbrances").
6. Title
(a)(i) Purchaser shall order, at its sole cost and expense,
within five (5) days after the execution of this Agreement, a
commitment for an owner's fee title insurance policy or policies with
respect to the Premises (the "Title Commitment") form Lawyers Title
Insurance Corporation (the "Title Company") and shall cause the Title
Company to deliver a copy of the Title Commitment, together with true
and complete copies of all instruments giving rise to any defects or
exceptions to title to the Premises, to Seller's attorneys within five
(5) days after Purchaser's receipt of the Title Commitment. If,
within ten (10) days after receiving the Title Commitment, Purchaser
gives Seller notice of any liens, encumbrances or other defects or
exceptions in or to title to the Premises indicated thereon (other
than the Permitted Encumbrances) subject to which Purchaser is
unwilling to accept title (collectively, the "Unacceptable
Encumbrances"), Seller shall undertake to eliminate the same subject
to Section 6(b). Purchaser hereby waives any right Purchaser may have
to advance as objections to title or as grounds for Purchaser's
refusal to close this transaction any Unacceptable Encumbrance of
which Purchaser does not notify Seller within such ten (10) day period
unless (i) such Unacceptable Encumbrance was first raised by the Title
Company subsequent to the date of the Title Commitment or Purchaser
shall otherwise first discover same or be advised of same subsequent
to the date of the Title Commitment, and (ii) Purchaser shall notify
Seller of the same within five (5) days after Purchaser first becomes
aware of such Unacceptable Encumbrance (failure to so notify Seller
shall be deemed to be a waiver by Purchaser of its right to raise such
Unacceptable Encumbrance as an objection to title or as a ground for
Purchaser's refusal to close this transaction). Seller, in its sole
discretion, may extend the Closing Date one or more times for up to
ninety (90) days in the aggregate, as reasonably necessary in order to
eliminate Unacceptable Encumbrances.
(ii) If Seller is unable (subject to Section 6(b)) to
eliminate all Unacceptable Encumbrances not waived by Purchaser, or to
arrange for title insurance reasonably acceptable to Purchaser
insuring against enforcement of such Unacceptable Encumbrances
against, or collection of the same out of, the Premises, and to convey
title in accordance with the terms of this Agreement on or before the
Closing Date (whether or not the Closing Date is extended as provided
in Section 6(a)(i)), Purchaser shall elect on the Closing Date, as its
sole remedy for such inability of Seller, either (A) to terminate this
Agreement by notice given to Seller pursuant to Section 17(a), in
which event the provisions of Section 17(a) shall apply, or (B) to
accept title subject to such Unacceptable Encumbrances and receive no
credit against, or reduction of, Purchase Price.
(b) Notwithstanding anything to the contrary set forth in this
Section 6 or elsewhere in this Agreement, Seller shall not be
obligated to bring any action or proceeding, to make any payments or
otherwise to incur any expense in order to eliminate Unacceptable
Encumbrances not waived by Purchaser to arrange for title insurance
insuring against enforcement of such Unacceptable Encumbrances
against, or collection of the same out of, the Premises; except that
Seller shall satisfy or otherwise discharge mortgages, deeds of trust,
real estate taxes, assessments, judgements against Seller or other
liens (collectively, "Liens") secured by or affecting the Premises
which are either (1) trust deeds, mortgages or other such consensual
liens created by Seller or beneficially held by Seller or Citicorp
Real Estate, Inc. (collectively, "Consensual Liens"), or (2) if other
than Consensual Liens ("Non-Consensual Liens"), can be satisfied by
payment of liquidated amounts not to exceed Ten Thousand Dollars
($10,000) in the aggregate for all Non-Consensual Liens. Without
limiting the generality of the preceding provisions of this Section
6(b), for the purposes of this Agreement (including, without
limitation, Sections 6(a) and 17(a)), Seller's failure or refusal to
bring any action or proceeding, to make any payments or to otherwise
incur any expense (except for Seller's obligation to discharge
Consensual Liens and to satisfy Non-Consensual Liens which can be
satisfied by payment of liquidated amounts not to exceed $10,000 in
aggregate as aforesaid) in order to eliminate Unacceptable
Encumbrances not waived by Purchaser or to arrange for such title
insurance shall be deemed an inability of Seller to eliminate such
Unacceptable Encumbrances or to arrange for such title insurance and
shall not be a default by Seller hereunder (willful or otherwise).
(c) If on the Closing Date there may be any Liens or other
encumbrances which Seller is obligated hereby or otherwise elects to
pay or discharge, in order to convey to Purchaser such title as is
herein provided to be conveyed, Seller may use any portion of the
Purchase Price to satisfy the same, provided:
(i) Seller shall deliver to the Title Company, at the
Closing, instruments in recordable form and sufficient to satisfy such
Liens or other encumbrances of record together with the cost of
recording of filing said instruments; or
(ii) Seller, having made arrangements with the Title
Company, shall deposit with said company sufficient monies (which may
come from Seller's proceeds from the Purchase Price) acceptable to
said company to insure the obtaining and the recording of such
satisfactions.
Provided the Title Company then omits any such Liens or other
encumbrances as exceptions to title in Purchaser's title policy or
provides Purchaser with affirmative coverage with respect thereto, the
same shall no longer be deemed objections to title.
(d) At the Closing, Seller shall cause to be paid through the
Title Company any unpaid Liens for taxes, water and sewer charges and
assessments which are the obligation of Seller to satisfy and
discharge hereunder, and, provided the Title Company then omits any
such Liens as exceptions to title in Purchaser's title policy or
provides Purchaser with affirmative coverage with respect thereto, the
same shall no longer be deemed objections to title.
(e) If on the Closing Date there shall be conditional bills of
sale, chattel mortgages or security interests filed against the
Premises, the same shall be deemed cured and no longer constitute
objections to title provided (A) Seller executes and delivers an
affidavit to Purchaser and the Title Company to the effect either (i)
that the personal property covered by said conditional bills of sale,
chattel mortgages, or security interests is no longer or in or on the
Premises or (ii) if such personal property is still in or on the
Premises, that it has been fully paid for, or (iii) that such personal
property is the property of a tenant of the Premises and (B) the Title
Company then omits any such matters as exceptions to title in
Purchaser's title policy.
(f) Any franchise or corporate tax open, levied or imposed
against Seller or other owners in the chain of title that may be a
Lien on the Closing Date, shall not be an objection to title if the
title Company omits same from the title policy issued pursuant to the
Title Commitment or excepts same but insures Purchaser against
collection thereof out of the Premises.
(g) If a search of title discloses judgements, bankruptcies or
other returns against other persons or entities having names the same
as or similar to that of Seller, but Seller delivers to Purchaser and
the Title Company an affidavit stating that such judgements,
bankruptcies or other returns are not against Seller, whereupon,
provided the Title Company omits such returns as exceptions to title
or provides affirmative coverage with respect thereto, such returns
shall no longer be deemed an objection to title.
7. [Intentionally Omitted]
8. Representations and Warranties
(a)(i) Seller represents and warrants to Purchaser as follows:
(A) Seller is a duly formed and validly existing
corporation organized under the laws of the State of California and is
qualified under the laws of the State of California to conduct
business therein.
(B) Seller has the full legal right, power and authority
to execute and deliver this Agreement and all documents now or
hereafter to be executed by Seller pursuant to this Agreement
(collectively, the "Seller's Documents"), to consummate the
transaction contemplated hereby, and to perform its obligations
hereunder and under Seller's Documents.
(C) This Agreement and Seller's Documents do not and will
not contravene any provision of the certificate of incorporation or
the by-laws of Seller, any judgement, order, decree, writ or
injunction issued against Seller, or any provision of any laws or
governmental ordinances, rules, regulations, orders or requirements
(collectively "Laws") applicable to Seller. The consummation of the
transactions contemplated hereby will not result in a breach or
constitute a default or event of default by Seller under any agreement
to which Seller or any of its assets are subject or bound and will not
result in a violation of any Laws applicable to Seller.
(D) Seller has no knowledge of any leases, licenses or
other occupancy agreements affecting any portion of the Premises
(collectively, the "Leases") on the date hereof, except for the Leases
listed in Schedule "4" annexed hereto and made a part hereof.
(E) To Seller's knowledge, there are no pending actions,
suits, proceedings or investigations to which Seller is a party before
any court or other governmental authority with respect to the Premises
except as set forth on Schedule "5" annexed hereto and made a part
hereof.
(F) To Seller's knowledge, Seller has been given no notice
of violation of any applicable zoning regulation or ordinance or other
law, order, ordinance, permit, rule, regulation or requirement, or of
violation of any covenants, conditions or restrictions affecting or
relating to the use, operation, occupancy of the Property.
Copies of the Leases in Seller's possession and certain other Property
Information have been or will be delivered or otherwise made available
to Purchaser and, by accepting the Deed, Purchaser acknowledges it
receipt and acceptance or the availability to it thereof and that
Purchaser has reviewed the same to its satisfaction. To the extent
the copies of the Leases or any other Property Information furnished
or made available to or otherwise obtained by Purchaser prior to the
Expiration of the Due Diligence Period contain provisions or
information that are inconsistent with the foregoing representations
and warranties, such representations and warranties shall be deemed
modified to the extent necessary to eliminate such inconsistency and
to conform such representations and warranties to such Leases and
other Property information. As used in this Agreement, the words
"Seller's knowledge" or words of similar import shall be deemed to
mean, and shall be limited to, the actual (as distinguished from
implied, imputed or constructive) knowledge of Seller after, and based
solely upon, making inquiry of Murray McQueen, the person charged by
Seller with the management responsibility for the Premises, without
such person having any obligation to make an independent inquiry or
investigation.
(ii) If at or prior to the Closing, (A) Purchaser shall
become aware (whether through its own efforts, by notice from Seller
or otherwise) that any of the representations or warranties made
herein by Seller are untrue, inaccurate or incorrect and shall give
Seller notice thereof at or prior to the Closing, or (B) Seller shall
notify Purchaser that a representation or warranty made herein by
Seller is untrue, inaccurate or incorrect, then Seller may in its sole
discretion, elect by notice to Purchaser to extend the Closing Date on
or more times for up to sixty (60) days in the aggregate, as
reasonably necessary to cure or correct the state of facts causing
such representation or warranty to be untrue, inaccurate or incorrect.
If any such representation or warranty is not materially untrue,
inaccurate or incorrect, and is not cured or corrected by Seller on or
before the Closing Date (whether or not the Closing Date is extended
as provided above), Purchaser shall nevertheless be deemed to, and
shall, waive such misrepresentation or breach of warranty and shall
consummate the transactions contemplated hereby without any reduction
of or credit against the Purchase Price. If any such representation or
warranty is materially untrue, inaccurate or incorrect, and the state
of facts causing it to be so is not cured or corrected by Seller on or
before the Closing Date (whether or not the Closing Date is extended
as provided above), then Purchaser, as its sole remedy for any and all
such materially untrue, inaccurate or incorrect material
representations or warranties, shall elect either (x) to waive such
misrepresentations or breaches of warranties and consummate the
transactions contemplated hereby without any reduction of or credit
against the Purchase Price, or (y) to terminate this Agreement by
notice given to Seller on the Closing Date, in which event, this
Agreement shall be terminated an neither party shall have any further
rights, obligations or liabilities hereunder, except for the Surviving
Obligations, and except that Purchaser shall be entitled to a return
of the Fund (together with all interest accrued thereon, if any)
subject to Section 24(d) and provided Purchaser is not otherwise in
default hereunder. Purchaser acknowledges and agrees that (x) at or
prior to the Closing, Purchaser's rights and remedies in the event any
of Seller's representations or warranties made in this Agreement are
untrue, inaccurate or incorrect shall be only as provided in this
Section 8(a), and (y) if the Closing does not occur, Purchaser hereby
expressly waives, relinquishes and releases all other rights or
remedies available to it at law, in equity or otherwise (including,
without limitation, the right to seek damages from Seller) as a result
of any of Seller's representations or warranties made in this
Agreement being untrue, inaccurate or incorrect.
(iii) In the event the Closing occurs:
(A) Notwithstanding anything contained in Section 8(a)(ii)
or elsewhere in the Agreement to the contrary, Purchaser hereby
expressly waives, relinquishes and releases any right or remedy
available to it at law, in equity or under this Agreement to made a
claim against Seller for damages that Purchaser may incur, or to
rescind this Agreement and the transactions contemplated hereby, as
the result of any of Seller's representations or warranties being
untrue, inaccurate or incorrect if (1) Purchaser knew, should have
known or is deemed to have known that such representation or warranty
was untrue, inaccurate or incorrect at the time of the Closing and
Purchaser nevertheless closes title hereunder, or (2) Purchaser's
damages as a result of such representation or warranty being untrue,
inaccurate or incorrect are less that Twenty-Five Thousand Dollars
($25,000). For example, Purchaser shall be "deemed to have known"
that a representation or warranty was untrue, inaccurate or incorrect
at the time of the Closing to the extent that the Property Information
furnished or made available to or otherwise obtained by Purchaser
contains information which is inconsistent with such representation or
warranty.
(B) Notwithstanding anything contained herein to the
contrary, if the Closing shall have occurred and Purchaser shall not
have waived, relinquished and released all rights or remedies
available to it at law, in equity or otherwise as provided hereunder,
the aggregate liability of Seller arising pursuant to or in connection
with the representations, warranties, covenants and other obligations
(whether express or implied) of Seller in this Agreement and/or the
Seller's Documents (including, without limitation, the Deed and the A
& A Agreements, shall not exceed One Hundred Thousand Dollars
($100,000).
The provisions of this section 8(a) shall survive the Closing, subject
to the limitations set forth herein.
(iv) The representations and warranties of Seller set forth
in Section 8(a)(i) and elsewhere in this Agreement shall be true,
accurate and correct in all material respects upon the execution of
this Agreement and shall be deemed to be repeated on and as of the
Closing Date (except as they relate only to an earlier date). The
representations and warranties (whether express or implied) of Seller
set forth in Section 8(a)(i) and elsewhere in this Agreement, and/or
the Seller's Documents (including, without limitation, the Deed and
the A & A Agreements) shall remain operative and shall survive the
Closing and the execution and delivery of the Deed for a period of six
(6) months following the Closing Date, and no action or claim based
thereon shall be commenced after such period.
(b)(i) Purchaser represents and warrants to Seller as follows:
(A) Purchaser is a duly formed and validly existing
corporation organized under the laws of the State of Maryland and is
qualified under the laws of the State of California to conduct
business therein on the Closing Date.
(B) Purchaser has the full legal right, power, authority
and financial ability to execute and deliver this Agreement and all
documents now or hereafter to be executed by it pursuant to this
Agreement (collectively, the "Purchaser's Documents"), to consummate
the transactions contemplated hereby, and to perform its obligations
hereunder and under Purchaser's Documents.
(C) This Agreement and Purchaser's Documents do not and
will not contravene any provision of the certificate of incorporation
or the by-laws of Purchaser, any judgement, order, decree, writ or
injunction issued against Purchaser, or any provision of any Laws
applicable to Purchaser. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a
default or event of default by Purchaser under any agreement to which
Purchaser or any of its assets are subject or bound and will not
result in a violation of any Laws applicable to Purchaser.
(D) There are no pending actions, suits, proceedings or
investigations to which Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the
transactions contemplated hereby.
(ii) The representations and warranties of Purchaser set forth
in Section 8(b)(i) and elsewhere in this Agreement shall be true,
accurate and correct in all material respects upon the execution of
this Agreement, shall be deemed to be repeated on and as of the
Closing Date (except as they relate only to an earlier date) and shall
survive the Closing.
9. Closing Costs
The following costs (the "Closing Costs") shall be allocated
between the parties and paid as follows:
(a) At the Closing, through Escrow, Seller and Purchaser shall
pay in equal shares (x) all transfer and recording taxes and fees and
sales taxes (if any) imposed pursuant to the Laws of the State of
California or any other governmental authority in respect of the
transactions contemplated by this Agreement and (y) Escrow Agent's
reasonable and customary fees and chargeable expenses.
(b) At the Closing, through Escrow, Purchaser shall pay all
title insurance premiums and charges.
(c) Each party shall pay the fees and expenses of its
attorneys.
(d) Purchaser shall pay all of the costs of its due diligence,
including (without limitation) the fees and expenses for any
inspections and survey and the charges for the Title Commitment.
(e) Seller shall pay a brokerage commission to Grubb & Ellis in
accordance with Section 15.
(f) Any other cost of Closing shall be allocated and paid in
accordance with the custom for sales of commercial real estate in
Ventura County. California.
10. Conditions Precedent to Closing
(a) Purchaser's obligation under this Agreement to purchaser
the Premises is subject to the fulfillment of each of the following
conditions, subject, however, to the provisions of Section 10(c):
(i) The material representations and warranties of Seller
contained herein shall be materially true, accurate and correct as of
the Closing Date except to the extent they relate only to an earlier
date (subject to the provisions of Section 8(a)(ii));
(ii) Seller shall be ready, willing and able to deliver
title to the Premises in accordance with the terms and conditions of
this Agreement;
(iii) Seller shall have delivered all the documents and
other items required pursuant to Section 11, and shall have performed
all other covenants, undertakings and obligations, and complied with
all conditions required by this Agreement to be performed or complied
with by the Seller at or prior to the Closing; and
(iv) Purchaser's Board of Directors shall have approved
this Agreement before expiration of the Due Diligence Period.
(b) Seller's obligation under this Agreement to sell the
premises to Purchaser is subject to the fulfillment of each of the
following conditions, subject, however to the provisions of Section
10(c):
(i) the representations and warranties of Purchaser
contained herein shall be materially true, accurate and correct as of
the Closing Date;
(ii) Purchaser shall have delivered the funds required
hereunder and all the documents to be executed by Purchaser set forth
in Section 12 and shall have performed all other covenants,
undertakings and obligations, and complied with all conditions
required by this Agreement to be performed or complied with by
Purchaser at or prior to the Closing;
(iii) all consents and approvals of governmental
authorities and parties to agreements to which Purchaser is a party or
by which Purchaser's assets are bound that are required with respect
to the consummation of the transactions contemplated by this Agreement
shall have been obtained and copies thereof shall have been delivered
to Seller at or prior to the Closing;
(iv) on or prior to Closing Date, (A) Purchaser shall not
have applied for or consented to the appointment of a receiver,
trustee or liquidator for itself or any of its assets unless the same
shall have been discharged prior to the Closing Date, and no such
receiver, liquidator or trustee shall have otherwise been appointed,
unless same shall have been discharged prior to the Closing Date, (B)
Purchaser shall not have admitted in writing an inability to pay its
debts as they mature, (C) Purchase shall not have made a general
assignment for the benefit of creditors, (D) Purchaser shall not have
been adjudicated a bankrupt or insolvent, or had a petition for
reorganization granted with respect to Purchaser, (E) Purchaser shall
not have filed a voluntary petition seeking reorganization or an
arrangement with creditors or taken advantage of any bankruptcy,
reorganization, insolvency, readjustment or debt, dissolution or
liquidation law or stature, or filed an answer admitting the material
allegations of a petition filed against it in any proceedings under
any such law, or had any petition filed against it in any proceeding
under any of the foregoing laws unless the same shall have been
dismissed, cancelled or terminated prior to the Closing Date;
(v) Purchaser shall have delivered to Seller, before
expiration of the Due Diligence Period, an officer's certificate
confirming that Purchaser's Board of Directors has approved this
Agreement.
(vi) the additional matters (if any) set forth in Schedule
"6" annexed hereto and made a part hereof shall have occurred or been
delivered to Seller, as applicable, at or prior to the Closing.
(c) In the event that any condition contained in Section 10(a)
or (b) is not satisfied, the party entitled to the satisfaction of
such condition as a condition to its obligation to close title
hereunder shall have the right to elect either to (i) waive such
unsatisfied condition whereupon title shall close as provided in this
Agreement or (ii) terminate this Agreement. In the event such party
elects to terminate this Agreement, this Agreement shall be terminated
and neither party shall have any further rights, obligations or
liabilities hereunder, except for the Surviving Obligations and except
as otherwise expressly provided in Section 17. Nothing contained in
this Section 10(c) shall be construed so as to bestow any right of
termination upon a party for the failure of a condition to be
satisfied unless such party is expressly entitled to the satisfaction
of such condition as provided in Section 10(a) or (b).
11. Documents to be Delivered by Seller at Closing.
On or before the Closing Date, Seller shall execute, acknowledge
and/or deliver, as applicable, the following to Escrow Agent for
recording and/or delivery to Purchaser at Closing:
(a) A deed (the "Deed") in the form of Exhibit "A" annexed
hereto and made a part hereof conveying title to the Premises.
(b) The Assignment and Assumption of Leases and Security
Deposits in the form of Exhibit "B" annexed hereto and made a part
hereof assigning without warranty or representation all of Seller's
right, title and interest, if any, in and to the Leases, all
guarantees thereof and the security deposits thereunder in Seller's
possession, if any (the "Lease Assignment:).
(c) The Assignment and Assumption of Contracts and Licenses in
the form of Exhibit "C" annexed hereto and made a part hereof (the
"Contract and License Assignment") assigning without warranty or
representation all of Seller's right, title and interest, if any, in
and to (i) all of the assignable licenses, permits, certificates,
approvals, authorizations and variances issued for or with respect to
the Premises by any governmental authority (collectively, the
"Licenses"), (ii) all assignable purchase orders, equipment leases,
advertising agreements, franchise agreements, license agreements,
management agreements, leasing and brokerage agreements and other
service contract (other than Labor Contracts (as hereinafter defined))
relating to the operation of the Premises (collectively, the
"Contracts"), and (iii) all assignable labor and collective bargaining
agreements with respect to the Premises (collectively, the "Labor
Contracts").
(d) The Assignment and Assumption of Intangible Property in the
form of Exhibit "D" annexed hereto and made part hereof assigning
without warranty or representation all of Seller's right, title and
interest, if any, in and to all intangible property owned by Seller
with respect to the operation of the Premises listed on Schedule "7"
annexed hereto and made a part hereof, including, without limitation,
whatever rights Seller may have to use of the name "North Coast
Executive Center" in connection with the Premises (the "Intangible
Property Assignment") (the Lease Assignment, the Contract and License
Assignment and the Intangible Property Assignment are herein referred
to collectively as the "A & A Agreements").
(e) To the extent in Seller's possession, executed counterparts
of all Leases and New Leases and any amendments, guarantees and other
documents relating thereto, together with a schedule of all tenant
security deposits thereunder and the accrued interest (if any) on such
security deposits payable to tenants which are in the possession of or
received by Seller.
(f) A bill of sale in the form of Exhibit "E" annexed hereto
and made a part hereof (the "Bill of Sale") conveying, transferring
and selling to Purchaser without warranty or representation all right,
title and interest of Seller in and to all Personal Property. It is
agreed that the value of such property does not exceed One Hundred
($100.00) Dollars, that Seller shall prepare any required sales tax
return (the "Sales Tax Return"), that such return shall be executed by
Purchaser and delivered to Seller at the Closing, that Seller shall
file such return and that Purchaser shall pay the sales tax due
thereon in accordance with Section 12(c).
(g) Notices to the tenants of the Premises in the form of
Exhibit "F" annexed hereto and made a part hereof advising the tenants
of the sale of the Premises to Purchaser and directing that rents and
other payments thereafter be sent to Purchaser or as Purchaser may
direct.
(h)(i) Copies of the resolutions of the board of directors of
Seller authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement certified as true and correct by the Secretary or
Assistant Secretary of Seller; (ii) an incumbency certificate executed
by the Secretary or Assistant Secretary of Seller with respect to
those officers of Seller executing any documents or instruments in
connection with the transactions contemplated herein; and (iii) a good
standing certificate with respect to Seller from the Secretary of
State of the State of California, dated no earlier than December 1,
1993.
(i) Executed originals of all Estoppel Certificates, if any,
received by Seller from tenants prior to the Closing Date and not
previously delivered to Purchaser.
(j) To the extent in Seller's possession and not already
located at the Premises, keys to all entrance doors to, and equipment
and utility rooms located in, the Premises.
(k) To the extent in Seller's possession and not already
located at the Premises, all Licenses.
(l) To the extent in Seller's possession, executed counterparts
of all Labor Contract, Contracts and all warranties in connection
therewith which are in effect on the Closing Date and which are
assigned by Seller.
(m) To the extent in Seller's possession, plans and
specifications of the Buildings.
(n) A "FIRPTA" affidavit sworn to by Seller in the form of
Exhibit "H" annexed hereto and made a part hereof and Real Estate
Withholding Exemption Certificate California FTB Form 590-RE executed
by Seller. Purchaser acknowledges and agrees that upon Seller's
delivery of such affidavit and Form 590-RE, Purchaser shall not
withhold any portion of the Purchase Price pursuant to Section 1445 or
the Internal Revenue Code of 1986, as amended, or California Revenue
and Taxation Code Section 18805 and 26131, as amended, and the
regulations promulgated thereunder.
(o) All tenant correspondence, tenant ledgers, lease files,
books and records for the Property (or copies thereof), keys to the
Property and other such items located at the Property or used
exclusively in connection therewith, to the extent belonging to
Seller.
(p) All other documents Seller is required to deliver pursuant
to the provisions of this Agreement.
12. Documents and Funds to be Delivered by Purchaser at Closing
On or before the Closing Date, Purchaser shall execute,
acknowledge and/or deliver, as applicable, the following to Escrow
Agent, for delivery to Seller or payment at Closing:
(a) On the Closing Date (or, if required by the Title Company
to effect Closing in a timely manner, one banking day before the
Closing Date), by bank wire transfer of immediately available funds to
an account designated by Escrow Agent, an amount equal to the sum of
the Purchase Price payable at the Closing pursuant to Section 2(b),
plus the net amount due Seller or minus the net amount due Purchaser
(as the case may be) from the apportionments, credits and adjustments
provided for in this Agreement, plus Purchaser's share of the Closing
Costs payable through Escrow under Section 9.
(b) The Sales Tax Return, if required.
(c) If Purchaser is a corporation, (i) copies of the
certificate of incorporation and by-laws of Purchaser and of the
resolutions of the board of directors of Purchaser authorizing the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement
certified as true and correct by the Secretary or Assistant Secretary
of Purchaser; (ii) a good standing certificate issued by the state of
incorporation of Purchaser, dated within thirty (30) days of the
Closing Date (provided, however, that Purchaser shall be required only
to use its best efforts to obtain such certificate, as long as it is
not required by the Title Company to effect Closing); (iii) a good
standing certificate issued by the State of California, dated within
thirty (30) days of the Closing Date; and (iv) an incumbency
certificate executed by the Secretary or Assistant Secretary of
Purchaser with respect to those officers of Purchaser executing any
documents or instruments in connection with the transactions
contemplated herein.
(d) If Purchaser is a partnership, copies of Purchaser's
partnership agreement and partnership certificate (if applicable) and,
if required by law or its partnership agreement, copies of partnership
resolutions and/or consents of the partners authorizing the execution,
delivery and performance of this Agreement and the consummation of the
transaction contemplated by the Agreement, all certified as true and
correct by a general partner of Purchaser.
(e) the A & A Agreements.
(f) All other documents Purchaser is required to deliver
pursuant to the provisions of this Agreement.
13. Operation of the Premises prior to the Closing Date.
Between the date hereof and the Closing Date, Seller shall have
the right to continue to operate and maintain the Premises. In
connection therewith:
(a)(i) Except as hereinafter provided in this Section 13(a),
Seller may modify, extend, renew, cancel or permit the expiration of
any Lease or enter into any proposed Lease of all or any portion of
the Premises without Purchaser's consent. After the Expiration of the
Due Diligence Period, Seller shall not modify, extend, renew or cancel
(subject to Section 13(b)) any Lease or enter into any proposed Lease
of all or any portion of the Premises without Purchaser's prior
consent in each instance, which consent shall not be unreasonably
withheld and shall be given or denied, with the reasons for any such
denial, within the applicable period specified in Section 13(a)(iv).
(ii) If, after December 1, 1993, as permitted above, Seller has
entered or hereafter enters into any Leases, or if there is any
extension or renewal of any Leases, whether or not such Leases provide
for their extension or renewal, or any expansion or modification of
any Leases (each, a "New Lease"), Seller shall keep accurate records
of all expenses (collectively, "New Lease Expenses") incurred in
connection with each New Lease, including, without limitation, the
following: (A) brokerage commissions and fees relating to such
leasing transaction, (B) expenses incurred for repairs, improvements,
equipment, painting, decorating, partitioning and other items to
satisfy the tenant's requirements with regard to such leasing
transaction, (C) the cost of removal and/or abatement of asbestos or
other hazardous or toxic substances located in the demised space, (D)
reimbursements to the tenant for the cost of any of the items
described in the preceding clauses (B) and (C), (E)legal fees for
services in connection with the preparation of documents and other
services rendered in connection with the effectuation of the leasing
transaction, (F) rent concessions relating to the demised space
provided the tenant has the right to take possession of such demised
space during the period of such rent concessions, and (G) expenses
incurred for the purpose of satisfying or terminating the obligations
of a tenant under a New Lease to the landlord under another lease
(whether or not such other lease covers space in the Premises).
(iii) The New Lease Expenses for each New Lease allocable to
and payable by Seller shall be determined by multiplying the amount of
such New Lease Expenses by a fraction, the numerator or which shall be
the number of days contained in that portion, if any, of the term of
such New Lease commencing on the date on which the tenant thereunder
shall have commenced to pay fixed rent ("Rent Commencement Date") and
expiring on the date immediately preceding the Closing Date, and the
denominator of which shall be the total number of days contained in
the period commencing on the Rent Commencement Date and expiring on
the date of the scheduled expiration of the term of such New Lease,
and the remaining balance of the New Lease expenses for each New Lease
shall be allocable to and payable by Purchaser. For purposes of this
Section 13(a)(iii), the Rent Commencement Date under a renewal,
extension, expansion or modification of a Lease shall be deemed to be
(A)in the case of a renewal or extension (whether effective prior to
or after the Closing, or in the from of an option exercisable in the
future), the first date during such renewal or extension period after
the originally scheduled expiration of the term of such Lease on which
the tenant under such Lease commences to pay fixed rent,(B) in the
case of an expansion (whether effective prior to or after the Closing,
or in the form of an option exercisable in the future), the date on
which the tenant under such Lease commences to pay fixed rent for the
additional space, and (C)in the case of a modification not also
involving a renewal, extension or expansion of such Lease, the
effective date of such modification agreement. At the Closing,
Purchaser shall reimburse Seller for all New Lease Expenses
theretofore paid by Seller, if any, in excess of the portion of the
New Lease Expenses allocated to Seller pursuant to the provisions of
the preceding sentence. The provisions of this Section 13(a)(iii)
shall survive the Closing.
(iv) With respect to any proposed action by Seller to be
submitted to Purchaser for its consent pursuant to Section 13(a)(i),
Purchaser shall consent or deny its consent, with the reasons for any
such denial, within five (5) business days after receipt by Purchaser
of Seller's notice requesting Purchaser's consent to the proposed
action relating to such existing or proposed Lease. If Purchaser fails
to reply to Seller's request for consent pursuant to the provisions of
Subsections 13(a)(i) in a notice given within such five (5) business
days or if Purchaser expressly denies its consent but fails to provide
Seller with the reasons for such denial, Purchaser's consent shall be
deemed to have been granted.
(b) Notwithstanding anything to the contrary contained in this
Agreement, Seller reserves the right, but is not obligated, prior to
the Closing Date to institute summary proceedings against any tenant
or terminate any Lease as a result of a default by the tenant
thereunder prior to the Closing Date. Seller makes no representations
and assumes no responsibility with respect to the continued occupancy
of the Premises or any part thereof by any tenant. The removal of a
tenant whether by summary proceedings or otherwise prior to the
Closing Date shall not give rise to any claim on the part of
Purchaser. Further, Purchaser agrees that it shall not be grounds for
Purchaser's refusal to close this transaction that any tenant is a
holdover tenant or in default under its Lease on the Closing Date and
Purchaser shall accept title subject to such holding over or default
without credit against, or reduction of, the Purchase Price.
(c) Except as hereinafter provided in this Section 13(c), Seller
may cancel, modify, extend, renew or permit the expiration of
Contracts or Labor Contracts or enter into any new Contract or Labor
Contract without Purchaser's prior consent. After the Expiration of
the Due Diligence Period, Seller shall not modify, extend, renew or
cancel (except as a result of a default by the other party thereunder)
any Contracts or Labor Contracts, or enter into any new Contract or
Labor Contract without Purchaser's prior consent in each instance,
which consent shall not be unreasonably withheld or delayed, and if
withheld, Purchaser shall promptly give Seller a notice stating the
reasons therefore; provided, however, that Purchaser's consent shall
not be required to the aforestated actions if such Contract or Labor
Contract may be terminated at any time on not more than sixty (60)
days' prior notice by Seller, or its successor, without the payment of
a penalty.
(d) Seller will keep in force and effect with respect to the
Premises the insurance policies currently carried by Seller with
respect to the Property.
(e) With respect to the tax year in which the Closing occurs,
and all prior tax years, Seller is hereby authorized to commence,
continue and control the progress of, and to make all decisions with
respect to, any proceeding or proceedings, whether or not now pending,
for the reduction of the assessed valuation of the Premises, and, in
its sole discretion, to try or settle the same. All net tax refunds
and credits attributable to any tax year prior to the tax year in
which the Closing occurs shall belong to and be the property of
Seller. All net tax refunds and credits attributable to any tax year
subsequent to the tax year in which the Closing occurs shall belong to
and be the property of Purchaser. All net tax refunds and credits
attributable to the tax year in which the Closing occurs shall be
divided between Seller and Purchaser in accordance with the
apportionment of taxes pursuant to the provisions of this Agreement,
after deducting therefrom a pro rata share of all expenses, including,
without limitation, counsel fees and disbursements and consultant's
fees, incurred in obtaining such refund, the allocation of such
expenses to be based upon the total refund obtained in such proceeding
and in any other proceeding simultaneously involved in the trial or
settlement. Purchaser agrees to cooperate with Seller in connection
with the prosecution of any such proceedings and to take all steps,
whether before or after the Closing Date, as may be necessary to carry
out the intention of the foregoing, including, without limitation, the
delivery to Seller, upon demand, of any relevant books and records,
including receipted tax bills and cancelled checks used in payment of
such taxes, the execution of any and all consents or other documents,
and the undertaking of any act necessary for the collection of such
refund by Seller. The provisions of this Section 13(e) shall survive
the Closing.
14. As Is.
(a) Purchaser acknowledges that Seller acquired its interest in
the Premises through deed-in-lieu of foreclosure from the prior owner
of the Premises. Purchaser further acknowledges that, due to the
circumstances surrounding Seller's acquisition of the Premises, such
acquisition was subject to such facts, circumstances, defects and
problems which existed with respect to the Premises at the time of
such acquisition and for which Seller is not responsible. Accordingly,
Purchaser agrees to accept title to the Premises on an "as-is-where-is
and with all faults" basis.
(b) This Agreement, as written, contains all the terms of the
agreement entered into between the parties as of the date hereof, and
Purchaser acknowledges that neither Seller nor any of Seller's
Affiliates, nor any of their agents or representatives, nor Broker has
made any representations or held out any inducements to Purchaser, and
Seller hereby specifically disclaims any representation, oral or
written, past, present or future, other than those specifically set
forth in Section 8(a) and Section 15. Without limiting the generality
of the foregoing, Purchaser has not relied on any representations or
warranties, and neither Seller nor any of Seller's Affiliates, nor any
of their agents or representatives has or is willing to make any
representations or warranties, express or implied, other than as may
be expressly set forth herein, as to (i) the status of title to the
Premises, (ii) the Leases, (iii) the Contracts, (iv) the Labor
Contracts, (v) the Licenses, (vi) the current or future real estate
tax liability, assessment or valuation of the Premises; (vii) the
potential qualification of the Premises for any and all benefits
conferred by any Laws whether for subsidies, special real estate tax
treatment, insurance, mortgages or any other benefits, whether similar
or dissimilar to those enumerated; (viii) the compliance of the
Premises in its current or any future state with applicable Laws or
any violations thereof, including, without limitation, those relating
to access for the handicapped, environmental or zoning matters, and
the ability to obtain a change in the zoning or a variance in respect
to the Premises' non-compliance, if any, with zoning Laws; (ix) the
nature and extent of any right-of-way, lease, possession, lien,
encumbrance, license, reservation, condition or otherwise; (x) the
availability of any financing for the purchase, alteration,
rehabilitation or operation of the Premises from any source,
including, without limitation, any government authority or any lender;
(xi) the current or future use of the Premises, including, without
limitation, the Premises' use for commercial, manufacturing or general
office purposes; (xii) the present and future condition and operating
state of any Personal Property and the present or future structural
and physical condition of the Buildings, their suitability for
rehabilitation or renovation, or the need for expenditures for capital
improvements, repairs or replacements thereto; (xiii) the viability or
financial condition of any tenant; (xiv) the status of the leasing
market in which the Premises is located; or (xv) the actual or
projected income or operating expenses of the Premises.
(c) Purchaser acknowledges that the Due Diligence Period affords
Purchaser the opportunity for full and complete investigations,
examinations and inspections of the Premises and all Property
Information. Purchaser acknowledges and agrees that (i) the Property
Information delivered or made available to Purchaser and Purchaser's
Representatives by Seller or Seller's Affiliates, or any of their
agents or representatives may have been prepared by third parties and
may not be the work product of Seller and/or any of Seller's
Affiliates; (ii) neither Seller nor any of Seller's Affiliates has
made any independent investigation or verification of, or has any
knowledge of, the accuracy or completeness of, the Property
Information; (iii) the Property Information delivered or made
available to Purchaser and Purchaser's Representatives is furnished to
each of them at the request, and for the convenience of, Purchaser;
(iv) Purchaser shall rely solely on its own investigations,
examinations and inspections of the Premises and those of Purchaser's
Representatives and shall not rely in any way on the Property
Information furnished by Seller or any of Seller's Affiliates, or any
of their agents or representatives; (v) Seller expressly disclaims any
representations or warranties with respect to the accuracy or
completeness of the Property Information and Purchaser releases Seller
and Seller's Affiliates, and their agents and representatives, from
any and all liability with respect thereto; and (vi) any further
distribution of the Property Information is subject to Section 24.
(d) Purchaser or anyone claiming by, through or under Purchaser,
hereby fully and irrevocably releases Seller and Seller's Affiliates,
and their agents and representatives, from any and all claims that it
may now have or hereafter acquire against Seller or Seller's
Affiliates, or their agents or representatives for any cost, loss,
liability, damage, expense, action or cause of action, whether
foreseen or unforeseen, arising from or related to any construction
defects, errors or omissions on or in the Premises, the presence of
environmentally hazardous, toxic or dangerous substances, or any other
conditions (whether patent, latent or otherwise) affecting the
Premises, except for claims against Seller based upon any obligations
and liabilities of Seller expressly provided in this Agreement.
Purchaser further acknowledges and agrees that this release shall be
given full force and effect according to each of its expressed terms
and provisions, including, but not limited to, those relating to
unknown and suspected claims, damages and causes of action. As a
material covenant and condition of this Agreement, Purchaser agrees
that in the event of any such construction defects, errors or
omissions, the presence of environmentally hazardous, toxic or
dangerous substances, or any other conditions affecting the Premises,
Purchaser shall look solely to Seller's predecessors in interest or to
such contractors and consultants as may have contracted for work in
connection with the Premises for any redress or relief, except for
claims against Seller based upon any obligations and liabilities of
Seller expressly provided in this Agreement. Purchaser further
understands that some of Seller's predecessors in interest or such
contractors and consultants may have filed petitions under the
bankruptcy code and Purchaser may have no remedy against such
predecessors, contractors or consultants.
(e) In giving the release contained in Section 14(d), Purchaser
expressly waives the provisions of Section 1542 of the California
Civil Code which provides:
A General Release does not extend to claims which the creditor
does not know or expect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with debtor.
Purchaser acknowledges that the foregoing waiver of Section 1542 of
the California Civil Code was separately bargained for and that, in
agreeing to such waiver, Purchaser sought and obtained the advice of
legal counsel who advised Purchaser as to the significance of such
waiver.
(f) Purchaser's failure, for any reason whatsoever, to elect to
terminate this Agreement pursuant to Section 4(a)(ii) shall be deemed
an acknowledgment by Purchaser that Purchaser was afforded the
opportunity for full and complete investigations, examinations and
inspections of the Premises and all Property Information and that
Purchaser inspected the Premises, became thoroughly acquainted with
and accepted its condition, and reviewed, to the extent necessary in
its discretion, all the Property Information. Seller shall not be
liable or bound in any manner by any oral or written "setups" or
information pertaining to the Premises or the rents furnished by
Seller, Seller's Affiliates, their agents or representatives, any Real
estate broker, including, without limitation, the Broker, or other
person.
(g) Purchaser understands and acknowledges that the disclaimers,
releases and waivers by Buyer contained in this Section 14 and
elsewhere in this Agreement are of material consideration to Seller in
entering into this Agreement and agreeing to sell the Premises to
Buyer for the Purchase Price.
(h) The provisions of this Section 14 shall survive the
termination of this Agreement and the Closing.
15. Broker
Purchaser and Seller each represent and warrant to the other
that Grubb & Ellis (the "Broker") and CB Commercial Brokerage (the
"Co-Broker") are the sole brokers with whom it has dealt in connection
with the transactions described herein. Seller shall be liable for,
and shall indemnify Purchaser against, all brokerage commissions or
other compensation due to the Broker arising out of the transaction
contemplated in this Agreement, which compensation shall be paid
subject and pursuant to a separate agreement between Seller and the
Broker. Purchaser acknowledges that the CoBroker has acted as
Purchaser's agent in such transaction, that Seller has no legal
obligation or liability for payment of any commission to the Co-Broker
and that any commission paid to the Co-Broker in connection with such
transaction will be paid pursuant to agreement between the Broker and
the Co-Broker, out of the commission which Seller pays the Broker.
Each party hereto agrees to indemnify, defend and hold the other
harmless from and against any and all claims, causes of action,
losses, costs, expenses, damages or liabilities, including reasonable
attorneys' fees and disbursements, which the other may sustain, incur
or be exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of Purchaser as indemnitor
hereunder) the Broker and (in the case of Seller as indemnitor
hereunder) the Co-Broker, for fees, commissions or other compensation
arising out of the transactions contemplated in this Agreement if such
claim or claims are based in whole or in part on dealings or
agreements with the indemnifying party. Notwithstanding any provisions
of this Agreement to the contrary, in no event shall Seller be liable
for, and the foregoing indemnity of Seller shall in no event apply to,
claims by any broker, finder or other person for such fees,
commissions or other compensation if such claims are based upon
dealings or agreements with prior owners of the Premises. The
obligations and representations and warranties contained in this
Section 15 (x) are not intended by the Parties and shall not be deemed
to confer a benefit on any third party (including, without limitation,
the Broker or the Co-Broker) and (y) shall survive the termination of
this Agreement and the Closing.
16. Casualty: Condemnation
(a) Damage or Destruction: If any part of the Premises is
damaged or destroyed by fire or other casualty, Seller shall notify
Purchaser of such fact and, except as hereinafter provided, Purchaser
shall have the option to terminate this Agreement upon notice to
Seller given not later than ten (10) days after receipt of Seller's
notice. If this Agreement is so terminated, the provisions of Section
16(d) shall apply. Notwithstanding the foregoing, if a part of the
Premises is damaged or destroyed and Purchaser elects to terminate
this Agreement as provided above, Purchaser's election shall be
ineffective if within ten (10) days after Seller's receipt of
Purchaser's election notice, Seller shall elect by notice to Purchaser
to repair such damage or destruction and shall thereafter complete
such repair within 120 days after the then scheduled Closing Date at
the time of Purchaser's election. If Seller makes such election to
repair, Seller shall have the right to extend the Closing Date one or
more times for up to one hundred twenty (120) days in the aggregate in
order to complete such repairs and shall have the right to retain all
insurance proceeds which Seller may be entitled to receive as a result
of such damage or destruction. If (i) Purchaser does not elect to
terminate this Agreement or (ii) Purchaser elects to terminate this
Agreement but such election is ineffective because Seller elects to
repair such damage and completes such repair within such 120-day
period provided above, Purchaser shall close title as provided in this
Agreement and, at the Closing, Seller shall, unless Seller has
repaired such damage or destruction prior to the Closing, pay over to
Purchaser the cost of repair as mutually agreed by Seller and
Purchaser in good faith, less the amount of all such costs already
incurred by Seller in connection with the repair of such damage or
destruction.
(b) Condemnation: If, prior to the Closing Date, all or any
portion of the Premises is taken by eminent domain or condemnation (or
is the subject of a pending taking which has not been consummated),
Seller shall notify Purchaser of such fact and the Purchaser shall
have the option to terminate this Agreement upon notice to the Seller
given not later than ten (10) days after receipt of the Seller's
notice. If this Agreement is so terminated, the provisions of Section
16(d) shall apply. If Purchaser does not elect to terminate this
Agreement, at the Closing Seller shall assign and turnover, and
Purchaser shall be entitled to receive and keep, all awards or other
proceeds for such taking by eminent domain or condemnation.
(c) Notwithstanding anything contained in Section 16(a) and
Section 16(b) to the contrary, if this Agreement is not terminated as
provided in Section 16(a) or Section 16(b) and the insurance, eminent
domain or condemnation proceeds payable with respect to the Premises
as a result of any casualty or taking exceeds the Purchase Price,
Seller's obligation to pay over to Purchaser those proceeds paid to
Seller prior to the Closing shall be limited to the amount of the
Purchase Price and Seller shall be entitled to retain the remainder of
such proceeds. To the extent that payment of all or any portion of
such proceeds does not occur prior to the Closing, the parties agree
that Seller shall be entitled to that portion of the proceeds in
excess of the Purchase Price, which agreement shall survive the
Closing.
(d) If Purchaser elects to terminate this Agreement pursuant to
Section 16(a) or 16(b), this Agreement shall be terminated and neither
party shall have any further rights, obligations or liabilities
hereunder, except for the Surviving Obligations, and except that
Purchaser shall be entitled to a return of the Fund subject to Section
24(d) and provided Purchaser is not otherwise in default hereunder.
17. Remedies
(a) If the Closing fails to occur by reason of Seller's
inability (subject to Section 6(b)) to perform its obligations under
this Agreement, then Purchaser, as its sole remedy for such inability
of Seller, may terminate this Agreement by notice to Seller. If
Purchaser elects to terminate this Agreement, then this Agreement
shall be terminated and neither party shall have any further rights,
obligations or liabilities hereunder, except for the Surviving
Obligations, and except that Purchaser shall be entitled to a return
of the Fund subject to Section 24(d) and provided Purchaser is not
otherwise in default hereunder. Except as set forth in this Section
17(a), Purchaser hereby expressly waives, relinquishes and releases
any other right or remedy available to it at law, in equity or
otherwise by reason of Seller's inability to perform its obligations
hereunder.
(b) LIQUIDATED DAMAGES: IF THE CLOSING FAILS TO OCCUR BY REASON
OF PURCHASERS UNEXCUSED FAILURE OR REFUSAL TO PERFORM ITS OBLIGATIONS
HEREUNDER, THEN SELLER AS ITS SOLE REMEDY MAY TERMINATE THIS AGREEMENT
BY NOTICE TO PURCHASER AND RETAIN THE FUND AS LIQUIDATED DAMAGES FOR
ALL LOSS, DAMAGE AND EXPENSES SUFFERED BY SELLER, IT BEING AGREED THAT
SELLER'S DAMAGES ARE IMPOSSIBLE TO ASCERTAIN, BUT THAT THE AMOUNT OF
THE FUND ARE A REASONABLE APPROXIMATION OF SUCH DAMAGES. UPON SUCH
TERMINATION AND PAYMENT OF THE FUND TO SELLER, NEITHER PARTY SHALL
HAVE ANY FURTHER RIGHTS, OBLIGATIONS OR LIABILITIES HEREUNDER, EXCEPT
FOR THE SURVIVING OBLIGATIONS (AND NOTHING CONTAINED HEREIN SHALL
LIMIT OR RESTRICT SELLER'S ABILITY TO PURSUE ANY RIGHTS OR REMEDIES IT
MAY HAVE AGAINST PURCHASER WITH RESPECT TO THE SURVIVING OBLIGATIONS).
EXCEPT AS SET FORTH IN THIS SECTION 17B) AND SECTION 24(F), SELLER
HEREBY EXPRESSLY WAIVES, RELINQUISHES AND RELEASES ANY OTHER RIGHT OR
REMEDY AVAILABLE TO IT AT LAW, IN EQUITY OR OTHERWISE BY REASON OF
PURCHASER'S DEFAULT HEREUNDER OR PURCHASER'S FAILURE OR REFUSAL TO
PERFORM ITS OBLIGATIONS HEREUNDER.
BY INITIALING BELOW, SELLER AND PURCHASER ACKNOWLEDGEMENT
THEIR SPECIFIC AGREEMENT TO THE FOREGOING LIQUIDATED DAMAGES
PROVISION.
SELLER: PURCHASER:
(c) If the Closing fails to occur by reason of Seller's refusal
to perform its obligations hereunder, then Purchaser, as its sole
remedy hereunder, may (i) terminate this Agreement by notice to Seller
and recover the Downpayment and the Legal Fees Deposit (together with
any interest actually earned thereon) or (ii) seek specific
performance from Seller. As a condition precedent to Purchaser
exercising any right it may have to bring an action for specific
performance as the result of Seller's failure or refusal to perform
its obligations hereunder, Purchaser must commence such an action and
record any lis pendens against the Premises within ninety (90) days
after the occurrence of such default. Purchaser agrees that its
failure to timely commence such an action for specific performance
within such ninety (90) day period shall be deemed a waiver by it of
its right to commence such an action and that, in any event, Purchaser
shall have no right to record any lis pendens against the Premises
after such ninety (90) day period (and that Seller shall be entitled,
as of right, to the immediate expungement of any untimely recorded lis
pendens).
18. Purchaser's Access to the Premises
During the Due Diligence Period, Purchaser and Purchaser's
Representatives shall have the right to enter upon the Premises for
the sole purpose of inspecting the Premises and making surveys, soil
borings, engineering tests and other investigations, inspections and
tests (collectively, "Investigations"), provided (i) Purchaser shall
give Seller not less than five (5) days' prior notice before the first
such entry and one (1) day's prior notice before each subsequent
entry, (ii) the first such notice shall include sufficient information
to permit Seller to review the scope of the proposed Investigations,
and (iii) neither Purchaser nor Purchaser's Representatives shall
permit any borings, drillings, samplings or other testing of an
intrusive or destructive nature to be done on the Premises without
Seller's prior consent which shall not be unreasonably withheld or
delayed (except that Seller shall have the right, for any reason, not
to consent to any drilling or boring which would penetrate to ground
water or permeable strata adjacent to ground water). Notice under this
Section 18 may be given by telephone to Amos Roger, at (212) 559-3752.
Any entry upon the Premises and all Investigations shall be during
Seller's normal business hours and at the sole risk and expense of
Purchaser and Purchaser's Representatives, and shall not interfere
with the activities on or about the Premises of Seller, its tenants
and their employees and invitees. Purchaser shall:
(a) promptly repair any damage to the Premises resulting from
any such Investigations and replace, refill and regrade any holes made
in, or excavations of, any portion of the Premises used for such
Investigations so that the Premises shall be in the same condition
that it existed in prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations
and all other activities undertaken in connection therewith;
(c) permit Seller to have a representative present during all
Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to
ensure that all actions taken in connection with the Investigations,
and the equipment, materials, and substances generated, used or
brought onto the Premises pose no threat to the safety or health of
persons or the environment, and cause no damage to the Premises or
other property of Seller or other persons;
(e) promptly after Purchaser's receipt of the same, furnish to
Seller, at no cost or expense to Seller, copies of all surveys, soil
test results, engineering, asbestos, environmental and other studies
and reports relating to the Investigations which Purchaser shall
obtain with respect to the Premises; provided, however, that if
Closing occurs, Seller shall return all such copies to Purchaser;
(f) maintain or cause to be maintained, at Purchaser's expense,
a policy of comprehensive general public liability insurance, with a
broad form contractual liability endorsement covering Purchaser's
indemnification obligations contained in Section 18(h) and Section
24(c), and with a combined single limit of not less than $1,000,000
per occurrence for bodily injury and property damage, automobile
liability coverage including owned and hired vehicles with a combined
single limit of $1,000,000 per occurrence for bodily injury and
property damage, and an excess umbrella liability policy for bodily
injury and property damage in the amount of $5,000,000, insuring
Purchaser and Seller and Seller's Affiliates, as additional insureds,
against any injuries or damages to persons or property that may result
from or are related to (i) Purchaser's and/or Purchaser's
Representatives' entry upon the Premises, (ii) any Investigations or
other activities conducted thereon, and (iii) any and all other
activities undertaken by Purchaser and/or Purchaser's Representatives,
all of which insurance shall be on an "occurrence form," and deliver a
copy of such insurance policy to Seller prior to the first entry on
the Premises;
(g) not allow the Investigations or any and all other activities
undertaken by Purchaser or Purchaser's Representatives to result in
any liens, judgments or other encumbrances being filed or recorded
against the Premises, and Purchaser shall, at its sole cost and
expense, promptly discharge of record any such liens or encumbrances
that are so filed or recorded (including, without limitation, liens
for services, labor or materials furnished); and
(h) indemnify Seller and Seller's Affiliates and hold Seller and
Seller's Affiliates harmless from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, attorneys' fees and
disbursements), suffered or incurred by Seller or any of Seller's
Affiliates and arising out of or in connection with (i) Purchaser's
and/or Purchaser's Representatives' entry upon the Premises, (ii) any
Investigations or other activities conducted thereon by Purchaser or
Purchaser's Representatives, (iii) any liens or encumbrances filed or
recorded against the Premises as a consequence of the Investigations
or any and all other activities undertaken by Purchaser or Purchaser's
Representatives, and/or (iv) any and all other activities undertaken
by Purchaser or Purchaser's Representatives with respect to the
Premises.
The provisions of this Section 18 shall survive the termination of
this Agreement and the Closing.
19. Purchaser's Indemnity
Purchaser hereby agrees to indemnify Seller and Seller's
Affiliates against, and to hold Seller and Seller's Affiliates
harmless from all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements) asserted against or incurred by
Seller or any of Seller's Affiliates in connection with or arising out
of (a) acts or omissions of Purchaser or Purchaser's Representatives,
or other matters or occurrences that take place after the Closing and
relate to the ownership, maintenance or operation of the Premises
(unless proximately caused by Seller's own negligent or intentional
act or wrongful omission, or (b) a breach of any representation,
warranty or covenant of Purchaser contained in this Agreement.
Purchaser's obligations under this Section 19 shall survive the
Closing.
20. Escrow
Escrow Agent shall hold the Downpayment and all interest accrued
thereon, if any (collectively, the "Fund") in escrow and shall dispose
of the Fund only in accordance with the following provisions:
(a) Escrow Agent shall deliver the Fund to Seller or Purchaser,
as the case may be, as follows:
Closing; or
(i) to Seller, upon completion of the
(ii) to Seller, after receipt of Seller's demand in which Seller
certifies either that (A) Purchaser has defaulted under this
Agreement, or (B) this Agreement has been otherwise terminated or
cancelled, and Seller is thereby entitled to receive the Fund; but
Escrow Agent shall not honor Seller's demand until more than ten (10)
days after Escrow Agent has given a copy of Seller's demand to
Purchaser in accordance with Section 20(b)(i), nor thereafter if
Escrow Agent receives a Notice of Objection from Purchaser within such
ten (10) day period; or
(iii) to Purchaser, after receipt of Purchaser's demand in which
Purchaser certifies either that (A) Seller has defaulted under this
Agreement, or (B) this Agreement has been otherwise terminated or
cancelled, and Purchaser is thereby entitled to receive the Fund; but
Escrow Agent shall not honor Purchaser's demand until more than ten
(10) days after Escrow Agent has given a copy of Purchaser's demand to
Seller in accordance with Section 20(b)(i), nor thereafter if Escrow
Agent receives a Notice of Objection from Seller within such ten (10)
day period.
Upon delivery of the Fund in accordance with the provisions of this
Section 20, Escrow Agent shall be relieved of all liability hereunder
and with respect to the Fund. Escrow Agent shall deliver the Fund, at
the election of the party entitled to receive the same, by (i) a good,
unendorsed certified check of Escrow Agent payable to the order of
such party, (ii) an unendorsed official bank or cashier's check
payable to the order of such party, or (iii) a bank wire transfer of
immediately available funds to an account designated by such party.
(b) (i) Upon receipt of a written demand from Seller or
Purchaser under Section 20(a)(ii) or (iii), Escrow Agent shall send a
copy of such demand to the other party. Within ten (10) days after the
date of receiving same, but not thereafter, the other party may object
to delivery of the Fund to the party making such demand by giving a
notice of objection (a "Notice of Objection") to Escrow Agent. After
receiving a Notice of Objection, Escrow Agent shall send a copy of
such Notice of Objection to the party who made the demand; and
thereafter, in its sole and absolute discretion, Escrow Agent may
elect either (A) to continue to hold the Fund until Escrow Agent
receives a written agreement of Purchaser and Seller directing the
disbursement of the Fund, in which event Escrow Agent shall disburse
the Fund in accordance with such agreement; and/or (B) to bring an
action in interpleader against Seller and Purchaser and deposit the
Fund with the court in which such action is pending; or (C) in the
event of any litigation between Seller and Purchaser, to deposit the
Fund with the clerk of the court in which such litigation is pending.
(ii) If Escrow Agent is uncertain for any reason whatsoever as
to its duties or rights hereunder (and whether or not Escrow Agent has
received any written demand under Section 20(a)(ii) or (iii), or
Notice of Objection under Section 20(b)(i)), notwithstanding anything
to the contrary herein, Escrow Agent may hold and apply the Fund
pursuant to Section 20(b)(i)(A),(B) or (C) and may decline to take any
other action whatsoever. In the event the Fund is deposited with a
court pursuant to Section 20(b)(i)(B) or (C), Escrow Agent shall be
entitled to rely upon the decision of such court. In the event of any
dispute whatsoever among the parties with respect to disposition of
the Fund, Purchaser and Seller shall pay the attorney's fees and costs
incurred by Escrow Agent (which said parties shall share equally, but
for which said parties shall be jointly and severally liable) for any
litigation in which Escrow Agent is named as, or becomes, a party.
(c) Notwithstanding anything to the contrary in this Agreement,
within one (1) business day after the date of this Agreement, Escrow
Agent shall place the Downpayment in an Approved Investment. The
interest, if any, which accrues on such Approved Investment shall be
deemed part of the Fund; and Escrow Agent shall dispose of such
interest as and with the Fund pursuant to this Agreement. Escrow Agent
may not commingle the Fund with any other funds held by Escrow Agent.
Escrow Agent may convert the Fund from the Approved Investment into
each or a non-interest-bearing demand account at an Approved
Institution as follows:
(i) at any time within seven (7) days prior to the Closing Date;
or
(ii) if the Closing Date is accelerated or extended, at any time
within seven (7) days prior to the accelerated or extended Closing
Date (provided, however, that Seller and Purchaser-shall give Escrow
Agent timely notice of any such acceleration or extension and that
Escrow Agent may hold the Fund in each or a non-interest-bearing
deposit account if Seller and Purchaser do not give Escrow Agent
timely notice of any such extension).
(d) As used herein, the term "Approved Investment" means (i) any
interest-bearing demand account or money market fund in Citibank,
N.A., or in any other institution otherwise approved by both Seller
and Purchaser (collectively, an "Approved Institution"), or (ii) any
other investment approved by both Seller and Purchaser. The rate of
interest or yield need not be the maximum available and deposits,
withdrawals, purchases, reinvestment of any matured investment and
sales shall be made in the sole discretion of Escrow Agent, which
shall have no liability whatsoever therefor. Discounts earned shall be
deemed interest for the purpose hereof.
(e) Escrow Agent shall have no duties or responsibilities except
those set forth herein, which the parties hereto agree are ministerial
in nature. Seller and Purchaser acknowledge that Escrow Agent is
serving without compensation, solely as an accommodation to the
parties hereto, and except for Escrow Agent's own default, misconduct
or negligence, Escrow Agent shall have no liability of any kind
whatsoever arising out of or in connection with its activity as Escrow
Agent. Seller and Purchaser jointly and severally agree to and do
hereby indemnify and hold-harmless Escrow Agent from all loss, cost,
claim, damage, liability, and expense (including, without limitation,
attorney's fees and disbursements whether paid to retained attorneys
or representing the fair value of legal services rendered to itself)
which may be incurred by reason of its acting as Escrow Agent provided
the same is not the result of Escrow Agent's default, misconduct or
negligence. Escrow Agent may charge against the Fund any amounts owed
to it under the foregoing indemnity or may withhold the delivery of
the Fund as security for any unliquidated claim, or both.
(f) Any Notice of Objection, demand or other notice or
communication which may or must be sent, given or made under this
Agreement to or by Escrow Agent shall be sent in accordance with the
provisions of Section 23.
(g) Simultaneously with their execution and delivery of this
Agreement, Purchaser and Seller shall furnish Escrow Agent with their
true Federal Taxpayer Identification Numbers so that Escrow Agent may
file appropriate income tax information returns with respect to any
interest in the Fund or other income from the Approved Investment. The
party ultimately entitled to any accrued interest in the Fund shall be
the party responsible for the payment of any tax due thereon.
(h) Any amendment of this Agreement which could alter or
otherwise affect Escrow Agent's obligations hereunder will not be
effective against or binding upon Escrow Agent without Escrow Agent's
prior consent, which consent may be withheld in Escrow Agent's sole
and absolute discretion.
(i) The provisions of this Section 20 shall survive the
termination of this Agreement and the Closing.
21. Assignment
This Agreement may not be assigned by Purchaser and any assignment or
attempted assignment by Purchaser shall constitute a default by
Purchaser hereunder and shall be null and void.
22. Access to Records
For a period of five (5) years subsequent to the Closing Date,
Seller, Seller's Affiliates and their employees, agents and
representatives shall be entitled to access during business hours to
all documents, books and records given to Purchaser by Seller at the
Closing for tax and audit purposes, regulatory compliance, and
cooperation with governmental investigations upon reasonable prior
notice to Purchaser, and shall have the right, at its sole cost and
expense, to make copies of such documents, books and records. During
such five (5) year period, before disposing of any such documents,
books and records Purchaser shall give Seller at least thirty (30)
days' prior written notice and, if Seller so requests in writing
during such thirty-day period, return the same to Seller instead.
23. Notices
(a) All notices, elections, consents, approvals, demands,
objections, requests or other communications which Seller, Purchaser
or Escrow Agent may be required or desire to give pursuant to, under
or by virtue of this Agreement must be in writing and sent by (i)
first class U.S. certified or registered mail, return receipt
requested, with postage prepaid, or (ii) express mail or courier (for
next business day delivery), addressed as follows:
If to Seller:
NCEC Realty, Inc.
c/o Citicorp Real Estate, Inc.
599 Lexington Avenue
New York, New York 10043
Attention: Mr. Amos Rogers
with copies to:
Citicorp Real Estate, Inc.
599 Lexington Avenue
New York, New York 10043
Attention: General Counsel
and:
Morgan, Lewis & Bockius
801 South Grand Avenue, 22nd Floor
Los Angeles, California 90017
Attention: J. Dean Heller, Esq.
If to Purchaser:
Bedford Property Investors, Inc.
3658 Mt. Diablo Boulevard, Suite
210 Lafayette, California 94549
Attention: Mr. John Papini
with a copy to:
Zankel & McGrane
One Embarcadero Center
San Francisco, California 94111
Attention: Brian McLaughlin, Esq.
If to Escrow Agent:
Lawyers Title Insurance corporation
Los Angeles National Division
800 East Colorado Boulevard, Suite-250
Pasadena, California 91101
(b) Seller, Purchaser or Escrow Agent may designate another
addressee or change its address for notices and other communications
hereunder by a notice given to the other parties in the manner
provided in this Section 23. A notice or other communication sent in
compliance with the provisions of this Section 23 shall be deemed
given and received on (i) the date of delivery or attempted delivery
(as shown by postal receipt) if sent by certified or registered U.S.
mail, or (ii) the date of delivery or attempted delivery (as shown by
postal or courier receipt) if sent by express mail or courier.
24. Property Information and Confidentiality
(a) Purchaser agrees that, prior to the Closing, all Property
Information shall be kept strictly confidential and shall not, without
the prior consent of Seller, be disclosed by Purchaser or Purchaser's
Representatives, in any manner whatsoever, in whole or in part, and
will not be used by Purchaser or Purchaser's representatives, directly
or indirectly, for any purpose other than evaluating the Premises.
Moreover, Purchaser agrees that, prior to the Closing, the Property
Information will be transmitted only to Purchaser's Representatives
(i) who need to know the Property Information for the purpose of
evaluating the Premises, and who are informed by the Purchaser of the
confidential nature of the Property Information and (ii) for whose
confidential handling of the Property Information and compliance with
this Section 24 Purchaser shall be responsible. The provisions of this
Section 24(a) shall in no event apply to Property Information which is
a matter of public record and shall not prevent Purchaser from
complying with Laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements.
(b) Purchaser and Seller, for the benefit of each other, hereby
agree that between the date hereof and the Closing Date, they will not
release or cause or permit to be released any press notices, publicity
(oral or written) or advertising promotion relating to, or otherwise
announce or disclose or cause or permit to be announced or disclosed,
in any manner whatsoever, the terms, conditions or substance of this
Agreement or the transactions contemplated herein, without first
obtaining the written consent of the other party hereto. It is
understood that the foregoing shall not preclude either party from
discussing the substance or any relevant details of the transactions
contemplated in this Agreement, subject to the terms of Section 24(a),
with any of its attorneys, accountants, professional consultants or
potential lenders, as the case may be, or prevent either party hereto
from complying with Laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements. After the
Closing, Seller shall have the right to publicize the sale of the
Property hereunder in whatever manner it deems appropriate.
(c) Purchaser shall indemnify and hold Seller and Seller's
Affiliates harmless from and against any and all claims, demands,
causes of action, losses, damages, liabilities, costs and expenses
(including, without limitation, attorneys' fees and disbursements)
suffered or incurred by Seller or any of Seller's Affiliates and
arising out of or in connection with a breach by Purchaser or
Purchaser's Representatives of the provisions of this Section 24.
(d) In the event this Agreement is terminated, Purchaser and
Purchaser's Representatives shall promptly deliver to Seller (A) all
originals and copies of the Property Information referred to in clause
(i) of Section 24(e) in the possession of Purchaser and Purchaser's
Representatives and (B) a written list of all governmental authorities
and all Seller's tenants, vendors, consultants and contractors which
Purchaser contacted during the course of its investigation of the
Property (including, to the best of Purchaser's recollection, the
names of the individuals to whom Purchaser's Representatives spoke in
each such contact). Notwithstanding anything contained herein to the
contrary, in no event shall Purchaser be entitled to receive a return
of the Downpayment or the accrued interest thereon, if any, if and
when otherwise entitled thereto pursuant to this Agreement until such
time as Purchaser and Purchaser's Representatives shall have performed
the obligations contained in the preceding sentence.
(e) As used in this Agreement, the term "Property Information"
shall mean (i) all information and documents in any way relating to
the Premises, the operation thereof or the sale thereof (including,
without limitation, Leases, Contracts, Labor Contracts and Licenses)
furnished to, or otherwise made available for review by, Purchaser or
its directors, officers, employees, affiliates, partners, brokers,
agents or other representatives, including, without limitation,
attorneys, accountants, contractors, consultants, engineers and
financial advisors (collectively, "Purchaser's Representatives"), by
Seller or any of Seller's Affiliates, or their agents or
representatives, including, without limitation, their contractors,
engineers, attorneys, accountants, consultants, brokers or advisors,
and (ii) all analyses, compilations, data, studies, reports or other
information or documents prepared or obtained by Purchaser or
Purchaser's Representatives containing or based, in whole or in part,
on the information or documents described in the preceding clause (i),
or the Investigations, or otherwise reflecting their review or
investigation of the Premises (but excluding any information or
documents constituting work product of, or a privileged communication
to or from, Purchaser's attorneys).
(f) In addition to any other remedies available to Seller,
Seller shall have the right to seek equitable relief, including,
without limitation, injunctive relief or specific performance, against
Purchaser or Purchaser's Representatives in order to enforce the
provisions of this Section 24 and the last sentence of Section
4(a)(i).
(g) The provisions of this Section 24 shall survive the
termination of this Agreement and the Closing.
25. Miscellaneous
(a) This Agreement shall not be altered, amended, changed,
waived, terminated or otherwise modified in any respect or particular,
and no consent or approval required pursuant to this Agreement shall
be effective, unless the same shall be in writing and signed by or on
behalf of the party to be charged.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and to their respective heirs,
executors, administrators, successors and permitted assigns.
(c) All prior statements, understandings, representations and
agreements between the parties, oral or written, are superseded by and
merged in this Agreement, which alone fully and completely expresses
the agreement between them in connection with this transaction and
which is entered into after full investigation, neither party relying
upon any statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement shall be
given a fair and reasonable construction in accordance with the
intentions of the parties hereto, and without regard to or aid of
canons requiring construction against Seller or the party drafting
this Agreement.
(d) Except as otherwise expressly provided herein, Purchaser's
acceptance of the Deed shall be deemed a discharge of all of the
obligations of Seller hereunder and all of Seller's representations,
warranties, covenants and agreements herein shall merge in the
documents and agreements executed at the Closing and shall not survive
the Closing.
(e) Purchaser agrees that it does not have and will not have any
claims or causes of action against any disclosed or undisclosed
officer, director, employee, trustee, shareholder, partner, principal,
parent, subsidiary or other affiliate of Seller, including, without
limitation, Citicorp, Citibank, N.A., Citicorp Real Estate, Inc. or
Aspiration, Inc. (collectively, "Seller's Affiliates"), arising out of
or in connection with this Agreement or the transactions contemplated
hereby. Purchaser agrees to look solely to Seller and its assets for
the satisfaction of any liability or obligation arising under this
Agreement or the transactions contemplated hereby, or for the
performance of any of the covenants, warranties or other agreements
contained herein, and further agrees not to sue or otherwise seek to
enforce any personal obligation against any of Seller's Affiliates
with respect to any matters arising out of or in connection with this
Agreement or the transactions contemplated hereby. Without limiting
the generality of the foregoing provisions of this Section 25(e),
Purchaser hereby unconditionally and irrevocably waives any and all
claims and causes of action of any nature whatsoever it may now or
hereafter have against Seller's Affiliates, and hereby unconditionally
and irrevocably releases and discharges Seller's Affiliates from any
and all liability whatsoever which may now or hereafter accrue in
favor of Purchaser against Seller's Affiliates, in connection with or
arising out of this Agreement or the transactions contemplated hereby.
The provisions of this Section 25(e) shall survive the termination of
this Agreement and the Closing.
(f) Purchaser agrees that, wherever this Agreement provides that
Purchaser must send or give any notice, make an election or take some
other action within a specific time period in order to exercise a
right or remedy it may have hereunder, time shall be of the essence
with respect to the taking of such action, and Purchaser's failure to
take such action within the applicable time period shall be deemed to
be an irrevocable waiver by Purchaser of such right or remedy.
(g) No failure or delay of either party in the exercise of any
right or remedy given to such party hereunder or the waiver by any
party of any condition hereunder for its benefit (unless the time
specified herein for exercise of such right or remedy has expired)
shall constitute a waiver of any other or further right or remedy nor
shall any single or partial exercise of any right or remedy preclude
other or further exercise thereof or any other right or remedy. No
waiver by either party of any breach hereunder or failure or refusal
by the other party to comply with its obligations shall be deemed a
waiver of any other or subsequent breach, failure or refusal to so
comply.
(h) Neither this Agreement nor any memorandum thereof shall be
recorded and any attempted recordation hereof shall be void and shall
constitute a default.
(i) This Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original,
but all of which taken together shall constitute but one and the same
instrument.
(j) Each of the Exhibits and Schedules referred to herein and
attached hereto is incorporated herein by this reference.
(k) The caption headings in this Agreement are for convenience
only and are not intended to be a part of this Agreement and shall not
be construed to modify, explain or alter any of the terms, covenants
or conditions herein contained.
(l) This Agreement shall be interpreted and enforced in
accordance with the laws of the state in which the Premises is located
without reference to principles of conflicts of laws.
(m) If any provision of this Agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this
Agreement and to this end the provisions of this Agreement are
intended to be and shall be severable. Notwithstanding the foregoing
sentence, if (i) any provision of this Agreement is finally determined
by a court of competent jurisdiction to be unenforceable or invalid in
whole or in part, (ii) the opportunity for all appeals of such
determination have expired, and (iii) such unenforceability or
invalidity alters the substance of this Agreement (taken as a whole)
so as to deny either party, in a material way, the realization of the
intended benefit of its bargain, such party may terminate this
Agreement within thirty (30) days after the final determination by
notice to the other. If such party so elects to terminate this
Agreement, then this Agreement shall be terminated and neither party
shall have any further rights, obligations or liabilities hereunder,
except for the Surviving Obligations, and except that Purchaser shall
be entitled to a return of the Fund subject to Section 24(d) and
provided Purchaser is not otherwise in default hereunder.
(n) SELLER AND PURCHASER HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER
ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
[SEAL] NCEC REALTY, INC., Seller
ATTEST:
DAVID J. FEINGOLD EDWARD T. LAGRASSA
SECRETARY PRESIDENT
[SEAL] BEDFORD PROPERTY INVESTORS, INC.,
ATTEST: Purchaser
ROGER GALASSI JOHN PAPINI
SECRETARY VICE PRESIDENT
Solely for the purpose of
agreeing to the provisions
of Section 20:
LAWYERS TITLE INSURANCE
CORPORATION, Escrow Agent
By:
Name:
Title:
<PAGE>
SCHEDULE 1 TO SALE-PURCHASE AGREEMENT
DESCRIPTION OF THE LAND
Parcel 1 of Parcel Map No. 89-9, in the City of Oxnard, County of
Ventura, State of California, as shown on parcel map filed in Book 51,
Pages 16 and 17 of Parcel Maps, in the office of the County Recorder
of said County.
EXCEPTING THEREFROM an undivided one-half interest in and to all oil,
gas, other hydrocarbon substances and minerals in and under the
property herein described, without, however, the right to enter upon
the surface thereof or within 500 feet beneath the surface thereof as
reserved in the deed recorded in Book 4723, Page 472 of Official
Records.
ALSO EXCEPTING THEREFROM the remainder of all the oil, gas, other
hydrocarbon substances and minerals in and under said property,
without, however, the right to enter on the surface thereof or within
500 feet beneath the surface thereof as reserved in the deeds recorded
December 3, 1986, as Instruments No. 86-175822 through 86-175828 of
Official Records.
<PAGE>
SCHEDULE 2 TO SALE-PURCHASE AGREEMENT
LIST OF EXCLUDED PROPERTY
6' Executive Desk with return and 3 file drawers. Light oak finish.
Round conference table (light oak finish) with four gray swivel
chairs.
2-drawer file cabinet. Light oak finish.
4-drawer credenza. Light oak finish
Dark wood love seat with gray fabric.
4 lobby chairs. Brown leather and chrome.
Glass and chrome lobby table.
386SX computer with MGC color monitor.
Okidata Microline 391 Plus 24 Pin Printer.
Toshiba 3750 facsimile machine.
3 - Panasonic Easa-Phones (3-Line Telephone System).
Sharp SF-2027 Copier (3-year lease expiring at the end of 1995).
Panasonic mid-size microwave. 8 cubic foot oven capacity.
Pertach laminating machine.
Mr. Coffee Sr. 10-cup coffee maker.
Miscellaneous office supplies.
<PAGE>
SCHEDULE 3 TO SALE-PURCHASE AGREEMENT
PERMITTED ENCUMBRANCES
Purchaser shall take title to the Premises subject to:
1. Present and future zoning laws, ordinances, resolutions,
orders and regulations of all municipal, county, state or federal
governments having jurisdiction over the Premises and the use of
improvements thereon.
2. All covenants, restrictions, easements, encumbrances and
agreements of record, including (without limitation, those disclosed
by Schedule 3A attached hereto).
3. Beams and beam rights and party walls and party wall
agreements.
4. Such state of f acts as survey of the Premises would
disclose.
5. Such state of facts as a of the Premises and of the
appurtenances, a current, accurate physical inspection fixtures,
equipment and personal property included in this sale would disclose.
6. The lien of any unpaid real estate taxes, water charges
and sewer rents for the fiscal year(s) or other applicable period in
which the Closing occurs, provided same are apportioned at the Closing
in accordance with this Agreement.
7. (a) The lien of all unpaid assessments encumbering the
Premises on the date of this Agreement, and installments thereof, due
and payable on or after the Closing Date, and (b) the lien of all
unpaid assessments which first encumber the Premises subsequent to the
date of this Agreement, and installments thereof, whether due and
payable prior to, on ar after the Closing Date, provided same are
apportioned at the Closing in accordance with this Agreement.
8. All liens and encumbrances resulting from the
Investigations or any and all other activities undertaken by Purchaser
or Purchaser's Representatives.
9. Rights, if any, of any utility company to construct
and/or maintain lines, pipes, wires, cables, poles, conduits and
distributions boxes and equipment in, over, under, and/or upon the
Premises or any portion thereof.
10. Building codes and restrictions heretofore or hereafter
adopted by any public agency.
11. Encroachments of stoops, areas, cellar, steps, trim,
cornices, retaining walls, windows, window sills, ledges, fire
escapes, doors, door caps, projecting air conditioner units or
equipment, hedges, railings, coping, cellar doors or fences, if any,
upon any street, highway, sidewalk or adjoining premises; variations
between record line and retaining walls; encroachments of adjoining
premises upon the Premises.
12. Radio antenna and television antenna violations or
violations arising out of tenant air conditioners.
13. Variations between the description contained in Schedule "1"
and the tax map description of the Premises.
14. Right, lack of right or restricted right of any owner of the
Premises to construct and/or maintain any vault or vaulted area in or
under the sidewalks abutting the premises, any licensing statute,
ordinance or regulation and the terms of any license pertaining
thereto and any fees for vault space which may hereafter be assessed.
15. Right, lack of right or restricted right of any owner of the
Premises to construct and/or maintain fuel tanks, coal chutes,
electric transformers, sidewalk elevators, gratings, manholes, hoists
or excavations under, in, upon or over any street, highway, sidewalk
or adjoining Premises.
16. Leases and New Leases.
17. Contracts.
18. Labor Contracts.
<PAGE>
SCHEDULE 3A TO SALE-PURCHASE AGREEMENT
PERMITTED ENCUMBRANCES
A. Property taxes, including any assessments collected with taxes,
to be levied for the fiscal year 1993-1994 which are a lien not yet
payable.
D. An assessment by the improvement district shown below:
Assessment (or Bond) No.: 39-1F
Series: Seawater Intrusion District
District: United Water Conservation District
For: Improvement of Oxnard Plains - Seawater
Bond Issued: November 13, 1981
Original Amount: $169.00
Said assessment is collected with the County/City property taxes.
E. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue
and Taxation Code, of the State of California.
1. A Development Agreement executed by Warmington-Semler Partners,
a California General Partnership and the City of Oxnard in accordance
with the Specific Plan adopted by Ordinance No. 2048 and Parcel Map
Waiver as shown in Resolution No. 6933
Recorded: October 2, 1986, as Instrument No. 86-137015; and
December 3, 1986, as Instrument No. 86-175821; both of
Official Records
2. Covenants, conditions and restrictions (deleting therefrom any
restrictions based on race, color or creed) as set forth in the
document
Recorded: December 3, 1986, as Instrument No. 86-175831 of
Official Records
Among other things, said document provides for: Assessments.
3. An easement for the purposes shown below and rights incidental
thereto as shown or as offered for dedication on the recorded map
shown below.
Map of: Tract No 4334
Recorded: In Book 114, Pages 62 to 66 of Maps
Purpose: Landscaping, sidewalk and public utilities
Affects: A portion of said Lots 6 and 7 as shown on map
of said tract
7. An unrecorded lease with certain terms, covenants, conditions
and provisions set forth therein
Lessor: North Coast Executive Center, a California Limited
Partnership
Lessee: Nordman, Cormany, Hair & Compton
Disclosed by: Assignment of Rents and Leases
Recorded: September 28, 1989, as Instrument No 89-152733 of
Official Records
The present ownership of the leasehold created by said lease and other
matters affecting the interest of the lessee are not shown herein.
By the provisions of an agreement
Dated: September 27, 1989
Executed by: Nordman, Cormany, Hair and Compton, a General
Partnership
Recorded: October 3, 1989, as Instrument No. 89-155563 of
Official Records
Said instrument was made subordinate to the lien of the document or
interest shown as Item No. 4
Lessors Interest
Assignor: North Coast Executive Center, a California Limited
Partnership
Assignee: NCEC Realty, Inc., a California corporation
Recorded: October 7, 1991, as Instrument No. 91-147934 of
Official Records
An agreement to amend or modify certain provisions of said lease, as
set forth in the document executed by:
As Lessor: NCEC Realty, Inc., a California corporation
As Lessee: Nordman, Cormany, Hair & Compton, a California General
Partnership
Recorded: May 13, 1992, as Instrument No. 92-084658 of Official
Records
8. An easement for the purpose shown below and rights incidental
thereto as set forth in a document
Granted to: Oxnard Town Center, a California Limited Partnership
Purpose: Vehicular ingress and egress
Recorded: October 3, 1989, as Instrument No 89-155564 of
Official Records
Affects: A portion of said land as therein described
Reference is made to said document for full particulars.
9. A "Notice of Land Use Restriction and Conditions" affecting all
of said land
Executed by: North Coast Executive Center, a California Limited
Partnership and the City of Oxnard
Recorded: November 20, 1989, as Instrument No. 89-184579 of
Official Records
10. An easement for the purpose shown below and rights incidental
thereto as set forth in a document
Granted to: Southern California Edison Company
Purpose: Public Utilities
Recorded: May 17, 1990, as Instrument No. 90-074474 of Official
Records
Affects: A portion of said land as therein described
Restriction on the use, by the owners of said land, of the easement
area as set forth in said document.
Reference is made to said document for full particulars.
11. An easement for the purposes shown below and rights incidental
thereto as shown or as offered for dedication on the recorded map
shown below.
Map of: Parcel Map No. 89-9
Recorded: In Book 51, Page 16
Purpose: Fire line
Affects: A portion of said land
12. Unrecorded leases with certain terms, covenants, conditions and
provisions set forth therein,
Disclosed by: Assignment of Leases
Lessor: NCEC Realty Inc., a California Corporation
Lessee: (a) Firemens Fund
(b) McLains Escrow
(c) Told Real Estate
(d) Insurance Company of North America
An Assignment of the Lessors interest under said leases
Assignor: North Coast Executive Center, a California Corporation
Assignee: NCEC Realty, Inc., a California Corporation
Recorded: October 7, 1991, as Instrument No 91-147934 of
Official Records
13. Water rights, claims or title to water, whether or not shown by
the Public Record.
14. Any easements not disclosed by those public records which impart
constructive notice and which are not visible and apparent from an
inspection of the surface of said land.
15. Any claims for mechanics' liens on said land that may be
recorded, by reason of a work of improvement that is disclosed by the
document shown below
Document: Notice Non-Responsibility
Recorded: May 4, 1993, as Instrument No. 93-079550 of Official
Records
16. Unrecorded leases with certain terms, covenants, conditions and
provisions set forth therein,
Disclosed by: Notice of Non-Responsibility
Recorded: May 4, 1993, as Instrument No. 93-079550
Lessor: Voit Management Company, L. P., as Agent for NCEC
Realty, Inc.
Lessee: Shearson Lehman Brothers
17. A pending assessment for the district shown below. When notice
of the assessment is recorded with the County Recorder the assessment
shall become a lien on said land.
District: Community Facilities District (Oxnard Town Center) and
Mallo Roos Community Facilities
Disclosed by: District Map No. 88-1
Recorded: July 12, 1988, as Instrument No. 88-097534 of Official
Records
18. Notice of Special Tax Lien for Community Facilities District No
90-1
Affecting: All of said land
Recorded: March 4, 1991, as Instrument No. 91-026591 of Official
Records
For further information concerning the current and estimated future
tax liability of owners or purchasers of real property subject to this
special tax lien, interested persons should contact:
Billie Golden
City of Oxnard
300 West Third Street
Oxnard, California 93030 (805) 984-4612
SCHEDULE 4 TO SALE-PURCHASE AGREEMENT
IDENTIFICATION OF LEASES
TENANT NAME LEASE DATE AMENDMENT(S)
McLain Escrow, Inc. 1/29/91 None
Insurance Company of
North America (CIGNA) 5/9/91 None
Firemen's Fund Insurance
Co. (Kayajanian
& Hauser) 4/9/91 None
Nordman, Cormany, Hair
& Compton 5/1/89 5/12/92
Shearson Lehman Brothers 4/29/93 None
<PAGE>
SCHEDULE 5 TO SALE-PURCHASE AGREEMENT
PENDING ACTIONS
None
<PAGE>
SCHEDULE 6 TO SALE-PURCHASE AGREEMENT
ADDITIONAL CONDITIONS TO SELLER'S OBLIGATIONS
None
<PAGE>
SCHEDULE 7 TO SALE-PURCHASE AGREEMENT
LIST OF INTANGIBLE PROPERTY
None
<PAGE>
EXHIBIT "A"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL THIS DEED
AND MAIL TAX STATEMENTS TO:
(FOR RECORDER'S USE ONLY)
DOCUMENTARY TRANSFER TAX IS $
COMPUTED ON FULL VALUE OF PROPERTY CONVEYED
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, NCEC REALTY, INC., a California corporation, having an
office at 725 South Figueroa Street, 4th Floor, Los Angeles,
California 90017 ("Grantor"), hereby GRANTS to BEDFORD PROPERTY
INVESTORS, INC., a Maryland corporation, having an office at 3658 Mt.
Diablo Boulevard, Suite 210, Lafayette, California 94549 ("Grantee),
that certain real property located in the City of Oxnard, County of
Ventura, State of California, described as:
Parcel 1 of Parcel Map No. 89-9, as shown on parcel map filed in
Book 51, pages 16 and 17, inclusive, of Parcel Maps, Records of
Ventura County, California (the "Premises");
SUBJECT TO all covenants, conditions, restrictions,
reservations, rights, rights-of-way, easements, encumbrances and other
matters of record and to such other matters as would be disclosed by
an ALTA survey or inspection of the Premises on the date hereof.
IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be
executed and delivered, as of this _ day of October, 1991.
NCEC REALTY, INC., Grantor
By :
Name:
Title:
<PAGE>
ACKNOWLEDGEMENTS
STATE OF
COUNTY OF ss:
On , before me, , personally appeared ,
personally known to be (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[ SEAL]
<PAGE>
EXHIBIT "B"
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS, dated
December , 1993, between NCEC REALTY, INC., a California corporation,
having an office at 725 South Figueroa Street, 4th Floor, Los Angeles,
California 90017 ("Assignor"), and BEDFORD PROPERTY INVESTORS, INC., a
Maryland corporation, having an office at 3658 Mt. Diablo Boulevard, Suite
210, Lafayette, California 94549 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has this day sold and conveyed to assignee the real
property more particularly described in Schedule "1" annexed hereto and
made a part hereof (the "Premises").
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration paid by Assignee to Assignor, the
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns, transfers and conveys to Assignee all of Assignor's right, title
and interest, if any, as landlord in and to (i) the leases, licenses and
other occupancy agreements affecting the Premises and all guarantees
thereof set forth on Schedule "2" annexed hereto and made a part hereof
(collectively, the "Leases"), and (ii) the security deposits made under the
Schedule "3" annexed hereto and made a part hereof (collectively, the
"Security Deposits").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of the Leases.
ASSIGNEE HEREBY ACCEPTS the foregoing assignment, acknowledges receipt
of the Security Deposits (whether by actual transfer of funds or other
property constituting such deposit or by credit against the purchase price
paid by Assignee for the Premises), assumes and agrees to perform all of
the obligations of Assignor under the Leases, accruing from and after the
date hereof; and agrees to hold or apply all of the Security Deposits in
accordance with the terms of the Leases under which the Security Deposits
were made; and
ASSIGNEE FURTHER AGREES to defend and indemnify Assignor and any
disclosed or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other person or entity affiliated
with Assignor (collectively, "Assignor's Affiliates") against, and to hold
Assignor and Assignor's Affiliates harmless from, any and all claims,
demands, causes of action, losses, damages, liabilities, and costs and
expenses (including, without limitation, attorney's fees and
disbursements), whether foreseen or unforeseen, asserted against or
incurred by Assignor or any of Assignor's Affiliates in connection with or
arising out of acts or omissions of Assignee or its directors, officers,
employees, affiliates, partners, brokers, agents, contractors, consultants
and/or representatives, or other matters or occurrences that take place
from and after the date hereof (except those caused by Assignor) relating
to the Leases and Security Deposits.
Assignee hereby unconditionally and irrevocably waives any and all
claims and causes of action of any nature whatsoever it may now or
hereafter have against Assignor or Assignor's Affiliates, and hereby
unconditionally and irrevocably fully releases and discharges Assignor and
Assignor's Affiliates from any and all liability whatsoever which may now
or hereafter accrue in favor of Assignee against Assignor or Assignor's
Affiliates, in connection with or arising out of the Leases and Security
Deposits, except as otherwise expressly provided by the Sale-Purchase
Agreement, dated December 14, 1993, between Assignor and Assignee.
This Assignment and Assumption of Leases and Security Deposits is made
without any covenant, warranty or representation by, or recourse against,
Assignor or Assignor's Affiliates of any kind whatsoever, except as
otherwise expressly provided by the Sale-Purchase Agreement, dated December
14, 1993, between Assignor and Assignee .
IN WITNESS WHEREOF, this Assignment and Assumption of Leases and
Security Deposits has been executed on the date and year first above
written.
ASSIGNOR:
NCEC REALTY, INC.
By:
Name:
Title:
ASSIGNEE:
BEDFORD PROPERTY INVESTORS, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT "C"
ASSIGNMENT AND ASSUMPTION
OF CONTRACTS AND LICENSES
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND LICENSES, dated December ,
1993, between NCEC REALTY, INC., a California corporation having an office
at 725 South Figueroa Street, 4th Floor, Los Angeles, California 90017
("Assignor"), and BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation,
having an office at 3658 Mt. Diablo Boulevard, Suite 210, Lafayette,
California 94549 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has this day sold and conveyed to assignee the real
property more particularly described in Schedule "1" annexed hereto and
made a part hereof (the "Premises").
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration paid by Assignee to Assignor, the
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns, transfers and conveys to Assignee all of Assignor's right, title
and interest, if any, in and to (i) all of the licenses, permits,
certificates, approvals, authorizations and variances issued for or with
respect to the Premises by any governmental authority set forth on Schedule
"2" annexed hereto and made a part hereof (collectively, the "Licenses"),
(ii) all purchase orders, equipment leases, advertising agreements,
franchise agreements, license agreements, management agreements, leasing
and brokerage agreements and other service contracts relating to the
operation of the Premises set for on Schedule "3" annexed hereto and made a
part hereof (collectively, the "Contracts'), and (iii) all labor and
collective bargaining agreements with respect to the Premises set forth on
Schedule "4" annexed hereto and made a part hereof (collectively, the
"Labor Contracts").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of the Licenses, the Contracts and the
Labor Contracts.
ASSIGNEE HEREBY ACCEPTS the foregoing assignment and assumes and
agrees to perform all of the obligations of Assignor under the Licenses,
the Contracts and the Labor Contracts accruing from and after the date
hereof; and
ASSIGNEE FURTHER AGREES to defend and indemnify Assignor and any
disclosed or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other person or entity affiliated
with Assignor (collectively, "Assignor's Affiliates") against, and to hold
Assignor and Assignor's Affiliates harmless from, any and all claims,
demands, causes of action, losses, damages, liabilities, and costs and
expenses (including, without limitation, attorney's fees and
disbursements), whether foreseen or unforeseen, asserted against or
incurred by Assignor or any of Assignor's Affiliates in connection with or
arising out of acts or omissions of Assignee or its directors, officers,
employees, affiliates, partners, brokers, agents, contractors, consultants
and/or representatives, or other matters or occurrences that take place
from and after the date hereof (except those caused by Assignor) relating
to the Licenses, the Contracts and/or the Labor Contracts.
Assignee hereby unconditionally and irrevocably waives any and all
claims and causes of action of any nature whatsoever it may now or
hereafter have against Assignor or Assignor's Affiliates, and hereby
unconditionally and irrevocably fully releases and discharges Assignor and
Assignor's Affiliates from any and all liability whatsoever which may now
or hereafter accrue in favor of Assignee against Assignor or Assignor's
Affiliates, in connection with or arising out of the Licenses, the
Contracts and/or the Labor Contracts, except as otherwise expressly
provided by the Sale-Purchase Agreement, dated December 14, 1993, between
Assignor and Assignee.
This Assignment and Assumption of Contracts and Licenses is made
without any covenant, warranty or representation by, or recourse against,
Assignor or Assignor's Affiliates of any kind whatsoever, except as
otherwise expressly provided by the Sale-Purchase Agreement, dated December
14, 1993, between Assignor and Assignee.
IN WITNESS WHEREOF, this Assignment and Assumption of Contracts and
Licenses has been executed on the date and year first above written.
ASSIGNOR:
NCEC REALTY, INC.
By:
Name:
Title:
ASSIGNEE:
BEDFORD PROPERTY INVESTORS, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION
OF INTANGIBLE PROPERTY
[INTENTIONALLY OMITTED]
<PAGE>
EXHIBIT "E"
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, That NCEC REALTY, INC., a California
corporation, having an office at 725 South Figueroa Street, 4th Floor, Los
Angeles, California 90017 ("Seller"), for and in consideration of the sum
of Ten Dollars ($10.00) and other good and valuable consideration paid to
Seller by BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation, having
an office at 3658 Mt. Diablo Boulevard, Suite 210, Lafayette, California
94549 ("Purchaser"), the receipt and sufficiency of which are hereby
acknowledged, does hereby sell, grant, convey and transfer to Purchaser all
of Seller's right, title and interest, if any, in and to all the fixtures,
machinery, equipment, supplies and other articles of personal property
which are attached or appurtenant to, or otherwise located at and used in
connection with, the real property more particularly described in Schedule
"1" annexed hereto and made a part hereof (the "Premises"), but excluding
property (i) removable by any tenants pursuant to their respective leases,
licenses or other occupancy agreements covering portions of the Premises,
(ii) owned by public utility suppliers, (iii) owned by any cleaning or
other independent contractors or (iv) identified in Schedule "2" annexed
hereto (collectively, the "Personal Property").
TO HAVE AND TO HOLD the same unto Purchaser, its successors and
assigns, forever, from and after the date hereof.
This Bill of Sale is made without any covenant warranty or representation
by, or recourse against, Seller or Seller's Affiliates of any kind
whatsoever (including, without limitation, warranties of title,
merchantability or fitness for a particular purpose).
IN WITNESS WHEREOF, Seller has executed this Bill of Sale on December ,
1993.
SELLER:
NCEC REALTY, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT "F"
NOTICE TO TENANTS
[LETTERHEAD OF SELLER]
December , 1993
[Tenant's Name and Address]
Re: [Building Address]
(the "Building")
Gentlemen:
With reference to your lease of space in the Building, please be
advised that NCEC REALTY, INC., has this day sold, transferred and assigned
the Building and your lease to BEDFORD PROPERTY INVESTORS, INC.
("Purchaser")
[Insert the following if there is a security deposit being
transferred: Please be further advised that the security deposit under
your lease and the accrued interest thereon, if any, have been turned over
to the Purchaser, whose address is 3658 Mt. Diablo Boulevard, Suite 210,
Lafayette, California 94549.]
Finally, until you receive further notice from Purchaser, all rent
checks and other payments under your lease should henceforth be made
payable to Bedford Property Investors, Inc., and mailed or delivered to its
office at 3658 Mt. Diablo Boulevard, Suite 210, Lafayette, California
94549, and all notices to the landlord under your lease should also be
addressed to the Purchaser at the foregoing address.
Very truly yours,
SELLER:
NCEC REALTY, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT "G"
TENANT ESTOPPEL CERTIFICATE
TO WHOM IT MAY CONCERN:
RE: Lease ("Lease") dated , by and between , as
Lessor, and , as Lessee, concerning the premises known
as: , North Coast Executive Center, Camarillo, California
("Premises"), which Lease was amended (it will be presumed
no amendments exist unless they are specified above).
The undersigned does hereby certify to you as follows:
1. True copies of the above-referenced Lease as amended and
the guaranties, if any, are attached hereto marked Exhibit "1."
(Attach a copy of Lease, all amendments and guaranties.)
2. The Lease term commenced on , and expires
on .
3. The current monthly rent and expense pass-through, if any,
are as follows:
Amount Paid up to date
Rent $
Pass-through $
No rents or pass-throughs have been prepaid as reflected in the Lease.
4. The current amount of security deposit held by Lessor is
$ . (If left blank, it will be assumed there is no security
deposit.)
5. The Lease has not been modified, orally or in writing,
since its execution as hereinabove identified. The Lease as so amended
is in full force and effect and contains the entire agreement between
Lessor and Lessee, except (it will be assumed no exceptions exist
unless they are specified here):
6. The improvements and space required to be furnished by
Lessor have been furnished and completed in all respects to the
satisfaction of Lessee, and all premises of an inducement nature by
Lessor have been fulfilled except (it will be assumed no exceptions
exist unless they are specified here):
7. To the undersigned's best knowledge, there are no uncured
defaults by Lessor or Lessee under the Lease, and the undersigned is
not aware of the existence of any circumstances that would constitute
a default under the Lease if not cured within the applicable grace
period after written notice by either Lessor or Lessee to the other
party, except (it will be assumed no exceptions exist unless they are
specified here):
8. Lessee is in full and complete possession and has not
assigned or sublet any portion of the Premises, except (it will be
assumed no exceptions exist unless they are specified here):
9. Lessee is not currently the subject of a bankruptcy
proceeding, except (it will be assumed no exceptions exist unless they
are specified here):
10. The undersigned is aware that buyers, lenders and others
will rely upon the statements in this Tenancy Statement, and the
undersigned has therefore adjusted the language hereof as necessary to
make it an accurate statement of the current facts concerning the
Lease. If no such adjustments have been made, said parties may rely
upon the statements in this form as printed.
Date: 199 .
By:
Name:
Title:
<PAGE>
EXHIBIT "H"
NON-FOREIGN AFFIDAVIT UNDER
INTERNAL REVENUE CODE
SECTION 1445(b)(2)
STATE OF
COUNTY OF
, being first duly sworn deposes and states under penalty
of perjury:
1. That he/she is the of NCEC Realty, Inc., the
transferor of the property located at .
2. That the transferor's office address is .
3. That the United States taxpayer identification number for the
transferor is .
4. That the transferor is not a "foreign person" as that term is
defined in Section 1445(f) of the United States Internal Revenue Code
of 1986, as amended (the "Code").
This affidavit is given to Bedford Property Investors, Inc., the
transferee of the property described in paragraph 1 above, for the
purpose of establishing and documenting the non-foreign affidavit
exemption to the withholding requirement of Section 1445 of the Code.
The transferor understands that this affidavit may be disclosed to the
Internal Revenue Service by the transferee and that any false
statement contained herein could be punished by final imprisonment, or
both.
NCEC REALTY, INC.
By:
Name:
Title:
Subscribed and sworn to before me this day of 199_.
Notary Public
<PAGE>
EXHIBIT 10.8
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Joint Escrow Instructions
(this "Agreement"), is entered into as of December 20, 1993, by and
between Mariner Court Associates, a California general partnership
("Seller"), and Bedford Property Investors, Inc., a Maryland
corporation ("Buyer"), and constitutes an agreement to purchase and
sell real property and escrow instructions directed to Metropolitan
Escrow Company (as "Escrow Holder"), to establish an escrow ("Escrow")
to accommodate the transactions contemplated hereby.
TERMS AND CONDITIONS
1. The Property.
Seller agrees to sell to Buyer and Buyer agrees to purchase from
Seller on the terms and conditions hereinafter set forth, that certain
real property commonly known as 3625 Del Amo Boulevard, consisting
generally of a three-story office building containing approximately
105,673 rentable square feet and the land thereunder, located in the
City of Torrance, County of Los Angeles, California more particularly
described on Exhibit A attached hereto, together with all easements,
rights of way, licenses and entitlements relating thereto
(collectively, the "Real Property"), all improvements thereon,
including without limitation, all buildings, parking structures and
facilities (collectively, the "improvements"), and all of Seller's
interest in any building name, contracts, leases, warranties, permits,
records and plans relating to the Real Property or the Improvements
(collectively, the "Intangible Rights"). The Real Property, the
Improvements and the Intangible Rights are collectively referred to in
this Agreement as the "Property".
2. Purchase Price.
The purchase price (the "Purchase Price") for the Property to be
paid by Buyer to Seller shall be $8,000,000.
3. Payment of Purchase Price.
(a) Immediately upon the Opening of Escrow (as defined below),
Buyer shall deposit into Escrow cash in the amount of $250,000 (the
"Good Faith Deposit"). Until the Good Faith Deposit is released from
Escrow to Seller as set forth below, the Good Faith Deposit shall be
invested upon the sole direction of Buyer (but consistent with the
Escrow Holder's ability to obtain the monies for a timely closing)
and, except as specifically set forth herein to the contrary, all
interest earned thereon shall accrue to the benefit of Buyer. Seller
agrees that until the expiration of the Contingency Period as
hereinafter defined, the Escrow Holder is authorized to take
instruction solely from the Buyer regarding the release of the Good
Faith Deposit, and Seller does hereby so instruct the Escrow Holder.
The term Good Faith Deposit shall also include interest earned
thereon. The Good Faith Deposit shall be fully applied and credited to
the Purchase Price and released to Seller at the Close of Escrow. In
the event that after waiver, approval or satisfaction of the
Contingencies (as defined in Paragraph 5), Escrow fails to close as a
result of any default by Buyer in the performance of any covenant or
obligation of Buyer under this Agreement, the entire Good Faith
Deposit, including interest accrued thereon, shall be retained by
Seller as liquidated damages in accordance with Paragraph 17 below.
(b) The balance of the Purchase Price, together with Buyer's
share of costs to be paid and prorations to be made pursuant to
Paragraphs 13 and 14 of this Agreement, shall be deposited by Buyer
into Escrow in cash or by wire transfer, no later than 12:00 Noon
P.S.T. on the date scheduled for Close of Escrow and shall be
delivered to Seller by Escrow Holder at the Close of Escrow.
4. Opening and Close of Escrow.
(a) For the purposes of this Agreement, the "Opening of Escrow"
shall be the date that Escrow Holder receives executed counterpart
copies of this Agreement signed by Buyer and Seller. Escrow Holder
shall notify Buyer and Seller, in writing, of the date of Opening of
Escrow. Buyer and Seller agree to execute, deliver and be bound by any
reasonable and customary supplemental instructions that may be
reasonably requested by Escrow Holder or that may be necessary or
convenient to consummate the transaction contemplated hereby;
provided, however, that such supplemental instructions shall be
consistent with and shall not supersede this Agreement and in all
cases this Agreement shall control.
(b) For purposes of this Agreement, "Close of Escrow" shall
mean the date that a grant deed conveying the title to the Property
(the "Grant Deed") is recorded by Escrow Holder in the Official
Records of Los Angeles County, California. Close of Escrow shall
occur, if at all, not later than December 30, 1993.
5. Buyer's Contingencies.
(a) For the benefit of Buyer, it is expressly agreed that the
entire transaction contemplated herein is expressly subject to and
contingent on Buyer, at its sole discretion, presenting Seller with
written approval or written waiver of each of the following
contingencies (the "Contingencies") on or before 5:00 P.M. P.S.T.
December 29, 1993 (the "Contingency Deadline"). The period between
Opening of Escrow and the Contingency Deadline is referred to as the
"Contingency Period". Such Contingencies are as follows:
(i) Buyer's approval of a preliminary title report (the "PTR")
covering the Property issued by Investors Title Company (the "Title
Company") and furnished by Seller to Buyer at Seller's expense,
together with legible copies of all exceptions to title referred to
therein. The PTR and copies of all exceptions referred to therein
shall be delivered to Buyer within five days following Opening of
Escrow. In the event that Buyer disapproves or conditionally approves
the PTR, or any part thereof, Buyer shall so notify Seller and Escrow
Holder prior to expiration of the Contingency Period Buyer's Title
Notice"). In such event, Seller shall have the right to elect whether
to cure said disapproved or conditionally approved items, which
election shall be made in writing ("Seller's Election Notice")
delivered to Buyer within five business days after Buyer's written
notice of disapproval or conditional approval was delivered to Seller.
In the event that Seller elects not to cure all of said items or
cannot cure the items to Buyer's satisfaction prior to Close of
Escrow, Buyer shall, by written notice to Seller within two business
days after receipt of Seller's Election Notice, elect either to waive
any disapproved or conditionally approved items (in which Close of
Escrow shall occur as herein provided) or to terminate this Agreement,
in which event neither buyer nor Seller shall have any further rights,
duties or obligations under this Agreement except to the extent
expressly provided otherwise, and Buyer shall have no interest in or
to the Property.
(ii) Buyer's confirming the availability of all utilities,
including, but not limited to, water, sewer, gas and electricity.
(iii) Buyer's approval of the condition of the soils and the
geologic and engineering conditions of the Property, based on existing
soils, geologic and engineering reports which are available to Seller,
true copies of which shall be delivered to Buyer by Seller, at
Seller's cost, within five days following Opening of Escrow, and any
and all other soils, engineering or geologic tests, reports and
studies which Buyer desires to perform, which additional reports,
tests and studies shall be performed at Buyer's sole cost and expense.
(iv) If desired by Buyer, Buyer's approval of an environmental
audit covering the Property and performed at Buyer's sole expense and
Buyer's review and approval of all relevant governmental environmental
organizations' reports and/or findings in respect of the Property.
(v) Buyer's review and approval of all contracts, documents and
other items delivered to Buyer by Seller pursuant to Paragraph 6.
(vi) Buyer's ascertainment that all federal, state and local
statutes and regulations pertaining to the Property have been complied
with.
(vii) Buyer's inspection of the Property and approval of the
physical condition thereof.
(viii) Buyer's approval of all other factors which Buyer deems
relevant to its purchase of the Property, in Buyer's sole and absolute
discretion.
(b) In the event that Buyer shall not give written notice to
Escrow Holder and Seller of Buyer's approval of all the Contingencies
on or before the Contingency Deadline, this Agreement shall terminate,
and the parties shall thereafter have no further rights, duties or
obligations under this Agreement except to the extent expressly
provided otherwise, and Buyer shall have no interest in or to the
Property. In the event that Buyer gives Seller and Escrow Holder
written notice disapproving or conditionally approving any
Contingency, Seller shall have the right to elect whether to cure said
disapproved or conditionally approved items, which election shall be
made in writing to Buyer within five business days after Buyer's
written notice of disapproval or conditional approval was delivered to
Seller. In the event that Seller elects not to cure such items or
cannot cure the items to Buyer's satisfaction prior to Close of
Escrow, Buyer shall, by written notice to Seller and Escrow Holder,
elect to waive Buyer's previous disapproval (in which case Escrow
shall close as provided in this Agreement), or to terminate this
Agreement. In the event that this Agreement is terminated in
accordance with the foregoing, Buyer's Good Faith Deposit less Buyer's
share of any escrow cancellation fee (which share shall be one-half of
such fee) shall automatically be fully refunded by Escrow Holder to
Buyer, and Seller shall then pay the remaining one-half of any escrow
cancellation fee or charge. Buyer's failure to notify Seller of its
approval of all of the Contingencies set forth above within the
applicable time period shall constitute Buyer's demand to receive a
full refund of the Good Faith Deposit (minus Buyer's share of any
cancellation fee) and to terminate this Agreement.
6. Seller's Covenants and Obligations.
(a) In addition to all other documents or items to be delivered
from Seller to Buyer pursuant to any other provision of this
Agreement, Seller shall deliver or otherwise make available to Buyer,
upon Opening of Escrow, each of the following:
(i) Operating Statements for the Property showing results of
operations for the twelve month period preceding Opening of Escrow.
(ii) A schedule (the "Rent Roll") prepared and certified as of
the date of delivery to Buyer, which reflects the name of each of the
lessees and sublessees under all tenant leases for the Property (the
"Tenant Leases"), the amount of any security deposits and/or prepaid
rent from each lessee, the amount of rent and reimbursable expenses
paid and to be paid by each lessee and any and all applicable
increases thereto, and delinquencies, if any; and the existence of any
renewal rights, expansion rights or purchase options under the Tenant
Leases. The Rent Roll is attached to this Agreement as Exhibit B.
(iii) Copies of all Tenant Leases and any modifications or
amendments thereto, as well all other contracts and agreements
relating to the ownership, operation or maintenance of the Property.
(iv) Copies of all property damage or rental loss insurance
currently in force with respect to the Property.
(v) Copies of any environmental assessment reports in the
possession of Seller.
(vi) Copies of 1992-93 real property tax bills and assessments.
(vii) Certificates of occupancy if any, for shell and for all
occupied tenant space.
(viii) All documents and written information in Seller's
possession reasonably necessary for Buyer to evaluate those matters
specified in Paragraphs 5(a)(i)(vii), inclusive.
(b) Following Opening of Escrow, but prior to the expiration of
the Contingency Period, Seller shall notify Buyer in writing of any
material changes ("Material Changes") in the Property or any
obligation or representation of Seller relating thereto (including
without limitation the execution of any new leases, the extension or
modification of any existing leases, undertaking major repairs or
filing or contesting any lawsuits). In the event that Buyer does not
approve of any such change, Buyer may terminate this Agreement prior
to the end of the Contingency Period in accordance with the terms of
Paragraph 5(b). After expiration of the Contingency Period, as long as
this Agreement remains in effect, Seller shall not undertake or permit
any Material Changes relating to the Property without Buyer's prior
written consent, which consent shall not be unreasonably withheld or
delayed.
(c) Seller shall maintain all existing insurance coverage
affecting the Property at all times prior to Close of Escrow.
(d) Seller shall use its reasonable good faith efforts to
obtain and deliver to Buyer on or before the fifth business day prior
to the Close of Escrow, estoppel certificates ("Tenant Estoppel
Certificates") duly executed by each of the tenants or subtenants
under each Tenant Lease and dated not more than thirty days prior to
the date of Close of Escrow. Each Tenant Estoppel Certificate shall
certify to Buyer that (A) the Tenant Lease between each tenant and
Seller is unmodified and in full force and effect and constitutes the
entire agreement and understanding between Seller and such tenant; (B)
the amount of rental and any security deposit paid by such tenant; (C)
the term of the Tenant Lease, and any extension or option rights said
tenant may have; (D) the fact that neither party thereto is in breach
or default of its obligations under such Tenant Lease; and (E) such
other information as Buyer may reasonably require. A copy of the form
to be submitted to each tenant is attached hereto as Exhibit C. If any
tenant under a Tenant Lease fails to deliver a Tenant Estoppel
Certificate to Seller, Seller shall complete such tenant's Tenant
Estoppel Certificate to the best of Seller's knowledge and deliver
same to Buyer; provided that it shall be a condition to Buyer's
obligation to close Escrow that the total net rentable area leased by
all tenants not delivering Tenant Estoppel Certificates constitute not
more than 20%, of the net rentable area in the Improvements and that
Seller obtain Tenant Estoppel Certificates from TLD Systems, Inc. and
Dodge, Warren, Peters.
(e) Within five days following execution of this Agreement,
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. Such
schedule need not include obligations for routine maintenance work or
periodic remodeling work which may be set forth in any of the Tenant
Leases.
(f) From and after the date of execution of this Agreement
until the Close of Escrow, Seller agrees that it will continue to
perform all of its obligations as landlord under all Tenant Leases and
that it will not enter into any new leases or amend, terminate or
accept the surrender of any existing tenancies or approve any
subleases without the prior consent of Buyer. Further, Seller shall
maintain the Property in condition at least as good as at the time of
buyer's inspection as provided hereunder, and shall not without first
obtaining the written consent of the Buyer enter into any contracts or
agreements, or permit any tenants to enter into any contracts or
agreements pertaining to the Property which require the consent of the
Seller unless those contracts can be terminated without penalty on
thirty (30) days' notice.
7. Seller's Representations and Warranties.
Seller hereby represents and warrants to Buyer, which
representations and warranties shall be true and correct as of the
date of this Agreement and as of the date of Close of Escrow, and
shall survive the Close of Escrow (and the truth and accuracy of which
shall constitute condition to Buyer's obligations to close Escrow), as
follows:
(a) Seller has the legal power, right and authority to enter
into this Agreement and the instruments to be executed by Seller
pursuant to this Agreement, and to consummate the transactions
contemplated hereby.
(b) All requisite action (corporate, trust, partnership or
otherwise) has been taken by Seller in connection with Seller's
execution of this Agreement and the instruments to be executed by
Seller pursuant to this Agreement and the consummation of the
transactions contemplated hereby.
(c) The individuals executing this Agreement and the
instruments to be executed by Seller pursuant to this Agreement, on
behalf of Seller have the legal power, right and actual authority to
bind Seller to the terms and conditions of this Agreement and such
instruments.
(d) Neither the execution and delivery of this Agreement and
the documents referenced herein, nor the incurrence of the obligations
set forth herein, nor the consummation of the transactions herein
contemplated, nor compliance with the terms of this Agreement or the
documents referenced herein conflict with or result in the material
breach of any terms, conditions or provisions of, or constitute a
default under, any bond, note or other evidence of indebtedness or any
contract, indenture, mortgage, deed of trust, loan, partnership
agreement, lease or other agreement or instrument to which Seller is a
party or affecting the Property and which will survive Close of
Escrow.
(e) 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 Close of Escrow.
(f) 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; to the best
knowledge and belief of the Seller, the Property conforms to all
applicable ordinances and other laws, orders, ordinances, permits,
rules, regulations and requirements, and to all covenants, conditions
and restrictions affecting or relating to the use, operation or
occupancy of the Property.
(g) Except to the extent set forth in any materials delivered
from Seller to Buyer in accordance with this Agreement, to the best of
Seller's knowledge, without any particular inquiry or duty of inquiry,
there are not now any toxic or hazardous wastes, substances or related
materials ("Hazardous Materials") used, generated, stored, located,
treated or disposed of on or under the Property or in the Improvements
in concentrations in violation of applicable law. Hazardous Materials
shall include, but shall not be limited to, substances defined as
"hazardous substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 USC Section
9061 et seq., and those substances defined as "hazardous waste" in
Section 25117 of the California Health and Safety Code and the
regulations adopted in publications promulgated pursuant to said laws.
To the best of Seller's knowledge, there are not now any Hazardous
Material occurrences or conditions on any real property adjoining, or
in the vicinity of, the Property that could cause the Property or any
part thereof to be classified as "border zone property" under the
provisions of California Health and Safety Code Sections 25220 through
25224 et seq., and any implementing regulations adopted pursuant
thereto. To the best knowledge of Seller, without any particular
inquiry or duty of inquiry, the Property is in compliance with the
provisions of the Safe Drinking Water and Toxic Enforcement Act of
1986, California Health and Safety Code Sections 25249.5 through
25249.13.
(h) Seller is not a foreign person and is a "United States
Person" as such term is defined in Section 7702(a)(30) of the Internal
Revenue Code of 1954 as amended.
(i) Seller has obtained all licenses, permits, easements and
rights of way required from all governmental authorities having
jurisdiction over the Property or from private parties for the use of
the Property and to insure vehicular and pedestrian ingress and egress
to the Property.
(j) To the best knowledge and belief of Seller, there are
presently no intended public improvements which will result in any
charge being levied or assessed against the Property or in the
creation of any lien upon the Property. Seller shall promptly notify
Buyer of any changes affecting this representation, of which it
becomes aware prior to Close of Escrow.
(k) To the best knowledge and belief of Seller, there is
presently no pending or contemplated condemnation of the Property or
any part thereof. Seller shall promptly notify Buyer of any changes
affecting this representation of which it becomes aware prior to Close
of Escrow.
(l) All utilities necessary to service the Property will be
available to the Property at the Close of Escrow without the consent
of any other person, firm or corporation and without expense (other
than normal and usual security deposits, bonds and charges for utility
services provided to the Property) to Buyer.
(m) To the best knowledge and belief of Seller, there are no
facts or conditions which will result in the termination of the
present access from the Property to any utility services or to
existing highways and roads.
(n) To the best knowledge and belief of Seller, at Close of
Escrow, there will be no latent, hidden or structural defects in the
Improvements, nor will any defects or conditions of the Property or
the soil exist which will impair the use of such Property, nor, to
Seller's knowledge, are there presently, any encroachments onto the
Property or by the Improvements onto any adjoining Property.
(o) At Close of Escrow there shall be no outstanding contracts
made by the Seller for any Improvements to the Property which have not
been fully paid for by Seller, subject to the provisions of Paragraph
14(h).
(p) Except as set forth in the Rent Roll, there are no
commissions, finder's fees or other compensation owing or which may
become owing to any broker or any other person or entity with respect
to any Tenant Lease or occupancy agreement including, without
limitation, any such compensation with respect to any future renewals,
extensions or expansions thereof.
(q) Seller is not party to, or otherwise bound by, any
collective bargaining agreement or multi-employer pension fund
covering employees who service the Property.
(r) There is no current labor dispute with any maintenance or
other personnel or employees of Seller or any contracts with respect
to the Property which could adversely affect the use, operation or
value of the Property.
8. Buyer's Representations and Warranties.
Buyer hereby represents and warrants to Seller, which
representations and warranties shall be true and correct as of the
date of this Agreement and as of the date of Close of Escrow, and
shall survive the Close of Escrow (and the truth and accuracy of which
shall constitute a condition to Seller's obligation to close Escrow),
as follows:
(a) Buyer has the legal power, right and authority to enter
into this Agreement and the instruments to be executed by Buyer
pursuant to this Agreement, and to consummate the transactions
contemplated hereby.
(b) All requisite action (corporate, trust, partnership or
otherwise), has been taken by Buyer in connection with Buyer's
execution of this Agreement and the instruments to be executed by
Buyer pursuant to this Agreement, and the consummation of the
transactions contemplated hereby.
(c) The individuals executing this Agreement and the
instruments to be executed by Buyer pursuant to this Agreement on
behalf of Buyer have the legal power, right and actual authority to
bind Buyer to the terms and conditions of this Agreement and such
instruments.
(d) Neither the execution and delivery of this Agreement and
the documents referenced herein, nor the incurrence of the obligations
set forth herein, nor the consummation of the transactions herein
contemplated, nor compliance with the terms of this Agreement and the
documents referenced herein conflict with or result in the material
breach of any terms, conditions or provisions of, or constitute a
default under, any bond, note or other evidence of indebtedness or any
contract, indenture, mortgage, deed of trust, loan, partnership
agreement, lease or other agreement or instrument to which Buyer is a
party.
9. Title Insurance.
It shall be a condition to the Close of Escrow for Buyer's
benefit that the Title Company shall have unconditionally committed to
issue to Buyer an ALTA Owner's Extended Form (B-1970) policy of title
insurance in the amount of the Purchase Price, showing fee simple
title to the Property to be vested in Buyer free and clear of all
monetary liens and encumbrances other than non-delinquent real
property taxes, and subject only to such conditions, covenants,
restrictions, rights of way and other title matters approved by Buyer
in accordance with Paragraph 5(a)(i), and any other items approved in
writing by Buyer. Seller shall pay the premium for the issuance of the
title policy, provided, however, that Seller shall pay its portion of
the premium for the title policy up to the cost of a CLTA owner's
policy for the Property with liability in the amount of the Purchase
Price, and Buyer shall pay the excess cost of the ALTA title policy
over the cost of a CLTA title policy, including the cost of any
required survey. In no event shall Close of Escrow be delayed or
extended as a result of Buyer's election to obtain an ALTA policy.
10. Conditions to Close of Escrow.
(a) Buyer's obligation to purchase the Property and close
Escrow is subject to and conditional upon the satisfaction of the
following conditions on or before the Close of Escrow:
(i) Buyer's approval, satisfaction or waiver of each of the
Contingencies within the applicable time period specified in Paragraph
5;
(ii) Seller's timely delivery to Escrow Holder of the items
described in Paragraph 11(a);
(iii) Buyer's approval of the Tenant Estoppel Certificates
delivered from Seller to Buyer pursuant to Paragraph 6(d). In the
event that Buyer disapproves any Tenant Estoppel Certificate, Buyer
may terminate this Agreement in accordance with Paragraph 12, below,
but Seller shall not be considered to be in default under this
Agreement as a result of Buyer's disapproval;
(iv) The Title Company's commitment to issue the Title Policy to
Buyer in accordance with Paragraph 9;
(v) No material damage or condemnation proceedings then
existing that would give rise to Buyer's right to terminate this
Agreement under Paragraph 19;
(vi) No Material Changes having occurred under Paragraph 6(b)
after the Contingency Period to which Buyer has not given its written
consent; and
(vii) All other conditions to Buyer's obligations under this
Agreement having been satisfied.
(b) Seller's obligation to sell the Property and close the
Escrow is subject to and conditioned upon Buyer's delivery into Escrow
of all sums and other items required from Buyer to close Escrow, as
set forth in Paragraph 3
11. Deliveries to Escrow Holder.
(a) Seller shall deliver or cause to be delivered to Escrow
Holder by 3:00 P.M. on the last business day before the date of the
Close of Escrow the following instruments and documents:
(i) The Grant Deed, in form which has been approved by Buyer's
counsel, duly executed and acknowledged by Seller;
(ii) Two counterparts of an assignment of Tenant Leases pursuant
to which Seller assigns to Buyer all of Seller's right, title and
interest in and to the Tenant Leases and an assignment of contract
rights pursuant to which Seller assigns to buyer all of Seller's
right, title and interest in and to all contracts affecting the
maintenance, repair, improvement and/or development of the Property
that Buyer desires to keep in effect. Such assignments shall be in
form and content reasonably satisfactory to Buyer and Seller;
(iii) To the extent in the possession or control of Seller and
not already delivered to Buyer outside of Escrow, originals of the
Tenant Leases;
(iv) A letter signed by Seller, addressed to each of the tenants
on the Property, advising such tenants of the sale herein to Buyer and
directing that all future rent payments and other charges be forwarded
to Buyer at an address to be supplied by Buyer;
(v) A certification in form acceptable to Escrow Holder and
Buyer duly executed by Seller under penalty of perjury stating that
Seller is not a foreign corporation, foreign partnership, foreign
trust or foreign estate as those terms are defined in the Internal
Revenue Code and the income tax regulations promulgated thereunder.
(vi) The bill of sale for all personal property, if any, being
transferred to Buyer.
(vii) A Rent Roll, current as of the Closing Date, containing
the information updating Exhibit B.
(viii) An assignment to Buyer of all permits, licenses and
certificates of occupancy held by Seller relating to the Property or
required from any governmental authority as a condition to operation
or occupation of the Property or any part thereof, together with the
originals or true copies thereof.
(ix) An assignment to Buyer of Seller's right, title and
interest in all logos, signs, trademarks, telephone listing and number
and similar items.
(x) All tenant correspondence, tenant ledger cards, keys,
books, records (or copies thereof) and other items used in connection
with the operation of the Property.
(b) Buyer shall deliver or cause to be delivered to Escrow
Holder by 3:00 P.M. on the last business day before the Close of
Escrow all items that Buyer is required to deliver to Escrow Holder to
close Escrow, except the balance of the Purchase Price, which shall be
wire-transferred in accordance with Paragraph 3(b).
12. Termination Upon Failure of Conditions to Close of Escrow.
In the event any condition set forth in Paragraph 10 is not
timely satisfied or waived for a reason other than the default of
Buyer or Seller under this Agreement, then upon written notice by the
party benefitted by the unsatisfied condition to the other party and
to Escrow Holder:
(a) This Agreement, the Escrow and the rights and obligations
of Buyer and Seller under this Agreement shall terminate except as
otherwise expressly provided herein;
(b) Buyer and Seller each shall be responsible to pay one-half
of any cancellation charges payable by or to Escrow Holder and the
Title Company; and
(c) Escrow Holder shall promptly return to Seller and Buyer all
funds (including interest thereon) and documents deposited by them,
respectively, into Escrow that are held by Escrow Holder (less, in the
case of the party otherwise entitled to such funds, one-half of any
cancellation charges payable by or to Escrow Holder and the Title
Company).
13. Costs and Expenses.
The premium for the Title Policy shall be paid in accordance
with the provisions of Paragraph 9. The escrow fee of Escrow Holder
shall be shared equally by Seller and Buyer. Seller shall pay all
documentary transfer taxes payable with the recordation of the Grant
Deed. Buyer and Seller shall pay, respectively, the Escrow Holder's
customary charges to buyers and sellers for document drafting,
recording and miscellaneous charges. Buyer and Seller shall each pay
their own legal and professional fees and fees of other consultants
incurred in connection with this transaction. All other costs and
expenses shall be allocated equally between Buyer and Seller, except
the costs of performing the obligations of each party to this
Agreement, which costs shall be borne solely by the party incurring
such costs.
14. Prorations and Adjustments.
(a) Prorations of rentals, revenues, and other income, if any,
from the Property, and taxes, assessments, and other expenses, if any,
affecting the Property shall be prorated as of 11:59 p.m. on the day
prior to Close of Escrow. There shall be no proration of any insurance
premiums with respect to the Property, nor any assumption of insurance
coverage by Buyer, unless Buyer so elects in writing.
(b) The term "rentals", as used herein, include fixed monthly
rentals, additional rentals, percentage rentals, escalation rentals,
operating cost pass-through and other sums and charges payable by the
tenants under the Tenant Leases. Subject to the following provisions
regarding delinquent rentals and regarding various retroactive rentals
and rent escalations, Buyer shall receive all rentals accruing on and
after the Close of Escrow and Seller shall receive all rentals
accruing prior to the Close of Escrow.
(c) Rentals are "delinquent" when payment thereof is due prior
to but has not been made by the Close of Escrow (the "Delinquent
Rentals"). Delinquent Rentals shall not be prorated until collected
pursuant to the terms of this subsection. Buyer shall, except as set
forth below, have the sole right to collect the Delinquent Rentals;
provided that all Delinquent Rentals collected by Buyer, net of the
costs of collection, shall be applied by Buyer first against amounts
then due and owing from the particular tenant to Seller for the period
prior to Close of Escrow, with the balance, if any, to be retained by
Buyer. Any rentals which are collected by or paid to Buyer after Close
of Escrow shall be considered to be Delinquent Rentals to the extent
of any prior unpaid rentals if such rentals are from a tenant who was
delinquent as of Close of Escrow. Seller shall have the right to
attempt to collect amounts that tenants owe to Seller only by such
methods as shall not, impair Buyer's legal relationship with such
tenants, unless Buyer otherwise consents in writing. Seller shall take
no action to collect any delinquent rent or other amounts owing Seller
without prior notice to and approval by Buyer. Seller shall certify to
Buyer the amount of Delinquent Rentals existing as of the Close of
Escrow (the "Delinquent Rentals Certification"). Delinquent Rentals
collected by Seller after Close of Escrow shall be prorated and any
amounts to which Buyer is entitled shall be paid to Buyer in
accordance with the provisions of Paragraphs 14(a) and 14(b) above.
(d) Operating cost and tax pass-throughs, percentage rentals,
additional rentals and other retroactive rental escalations, sums or
charges, payable by tenants which have accrued as of the Close of
Escrow but are not then due and payable shall be prorated as of the
Close of Escrow; provided, however, no payment thereof shall be made
to Seller unless and until Buyer collects same from a tenant. When and
if Buyer collects such operating cost and tax pass-throughs,
percentage rentals or other retroactive rental escalations from a
Tenant attributable to Seller's period of ownership, Seller shall be
due an amount equal to all such operating cost and tax pass-through,
percentage rentals or other retroactive rental escalations accruing
prior to the Close of Escrow, computing same on a per diem basis after
amortizing them over a 365-day year. Payments to Seller hereunder
shall be accompanied by a report showing how same was calculated and
such support documentation as Seller reasonably requests. The
calculation related to the foregoing shall be adjusted to reflect
estimated payments by tenants and any amount thereof not attributable
to the period prior to Close of Escrow shall be credited to Buyer.
Seller agrees, to the extent any estimated payments retained by it are
in access of amounts actually determined to be due Seller, to timely
refund such excess amounts to tenants or to Buyer, as directed by
Buyer. Seller shall have the right to attempt to collect amounts
tenants owe to Seller only by such methods as shall not impair Buyer's
legal relationship with such tenants, unless Buyer otherwise consents
in writing. Seller shall take no action to collect any such amounts
owing to Seller without prior notice to and approval by Buyer. Sums
collected by Seller after Close of Escrow under the provisions of this
Paragraph 14(d) shall be prorated in accordance with the provisions of
Paragraphs 14(a) and 14(b) above.
(e) All non-delinquent real estate taxes shall be prorated
based on the actual current tax bill, but if such tax bill has not yet
been received by Seller by the Close of Escrow, then the current
year's taxes shall be prorated based on the previous year's tax bill,
subject to re-proration between the parties outside of Escrow upon
receipt of the actual tax bill. Any delinquent taxes on the Property
shall be paid at the Close of Escrow from funds due Seller.
(f) Prepaid rentals, including tenants' payments to Seller for
tenants' share of real property taxes and assessments, insurance
premiums, common area maintenance and operation, utilities, and, if
applicable, advertising and promotional services, (but not including
any rent abatements or concessions for periods after Close of Escrow),
received by Seller which are unexpended as of the Close of Escrow
shall be credited to Buyer as of the Close of Escrow.
(g) All utilities service charges for electricity, heat and air
conditions service, other utilities, common area maintenance, taxes
other than real estate taxes such as rental taxes, and all expenses
incurred in operating the Property that Seller customarily pays, and
any other costs incurred in the ordinary course of business or the
management and operation of the Property, shall be prorated on an
accrual basis. Seller shall pay all such expenses that accrue prior to
the Close of Escrow and Buyer shall pay all such expenses accruing on
and after the Close of Escrow. To the extent possible, Seller and
Buyer shall obtain billings and meter readings as of the Close of
Escrow to aid in such prorations.
(h) Leasing commissions shall be prorated as follows: (1) as to
Tenant Leases existing as of the date hereof, Seller shall pay in full
all leasing commissions due thereunder (other than for lease renewals
or expansions) in the form of a credit to the Purchase Price at
closing in favor of Buyer (and thereafter Buyer shall be solely
responsible for payment thereof), and (2) as to Tenant Leases executed
on or after the date hereof and approved in writing by Buyer or
entered into by Buyer, Buyer shall be responsible and pay for all
leasing commissions arising therefrom. Tenant improvement costs shall
be prorated as follows: (i) as to Tenant Lease existing as of the date
hereof, Seller shall pay in full the cost of all tenant improvement
work which is the responsibility of landlord thereunder in the form of
a credit to the Purchase Price at closing in favor of Buyer (and
thereafter Buyer shall be responsible for payment thereof), and (ii)
as to Tenant Leases executed on or after the date hereof and approved
in writing by Buyer, the cost of all tenant improvement work which is
the responsibility of landlord thereunder shall be amortized over the
term of the lease on a per diem basis and Seller shall give Buyer a
credit at closing for Seller's pro rata share of same based on the
number of days of the term of said lease falling within Seller's
period of ownership (and thereafter Buyer shall be solely responsible
for payment thereof).
(i) Buyer shall be credited and Seller shall be debited with an
amount equal to all tenant deposits being held by Seller or any other
person under the Tenant Lease and any interest, if any, required to be
paid on account thereof.
a) Buyer and Seller agree to make such additional adjustments
as are normally made in connection with a purchase and sale of the
type contemplated hereunder.
(k) Except as expressly provided herein, all apportionments
shall be made in accordance with customary practice in Los Angeles
County, California. The parties agree to cause a schedule of tentative
adjustments to be prepared prior to Close of Escrow. Such adjustments,
if and to the extent known and agreed upon as of Close of Escrow,
shall be paid by Buyer to Seller (if the prorations result in a net
credit to the Seller) or by Seller to Buyer (if the prorations result
in a net credit to the Buyer), by increasing or reducing the amount to
be paid by buyer at closing. Buyer and Seller agree the intent of this
provision is to allocate the income and expenses attributable to the
Property in a fair, just, and equitable manner, and the parties agree
in the event of special circumstances not specifically covered herein,
such equitable principles shall guide the parties in reaching a fair
resolution.
(I) If any errors or omissions are made regarding adjustments
and prorations as set forth above, the parties shall make the
appropriate corrections promptly upon the discovery thereof. If any
estimations are made at the Close of Escrow regarding adjustments or
prorations, the parties shall make the appropriate corrections
promptly when accurate information becomes available. Any corrected
adjustment or proration shall be paid in cash to the party entitled
thereto. All adjustments shall be final one year after Close of Escrow
and shall not be subject to correction by either party; provided that
nothing herein shall release either party from the obligation to pay
any sums that either party is obligated to pay as a result of
prorations made prior to such date.
(m) Buyer and Seller specifically understand and agree that
Seller and John DiMassa (DBA Century 21 Southwest Realty) ("DiMassa")
have entered into a stipulated judgement providing, among other
things, that in the event of any default by DiMassa in the performance
of DiMassa's obligations under the lease (the "DiMassa Lease") by
which DiMassa occupies Suite 130 of the office building located on the
Real Property, certain existing rental delinquencies totaling
$32,442.73 which have heretofore been abated by Seller shall
immediately become due and payable. All of Seller's rights under such
stipulated judgement (including without limitation the right to
receive abated rent) shall be assigned to Buyer at Close of Escrow and
shall be included as part of the Property. Such amounts shall not be
subject to proration under this Agreement. However, Buyer agrees, that
if DiMassa defaults in the performance of any obligation under the
DiMassa Lease following Close of Escrow, any amounts which Buyer
collects in pursuit of its remedies against DiMassa shall be used to
pay all damages, costs, fees and expenses incurred by Buyer as well as
all sums to which Buyer, as landlord, would be entitled by statute.
Any excess received by buyer from DiMassa shall be deemed abated rent
and paid to Seller, but in no event more than $29,198.46.
15. Disbursements and Other Actions by Escrow Holder.
Upon the Close of Escrow, the Escrow Holder shall promptly
undertake all of the following in the manner indicated:
(a) Cause the Grant Deed, together with any other documents
that the parties hereto or any lender providing financing in
connection with this transaction may mutually direct, to be recorded
in the Official Records of Los Angeles County, California.
(b) Disburse all funds deposited with Escrow Holder by Buyer
(or by any lender providing acquisition financing for Buyer) towards
payment of the Purchase Price for the Property as follows:
(i) Deduct Buyer's costs;
(ii) Deduct therefrom all items chargeable to the account of
Seller pursuant hereto;
(iii) The remaining balance of the funds so deposited by Buyer
towards payment of the Purchase Price shall be disbursed to Seller
promptly upon the Close of Escrow; and
(iv) Refund to Buyer any excess funds deposited by Buyer.
(c) Direct the Title Company to issue the Title Policy to
Buyer.
(d) Deliver to both Buyer and Seller copies of all documents
delivered to either party hereto or recorded pursuant to this
Agreement.
(e) Provide Buyer and Seller with closing statements.
1 6. Default.
(a) In the event of a default by Seller in the performance of
any of its obligations under this Agreement, Buyer shall have all
legal and equitable remedies available to Buyer, including the remedy
of specific performance, and upon the written election of Buyer given
to Seller and Escrow Holder:
(i) This Agreement and the rights and obligations of Buyer and
Seller shall terminate, except as specifically provided otherwise in
this Agreement;
(ii) Escrow Holder is instructed to promptly return to Buyer and
Seller all funds and documents deposited by them, respectively, into
Escrow that are then held by Escrow Holder; and
(iii) Seller shall be solely responsible for the payment of any
cancellation charges required to be paid to Escrow Holder and the
Title Company.
(b) In the event of a default by Buyer in the performance of
any of its obligations under this Agreement, upon the written election
of Seller given to Buyer and Escrow Holder:
(i) This Agreement and the rights and obligations of Buyer and
Seller shall terminate, except as specifically provided otherwise in
this Agreement;
(ii) Escrow Holder is instructed to promptly deliver the Good
Faith Deposit to Seller as Seller's sole and exclusive remedy against
Buyer and then to return to Buyer and Seller all other documents and
items deposited by them, respectively, into Escrow that are
then held by Escrow Holder; and
(iii) Buyer shall be solely responsible for the payment of any
cancellation charges required to be paid to Escrow Holder and the
Title Company.
17. Seller's Liquidated Damages.
SELLER AND BUYER HAVE DISCUSSED THE POSSIBLE CONSEQUENCES TO
SELLER IN THE EVENT THAT THE ESCROW FAILS TO CLOSE AS A RESULT OF
BUYER'S DEFAULT. SELLER AND BUYER HAVE DETERMINED AND HEREBY AGREE
THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX THE ACTUAL
DAMAGES TO SELLER OCCURRING IN THE EVENT OF BUYER'S DEFAULT UNDER THIS
AGREEMENT. THE PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS
TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES SELLER WOULD SUFFER IN
THE EVENT OF BUYER'S NONPERFORMANCE OF ANY OBLIGATION HEREUNDER,
HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES IS THE GOOD
FAITH DEPOSIT, AND IN THE EVENT OF BUYER'S DEFAULT UNDER THIS
AGREEMENT, SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN AS FULLY
AGREED LIQUIDATED DAMAGES THE GOOD FAITH DEPOSIT, ALL OTHER REMEDIES
BEING HEREIN EXPRESSLY WAIVED BY SELLER. NOTWITHSTANDING THE
FOREGOING, IF BUYER INSTRUCTS ESCROW HOLDER TO NOT RELEASE THE GOOD
FAITH DEPOSIT TO SELLER, OR FAILS TO ACQUIESCE IN WRITING TO THE
RELEASE BY ESCROW HOLDER WITHIN TEN (10) DAYS AFTER REQUEST TO DO SO
BY SELLER OR ESCROW HOLDER, AND SELLER THEREBY IS REQUIRED TO MAKE
DEMAND UPON ESCROW HOLDER TO RELEASE THE GOOD FAITH DEPOSIT OR
INTERPLEAD THE SAME OR FILE SUIT TO COLLECT SAID GOOD FAITH DEPOSIT
PURSUANT TO THIS PARAGRAPH 17, AND PURSUANT TO SUCH SUIT OR ACTION
SELLER IS FOUND TO BE ENTITLED TO RECEIVE SUCH SUM, SELLER SHALL NO
LONGER BE LIMITED IN ITS RECOVERY OF DAMAGES AND MAY ASSERT IN
ADDITION TO THE LIQUIDATED DAMAGES PROVIDED HEREIN ALL OTHER CLAIMS
AND RIGHTS SELLER MAY HAVE BY REASON OF BUYER'S FAILURE TO CLOSE
INCLUDING, BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, AND ALSO SHALL BE
ENTITLED TO RECOVER SELLER'S COSTS AND EXPENSES OF SUCH SUIT,
INCLUDING REASONABLE ATTORNEYS' FEES. THE PARTIES AGREE THAT, UNDER
THE CIRCUMSTANCES OF THIS TRANSACTION AND THE MARKET PLACE AT THE TIME
HEREOF, THIS LIQUIDATED DAMAGES PROVISION IS REASONABLE AND IN
ACCORDANCE WITH CALIFORNIA CIVIL CODE SECTION 1671.
Buyer's Initials Seller's Initials
18. Right of Entry.
Buyer and Buyer's agents, representatives, contractors and
subcontractors shall have the right to enter upon the Property at all
reasonable times in order to conduct such investigations, tests and
studies as Buyer shall reasonably deem necessary so long as such
activities do not unreasonably damage the Property or unreasonably
interfere with the rights of tenants under the Tenant Leases. Prior to
entry onto the Property, Buyer shall deliver to Seller a certificate
showing Buyer has in force a policy of comprehensive public liability
insurance with liability coverage of at least $1,000,000 per
occurrence and that Seller is an additional insured under such policy.
Buyer shall keep the Property free and clear of any mechanic's liens
or materialmen's liens arising out of any such activities and,
further, Buyer shall indemnify and hold Seller harmless from and
against any and all loss, cost, liability or expense arising out of
the acts or omissions of Buyer or its agents, representatives,
contractors or subcontractors in taking such activities. Seller's
rights under this Paragraph 18 are in addition to Seller's rights
under Paragraph 17, and shall survive the termination of this
Agreement prior to the Close of Escrow.
19. Damage or Condemnation Prior to Closing.
Seller shall promptly notify Buyer of any casualty to the
Property or any condemnation proceedings commenced prior to the Close
of Escrow. If any such damage or proceeding relates to or may result
in the loss of any portion of the Property, Buyer may, at its option,
elect to take any one of the following actions:
(i) Terminate this Agreement, in which event all funds
deposited into Escrow by Buyer shall be returned to Buyer and neither
party shall have any further rights or obligations hereunder (except
for any indemnification given by either party to the other hereunder);
or
(ii) Continue this Agreement in effect, without delay or
abatement of the Purchase Price, in which event upon the Close of
Escrow, Buyer shall be entitled to any compensation, awards or other
payments or relief resulting from such casualty or condemnation
proceeding.
20. Brokers.
Buyer and Seller each warrant and covenant to the other except
for a commission payable by Seller to the Seeley Company, Richard S.
Dyer Co. and The Hobin Co. pursuant to a separate commission schedule
dated September 3, 1993, that no fees or commissions shall be due or
owing to any other finders or brokers as a result of any agreement
alleged to have been made by such party relating to this transaction.
Except for the commissions payable by Seller, as set forth above, in
the event of any claim for brokers' for finders' fees or commissions
in connection with the negotiations, execution or consummation of this
Agreement or the purchase and sale of the Property, then Buyer shall
indemnify, save harmless and defend Seller from and against any such
claim based upon the alleged statement, representation or agreement by
Buyer, and Seller shall indemnify, save harmless and defend Buyer from
and against any such claim based upon any alleged statement,
representation or agreement by Seller.
21. Assignment.
Buyer shall not assign or otherwise transfer any interest in
this Agreement without Seller's prior written consent, which consent
shall not be unreasonably withheld or delayed, except that Buyer may
assign this Agreement to subsidiary of Buyer without Seller's consent.
22. Property Purchased "AS IS".
As a material inducement to the execution and delivery of this
Agreement by Seller and the performance by Seller of its obligations
hereunder, and subject to Seller's representations and warranties set
forth in this Agreement, Buyer hereby acknowledges, represents,
warrants and agrees to and with Seller that as of the Close of Escrow
and by virtue of Buyer's inspections, investigations and examinations
of the Property,
(a) Buyer is purchasing the Property in an "AS IS" condition as
of the date of the Close of Escrow subject to all then existing facts,
circumstances, conditions and defects;
(b) Seller has no obligation to repair or correct any such
facts, circumstances, conditions or defects or compensate Buyer for
same;
(c) Buyer has undertaken all physical inspections and
examinations of the Property that Buyer deems necessary or appropriate
under the circumstances, and relying strictly and solely upon such
inspections and examinations and the advice of its own counsel and
agents, Buyer is fully satisfied that the Purchase Price is fair and
adequate consideration for the Property;
(d) Seller is not making and has not made any representation or
warranty with respect to the physical condition of all or any part of
the Property other than the representations and warranties expressly
set forth in this Agreement; and
(e) By reason of all of the foregoing, Buyer shall assume the
full risk of any loss or damage occasioned by any fact, circumstance,
condition or defect pertaining to the physical condition of the
Property, subject to Seller's representations and warranties expressly
set forth in this Agreement.
23. Notices.
All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered or
sent by registered or certified mail, postage prepaid, return receipt
requested, telegraphed, delivered or sent by telecopy and shall be
deemed received upon the earlier of (i) if personally delivered, the
date of delivery to the address of the person to receive such notice,
(ii) if mailed, upon receipt or refusal to accept, (iii) if given by
telegraph when delivered to the telegraph company with charges
prepaid, or (iv) if given by fax or telecopy, when sent. Any notice,
request, demand, direction or other communication sent by cable or
telecopy must be confirmed within forty-eight (48) hours by letter
mailed or delivered in accordance with the foregoing:
BUYER: Bedford Property Investors Inc.
3658 Mt. Diablo Boulevard
Suite 210
Lafayette, CA 94549
Attn: John Papini
with a copy to:
Brian E. McLaughlin, Esq.
Zankel & McGrane
One Embarcadero Center
Suite 1200
San Francisco, CA 94111
SELLER: Mariner Court Associates
c/o Watt Investment Properties, Inc.
2716 Ocean Park Boulevard
Santa Monica, CA 90405
Attn: James R. Wadsworth
with a copy to:
Watt Services, Inc.
2716 Ocean Park Boulevard
Santa Monica, CA 90405
Attn: General Counsel
ESCROW
HOLDER: Metropolitan Escrow Company
1411 West 190th Street,Suite 125
Gardena, CA 90248
24. Required Actions of Buyer and Seller.
Buyer and Seller shall execute all instruments and documents and
take all other actions that may be reasonably required in order to
consummate the purchase and sale herein contemplated, and shall use
their best efforts to accomplish the Close of Escrow in accordance with
the provisions hereof.
25. Partial Invalidity.
If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each such term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
26. Waivers.
No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No
extension of time for performance of any obligation or act shall be
deemed an extension of the time for performance of any other obligation
or act.
27. Successors and Assigns.
Subject to the provisions of Paragraph 21, this Agreement shall be
binding upon and shall inure to the benefit of the respective successors
and assigns of Buyer and Seller.
28. Professional Fees.
In the event of the bringing of any action or suit by either party
against the other by reason of any breach of any of the covenants,
representations or warranties of the other party under this Agreement,
the prevailing party shall be entitled to have and recover of and from
the other party all costs and expenses of the action or suit, including
actual attorneys' fees, accounting and engineering fees, and other
professional fees resulting therefrom.
29. Entire Agreement: Amendment.
This Agreement (including all exhibits attached hereto) is the
final expression of, and contains the entire agreement between, the
parties with respect to the subject matter hereof and supersedes all
prior understandings with respect thereto. This Agreement may not be
modified, changed, supplemented or terminated, nor may any obligation
hereunder be waived, except by written instrument signed by the party to
be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any
benefit hereunder on any person, firm or corporation other than the
parties hereto.
30. Time of Essence.
Seller and Buyer hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term, condition,
obligation and provision hereof.
31. Construction of Agreement.
Headings at the beginning of each paragraph and subparagraph are
solely for the convenience of the parties and are not a part of this
Agreement. Whenever required by the context of this Agreement, the
singular shall include the plural and the masculine shall include the
feminine and vice verse. This Agreement shall not be construed as if it
had been prepared by one of the parties, but rather as if both parties
had prepared the same. Unless otherwise indicated, all references to
paragraphs and subparagraphs are to paragraphs and subparagraphs in this
Agreement. All exhibits referred to in this Agreement are attached and
incorporated by this reference. In the event the date on which Buyer or
Seller is required to take any action under the terms of this Agreement
is a not a business day, the actions shall be taken on the next
succeeding business day.
32. Governing Law.
The parties expressly agree that this Agreement shall be governed
by, interpreted under, and construed and enforced in accordance with the
laws of the State of California.
33. Effect of Delivery.
The delivery of any unexecuted draft of this Agreement to Buyer
shall not constitute an offer by Seller or otherwise bind Seller or
create any enforceable rights in favor of Buyer. This Agreement shall
not be binding or enforceable unless and until it is executed and
delivered by both parties.
34. Survival.
Seller's obligations and representations and warranties pursuant to
this Agreement shall survive the Close of Escrow and shall be in
addition to any other obligations or liabilities Seller may have to
Buyer at common law or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SELLER:
MARINER COURT ASSOCIATES,
a California general partnership
By: No. 18 Torrance Partners, L. P.,
a California limited partnership, General Partner
By: Watt Investment Properties, Inc.,
a California corporation, General Partnership
By:
Its:
By:
Its:
By: I.W. Investments Corp., a Delaware corporation,
General Partner
By:
Its:
By:
Its:
By: First Equity Development Group, L.P.,
a Delaware Limited Partnership, General Partner
By: FENY Limited Partnership, a Delaware
Limited Partnership, General Partner
By: First Equity Asset Group, Inc.,
a Delaware corporation, General Partner
By:
Its:
By:
Its:
BUYER:
Bedford Property Investors, Inc.,
a Maryland corporation
By:
Its:
<PAGE>
Exhibit "A"
LEGAL DESCRIPTION
The land referred to herein is situated in the County of Los Angeles,
State of California, and is described as follows:
Lots 16, 17 and 18 of Tract 43686, in the City of Torrance, as per Map
recorded in Book 1049, Pages 89 to 95, inclusive, of Maps, in the
Office of the County Recorder of said county.
Except therefrom all oil, gas, minerals and other hydrocarbon
substances in or under said land below a depth of 500 feet from the
surface thereof, without surface right of entry as more particularly
described therein and as reserved in an instrument recorded September
8, 1952 as Instrument No. 863, in Book 39782 Page 374, Official
Records.
<PAGE>
EXHIBIT "B"
RENT ROLL REPORT - CURRENT TENANTS
Mo. Rent Next
Gross Min. Per In- Lease Lease Sec.
Unit Name SqFt %GLA Rent SqFt crease Start Ends Dep. Options
004 TLD
Systems 11677 11.0501 20435 1.7500 3/1/94 3/1/89 2/28/95 19600 1 5yr
@ 95%
FMV
008 John
DiMassa 2634 2.4926 3200 1.2149 6/28/94 6/28/89 6/27/94
012 Jully's
Cafe 972 .9190 1857 1.9101 10/1/94 3/07/89 3/31/97 1600 1 5 yr
@95%
FMV
016 American
Speedy
Printing 1370 1.2965 1800 1.3139 1/1/94 12/11/89 9/10/95 2535 1 5 yr
@ 4%
min
7% max
018 Kuraya
American
Systems 2043 1.9333 1470 2.0409 4/6/95 4/6/90 4/5/95 3780
020 His
Highness
Prince
Aga Khan 1100 1.0409 1760 1.6000 4/1/95 1/1/93 3/31/00
024 Unified
Products 1394 1.3192 12/1/93 5/1/92 4/30/95 2300
048 Fortis
Investors 1697 1.6059 3080 1.8150 10/23/94 10/23/89 1/22/94 10000 1
5 yr
@ FMV
050 First
California
Mortgage
Co. 1315 1.2444 1085 .8251 1/1/94 8/1/92 7/31/95 2170
052 Farmers
Insurance
Agency 1188 1.1242 2180 1.8346 10/1/94 10/1/89 6/30/95 1960 1
5 yr
@ FMV
056 Fuji
Elec-
tronic 1018 .9633 1853 1.8200 7/1/94 7/1/89 6/30/95 1680 1
5 yr
@ FMV
062 Kohnan
Inc. 856 .8100 1541 1.8007 2/1/95 2/1/90 1/31/96 1412 None
068 Parana
Supplies
Corp. 8844 8.3692 14593 1.6500 9/1/95 9/1/90 8/31/95 14593 1
5 yr
@ 95%
FMV
072 Bay
Shore
Medical
Group 4290 4.0597 9012 2.1008 4/1/94 5/17/89 5/31/95 7936 1
5 yr
@ FMV
076 Vacant 2332 2.2068
100 Ortho-
paedic
Rehab-
ilitation
Center 982 .9293 1821 1.8545 12/1/94 12/15/89 10/14/95 1620
120 Advanta
Mortgage
Corp.,
USA 1620 1.5330 2883 1.7796 12/15/94 11/1/91 10/31/94 2754
140 Vacant 444 .4202
155 His
Highness
Prine
Aga Khan 5277 4.9937 7025 1.3313 4/18/94 4/18/90 4/17/00 6069 1
5 yr
@ 95%
Base
160 Vacant 2721 2.5749
170 Spressa
Enter-
prises 1886 1.7848 2640 1.3998 2/1/94 8/1/92 7/31/95 2640
158 Culver
Personnel
Agency 1100 1.0409 1956 1.7782 1/1/95 1/22/91 1/23/95 1815
200 Citibank
Federal
Savings
Bank 4700 4.4477 7990 1.7000 8/31/94 2/15/92 2/14/97
210 Netbase
Computing 2309 2.1850 3140 1.3599 4/1/97 2/10/93 2/9/97 3140
215 Mission
Research
Corp. 2764 2.6156 4588 1.6599 8/1/94 6/15/92 6/14/95 4561
220 Netbase
Computing 2206 2.0876 3640 1.6500 1/1/95 2/17/92 1/30/97 3640
245 Baseline
Data
Systems 903 .8545 1355 1.5006 5/13/94 5/11/91 5/12/94 1490
285 Vacant 1281 1.2122
300 Dodge,
Warren &
Peters
Insurance 13615 128841 24507 1.8000 11/1/94 11/1/90 10/31/97 17741
330 Vacant 1383 1.3088
335 Vacant 1018 .9633
340 S.Y.
Trading
Company 1188 1.1242 1723 1.4503 12/1/94 12/1/92 11/30/94 3446
350 Malek &
Malek 3350 3.1703 4858 1.4501 2/1/94 8/15/91 8/14/96 4858
360 Fiedler &
Nash 3213 3.0405 5301 1.6499 9/1/94 3/1/92 2/28/97
370 Universal
Analytics 4209 3.9830 5000 1.1880 10/1/96 10/1/91 9/30/96 6945
375 Engineering
Mechanics
Research 961 .9094 1328 1.3819 5/19/94 9/15/91 9/14/94 1250
380 A.P.D.
Financial 961 .9094 1393 1.4495 8/9/96 8/9/93 8/8/96 1393
385 Wollberg
Michelson
Personnel 1239 1.1725 1022 .8249 2/1/95 6/15/92 6/14/97 2044
390 Nakahara,
Nakahara &
Lane 2402 2.2730 4622 1.9242 5/1/95 5/26/90 5/25/95 4204 2
5 yr
@ FMV
395 Architectural
Development
Co. 1211 1.1460 1400 1.1561 9/12/95 9/12/93 9/11/95 1400
999 Fujitsu 0000
Current
Tenant
Total 96494 91.3138 154758 1.6038 140575
Vacant
Total 9179 8.6862
Property
Grand
Total 105673 100.00 154758 1.4645 140575
Percent Occupied: 91.314%
Percent Vacant: 8.686%
<PAGE>
EXHIBIT "C"
TENANT ESTOPPEL CERTIFICATE
To: Bank of America National Trust
and Savings Association ("Bank")
Commercial Real Estate Services Division #8940
50 California Street, 11th Floor
San Francisco, California 94111
Attn: P. Wong
Re: Lease Dated:
Current Landlord:
Current Tenant:
Square Feet:
Floor(s):
Located at:
_____________________________________ ("Tenant") hereby certifies
that as of _____________, 19___:
1. Tenant is the present owner and holder of the tenant's
interest under the lease described above, as it may be amended to date
(the "Lease") with Bedford Property Investors, Inc. as Landlord (who
is called "Borrower") for purposes of this Certificate). The original
landlord under the Lease was ___________________________ and the
original tenant under the Lease was
___________________________________. The Lease covers the premises
commonly known as ____________________________________ (the
"Premises") in the building (the "Building") at the address set forth
above.
2. (a) The attached Exhibit A accurately identifies the
Lease and all modifications, amendments, supplements, side letters,
addenda and riders of and to it.
(b) The Lease provides that in addition to the
Premises, Tenant has the right to use or rent ____ unassigned parking
spaces near the Building or in the garage portion of the Building
during the term of the Lease.
(c) The term of the Lease commenced on ____________,
19___ and will expire on _____________, _____, including any presently
exercised option or renewal term. Except as specified in Paragraph(s)
__________ of the Lease as described in Exhibit A, Tenant has no
option to renew, extend or cancel the Lease, or to lease additional
space in the Premises or Building, or to use any parking other than
that specified in Section 2(b) above.
(d) Tenant has no option or preferential right to
purchase all or any part of the Premises (or the land of which the
Premises is a part). Tenant has no right or interest with respect to
the Premises or the Building other than as Tenant under the Lease.
(e) The annual minimum rent currently payable under
the Lease is $________________ and such rent has been paid through
____________, 19_____.
(f) (IF APPLICABLE) [Additional rent is payable
under the Lease for (i) operating, maintenance or repair expenses,
(ii) property taxes, (iii) consumer price index cost of living
adjustments, or (iv) percentage of gross sales adjustments (i.e.,
adjustments made based on underpayments of percentage rent). Such
additional rent has been paid in accordance with Borrower's rendered
bills through ______________, 19____. The base year amounts for
additional rental items are as follows: (1) operating, maintenance or
repair expenses $___________, 2) property taxes $______________, and
(3) consumer price index (please indicate base year CPI level)
____________. ]
(g) Tenant has made no agreement with Borrower or
any agent, representative or employee of Borrower concerning free
rent, partial rent, rebate of rental payments or any other similar
rent concession except as expressly set forth in Paragraph 1.5 of the
Lease described herein in Exhibit A.
(h) Borrower currently holds a security deposit in
the amount of $____________, which is to be applied by Borrower or
returned to Tenant in accordance with Paragraph ____ of the Lease.
Tenant acknowledges and agrees that Bank shall have no responsibility
or liability for any security deposit, except to the extent that any
security deposit shall have been actually received by Bank.
3. (a) The Lease constitutes the entire agreement
between Tenant and Borrower with respect to the Premises, has not been
modified, changed, altered or amended and is in full force and effect
in the form described in Exhibit A. There are no other agreements,
written or oral, which affect Tenant's occupance of the Premises.
(b) All insurance required of Tenant under the Lease
has been provided by Tenant and all premiums have been paid.
(c) To the best knowledge of Tenant, no party is in
default under the Lease. To the best knowledge of Tenant, no event
has occurred which, with the giving of notice or passage of time, or
both, would constitute such a default.
(d) The interest of Tenant in the Lease has not been
assigned or encumbered. Tenant is not entitled to any credit against
any rent or other charge or rent concession under the Lease except as
set forth in the Lease. No rental payments have been made more than
one month in advance.
4. All contributions required to be paid by Borrower to
date for improvements to the Premises have been paid in full and all
of Borrower's obligations with respect to tenant improvements have
been fully performed. Tenant has accepted the Premises, subject to no
conditions other than those set forth in the Lease.
5. Neither Tenant nor any guarantor of Tenant's
obligations under the Lease is the subject of any bankruptcy or other
voluntary or involuntary proceeding, in or out of court, for the
adjustment of debtor-creditor relationships.
6. (a) As used here, "Hazardous Substance" means any
substance, material or waste (including petroleum and petroleum
products) which is designated, classified or regulated as being
"toxic" or "hazardous" or a "pollutant" or which is similarly
designated, classified or regulated, under any federal, state or local
law, regulation or ordinance.
(b) Tenant represents and warrants that it has not
used, generated, released, discharged, stored or disposed of any
Hazardous Substances on, under, in or about the Building or the land
on which the Building is located (IF APPLICABLE) [, other than
Hazardous Substances used in the ordinary and commercially reasonable
course of Tenant's business in compliance with all applicable laws].
(IF APPLICABLE) [Except for such commercially reasonable use by
Tenant,] Tenant has no actual knowledge that any Hazardous Substance
is present, or has been used, generated, released, discharged, stored
or disposed of by any party, or, under, in or about such Building or
land.
7. Tenant hereby acknowledges that Borrower has encumbered
the property containing the Premises with a Deed of Trust in favor of
Bank. Tenant acknowledges the right of Borrower, Bank and any and all
of Borrower's present and future lenders to rely upon the statements
and representations of Tenant contained in this Certificate and
further acknowledges that any loan secured by any such Deed of Trust
or further deeds of trust will be made and entered into in material
reliance on this Certificate.
8. Tenant hereby agrees to furnish Bank with such other
and further estoppels as Bank may reasonably request.
(Tenant)
By:
Name:
Title: <PAGE>
EXHIBIT 99.1
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford January 4, 1994
Chairman and Chief Executive Officer
Jay Spangenberg
Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS COMPLETES ACQUISITION
LAFAYETTE, Calif. -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has concluded an agreement with Bank of America for
a $20 million revolving line of credit for real estate acquisitions.
The term of the credit facility is for three years and it carries
a competitive interest structure.
"This is a major step in executing the company's plan for growth,"
Pater B. Bedford, chairman and chief executive officer, said. "It
will enable us to pursue strategic investment opportunities, paying
for new capital only on an as-needed basis".
When a pool of approximately $20 million of new properties has
been acquired, the company plans to repay or refinance the borrowed
funds with either new equity or long-term debt. "By repeating this
process, we plan to grow the company significantly over the next 12
months, spreading our existing overhead over a larger asset base and
thus increasing our profitability." he said. The company's current
asset base totals about $37 million.
The new credit facility will enable the company to focus on its
strategy of expanding its portfolio of quality suburban office and
industrial properties of quality suburban office and industrial
properties in the West, Bedford said. "The credit facility gives us
the ability to close quickly, taking advantage of distressed sales
that are true opportunities. The foundation is in place for our
growth. The key now is acquisitions."
Bedford Property Investors 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."
<PAGE>
EXHIBIT 99.2
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford January 5, 1994
Chairman and Chief Executive Officer
Jay Spangenberg
Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS COMPLETES ACQUISITION
LAFAYETTE, Calif. -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has completed the acquisition of the 1000 Town
Center suburban office building in Oxnard, Calif., for $5.1 million,
or $47 a square foot.
The Town Center project is a six-story, Class A 109,611 square
foot structure. It was acquired from Citicorp for $3.6 million ($33 a
square foot) in cash plus a 12-month letter of credit of $1.5 million
($14 a square foot).
The building is 41 percent occupied by five tenants with a
weighted average remaining lease term of more than six years. It is
expected to take approximately two years to lease the balance of the
building.
The purchase was financed using the company's new $20 million
revolving line of credit from Bank of America. The building's
original construction cost was reported to be $19 million or $173 a
square foot.
The Town Center acquisition is strategically important for several
reasons, Peter B. Bedford, chairman and chief executive officer,
explained. "The low cost basis and high quality of the building will
allow us to compete aggressively in the West Ventura County market.
Second, the in-place income stream coupled with the deferred portion
of the purchase price enhances the initial investment returns.
Moreover, the building's available space provides opportunity for
future revenue growth. Finally, this acquisition represents another
key step in executing the company's plan to move its asset base to the
western United States."
As of December 31, the company's remaining portfolio was 98
percent leased.
This is the second acquisition completed in the past five months.
Last August, the company acquired the Woodlands II project in Salt
Lake City, Utah, for $6.75 million or $59 a square foot. It currently
is 96% percent leased.
Bedford Property Investors 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."
<PAGE>
EXHIBIT 99.3
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford January 6, 1994
Chairman and Chief Executive Officer
Jay Spangenberg
Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS COMPLETES THIRD ACQUISITION
LAFAYETTE, California -- Bedford Property Investors, Inc.
(NYSE:BED) announced that it has completed the acquisition of Mariner
Court, a suburban office building in Torrance, California, for $7.5
million, or $71 a square foot, its third acquisition in the past five
months.
The Mariner Court project is an attractive three-story, Class B,
105,673 square foot building. A fully landscaped open air atrium
provides Mariner Court with a unique amenity and a marketing advantage
in leasing its space. The project was acquired from Mariner Court
Associates, a partnership managed by Watt Industries. The building is
91 percent occupied by 34 tenants with additional leases under
negotiation. The average tenant at Mariner Court occupies less
than 3,000 square feet, helping to diversify the lease concentration
risk within the building and Bedford Property Investors' portfolio.
The purchase was financed using the company's new $20 million
revolving line of credit from Bank of America. The building's
replacement cost is estimated to be $13 million or $125 a square
foot.
The acquisition of Mariner Court further evidences the company's
ability to successfully execute its acquisition growth plan, explained
Peter B. Bedford, chairman and chief executive officer. "The Torrance
suburban office market draws from the surrounding residential
communities which include Palos Verdes, Rolling Hills, Hermosa Beach
and Manhattan Beach. The high occupancy level of the project is
testimony to the project's quality and ability to compete even during
tough economic times. Occupancy translates to cash flow. 1994 funds
from operations at the property level for Mariner Court are expected
to exceed $1 million or 17 cents per share."
"As evidenced by our two most recent acquisitions, the current
economic situation in Southern California has produced several
attractive buying opportunities. Buying right in any market is the
key. Our search for investment opportunities in the western United
States includes Northern and Southern California, Phoenix, Portland,
Seattle, Salt Lake City, Albuquerque, and Denver to insure geographic
diversification," Bedford further stated.
Including Mariner Court, the company's portfolio was 89 percent
leased as of January 5, 1994. This includes the recently acquired
1000 Town Center suburban office building in Oxnard, California, which
is currently 41 percent occupied. The 1000 Town Center project was
recently acquired for $5.1 million or $47 a square foot. Last
August, the company acquired the Woodlands II project in Salt Lake
City, Utah, for $6.75 million or $59 a square foot. "Collectively,
these three acquisitions provide the company with solid funds from
operations and revenue growth potential at a low cost per square
foot," said Bedford.
Bedford Property Investors, 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."
