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):September 19, 1995
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 No.)
incorporation)
270 Lafayette Circle, Lafayette, California 94549
(Address of principal executive officer)
Registrant telephone number, including area code: (510) 283-8910
<PAGE>
Item 2. Acquisition or Disposition of Assets
On September 19, 1995, Bedford Property Investors, Inc. (the
Company ) completed the acquisitions of the Compression Labs Building
and Lackman Business Center. The Compression Labs Building, a 142,620
square foot R&D facility situated on an 8.10 acre parcel of land is
located in San Jose, California. The complex was acquired from MLH
Income Realty Partnership III for $8,325,000. Lackman Business
Center, a single-story 45,956 square foot service center industrial
project, is located in Lenexa, Kansas. The complex was acquired from
The Realty Associates Fund III, L.P. for $2,250,000. The Company used
a portion of the net cash proceeds from the sale on September 18, 1995
of its Series A Convertible Preferred Stock (the "Preferred Stock") to
finance these acquisitions.
On September 20, 1995, the Company completed the acquisitions of
99th Street Business Park Buildings 1 and 2, two service industrial
buildings totaling 48,490 square feet. The buildings, also located in
Lenexa, Kansas, were acquired from The Realty Associates Fund III,
L.P. for $2,650,000. Additionally, the Company sold its Cody Street
Park, Building 6 located in Overland Park, Kansas to TA Realty
Advisors for $1,500,000. The Company used the proceeds from the sale
of Cody Street Park, Building 6 and a portion of the net cash
proceeds from the sale on September 18, 1995 of its Preferred Stock to
finance these acquisitions.
Item 7. Financial Statement and Exhibits:
(A) Financial Statements
Required financial information disclosures with respect to
the acquisition of Compression Labs Building will be filed
by amendment to this form 8-K within sixty (60) days of the
date of this report.
(B) Proforma Financial Information
Required proforma financial information disclosures with
respect to the acquisitions of Compression Labs Building,
Lackman Business Center, 99th Street Business Park Buildings
1 and 2 and the sale of Cody Street Park, Building 6 will be
filed by amendment to this form 8-K within sixty (60) days
of the date of this report.
(C) Exhibits and Exhibits Index
10.1 Purchase Contract for Compression Labs Building
10.2 Purchase Contract for Lackman Business Center
10.3 Purchase Contract for 99th Street Business Park
Buildings 1 and 2
10.4 Sale Contract for Cody Street Park, Building 6
99.1 Press Release regarding the acquisition of Compression
Labs Building in San Jose, California
99.2 Press Release regarding the acquisition of Lackman
Business Center in Lenexa, Kansas
99.3 Press Release regarding the acquisitions of 99th
Street Buildings 1 and 2 in Lenexa, Kansas and the
sale of Cody Street Park Building 6 in Overland,
Kansas
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, hereunto duly authorized.
BEDFORD PROPERTY INVESTORS, INC.
By:
Donald A. Lorenz
Executive Vice President and
Chief Financial Officer
Date: October 2, 1995
<PAGE>
EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
Between
MLH INCOME REALTY PARTNERSHIP III, Seller
and
BEDFORD PROPERTY INVESTORS, INC., Buyer<PAGE>
TABLE OF CONTENTS
Section Page
1. Agreement to Purchase and Sell: Down Payment . . . . . . 1
2. Other Property Included in Purchase and Sale . . . . . . 2
3. Documents Furnished by Seller: Confidentiality . . . . . 3
4. Title. . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Buyer's Inspection of the Property . . . . . . . . . . . 5
6. Representations and Warranties . . . . . . . . . . . . . 8
7. Closing. . . . . . . . . . . . . . . . . . . . . . . . . 11
8. Adjustments and Prorations . . . . . . . . . . . . . . . 14
9. Expenses . . . . . . . . . . . . . . . . . . . . . . . . 16
10. Risk of Loss: Casualty and Eminent Domain. . . . . . . . 16
11. Broker's Commissions . . . . . . . . . . . . . . . . . . 17
12. Lease and Management of the Property . . . . . . . . . . 18
13. Defaults . . . . . . . . . . . . . . . . . . . . . . . . 18
14. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 19
15. Assignment . . . . . . . . . . . . . . . . . . . . . . . 21
16. General Provisions . . . . . . . . . . . . . . . . . . . 21
EXHIBITS
"A" - Legal Description
"B" - Schedule of Personal Property
"C" - Schedule of Leases
"D" - Schedule of Service Contracts
"E" - Diligence Checklist
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made
as of the 1st day of June, 1995, between MLH INCOME REALTY PARTNERSHIP
III, a New York limited partnership, having an office at World
Financial Center, South Tower, 225 Liberty Street, 12th Floor, New
York, New York 10080-6112 ("Seller"), and BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation, having an office at 3658 Mt. Diablo
Boulevard, Lafayette, California 94549 ("Buyer").
1. Agreement to Purchase and Sell: Down Payment
1.1 Agreement to Purchase and Sell. Subject to and upon the
terms and conditions contained in this Agreement, Seller agrees to
sell and convey to Buyer and Buyer agrees to purchase from Seller the
real property described in Exhibit "A" attached hereto having a street
address of 350 East Plumeria Drive, San Jose, California, together
with all buildings and improvements thereon (collectively, the
"Property"), for a total purchase price of Eight Million Three Hundred
Twenty-Five and 00/100 Dollars ($8,325,000.00) (the "Purchase Price").
1.2 Down Payment: Payment of Purchase Price.
(a) Contemporaneously with the execution and delivery of
this Agreement, Buyer has paid a good faith deposit in the amount of
One Hundred Thousand and 00/100 Dollars ($100,000.00) (the "Down
Payment") to First American Title Guaranty Company (the "Title
Company"), at its office located at 1850 Mt. Diablo Blvd., Suite 300,
Walnut Creek, California, in its capacity as escrow agent.
(b) Seller agrees that until the expiration of the due
Diligence Period (as defined in Section 5.1 below), the Title Company
is directed and authorized to take instruction solely from Buyer
regarding the release of the Down Payment, and Seller does hereby so
instruct the Title Company; provided however, any such notice to the
Title Company to be effective must state that Buyer is terminating
this Agreement and specifically identify the Section of this Agreement
which permits such termination.
(c) The Title Company shall release the Down Payment to
Buyer, or apply the Down Payment to the Purchase Price, at the option
of Buyer, at the Closing. Notwithstanding the foregoing, in the event
Buyer terminates this Agreement pursuant to Section 5.2, the Down
Payment and all interest earned thereon shall be returned to Buyer.
The Down Payment shall be invested by the Title Company in a money
market type fund or similar investment and all interest earned on the
Down Payment shall be paid to the party entitled to receive the Down
Payment. Buyer shall pay to the Title Company for the benefit of
Seller as provided herein by wire transfer of federal funds at the
Closing (hereinafter defined) an amount (the "Closing Payment") equal
to (i) the Purchase Price, (ii) plus or minus net adjustments and
prorations provided for in this Agreement, and (iii) unless Buyer has
given Title Company instructions to release the Down Payment to Buyer
at Closing, minus the Down Payment (exclusive of any interest earned
thereon).
2. Other Property Included in Purchase and Sale
In addition to the Property, all right, title and interest of
Seller, if any, in and to the following, to the extent that the same
apply to the Property and are transferable or assignable, shall be
included within the term "Property" and shall be transferred from
Seller to Buyer at Closing:
2.1 all easements, rights of way, privileges, licenses,
appurtenances and other rights and benefits running with the Property;
2.2 all fixtures, machinery, equipment and other tangible
personal property owned by Seller (but not by tenants of the Property
or by the Property manager) and attached and appurtenant to, or
forming part of, that Property (the "Personal Property"), including,
without limitation, those items set forth in Exhibit "B" attached
hereto;
2.3 Seller's interest, as fee owner and landlord, in
(i) currently existing leases for portions of the Property (the
"Existing Leases") and listed on the Schedule of Leases attached
hereto as Exhibit "C" (the "Schedule of Leases"), (ii) such additional
leases for portions of the Property as may be entered into by Seller
prior to the Closing in accordance with Section 12 (the "Additional
Leases") and (iii) all security deposits and advance rentals made
under the Existing Leases and the Additional Leases;
2.4 all service, utility, maintenance and other contracts and
agreements affecting the operation, leasing and management of the
Property and listed in Exhibit "D" attached hereto (collectively, the
"Service Contracts"), but expressly excluding therefrom the existing
management agreement for the Property (the "Management Agreement");
2.5 all consents, authorizations, variances, licenses, permits
and certificates of occupancy, if any, issued by any governmental
authority with respect to the Property; and
2.6 all logos, trade or business names and telephone numbers,
if any, owned and used by Seller with respect to its ownership and
operation of the Property.
3. Documents Furnished by Seller: Confidentiality
Seller shall deliver copies of or make available at the Property
for inspection by Buyer the following: the Existing Leases, the
Service Contracts and the materials listed in Exhibit "E" attached
hereto (the "Diligence Checklist") as are within Seller's possession
or subject to its control (collectively, the "Review Materials"). The
Review Materials and all materials, books and records examined by or
on behalf of Buyer pursuant to this Agreement shall: (i) be held in
strict confidence by Buyer; (ii) not be used for any purpose other
than the investigation and evaluation of the Property by Buyer and its
lenders, attorneys, employees, agents, engineers, consultants and
representatives (collectively, "Buyer's Agents"); and (iii) not be
disclosed, divulged or otherwise furnished to any other person or
entity except to Buyer's Agents or as required by law. If this
Agreement is terminated for any reason whatsoever, Buyer shall return
to Seller all of the Review Materials in the possession of Buyer and
Buyer's Agents. The provisions of this Section shall survive the
termination of this Agreement for a period ending on the earlier of
the sale of the Property by Seller to any purchaser or one (1) year
from the termination of this Agreement.
4. Title
4.1 Title. Buyer shall request that Title Company issue to
Buyer (with a copy to Seller), within fifteen (15) days after the date
hereof, a preliminary title report for the Property (the "Preliminary
Report"). The title insurance policy to be issued at the Closing by
the Title Company (the "Title Policy") shall be a CLTA form of policy,
subject only to the Permitted Exceptions (hereinafter defined),
provided that upon delivery by Buyer of the Survey (as defined below),
the Title Policy shall an ALTA Form Policy (as defined in Section 4.2
below).
4.2 Survey. Seller shall deliver to Buyer, not later than five
(5) days after the date hereof, a copy of the existing "as-built"
survey of the Property (the "Existing Survey"), dated July, 1984,
prepared by Smith, Randlett, Foulk & Stock, Inc., located at 617
Veterans Blvd., Redwood City, California, ((415)366-4184). Buyer may,
at its option, obtain a current survey of the Property (the "Survey")
sufficient to form the basis for the issuance of an ALTA Owner's
Extended Form Policy of title insurance (1992 Form) (the "ALTA Form
Policy") certified to Buyer, Seller, the Title Company and any other
party required by Buyer. A copy of the Survey shall be delivered to
Seller. If Buyer obtains the Survey after the expiration of the Due
Diligence Period, Buyer shall be deemed to have accepted all matters
shown or contained thereon. Seller agrees to contribute $2,000 to the
cost of preparing the Survey, which Seller agrees to pay to Buyer
within ten (10) days of demand by Buyer accompanied by an invoice from
the surveyor, or other evidence reasonably satisfactory to Seller,
that such cost has been incurred and paid by Buyer.
4.3 Title Defects. Prior to the expiration of the Due
Diligence Period, Buyer shall give notice to Seller (the "Defects
Notice") of any claim, lien or exception affecting title to the
Property and which Buyer is not willing to waive (a "Defect"). Seller
shall have the right, but not the obligation, to cure any Defect
within fifteen (15) days after its receipt of the Defects Notice, or
in the case of any Defect which cannot with due diligence be cured
within such 15-day period, such later date by which such Defect can
reasonably be cured, provided that Seller commences to cure such
Defect within such 15-day period and thereafter continues diligently
and in good faith to cure the Defect. The Closing shall be extended,
if necessary, in order to permit the cure described above, but in no
event shall the date of the Closing be extended for more than sixty
(60) days. In the event that Seller elects not to cure any such
Defect, Seller shall notify Buyer of such election within five (5)
business days after its receipt of the Defects Notice. Seller shall
have no obligation to cure any Defect created solely by any acts or
omissions of Buyer, and Seller's failure to cure any such Defect shall
not relieve Buyer from its obligation to close under this Agreement.
If Seller elects not to cure any Defect as set forth above or, if by
the expiration of the cure period provided for above, Seller has
failed to cure all Defects (other than any Defects created solely by
any acts or omissions of Buyer), Buyer may, at its option, either (i)
proceed to close subject to any such Defects, with no offset against,
or reduction in, the Purchase Price or (ii) terminate this Agreement
by written notice given to Seller within fifteen (15) business days
after the expiration of the cure period or Seller's notice of election
not to cure any Defect, as the case may be. In the event this
Agreement is so terminated by Buyer, the Down Payment and all interest
earned thereon shall be delivered to Buyer and the parties shall be
released from all further obligations and liabilities hereunder,
except with respect to the covenants and indemnities set forth in
Sections 3, 5.1, 5.3 and 11. Notwithstanding anything to the contrary
contained in this Section 4.3, in the event that any Defect(s) is a
mechanic's or materialmen's lien or other encumbrance securing the
payment in the aggregate of a readily ascertainable sum of money,
Seller shall satisfy such Defect(s) of record or, as an alternative to
causing such Defect(s) to be satisfied of record and provided that the
Title Company agrees to omit such Defect(s) from the Title Policy: (i)
subject to the reasonable approval of Buyer, bond or cause to be
bonded such Defect(s); (ii) deliver or cause to be delivered to Buyer
or the Title Company, on the date of the Closing, instruments in
recordable form and sufficient to satisfy such Defect(s) of record,
together with the appropriate recording or filing costs; (iii) deposit
or cause to be deposited with the Title Company sufficient monies,
acceptable to and reasonably requested by the Title Company, to assure
the obtaining and recording of a satisfaction of the Defect(s); or
(iv) subject to the approval of Buyer, otherwise cause the Title
Company to omit such Defect(s) from the Title Policy.
4.4 Permitted Title Exceptions. When approved by Buyer
pursuant to this Agreement, all items set forth in the Existing
Survey, the Survey and the Preliminary Report (other than Defects
specified in the Defects Notice) and all Existing Leases and
Additional Leases (if any) shall be deemed "Permitted Exceptions."
5. Buyer's Inspection of the Property
5.1 Inspection and Examination. During the period extending to
and including the date which shall be sixty (60) days after the date
hereof (the "Due Diligence Period"), Buyer and Buyer's Agents will be
given the right to (i) perform nondestructive physical tests (except
that Buyer may perform minor intrusive testing to determine the
presence of asbestos-containing materials, termites and other wood
destroying insects, provided that all damage resulting therefrom is
promptly repaired by Buyer at its sole expense) and (ii) conduct any
and all necessary engineering, environmental and other inspections at
the Property and examine and evaluate the Review Materials and all
other relevant agreements and documents within the possession of
Seller or subject to its control, as Buyer may reasonably request. No
soil and/or ground water sampling shall be performed unless and until
the location, scope and methodology of such sampling and the
environmental consultant selected by Buyer to perform such sampling
have all been approved by Seller, which approval shall not be
unreasonably withheld or delayed. With respect to Buyer's right to
inspect the Property, Buyer agrees that (i) Seller shall receive not
less than forty-eight (48) hours prior notice of each inspection,
(ii) each inspection shall be performed during normal business hours
or at such other times as Seller and Buyer shall mutually agree and
(iii) Buyer and Buyer's Agents shall use all reasonable efforts to
minimize any disruption to the tenants, guests, employees, occupants
of the Property and the operation thereof. Buyer or Buyer's Agents
shall not perform any such inspection or examination unless
accompanied by Seller or its designee. Buyer's repair obligation set
forth in the first sentence of this Section and its obligation to
provide environmental and engineering reports set forth in the third
sentence of this Section shall survive the termination of this
Agreement.
5.2 Right of Termination. Except as otherwise provided herein,
Buyer's obligations under this Agreement shall be contingent, only
during the Due Diligence Period, upon Buyer being satisfied in its
sole discretion with the results of its investigation and evaluation
of the Property (the "Due Diligence Condition"). The Due Diligence
Condition shall include Buyer's satisfaction with such economic and
other feasibility studies as Buyer may obtain or arrange with respect
to the Property. Prior to the end of the Due Diligence Period, Buyer
shall notify Seller in writing whether it waives the Due Diligence
Condition or elects to terminate this Agreement for failure of the Due
Diligence Condition to be satisfied (the "Due Diligence Notice"). If,
pursuant to the Due Diligence Notice, Buyer elects to terminate this
Agreement or if Buyer fails to give Seller the Due Diligence Notice
prior to expiration of the Due Diligence Period, this Agreement shall
terminate as of the earlier of (i) the date of the Due Diligence
Notice or (ii) the expiration of the Due Diligence Period, the Down
Payment and all interest earned thereon shall be promptly returned to
Buyer and the parties hereto shall be released from all further
obligations and liabilities hereunder, except with respect to the
covenants and indemnities set forth in Sections 3, 5.1, 5.3 and 11.
In the event that this Agreement does not terminate as provided in
this Section 5.2, the Due Diligence Condition shall be deemed waived
and Buyer's right to terminate this Agreement pursuant to this Section
5.2 shall be deemed deleted from this Agreement, and this Agreement
shall continue in effect subject to the other provisions hereof.
5.3 Inspection Indemnity. Notwithstanding anything to the
contrary contained in this Agreement, any investigation or examination
of the Property, the Review Materials or other materials with respect
to the Property performed by Buyer or Buyer's Agents prior to the
Closing shall be performed at the sole risk and expense of Buyer, and
Buyer shall be solely responsible for the acts or omissions of any of
Buyer's Agents brought on, or to, the Property by Buyer. In addition,
Buyer shall defend, indemnify and hold Seller harmless from and
against all loss, expense (including, but not limited to, reasonable
attorneys' fees and court costs arising from the enforcement of this
indemnity), damage and liability resulting from claims for personal
injury, wrongful death or property damage against Seller or any of the
Property arising from or as a result of, any act or omission of Buyer
or Buyer's Agents in connection with any inspection or examination of
the Property or the books and records with respect thereto by Buyer or
Buyer's Agents. The provisions of this Section 5.3 shall survive the
Closing or the earlier termination of this Agreement for a period of
two (2) years.
5.4 Condition. As a material inducement to Seller to execute
this Agreement, Buyer acknowledges, represents and warrants that, upon
the satisfaction or waiver of the Due Diligence Condition, (i) Buyer
will have fully examined and inspected the Property, including the
construction, renovation, operation and leasing of the Property,
together with the Review Materials and such other documents and
materials with respect to the Property which Buyer deems necessary or
appropriate in connection with its investigation and examination of
the Property, (ii) Buyer will have accepted and will be fully
satisfied in all respects with the foregoing and with the physical
condition, value, presence/absence of hazardous materials, financing
status, use, leasing, operation, tax status, income and expenses of
the Property, (iii) the Property will be purchased by Buyer "AS IS"
and "WHERE IS" and with all faults, except as otherwise expressly set
forth in this Agreement, and (iv) except as otherwise expressly set
forth in this Agreement, Buyer will have decided to purchase the
Property solely on the basis of its own independent investigation.
Except as expressly set forth herein or in any document executed by
Seller and delivered to Buyer pursuant to Section 7.2 ("Seller's
Documents"), Seller has not made, does not make, and has not
authorized anyone else to make any representation as to the present or
future physical condition, value, presence/absence of hazardous
materials, financing status, leasing, operation, use, tax status,
income and expenses or any other matter or thing pertaining to the
Property, and Buyer acknowledges that no such representation or
warranty has been made and that in entering into this Agreement it
does not rely on any representation or warranty other than those
expressly set forth in this Agreement or in Seller's Documents.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN SELLER'S
DOCUMENTS, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED OR ARISING BY OPERATION OF LAW, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY. Seller shall not be liable
for or bound by any verbal or written statements, representations,
real estate broker's "setups" or information pertaining to the
Property furnished by any real estate broker, agent, employee, servant
or any other person unless the same are specifically set forth in this
Agreement or in Seller's Documents. The provisions of this Section
5.4 shall survive the Closing.
<PAGE>
6. Representations and Warranties
6.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties to Buyer, which
representations and warranties shall be true and correct in all
material respects on the day of the Closing:
6.1.1 Seller is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
New York, and is in good standing and is qualified to do business in
the State of California.
6.1.2 The execution, delivery and performance of this
Agreement and all other documents, instruments and agreements now or
hereafter to be executed and delivered by Seller pursuant to this
Agreement are within the power of Seller and have been duly authorized
by all necessary or proper partnership action.
6.1.3 Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended.
6.1.4 As of the date hereof there is no pending, or to the
best of Seller's knowledge, threatened suit, governmental
investigation or action against Seller with respect to the Property or
this transaction. Without limiting the generality of the foregoing,
to the best of Seller's knowledge, as of the date hereof there are no
actual or threatened suits, actions or proceedings with respect to all
or part of the Property (a) for condemnation or (b) alleging any
material violation of any applicable law, regulation, ordinance or
code (collectively, "Laws and Regulations").
6.1.5 Seller has not received any written notice (which
remains uncured) from any governmental authority stating the Property
violates any Laws and Regulations in any material respect.
6.1.6 With respect to the Existing Leases:
(a) As of the date of the Schedule of Leases, there
are no tenant leases or tenancy agreements affecting the Property, or
any portion thereof, other than the Existing Leases and any subleases
which may have been entered into by tenants (or subtenants of tenants)
of the Property with third parties;
(b) Each Existing Lease is in full force and effect
and has not been amended in any material respect except as set forth
in the Schedule of Leases. Seller has not given, nor has Seller
received, any written notice of a material default under any of the
Existing Leases which remains uncured (the foregoing does not apply to
delinquencies in the payment of monthly rent that have existed for
less than thirty (30) days), except as set forth in the Schedule of
Leases;
(c) The Schedule of Leases contains a complete and
accurate list of all tenant security deposits made under the Existing
Leases;
(d) As of the Closing there will be no assignments
of or other liens or encumbrances on the Existing Leases or the
Additional Leases or of any rents due or to become due thereunder; and
(e) As of the Closing there will be no leasing,
broker's or finder's commissions which are unpaid although due and
payable by Seller or to become due from Seller after the Closing with
respect to any of the Existing or Additional Leases or any renewals
thereof.
6.1.7 With respect to the Service Contracts:
(a) As of the date hereof, there are no equipment
leases or service, maintenance or other similar contracts or
agreements affecting the Property, or any portion thereof, other than
the Service Contracts (all of which can be terminated on not more than
thirty (30) days notice) and any equipment leases or other contracts
or agreements that may have been entered into by tenants (or
subtenants of tenants) of the Property with third parties; and
(b) Each Service Contract is in full force and
effect and has not been amended in any material respect except as set
forth in Exhibit "D." Seller has not given, nor has Seller received,
any written notice of a material default under any of the Service
Contracts which remains uncured, except as set forth in Exhibit "D."
6.1.8 The Management Agreement will be terminated by
Seller as of the Closing without cost to Buyer.
6.1.9 Seller has not received any written notice (which
remains outstanding) from any governmental authority stating that any
Hazardous Materials (as defined below) have been stored, disposed of
released or transported at or from the Property, or any portion
thereof, in violation of any Environmental Laws (as defined below).
To the best of Seller's knowledge, during Seller's ownership of the
Property, no reportable quantities of Hazardous Materials have been
stored, disposed of, released or transported by Seller (not including
its agents) at or from the Property, or any portion thereof, in
violation of any Environmental Laws (the foregoing representation does
not apply to the customary and ordinary application, storage and use
of chemical for landscape maintenance, janitorial services, and pest
control). As used herein: (i) the term "Environmental Laws" shall
mean all applicable existing federal, state and local statutes,
ordinances, orders, rules and regulations issued, promulgated or
adopted by any governmental authority having jurisdiction over the
Property relating to environmental pollution or protection, including,
without limitation, the Comprehensive Environmental Response,
Compensation ad Liability Act of 1980, 42 U.S.C. 9601 et seq, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
and (ii) the term "Hazardous Materials" shall mean any chemical,
material or substance defined as or included in the definition of
"hazardous substances," "hazardous wastes," hazardous materials,", or
"toxic substances" or words of similar import under any Environmental
Laws and any other chemical, material or substance, exposure to which
is prohibited, limited or regulated by any Environmental Laws, all of
the foregoing in such concentration(s) or amount(s) as may impose
clean-up, removal, monitoring, notification or other responsibility
under any Environmental Law.
Seller shall issue a certificate at the Closing stating that all of
the representations and warranties contained in this Section are true
and correct as of the Closing Date (as defined in Section 7.1 below),
except as to facts, if any, concerning which Buyer was notified.
6.2 Limitation of Seller's Representations. The
representations and warranties of Seller contained in Section 6.1 are
made as of the date hereof. During the term of this Agreement, Seller
shall promptly notify Buyer of any modifications to such
representations which are required to make such representations true
in all material respects. At Closing Seller shall issue a certificate
stating that all of the representation and warranties contained in
Section 6.1. above are true and correct as of the Closing Date, as
modified by Seller during the term of this Agreement as provided in
this Section 6.2. The representations and warranties set forth in
Subsections 6.1.1, 6.1.2 and 6.1.3 shall survive the Closing. The
representations and warranties set forth in Subsections 6.1.4 through
6.1.9, inclusive, shall survive the Closing to the date (the
"Representation Termination Date") occurring one (1) year after the
date of the Closing, at which time such representations and warranties
shall terminate and be of no further force or effect. All other
representations and warranties made by Seller in this Agreement,
unless expressly provided otherwise, shall not survive the Closing.
Where representations and warranties are made in this Agreement to the
"best of Seller's knowledge," such phrase shall mean and be limited to
the statement that there is no fact or circumstance contrary to such
representation or warranty within the actual knowledge of, or included
in a written notice received or sent by MLH Property Managers Inc.
after a reasonable search of its current files. For purposes of the
representations and warranties made by Seller in this Agreement and/or
Seller's Documents, (1) "Seller's knowledge" shall not include (1)
that of any former employee of the holding company of MLH Property
Managers Inc. and (2) the knowledge of, or notices received by, any
independent contractor hired by Seller and not communicated or
delivered by such contractor to Seller.
6.3 Representations and Warranties of Buyer. Buyer makes the
following representations and warranties to Seller, which
representations and warranties shall be true and correct in all
material respects on the date of the Closing:
6.3.1 Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland.
6.3.2 The execution, delivery and performance of this
Agreement and all other documents, instruments and agreements now or
hereafter to be executed and delivered by Buyer pursuant to this
Agreement are within the corporate power of Buyer and have been duly
authorized by all necessary or proper corporate action.
The representations and warranties of Buyer contained in this Section
6.3 shall survive the Closing until the Representation Termination
Date. Buyer shall issue a certificate at the Closing stating that all
of the representations and warranties contained in this Section are
true and correct as of the Closing Date, except as to facts, if any,
concerning which Seller was notified.
7. Closing
7.1 Time and Place. The closing contemplated by this Agreement
(the "Closing") shall take place on or before the date which shall be
thirty (30) days after the expiration of the Due Diligence Period (the
"Closing Date") at the offices of the Title Company or at such other
place as the parties shall mutually agree; provided, however Buyer may
extend the Closing Date (on a one-time basis), solely for the purpose
of obtaining its financing for the purchase of the Property, for up to
thirty (30) days by giving Seller notice not less than five (5) days
prior to the Closing Date and, as an increase of the Down Payment,
delivering an additional Fifty-Thousand Dollars ($50,000) to the Title
Company. Time is of the essence with respect to the Closing.
7.2 Seller's Closing Documentation and Requirements. At the
Closing, Seller shall deliver the following to Buyer:
7.2.1 a grant deed (the "Deed"), duly executed and
acknowledged and in recordable form, conveying to Buyer fee simple
title to the Property, subject to the Permitted Exceptions;
7.2.2 a special warranty bill of sale, duly executed and
acknowledged, transferring to Buyer all of the Personal Property. For
the purposes of this Agreement, the term "special warranty" shall mean
that the warranty of title shall be limited to claims made by parties
claiming by, through or under Seller, but not further or otherwise;
7.2.3 an assignment and assumption of leases (the
"Assignment of Leases"), duly executed and acknowledged, assigning and
transferring to Buyer all right, title and interest of Seller in and
to, and all post-Closing obligations of the lessor under, the Existing
Leases and the Additional Leases (if any) and all security deposits
and advance rentals made under the Existing Leases and the Additional
Leases (if any);
7.2.4 an assignment and assumption of service contracts
(the "Assignment of Service Contracts"), duly executed and
acknowledged, assigning and transferring to Buyer all right, title and
interest of Seller in and to, and all post-Closing obligations of the
owner of the Property under, the Service Contracts;
7.2.5 an assignment, duly executed and acknowledged, of
those items referred to in Sections 2.1, 2.5 and 2.6;
7.2.6 an affidavit stating, under penalty of perjury,
Seller's United States taxpayer identification number and that Seller
is not a "foreign person" as defined in Section 1445(f)(3) of the
Internal Revenue Code of 1986, as amended, and otherwise in the form
prescribed by the Revenue Service;
7.2.7 a current rent roll for the Property certified by
Seller verifying the information set forth in Exhibit C, as adjusted
to reflect the Additional Leases;
7.2.8 the original executed coy of each Existing Lease and
Additional Lease (including any amendments), or if the original
executed copy of any Existing Lease or Additional Lease cannot be
located, a copy of such Lease certified as true and correct by Seller.
The Existing Leases and Additional Leases (if any) may be delivered to
Buyer at the Property and need not be physically present at the
Closing;
7.2.9 a certificate, dated as of the Closing, of the
Secretary or an Assistant Secretary of the corporate general partner
of Seller with respect to (i) the resolutions adopted by the Board of
Directors of the corporate general partner of Seller approving this
Agreement and the transaction contemplated hereby and (ii) the
incumbency and specimen signature of each officer of the corporate
general partner of Seller executing this Agreement and the documents
set forth in this Section 7.2:
7.2.10 written notices, executed by Seller addressed to
each tenant under the Existing and Additional Leases, indicating that
the Property has been sold to Buyer and that all tenant security
deposits have been transferred to Buyer; and
7.2.11 such other documents and instruments as Buyer may
reasonably request in order to consummate the transaction contemplated
hereby.
7.2.12 The tenant estoppel certificate(s) described in
Section 12.2.
7.2.13 The assignment of warranties applicable to the
Property and any improvements thereto.
7.2.14 A Certificate from the Secretary of State of
California listing the filings which have been filed under the Uniform
Commercial Code against Seller as debtor.
7.2.15 All correspondence and files relating to the
current tenants, keys, books, records (or copies thereof) and other
items used in connection with the operation of the Property.
7.2.16 The certificate specified in Section 6.1.
7.3 Buyer's Closing Documentation and Requirements. At the
Closing, Buyer shall pay the Closing Payment in accordance with the
provisions of this Agreement and shall deliver the following to
Seller:
7.3.1 the Assignment of Leases and the Assignment of
Service Contracts, duly executed and acknowledged;
7.3.2 a certificate, dated as of the Closing, of the
Secretary or an Assistant Secretary of Buyer with respect to (i) the
resolutions adopted by the Board of Directors of Buyer approving this
Agreement and the transaction contemplated hereby and (ii) the
incumbency and specimen signature of each officer of Buyer executing
this Agreement and the documents set forth in this Section 7.3;
7.3.3 the certificate of Buyer specified in Section 6.3;
and
7.3.4 such other documents and instruments as Seller may
reasonably request in order to consummate the transaction contemplated
hereby.
7.4 Form. All documents and instruments required hereby shall
be in form and substance reasonably acceptable to Seller and Buyer.
8. Adjustments and Prorations
8.1 Adjustments. The following adjustments to the Purchase
Price shall be made between the parties at the Closing: (a) Buyer
shall be credited and Seller charged with security deposits or advance
rentals in the nature of security deposits made by tenants under the
Existing Leases and the Additional Leases, (b) Seller shall be
credited and Buyer charged with transferable deposits under the
Service Contracts, and (c) Buyer shall be credited with any remaining
balance, which is due and unpaid, of Lessor's Contribution, as defined
and pursuant to the terms of Section 6 of the First Amendment to Lease
dated December 14, 1995, between Seller and Compression Labs,
Incorporated.
8.2 Prorations. The following shall be prorated between the
parties as of 11:59 p.m. of the day preceding the date of the Closing:
real estate taxes and personal property taxes for the current fiscal
year, to the extent not paid directly by tenants; rent payments
(including prepaid rents) under the Existing Leases and the Additional
Leases; charges and fees paid or payable under those Service Contracts
which are assigned to Buyer; and such other items of income and
expense as are customarily prorated in transactions of this nature.
8.3 Real Estate Taxes. If, on the date of the Closing, the
real estate tax rate and/or the assessed valuation is not fixed for
the then current fiscal year, real estate taxes shall be apportioned
upon the basis of the tax rate and/or the assessed valuation for the
next preceding fiscal year, but such taxes shall be readjusted at the
request of Seller or Buyer as soon as the applicable rate and assessed
valuation are fixed. If Buyer shall become liable after the Closing
for the payment of any real property taxes assessed against the
Property for any period of time prior to the Closing Date, Seller
shall immediately pay to Buyer within thirty (30) days of demand an
amount equal to such tax assessment properly allocable to any period
prior to the Closing. The provisions of this Section 8.3 shall
survive the Closing.
8.4 Utilities. Seller shall endeavor to have all meters read
and final bills rendered for all utilities servicing the Property,
including, without limitation, water, sewer, gas and electricity, for
the period to and including the day preceding the Closing, and Seller
shall pay such bills, except in the case of utility charges paid or
payable by tenants under the Existing Leases or the Additional Leases
directly to the utility companies. The provisions of this Section
shall survive the Closing.
8.5 Rent Arrears. At the Closing, Seller shall deliver to
Buyer a list of (a) all tenants who are delinquent in the payment of
rents, (b) the amount of each such delinquency and (c) the period to
which each such delinquency relates. If the tenant under any Existing
Lease or Additional Lease is in arrears in the payment of rent on the
date of the Closing, rents received from such tenant after the Closing
shall be applied in the following order of priority: (a) first, to the
month in which such rents are received; (b) second, to any rent
arrearages for the month in which the Closing occurs; and (c) third,
to the period(s) for which the tenant in question was in arrears prior
to the month in which the Closing occurs. Rents collected by Buyer
after the Closing Date to which Seller is entitled, shall be promptly
paid to Seller. For a period of ninety (90) days after the Closing
Date, Buyer shall use reasonable efforts to collect all rents which
are delinquent at the Closing Date with no obligation to commence
litigation to collect such rents. Commencing as of ninety-one (91)
days after the Closing Date, Seller may take all steps it deems
appropriate, including litigation, to collect all rents delinquent at
the Closing Date which are still uncollected. The provisions of this
Section shall survive the Closing.
8.6 Proration of Additional Rents. If any tenants under the
Existing and Additional Leases are required to pay real estate taxes,
operating expenses or other charges of a similar nature ("Additional
Rents") and any Additional Rents are collected by Buyer after Closing
which are attributable in whole or in part to any period prior to the
date of Closing, then Buyer shall promptly (and in any event within
fifteen (15) days after the last day of the month in which received by
Buyer) pay Seller's proportionate share thereof to Seller, less any
reasonable attorneys' fees and other reasonable out-of-pocket costs
and expenses actually incurred by Buyer in connection with the
collection thereof. The provisions of this Section shall survive the
Closing.
8.7 Errors. If any errors or omissions are made at the Closing
regarding adjustments or prorations, the parties shall make the
appropriate corrections promptly after the discovery thereof. The
provisions of this Section shall survive the Closing.
9. Expenses
9.1 Expenses of Buyer. Buyer shall pay (a) that portion of the
premium for the Title Policy allocable to any endorsements requested
by Buyer and to the extended (ALTA) coverage; (b) one half of the city
transfer taxes with respect to the transaction contemplated hereby;
(c) the cost of the Survey in excess of $2,000; (d) all recording fees
on any document recorded pursuant to this Agreement; (e) one-half (1/2)
of the escrow fees charged by the Title Company.
9.2 Expenses of Seller. Seller shall pay: (a) the cost of the
Survey up to $2,000, (b) the county transfer taxes, (c) the portion of
the premium for the Title Policy allocable to the standard (CLTA)
coverage, and (d) one-half (1/2) of the city transfer taxes and the
escrow fees charged by the Title Company.
9.3 Attorney's Fees. Each party shall pay its own attorney's
fees and all of its other expenses, except as otherwise expressly set
forth herein.
9.4 Other Closing Costs. All other costs of Closing shall be
paid in accordance with the custom in Santa Clara County, California.
10. Risk of Loss: Casualty and Eminent Domain
10.1 Casualty. The parties waive the provisions of The Uniform
Vendor and Purchaser Risk Act as adopted in the State of California.
If, prior to the Closing, the Property is damaged by fire, vandalism,
acts of God or other casualty or cause, Seller shall promptly give
Buyer notice of any such damage (the "Damage Notice"), together with
Seller's estimate of the cost and period of repair and restoration.
In any such event: (a) in the case of damage to the Property of less
than $100,000 and from a risk covered by insurance maintained by
Seller or the tenant of the Property with respect to the Property, are
adequate to pay one hundred percent of the cost of reconstruction (in
Buyer's reasonable judgment), Buyer shall accept the Property at the
Closing as it is together with any applicable insurance proceeds from
Seller's insurance policy or the right to receive the same; or (b) in
the case of any other damage to the Property due to a casualty, Buyer
shall have the option of (x) taking the Property at the Closing in
accordance with item (a) above or (y) terminating this Agreement;
provided however, in the event of a casualty not covered by insurance,
Seller shall be responsible to pay the first one hundred thousand
dollars ($100,000) of the cost thereof, at the option of Buyer. If,
pursuant to the preceding sentence, Buyer is either obligated or
elects to take the Property as it is together with any applicable
insurance proceeds or the right to receive the same, Seller agrees,
with respect to Seller's insurance policy, to cooperate with Buyer in
any loss adjustment negotiations, legal actions and agreements with
its insurance company, and to assign to Buyer at the Closing its
rights to any such insurance proceeds with respect to such claim and
will not settle any insurance claims or legal actions relating thereto
without Buyer's prior written consent, which consent shall not be
unreasonably withheld or delayed.
10.2 Eminent Domain. If, prior to the Closing, all or
substantially all of the Property is taken by eminent domain, this
Agreement shall be terminated without further act or instrument. If
less than substantially all of the Property is so taken, Buyer shall
have the option, by written notice given to Seller within thirty (30)
days after receiving notice of such taking, to terminate this
Agreement. If Buyer does not elect to terminate this Agreement, it
shall remain in full force and effect and Seller shall assign,
transfer and set over to Buyer at the Closing all of Seller's right,
title and interest in and to any awards that may be made for such
taking. Notwithstanding anything to the contrary contained herein, if
less than a material part of the Property is so taken, Buyer shall
proceed with the Closing and take the Property as affected by such
taking, together with all awards or the right to receive same. For
the purposes of this Section, a part of the Property shall be deemed
"material" if it (i) includes any of the buildings or structures at
the Property or (ii) otherwise (on a permanent basis) limits or
restricts ingress and egress to and from the Property.
10.3 Termination. If this Agreement is terminated pursuant to
this Section, the Down Payment, including all interest earned thereon,
shall be promptly returned to Buyer and the parties hereto shall be
released from all further obligations and liabilities hereunder,
except with respect to the covenants and indemnities set forth in
Sections 3, 5.1, 5.3 and 11.
11. Broker's Commissions
Buyer and Seller represent and warrant to each other that
neither they nor their affiliates have dealt with any broker, finder
or the like in connection with the transaction contemplated by this
Agreement other than Colliers Parrish International, Inc. (the
"Broker"). At the Closing, Seller shall pay a commission to the
Broker pursuant to a separate agreement between Seller and the Broker.
Buyer and Seller each agrees to indemnify, defend and hold the other
harmless from and against all loss, expense (including reasonable
attorneys' fees and court costs), damage and liability resulting from
the claims of any other broker or finder (including anyone claiming to
be a broker or finder) on account of any services claimed to have been
rendered to the indemnifying party in connection with the transaction
contemplated by this Agreement. The provisions of this Section shall
survive the Closing or the earlier termination of this Agreement.
12. Lease and Management of the Property
12.1 Management and Leasing. Between the date of this Agreement
and the date of the Closing: (i) Seller shall cause the Property to be
operated, maintained and managed in a manner consistent with the
present management of the Property; (ii) Seller shall not enter into
any contract or agreement (except for renewals of Service Contracts)
that would remain binding on the owner of the Property after the
Closing without the prior written consent of Buyer in the case of any
contract or agreement which is not terminable without cost upon prior
notice of thirty (30) days or less, which consent shall not be
unreasonably withheld or delayed; and (iii) Seller shall continue to
perform all of its obligations as Landlord under all the Existing
Leases and any Additional Leases, shall not modify the Existing Leases
nor enter into any Additional Leases without the prior written consent
of Buyer, which consent shall not be unreasonably withheld or delayed.
Until the Closing, Seller shall maintain, or cause the tenant of the
Property to maintain in full force and effect "All Risk" property
insurance in the amount of at least ninety per cent (90%) of the
replacement value of the Property without deduction for physical
depreciation, but excluding foundations and footings.
12.2 Estoppel Certificate. As a condition to Buyer's
obligation to purchase the Property, Seller shall have delivered to
Buyer no sooner than thirty (30) days prior to the Closing Date and no
later than two (2) days before the Closing Date, an estoppel
certificate from the tenant listed on Exhibit C in form reasonably
acceptable to the Buyer's Lender.
13. Defaults
13.1 By Buyer. IF BUYER FAILS TO PERFORM ITS OBLIGATIONS
HEREUNDER AND AS A RESULT THE SALE OF THE PROPERTY IS NOT COMPLETED,
SELLER MAY TERMINATE THIS AGREEMENT AND, AS ITS SOLE REMEDY, RECEIVE
THE DOWN PAYMENT AND ALL INTEREST EARNED THEREON FROM THE TITLE
COMPANY, AS LIQUIDATED DAMAGES, IN WHICH EVENT THIS AGREEMENT SHALL BE
DEEMED NULL AND VOID AND THE PARTIES SHALL BE RELEASED FROM ALL
FURTHER OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT, EXCEPT WITH
RESPECT TO THE COVENANTS AND INDEMNITIES SET FORTH IN SECTIONS 3, 5.1,
5.3 AND 11. IT IS RECOGNIZED BY SELLER AND BUYER THAT THE DAMAGES
SELLER WILL SUSTAIN BY REASON OF BUYER'S DEFAULT, BREACH OR FAILURE
WILL BE SUBSTANTIAL, BUT DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN.
THE DOWN PAYMENT HAS BEEN DETERMINED BY THE PARTIES AS A REASONABLE
SUM FOR DAMAGES. BUYER AGREES NOT TO INTERPOSE ANY DEFENSE OR
OTHERWISE SEEK TO INTERFERE WITH SELLER'S RETENTION AND OWNERSHIP OF
THE DOWN PAYMENT.
Seller's Initials JAC Buyer's Initials BP
13.2 By Seller. If, prior to the Closing, Seller is in default
with respect to, or breaches, or fails to perform one or more of the
representations, covenants, warranties or other terms of this
Agreement, and such default, breach or failure is not cured or
remedied within ten (10) business days after receipt of written notice
thereof given by Buyer to Seller, Buyer may either (a) terminate this
Agreement, in which event (i) the Down Payment and all interest earned
thereon shall be returned by the Title Company to Buyer, (ii) Seller
shall reimburse Buyer for all costs and expenses incurred by Buyer in
connection with its due diligence undertaken in accordance with the
terms of this Agreement (as evidenced by documentation reasonably
acceptable to Seller) in an amount not to exceed $50,000, and (iii)
the parties shall be released from all further obligations and
liabilities under this Agreement, except with respect to the covenants
and indemnities set forth in Sections 3, 5.1, 5.3 and 11, or (b) sue
for specific performance, in which event the Buyer shall have the
right to file, in connection therewith, a Notice of Pendency of Action
as provided in California Code of Civil Procedure, Section 405 et seq.
The remedies set forth above shall be Buyer's sole remedies arising
from a default, breach or failure to perform by Seller.
14. Notices
Any notice, demand, consent, authorization or other
communication (collectively, a "Notice") which either party is
required or may desire to give to or make upon the other party
pursuant to this Agreement shall be effective and valid only if in
writing, signed by the party giving such Notice, and delivered
personally (upon an officer of the other party or to such individual
as may be noted in the addresses stated below) to the other party or
sent by express courier or delivery service or by registered or
certified mail of the United States Postal Service, return receipt
requested, and addressed to the other party as follows (or to such
other address or person as either party or person entitled to notice
may by Notice to the other specify) or sent by facsimile transmission
to the fax number shown below and simultaneously mailed by first-class
mail of the United States Postal Service:
To Seller: MLH Income Realty Partnership
World Financial Center, South Tower
225 Liberty Street, 12th Floor
New York, New York 10080-6112
Attention: Jack A. Cuneo
Senior Vice President
Telephone: (212) 236-1785
Facsimile: (212) 236-1783
and to:
MLH Income Realty Partnership III
World Financial Center, South Tower
225 Liberty Street, 12th Floor
New York, New York 10080-6112
Attention: Christina M. Titus, Esq.
Vice President
Telephone: (212) 236-1781
Facsimile: (212) 236-1794
and to:
Landels Ripley & Diamond
350 Steuart Street
San Francisco, California 94105
Attention: Susan M. Reid, Esq.
Telephone: (415) 512-8700
Facsimile: (415) 788-7550
To Buyer: Bedford Property Investors, Inc.
250 Lafayette Circle, Suite 202
Lafayette, CA 94549
Attention: Robert Pester,
Vice
President
Telephone: (510) 283-8910
Facsimile: (510) 283-8480
and to:
Bartko, Zankel, Tarrant & Miller
900 Front Street, Suite 300
San Francisco, CA 94111
Attention: Martin I. Zankel
Telephone: (415) 956-1900
Facsimile: (415) 956-1152
Unless otherwise specified, notices shall be deemed given when
received, but if delivery is not accepted, on the earlier of the date
delivery is refused or the third day after the same is deposited with
the United States Postal Service.
15. Assignment
This Agreement and all rights of Buyer arising hereunder shall
not be assigned, sold, pledged or otherwise transferred by Buyer in
whole or in part, without the prior written consent of Seller;
provided, however, Buyer may assign its rights hereunder to an entity
which controls, is controlled by or is in common control with Buyer,
so long as Buyer remains primarily liable for its obligations
hereunder.
16. General Provisions
16.1 Successors and Assigns. This Agreement shall bind and
inure to the benefit of the respective successors and permitted
assigns of the parties hereto.
16.2 Gender and Number. Whenever the context so requires, the
singular number shall include the plural and the plural the singular,
and the use of any gender shall include all genders.
16.3 Entire Agreement. This Agreement contains the complete
and entire agreement between the parties respecting the transaction
contemplated herein and supersedes all prior negotiations, agreements,
representations and understandings, if any, between the parties
respecting such matters.
16.4 Counterparts. This Agreement may be executed in any
number of original counterparts, all of which evidence only one
agreement and only one of which need be produced for any purpose.
16.5 Modifications. This Agreement may not be modified,
discharged or changed in any respect whatsoever, except by a further
agreement in writing duly executed by Buyer and Seller. However, any
consent, waiver, approval or authorization shall be effective if
signed by the party granting or making such consent, waiver, approval
or authorization.
16.6 Exhibits. All exhibits referred to in this Agreement are
incorporated herein by reference and shall be deemed part of this
Agreement for all purposes as if set forth at length herein.
16.7 Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
16.8 No Recordation. This Agreement shall not be recorded.
Violation of this provision by Buyer shall automatically terminate
this Agreement and entitle Seller to receive the Down Payment without
further action, consent or release from Buyer first being required,
and to such other remedies available at law or in equity.
16.9 Captions. The captions of this Agreement are for
convenience and reference only and in no way define, describe, extend
or limit the scope, meaning or intent of this Agreement.
16.10 Severability. The invalidation or unenforceability in
any particular circumstance of any of the provisions of this Agreement
shall in no way affect any of the other provisions hereof, which shall
remain in full force and effect.
16.11 No Joint Venture. This Agreement shall not be construed
as in any way establishing a partnership, joint venture, express or
implied agency, or employer-employee relationship between Buyer and
Seller.
16.12 No Third Party Beneficiaries. This Agreement is for the
sole benefit of the parties hereto, their respective successors and
permitted assigns, and no other person or entity shall be entitled to
rely upon or receive any benefit from this Agreement or any term
hereof.
16.13 Survival. Except as otherwise expressly set forth
herein, the covenants, warranties, representations and indemnities of
Seller and Buyer contained in this Agreement shall not survive the
Closing.
16.14 No Personal Liability. Except for the managing general
partner, MLH Property Managers Inc., no general or limited partner of
Seller, no officer, director, stockholder or partner of a partner of
Seller, no disclosed or undisclosed principal of Seller, and no person
or entity in any way affiliated with Seller shall have any personal
liability with respect to this Agreement, any instrument delivered by
Seller at Closing, or the transaction contemplated hereby, nor shall
the property of any such person or entity be subject to attachment,
levy, execution or other judicial process.
16.15 Attorneys' Fees. If either party shall bring an action
or proceeding against the other party to enforce the terms of this
Lease or to declare their respective rights hereunder, the losing
party shall pay the reasonable attorneys' and experts' fees and
expenses and court costs of the party prevailing in such action,
proceeding, or trial or appeal thereof.
16.16 Execution. The submission of this Agreement for
examination does not constitute an offer by or to either party. This
Agreement shall be effective and binding only after due execution and
delivery by the parties hereto.
16.17 Publicity. Buyer agrees that it shall not make any
public announcement regarding this transaction without the prior
written consent of Seller.
IN WITNESS WHEREOF, the parties have caused this instrument to
be executed as of the date first above written.
SELLER:
MLH INCOME REALTY PARTNERSHIP III, a New York limited
partnership
By: MLH Property Managers Inc., a Delaware corporation,
managing general partner
By: /s/Jack A. Cuneo
Name: Jack A. Cuneo
Title: Senior Vice President
BUYER:
BEDFORD PROPERTY INVESTORS, INC.,
a California corporation
By: /s/Bob Pester
Name: Bob Pester
Title: Vice President
$100,000 Down Payment received
and escrow obligations agreed to:
June 1, 1995
FIRST AMERICAN TITLE GUARANTY COMPANY
By: /s/Kitty Gould
Name: Kitty Gould
Title: Escrow Officer<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Order No. 509249
Page No. 8
Real property in the City of San Jose, County of Santa Clara, State of
California, described as follows:
PARCEL ONE:
A portion of Lot 5 as shown on that certain Map of Tract No. 7340
recorded in the Office of the Recorder of the County of Santa Clara,
State of California on May 26, 1982 in Book 500 at page 46, 47 and 48,
more particularly described as follows:
Beginning at the most Westerly corner of said Lot 5 as shown on said
Tract Map, which lies on the Southeasterly boundary of Plumeria Drive;
thence following said boundary North 41 46' 03" East a distance of
208.42 feet; thence through a tangent curve to the left with a central
angle of 8 09' 17", a radius of 1035.00 feet and a length of 147.31
feet to a point of reverse curve; thence through a tangent curve to
the right with a central angle of 8 24' 09", a radius of 965.00 feet
and a length of 141.52 feet; thence North 42 02' 55" East a distance
of 163.13 feet; thence through a tangent curve to the right with a
central angle of 107 47' 08", a radius of 30.00 feet and a length of
56.44 feet to a point on the Northwesterly boundary of Junction Ave.:
thence following said boundary through a tangent curve to the right
with a central angle of 00 46' 50", a radius of 1970.00 feet and a
length of 26.84 feet; thence South 29 23' 06" East, a distance of
609.03 feet; thence leaving said boundary South 60 10' 03" West a
distance of 508.72 feet; thence North 29 49' 57" West, a distance of
62.00 feet; thence South 60 10' 03" West a distance of 136.00 feet;
thence North 29 49' 57" West a distance of 379.00 feet to the said
point of beginning.
Excepting therefrom without right of surface entry, all that portion
thereof lying below a depth of 500 feet, measure vertically, from the
contour of the surface of said property, as reserved in the Deed from
Southerly Pacific Industrial Development Company to Plumeria, Inc.
recorded October 1, 1982 in Book H060 at page 614 of Official Records
of Santa Clara County, California.
PARCEL TWO:
Non-exclusive easements for ingress, egress and the installation and
maintenance of a storm drainage system over, under and across those
certain twelve (12) foot wide strips of land lying within the bounds
of Lots 2, 3, 4 and 5 of Tract No. 7340, the Map of which was filed
for record in the Office of the Recorder of Santa Clara County,
California, on May 26, 1982 in Book 500 of Maps at pages 46, 47 and
48, said strips of land being more particularly described as follows:
PARCEL A:
A strip of land with a uniform width of twelve (12) feet lying within
the bounds of Lot 2 of said Tract No. 7340, the centerline of which is
described as follows:
Beginning at a point on the Northeasterly property line of said Lot 2,
said point being North 47 25' 27" West 44.00 feet from the most
Easterly corner of said Lot 2; thence from said point of beginning
running South 37 06' 24" West 182.86 feet to an angle point; thence
South 42 34' 33" West 198.00 feet to an angle point; thence North 47
25' 27" West 165.00 feet to an angle point; thence South 71 48' 57"
West 111.01 feet to an angle point lying 6.00 feet Northeasterly from
the Southwesterly property line of said Lot 2; thence North 29 49'
57" West and parallel to said Southwesterly property line
247.90 feet to a point in the Northwesterly property line of said
Lot 2.
PARCEL B:
A strip of land with a uniform width of twelve (12) feet lying within
the bounds of Lot 2 of said Tract No. 7340, the centerline of which is
described as follows:
Beginning at a point on the Northeasterly property line of said Lot 2,
said point being North 47 25' 27" West 262.00 feet from the most
Easterly corner of said Lot 2; thence from said point of beginning
running North 70 57' 28" West 231.32 feet to an angle point lying
6.00 feet Southeasterly from the Northwesterly property line of said
Lot 2; thence South 42 34' 33" West and parallel to said
Northwesterly property to said Northwesterly property line 324 feet,
more or less, to a point in the Southwesterly property line of said
Lot 2.
PARCEL C:
A strip of land with a uniform width of twelve (12) feet lying
Northeasterly of and contiguous to the Southwesterly property line of
said Lot 3 of Tract No. 7340.
PARCEL D:
A strip of land with a uniform width of twelve (12) feet lying
Northeasterly of and contiguous to the Southwesterly property line of
said Lot 4 of Tract No. 7340.
PARCEL E:
A strip of land with a uniform width of twelve (12) feet being the
Southwesterly 12.00 feet of the Southeasterly 144.68 feet of said Lot
5 of Tract No. 7340.
APN: 97-14-71
***
Subject to changes shown by an updated survey.
<PAGE>
EXHIBIT "B"
SCHEDULE OF PERSONAL PROPERTY
NONE<PAGE>
EXHIBIT "C"
SCHEDULE OF LEASES
Compression Labs, Incorporated: Lease dated March 31, 1992, as
amended by First Amendment to Lease dated December 14, 1994.<PAGE>
EXHIBIT "D"
SCHEDULE OF SERVICE CONTRACTS
NONE<PAGE>
EXHIBIT "E"
DILIGENCE CHECKLIST
1. Financial records and statements, including:
a. audited annual financial statements relating to the last three
(3) years of operation of the Property;
b. monthly operating statements for the Property for the previous
twelve (12) months; and
c. monthly cash flow statements for the Property for the previous
twelve (12) months and annual cash flow statements for the previous
three (3) fiscal years, each stating all income, expense, capital
expenditures, cash receipts of any kind, and cash balances.
2. Copies of all warranties and other contracts or documents of
significance to the Property, including a specification of any
landlord obligations arising from the leases which may not be
described therein, such as, by way of example, commissions due or
which may become due, construction obligations and the like.
3. Copies of all building permits, certificates of occupancy and all
other governmental licenses and permits for the improvements which are
in the possession of Seller.
4. Any other information pertaining to the Property reasonably
requested by Buyer.
<PAGE>
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE (this "First
Amendment") is made to be effective as of June 2, 1995 by and between
MLH INCOME REALTY PARTNERSHIP III, a New York limited partnership
("Seller") and BEDFORD PROPERTY INVESTORS, INC., a Maryland
corporation ("Buyer").
RECITALS
A. Seller and Buyer previously executed that certain
agreement entitled "Agreement of Purchase and Sale: dated as of June
1, 1995 (the "Purchase Agreement"), pursuant to which Seller agreed to
sell to Buyer and Buyer agreed to purchase from Seller certain
property located at 350 East Plumeria Drive, San Jose, California (the
"Property").
B. Seller and Buyer now desire to amend the Purchase
Agreement on the terms and conditions set forth in this First
Amendment.
AGREEMENT
1. Recitals; Definitions. Each of the foregoing recitals is
true and correct and is incorporated herein by this reference. All
words and phrases having their initial letters capitalized in this
First Amendment and not specifically defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
2. Expiration of Due Diligence Period. Seller and Buyer
hereby agree that, notwithstanding the provisions of Section 5.1 of
the Purchase Agreement, the Due Diligence Period shall expire at 5:00
p.m. San Francisco Time on June 9, 1995.
3. Closing Date. Seller and Buyer hereby agree that the
Closing Date (as defined in Section 7.1 of the Purchase Agreement)
shall be August 22, 1995, subject to extension as provided in Section
7.1.
4. Miscellaneous. Buyer and Seller each acknowledge and
agree that, as of the date of this First Amendment, the Purchase
Agreement is and remains valid, effective and in full force and effect
and shall remain unmodified except as specifically provided in this
First Amendment. In the event of any inconsistency between the
Purchase Agreement, as amended, and this First Amendment, the terms of
this First Amendment shall prevail. This First Amendment may be
executed in one or more counterparts and shall constitute a single
contract, binding upon all parties even though all parties are not
signatory to the same counterpart.
IN WITNESS WHEREOF, Buyer and Seller have executed this First
Amendment as of the date first above written.
Seller:
MLH INCOME REALTY PARTNERSHIP, III,
a New York limited partnership
by: MLH Property Managers Inc., a
Delaware corporation, managing
general partner
by: Jack A. Cuneo
Name: Jack A. Cuneo
Title: Senior Vice President
BUYER:
BEDFORD PROPERTY INVESTORS, INC.
a California corporation
by: Bob Pester
Name: Bob Pester
Title: Vice President<PAGE>
EXHIBIT 10.2
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
THE REALTY ASSOCIATES FUND III, L.P.
("SELLER")
AND
BEDFORD PROPERTY INVESTORS, INC.
("PURCHASER")
May 23, 1995
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made
and entered into as of the 23rd day of May, 1995, by and between THE
REALTY ASSOCIATES FUND III, L.P., a Delaware limited partnership
(hereinafter referred to as "Seller") and Bedford Property Investors,
Inc., a Maryland corporation, its successors and assigns (hereinafter
referred to as "Purchaser").
R E C I T A L S
A. Seller is the owner in fee simple of that certain
property commonly known as Lackman Business Center located at 10551-
10583 Lackman Road, and 15010-15024 and 15030-15042 W. 106th Street,
in Lenexa, Johnson County, Kansas, more particularly described in
Exhibit A attached hereto and incorporated herein by this reference
together with all easements, licenses, covenants and other rights
appurtenant to said property and all right, title and interest of
Seller in and to any land lying in the bed of any street, road, avenue
or alley, open or closed, in front of or adjoining said property and
to the center line thereof (collectively, the "Land"), the two (2)
warehouse office building(s) containing in the aggregate approximately
Forty Five Thousand (45,000) square feet (the "Buildings"), and other
improvements located thereon (the "Improvements"), together with all
of the Seller's right, title and interest in and to the following (the
"Personalty"):
(i) all furniture, fixtures, equipment and other
personal property, which are now, or may hereafter prior to the
Closing Date (as hereinafter defined) be placed in, attached to or
used in connection with or in the operation of the property;
(ii) to the extent they may be transferred under
applicable law, all licenses, permits and authorizations, including,
without limitation, sewer rights and permits, presently issued in
connection with the operation of all or any part of the property or
necessary to operate the property as it is presently being operated;
(iii) all warranties, if any, issued to Seller by any
manufacturers and contractors in connection with construction or
installation of equipment included as part of the property;
(iv) to the extent assignable and to be assigned
hereunder to Purchaser at Closing (as hereinafter defined), all
service, supply and maintenance contracts (if any) held by Seller with
respect to the property and its mechanical equipment, elevators and
other elements;
(v) all trade names and general intangibles relating
to the property; and
(vi) all leases and security deposits thereunder
covering all or any part of the property.
The Land, the Improvements, the Buildings and the Personalty are
collectively referred to herein as the "Property."
B. Purchaser desires to purchase the Property from Seller
and Seller desires to sell, transfer and assign the same to Purchaser.
NOW, THEREFORE, for and in consideration of the recitals, the
mutual promises hereinafter set forth and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale
Seller hereby agrees to sell, assign, transfer and
deliver to Purchaser, and Purchaser hereby agrees to purchase, acquire
and accept from Seller the Property upon the terms and conditions
herein set forth.
2. Purchase Price
The purchase price for the Property shall be Two
Million Two Hundred Fifty Thousand Dollars ($2,250,000.00) (the
"Purchase Price"), as may be adjusted pursuant to the terms of this
Agreement. The Purchase Price shall be paid at closing in immediately
available funds.
3. Deposit
3.13.1 Deposit with Escrow Agent. Upon execution
hereof, Purchaser has or shall deposit Twenty-Five Thousand
Dollars ($25,000.00) (the "Deposit") with First American
Title Guaranty Company (the "Escrow Agent"), in the form of
cash, or a check payable to the order of Escrow Agent, the
receipt of which is hereby acknowledged by Escrow Agent's
execution hereof.
3.23.2 Application of Deposit. The Deposit shall
be held in an interest-bearing escrow account by Escrow
Agent until (i) Closing (as defined in Section 4 occurs
under this Agreement), in which event the Deposit, shall be
paid to Seller as a credit to the Purchase Price, or (ii)
this Agreement has been terminated (for reasons other than
default of Purchaser hereunder), in which event the Deposit
will be returned to Purchaser; provided, however, that if
termination of this Agreement is due to Purchaser's default
under any provision hereof, the entire Deposit shall be
delivered promptly to Seller, whereupon Purchaser shall be
relieved of all liability under this Agreement. The
parties expressly agree that Seller's actual damages in the
event of a termination of this Agreement due to Purchaser's
default would be extremely difficult and impracticable to
ascertain and that the amount of the Deposit represents the
parties' reasonable estimate of such damages and shall be
deemed full, complete and liquidated damages to Seller for
such default. Other than payment of the Deposit, Seller
shall have no other remedy for any default by Purchaser.
4. Closing
Subject to the conditions herein, including but not
limited to those specified in Section 3 hereof, the closing
of the purchase and sale of the Property (the "Closing")
shall be held at the offices of Bingham, Dana & Gould, 1550
M Street, N.W., 12th Floor, Washington, D.C. 20005, or at
such other place agreed to by Seller and Purchaser, on a
date (the "Closing Date") mutually acceptable to the
parties after expiration of the Feasibility Period (as
hereinafter defined), but in no event later than thirty
(30) days after expiration of the Feasibility Period (the
"Outside Closing Date"). If, despite exercise of a party's
diligence and good faith hereunder, the Closing shall not
be held by the Outside Closing Date, either party may
terminate this Agreement.
Notwithstanding the foregoing, the Purchaser shall
have the right to extend the Outside Closing Date for an
additional thirty (30) day period upon written notice to
Seller of such election, provided that Purchaser deposits
an additional Fifty Thousand Dollars ($50,000.00) with
Escrow Agent which shall become a part of the Deposit and
shall be held by Escrow Agent in accordance with the terms
of Section 3.2 hereof.
5. Prorations and Closing Costs
5.1 Prorations In General. All revenues and
expenses of the Property shall be prorated and apportioned
as of the date set forth in Section 4 such that the Seller
shall bear all expenses with respect to the Property and
shall have the benefit of all revenues with respect to the
Property through the Adjustment Date, and Purchaser shall
bear all expenses and have the benefit of all income with
respect to the Property after the Adjustment Date. Any
revenue or expense amount which cannot be ascertained with
certainty as of the Adjustment Date shall be prorated on
the basis of the parties' reasonable estimates of such
amount and shall be subject to a final proration thirty
days after the Closing Date or as soon thereafter as the
precise amount can be ascertained.
5.2 Adjustment Date. Except as otherwise set forth
herein, all items to be prorated pursuant to this Section 4
shall be prorated as of midnight of the day immediately
preceding the Closing Date (except that if the Purchase
Price is not disbursed to or for the benefit of Seller on
or before 11:00 a.m. Eastern Time on the Closing Date, such
adjustments shall be made as of midnight of the day
immediately preceding the date on which the Purchase Price
is disbursed prior to 11:00 a.m. (the day and time as of
which such adjustment shall be made is herein referred to
as the "Adjustment Date"). Nothing contained herein shall
be deemed to relieve Purchaser of the obligation to deposit
the Purchase Price with the title company on the Closing
Date.
5.3 Additional Provisions. The following additional
provisions shall apply with respect to the prorations of
revenue and expense as of the Adjustment Date with respect
to the Property:
5.3.15.3.1 Taxes. Real estate and personal
property taxes and assessments for the year in which
Closing is held shall be prorated on the basis of a
three hundred sixty-five (365) day year (with such
real estate taxes to be adjusted according to the
Certificate of Taxes issued by the appropriate
authorities of the appropriate jurisdiction). If, at
the time of Closing, the Property or any part thereof
shall be or shall have been affected by assessments
which are or may become payable in annual installments
or are then a charge or lien (such as, but not limited
to, front foot benefit charges), then for the purposes
of this Agreement the installment for the current year
shall be adjusted in accordance with Section 4.
5.3.25.3.2 Insurance. There shall be no
proration of Seller's insurance premiums or assignment
of Seller's insurance policies and Seller shall cancel
all of its existing policies as of the Closing Date.
Purchaser shall be obligated (at its own election) to
obtain any replacement policies.
5.3.35.3.3 Utilities. Prior to Closing,
Purchaser and Seller shall notify all public and
private utilities providing services to the Property
of the prospective change in ownership and direct that
all future billings be made to Purchaser or its
designee, at a specified address, with no interruption
of service. Purchaser and Seller hereby acknowledge
and agree that the amounts of all telephone, electric,
sewer, water and other utility bills, trash removal
bills, janitorial and maintenance service bills and
all other operating expenses relating to the Property
and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing,
if possible, or shall be paid thereafter by Seller or
adjusted between Purchaser and Seller immediately
after the same have been determined. Seller shall
cause all utility meters to be read as of the Closing
Date. Seller shall also attempt to obtain from the
provider of same, all other service statements and
bills of account adjusted as of the Closing Date. The
Escrow Agent shall retain a reasonable escrow from the
funds due Seller from which all utilities and
servicing bills through Closing shall be paid. Seller
shall promptly pay the difference between the amount
of such bills and the amount held in escrow. Such
obligation shall survive Closing.
5.3.4 Rents Collected by Seller Prior to
Closing. Rents actually collected by Seller prior to
Closing relating to the calendar month during which
Closing takes place shall be pro rated as of the
Adjustment Date.
5.3.55.3.5 Rents Collected by Purchaser
After Closing. During the period after Closing,
Purchaser shall deliver to Seller any and all rents
accrued but uncollected as of the Closing Date to the
extent subsequently collected by Purchaser after
deduction of reasonable third party out-of-pocket
collection charges actually incurred by Purchaser;
provided, however, that Purchaser shall apply rents
received after Closing first to payment of current
rents and thereafter to rents accrued but unpaid as of
the Closing Date. For a period of six (6) months
after the Closing Date, Purchaser shall use reasonably
diligent efforts to collect all rents which are
delinquent at the Closing Date; to the extent that
amounts remain unpaid to Seller after such six (6)
month period, then Seller shall have the right to sue
to collect same, but in no event may the Seller seek
to evict any tenant or terminate any lease. Seller
shall give Purchaser notice of any actions or
proceedings relating to collection of delinquent
rents. Purchaser will cooperate with the Seller in all
reasonable efforts to collect such rent and other
amounts due. Nothing in this paragraph shall prohibit
the Seller from initiating any action prior to the
Closing Date against any tenant which shall then be in
default of any Lease, provided that notice of such
action shall be furnished to the Purchaser; provided,
however, Seller hereby agrees that Seller shall not
institute eviction proceedings against any tenant
after the end of the Feasibility Period without the
prior consent of Purchaser.
5.3.6 CAM Charges. If, and to the extent the
Leases require that tenants pay as additional rent
taxes, common area expenses, utilities, maintenance
and additional operating expenses of any nature
(collectively, "Operating Expenses"), such Operating
Expenses shall not be prorated hereunder. After
Closing, Purchaser shall send customary statements for
reimbursement of Operating Expenses to tenants under
the Leases after consulting with Seller with respect
to appropriate amounts due therefor and shall remit to
Seller, upon receipt, Seller's prorated share thereof,
if any, by allocating to Seller the product of the
apportionable item for the entire billing period
multiplied by a fraction, the numerator of which is
the number of days within the specified billing period
which occur before the Adjustment Date and the
denominator of which is the number of days in the
specified billing period.
5.3.7 Security Deposits.
5.3.7.1 At the Closing, Seller shall
furnish Purchaser with a schedule setting
forth all security deposits which have
been theretofore deposited with Seller or
its predecessors in interest by tenants,
to the extent known and actually received
by Seller; and Seller shall credit
Purchaser with the aggregate amount of
such deposits, together with all interest,
if any, which is required by the terms of
the applicable lease or by statute, earned
thereon and required to be paid to
tenants.
5.3.7.25.3.7.2 If Seller is holding
letters of credit in lieu of the deposits,
then, at the Closing, Seller shall assign
such letters of credit to Purchaser to the
extent that such letters of credit are
assignable, or if not assignable shall
cause to have such letters of credit re-
issued in favor of Purchaser.
5.3.85.3.8 Leasing Commissions. On or
before the Closing Date, Seller shall pay or cause to
be paid (or there shall be escrowed at Closing) all
leasing commissions (except as hereinafter provided)
which are payable with respect to Leases executed
prior to the date hereof, whether the same are due on
or prior to the Closing Date or payable in
installments subsequent thereto and including any
portion thereof due upon any renewals of any such
Lease or options to lease additional space but only if
such renewal or additional space option commences
prior to the date of this Agreement. Purchaser shall
assume the payment of all leasing commissions which
may hereafter become due with respect to (i) any
renewals of any Leases or options to lease additional
space under any Leases if such renewals or additional
space options are exercised and commence or arise
after the date of this Agreement, and (ii) any Leases
hereinafter executed prior to the Closing with
Purchaser's consent.
5.4 Payment of Adjustments. Either party owing the
other party a sum of money based upon adjustments made
after the Adjustment Date shall promptly pay that sum that
the other party within ten (10) days after the parties
mutually agree upon the amount of the post-Closing
adjustment.
5.55.5 Closing Costs. All transfer taxes and any
State or county documentary stamps or transfer taxes on the
deed and escrow fees shall be paid 50% by Seller and 50% by
Purchaser. Seller shall pay all recording fees (including
recording costs in connection with any release documents)
and shall also pay title insurance premiums for an ALTA
Owner's Form (1992) title policy; provided, however, to the
extent Purchaser requires particular endorsements to title
or special title coverage, Purchaser shall pay such
additional premiums. Purchaser shall pay survey costs.
Each party shall be responsible for its own attorneys'
fees.
6. Purchaser's Right of Inspection; Feasibility Period
6.1 Purchaser's Right of Inspection. Purchaser
shall have the right, at its own risk, cost and expense,
during normal business hours and at any date or dates prior
to Closing, to enter, or cause its agents or
representatives to enter upon the Property for the purpose
of making surveys or other tests, test borings,
inspections, investigations, architectural, economic,
environmental and other studies of the Property as
Purchaser may deem desirable; provided, however, that such
access shall be subject to the Leases and Purchaser shall
provide Seller with at least forty-eight (48) hours notice
prior to entering the Buildings for such purposes and at
least twenty-four (24) hours notice prior to entering the
Property for any other activity. In addition, Purchaser
may make investigations and inspections that require
exposure of structural and mechanical elements of the
Improvements and the taking of soil and water samples from
the Property. Subject to the provisions of Section 17.11,
Purchaser shall have complete access to all documentation,
agreements and other information in the possession of
Seller related to the ownership, use and operation of the
Property, and shall have the right to make copies of such
documentation at its sole cost and expense. In addition,
Purchaser shall have the right to cause a Phase I and, if
warranted or desirable and consented to by Seller, a Phase
II - Environmental Study of the Property to be performed
during the Feasibility Period. In no event shall Seller be
obligated to perform any remediation or repairs as a result
of Purchaser's investigations. Except as set forth above,
Purchaser shall not make any physical alterations to the
Improvements, and entry by Purchaser onto the Property
shall not unreasonably interfere with the tenants or
management of the Property. Purchaser shall have the right
to interview the tenants only in the presence of
representatives of Seller.
Purchaser shall be responsible, at the Purchaser's
sole expense, for repairing any damage to the Property
caused by the making of such inspections, investigations,
samplings, studies and tests and the Purchaser hereby
indemnifies and agrees to hold harmless the Seller against
any loss or damage, or claim (including reasonable
attorneys' fees and court costs in the defense of the
preceding), resulting from the Purchaser (or the
Purchaser's agents, employees, invitees, or independent
contractors) entering onto the Property or the conducting
of activities thereof. The provisions of this sentence
shall survive the termination of this Agreement for a
period of three (3) years and shall be fully enforceable
notwithstanding such termination.
6.2 Feasibility Period. The feasibility period
shall commence upon the date on which this Agreement is
fully executed by Seller and Purchaser and shall terminate
at 5:00 p.m. Eastern Time on July 7, 1995 (the "Feasibility
Period"). If, prior to the termination of the Feasibility
Period, Purchaser gives Seller written notification (the
"Termination Notice") (time being of the essence), that
Purchaser elects not to consummate the purchase of the
Property in accordance with this Agreement, then Purchaser
and Seller acknowledge and agree that this Agreement shall
be conclusively deemed to be terminated and this Agreement
shall be of no further force and effect and Purchaser
shall, within two days thereof, return the originals of all
documents and materials (and all copies) which the Seller
has produced pursuant to this Agreement to the Seller and
at such time by doing so, Purchaser shall have represented
that such tender be complete and thorough. The Purchaser
shall have the absolute right, in its sole discretion, to
determine whether to give the Termination Notice. In the
event the Termination Notice is given, neither party shall
have further liability to the other under this Agreement.
If Purchaser elects not to, or fails timely to, give the
Termination Notice, then this Agreement shall remain in
full force and effect. Purchaser may shorten the
Feasibility Period by providing Seller written notice of
the date on which the Feasibility Period shall end.
6.3 Due Diligence Materials. Seller shall deliver
to Purchaser copies of the documents and items listed on
Exhibit B attached hereto and incorporated herein on or
before June 2, 1995. In addition, Seller shall provide
Purchaser with such other reasonable documentation,
agreements and other information in the possession of
Seller relating solely to the ownership, use and operation
of the Property as Purchaser reasonably requests.
6.4 Continued Right to Access. In the event
Purchaser does not terminate this Agreement as provided in
this Section 8 during the Feasibility Period, Purchaser
and/or its designees shall have the continued right through
the Closing Date to examine and review all such data and
financial information, inspect the premises, survey and
make other tests and analyses as it deems necessary or
desirable, subject to the indemnity provisions of Section 8
above. Notwithstanding any examinations, inspections,
surveys or tests, Purchaser shall be entitled to the
benefit of all covenants and warranties of Seller contained
in this Agreement and said review, inspection, survey and
tests and failure to terminate shall not be a waiver or
relinquishment of any covenant or warranty of or by Seller.
7. Title7.Title
7.17.1 Condition of Title. Title to the Land and
Improvements shall, as a condition of Closing of Purchaser,
be indefeasible, merchantable and marketable, good of
record and in fact, and insurable without exception at
standard rates by a title insurance company selected by
Purchaser (the "Title Company"), free of all interests,
encumbrances, liens, judgments, tenancies and covenants,
excepting only the following permitted exceptions
("Permitted Exceptions") (i) the lien of real estate taxes
and special assessments not yet due and payable; (ii) the
Leases described in Exhibit D and such other leases as may
be approved by Purchaser in accordance with the provisions
of Section 7.4 below; and (iii) such other matters as are
set forth in Exhibit C attached hereto and made a part
hereof.
7.27.2 Title Commitment. Purchaser shall
promptly order a title insurance commitment (1987 ALTA Form
"B" or the equivalent) (the "Commitment") issued by a
national title company chosen by Purchaser (the "Title
Company") agreeing to issue to Purchaser upon recording of
the Deed (as hereinafter defined), an ALTA Owners' Form
(1992) policy of title insurance ("Title Policy") in the
amount of the Purchase Price showing title to the Land and
Improvements vested in Purchaser, subject only to the
Permitted Exceptions, and such other title exceptions as
Purchaser has agreed to accept or is deemed to have
accepted pursuant to this Agreement.
7.37.3 Failure of Title. If the Seller cannot
convey title as set forth in Section 9, at the option of
the Purchaser, this Agreement may be terminated within
three (3) Business Days after the Outside Closing Date
unless the title defect(s) can be readily remedied by legal
or other action. Subject to the provisions of the last
sentence of this Section 7.3, if legal or other action is
necessary to cure title defects, Seller may take such
action at its own expense whereupon the time for Closing
shall be extended for up to thirty (30) days. In the event
such title encumbrance is not cured within said additional
thirty (30) days, the Purchaser shall have the option, to
be elected within ten (10) days after expiration of such
thirty (30) day period, to (i) terminate this Agreement in
which event the Escrow Agent shall deliver the Deposit to
Purchaser, or (ii) purchase the Property without reduction
in Purchase Price. Notwithstanding the foregoing, in the
event such title encumbrance was caused, created or
permitted by the act or omission of Seller, Seller must
take affirmative action to cure such title encumbrance and
the failure of Seller to do so shall constitute a breach of
this Agreement except that Seller shall have no obligation
to spend more than One Hundred Thousand Dollars ($100,000)
in cure of the same.
7.47.4 New Leases. Seller covenants and agrees
not to hereafter enter into any lease (including any
renewal, expansion or modification of an existing Lease) of
all or any portion of the Property (a "Lease Transaction")
without, in each instance, the prior written consent of
Purchaser, which consent shall be deemed given unless
Purchaser notifies Seller to the contrary within two (2)
business days after receipt of all information reasonably
required by Purchaser in order to evaluate the proposed
Lease Transaction; provided, however, that the exercise by
any existing tenant under a Lease in effect as of the date
of this Agreement of any option contained in such tenant's
Lease shall not be deemed a Lease Transaction prohibited
hereby.
7.57.5 Affidavits to Title Company. Upon request
by Purchaser, Seller shall execute such reasonable and
customary affidavits, indemnities, and other similar type
instruments as are required reasonably by Title Company for
the elimination of any standard or pre-printed exceptions
in Purchaser's final Title Policy, including, without
limitation, the exception for unfiled mechanics' liens and
parties in possession.
7.6 Survey. Prior to the execution of this
Agreement, Seller has delivered to Purchaser a copy of that
certain Land Title Survey entitled "Part of Block 5, Park-
Len I Industrial Estates in the City of Lenexa, Johnson
County, Kansas" prepared by Norman E. Holmes, Job No. 94-
115, dated November 14, 1994 (the "Survey"). Purchaser
shall have the right to cause an update of the Survey to be
prepared for its account and benefit, at its sole cost and
expense.
8. Representations and Warranties of The Seller
8.1 By Seller. Subject to the provisions of Section
16 hereof, Seller hereby represents and covenants to
Purchaser that each of the following representations and
warranties is true and correct as of the date of execution
of this Agreement and shall be true and correct as of the
Closing Date.
8.1.1 Authority. Seller has full and absolute
power and authority to enter into this Agreement and
all ancillary documents delivered pursuant hereto, and
to assume and perform all of its obligations hereunder
and thereunder. The execution and delivery of this
Agreement and the documents required to be executed
and delivered by Seller in connection with Closing and
the performance by the Seller of its obligations
hereunder and thereunder have been duly authorized by
all requisite action and no further action or approval
is required in order to constitute this Agreement and
the transactions contemplated hereby as a binding and
enforceable obligation of the Seller.
8.1.2 Title. To the best of Seller's knowledge,
Seller is the legal and equitable owner of the Land
and the Building, with full right to convey the Land,
the Building, the Leases and the security deposits
currently being held by Seller. Seller makes no
representation or warranty concerning title to the
Personalty.
8.1.3 Legal Action Against Seller. Seller has
received no written notice of any judgments, orders,
or decrees of any kind against Seller unpaid or
unsatisfied of record, or of any legal action, suit or
other legal or administrative proceeding pending
before any court or administrative agency relating to
the Property which would adversely affect the Property
for its present use, or of any state of facts which
might result in any such action, suit or other
proceeding. To the best of Seller's knowledge, there
is no threatened legal action suit or other legal or
administrative proceeding before any court or
administrative agency relating to the Property which
would adversely affect the Property for its present
use.
8.1.4 Bankruptcy or Debt of Seller. Seller is
not in the hands of a receiver and has not committed
an act of bankruptcy; and to the best of Seller's
knowledge and belief, there are no due but unpaid
income, property or franchise taxes of Seller which
constitutes a lien against the Property.
8.1.5 Compliance with Existing Law. Seller has
received no written notice of any violations of any
law, municipal or other governmental ordinances,
orders, rules, regulations or requirements, or of any
restrictive covenants against or affecting the
Property, or any part thereof, nor is Seller aware of
any facts which might result in such violation. To
the best of Seller's knowledge and belief, the
execution of this Agreement by Seller, and the
consummation of the transaction described herein, does
not and will not cause Seller to be in violation of
any such law, ordinance, order, or requirement or of
any agreement or contract to which Seller is a party.
8.1.6 Condemnation. To the best of Seller's
knowledge and belief, but without making any inquiry,
there are no pending or contemplated condemnation
proceedings affecting the Property, or any part
thereof nor is Seller aware of any such contemplated
proceedings. Seller has not made any commitment to any
board, bureau, commission, department or body of any
municipal, county, state or federal governmental unit
or any subdivision thereof, having jurisdiction over
the Property or the use or improvements thereto
("Governmental Authority") or to any other third party
to dedicate or grant any portion of the Property for
roads, easements, rights-of-way, park lands or for any
other public purposes, to construct any recreational
facilities, to impose any restrictions or incur any
other expense or obligation relating to the Property,
except as may be set forth in the commitment or on
Exhibit E attached hereto and incorporated herein by
reference.
8.1.7 Violations and Proffers. Seller has
received no written notice of any violations of any
laws, ordinances, orders, regulations or requirements
of any applicable Governmental Authority affecting any
portion or component of the Property; and to the best
of Seller's knowledge and belief, there is no basis
for the issuance of any notice of such violations.
Seller has not proffered any improvements or
alterations to the Property to any Governmental
Authority, nor has Seller entered into any other form
of binding commitment relating to the zoning of the
Property with any Governmental Authority.
8.1.8 The Property. (i) To the best of Seller's
knowledge and belief, the Improvements are in good
operating condition and repair, subject only to
ordinary wear and tear, (ii) to the best of Seller's
knowledge and belief, there are no existing material
structural defects in the Improvements constituting a
part of the Property, and all plumbing equipment,
heating, ventilating and air-conditioning equipment,
the electric wiring and fixtures, and the water and
sewage systems presently in the Property are in good
working order and condition, (iii) to the best of
Seller's knowledge and belief except as may otherwise
be disclosed on the title information or survey
delivered by Seller to Purchaser, the Buildings and
other Improvements (including the parking areas) do
not in any way encroach on any adjoining property
(excluding any lots described in Exhibit A), (iv)
except as otherwise disclosed in the title information
delivered by Seller to Purchaser, all public utility
connections located at or on the Property have been
paid for and all sewer, water and other utilities
required for the operation of the Property enter
through adjoining public streets or through valid
recorded easements across adjoining private lands, and
(v) to the best of Seller's knowledge and belief, all
parking areas located within the perimeter of the
Property are private and have not been dedicated to
any Governmental Authority.
8.1.9 Liens. To the best of Seller's knowledge
and belief, there are no mechanics' liens against the
Property; no claims for labor, services, profit or
material furnished for constructing, repairing or
improving the same, nor does Seller anticipate any
such claims, except in the normal course of Seller's
business, which will be paid as of the Closing Date or
for which the Purchase Price shall be adjusted at
Closing; no liens have been filed; and no petitions,
actions or suits to establish or enforce any such
liens have been filed, nor has Seller received any
notice of any intention to do so.
8.1.10 Asbestos, PCBs, Hazardous Materials.
To the best of Seller's knowledge and belief, but
without having undertaken any study, other than
environmental assessment reports (the "Environmental
Reports") prepared by McLaren/Hart Environmental
Engineering and Law Engineering Inc. which will be
provided to Purchaser, there is no presence of any
Hazardous Waste, Hazardous Substance or Toxic
Substance (including, without limitation, asbestos)
(collectively "Hazardous Wastes") on or at the
Property, except as may be disclosed in the
Environmental Reports or used by tenants in the
ordinary course of business in accordance with all
applicable law, rules and regulations. For purposes
of this Agreement, "Hazardous Waste", "Hazardous
substances", and "Toxic Substances" means, without
limitation: (i) those substances included within the
definitions of any one or more of the terms "hazardous
substances," "hazardous materials," and "toxic
substances," in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980
("CERCLA"), as amended, 42 U.S.C. Sec. 9061 et seq.,
the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Sec. 6901 et seq., and the
Hazardous Materials Transportation Act, as amended, 49
U.S.C. 1801 et seq., and in the regulations
promulgated pursuant to said laws; (ii) those
substances listed in the United States Department of
Transportation Table (49 CFR 172.101 and amendments
thereto) or by the Environmental Protection Agency (or
any successor agency) as hazardous substances (40 CFR
Part 302 and amendments thereto); (iii) such other
substances, materials and wastes as are regulated
under applicable local, state or federal laws, or
which are classified as hazardous or toxic under
federal, state or local laws or regulations; and (iv)
any materials, wastes or substances that are (a)
petroleum; (b) friable asbestos; (c) polychlorinated
biphenyls; (d) designated as a "Hazardous Substance"
pursuant to Section 311 of the Clean Water Act,
13 U.S.C. 1321 et seq. (33 U.S.C. 1321) or
designated as "toxic pollutants" subject to Chapter 26
of the Clean Water Act pursuant to 307 of the Clean
Water Act (33 U.S.C. 1317); (e) flammable
explosives; or (f) radioactive materials, and all
regulations promulgated thereunder. To the best of
Seller's knowledge and belief, but without having made
a review of the records of any Governmental authority,
the Property has never been used for industrial
purposes or for the storage, treatment or disposal of
hazardous wastes or materials nor has the Property
ever been listed by any governmental agency as
containing any oil, hazardous waste, hazardous
material, chemical waste or other toxic substance.
8.1.11 Leases. Exhibit D contains a
complete and accurate description of all leases and
tenancies and all amendments or extensions thereto,
(collectively, the "Leases") affecting the Property as
of the date of this Agreement (such exhibit to list
all Leases; the monthly rent each tenant is currently
paying; the security deposit for each tenant; and the
expiration date of each Lease). To the best of
Seller's knowledge and belief, each of the Leases
described on Exhibit D is in full force and effect in
accordance with its terms and has not been modified,
amended or extended except as set forth therein, and
is assignable by the Seller to the Purchaser without
the need for the consent of any party. The monthly or
annual rent listed opposite the name of each tenant on
Exhibit D is the current rental due and is the amount
actually billed to each of the tenants for the month
immediately preceding the date of this Agreement.
Except as otherwise set forth on Exhibit D-1, none of
the tenants is in default (beyond any applicable grace
period provided by such tenant's Lease) in the payment
of any rent due under its Lease or, to the Seller's
knowledge, in the performance or observance of any
material covenant or condition to be kept, observed or
performed by it under its Lease. To the best of
Seller's knowledge and belief, none of the tenants is
entitled to any rebate, concession, deduction or
offset, except as set forth in its Lease, or has paid
any rent or other charge of any nature for a period of
more than thirty (30) days in advance.
8.1.12 Lease Obligations. Seller has fully
performed all of Seller's obligations under the
Leases that are or shall be required to be performed
prior to the Closing Date and all tenant improvement
construction work completed by Seller has been
accepted by the tenants. Seller has satisfied and
shall satisfy in a timely manner all obligations that
it has assumed under the Leases, holding Purchaser
harmless from such obligations in accordance with the
indemnification contained in Section 23, except that
Purchaser shall pay, or reimburse Seller for all
tenant improvements, construction costs and leasing
commissions incurred as a result of Lease Transactions
approved by Purchaser in accordance with the terms of
Section 10 hereof. To the best of Seller's knowledge
and belief, no brokerage commission or other
compensation is or will be due or payable to any
person, firm, corporation or other entity with respect
to or on account of the Leases, or any renewal
thereof, except as may be set forth on Exhibit D-2
attached hereto and incorporated herein by reference.
8.1.13 Operating Statements. The operating
statements to be provided to Purchaser which have been
prepared by Seller accurately and completely reflect
the revenue, expenses and income for the Property for
the periods covered thereby, and the amount of each
individual item of revenue and expense set forth
therein is true and correct in all respects.
8.1.14 Outstanding Contracts. As of the
Closing Date, any management, service, supply,
security, maintenance or similar contracts
("Contracts") with respect to the Property shall
either be terminated (or terminable on thirty (30)
days' notice) or shall be approved and accepted by
Purchaser in writing.
8.1.15 Insurance. Seller has in full force
and effect fire, extended risk and liability insurance
policies covering the Property. Seller shall maintain
such insurance through the Closing Date. Seller has
not received from any insurance company carrying
insurance or that has carried insurance on the
Property any written notice of any material defect or
inadequacy in connection with the Property or its
operation.
8.1.16 Licenses and Permits. To the best of
Seller's knowledge and belief, but without having made
any inquiry, all licenses and permits necessary or
required under the laws, ordinances, rules and
regulations of the appropriate jurisdiction for the
occupancy and use of the Buildings or other facilities
of the Property are binding and effective.
8.1.17 Taxes. Seller has received no written
notice that the Property is subject to any special
taxes, assessments or benefit charges, nor has Seller
received notice of the intention of any Governmental
Authority to impose any such special taxes,
assessments or benefit charges, except as may be set
forth on Exhibit E attached hereto, or in the title
information delivered to Purchaser by Seller prior to
the date hereof, and incorporated herein by reference.
8.1.18 No Material Omissions. To the best of
Seller's knowledge and belief, neither this Agreement
(including the Exhibits) nor any other certificate,
statement, document or other information furnished or
to be furnished to Purchaser by or on behalf of Seller
pursuant to or in connection with the transaction
contemplated by this Agreement contains or will
contain, any misstatement of material fact, or omits
or will omit to state a fact necessary in order to
make the representations, warranties and other
statements herein or therein contained not misleading.
8.1.19 Foreign Person. Seller is not a
foreign person within the meaning of Section 1445(f)
of the Internal Revenue Code, and Seller agrees to
execute any and all documents necessary or required by
the Internal Revenue Service or Purchaser in
connection with such declaration(s).
8.2 Limitations on Representation of Warranties
The parties hereby acknowledge that Seller
recently purchased the Property from the successor in
interest to Purchaser and Purchaser therefore may have
actual or constructive knowledge of the accuracy or
inaccuracy of certain of the representations and
warranties made by Seller in this Agreement.
Accordingly, the parties hereby agree that all
representations and warranties made by Seller are
limited to the actual knowledge of Seller with respect
to matters in existence prior to the date when Seller
acquired the Property and to the actual and
constructive knowledge of Seller with respect to
matters in existence after the date Seller acquired
the Property. In no event shall Seller be held liable
hereunder for a breach of any representation or
warranty relating to the time period prior to the time
when Seller acquired the Property and about which
Seller had no actual knowledge. Nor shall Seller be
held liable hereunder for a breach of a representation
and warranty of Seller relating to the time period
during which Seller has owned the Property, to the
extent that Purchaser has actual knowledge of such
breach as a result of its prior ownership of the
Property. Seller's knowledge, actual or constructive,
shall be deemed to mean only the actual knowledge of
Arthur Segel, Scott Freeman, Bruce Jackson and Pat
McGannon.
9. Additional Conditions to Settlement
Seller hereby covenants and agrees as follows:
9.19.1 Normal Operation of Property. Seller will
carry on the business of the Property in the ordinary
course and in a good and diligent manner consistent with
prior practice through the Closing Date, and Seller will
cause the continuation of the normal operation thereof,
including the purchase and replacement of supplies and
equipment, the maintenance of its beneficial relations with
tenants, suppliers and others who have business dealings
with Seller with respect to the Property, to the extent
commercially reasonable, and the continuation of the normal
practice with respect to maintenance and repairs, including
but not limited to the completion of all tenant finishing
work required under any lease entered into by Seller prior
to the Closing Date (or if not so completed, provision
therefor will be made at Closing) subject to reimbursement
by Purchaser pursuant to Section 7.
9.2 Payment of Leasing Costs. Seller shall pay in
full all leasing commissions, all moving allowances and all
other tenant concessions (other than free rent following
the Closing Date) for all Leases, which obligations have
accrued to the Closing Date, to the extent that Seller has
knowledge of same, subject to reimbursement by Purchaser
pursuant to Section 7.
9.3 Removal of Personal Property. Seller shall not
remove or permit to be removed from the Improvements any
item or article defined as Personal Property hereunder
except as may be necessary for repairs or discarding worn
out or useless items, provided that discarded items shall
be replaced with new items of substantially equal quality
and quantity and shall be free and clear of any lien or
encumbrance.
9.39.3 Further Assurances. Seller agrees that it
will, upon reasonable notice and from time to time after
the Closing Date, upon request of Purchaser, do, execute,
acknowledge and deliver, or will cause to be done,
executed, acknowledged and delivered, all such further
acts, deeds, assignments, transfers, conveyances and
assurances as may be reasonably required for the better
assignment, transfer and granting of the Property to
Purchaser, its successors or assigns, but nothing herein
shall obligate Seller to incur any liability beyond that
set forth elsewhere in this Agreement.
9.49.4 Seller's Deliveries. Seller shall deliver
to Purchaser the following at Closing:
9.4.19.4.1 A special warranty deed in
recordable form properly executed by Seller conveying
to Purchaser the Land and the Improvements, in fee
simple, subject only to the Permitted Exceptions, in
the form attached hereto as Exhibit H;
9.4.29.4.2 A bill of sale for all Personal
Property in the form attached hereto as Exhibit I;
9.4.3 A FIRPTA affidavit;
9.4.49.4.4 All original books, records,
tenant files, operating reports, files, plans and
specifications and other materials in Seller's
possession necessary to the continuity of operation of
the Property;
9.4.59.4.5 The original executed Leases
described in Exhibit D hereof, together with an
assignment of such Leases, in the form attached hereto
as Exhibit I;
9.4.69.4.6 A certified rent roll for the
Property, in substantially the same form as Exhibit D-
3;
9.4.79.4.7 With respect to any service
contracts to be assumed by Purchaser, all original
service contracts or copies thereof relating to the
Property together with an assignment of such contracts
in the form attached hereto as Exhibit I;
9.4.8 Any warranties or guaranties relating to
the Personal Property and service contracts relating
to the Property, to the extent assignable without cost
to Seller;
9.4.99.4.9 All original certificates of
occupancy relating to the Property to the extent in
Seller's possession;
9.4.109.4.10 Any certificates of insurance
from the tenants in Seller's possession;
9.4.119.4.11 All original as-built plans and
specifications relating to the Property to the extent
in Seller's possession;
9.4.129.4.12 An assignment of all permits,
licenses, certificates and authorizations relating to
the Property, in the form attached hereto as Exhibit
I;
9.4.139.4.13 All keys to the Improvements
which delivery shall comprise at least one full set of
keys;
9.4.149.4.14 Letters to all tenants advising
them of the sale to Purchaser in the form attached
hereto as Exhibit J;
9.4.159.4.15 A certificate reaffirming all
representations and warranties of Seller set forth in
Article 8 in the form attached hereto as Exhibit K,
except for Encumbrances consented to by Purchaser; and
9.4.169.4.16 Such other consents, approvals,
affidavits, estoppel certificates and other
instruments and documents as may be reasonably
required by Purchaser or the Title Company prior to
Closing, including, without limitation, the standard
form affidavit required by the Title Company in order
to remove all standard title exceptions except the
leases. Such affidavits, indemnities and other
similar type instruments as may be requested pursuant
to Section 11 hereof.
9.59.5 Tenant Estoppel Certificates. Seller
shall use commercially reasonable efforts to obtain
estoppel certificates from each tenant addressed to
Purchaser in the form attached hereto as Exhibit L (the
"Basic Estoppel Certificate") prior to the end of the
Feasibility Period, it being acknowledged that Seller shall
have no obligation to pay money or to grant other
concessions to any tenant in order to obtain such estoppel
certificate. Prior to the end of the Feasibility Period,
Purchaser and Purchaser's lender shall have sole discretion
to approve or disapprove the estoppel certificates received
from tenants.
In the event that Seller has not obtained
estoppel certificates acceptable to Purchaser and
Purchaser's lender from tenants leasing in the aggregate at
least eighty percent (80%) of the rentable square footage
of the Building (including each tenant leasing at least
5000 square feet) prior to the end of the Feasibility
Period and Purchaser does not elect to terminate this
Agreement prior to the end of the Feasibility Period, then
Seller shall continue to use commercially reasonable
efforts to obtain additional estoppel certificates from
tenants, in which event Purchaser and Purchaser's lender
shall have five (5) days after receipt thereof to offer
reasonable objections to such estoppels.
If Purchaser or Purchaser's lender objects to
any exceptions, qualifications or modifications contained
in any estoppel certificate received by Purchaser, whether
before or after the end of the Feasibility Period,
Purchaser shall inform Seller immediately, and to the
extent such estoppel certificate is delivered to Purchaser
prior to the end of the Feasibility Period then Purchaser
shall object no later than the last day of the Feasibility
Period.
If Purchaser or Purchaser's lender objects to an
estoppel certificate as set forth above, then Seller shall
have a period of up to thirty (30) days to remedy or cure
the subject matter of such exception, qualification, or
modification, if Seller elects to do so, and to deliver a
substitute estoppel certificate from the tenant which does
not contain such exception, qualification, or modification,
and if necessary, the Closing shall be extended to the end
of such 30-day period.
Purchaser shall be obligated proceed to Closing
so long as it has received estoppel certificates acceptable
to Purchaser and Purchaser's lender in accordance with the
standards set forth above from tenants leasing in the
aggregate at least eighty percent (80%) of the rentable
square footage of the Building so long as Purchaser
receives estoppel certificates from each tenant leasing at
least 5,000 square feet.
9.69.6 Payment of Bills and Claims. All bills
and claims for labor performed and materials furnished to
Seller for the benefit of the Property during the period
preceding the Closing Date shall be paid in full at or
prior to Closing (or bonded off to the satisfaction of the
Purchaser and its counsel).
9.79.7 Maintaining the Property. During the
period between the date of this Agreement and the Closing
Date, Seller shall (i) use all reasonable efforts to keep
available the services of its present employees and to
maintain its relation with tenants, suppliers and others
having business dealings with it; (ii) at Seller's expense,
maintain the Property in the same order and condition as
the Property was in on the date of this Agreement,
reasonable wear and tear and damage by casualty excepted
provided, however, that if the cost of providing any
capital items or major repairs contemplated by this
subsection would otherwise be reimbursed by the tenants,
Seller shall promptly notify Purchaser of such cost and if
Purchaser approves of such expenditure, Seller shall
perform the work and Purchaser shall reimburse Seller for
such costs at Closing; (iii) maintain all existing
insurance policies relating to the Property, including
rental abatement insurance, in full force and effect, (iv)
not mortgage or encumber the Property or any part thereof,
(v) cooperate fully with Purchaser to insure that the
transfer of the Property takes place without inconvenience
to tenants and with the least possible disruption in the
normal operation of the Property; and (vi) cooperate with
Purchaser in effecting the transfer contemplated by this
Agreement.
9.8 Seller hereby agrees that until the Closing or
prior termination of this Agreement, Seller shall not sell,
convey or transfer all or any part of the Property to a
third party, or contract to do so, except as otherwise
expressly permitted in this Agreement.
10. Representations and Warranties of Purchaser
Purchaser warrants and represent to Seller as follows:
10.1 Authority. Purchaser is a corporation, duly
formed, validly existing and in good standing under the
laws of the State of Maryland. Purchaser has full and
absolute power and authority to enter into this Agreement
and all ancillary documents delivered pursuant hereto, and
to assume and perform all of its obligations hereunder.
The execution and delivery of this Agreement and the
performance by the Purchaser of its obligations hereunder
have been duly authorized by all requisite action and no
further action or approval is required in order to
constitute this Agreement as a binding and enforceable
obligation of the Purchaser.
10.2 Legal Action Against Purchaser. To the best of
Purchaser's knowledge and belief, there are no judgments,
orders, or decrees of any kind against Purchaser unpaid or
unsatisfied of record which would adversely affect the
Closing hereunder, nor any legal action, suit or other
legal or administrative proceeding pending before any court
or administrative agency.
10.3 Bankruptcy or Debt of Purchaser. Purchaser is
not in the hands of a receiver and has not committed an act
of bankruptcy.
10.4 Binding on Purchaser The execution and delivery
of this Agreement by the Purchaser and the consummation of
the transaction contemplated hereby will be binding upon
Purchaser. The undersigned individual(a) is authorized to
sign on behalf of Purchaser and no additional signatures
are required to bind Purchaser.
10.5 ERISA. Purchaser is not an employee benefit
plan (a "Plan") subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended (the
"Code"), nor a person or entity acting, directly or
indirectly, on behalf of any Plan or using the assets of
any Plan to acquire the Property.
11. Risk of Loss.
Until recordation of the Deed, the risk of loss or
damage to the Property or any portion thereof shall be
assumed by Seller. In the event of damage to less than ten
percent (10%) of the Property, Seller shall either repair
the damage or give Purchaser a credit against the Purchase
Price for the cost of repairs. In the event of damage to
the Property by fire or other casualty, act of God or any
other event, to the extent that ten percent (10%) or more
of the total area of the Property is damaged as of the
Closing Date, Purchaser, at its sole option, exercised
within twenty-one (21) days of receiving notice of such
event, shall have the right to (a) terminate this Agreement
and obtain a refund of its Deposit; or (b) close, in which
event, if restoration has not been completed, the insurance
proceeds (including all rental abatement insurance
applicable to the period after the Closing) as well as any
unpaid claims or rights in connection with such casualty,
shall be assigned to Purchaser at the Closing or, if paid
to Seller prior to Closing, shall be credited at the
Closing, together with the amount of the deductible under
the applicable insurance policy, against the Purchase
Price. Purchaser shall have the right to participate in
the negotiations and settlement of any casualty-related
claim in the event Purchaser elects to proceed with
Closing.
12. Condemnation.
Seller agrees to give Purchaser written notice of any
action or proceeding instituted or pending, in eminent
domain or for condemnation affecting any part of the
Property, promptly after Seller's receipt thereof. If,
prior to the Closing Date, all or any part of the Property
is taken by condemnation or eminent domain proceeding or
other transfer in lieu thereof, this Agreement may be
terminated at the option of Purchaser by written notice to
Seller given within five (5) business days after Seller
gives Purchaser the notice of such condemnation or
conveyance in lieu thereof. If Purchaser elects not to
terminate this Agreement, then this Agreement shall remain
in full force and effect, and Seller shall at Closing
assign to Purchaser all rights of Seller to the
condemnation award, but there shall be no reduction in the
purchase price.
13. Indemnification 1
13.113.1 By Seller. Seller agrees to indemnify and
hold Purchaser harmless from and against all acts of Seller
with respect to:
13.1.1 subject to the provisions of Sections
16 and 26 hereof, any actual (but not consequential)
loss, liability or damage suffered or incurred by
Purchaser because any representation or warranty of
Seller contained in this Agreement is found to be
false in any material respect;
13.1.213.1.2 all reasonable costs and
expenses incurred by Purchaser in connection with any
action, suit, proceeding, demand, assessment or
judgment incident to any of the matters indemnified
against in this Section 23, in which Purchaser is the
prevailing party.
13.213.2 By Purchaser. Purchaser agrees to
indemnify and hold Seller harmless from and against:
13.2.113.2.1 subject to the provisions of
Section 26 hereof, any actual (but not consequential)
loss, liability or damage suffered or incurred by
Seller because any representation or warranty of
Purchaser contained in this Agreement is found to be
false in any material respect;
13.2.213.2.2 all reasonable costs and
expenses incurred by Seller in connection with any
action, suit, proceeding, demand, assessment or
judgment incident to any of the matters indemnified
against in this Section 23, in which Seller is the
prevailing party.
14. Default
14.1 Purchaser's Default. If Purchaser, when
otherwise obligated under this Agreement to do so, fails to
consummate the purchase and sale contemplated herein after
all conditions precedent to Purchaser's obligation to
consummate such transactions have been satisfied or waived
by Purchaser, the Deposit shall be delivered to Seller as
full and complete liquidated damages, as the exclusive and
sole right and remedy of Seller, whereupon this Agreement
shall terminate and neither party shall have any further
obligations or liabilities to any other party.
14.2 Seller's Default. If Seller through no action,
inaction or fault of Purchaser, has failed, refused, is
unable to consummate or if Seller has breached a
representation or warranty that prevents the consummation
of the purchase and sale contemplated herein by the Closing
Date, then unless such breach, failure, refusal or
inability is waived in writing by Purchaser, Escrow Agent
shall be required to return the Deposit to Purchaser and
(a) Purchaser may avail itself of any legal or equitable
rights (including, without limitation, the right of
specific performance and/or money damages which Purchaser
may have at law or in equity or under this Agreement), or
(b) Purchaser shall have the right, but not the obligation,
to extend the Closing Date for an additional period to
permit Seller to cure its default without the payment of
any further deposit, provided that if Purchaser extends the
Closing Date pursuant to this Section 14.2(b) and Seller
fails to close in accordance with the requirements of this
Agreement within such time, then Purchaser may exercise any
of its rights and remedies provided for in Section 14.2(a).
Purchaser shall be reimbursed for all expenses incurred,
including reasonable attorneys' fees, in connection with
any action brought under this Section 14.2.
15. Broker
Seller shall pay any and all brokerage commissions due
Block & Company, Inc. in connection with this transaction, which
payment shall be made pursuant to a separate agreement. Except as
provided above, the parties hereto agree and represent to each other
that no broker, agent or finder has been engaged on their behalf or
otherwise involved in this transaction and each party shall indemnify,
defend and hold the other harmless from and against the claims of any
other broker, agent, consultant of finder claiming to have acted on
behalf of such party in connection with this transaction or this
Agreement.
16. 16.[Intentionally Deleted]
17. Miscellaneous
17.117.1 Notices. Any and all notices, requests or
other communications hereunder shall be deemed to have been
duly given if in writing and if transmitted by hand
delivery with receipt therefor, by facsimile delivery (with
confirmation by hard copy), by overnight courier, or by
registered or certified mail, return receipt requested,
first class postage prepaid addressed as follows (or to
such new address as the addressee of such a communication
may have notified the sender thereof) (the date of such
notice shall be the date of actual delivery to the
recipient thereof):
To Seller: The Realty Associates Fund III, L.P.
TA Realty Corporation
45 Milk Street
Boston, Massachusetts 02109
Attn: Mr. Scott D. Freeman
With a copy to: Until May 26, 1995
Brownstein Zeidman and Lore
A Professional Corporation
1401 New York Avenue, N.W.
Suite 900
Washington, D.C. 20005
Attn: David M. Astrove, Esq.
Thereafter:
Bingham, Dana & Gould
1550 M Street, N.W.
12th Floor
Washington, D.C. 20005
Attn: David M. Astrove, Esq.
To Purchaser: Bedford Property Investors, Inc.
3658 Mt. Diablo Boulevard
Suite 210
Lafayette, California 94549
Attn: Mr. Robert E. Pester
17.2 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State
of Kansas.
17.3 Headings. The captions and headings herein are
for convenience and reference only and in no way define or
limit the scope or content of this Agreement or in any way
affect its provisions.
17.4 Effective Date. This Agreement shall be
effective upon execution hereof by both parties, which date
shall be deemed the Effective Date hereof.
17.5 Counterpart Copies. This Agreement may be
executed in two or more counterpart copies, all of which
counterparts shall have the same force and effect as if all
parties hereto had executed a single copy of this
Agreement.
17.6 Binding Effect. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and
their respective successors and assigns.
17.7 Assignment. Purchaser shall have the right to
assign its rights and interests to the Agreement to any
subsidiary or affiliated entity or to a third party in
which Purchaser or the principals thereof assert direct
control, provided that such assignee has financial
qualifications not less than those of the Purchaser and
Purchaser notifies Seller of such assignment.
17.8 Entire Agreement. This Agreement and the
Exhibits attached hereto contain the final and entire
agreement between the parties hereto with respect to the
sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings.
Purchaser, Seller and their agents shall not be bound by
any terms, conditions statements, warranties or
representations, oral or written, not contained herein. No
change or modifications to this Agreement shall be valid
unless the same is in writing and signed by the parties
hereto. No waiver of any of the provisions of this
Agreement shall be valid unless the same is in writing and
is signed by the party against with which it is sought to
be enforced.
17.9 Severability. If any one or more of the
provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
17.10 Survival. The provisions of this
Agreement and the representations and warranties herein
shall survive for three (3) years after the conveyance of
title and payment of the Purchase Price and shall not be
merged therein.
17.11 Confidentiality. The parties hereto
covenant and agree that they shall not communicate the
terms or any other aspect of this transaction including but
not limited to the due diligence materials prior to the
Closing with any person or entity other than the other
party and their respective agents and employees and
mortgagees, and shall treat the terms of this Agreement in
a confidential manner.
17.12 Agreement Not to Market. Seller agrees
that after the execution of this Agreement and prior to
termination or settlement hereunder, Seller shall take the
Property off the market and not solicit or accept any
offers nor engage in any discussions concerning the sale of
the Property other than the transaction contemplated
herein.
17.13 Limitation of Liability. In no event
shall any officer, director or employee of Purchaser or
Seller or their respective partners be personally liable
for any of the obligations under this Agreement or
otherwise.
17.14 Prevailing Party. Should either party
employ an attorney to enforce any of the provisions hereof
or to recover damages for the breach of this Agreement, the
non-prevailing party in any final judgment agrees to pay
the other party's reasonable expenses, including attorneys'
fees and expenses in or out of litigation and, if in
litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in connection therewith,
as determined by a court of competent jurisdiction.
17.15 Liability of Escrow Agent. The parties
acknowledge that the Escrow Agent shall be conclusively
entitled to rely, except as hereinafter set forth, upon a
certificate from Purchaser or Seller as to how the Deposit
should be disbursed. Any notice sent by Seller or
Purchaser (the "Notifying Party") to the Escrow Agent shall
be sent simultaneously to the other noticed parties
pursuant to Section 24 herein (the "Notice Parties"). If
the Notice Parties do not object to the Notifying Party's
notice to the Escrow Agent within ten days after the Notice
Party's receipt of the Notifying Party's certificate to the
Escrow Agent, the Escrow Agent shall be able to rely on the
same. If the Notice Parties send, within such ten days,
written notice to the Escrow Agent disputing the Notifying
Parties certificate, a dispute shall exist and the Escrow
Agent shall hold the Deposit as hereinafter provided. The
parties hereto hereby acknowledge that Escrow Agent shall
have no liability to any party on account of Escrow Agent's
failure to disburse the Deposit if a dispute shall have
arisen with respect to the propriety of such disbursement
and, in the event of any dispute as to who is entitled to
receive the Deposit, disburse them in accordance with the
final order of a court of competent jurisdiction, or to
deposit such funds with said court pending a final decision
of such controversy. The parties hereto further agree that
Escrow Agent shall not be liable for failure to any
depository and shall not be otherwise liable except in the
event of Escrow Agent's gross negligence or willful
misconduct. The Escrow Agent shall be reimbursed on an
equal basis by Purchaser and Seller for any reasonable
expenses incurred by the Escrow Agent arising from a
dispute with respect to the Deposit.
(SIGNATURES APPEAR ON FOLLOWING PAGE)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date or dates set forth below.
SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP LIMITED PARTNERSHIP,
a Delaware limited partnership, its general partner
WITNESS:
By: REALTY FUND III GP, INC.,
a Massachusetts corporation, its general partner
By: /s/Arthur I. Segel
Name: Arthur I. Segel
Its: President
DATE: June 6, 1995
PURCHASER:
ATTEST:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: /s/ Bob Pester
Name: Bob Pester
Its: Voce President
DATE: May 23, 1995
The undersigned party hereby executes this Agreement to evidence
its consent to serve as Escrow Agent in accordance with the terms of
this Agreement.
FIRST AMERICAN TITLE GUARANTY COMPANY
By: /s/John G. Wilson
<PAGE>
LIST OF EXHIBITS
EXHIBIT A - Legal Description
EXHIBIT B - Due Diligence Checklist
EXHIBIT C - Permitted Exceptions
EXHIBIT D - Existing Leases
EXHIBIT D-1 - Tenant Defaults
EXHIBIT D-2 - List of Brokerage Commissions
EXHIBIT D-3 - Rent Roll
EXHIBIT E - Pending Legal Action
EXHIBIT F - Environmental Reports
EXHIBIT G - List of Licenses and Permits
EXHIBIT H - Special Warranty Deed
EXHIBIT I - Form of Blanket Conveyance
EXHIBIT J - Form of Letter to Tenants
EXHIBIT K - Form of Seller's Reaffirmation of Representations and
Warranties
EXHIBIT L - Form of Tenant Estoppel Certificate
EXHIBIT M - List of Other Interested Parties
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
A tract of land in Block 5, PARK-LEN I INDUSTRIAL ESTATES, a
subdivision in the City of Lenexa, Johnson County, Kansas, more
particularly described as follows: Beginning at the Southwest corner
of said Block 5; thence North 00 degrees 30 minutes, 30 seconds East
on the West line, said Block 5 and the Easterly Right-of-Way line of
Lackman Road, a distance of 525.00 feet to the Northwest Corner, said
Block 5: thence South 90 degrees 00 minutes 00 seconds East on the
North line, said Block 5, a distance of 320.00 feet; thence South 00
degrees 30 minutes 30 seconds West, a distance of 525.00 feet to the
South line, said Block 5; thence North 90 degrees 00 minutes 00
seconds West on the South line, said Block 5 and the North Right-of-
Way line of 106th Street, a distance of 320.00 feet to the point of
beginning, according to the recorded plat thereof as filed in Plat
Book 26, at Page 10, filed February 21, 1964.
<PAGE>
EXHIBIT B
Due Diligence Documents
To Be Delivered By Seller
Which Are In The Possession Of Seller
Tenant Information (in possession of Seller)
1. Rent Roll completed to Purchaser's requirements, including sq.
ft., lease term, base and additional rent, expense stops and/or
passthroughs.
2. All leases and amendments thereto, including subleases.
3. List certified by Seller of all concessions made to tenants,
including free rent or reduced rent, above standard tenant
improvements, cash payments, moving allowances or takeover of
previous lease obligations.
4. Most recently available financial statements and credit reports
on any tenant with more than 10% of sq. ft. (or any other tenant
requested by Purchaser) and of any guarantors thereof (if
applicable).
5. Accounts receivable report as of the date of the Agreement and
monthly receivables reports for the prior 24 months.
6. Any letters of intent (executed or otherwise) with prospective
tenants.
7. Most recent leasing status report from leasing broker.
8. Standard form lease.
Operating Information (in possession of Seller)
1. Historical financials, including year end balance sheets and
income statements, for the period the Property has been owned by
the Seller, together with those financial statements provided by
Seller's predecessor in interest for the two prior years of
operation of the Property, about which Seller makes no
representation or warranty.
2. Year to date monthly operating statements certified by Seller.
3. Current operating and capital budgets, including comparison of
actual to budgeted, and an explanation of significant variances.
4. Listing of capital expenditures for the period the Property has
been owned by the Seller.
5. Copies of all service, maintenance, leasing, management or other
contracts.
6. Copies of real estate tax bills (including special assessments)
for the period the Property has been owned by the Seller.
Building Information (in possession of Seller)
1. Plans and specifications showing "as built" condition, with an
architect's certificate of the gross leasable area of the
Property.
2. All reports relating to the physical condition of the Property, to
the extent they exist and can be obtained by Seller, including
engineering, mechanical, roof, environmental and seismographic.
3. List of personal property to be transferred with the Property.
4. Copies of all warranty agreements concerning the Property.
Other Information in possession of Seller
1. Seller's most current title policy, reports or commitments,
including exceptions thereto.
2. All licenses, permits and approvals.
3. Evidence of compliance with all applicable laws, including zoning
regulations which are in the Seller's possession.
4. Certified boundary survey and title survey completed by a
registered surveyor, including a legal description and copies of
any title exceptions noted thereon.
5. Any market data (including rent and sale comparables) in Seller's
possession.
<PAGE>
EX HIBIT C
PE RMITTED EXCEPTIONS
1. Assessments and taxes for the current year and all subsequent
years.
2. The premises are within the following special tax district: JCWD
CAP - 1994 assessment $570.40.
3. Building setback lines and utility easements as shown on the
recorded plat, recorded in Plat Book 26, at Page 10.
4. Encroachment of concrete walk and curb over the utility easement
across the Northeast portion of the premises, as shown on the
Certificate of Survey prepared by Norman E. Holmes, Land Surveyor,
dated November 14, 1994.
5. Easement granted to Kansas City Power and Light Company as set
forth in instrument filed September 19, 1985, under Document No.
1557887, in Book 2224 at Page 421, over a Tract of land ten (10)
feet in width, the centerline of which is described as follows:
Beginning on the North line of Block 5, PARK-LEN 1 INDUSTRIAL
ESTATES, a subdivision of land in the City of Lenexa, Johnson
County, Kansas, at a point one hundred seventy-three (173) East of
the West line of said Block 5; thence South parallel with the West
line of said Block 5, a distance of forty five (45) feet.
6. Encroachment of asphalt parking area over the utility easements
across the North and East side of the premises, as shown on the
Certificate of Survey prepared by Norman E. Holmes, Land Surveyor,
dated November 14, 1994.
7. Railroad and utility easements granted in the dedication of the
recorded plat of Park-Len I (Plat Book 26, Page 10), over those
areas shown on said plat and designated as "Utility Easement
(U.E.)" and/or "Railway Easement (R. R. E.)."
8. Rights of tenants identified on Exhibit D or subsequently approved
by Purchaser in accordance with the Agreement.
<PAGE>
EX HIBIT D
EX ISTING LEASES
Direct Communications, Inc.
Midwest Seed Growers, Inc.
Thermal Craft Maintenance
Central Locating Service, Ltd.
Inter Innovations Lefebure
Executive Software Systems
Entertel, a Kansas Corp.
Alpha Microsystems
Key Communications, Inc.
Groundwater Technology, Inc.
Mediq Imaging Services, Inc.
Protection Systems
Network Technologies, Inc.
Accommodations by Apple
Laser Specialists, Inc.
Hy-Comp, Inc.
Total Copy
Life Priority
<PAGE>
EXHIBIT D-1
TENANT DEFAULTS
[To be provided on or before June 2, 1995]
<PAGE>
EXHIBIT D-2
LIST OF BROKERAGE COMMISSIONS
[To be provided on or before June 2, 1995]
<PAGE>
EXHIBIT D-3
RENT ROLL
[To be provided on or before June 2, 1995]
<PAGE>
EXHIBIT E
PENDING LEGAL ACTION
[To be provided on or before June 2, 1995]
<PAGE>
EXHIBIT F
ENVIRONMENTAL REPORTS
[Previously Delivered by Seller]
Lackman Business Center
No. 0063-978
<PAGE>
EXHIBIT G
LIST OF LICENSES AND PERMITS
[To be provided on or before June 2, 1995]
<PAGE>
EXHIBIT H
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS
THAT THE REALTY ASSOCIATES FUND III, L.P., a Delaware limited
partnership ("Grantor"), for and in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, has GRANTED,
BARGAINED, SOLD, and CONVEYED and by these presents does GRANT,
BARGAIN, SELL, AND CONVEY unto BEDFORD PROPERTY INVESTORS, INC., a
Maryland corporation ("Grantee") that certain tract or parcel of land
in the City of Lenexa, County of Johnson, State of Kansas, more
particularly described in Exhibit A attached hereto and incorporated
herein by this reference, together with all rights, titles, and
interests appurtenant thereto (such land and interests are hereinafter
collectively referred to as the "Property").
This Special Warranty Deed and the conveyance hereinabove set
forth is executed by Grantor and accepted by Grantee subject to the
matters described in Exhibit B attached hereto and incorporated herein
by this reference, to the extent the same are validly existing and
applicable to the Property (hereinafter referred to collectively as
the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular
the rights and appurtenances thereunto otherwise belonging, unto
Grantee, its successors and assigns forever, and Grantor does hereby
bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND
all and singular the title to the Property unto the said Grantee, its
successors and assigns against every person whomsoever lawfully
claiming or to claim the same or any part thereof, by through or under
Grantor but not otherwise subject only to the Permitted Encumbrances.
Grantee's address is: 3658 Mt. Diablo Boulevard
Suite 210
Lafayette, CA 94549
EXECUTED this the day of , 1995.
Subject to review for conformance with Kansas Law.
IN WITNESS WHEREOF Grantor has executed this Deed as of the day
and year first hereinabove written.
SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III
GP LIMITED PARTNERSHIP,
a Delaware limited partnership, its general partner
WITNESS:
By: REALTY FUND III GP, INC.,
a Massachusetts corporation its general partner
By:
Its:
DATE: , 1995
)
) ss:
)
I, a Notary Public in and for the jurisdiction aforesaid, do
hereby certify that , personally
appeared before me in said jurisdiction and acknowledged himself or
herself to be the of Realty Fund III GP, Inc., the
general partner of Realty Associates Fund III GP Limited Partnership,
the general partner of Grantor in the foregoing and annexed Special
Warranty Deed bearing date as of the day of ,
1995, who, being by me first duly sworn, acknowledged said instrument
to be the act and deed thereof, and that by virtue of the authority
conferred upon him, executed and delivered the same as such for the
purposes therein contained.
WITNESS my hand and official seal this day of
, 1995.
Notary Public
My Commission Expires: <PAGE>
EXHIBIT I
BLANKET CONVEYANCE
THIS BLANKET CONVEYANCE (the "Bill of Sale") is made as of the
day of , 1995 by: (i) THE REALTY ASSOCIATES FUND
III, L.P., a Delaware limited partnership ("Seller"), and (ii) BEDFORD
PROPERTY INVESTORS, INC., a Maryland corporation ("Purchaser").
KNOW ALL MEN BY THESE PRESENTS:
Concurrently with the execution and delivery hereof, pursuant to a
certain Agreement of Purchase and Sale dated ,
1995 (the "Purchase Agreement"), Seller is conveying to Purchaser all
of Seller's right, title and interest in and to the real property
described on Exhibit A attached hereto and made a part hereof (the
"Land") and in and to the building, parking areas and other structures
and improvements located on the Land (collectively, the
"Improvements") located in the County of Johnson, State of Kansas.
The Land and the Improvements are hereinafter sometimes collectively
referred to as the "Property".
It is the desire of Seller to hereby sell, assign, transfer,
convey, set-over and deliver to Purchaser all of Seller's right, title
and interest in and to the "Assigned Property" (hereinafter defined).
1. Bill of Sale and Assignment.
Seller does hereby sell, assign, transfer, set-over and deliver
unto Purchaser, its successors and assigns, with special warranty of
title, all right, title and interest of Seller in and to:
(a) all furniture, fixtures, equipment and other personal
property except items owned by tenants, which are now placed in,
attached to or used in connection with or in the operation of the
Property, but excluding all computer hardware, printers, software,
facsimile machine and art work located in the management office at
10536 W. 106th Street, Lenexa, Kansas;
(b) to the extent they may be transferred under applicable
law, all licenses, permits and authorizations, including, without
limitation, sewer rights and permits, presently issued in connection
with the operation of all or any part of the Property;
(c) to the extent they are assignable, all warranties, if
any, issued to Seller by any manufacturers and contractors in
connection with construction or installation of equipment included as
part of the Property;
(d) all service, supply and maintenance contracts (if any)
held by Seller with respect to the Property and its mechanical
equipment, elevators and other elements;
(e) all trade names, accounts receivable and general
intangibles relating to the Property; and
(f) all leases of all or any part of the Property.
TOGETHER with the immediate and continuing right to collect and
receive all of the rents, income, receipts, revenues, issues, profits,
deposits and proceeds now due or which may become due or to which
Seller may now or shall hereafter become entitled to make demand or
claim, arising or issuing from or out of any of the foregoing items
assigned or transferred by this Bill of Sale or from or out of the
Property or any part thereof, including, but not by way of limitation,
minimum rents, additional rents, tax and insurance contributions,
deficiency rents and liquidated damages following default, the premium
payable by any party upon the exercise of a cancellation privilege
originally provided for in any of the leases or contracts, and any
rights and claims of any kind which of the Seller may have against any
occupancy tenant under the leases or against any subtenants or
occupants of the Property or against any Party other than Seller under
the contracts; subject, however, to the rights of Seller set forth in
the Purchase Agreement to rents under the leases assigned hereby
attributable to the period prior to the date hereof.
TO HAVE AND TO HOLD the improvements, leases, contracts,
personalty, security deposits, proceeds, permits, warranties and
intangible property (collectively, the "Assigned Property") unto
Purchaser, its successors and assigns, forever.
2. Representation and Warranty.
Seller represents, covenants and warrants that Seller is the sole
and lawful owner of all of the Assigned Property and that the Assigned
Property is free and clear of all claims, liens or encumbrances
whatsoever except for the Permitted Exceptions (as defined in the
Purchase Agreement). Seller further represents, covenants and
warrants that Seller has the full right, power and authority to
execute this Bill of Sale.
3. No Mechanics' Liens.
Seller hereby affirms that there are no unpaid bills or claims for
labor performed or materials furnished to or for the benefit of the
Property for which mechanics' liens can be filed, and that there has
been no casualty loss or damage to, or pending condemnation of, any
part of the Property.
4. Further Assurances.
Seller agrees that Seller will make, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances,
assignments, notices of assignments, transfers and assurances as
Purchaser shall from time to time reasonably require, for the better
assuring, conveying, assigning, transferring and confirming unto
Purchaser the Property and Assigned Property, and the rights hereby
conveyed or assigned or intended now or hereafter to be conveyed or
assigned to Purchaser, and all other Property as is herein conveyed or
is to be conveyed pursuant to the Purchase Agreement, or for carrying
out the intention or facilitating the performance of the terms of this
Bill of Sale and the Purchase Agreement or registering or recording
this Bill of Sale.
5. Counterpart Copies.
This Bill of Sale may be executed in two or more counterpart
copies, all of which counterparts shall have the same force and effect
as if all parties hereto had executed a single copy of this Bill of
Sale.
IN WITNESS WHEREOF, the parties have caused this Bill of Sale to
be executed as of the date first written above.
SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP
LIMITED PARTNERSHIP,
a Delaware limited partnership, its general partner
By: REALTY FUND III GP, INC.,
a Massachusetts corporation its general partner
By:
Its:
DATE: , 199__
PURCHASER:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By:
Name:
Its:
DATE: , 199__
<PAGE>
EXHIBIT J
, 199__
Attention:
Dear :
We are pleased to advise you that the building in which your premises are
located at , has
been sold by to
effective as of ,
199__. Your lease agreement has been assigned to and accepted by
.
All future correspondence relating to your tenancy, as well as rent
checks and other charges, should be made payable and mailed to
, c/o
.
We look forward to working with you in the operation of this Property.
Very truly yours,
,
a
By:
Its:
<PAGE>
EXHIBIT K
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
THE REALTY ASSOCIATES FUND III, L.P., referred to as "Seller" under
that certain Agreement of Purchase and Sale dated ____________ _____,
1995, hereby represents and warrants that the Seller's representations
and warranties in such Agreement are true and correct as of the date
hereof, except as otherwise indicated herein.
Dated: , 1995
WITNESS: SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP LIMITED
PARTNERSHIP, a Delaware limited
partnership, its general partner
By: REALTY FUND III GP, INC., a
Massachusetts corporation, its
general partner
By:
Name:
Its:
<PAGE>
EXHIBIT K
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
BEDFORD PROPERTY INVESTORS, INC., referred to as "Purchaser" under
that certain Agreement of Purchase and Sale dated ________ ___, 1995,
hereby represents and warrants that the Purchaser's representations and
warranties in such Agreement are true and correct as of the date hereof,
except as otherwise indicated herein.
Dated: , 1995
WITNESS: PURCHASER:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By:
Name:
Its:<PAGE>
EXHIBIT L
TENANT ESTOPPEL CERTIFICATE
To: Bank of America National Trust
and Savings Association ("Bank")
Real Estate Industries Div. No. 8940
50 California Street, 11th Floor
San Francisco, California 94111
and
Bedford Property Investors, Inc.
3658 Mt. Diablo Blvd.
Lafayette, California
94549 ("Purchaser")
Re: Lease Dated: ,19
Current Landlord:
Current Tenant:
Building Located at:
Premises Square Feet: Approximately
("Tenant") hereby certifies to Bank and
Purchaser that as of , 1995:
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 the above referenced Landlord ("Landlord"), as
landlord. 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
[assigned/unassigned] parking spaces near the Building during the term
of the Lease.
(c) The term of the Lease commenced on , 19
, and will expire on , 19 , including any
presently exercised option or renewal term. Except as specified in
Paragraph(s) of the Lease, Tenant has no option or right to
renew, extend or cancel the Lease, or to lease additional space in the
Premises or the Building, or to use any parking.
(d) Tenant has no option or preferential right to purchase
all or any part of the Premises (or the land of which the Premises are
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
, 1995.
(f) Additional rent is payable under the Lease for (i)
operating, maintenance and repair expenses, (ii) property taxes, and
(iii) insurance premiums. Such additional rent has been paid in
accordance with Landlord's rendered bills through ,
1995. The base year amounts for additional rental items are as
follows: (1) operating, maintenance and repair expenses $
; (2) property taxes $ ; and (3) insurance premiums $
.
(g) Tenant has made no agreement with Landlord or any agent,
representative or employee of Landlord concerning free rent, partial
rent, rebate of rental payments or any other similar rent concession
that has any present or future effect or application, except as
expressly set forth in Paragraph(s) of the Lease (copy
attached).
(h) Landlord currently holds a security deposit in the amount
of $ which is to be applied by Landlord or returned to
Tenant in accordance with 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 Landlord with respect to the Premises, has not been modified,
changed, altered or amended and is in full force and effect in the
form attached as Exhibit A. There are no other agreements, written or
oral, which affect Tenant's occupancy 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 Landlord to date for
improvements to the Premises have been paid in full and all of
Landlord'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, other than Hazardous Substances used in the
ordinary and commercially reasonable course of Tenant's business in
compliance with all applicable laws. Tenant has no actual knowledge
that any Hazardous Substances is present, or has been used, generated,
released, discharged, stored or disposed of by any party, on, under,
in or about such Building or land.
7. Tenant hereby acknowledges that Purchaser intends to purchase
the property containing the Premises from Landlord and to encumber
said property with a Deed of Trust in favor of Bank. Tenant
acknowledges the right of Purchaser and Bank to rely upon the
statements and representations of Tenant contained in this Certificate
and further acknowledges that such purchase of the property by
Purchaser and any loan secured by any such Deed of Trust or further
deeds of trust in favor of Bank will be made and entered into inn
material reliance on this Certificate.
8. Tenant hereby agrees to furnish Bank with such other and
further estoppels as Bank may reasonably request.
By:
Name:
Title:
[Attach Exhibit A -COMPLETE COPY OF LEASE AND ANY MODIFICATIONS,
AMENDMENTS, SUPPLEMENTS, SIDE LETTERS, ADDENDA AND RIDERS]
<PAGE>
EXHIBIT 10.3
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
THE REALTY ASSOCIATES FUND III, L.P.
("SELLER")
AND
BEDFORD PROPERTY INVES TORS, INC.
("PURCHASER")
August ____,1995
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made and
entered into as of the
day of August, 1995, by and between THE REALTY ASSOCIATES FUND
III, L.P., a Delaware limited partnership (hereinafter referred to as
"Seller") and Bedford Property Investors, Inc., a Maryland corporation, its
successors and assigns (hereinafter referred to as "Purchaser").
R E C I T A L S
A. Seller is the owner in fee simple of those certain properties
commonly known as 99th Street Business Park located at 10035-10055
Lakeview Avenue, and 9724 Legler Road, in Lenexa, Johnson County,
Kansas, more particularly described in Exhibits A-1 and A-2 attached
hereto and incorporated herein by this reference, together with all
easements, licenses, covenants and other rights appurtenant to said
property and all right, title and interest of Seller in and to any
land lying in the bed of any street, road, avenue or alley, open or
closed, in front of or adjoining said property and to the center line
thereof (collectively, the "Land"), the two (2) warehouse office
building(s) containing in the aggregate approximately Forty-Eight
Thousand Four Hundred Ninety (48,490) square feet (the "Buildings"),
and other improvements located thereon (the Buildings and such other
improvements being hereinafter collectively referred to as the
"Improvements"), together with all of the Seller's right, title and
interest in and to the following (the "Personalty"):
(i) all furniture, fixtures, equipment and other personal
property, which are now, or may hereafter prior to the Closing Date
(as hereinafter defined) be placed in, attached to or used in
connection with or in the operation of the Land and the Improvements;
(ii) to the extent they may be transferred under
applicable law, all licenses, permits and authorizations, including,
without limitation, sewer rights and permits, presently issued in
connection with the operation of all or any part of the Land and the
Improvements or necessary to operate said property as it is presently
being operated;
(iii) all warranties, if any, issued to Seller by any
manufacturers and contractors in connection with construction or
installation of equipment located in or included as part of the
Improvements;
(iv) to the extent assignable and to be assigned
hereunder to Purchaser at Closing (as hereinafter defined), all
service, supply and maintenance contracts (if any) held by Seller with
respect to the operation of the Land and the Improvements therein,
including any mechanical equipment, elevators, roof and other
elements of the Improvements;
(v) all trade names and general intangibles relating to the
Land, the Improvements and any item of Personalty; and
(vi) all leases and security deposits thereunder covering
all or any part of the Land and Improvements.
The Land, the Improvements and the Personalty are collectively
referred to herein as the "Property."
B. Purchaser desires to purchase the Property from Seller and
Seller desires to sell, transfer and assign the same to Purchaser.
NOW, THEREFORE, for and in consideration of the recitals, the
mutual promises hereinafter set forth and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale
Seller hereby agrees to sell, assign, transfer and
deliver to Purchaser, and Purchaser hereby agrees to purchase, acquire
and accept from Seller the Property upon the terms and conditions
herein set forth.
2. Purchase Price
The purchase price for the Property shall be Two Million Six
Hundred Eighty-Five Thousand Dollars ($2,685,000.00) (the "Purchase
Price"), as may be adjusted pursuant to the terms of this Agreement.
The Purchase Price shall be paid at closing in immediately available
funds.
3. Deposit
3.1 Deposit with Escrow Agent. Upon execution hereof,
Purchaser has or shall deposit Twenty-Five Thousand Dollars
($25,000.00) (the "Deposit") with First American Title
Guaranty Company (the "Escrow Agent"), in the form of cash,
or a check payable to the order of Escrow Agent, the receipt
of which is hereby acknowledged by Escrow Agent's execution
hereof.
3.2 Application of Deposit. The Deposit shall be held
in an interest-bearing escrow account by Escrow Agent until
(i) Closing (as defined in Section 4 occurs under this
Agreement), in which event the Deposit, shall be paid to
Seller as a credit to the Purchase Price, or (ii) this
Agreement has been terminated (for reasons other than default
of Purchaser hereunder), in which event the Deposit will be
returned to Purchaser; provided, however, that if termination
of this Agreement is due to Purchaser's default under any
provision hereof, the entire Deposit shall be delivered
promptly to Seller, whereupon Purchaser shall be relieved of
all liability under this Agreement. The parties expressly
agree that Seller's actual damages in the event of a
termination of this Agreement due to Purchaser's default
would be extremely difficult and impracticable to ascertain
and that the amount of the Deposit represents the parties'
reasonable estimate of such damages and shall be deemed full,
complete and liquidated damages to Seller for such default.
Other than payment of the Deposit, Seller shall have no other
remedy for any default by Purchaser.
4. Closing
4.1 Closing Date. Subject to the conditions herein,
including but not limited to those specified in Section 3
hereof, the closing of the purchase and sale of the Property
(the "Closing") shall be held at the offices of Bingham, Dana
& Gould, 1550 M Street, N.W., 12th Floor, Washington, D.C.
20005, or at such other place agreed to by Seller and
Purchaser, on a date (the "Closing Date") designated by
Purchaser on three (3) business days' prior written notice to
Seller following the expiration of the Feasibility Period, or
such earlier end of the Feasibility Period by written notice
from Purchaser to Seller in accordance with Section 6.2
hereof, but in no event earlier than September 15, 1995, and
in no event later than thirty (30) days after expiration of
the Feasibility Period (the "Outside Closing Date"), except
if the Closing is extended as expressly permitted by Section
7.3 of this Agreement. If, despite exercise of a party's
diligence and good faith hereunder, the Closing shall not be
held by the Outside Closing Date, either party may terminate
this Agreement.
4.2 Concurrent Closings. Notwithstanding anything to
the contrary in this Agreement, unless said condition is
otherwise waived in writing by Purchaser, the Closing shall
occur concurrently with the closing of the sale by ICMPI,
Inc. ("ICMPI"), a wholly owned subsidiary of Purchaser, to
Seller of that certain improved real property located at
9242-9250 Bond Street, Overland Park, Kansas in accordance
with the terms of that certain Agreement of Purchase and Sale
entered into as of even date herewith between ICMPI and
Seller, (the "Related Contract"). If the Related Contract is
terminated for any reason other than a default by ICMPI, as
Seller thereunder, such termination shall be deemed a failure
of a condition precedent to the Closing and Purchaser shall
have the right to terminate this Agreement and to the return
of the Deposit.
4.3 Extension of Closing Date. Notwithstanding the
foregoing, the Purchaser shall have the right to extend the
Outside Closing Date for an additional thirty (30) day period
upon written notice to Seller of such election, provided that
Purchaser deposits an additional Fifty Thousand Dollars
($50,000.00) with Escrow Agent which shall become a part of
the Deposit and shall be held by Escrow Agent in accordance
with the terms of Section 3.2 hereof.
5. Prorations and Closing Costs
5.1 Prorations In General. All revenues and expenses of
the Property shall be prorated and apportioned as of the date
set forth in Section 5.2 such that the Seller shall bear all
expenses with respect to the Property and shall have the
benefit of all revenues with respect to the Property through
the Adjustment Date, and Purchaser shall bear all expenses
and have the benefit of all income with respect to the
Property after the Adjustment Date. Any revenue or expense
amount which cannot be ascertained with certainty as of the
Adjustment Date shall be prorated on the basis of the
parties' reasonable estimates of such amount and shall be
subject to a final proration thirty days after the Closing
Date or as soon thereafter as the precise amount can be
ascertained.
5.2 Adjustment Date. Except as otherwise set forth
herein, all items to be prorated pursuant to this Section 5
shall be prorated as of midnight of the day immediately
preceding the Closing Date (except that if the Purchase Price
is not disbursed to or for the benefit of Seller on or before
11:00 a.m. Eastern Time on the Closing Date, such adjustments
shall be made as of midnight of the day immediately preceding
the date on which the Purchase Price is disbursed prior to
11:00 a.m. (the day and time as of which such adjustment
shall be made is herein referred to as the "Adjustment
Date"). Nothing contained herein shall be deemed to relieve
Purchaser of the obligation to deposit the Purchase Price
with the Title Company (as hereinafter defined) on the
Closing Date.
5.3 Additional Provisions. The following additional
provisions shall apply with respect to the prorations of
revenue and expense provided in Section 5.1 hereof:
5.3.1 Taxes. Real estate and personal
Property taxes and assessments for the year in which
Closing is held shall be prorated on the basis of a
three hundred sixty-five (365) day year (with such
real estate taxes to be adjusted according to the
Certificate of Taxes issued by the appropriate
authorities of the appropriate jurisdiction). If, at
the time of Closing, the Property or any part thereof
shall be or shall have been affected by assessments
which are or may become payable in annual installments
or are then a charge or lien (such as, but not limited
to, front foot benefit charges), then for the purposes
of this Agreement the installment for the current year
shall be adjusted in accordance with Section 5.2.
5.3.2 Insurance. There shall be no
proration of Seller's insurance premiums or assignment
of Seller's insurance policies and Seller shall cancel
all of its existing policies as of the Closing Date.
Purchaser shall be obligated (at its own election) to
obtain any replacement policies.
5.3.3 Utilities. Prior to Closing,
Purchaser and Seller shall notify all public and
private utilities providing services to the Property
of the prospective change in ownership and direct that
all future billings be made to Purchaser or its
designee, at a specified address, with no interruption
of service. Purchaser and Seller hereby acknowledge
and agree that the amounts of all telephone, electric,
sewer, water and other utility bills, trash removal
bills, janitorial and maintenance service bills and
all other operating expenses relating to the Property
and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing,
if possible, or shall be paid thereafter by Seller or
adjusted between Purchaser and Seller immediately
after the same have been determined. Seller shall
cause all utility meters to be read as of the Closing
Date. Seller shall also attempt to obtain from the
provider of same, all other service statements and
bills of account adjusted as of the Closing Date.
5.3.4 Rents Collected by Seller Prior to
Closing. Rents actually collected by Seller prior to
Closing relating to the calendar month during which
the Closing takes place shall be prorated as of the
Adjustment Date.
5.3.5 Rents Collected by Purchaser After
Closing. During the period after the Closing,
Purchaser shall deliver to Seller any and all rents
accrued but uncollected as of the Closing Date to the
extent subsequently collected by Purchaser after
deduction of reasonable third party out-of-pocket
collection charges actually incurred by Purchaser;
provided, however, that Purchaser shall apply rents
received after Closing first to payment of current
rents and thereafter to rents accrued but unpaid as of
the Closing Date. For a period of six (6) months
after the Closing Date, Purchaser shall use reasonably
diligent efforts to collect all rents which are
delinquent at the Closing Date; to the extent that
amounts remain unpaid to Seller after such six (6)
month period, then Seller shall have the right to sue
to collect same, but in no event may the Seller seek
to evict any tenant or terminate any lease. Seller
shall give Purchaser notice of any actions or
proceedings relating to collection of delinquent
rents. Purchaser will cooperate with the Seller in all
reasonable efforts to collect such rent and other
amounts due. Nothing in this paragraph shall prohibit
the Seller from initiating any action prior to the
Closing Date against any tenant which shall then be in
default of any Lease, provided that notice of such
action shall be furnished to the Purchaser; provided,
however, Seller hereby agrees that Seller shall not
institute eviction proceedings against any tenant
after the end of the Feasibility Period without the
prior consent of Purchaser.
5.3.6 CAM Charges. If, and to the extent
the Leases require that tenants pay as additional rent
taxes, common area expenses, utilities, maintenance
and additional operating expenses of any nature
(collectively, "Operating Expenses"), such Operating
Expenses shall not be prorated hereunder. After
Closing, Purchaser shall send customary statements for
reimbursement of Operating Expenses to tenants under
the Leases after consulting with Seller with respect
to appropriate amounts due therefor and shall remit to
Seller, upon receipt, Seller's prorated share thereof,
if any, by allocating to Seller the product of the
apportionable item for the entire billing period
multiplied by a fraction, the numerator of which is
the number of days within the specified billing period
which occur before the Adjustment Date and the
denominator of which is the number of days in the
specified billing period.
5.3.7 Security Deposits.
5.3.7.1 At the Closing, Seller shall
furnish Purchaser with a schedule setting forth
all security deposits which have been
theretofore deposited with Seller or its
predecessors in interest by tenants, to the
extent known and actually received by Seller;
and Seller shall credit Purchaser with the
aggregate amount of such deposits, together with
all interest, if any, which is required by the
terms of the applicable lease or by statute,
earned thereon and required to be paid to
tenants.
5.3.7.2 If Seller is holding letters of
credit in lieu of the deposits, then, at the
Closing, Seller shall assign such letters of
credit to Purchaser to the extent that such
letters of credit are assignable, or if not
assignable shall cause to have such letters of
credit re-issued in favor of Purchaser.
5.3.8 Leasing Commissions. On or before
the Closing Date, Seller shall pay or cause to be paid
(or there shall be escrowed at Closing) all leasing
commissions (except as hereinafter provided) which are
payable with respect to Leases executed prior to the
date hereof, whether the same are due on or prior to
the Closing Date or payable in installments subsequent
thereto and including any portion thereof due upon any
renewals of any such Lease or options to lease
additional space but only if such renewal or
additional space option commences prior to the date of
this Agreement. Purchaser shall assume the payment of
all leasing commissions which may hereafter become due
with respect to (i) any renewals of any Leases or
options to lease additional space under any Leases if
such renewals or additional space options are
exercised and commence or arise after the date of this
Agreement, and (ii) any Leases hereinafter executed
prior to the Closing with Purchaser's consent.
5.4 Payment of Adjustments. Either party owing the
other party a sum of money based upon adjustments made
after the Adjustment Date shall promptly pay that sum that
the other party within ten (10) days after the parties
mutually agree upon the amount of the post-Closing
adjustment.
5.5 Closing Costs. All transfer taxes and any State
or county documentary stamps or transfer taxes on the deed
and escrow fees shall be paid 50% by Seller and 50% by
Purchaser. Seller shall pay all recording fees (including
recording costs in connection with any release documents)
and shall also pay title insurance premiums for an ALTA
Owner's Form (1992) title policy; provided, however, to the
extent Purchaser requires particular endorsements to title
or special title coverage, Purchaser shall pay such
additional premiums. Purchaser shall pay survey costs.
Each party shall be responsible for its own attorneys'
fees.
6. Purchaser's Right of Inspection; Feasibility Period
6.1 Purchaser's Right of Inspection. Purchaser shall have
the right, at its own risk, cost and expense, during normal
business hours and at any date or dates prior to Closing, to
enter, or cause its agents or representatives to enter upon the
Property for the purpose of making surveys or other tests, test
borings, inspections, investigations, architectural, economic,
environmental and other studies of the Property as Purchaser may
deem desirable; provided, however, that such access shall be
subject to the Leases and Purchaser shall provide Seller with at
least forty-eight (48) hours notice prior to entering the
Buildings for such purposes and at least twenty-four (24) hours
notice prior to entering the Property for any other activity.
In addition, Purchaser may make investigations and inspections
that require exposure of structural and mechanical elements of
the Improvements and the taking of soil and water samples from
the Property. The Purchaser shall give Seller reasonable prior
notice of its intention to conduct any invasive testing,
inspections or investigations and Seller reserves the right to
have a representative present, and to reasonably approve the
time of such invasive testing. Subject to the provisions of
Section 17.11, Purchaser shall have complete access to all
documentation, agreements and other information in the
possession of Seller related to the ownership, use and operation
of the Property, and shall have the right to make copies of such
documentation at its sole cost and expense. In addition,
Purchaser shall have the right to cause a Phase I and, if
warranted or desirable and consented to by Seller, a Phase II -
Environmental Study of the Property to be performed during the
Feasibility Period. In no event shall Seller be obligated to
perform any remediation or repairs as a result of Purchaser's
investigations. Except as set forth above, Purchaser shall not
make any physical alterations to the Improvements, and entry by
Purchaser onto the Property shall not unreasonably interfere
with the tenants or management of the Property. Purchaser shall
have the right to interview the tenants only in the presence of
representatives of Seller.
Purchaser shall be responsible, at the Purchaser's sole
expense, for repairing any damage to the Property caused by the
making of such inspections, investigations, samplings, studies
and tests and the Purchaser hereby indemnifies and agrees to
hold harmless the Seller against any loss or damage, or claim
(including reasonable attorneys' fees and court costs in the
defense of the preceding), resulting from the Purchaser (or the
Purchaser's agents, employees, invitees, or independent
contractors) entering onto the Property or the conducting of
activities thereof. The provisions of this sentence shall
survive the termination of this Agreement for a period of three
(3) years and shall be fully enforceable notwithstanding such
termination.
6.2 Feasibility Period. The feasibility period shall
commence upon the date on which this Agreement is fully executed
by Seller and Purchaser (or the later date on which any of said
parties executes this Agreement if the parties do not execute
this Agreement simultaneously) (the "Effective Date"), and shall
terminate at 5:00 p.m. Eastern Time forty-five (45) days
thereafter (the "Feasibility Period"). If, prior to the
termination of the Feasibility Period, Purchaser gives Seller
written notification (the "Termination Notice") (time being of
the essence), that Purchaser elects not to consummate the
purchase of the Property in accordance with this Agreement, then
Purchaser and Seller acknowledge and agree that this Agreement
shall be conclusively deemed to be terminated and this Agreement
shall be of no further force and effect and Purchaser shall,
within two days thereof, return the originals of all documents
and materials (and all copies) which the Seller has produced
pursuant to this Agreement to the Seller and at such time by
doing so, Purchaser shall have represented that such tender be
complete and thorough. The Purchaser shall have the absolute
right, in its sole discretion, to determine whether to give the
Termination Notice. In the event the Termination Notice is
given, neither party shall have further liability to the other
under this Agreement. If Purchaser elects not to, or fails
timely to, give the Termination Notice, then this Agreement
shall remain in full force and effect. Purchaser may shorten
the Feasibility Period by providing Seller written notice of the
date on which the Feasibility Period shall end.
6.3 Due Diligence Materials. Purchaser hereby
acknowledges receipt of copies of all the documents and items
listed on Exhibit B attached hereto and incorporated herein. In
addition, Seller shall provide Purchaser with such other
reasonable documentation, agreements and other information in
the possession of Seller relating solely to the ownership, use
and operation of the Property as Purchaser reasonably requests.
6.4 Continued Right to Access. In the event Purchaser
does not terminate this Agreement as provided in Section 6.2
during the Feasibility Period, Purchaser and/or its designees
shall have the continued right through the Closing Date to
examine and review all such data and financial information,
inspect the premises, survey and make other tests and analyses
as it deems necessary or desirable, subject to the indemnity
provisions of Section 6.1 above. Notwithstanding any
examinations, inspections, surveys or tests, Purchaser shall be
entitled to the benefit of all covenants and warranties of
Seller contained in this Agreement and, subject to Sections 8.2
and 17.10, said review, inspection, survey and tests and failure
to terminate shall not be a waiver or relinquishment of any
covenant or warranty of or by Seller.
6.5 Lease. Purchaser hereby acknowledges that Seller has
executed a lease with Sensormatic for certain premises at the
Property. Seller agrees that in the event either (i) the tenant
improvement work in connection with the Sensormatic lease has
not been completed and paid for by Seller, or (ii) the
applicable leasing commissions have not been paid, Seller shall
deposit with Escrow Agent at Closing an amount equal to the
estimated costs of completion of the tenant improvements and
leasing commissions to be held in escrow and disbursed pursuant
to the terms of the Escrow Agreement, as defined in Section
9.10, to be executed and delivered to Escrow Agent at Closing.
7. Title
7.1 Condition of Title. Title to the Land and the
Improvements shall, as a condition of Closing of Purchaser, be
indefeasible, merchantable and marketable, good of record and in
fact, and insurable without exception at standard rates by the
Title Company (as hereinafter defined), free of all interests,
encumbrances, liens, judgments, tenancies and covenants,
excepting only the following permitted exceptions ("Permitted
Exceptions") (i) the lien of real estate taxes and special
assessments not yet due and payable; (ii) the Leases described
in Exhibit D and such other leases as may be approved by
Purchaser in accordance with the provisions of Section 7.4
below; (iii) such other matters as are set forth in Exhibit C
attached hereto and made a part hereof.
7.2 Title Commitment. Purchaser shall promptly order a
title insurance commitment (1987 ALTA Form "B" or the
equivalent) (the "Commitment") issued by a national title
company chosen by Purchaser (the "Title Company") agreeing to
issue to Purchaser upon recording of the Deed (as hereinafter
defined), an ALTA Owners' Form (1992) policy of title insurance
("Title Policy") in the amount of the Purchase Price showing
title to the Land and Improvements vested in Purchaser, subject
only to the Permitted Exceptions, and such other title
exceptions as Purchaser has agreed to accept or is deemed to
have accepted pursuant to this Agreement.
7.3 Failure of Title. If the Seller cannot convey title as
set forth in Section 7.1, at the option of the Purchaser, this
Agreement may be terminated within three (3) Business Days after
the Outside Closing Date unless the title defect(s) can be
readily remedied by legal or other action. Subject to the
provisions of the last sentence of this Section 7.3, if legal or
other action is necessary to cure title defects, Seller may take
such action at its own expense whereupon the time for Closing
shall be extended for up to thirty (30) days. In the event such
title encumbrance is not cured within said additional thirty
(30) days, the Purchaser shall have the option, to be elected
within ten (10) days after expiration of such thirty (30) day
period, to (i) terminate this Agreement in which event the
Escrow Agent shall deliver the Deposit to Purchaser, or (ii)
purchase the Property without reduction in Purchase Price.
Notwithstanding the foregoing, in the event such title
encumbrance was caused, created or permitted by the act or
omission of Seller, Seller must take affirmative action to cure
such title encumbrance and the failure of Seller to do so shall
constitute a breach of this Agreement except that Seller shall
have no obligation to spend more than One Hundred Thousand
Dollars ($100,000) in cure of the same.
7.4 New Leases. Except as otherwise set forth in Section
6.5, Seller covenants and agrees not to hereafter enter into any
lease (including any renewal, expansion or modification of an
existing Lease) of all or any portion of the Property (a "Lease
Transaction") without, in each instance, the prior written
consent of Purchaser, which consent shall be deemed given unless
Purchaser notifies Seller to the contrary within two (2)
business days after receipt of all information reasonably
required by Purchaser in order to evaluate the proposed Lease
Transaction; provided, however, that the exercise by any
existing tenant under a Lease in effect as of the date of this
Agreement of any option contained in such tenant's Lease shall
not be deemed a Lease Transaction prohibited hereby.
7.5 Affidavits to Title Company. Upon request by
Purchaser, Seller shall execute such reasonable and customary
affidavits, indemnities, and other similar type instruments as
are required reasonably by Title Company for the elimination of
any standard or pre-printed exceptions in Purchaser's final
Title Policy, including, without limitation, the exception for
unfiled mechanics' liens and parties in possession.
7.6 Survey. Prior to the execution of this Agreement,
Seller has delivered to Purchaser a copy of that certain Land
Title Survey entitled "Part of Block 5, Park-Len I Industrial
Estates in the City of Lenexa, Johnson County, Kansas" prepared
by Norman E. Holmes, Job No. 94-115, dated November 14, 1994
(the "Survey"). Purchaser shall have the right to cause an
update of the Survey to be prepared for its account and benefit,
at its sole cost and expense.
8. Representations and Warranties of The Seller
8.1 By Seller. Subject to the provisions of Section 8.2
hereof, Seller hereby represents and covenants to Purchaser that
each of the following representations and warranties is true and
correct as of the date of execution of this Agreement and shall
be true and correct as of the Closing Date.
8.1.1 Authority. Seller has full and absolute
power and authority to enter into this Agreement and all
ancillary documents delivered pursuant hereto, and to
assume and perform all of its obligations hereunder and
thereunder. The execution and delivery of this Agreement
and the documents required to be executed and delivered by
Seller in connection with Closing and the performance by
the Seller of its obligations hereunder and thereunder have
been duly authorized by all requisite action and no further
action or approval is required in order to constitute this
Agreement and the transactions contemplated hereby as a
binding and enforceable obligation of the Seller.
8.1.2 Title. To the best of Seller's knowledge,
Seller is the legal and equitable owner of the Land and the
Building, with full right to convey the Land, the Building,
the Leases and the security deposits currently being held
by Seller. Seller makes no representation or warranty
concerning title to the Personalty.
8.1.3 Legal Action Against Seller. Seller has
received no written notice of any judgments, orders, or
decrees of any kind against Seller unpaid or unsatisfied of
record, or of any legal action, suit or other legal or
administrative proceeding pending before any court or
administrative agency relating to the Property which would
adversely affect the Property for its present use, or of
any state of facts which might result in any such action,
suit or other proceeding. To the best of Seller's
knowledge, there is no threatened legal action suit or
other legal or administrative proceeding before any court
or administrative agency relating to the Property which
would adversely affect the Property for its present use.
8.1.4 Bankruptcy or Debt of Seller. Seller is
not in the hands of a receiver and has not committed an act
of bankruptcy; and to the best of Seller's knowledge and
belief, there are no due but unpaid income, Property or
franchise taxes of Seller which constitutes a lien against
the Property.
8.1.5 Compliance with Existing Law. Seller has
received no written notice of any violations of any law,
municipal or other governmental ordinances, orders, rules,
regulations or requirements, or of any restrictive
covenants against or affecting the Property, or any part
thereof, nor is Seller aware of any facts which might
result in such violation. To the best of Seller's
knowledge and belief, the execution of this Agreement by
Seller, and the consummation of the transaction described
herein, does not and will not cause Seller to be in
violation of any such law, ordinance, order, or requirement
or of any agreement or contract to which Seller is a party.
8.1.6 Condemnation. To the best of Seller's
knowledge and belief, but without making any inquiry, there
are no pending or contemplated condemnation proceedings
affecting the Property, or any part thereof nor is Seller
aware of any such contemplated proceedings. Seller has not
made any commitment to any board, bureau, commission,
department or body of any municipal, county, state or
federal governmental unit or any subdivision thereof,
having jurisdiction over the Property or the use or
improvements thereto ("Governmental Authority") or to any
other third party to dedicate or grant any portion of the
Property for roads, easements, rights-of-way, park lands or
for any other public purposes, to construct any
recreational facilities, to impose any restrictions or
incur any other expense or obligation relating to the
Property, except as may be set forth in the commitment or
on Exhibit E attached hereto and incorporated herein by
reference.
8.1.7 Violations and Proffers. Seller has not
proffered any improvements or alterations to the Property
to any Governmental Authority, nor has Seller entered into
any other form of binding commitment relating to the zoning
of the Property with any Governmental Authority.
8.1.8 The Property. (i) To the best of Seller's
knowledge and belief, the Improvements are in good
operating condition and repair, subject only to ordinary
wear and tear, (ii) to the best of Seller's knowledge and
belief, there are no existing material structural defects
in the Improvements constituting a part of the Property,
and all plumbing equipment, heating, ventilating and
air-conditioning equipment, the electric wiring and
fixtures, and the water and sewage systems presently in the
Property are in good working order and condition, (iii) to
the best of Seller's knowledge and belief except as may
otherwise be disclosed on the title information or survey
delivered by Seller to Purchaser, the Buildings and other
Improvements (including the parking areas) do not in any
way encroach on any adjoining Property (excluding any lots
described in Exhibit A), (iv) except as otherwise disclosed
in the title information delivered by Seller to Purchaser,
all public utility connections located at or on the
Property have been paid for and all sewer, water and other
utilities required for the operation of the Property enter
through adjoining public streets or through valid recorded
easements across adjoining private lands, and (v) to the
best of Seller's knowledge and belief, all parking areas
located within the perimeter of the Property are private
and have not been dedicated to any Governmental Authority.
8.1.9 Liens. To the best of Seller's knowledge
and belief, there are no mechanics' liens against the
Property; no claims for labor, services, profit or material
furnished for constructing, repairing or improving the
same, nor does Seller anticipate any such claims, except in
the normal course of Seller's business, which will be paid
as of the Closing Date or for which the Purchase Price
shall be adjusted at Closing; no liens have been filed; and
no petitions, actions or suits to establish or enforce any
such liens have been filed, nor has Seller received any
notice of any intention to do so.
8.1.10 Asbestos, PCBs, Hazardous Materials. To
the best of Seller's knowledge and belief, but without
having undertaken any study, other than environmental
assessment reports (the "Environmental Reports") prepared
by McLaren/Hart Environmental Engineering and Law
Engineering Inc. which will be provided to Purchaser, there
is no presence of any Hazardous Waste, Hazardous Substance
or Toxic Substance (including, without limitation,
asbestos) (collectively "Hazardous Wastes") on or at the
Property, except as may be disclosed in the Environmental
Reports or used by tenants in the ordinary course of
business in accordance with all applicable law, rules and
regulations. For purposes of this Agreement, "Hazardous
Waste", "Hazardous substances", and "Toxic Substances"
means, without limitation: (i) those substances included
within the definitions of any one or more of the terms
"hazardous substances," "hazardous materials," and "toxic
substances," in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), as
amended, 42 U.S.C. Sec. 9061 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C.
Sec. 6901 et seq., and the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. 1801 et seq.,
and in the regulations promulgated pursuant to said laws;
(ii) those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and
amendments thereto) or by the Environmental Protection
Agency (or any successor agency) as hazardous substances
(40 CFR Part 302 and amendments thereto); (iii) such other
substances, materials and wastes as are regulated under
applicable local, state or federal laws, or which are
classified as hazardous or toxic under federal, state or
local laws or regulations; and (iv) any materials, wastes
or substances that are (a) petroleum; (b) friable asbestos;
(c) polychlorinated biphenyls; (d) designated as a
"Hazardous Substance" pursuant to Section 311 of the Clean
Water Act, 13 U.S.C. 1321 et seq. (33 U.S.C. 1321) or
designated as "toxic pollutants" subject to Chapter 26 of
the Clean Water Act pursuant to 307 of the Clean Water Act
(33 U.S.C. 1317); (e) flammable explosives; or (f)
radioactive materials, and all regulations promulgated
thereunder. To the best of Seller's knowledge and belief,
but without having made a review of the records of any
Governmental authority, the Property has never been used
for industrial purposes or for the storage, treatment or
disposal of hazardous wastes or materials nor has the
Property ever been listed by any governmental agency as
containing any oil, hazardous waste, hazardous material,
chemical waste or other toxic substance.
8.1.11 Leases. Exhibit D contains a complete and
accurate description of all leases and tenancies and all
amendments or extensions thereto, (collectively, the
"Leases") affecting the Property as of the date of this
Agreement (such exhibit to list all Leases; the monthly
rent each tenant is currently paying; the security deposit
for each tenant; and the expiration date of each Lease).
To the best of Seller's knowledge and belief, each of the
Leases described on Exhibit D is in full force and effect
in accordance with its terms and has not been modified,
amended or extended except as set forth therein, and is
assignable by the Seller to the Purchaser without the need
for the consent of any party. The monthly or annual rent
listed opposite the name of each tenant on Exhibit D is the
current rental due and is the amount actually billed to
each of the tenants for the month immediately preceding the
date of this Agreement. Except as otherwise set forth on
Exhibit D-1, and except as otherwise set forth in Section
9.10 herein, none of the tenants is in default (beyond any
applicable grace period provided by such tenant's Lease) in
the payment of any rent due under its Lease or, to the
Seller's knowledge, in the performance or observance of any
material covenant or condition to be kept, observed or
performed by it under its Lease. To the best of Seller's
knowledge and belief, none of the tenants is entitled to
any rebate, concession, deduction or offset, except as set
forth in its Lease, or has paid any rent or other charge of
any nature for a period of more than thirty (30) days in
advance.
8.1.12 Lease Obligations. Seller has fully
performed all of Seller's obligations under the Leases
that are or shall be required to be performed prior to the
Closing Date and all tenant improvement construction work
completed by Seller has been accepted by the tenants.
Seller has satisfied and shall satisfy in a timely manner
all obligations that it has assumed under the Leases,
holding Purchaser harmless from such obligations in
accordance with the indemnification contained in Section
13, except that Purchaser shall pay, or reimburse Seller
for all tenant improvements, construction costs and leasing
commissions incurred as a result of Lease Transactions
approved by Purchaser in accordance with the terms of
Section 7.4 hereof. To the best of Seller's knowledge and
belief, no brokerage commission or other compensation is or
will be due or payable to any person, firm, corporation or
other entity with respect to or on account of the Leases,
or any renewal thereof, except as may be set forth on
Exhibit D-2 attached hereto and incorporated herein by
reference.
8.1.13 Operating Statements. The operating
statements to be provided to Purchaser which have been
prepared by Seller accurately and completely reflect the
revenue, expenses and income for the Property for the
periods covered thereby, and the amount of each individual
item of revenue and expense set forth therein is true and
correct in all respects.
8.1.14 Outstanding Contracts. As of the Closing
Date, any management, service, supply, security,
maintenance or similar contracts ("Contracts") with respect
to the Property shall either be terminated (or terminable
on thirty (30) days' notice) or shall be approved and
accepted by Purchaser in writing.
8.1.15 Insurance. Seller has in full force and
effect fire, extended risk and liability insurance policies
covering the Property. Seller shall maintain such
insurance through the Closing Date. Seller has not
received from any insurance company carrying insurance or
that has carried insurance on the Property any written
notice of any material defect or inadequacy in connection
with the Property or its operation.
8.1.16 Licenses and Permits. To the best of
Seller's knowledge and belief, but without having made any
inquiry, all licenses and permits necessary or required
under the laws, ordinances, rules and regulations of the
appropriate jurisdiction for the occupancy and use of the
Buildings or other facilities of the Property are binding
and effective.
8.1.17 Taxes. Seller has received no written
notice that the Property is subject to any special taxes,
assessments or benefit charges, nor has Seller received
notice of the intention of any Governmental Authority to
impose any such special taxes, assessments or benefit
charges, except as may be set forth on Exhibit E attached
hereto, or in the title information delivered to Purchaser
by Seller prior to the date hereof, and incorporated herein
by reference.
8.1.18 No Material Omissions. To the best of
Seller's knowledge and belief, neither this Agreement
(including the Exhibits) nor any other certificate,
statement, document or other information furnished or to be
furnished to Purchaser by or on behalf of Seller pursuant
to or in connection with the transaction contemplated by
this Agreement contains or will contain, any misstatement
of material fact, or omits or will omit to state a fact
necessary in order to make the representations, warranties
and other statements herein or therein contained not
misleading.
8.1.19 Foreign Person. Seller is not a foreign
person within the meaning of Section 1445(f) of the
Internal Revenue Code, and Seller agrees to execute any and
all documents necessary or required by the Internal Revenue
Service or Purchaser in connection with such
declaration(s).
8.2. Limitations on Representation and Warranties
Whenever in this Agreement Seller makes any
representation or warranty to the best of Seller's
knowledge or qualified as to receipt of written notice by
Seller, such representation or warranty shall be based upon
the actual knowledge of Seller. As used in this Agreement,
the actual knowledge of Seller shall be deemed to be
limited solely to the actual knowledge of Scott Freeman and
Dale Valicenti. Notwithstanding anything to the contrary in
this Agreement, Seller shall not be liable hereunder for
breach of a representation or warranty of Seller to the
extent that Purchaser has actual knowledge of such breach
as a result of its due diligence investigation of the
Property or its ownership of surrounding properties.
9. Additional Conditions to Settlement
Seller hereby covenants and agrees as follows:
9.1 Normal Operation of Property. Seller will carry on
the business of the Property in the ordinary course and in a
good and diligent manner consistent with prior practice through
the Closing Date, and cause the continuation of the normal
practice with respect to maintenance and repairs, including but
not limited to the completion of all tenant finishing work
required under any lease entered into by Seller prior to the
Closing Date (or if not so completed, provision therefor will be
made at Closing) subject to reimbursement by Purchaser pursuant
to Section 8.1.12.
9.2 Payment of Leasing Costs. Seller shall pay in full
all leasing commissions, all moving allowances and all other
tenant concessions (other than free rent following the Closing
Date) for all Leases, which obligations have accrued to the
Closing Date, to the extent that Seller has knowledge of same,
subject to reimbursement by Purchaser pursuant to Section 5.3.8.
9.3 Removal of Personal Property. Seller shall not remove
or permit to be removed from the Improvements any item or
article defined as Personal Property hereunder except as may be
necessary for repairs or discarding worn out or useless items,
provided that discarded items shall be replaced with new items
of substantially equal quality and quantity and shall be free
and clear of any lien or encumbrance.
9.4 Further Assurances. Seller agrees that it will, upon
reasonable notice and from time to time after the Closing Date,
upon request of Purchaser, do, execute, acknowledge and deliver,
or will cause to be done, executed, acknowledged and delivered,
all such further acts, deeds, assignments, transfers,
conveyances and assurances as may be reasonably required for the
better assignment, transfer and granting of the Property to
Purchaser, its successors or assigns, but nothing herein shall
obligate Seller to incur any liability beyond that set forth
elsewhere in this Agreement.
9.5 Seller's Deliveries. Seller shall deliver to Purchaser
the following at Closing:
9.5.1 A special warranty deed in recordable form
properly executed by Seller conveying to Purchaser the Land
and the Improvements, in fee simple, subject only to the
Permitted Exceptions, in the form attached hereto as
Exhibit H;
9.5.2 A bill of sale for all Personal Property in
the form attached hereto as Exhibit I;
9.5.3 A FIRPTA affidavit;
9.5.4 All original books, records, tenant files,
operating reports, files, plans and specifications and
other materials in Seller's possession necessary to the
continuity of operation of the Property;
9.5.5 The original executed Leases described in
Exhibit D hereof, together with an assignment of such
Leases, in the form attached hereto as Exhibit I;
9.5.6 A certified rent roll for the Property, in
substantially the same form as Exhibit D-3;
9.5.7 With respect to any service contracts to be
assumed by Purchaser, all original service contracts or
copies thereof relating to the Property together with an
assignment of such contracts in the form attached hereto as
Exhibit I;
9.5.8 Any warranties or guaranties relating to
the Personal Property, to the extent assignable without
cost to Seller;
9.5.9 All original certificates of occupancy
relating to the Property to the extent in Seller's
possession;
9.5.10 Any certificates of insurance from the
tenants in Seller's possession;
9.5.11 All original as-built plans and
specifications relating to the Property to the extent in
Seller's possession;
9.5.12 An assignment of all permits, licenses,
certificates and authorizations relating to the Property,
in the form attached hereto as Exhibit I;
9.5.13 All keys to the Improvements which delivery
shall comprise at least one full set of keys;
9.5.14 Letters to all tenants advising them of the
sale to Purchaser in the form attached hereto as Exhibit J;
9.5.15 A certificate reaffirming all
representations and warranties of Seller set forth in
Article 8 in the form attached hereto as Exhibit K, except
for Encumbrances consented to by Purchaser;
9.5.16 An Escrow Agreement in the form attached
hereto as Exhibit N; and
9.5.17 Such other consents, approvals, affidavits,
estoppel certificates and other instruments and documents
as may be reasonably required by Purchaser or the Title
Company prior to Closing, including, without limitation,
the standard form affidavit required by the Title Company
in order to remove all standard title exceptions except the
leases. Such affidavits, indemnities and other similar
type instruments as may be requested pursuant to Section
7.5 hereof.
9.6 Tenant Estoppel Certificates. Purchaser shall receive
prior to the Closing Date estoppel certificates from each tenant
addressed to Purchaser in the form attached hereto as Exhibit L
(the "Basic Estoppel Certificate"). Seller shall use
commercially reasonable efforts to obtain estoppel certificates
prior to the end of the Feasibility Period, it being
acknowledged that Seller shall have no obligation to pay money
or to grant other concessions to any tenant in order to obtain
such estoppel certificate.
With respect to estoppel certificates received by
Purchaser at least seven (7) days prior to the end of the
Feasibility Period, Purchaser shall inform Seller before the
expiration of the Feasibility Period if Purchaser or Purchaser's
lender objects to any matter contained in any such estoppel
certificate. If Purchaser or Purchaser's lender does not so
inform Seller of its objection prior to the expiration of the
Feasibility Period, then, Purchaser shall be deemed to have
approved such estoppel certificates. With respect to estoppel
certificates delivered to Purchaser after such date, Purchaser
agrees to inform Seller within ten (10) days after receiving any
such estoppel certificates if Purchaser or Purchaser's lender
objects to any matter contained in such estoppel certificates.
If Purchaser or Purchaser's lender does not inform Seller of its
objection within such ten (10) day period, then Purchaser shall
be deemed to have approved such estoppel certiificate. If
Purchaser or Purchaser's lender objects to any material
exceptions, qualifications, or modifications contained in any
estoppel certificate within the Feasibility Period or within
such ten (10) day period, as applicable, then Seller shall have
a period of up to thirty (30) days to remedy or cure the subject
matter of such material exception, qualification, or
modification and to deliver a substitute estoppel certificate
from the tenant which does not contain such exception,
qualification or modification, and if necessary, the Closing
shall be extended to the end of such 30-day period. Purchaser
shall be obligated to proceed to Closing only so long as it has
received estoppel certificates acceptable to Purchaser and
Purchaser's lender in accordance with each lease from all
tenants of the Building.
9.7 Payment of Bills and Claims. All bills and claims for
labor performed and materials furnished to Seller for the
benefit of the Property during the period preceding the Closing
Date shall be paid in full at or prior to Closing (or bonded off
to the satisfaction of the Purchaser and its counsel).
9.8 Maintaining the Property. During the period between
the date of this Agreement and the Closing Date, Seller shall
(i) use all reasonable efforts to keep available the services of
its present employees and to maintain its relation with tenants,
suppliers and others having business dealings with it; (ii) at
Seller's expense, maintain the Property in the same order and
condition as the Property was in on the date of this Agreement,
reasonable wear and tear and damage by casualty excepted
provided, however, that if the cost of providing any capital
items or major repairs contemplated by this subsection would
otherwise be reimbursed by the tenants, Seller shall promptly
notify Purchaser of such cost and if Purchaser approves of such
expenditure, Seller shall perform the work and Purchaser shall
reimburse Seller for such costs at Closing; (iii) maintain all
existing insurance policies relating to the Property, including
rental abatement insurance, in full force and effect, (iv) not
mortgage or encumber the Property or any part thereof, (v)
cooperate fully with Purchaser to insure that the transfer of
the Property takes place without inconvenience to tenants and
with the least possible disruption in the normal operation of
the Property; and (vi) cooperate with Purchaser in effecting the
transfer contemplated by this Agreement.
9.9 No Prior Sale. Seller hereby agrees that until the
Closing or prior termination of this Agreement, Seller shall not
sell, convey or transfer all or any part of the Property to a
third party, or contract to do so, except as otherwise expressly
permitted in this Agreement.
9.10 Blairden Lease. Purchaser hereby acknowledges that
Blairden Precision Instruments ("Blairden"), an existing tenant
at the Property has vacated its leased premises, but is
continuing to pay rent to Seller, as landlord. The Blairden
lease terminates on November 30, 1997. In order to secure the
obligation of Blairden to pay rent pursuant to the terms of its
lease until the expiration or earlier termination of the lease,
Seller shall deposit with Escrow Agent at Closing, an amount
equal to Forty-Two Thousand Five Hundred Dollars ($42,500.00)
(the "Escrowed Funds") to be held in escrow and disbursed
pursuant to the terms of an Escrow Agreement to be executed and
delivered to Escrow Agent at Closing, which Escrow Agreement
shall be substantially in the form of Exhibit N attached hereto
(the "Escrow Agreement"). The Escrow Agreement shall provide,
in part, that in the event Blairden fails to pay rent pursuant
to the terms of its lease, Purchaser shall attempt to collect
such delinquent rent. Purchaser shall provide Seller prompt
written notice of the occurrence of any default by Blairden. In
the event Blairden is in default under its lease for failure to
pay rent, after expiration of all notice and cure periods, and
provided Purchaser has properly filed a notice of eviction with
respect to Blairden and served a copy thereof on Blairden in
accordance with all applicable laws and procedures, Purchaser
shall have the right to draw from the Escrowed Funds, an amount
not to exceed such delinquency. In the event Purchaser draws
down the Escrowed Funds, Purchaser shall assign to Seller all of
Purchaser's rights to pursue an action against Blairden to
recover such delinquent rent. Upon recovery of any delinquent
rent from Blairden, following payment thereof from the Escrowed
Funds, Purchaser shall pay to Seller such delinquent rent, less
any actual third party expenses incurred by Purchaser in
collectin gor attempting to collect such delinquent rent, less
any actual third party expenses incurred by Purchaser in
collecting or attempting to collect such delinquent rent. Upon
expiration of the lease with Blairden, all amounts remaining in
the Escrow shall be promptly returned to Seller.
10. Representations and Warranties of Purchaser
Purchaser warrants and represent to Seller as follows:
10.1 Authority. Purchaser is a corporation, duly formed,
validly existing and in good standing under the laws of the
State of Maryland. Purchaser has full and absolute power and
authority to enter into this Agreement and all ancillary
documents delivered pursuant hereto, and to assume and perform
all of its obligations hereunder. The execution and delivery of
this Agreement and the performance by the Purchaser of its
obligations hereunder have been duly authorized by all requisite
action and no further action or approval is required in order to
constitute this Agreement as a binding and enforceable
obligation of the Purchaser.
10.2 Legal Action Against Purchaser. To the best of
Purchaser's knowledge and belief, there are no judgments,
orders, or decrees of any kind against Purchaser unpaid or
unsatisfied of record which would adversely affect the Closing
hereunder, nor any legal action, suit or other legal or
administrative proceeding pending before any court or
administrative agency.
10.3 Bankruptcy or Debt of Purchaser. Purchaser is not in
the hands of a receiver and has not committed an act of
bankruptcy.
10.4 Binding on Purchaser. The execution and delivery of
this Agreement by the Purchaser and the consummation of the
transaction contemplated hereby will be binding upon Purchaser.
The undersigned individual(a) is authorized to sign on behalf of
Purchaser and no additional signatures are required to bind
Purchaser.
10.5 ERISA. Purchaser is not an employee benefit plan (a
"Plan") subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), nor a person or
entity acting, directly or indirectly, on behalf of any Plan or
using the assets of any Plan to acquire the Property.
11. Risk of Loss
Until recordation of the Deed, the risk of loss or damage
to the Property or any portion thereof shall be assumed by
Seller. In the event of damage to less than ten percent (10%)
of the Property, Seller shall either repair the damage or give
Purchaser a credit against the Purchase Price for the cost of
repairs. In the event of damage to the Property by fire or
other casualty, act of God or any other event, to the extent
that ten percent (10%) or more of the total area of the Property
is damaged as of the Closing Date, Purchaser, at its sole
option, exercised within twenty-one (21) days of receiving
notice of such event, shall have the right to (a) terminate this
Agreement and obtain a refund of its Deposit; or (b) close, in
which event, if restoration has not been completed, the
insurance proceeds (including all rental abatement insurance
applicable to the period after the Closing) as well as any
unpaid claims or rights in connection with such casualty, shall
be assigned to Purchaser at the Closing or, if paid to Seller
prior to Closing, shall be credited at the Closing, together
with the amount of the deductible under the applicable insurance
policy, against the Purchase Price. Purchaser shall have the
right to participate in the negotiations and settlement of any
casualty-related claim in the event Purchaser elects to proceed
with Closing.
12. Condemnation
Seller agrees to give Purchaser written notice of any
action or proceeding instituted or pending, in eminent domain or
for condemnation affecting any part of the Property, promptly
after Seller's receipt thereof. If, prior to the Closing Date,
all or any part of the Property is taken by condemnation or
eminent domain proceeding or other transfer in lieu thereof,
this Agreement may be terminated at the option of Purchaser by
written notice to Seller given within five (5) business days
after Seller gives Purchaser the notice of such condemnation or
conveyance in lieu thereof. If Purchaser elects not to
terminate this Agreement, then this Agreement shall remain in
full force and effect, and Seller shall at Closing assign to
Purchaser all rights of Seller to the condemnation award, but
there shall be no reduction in the purchase price.
13. Indemnification
13.1 By Seller. Seller agrees to indemnify and hold
Purchaser harmless from and against all acts of Seller with
respect to:
13.1.1 Subject to the provisions of Sections 8.2
and 17.10 hereof, any actual (but not consequential) loss,
liability or damage suffered or incurred by Purchaser
because any representation or warranty of Seller contained
in this Agreement is found to be false in any material
respect;
13.1.2 all reasonable costs and expenses incurred
by Purchaser in connection with any action, suit,
proceeding, demand, assessment or judgment incident to any
of the matters indemnified against in this Section 13.1, in
which Purchaser is the prevailing party.
13.2 By Purchaser. Purchaser agrees to indemnify and hold
Seller harmless from and against:
13.2.1 Subject to the provisions of Section 17.10
hereof, any actual (but not consequential) loss, liability
or damage suffered or incurred by Seller because any
representation or warranty of Purchaser contained in this
Agreement is found to be false in any material respect;
13.2.2 all reasonable costs and expenses incurred
by Seller in connection with any action, suit, proceeding,
demand, assessment or judgment incident to any of the
matters indemnified against in this Section 13.2, in which
Seller is the prevailing party.
14. Default
14.1 Purchaser's Default. If Purchaser, when otherwise
obligated under this Agreement to do so, fails to consummate the
purchase and sale contemplated herein after all conditions
precedent to Purchaser's obligation to consummate such
transactions have been satisfied or waived by Purchaser, the
Deposit shall be delivered to Seller as full and complete
liquidated damages, as the exclusive and sole right and remedy
of Seller, whereupon this Agreement shall terminate and neither
party shall have any further obligations or liabilities to any
other party.
14.2 Seller's Default. If Seller through no action,
inaction or fault of Purchaser, has failed, refused, is unable
to consummate or if Seller has breached a representation or
warranty that prevents the consummation of the purchase and sale
contemplated herein by the Closing Date, then unless such
breach, failure, refusal or inability is waived in writing by
Purchaser, Escrow Agent shall be required to return the Deposit
to Purchaser and (a) Purchaser may avail itself of any legal or
equitable rights (including, without limitation, the right of
specific performance and/or money damages which Purchaser may
have at law or in equity or under this Agreement), or (b)
Purchaser shall have the right, but not the obligation, to
extend the Closing Date for an additional period to permit
Seller to cure its default without the payment of any further
deposit, provided that if Purchaser extends the Closing Date
pursuant to this Section 14.2(b) and Seller fails to close in
accordance with the requirements of this Agreement within such
time, then Purchaser may exercise any of its rights and remedies
provided for in Section 14.2(a). Seller shall reimburse
Purchaser for all expenses incurred, including reasonable
attorneys' fees, in connection with any action brought under
this Section 14.2.
15. Broker
Seller shall pay any and all brokerage commissions due
Block & Company, Inc. in connection with this transaction, which
payment shall be made pursuant to a separate agreement. Except as
provided above, the parties hereto agree and represent to each other
that no broker, agent or finder has been engaged on their behalf or
otherwise involved in this transaction and each party shall indemnify,
defend and hold the other harmless from and against the claims of any
other broker, agent, consultant of finder claiming to have acted on
behalf of such party in connection with this transaction or this
Agreement.
16. [Intentionally Deleted]
17. Miscellaneous
17.1 Notices. Any and all notices, requests or other
communications hereunder shall be deemed to have been duly given
if in writing and if transmitted by hand delivery with receipt
therefor, by facsimile delivery (with confirmation by hard
copy), by overnight courier, or by registered or certified mail,
return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a
communication may have notified the sender thereof) (the date of
such notice shall be the date of actual delivery to the
recipient thereof):
To Seller: The Realty Associates Fund III, L.P.
c/o TA Realty Corporation
45 Milk Street
Boston, Massachusetts 02109
Attn: Mr. Scott D. Freeman
With a copy to: Bingham, Dana & Gould
1550 M Street, N.W.
12th Floor
Washington, D.C. 20005
Attn: David M. Astrove, Esq.
To Purchaser: Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, California 94549
Attn: Mr. Robert E. Pester
17.2 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Kansas.
17.3 Headings. The captions and headings herein are for
convenience and reference only and in no way define or limit the
scope or content of this Agreement or in any way affect its
provisions.
17.4 Counterpart Copies. This Agreement may be executed in
two or more counterpart copies, all of which counterparts shall
have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.
17.5 Binding Effect. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their
respective successors and assigns.
17.6 Assignment. This Agreement and all rights of
Purchaser arising hereunder shall not be assigned, sold, pledged
or otherwise transferred by Purchaser, in whole or in part,
without the prior consent of Seller. Any attempted assignment
or other transfer without Seller's prior written consent will,
at Seller's option, be voidable and constitute a material breach
of this Agreement.
17.7 Entire Agreement. This Agreement and the Exhibits
attached hereto contain the final and entire agreement between
the parties hereto with respect to the sale and purchase of the
Property and are intended to be an integration of all prior
negotiations and understandings. Purchaser, Seller and their
agents shall not be bound by any terms, conditions statements,
warranties or representations, oral or written, not contained
herein. No change or modifications to this Agreement shall be
valid unless the same is in writing and signed by the parties
hereto. No waiver of any of the provisions of this Agreement
shall be valid unless the same is in writing and is signed by
the party against with which it is sought to be enforced.
17.8 Severability. If any one or more of the provisions
hereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof,
and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein.
17.9 Survival. The provisions of this Agreement,
including, without limitation, the representations and
warranties herein shall survive for three (3) years after the
Closing and shall not be merged therein. Subject to the
foregoing, any claim for any breach hereunder shall be time
barred and the applicable party shall have no liability arising
hereunder as to any claim made with respect to such breach
unless an action for the breach hereof is filed in a court of
competent jurisdiction prior to the three (3) year anniversary
of the Closing.
17.10 Confidentiality. The parties hereto covenant
and agree that they shall not communicate the terms or any other
aspect of this transaction including but not limited to the due
diligence materials prior to the Closing with any person or
entity other than the other party and their respective agents
and employees and mortgagees, and shall treat the terms of this
Agreement in a confidential manner.
17.11 Agreement Not to Market. Seller agrees that
after the execution of this Agreement and prior to termination
or settlement hereunder, Seller shall take the Property off the
market and not solicit or accept any offers nor engage in any
discussions concerning the sale of the Property other than the
transaction contemplated herein.
17.12 Limitation of Liability. In no event shall any
officer, director or employee of Purchaser or Seller or their
respective partners be personally liable for any of the
obligations under this Agreement or otherwise.
17.13 Prevailing Party. Should either party employ an
attorney to enforce any of the provisions hereof or to recover
damages for the breach of this Agreement, the non-prevailing
party in any final judgment agrees to pay the other party's
reasonable expenses, including attorneys' fees and expenses in
or out of litigation and, if in litigation, trial, appellate,
bankruptcy or other proceedings, expended or incurred in
connection therewith, as determined by a court of competent
jurisdiction.
17.14 Liability of Escrow Agent. The parties
acknowledge that the Escrow Agent shall be conclusively entitled
to rely, except as hereinafter set forth, upon a certificate
from Purchaser or Seller as to how the Deposit should be
disbursed. Any notice sent by Seller or Purchaser (the
"Notifying Party") to the Escrow Agent shall be sent
simultaneously to the other noticed parties pursuant to Section
17.1 herein (the "Notice Parties"). If the Notice Parties do
not object to the Notifying Party's notice to the Escrow Agent
within ten days after the Notice Party's receipt of the
Notifying Party's certificate to the Escrow Agent, the Escrow
Agent shall be able to rely on the same. If the Notice Parties
send, within such ten days, written notice to the Escrow Agent
disputing the Notifying Parties certificate, a dispute shall
exist and the Escrow Agent shall hold the Deposit as hereinafter
provided. The parties hereto hereby acknowledge that Escrow
Agent shall have no liability to any party on account of Escrow
Agent's failure to disburse the Deposit if a dispute shall have
arisen with respect to the propriety of such disbursement and,
in the event of any dispute as to who is entitled to receive the
Deposit, disburse them in accordance with the final order of a
court of competent jurisdiction, or to deposit such funds with
said court pending a final decision of such controversy. The
parties hereto further agree that Escrow Agent shall not be
liable for failure to any depository.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement under seal on the date or dates set forth below.
SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP
LIMITED PARTNERSHIP, a Delaware
limited partnership, its general partner
WITNESS:
/s/Scott Freeman
Scott Freeman
By: REALTY FUND III GP, INC.,
a Massachusetts corporation, its general partner
By: /s/ Andrew Neher
Name: Amdrew Meher
Its: S.V.P.
DATE: August , 1995
PURCHASER:
WITNESS:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: /s/ Peter B. Bedford
Name: Peter B. Bedford
Its: Chairmand & CEO
DATE: August 25, 1995
The undersigned party hereby executes this Agreement to evidence
its consent to serve as Escrow Agent in accordance with the terms of
this Agreement.
FIRST AMERICAN TITLE GUARANTY COMPANY
By: P. Nicolini
Its: Escrow Officer
<PAGE>
LIST OF EXHIBITS
EXHIBIT A - Legal Description
EXHIBIT A-1 - Legal Description
EXHIBIT B - Due Diligence Checklist
EXHIBIT C - Permitted Exceptions
EXHIBIT D - Existing Leases
EXHIBIT D-1 - Tenant Defaults
EXHIBIT D-2 - List of Brokerage Commissions
EXHIBIT D-3 - Rent Roll
EXHIBIT E - Pending Legal Action
EXHIBIT F - Environmental Reports
EXHIBIT G - List of Licenses and Permits
EXHIBIT H - Special Warranty Deed
EXHIBIT I - Form of Blanket Conveyance
EXHIBIT J - Form of Letter to Tenants
EXHIBIT K - Form of Seller's Reaffirmation of Representations and
Warranties
EXHIBIT L - Form of Tenant Estoppel Certificate
EXHIBIT M Space Plan for Leased Premises
EXHIBIT N Escrow Agreement
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Lot 10, BEDFORD BUSINESS PARK EAST, a subdivision in the City of
Lenexa, Johnson County, Kansas, according to the recorded plat
thereof, filed September 9, 1986 in Plat Book 63, at Page 38.
<PAGE>
EXHIBIT A-1
LEGAL DESCRIPTION
Lot 22 and Lot 23 the North 79.99 feet thereof, BEDFORD BUSINESS PARK
EAST, a subdivision in the City of Lenexa, Johnson County, Kansas,
according to the recorded plat thereof, filed September 9, 1986 in
Plat Book 63, at Page 38.
<PAGE>
EXHIBIT B
Due Diligence Documents
To Be Deliver ed By Seller
Which Are In The Possession Of Seller
Tenant Information (in possession of Seller)
1. Rent Roll completed to Purchaser's requirements, including sq.
ft., lease term, base and additional rent, expense stops and/or
passthroughs.
2. All leases and amendments thereto, including subleases.
3. List certified by Seller of all concessions made to tenants,
including free rent or reduced rent, above standard tenant
improvements, cash payments, moving allowances or takeover of
previous lease obligations.
4. Most recently available financial statements and credit reports
on any tenant with more than 10% of sq. ft. (or any other tenant
requested by Purchaser) and of any guarantors thereof (if
applicable).
5. Accounts receivable report as of the date of the Agreement and
monthly receivables reports for the prior 24 months.
6. Any letters of intent (executed or otherwise) with prospective
tenants.
7. Most recent leasing status report from leasing broker.
8. Standard form lease.
Operating Information (in possession of Seller)
1. Historical financials, including year end balance sheets and
income statements, for the period the Property has been owned by
the Seller, together with those financial statements provided by
Seller's predecessor in interest for the two prior years of
operation of the Property, about which Seller makes no
representation or warranty.
2. Year to date monthly operating statements certified by Seller.
3. Current operating and capital budgets, including comparison of
actual to budgeted, and an explanation of significant variances.
4. Listing of capital expenditures for the period the Property has
been owned by the Seller.
5. Copies of all service, maintenance, leasing, management or other
contracts.
6. Copies of real estate tax bills (including special assessments)
for the period the Property has been owned by the Seller.
Building Information (in possession of Seller)
1. Plans and specifications showing "as built" condition, with an
architect's certificate of the gross leasable area of the
Property.
2. All reports relating to the physical condition of the Property,
to the extent they exist and can be obtained by Seller,
including engineering, mechanical, roof, environmental and
seismographic.
3. List of personal Property to be transferred with the Property.
4. Copies of all warranty agreements concerning the Property.
Other Information in possession of Seller
1. Seller's most current title policy, reports or commitments,
including exceptions thereto.
2. All licenses, permits and approvals.
3. Evidence of compliance with all applicable laws, including
zoning regulations which are in the Seller's possession.
4. Certified boundary survey and title survey completed by a
registered surveyor, including a legal description and copies of
any title exceptions noted thereon.
5. Any market data (including rent and sale comparables) in
Seller's possession.
<PAGE>
EX HIBIT C
PE RMITTED EXCEPTIONS
All assessments and taxes for the year 1995 and all subsequent years.
The premises in question are within the following special tax
districts: LEC LORIET BVD, 1994 assessment - $1,779.84; JCWD CAP, 1994
assessements $80.60 (Lot 10).
The premises in question are within the following special tax
districts: LEC LORIET BVD, 1994 assessment - $3,938.55; JCW CAP, 1994
assessment $434.00 (Lots 22 & 23).
Building setback line as shown on the recorded plat, as recorded in
Plat Book 63 at Page 38.
The Southwest corner of the concrete and glass building violates the
30 foot building line (Affects Lots 22 & 23). NOTE: This policy
insures against enforced removal or relocation by reason of said
encroachment, pursuant to decree by court of competent jurisdiction.
Easement to Kansas City Power and Light Company as set forth in
instrument filed December 10, 1986 under Document No. 1662468,
recorded in Volume 2477 at page 337 (Affects Lots 22 & 23).
Temporary Cul-De-Sac easement as shown on the recorded plat, record
in Plat Book 63, at Page 38 (Affects Lot 22). Encroachment of
concrete and glass building upon said easement. NOTE: This policy
insures against enforced removed or relocation by reason of said
encroachment, pursuant to decree of court of competent jurisdiction.
Building and use restrictions in instrument filed September 9, 1986
under Document No. 1637805 recorded in volume 2419 at page 696, and
filed October 6, 1986 under Document No. 1645725 recorded in volume
2437 at page 1. As modified by Assignment and Assumption Agreement
filed March 4, 1994, under Document NO. 2366922, recorded in Volume
4263 at page 431. Note: Any violation of the foregoing restrictions
will not work a forfeiture or reversion of title.
Mill Creek Main Sewer District No. 1 and any special assessments in
accordance therewith, as recorded March 20, 1980 under Document No.
1271394 recorded in volume 1555 at page 712. (Affects all of Parcel
7).
Lateral Sewer District No. 13 and any special assessments in
accordance therewith as filed July 31, 1986 under Document No. 1626980
recorded in volume 2393 at page 618. (Affects all of Parcel 7).
Resolution for the improvement of Loiret Boulevard and any special
assessment in accordance therewith, as filed on March 14, 1986 under
Document No. 1590496 recorded in volume 2302 at page 953. (Affects all
of Parcel 7).
Sanitary Sewer Easements granted to Mill Creek Townships Sub District
1-A Lateral Sewer District 1, filed July 30, 1986 under Document No.
1626574 recorded in volume 2392 at page 608, (amended by instrument
filed August 26, 1986 under Document No 1634469 recorded in volume
2411 at page 742), and filed July 30, 1986 under Document No. 1626575
recorded in volume 2392 at page 610 (Affects lot 10 as shown on
Certificate of Survey prepared by Norman E. Holmes, dated November 4,
1994).
Easement granted to the Kansas City Power and Light Company by
instrument filed September 12, 1988 under Document No. 1819433
recorded in volume 2862 at page 826 (Affects Lot 22).
Easement granted to the Kansas City Power and Light Company by
instrument filed September 12, 1988 under Document No. 1819434
recorded in volume 2862 at page 827 (Affects Lot 10).
Controlled access to highway as set out in Condemnation Case No.
74849, recorded February 6, 1978 under Document No. 1151228, recorded
in Volume 1303, at Page 202. (Affects all of Parcel 7).
Rights of tenants in possession as tenants only under lease, as set
forth in Exhibit A attached hereto.
Lack of direct access to Highway from the Premises in question, such
right of access having been granted to the City of Lenexa, by the
deed filed in Volume 1126 at Page 983. (Affects Lot 10 only).
Easement to Southwestern Bell Telephone Company, filed January 11,
1993, under Document No. 2206560, recorded in Volume 3822 at page 68
(Affects Lot 10).
The East Wall of the Brown Concrete brick building encroaches upon the
Southwestern Bell easement in Volume 3822, at page 68. NOTE: This
policy insures against enforced removal or relocation by reason of
said encroachment, pursuant to decree of court of competent
jurisdiction. (Affects Lot 10).
Easement to Southwestern Bell Telephone Company filed January 11,
1993, under Document No. 2206561, recorded in Volume 3822 at page 71.
(Affects Lot 22.)
The West wall of the concrete and glass building encroaches upon the
Southwestern Bell easement in Volume 3822, at Page 71 (Affects Lot
22).
Note: This policy insures against enforced removal or relocation by
reason of said encroachment, pursuant to decree of court of competent
jurisdiction.
<PAGE>
EX HIBIT D
EX ISTING LEASES
Snap on Tools
Sensormatic
Blairden
Occupational Med
<PAGE>
EX HIBIT D-1
TE NANT DEFAULTS
There are no tenants in default as of this writing
<PAGE>
EX HIBIT D-2
LIST OF BROKERAGE COMMISSIONS
Sensormatic (3,192 s.f. Building 1) = $7,354.37
<PAGE>
EXHIBIT D-3
RENT ROLL
See attached Rent Roll
(Additional Information submitted on a confidential basis)
<PAGE>
EXHIBIT E
PENDING LEGAL ACTION
No Pending Legal Action at this time
<PAGE>
EXHIBIT F
ENVIRONMENTAL REPORTS
Phase I Environmental Site Assessment regarding 99th Street Business
Park prepared by Law Engineering, Inc. dated October 31, 1994.
<PAGE>
EXHIBIT G
LIST OF LICENSES AND PERMITS
The only Licenses or Permits that are required by the city of Lenexa
are the occupancy permits.
<PAGE>
EXHIBIT H
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS
THAT THE REALTY ASSOCIATES FUND III, L.P., a Delaware limited
partnership ("Grantor"), for and in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, has
GRANTED, BARGAINED, SOLD, and CONVEYED and by these presents does
GRANT, BARGAIN, SELL, AND CONVEY unto BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation ("Grantee") that certain tract or parcel
of land in the City of Lenexa, County of Johnson, State of Kansas,
more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, together with all rights,
titles, and interests appurtenant thereto (such land and interests
are hereinafter collectively referred to as the "Property").
This Special Warranty Deed and the conveyance hereinabove set
forth is executed by Grantor and accepted by Grantee subject to the
matters described in Exhibit B attached hereto and incorporated
herein by this reference, to the extent the same are validly existing
and applicable to the Property (hereinafter referred to collectively
as the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and
singular the rights and appurtenances thereunto otherwise belonging,
unto Grantee, its successors and assigns forever, and Grantor does
hereby bind itself, its successors and assigns, to WARRANT AND
FOREVER DEFEND all and singular the title to the Property unto the
said Grantee, its successors and assigns against every person
whomsoever lawfully claiming or to claim the same or any part
thereof, by through or under Grantor but not otherwise subject only
to the Permitted Encumbrances.
Grantee's address is: 270 Lafayette Circle
Lafayette, CA 94549
EXECUTED this the day of , 1995.
Subject to review for conformance with Kansas Law.
IN WITNESS WHEREOF Grantor has executed this Deed as of the
day and year first hereinabove written.
GRANTOR:
THE REALTY ASSOCIATES FUND III,
L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP
LIMITED PARTNERSHIP, a Delaware
limited partnership, its
general partner
WITNESS: By: REALTY FUND III GP, INC., a
Massachusetts corporation its
general partner
By:
Its:
DATE: , 1995
)
) ss:
)
I, a Notary Public in and for the jurisdiction aforesaid, do hereby
certify that , personally appeared before me in said
jurisdiction and acknowledged himself or herself to be the
Realty Fund III GP, Inc., the general partner of Realty Associates
Fund III GP Limited Partnership, the general partner of Grantor in the
foregoing and annexed Special Warranty Deed bearing date as of the
day of ,1995, who, being by me first duly sworn,
acknowledged said instrument to be the act and deed thereof, and that
by virtue of the authority conferred upon him, executed and delivered
the same as such for the purposes therein contained.
WITNESS my hand and official seal this day of , 1995.
Notary Public:
My Commission Expires:
<PAGE>
EXHIBIT I
BLANKET CONVEYANCE
THIS BLANKET CONVEYANCE (the "Bill of Sale") is made as of the
day of , 1995 by: (i) THE REALTY ASSOCIATES
FUND III, L.P., a Delaware limited partnership ("Seller"), and (ii)
BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation
("Purchaser").
KNOW ALL MEN BY THESE PRESENTS:
Concurrently with the execution and delivery hereof, pursuant to
a certain Agreement of Purchase and Sale dated , 1995
(the "Purchase Agreement"), Seller is conveying to Purchaser all of
Seller's right, title and interest in and to the real Property
described on Exhibit A attached hereto and made a part hereof (the
"Land") and in and to the building, parking areas and other
structures and improvements located on the Land (collectively, the
"Improvements") located in the County of Johnson, State of Kansas.
The Land and the Improvements are hereinafter sometimes collectively
referred to as the "Property".
It is the desire of Seller to hereby sell, assign, transfer,
convey, set-over and deliver to Purchaser all of Seller's right,
title and interest in and to the "Assigned Property" (hereinafter
defined).
1. Bill of Sale and Assignment.
Seller does hereby sell, assign, transfer, set-over and deliver
unto Purchaser, its successors and assigns, with special warranty of
title, all right, title and interest of Seller in and to:
(a) all furniture, fixtures, equipment and other personal
Property except items owned by tenants, which are now placed in,
attached to or used in connection with or in the operation of the
Property;
(b) to the extent they may be transferred under
applicable law, all licenses, permits and authorizations, including,
without limitation, sewer rights and permits, presently issued in
connection with the operation of all or any part of the Property;
(c) to the extent they are assignable, all warranties, if
any, issued to Seller by any manufacturers and contractors in
connection with construction or installation of equipment included as
part of the Property;
(d) all service, supply and maintenance contracts (if
any) held by Seller with respect to the Property and its mechanical
equipment, elevators and other elements;
(e) all trade names, accounts receivable and general
intangibles relating to the Property; and
(f) all leases of all or any part of the Property.
TOGETHER with the immediate and continuing right to collect and
receive all of the rents, income, receipts, revenues, issues,
profits, deposits and proceeds now due or which may become due or to
which Seller may now or shall hereafter become entitled to make
demand or claim, arising or issuing from or out of any of the
foregoing items assigned or transferred by this Bill of Sale or from
or out of the Property or any part thereof, including, but not by way
of limitation, minimum rents, additional rents, tax and insurance
contributions, deficiency rents and liquidated damages following
default, the premium payable by any party upon the exercise of a
cancellation privilege originally provided for in any of the leases
or contracts, and any rights and claims of any kind which of the
Seller may have against any occupancy tenant under the leases or
against any subtenants or occupants of the Property or against any
Party other than Seller under the contracts; subject, however, to the
rights of Seller set forth in the Purchase Agreement to rents under
the leases assigned hereby attributable to the period prior to the
date hereof.
TO HAVE AND TO HOLD the improvements, leases, contracts,
personalty, security deposits, proceeds, permits, warranties and
intangible Property (collectively, the "Assigned Property") unto
Purchaser, its successors and assigns, forever.
2. Representation and Warranty.
Seller represents, covenants and warrants that Seller is the
sole and lawful owner of all of the Assigned Property and that the
Assigned Property is free and clear of all claims, liens or
encumbrances whatsoever except for the Permitted Exceptions (as
defined in the Purchase Agreement). Seller further represents,
covenants and warrants that Seller has the full right, power and
authority to execute this Bill of Sale.
3. No Mechanics' Liens.
Seller hereby affirms that there are no unpaid bills or claims
for labor performed or materials furnished to or for the benefit of
the Property for which mechanics' liens can be filed, and that there
has been no casualty loss or damage to, or pending condemnation of,
any part of the Property.
4. Assumption. Purchaser hereby expressly assumes all
obligations and duties with respet to the Assigned Property
arising from and after the date hereof.
5. Further Assurances.
Seller agrees that Seller will make, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances,
assignments, notices of assignments, transfers and assurances as
Purchaser shall from time to time reasonably require, for the better
assuring, conveying, assigning, transferring and confirming unto
Purchaser the Property and Assigned Property, and the rights hereby
conveyed or assigned or intended now or hereafter to be conveyed or
assigned to Purchaser, and all other Property as is herein conveyed
or is to be conveyed pursuant to the Purchase Agreement, or for
carrying out the intention or facilitating the performance of the
terms of this Bill of Sale and the Purchase Agreement or registering
or recording this Bill of Sale.
6. Counterpart Copies.
This Bill of Sale may be executed in two or more counterpart
copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this
Bill of Sale.
(SIGNATURES APPEAR ON FOLLOWING PAGE)
IN WITNESS WHEREOF, the parties have caused this Bill of Sale to
be executed as of the date first written above.
SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP
LIMITED PARTNERSHIP, a Delaware
limited partnership, its general
partner
By: REALTY FUND III GP, INC., a
Massachusetts corporation
its general partner
By:
Its:
DATE: , 199
PURCHASER:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By:
Name:
Its:
DATE: , 199
<PAGE>
EXHIBIT J
, 19
Attention:
Dear :
We are pleased to advise you that the building in which your premises
are located at has been sold by
effective as of ,
199 . Your lease agreement has been assigned to and accepted by
.
All future correspondence relating to your tenancy, as well as rent
checks and other charges, should be made payable and mailed to
, c/o
.
We look forward to working with you in the operation of this Property.
Very truly yours,
,
a
By:
Its:
<PAGE>
EXHIBIT K
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
THE REALTY ASSOCIATES FUND III, L.P., referred to as "Seller"
under that certain Agreement of Purchase and Sale dated
, 1995, hereby represents and warrants that the Seller's
representations and warranties in such Agreement are true and correct
as of the date hereof, except as otherwise indicated herein.
Dated: , 1995
WITNESS: SELLER:
THE REALTY ASSOCIATES FUND III, L.P.,
a Delaware limited partnership
By: REALTY ASSOCIATES FUND III GP
LIMITED PARTNERSHIP, a Delaware
limited partnership, its
general partner
By: REALTY FUND III GP, INC.,
a Massachusetts
corporation, its general
partner
By:
Name:
Its:
<PAGE>
EXHIBIT K-1
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
BEDFORD PROPERTY INVESTORS, INC., referred to as "Purchaser"
under that certain Agreement of Purchase and Sale dated
, 1995, hereby represents and warrants that the Purchaser's
representations and warranties in such Agreement are true and correct
as of the date hereof, except as otherwise indicated herein.
Dated: , 1995
WITNESS: PURCHASER:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By:
Name:
Its:
<PAGE>
EXHIBIT L
TENANT ESTOPPEL CERTIFICATE
To: Bank of America National Trust and: Bedford Property
Investors, Inc.
and Savings Association ("Bank") ("Purchaser")
Real Estate Industries Div. No. 8940 270 Lafayette Circle
50 California Street, 11th Floor Lafayette,
California 94549
San Francisco, California 94111
Re: Lease Dated: ,
19
Current Landlord:
Current Tenant:
Building Located at:
Premises Square Feet: Approximately
("Tenant") hereby certifies to Bank
and Purchaser that as of , 1995:
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 the above referenced Landlord
("Landlord"), as landlord. 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
[assigned/unassigned] parking spaces near the Building during the
term of the Lease.
(c) The term of the Lease commenced on ,
19 , and will expire on , 19 , including any
presently exercised option or renewal term. Except as specified in
Paragraph(s) of the Lease, Tenant has no option or right to
renew, extend or cancel the Lease, or to lease additional space in
the Premises or the Building, or to use any parking.
(d) Tenant has no option or preferential right to
purchase all or any part of the Premises (or the land of which the
Premises are 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
, 1995.
(f) Additional rent is payable under the Lease for (i)
operating, maintenance and repair expenses, (ii) Property taxes, and
(iii) insurance premiums. Such additional rent has been paid in
accordance with Landlord's rendered bills through ,
1995. The base year amounts for additional rental items are as
follows: (1) operating, maintenance and repair expenses $
; (2) Property taxes $ ; and (3) insurance
premiums $ .
(g) Tenant has made no agreement with Landlord or any
agent, representative or employee of Landlord concerning free rent,
partial rent, rebate of rental payments or any other similar rent
concession that has any present or future effect or application,
except as expressly set forth in Paragraph(s) of the Lease
(copy attached).
(h) Landlord currently holds a security deposit in the
amount of $ which is to be applied by Landlord or
returned to Tenant in accordance with 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 Landlord with respect to the Premises, has not
been modified, changed, altered or amended and is in full force and
effect in the form attached as Exhibit A. There are no other
agreements, written or oral, which affect Tenant's occupancy 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 Landlord to
date for improvements to the Premises have been paid in full and all
of Landlord'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, other than Hazardous Substances used in the
ordinary and commercially reasonable course of Tenant's business in
compliance with all applicable laws. Tenant has no actual knowledge
that any Hazardous Substances is present, or has been used,
generated, released, discharged, stored or disposed of by any party,
on, under, in or about such Building or land.
7. Tenant hereby acknowledges that Purchaser intends to
purchase the Property containing the Premises from Landlord and to
encumber said Property with a Deed of Trust in favor of Bank. Tenant
acknowledges the right of Purchaser and Bank to rely upon the
statements and representations of Tenant contained in this
Certificate and further acknowledges that such purchase of the
Property by Purchaser and any loan secured by any such Deed of Trust
or further deeds of trust in favor of Bank will be made and entered
into inn material reliance on this Certificate.
8. Tenant hereby agrees to furnish Bank with such other
and further estoppels as Bank may reasonably request.
By:
Name:
Title:
[Attach Exhibit A -COMPLETE COPY OF LEASE AND ANY MODIFICATIONS,
AMENDMENTS, SUPPLEMENTS, SIDE LETTERS, ADDENDA AND RIDERS]<PAGE>
EXHIBIT M
SPACE PLAN FOR NEW LEASE
<PAGE>
EXHIBIT N
ESCROW AGREEMENT
<PAGE>
EXHIBIT 10.4
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
ICMPI (Overland Park), Inc.
("SELLER")
AND
TA REALTY CORPORATION
("PURCHASER")
August , 1995
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made
and entered into as of the day of August, 1995, by and
between ICMPI (Overland Park), Inc., a Delaware corporation
(hereinafter referred to as "Seller") and TA Realty Corporation, a
Massachusetts corporation, its successors and assigns (hereinafter
referred to as "Purchaser").
R E C I T A L S
A. Seller is the owner in fee simple of that certain property
commonly known as Cody 6 located at 9242-9250 Bond Street, in
Overland Park, Johnson County, Kansas, more particularly described in
Exhibit A attached hereto and incorporated herein by this reference
together with all easements, licenses, covenants and other rights
appurtenant to said property and all right, title and interest of
Seller in and to any land lying in the bed of any street, road,
avenue or alley, open or closed, in front of or adjoining said
property and to the center line thereof (collectively, the "Land"),
the industrial building containing in the aggregate approximately
Thirty-Seven Thousand Eight Hundred Fifty-Six (37,856) square feet
(the "Building"), and other improvements located thereon (the
Building and such other improvements being hereinafter referred to as
the "Improvements"), together with all of the Seller's right, title
and interest in and to the following (the "Personalty"):
(i) all furniture, fixtures, equipment and other personal
property, which are now, or may hereafter prior to the Closing Date
(as hereinafter defined) be placed in, attached to or used in
connection with or in the operation of the Land and the Improvements;
(ii) to the extent they may be transferred under
applicable law, all licenses, permits and authorizations, including,
without limitation, sewer rights and permits, presently issued in
connection with the operation of all or any part of the Land and the
Improvements or necessary to operate said property as it is presently
being operated;
(iii) all warranties, if any, issued to Seller by any
manufacturers and contractors in connection with construction or
installation of equipment located in or included as part of the
Improvements;
(iv) to the extent assignable and to be assigned hereunder
to Purchaser at Closing (as hereinafter defined), all service, supply
and maintenance contracts (if any) held by Seller with respect to the
operation of the Land and the Improvements therein, including any
mechanical equipment, elevators, roof and other elements of the
Improvements;
(v) all trade names and general intangibles relating to
the Land, the Improvements and any item of Personalty; and
(vi) all leases and security deposits thereunder covering
all or any part of the Land and Improvements.
The Land, the Improvements and the Personalty are collectively
referred to herein as the "Property."
B. Purchaser desires to purchase the Property from Seller and
Seller desires to sell, transfer and assign the same to Purchaser.
NOW, THEREFORE, for and in consideration of the recitals, the
mutual promises hereinafter set forth and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale
Seller hereby agrees to sell, assign, transfer and deliver
to Purchaser, and Purchaser hereby agrees to purchase, acquire and
accept from Seller the Property upon the terms and conditions herein
set forth.
2. Purchase Price
The purchase price for the Property shall be One Million
Five Hundred Thousand Dollars ($1,500,000.00) (the "Purchase Price"),
as may be adjusted pursuant to the terms of this Agreement. The
Purchase Price shall be paid at closing in immediately available
funds.
3. Deposit
3.1 Deposit with Escrow Agent. Upon execution hereof,
Purchaser has or shall deposit Twenty-Five Thousand Dollars
($25,000.00) (the "Deposit") with First American Title Guaranty
Company (the "Escrow Agent"), in the form of cash, or a check
payable to the order of Escrow Agent, the receipt of which is
hereby acknowledged by Escrow Agent's execution hereof.
3.2 Application of Deposit. The Deposit shall be held in
an interest-bearing escrow account by Escrow Agent until (i)
Closing (as defined in Section 4 occurs under this Agreement),
in which event the Deposit, shall be paid to Seller as a credit
to the Purchase Price, or (ii) this Agreement has been
terminated (for reasons other than default of Purchaser
hereunder), in which event the Deposit will be returned to
Purchaser; provided, however, that if termination of this
Agreement is due to Purchaser's default under any provision
hereof, the entire Deposit shall be delivered promptly to
Seller, whereupon Purchaser shall be relieved of all liability
under this Agreement. The parties expressly agree that Seller's
actual damages in the event of a termination of this Agreement
due to Purchaser's default would be extremely difficult and
impracticable to ascertain and that the amount of the Deposit
represents the parties' reasonable estimate of such damages and
shall be deemed full, complete and liquidated damages to Seller
for such default. Other than payment of the Deposit, Seller
shall have no other remedy for any default by Purchaser.
4. Closing
4.1 Closing Date. Subject to the conditions
herein, including but not limited to those specified in Section
3 hereof, the closing of the purchase and sale of the Property
(the "Closing") shall be held at the offices of Bingham, Dana &
Gould, 1550 M Street, N.W., 12th Floor, Washington, D.C. 20005,
or at such other place agreed to by Seller and Purchaser, on a
date (the "Closing Date") designated by Purchaser on three (3)
business days' prior written notice to Seller following the
expiration of the Feasibility Period, or such earlier end of the
Feasibility Period by written notice from Purchaser to Seller in
accordance with Section 6.2 hereof, but in no event earlier than
September 15, 1995, and in no event later than thirty (30) days
after expiration of the Feasibility Period (the "Outside Closing
Date"), except if the Closing is extended as expressly permitted
by Section 7.3 of this Agreement. If, despite exercise of a
party's diligence and good faith hereunder, the Closing shall
not be held by the Outside Closing Date, either party may
terminate this Agreement.
4.2 Concurrent Closings. Notwithstanding anything
to the contrary in this Agreement, unless said condition is
otherwise waived in writing by Seller, the Closing shall occur
concurrently with the closing of the sale by Purchaser to
Seller's parent company, Bedford Property Investors, Inc.
("BPI"), of that certain improved real property located at
10035-10055 Lakeview Avenue and 9724 Legler Road, Lenexa, Kansas
in accordance with the terms of that certain Agreement of
Purchase and Sale entered into as of even date herewith between
BPI and Seller (the "Related Contract"). If the Related Contract
is terminated for any reason other than a default by BPI, as
Purchaser thereunder, such termination shall be deemed a failure
of a condition precedent to the Closing and Seller shall have
the right to terminate this Agreement and to return the Deposit
to Purchaser without any further liability to Purchaser.
4.3 Extension of Closing Date. Notwithstanding the
foregoing, the Purchaser shall have the right to extend the
Outside Closing Date for an additional thirty (30) day period
upon written notice to Seller of such election, provided that
Purchaser deposits an additional Fifty Thousand Dollars
($50,000.00) with Escrow Agent which shall become a part of the
Deposit and shall be held by Escrow Agent in accordance with the
terms of Section 3.2 hereof.
5. Prorations and Closing Costs
5.1 Prorations In General. All revenues and
expenses of the Property shall be prorated and apportioned as of
the date set forth in Section 5.2 such that the Seller shall
bear all expenses with respect to the Property and shall have
the benefit of all revenues with respect to the Property through
the Adjustment Date, and Purchaser shall bear all expenses and
have the benefit of all income with respect to the Property
after the Adjustment Date. Any revenue or expense amount which
cannot be ascertained with certainty as of the Adjustment Date
shall be prorated on the basis of the parties' reasonable
estimates of such amount and shall be subject to a final
proration thirty days after the Closing Date or as soon
thereafter as the precise amount can be ascertained.
5.2 Adjustment Date. Except as otherwise set forth
herein, all items to be prorated pursuant to this Section 5
shall be prorated as of midnight of the day immediately
preceding the Closing Date (except that if the Purchase Price is
not disbursed to or for the benefit of Seller on or before 11:00
a.m. Eastern Time on the Closing Date, such adjustments shall be
made as of midnight of the day immediately preceding the date on
which the Purchase Price is disbursed prior to 11:00 a.m. (the
day and time as of which such adjustment shall be made is herein
referred to as the "Adjustment Date"). Nothing contained herein
shall be deemed to relieve Purchaser of the obligation to
deposit the Purchase Price with the title company on the Closing
Date.
5.3 Additional Provisions. The following additional
provisions shall apply with respect to the prorations of revenue
and expense provided in Section 5.1 hereof:
5.3.1 Taxes. Real estate and personal property
taxes and assessments for the year in which Closing is
held shall be prorated on the basis of a three hundred
sixty-five (365) day year (with such real estate taxes to
be adjusted according to the Certificate of Taxes issued
by the appropriate authorities of the appropriate
jurisdiction). If, at the time of Closing, the Property
or any part thereof shall be or shall have been affected
by assessments which are or may become payable in annual
installments or are then a charge or lien (such as, but
not limited to, front foot benefit charges), then for the
purposes of this Agreement the installment for the current
year shall be adjusted in accordance with Section 5.2.
5.3.2 Insurance. There shall be no proration
of Seller's insurance premiums or assignment of Seller's
insurance policies and Seller shall cancel all of its
existing policies as of the Closing Date. Purchaser shall
be obligated (at its own election) to obtain any
replacement policies.
5.3.3 Utilities. Prior to Closing, Purchaser
and Seller shall notify all public and private utilities
providing services to the Property of the prospective
change in ownership and direct that all future billings be
made to Purchaser or its designee, at a specified address,
with no interruption of service. Purchaser and Seller
hereby acknowledge and agree that the amounts of all
telephone, electric, sewer, water and other utility bills,
trash removal bills, janitorial and maintenance service
bills and all other operating expenses relating to the
Property and allocable to the period prior to the Closing
Date shall be determined and paid by Seller before
Closing, if possible, or shall be paid thereafter by
Seller or adjusted between Purchaser and Seller
immediately after the same have been determined. Seller
shall cause all utility meters to be read as of the
Closing Date. Seller shall also attempt to obtain from
the provider of same, all other service statements and
bills of account adjusted as of the Closing Date.
5.3.4 Rents Collected by Seller Prior to
Closing. Rents actually collected by Seller prior to
Closing relating to the calendar month during which the
Closing takes place shall be prorated as of the Adjustment
Date.
5.3.5 Rents Collected by Purchaser After
Closing. During the period after the Closing, Purchaser
shall deliver to Seller any and all rents accrued but
uncollected as of the Closing Date to the extent
subsequently collected by Purchaser after deduction of
reasonable third party out-of-pocket collection charges
actually incurred by Purchaser; provided, however, that
Purchaser shall apply rents received after Closing first
to payment of current rents and thereafter to rents
accrued but unpaid as of the Closing Date. For a period
of six (6) months after the Closing Date, Purchaser shall
use reasonably diligent efforts to collect all rents which
are delinquent at the Closing Date; to the extent that
amounts remain unpaid to Seller after such six (6) month
period, then Seller shall have the right to sue to collect
same, but in no event may the Seller seek to evict any
tenant or terminate any lease. Seller shall give
Purchaser notice of any actions or proceedings relating to
collection of delinquent rents. Purchaser will cooperate
with the Seller in all reasonable efforts to collect such
rent and other amounts due. Nothing in this paragraph
shall prohibit the Seller from initiating any action prior
to the Closing Date against any tenant which shall then be
in default of any Lease, provided that notice of such
action shall be furnished to the Purchaser; provided,
however, Seller hereby agrees that Seller shall not
institute eviction proceedings against any tenant after
the end of the Feasibility Period without the prior
consent of Purchaser.
5.3.6 CAM Charges. If, and to the extent the
Leases require that tenants pay as additional rent taxes,
common area expenses, utilities, maintenance and
additional operating expenses of any nature (collectively,
"Operating Expenses"), such Operating Expenses shall not
be prorated hereunder. After Closing, Purchaser shall
send customary statements for reimbursement of Operating
Expenses to tenants under the Leases after consulting with
Seller with respect to appropriate amounts due therefor
and shall remit to Seller, upon receipt, Seller's prorated
share thereof, if any, by allocating to Seller the product
of the apportionable item for the entire billing period
multiplied by a fraction, the numerator of which is the
number of days within the specified billing period which
occur before the Adjustment Date and the denominator of
which is the number of days in the specified billing
period.
5.3.7 Security Deposits.
5.3.7.1 At the Closing, Seller shall
furnish Purchaser with a schedule setting forth
all security deposits which have been
theretofore deposited with Seller or its
predecessors in interest by tenants, to the
extent known and actually received by Seller;
and Seller shall credit Purchaser with the
aggregate amount of such deposits, together with
all interest, if any, which is required by the
terms of the applicable lease or by statute,
earned thereon and required to be paid to
tenants.
5.3.7.2 If Seller is holding letters of
credit in lieu of the deposits, then, at the
Closing, Seller shall assign such letters of
credit to Purchaser to the extent that such
letters of credit are assignable, or if not
assignable shall cause to have such letters of
credit re-issued in favor of Purchaser.
5.3.8 Leasing Commissions. On or before the
Closing Date, Seller shall pay or cause to be paid
(or there shall be escrowed at Closing) all leasing
commissions (except as hereinafter provided) which
are payable with respect to Leases executed prior to
the date hereof, whether the same are due on or prior
to the Closing Date or payable in installments
subsequent thereto and including any portion thereof
due upon any renewals of any such Lease or options to
lease additional space but only if such renewal or
additional space option commences prior to the date
of this Agreement. Purchaser shall assume the
payment of all leasing commissions which may
hereafter become due with respect to (i) any renewals
of any Leases or options to lease additional space
under any Leases if such renewals or additional space
options are exercised and commence or arise after the
date of this Agreement, and (ii) any Leases
hereinafter executed prior to the Closing with
Purchaser's consent.
5.4 Payment of Adjustments. Either party owing the
other party a sum of money based upon adjustments made
after the Adjustment Date shall promptly pay that sum to
the other party within ten (10) days after the parties
mutually agree upon the amount of the post-Closing
adjustment.
5.5 Closing Costs. All transfer taxes and any State
or county documentary stamps or transfer taxes on the deed
and escrow fees shall be paid 50% by Seller and 50% by
Purchaser. Seller shall pay all recording fees (including
recording costs in connection with any release documents)
and shall also pay title insurance premiums for an ALTA
Owner's Form (1992) title policy; provided, however, to
the extent Purchaser requires particular endorsements to
title or special title coverage, Purchaser shall pay such
additional premiums. Purchaser shall pay survey costs.
Each party shall be responsible for its own attorneys'
fees.
6. Purchaser's Right of Inspection; Feasibility Period
6.1 Purchaser's Right of Inspection. Purchaser shall
have the right, at its own risk, cost and expense, during normal
business hours and at any date or dates prior to Closing, to
enter, or cause its agents or representatives to enter upon the
Property for the purpose of making surveys or other tests, test
borings, inspections, investigations, architectural, economic,
environmental and other studies of the Property as Purchaser may
deem desirable; provided, however, that such access shall be
subject to the Leases and Purchaser shall provide Seller with at
least forty-eight (48) hours notice prior to entering the
Buildings for such purposes and at least twenty-four (24) hours
notice prior to entering the Property for any other activity.
In addition, Purchaser may make investigations and inspections
that require exposure of structural and mechanical elements of
the Improvements and the taking of soil and water samples from
the Property. The Purchaser shall give Seller reasonable prior
notice of its intention to conduct any invasive testing,
inspections or investigations and Seller reserves the right to
have a representative present, and to reasonably approve the
time of such invasive testing. Subject to the provisions of
Section 17.11, Purchaser shall have complete access to all
documentation, agreements and other information in the
possession of Seller related to the ownership, use and operation
of the Property, and shall have the right to make copies of such
documentation at its sole cost and expense. In addition,
Purchaser shall have the right to cause a Phase I and, if
warranted or desirable and consented to by Seller, a Phase II -
Environmental Study of the Property to be performed during the
Feasibility Period. In no event shall Seller be obligated to
perform any remediation or repairs as a result of Purchaser's
investigations. Except as set forth above, Purchaser shall not
make any physical alterations to the Improvements, and entry by
Purchaser onto the Property shall not unreasonably interfere
with the tenants or management of the Property. Purchaser shall
have the right to interview the tenants only in the presence of
representatives of Seller.
Purchaser shall be responsible, at the Purchaser's
sole expense, for repairing any damage to the Property caused by
the making of such inspections, investigations, samplings,
studies and tests and the Purchaser hereby indemnifies and
agrees to hold harmless the Seller against any loss or damage,
or claim (including reasonable attorneys' fees and court costs
in the defense of the preceding), resulting from the Purchaser
(or the Purchaser's agents, employees, invitees, or independent
contractors) entering onto the Property or the conducting of
activities thereof. The provisions of this sentence shall
survive the termination of this Agreement for a period of three
(3) years and shall be fully enforceable notwithstanding such
termination.
6.2 Feasibility Period. The feasibility period shall
commence upon the date on which this Agreement is fully executed
by Seller and Purchaser (or the later date on which any of said
parties executes this Agreement if the parties do not execute
this Agreement simultaneously) (the "Effective Date") and shall
terminate at 5:00 p.m. Eastern Time forty-five (45) days
thereafter (the "Feasibility Period"), provided if Seller
completes its due diligence under the Related Contracts prior to
expiration of the Feasibility Period, Seller shall notify
Purchaser and the Feasibility Period shall expire September 14,
1995. If, prior to the termination of the Feasibility Period,
Purchaser gives Seller written notification (the "Termination
Notice") (time being of the essence), that Purchaser elects not
to consummate the purchase of the Property in accordance with
this Agreement, then Purchaser and Seller acknowledge and agree
that this Agreement shall be conclusively deemed to be
terminated and this Agreement shall be of no further force and
effect and Purchaser shall, within two days thereof, return the
originals of all documents and materials (and all copies) which
the Seller has produced pursuant to this Agreement to the Seller
and at such time by doing so, Purchaser shall have represented
that such tender be complete and thorough. The Purchaser shall
have the absolute right, in its sole discretion, to determine
whether to give the Termination Notice. In the event the
Termination Notice is given, neither party shall have further
liability to the other under this Agreement. If Purchaser
elects not to, or fails timely to, give the Termination Notice,
then this Agreement shall remain in full force and effect.
Purchaser may shorten the Feasibility Period by providing Seller
written notice of the date on which the Feasibility Period shall
end.
6.3 Due Diligence Materials. Purchaser hereby
acknowledges receipt of copies of all the documents and items
listed on Exhibit B attached hereto and incorporated herein. In
addition, Seller shall provide Purchaser with such other
reasonable documentation, agreements and other information in
the possession of Seller relating solely to the ownership, use
and operation of the Property as Purchaser reasonably requests.
6.4 Continued Right to Access. In the event Purchaser
does not terminate this Agreement as provided in this Section
6.2 during the Feasibility Period, Purchaser and/or its
designees shall have the continued right through the Closing
Date to examine and review all such data and financial
information, inspect the premises, survey and make other tests
and analyses as it deems necessary or desirable, subject to the
indemnity provisions of Section 6.1 above. Notwithstanding any
examinations, inspections, surveys or tests, Purchaser shall be
entitled to the benefit of all covenants and warranties of
Seller contained in this Agreement and subject to Section 8.2
and 17.10, said review, inspection, survey and tests and failure
to terminate shall not be a waiver or relinquishment of any
covenant or warranty of or by Seller.
7. Title
7.1 Condition of Title. Title to the Land and the
Improvements shall, as a condition of Closing of Purchaser, be
indefeasible, merchantable and marketable, good of record and in
fact, and insurable without exception at standard rates by the
Title Company (as hereinafter defined), free of all interests,
encumbrances, liens, judgments, tenancies and covenants,
excepting only the following permitted exceptions ("Permitted
Exceptions") (i) the lien of real estate taxes and special
assessments not yet due and payable; (ii) the Leases described
in Exhibit D and such other leases as may be approved by
Purchaser in accordance with the provisions of Section 7.4
below; and (iii) such other matters as are set forth in Exhibit
C attached hereto and made a part hereof.
7.2 Title Commitment. Purchaser shall promptly order a
title insurance commitment (1987 ALTA Form "B" or the
equivalent) (the "Commitment") issued by a national title
company chosen by Purchaser (the "Title Company") agreeing to
issue to Purchaser upon recording of the Deed (as hereinafter
defined), an ALTA Owners' Form (1992) policy of title insurance
("Title Policy") in the amount of the Purchase Price showing
title to the Land and Improvements vested in Purchaser, subject
only to the Permitted Exceptions, and such other title
exceptions as Purchaser has agreed to accept or is deemed to
have accepted pursuant to this Agreement.
7.3 Failure of Title. If the Seller cannot convey title
as set forth in Section 7.1, at the option of the Purchaser,
this Agreement may be terminated within three (3) Business Days
after the Outside Closing Date unless the title defect(s) can be
readily remedied by legal or other action. Subject to the
provisions of the last sentence of this Section 7.3, if legal or
other action is necessary to cure title defects, Seller may take
such action at its own expense whereupon the time for Closing
shall be extended for up to thirty (30) days. In the event such
title encumbrance is not cured within said additional thirty
(30) days, the Purchaser shall have the option, to be elected
within ten (10) days after expiration of such thirty (30) day
period, to (i) terminate this Agreement in which event the
Escrow Agent shall deliver the Deposit to Purchaser, or (ii)
purchase the Property without reduction in Purchase Price.
Notwithstanding the foregoing, in the event such title
encumbrance was caused, created or permitted by the act or
omission of Seller, Seller must take affirmative action to cure
such title encumbrance and the failure of Seller to do so shall
constitute a breach of this Agreement except that Seller shall
have no obligation to spend more than One Hundred Thousand
Dollars ($100,000) in cure of the same.
7.4 New Leases. Seller covenants and agrees not to
hereafter enter into any lease (including any renewal, expansion
or modification of an existing Lease) of all or any portion of
the Property (a "Lease Transaction") without, in each instance,
the prior written consent of Purchaser, which consent shall be
deemed given unless Purchaser notifies Seller to the contrary
within two (2) business days after receipt of all information
reasonably required by Purchaser in order to evaluate the
proposed Lease Transaction; provided, however, that the exercise
by any existing tenant under a Lease in effect as of the date of
this Agreement of any option contained in such tenant's Lease
shall not be deemed a Lease Transaction prohibited hereby.
7.5 Affidavits to Title Company. Upon request by
Purchaser, Seller shall execute such reasonable and customary
affidavits, indemnities, and other similar type instruments as
are required reasonably by Title Company for the elimination of
any standard or pre-printed exceptions in Purchaser's final
Title Policy, including, without limitation, the exception for
unfiled mechanics' liens and parties in ossession.
7.6 Survey. Purchaser shall have the right to cause a
survey of the Property to be prepared, at Purchaser's expense;
provided, however, any disapproval of the condition of the
Property based on matters that would be disclosed by a survey
("Disclosed Matter") shall be given to Seller prior to the
expiration of the Feasibility Period, and Seller shall have no
obligation to remedy any Disclosed Matters except as may be
expressed agreed to in writing by Seller prior to the expiration
of the Feasibility Period.
8. Representations and Warranties of The Seller
8.1 By Seller. Subject to the provision of Section 8.2
hereof, Seller hereby represents and covenants to Purchaser that
each of the following representations and warranties is true and
correct as of the date of execution of this Agreement and shall
be true and correct as of the Closing Date. The representations
and warranties provided by Seller shall for purposes of this
Article 8 be deemed to include Bedford Property Investors, Inc.,
who shall remain liable to Purchaser to the same extent as the
Seller hereunder.
8.1.1 Authority. Seller has full and absolute
power and authority to enter into this Agreement and all
ancillary documents delivered pursuant hereto, and to
assume and perform all of its obligations hereunder and
thereunder. The execution and delivery of this Agreement
and the documents required to be executed and delivered by
Seller in connection with Closing and the performance by
the Seller of its obligations hereunder and thereunder
have been duly authorized by all requisite action and no
further action or approval is required in order to
constitute this Agreement and the transactions
contemplated hereby as a binding and enforceable
obligation of the Seller.
8.1.2 Title. To the best of Seller's
knowledge, Seller is the legal and equitable owner of the
Land and the Building, with full right to convey the Land,
the Building, the Leases and the security deposits
currently being held by Seller. Seller makes no
representation or warranty concerning title to the
Personalty.
8.1.3 Legal Action Against Seller. Seller has
received no written notice of any judgments, orders, or
decrees of any kind against Seller unpaid or unsatisfied
of record, or of any legal action, suit or other legal or
administrative proceeding pending before any court or
administrative agency relating to the Property which would
adversely affect the Property for its present use, or of
any state of facts which might result in any such action,
suit or other proceeding. To the best of Seller's
knowledge, there is no threatened legal action suit or
other legal or administrative proceeding before any court
or administrative agency relating to the Property which
would adversely affect the Property for its present use.
8.1.4 Bankruptcy or Debt of Seller. Seller is
not in the hands of a receiver and has not committed an
act of bankruptcy; and to the best of Seller's knowledge
and belief, there are no due but unpaid income, property
or franchise taxes of Seller which constitutes a lien
against the Property.
8.1.5 Compliance with Existing Law. Seller has
received no written notice of any violations of any law,
municipal or other governmental ordinances, orders, rules,
regulations or requirements, or of any restrictive
covenants against or affecting the Property, or any part
thereof, nor is Seller aware of any facts which might
result in such violation. To the best of Seller's
knowledge and belief, the execution of this Agreement by
Seller, and the consummation of the transaction described
herein, does not and will not cause Seller to be in
violation of any such law, ordinance, order, or
requirement or of any agreement or contract to which
Seller is a party.
8.1.6 Condemnation. To the best of Seller's
knowledge and belief, but without making any inquiry, (i)
there are no pending or contemplated condemnation
proceedings affecting the Property, or any part thereof
nor is Seller aware of any such contemplated proceedings,
and (ii) Seller has not made any commitment to any board,
bureau, commission, department or body of any municipal,
county, state or federal governmental unit or any
subdivision thereof, having jurisdiction over the Property
or the use or improvements thereto ("Governmental
Authority") or to any other third party to dedicate or
grant any portion of the Property for roads, easements,
rights-of-way, park lands or for any other public
purposes, to construct any recreational facilities, to
impose any restrictions or incur any other expense or
obligation relating to the Property, except as may be set
forth in the commitment or on Exhibit E attached hereto
and incorporated herein by reference.
8.1.7 Violations and Proffers. Seller has not
proffered any improvements or alterations to the Property
to any Governmental Authority, nor has Seller entered into
any other form of binding commitment relating to the
zoning of the Property with any Governmental Authority.
8.1.8 The Property. (i) To the best of
Seller's knowledge and belief, the Improvements are in
good operating condition and repair, subject only to
ordinary wear and tear, (ii) to the best of Seller's
knowledge and belief, there are no existing material
structural defects in the Improvements constituting a part
of the Property, and all plumbing equipment, heating,
ventilating and air-conditioning equipment, the electric
wiring and fixtures, and the water and sewage systems
presently in the Property are in good working order and
condition, (iii) to the best of Seller's knowledge and
belief except as may otherwise be disclosed on the title
information or survey delivered by Seller to Purchaser,
the Buildings and other Improvements (including the
parking areas) do not in any way encroach on any adjoining
property (excluding any lots described in Exhibit A).
8.1.9 Liens. To the best of Seller's knowledge
and belief, there are no mechanics' liens against the
Property; no claims for labor, services, profit or
material furnished for constructing, repairing or
improving the same, nor does Seller anticipate any such
claims, except in the normal course of Seller's business,
which will be paid as of the Closing Date or for which the
Purchase Price shall be adjusted at Closing; no liens have
been filed; and no petitions, actions or suits to
establish or enforce any such liens have been filed, nor
has Seller received any notice of any intention to do so.
8.1.10 Asbestos, PCBs, Hazardous Materials. To
the best of Seller's knowledge and belief, but without
having undertaken any study, other than environmental
assessment reports (the "Environmental Reports") prepared
by McLaren/Hart Environmental Engineering and Law
Engineering Inc. which will be provided to Purchaser,
there is no presence of any Hazardous Waste, Hazardous
Substance or Toxic Substance (including, without
limitation, asbestos) (collectively "Hazardous Wastes") on
or at the Property, except as may be disclosed in the
Environmental Reports or used by tenants in the ordinary
course of business in accordance with all applicable law,
rules and regulations. For purposes of this Agreement,
"Hazardous Waste", "Hazardous substances", and "Toxic
Substances" means, without limitation: (i) those
substances included within the definitions of any one or
more of the terms "hazardous substances," "hazardous
materials," and "toxic substances," in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), as amended, 42 U.S.C. Sec. 9061 et seq.,
the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Sec. 6901 et seq., and the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. 1801
et seq., and in the regulations promulgated pursuant to
said laws; (ii) those substances listed in the United
States Department of Transportation Table (49 CFR 172.101
and amendments thereto) or by the Environmental Protection
Agency (or any successor agency) as hazardous substances
(40 CFR Part 302 and amendments thereto); (iii) such other
substances, materials and wastes as are regulated under
applicable local, state or federal laws, or which are
classified as hazardous or toxic under federal, state or
local laws or regulations; and (iv) any materials, wastes
or substances that are (a) petroleum; (b) friable
asbestos; (c) polychlorinated biphenyls; (d) designated as
a "Hazardous Substance" pursuant to Section 311 of the
Clean Water Act, 13 U.S.C. 1321 et seq. (33 U.S.C.
1321) or designated as "toxic pollutants" subject to
Chapter 26 of the Clean Water Act pursuant to 307 of the
Clean Water Act (33 U.S.C. 1317); (e) flammable
explosives; or (f) radioactive materials, and all
regulations promulgated thereunder. To the best of
Seller's knowledge and belief, but without having made a
review of the records of any Governmental authority, the
Property has never been used for industrial purposes or
for the storage, treatment or disposal of hazardous wastes
or materials nor has the Property ever been listed by any
governmental agency as containing any oil, hazardous
waste, hazardous material, chemical waste or other toxic
substance.
8.1.11 Leases. Exhibit D contains a complete
and accurate description of all leases and tenancies and
all amendments or extensions thereto, (collectively, the
"Leases") affecting the Property as of the date of this
Agreement (such exhibit to list all Leases; the monthly
rent each tenant is currently paying; the security deposit
for each tenant; and the expiration date of each Lease).
To the best of Seller's knowledge and belief, each of the
Leases described on Exhibit D is in full force and effect
in accordance with its terms and has not been modified,
amended or extended except as set forth therein, and is
assignable by the Seller to the Purchaser without the need
for the consent of any party. The monthly or annual rent
listed opposite the name of each tenant on Exhibit D is
the current rental due and is the amount actually billed
to each of the tenants for the month immediately preceding
the date of this Agreement. Except as otherwise set forth
on Exhibit D-1, to the best of Seller's knowledge and
belief, none of the tenants is in default (beyond any
applicable grace period provided by such tenant's Lease)
in the payment of any rent due under its Lease or, to the
Seller's knowledge, in the performance or observance of
any material covenant or condition to be kept, observed or
performed by it under its Lease. To the best of Seller's
knowledge and belief, none of the tenants is entitled to
any rebate, concession, deduction or offset, except as set
forth in its Lease, or has paid any rent or other charge
of any nature for a period of more than thirty (30) days
in advance.
8.1.12 Lease Obligations. Seller has fully
performed all of Seller's obligations under the Leases
that are or shall be required to be performed prior to the
Closing Date and all tenant improvement construction work
completed by Seller has been accepted by the tenants.
Seller has satisfied and shall satisfy in a timely manner
all obligations that it has assumed under the Leases,
holding Purchaser harmless from such obligations in
accordance with the indemnification contained in Section
13.1, except that Purchaser shall pay, or reimburse Seller
for all tenant improvements, construction costs and
leasing commissions incurred as a result of Lease
Transactions approved by Purchaser in accordance with the
terms of Section 7.4 hereof. To the best of Seller's
knowledge and belief, no brokerage commission or other
compensation is or will be due or payable to any person,
firm, corporation or other entity with respect to or on
account of the Leases, or any renewal thereof, except as
may be set forth on Exhibit D-2 attached hereto and
incorporated herein by reference.
8.1.13 Operating Statements. The operating
statements to be provided to Purchaser which have been
prepared by Seller accurately and completely reflect the
revenue, expenses and income for the Property for the
periods covered thereby, and the amount of each individual
item of revenue and expense set forth therein is true and
correct in all material respects.
8.1.14 Outstanding Contracts. As of the
Closing Date, any management, service, supply, security,
maintenance or similar contracts ("Contracts") with
respect to the Property shall either be terminated (or
terminable on thirty (30) days' notice) or shall be
approved and accepted by Purchaser in writing.
8.1.15 Insurance. Seller has in full force and
effect fire, extended risk and liability insurance
policies covering the Property. Seller shall maintain
such insurance through the Closing Date. Seller has not
received from any insurance company carrying insurance or
that has carried insurance on the Property any written
notice of any material defect or inadequacy in connection
with the Property or its operation.
8.1.16 Licenses and Permits. To the best of
Seller's knowledge and belief, but without having made any
inquiry, all licenses and permits necessary or required
under the laws, ordinances, rules and regulations of the
appropriate jurisdiction for the occupancy and use of the
Buildings or other facilities of the Property are binding
and effective.
8.1.17 Taxes. Seller has received no written
notice that the Property is subject to any special taxes,
assessments or benefit charges, nor has Seller received
notice of the intention of any Governmental Authority to
impose any such special taxes, assessments or benefit
charges, except as may be set forth on Exhibit E attached
hereto, or in the title information delivered to Purchaser
by Seller prior to the date hereof, and incorporated
herein by reference.
8.1.18 No Material Omissions. To the best of
Seller's knowledge and belief, neither this Agreement
(including the Exhibits) nor any other certificate,
statement, document or other information furnished or to
be furnished to Purchaser by or on behalf of Seller
pursuant to or in connection with the transaction
contemplated by this Agreement contains or will contain,
any misstatement of material fact, or omits or will omit
to state a fact necessary in order to make the
representations, warranties and other statements herein or
therein contained not misleading.
8.1.19 Foreign Person. Seller is not a foreign
person within the meaning of Section 1445(f) of the
Internal Revenue Code, and Seller agrees to execute any
and all documents necessary or required by the Internal
Revenue Service or Purchaser in connection with such
declaration(s).
8.2. Limitation on Representations and Warranties
Whenever in this Agreement Seller makes any
representation or warranty to the best of Seller's
knowledge or qualified as to receipt of written notice by
Seller, such representation or warranty shall be based
upon the actual knowledge of Seller. As used in this
Agreement, the actual knowledge of Seller shall be deemed
to be limited solely to the actual knowledge of Robert E.
Pester. Notwithstanding anything to the contrary in this
Agreement, Seller shall not be liable hereunder for breach
of a representation or warranty of Seller to the extent
that Purchaser has actual knowledge of such breach as a
result of its due diligence investigation of the Property
or its ownership of surrounding properties.
9. Additional Conditions to Settlement
Seller hereby covenants and agrees as follows:
9.1 Normal Operation of Property. Seller will carry on
the business of the Property in the ordinary course and in a
good and diligent manner consistent with prior practice through
the Closing Date, and cause the continuation of the normal
practice with respect to maintenance and repairs, including but
not limited to the completion of all tenant finishing work
required under any lease entered into by Seller prior to the
Closing Date (or if not so completed, provision therefor will be
made at Closing) subject to reimbursement by Purchaser pursuant
to Section 8.12.
9.2 Payment of Leasing Costs. Seller shall pay in full
all leasing commissions, all moving allowances and all other
tenant concessions (other than free rent following the Closing
Date) for all Leases, which obligations have accrued to the
Closing Date, to the extent that Seller has knowledge of same,
subject to reimbursement by Purchaser pursuant to Section 5.3.8.
9.3 Removal of Personal Property. Seller shall not
remove or permit to be removed from the Improvements any item or
article defined as Personal Property hereunder except as may be
necessary for repairs or discarding worn out or useless items,
provided that discarded items shall be replaced with new items
of substantially equal quality and quantity and shall be free
and clear of any lien or encumbrance.
9.4 Further Assurances. Seller agrees that it will, upon
reasonable notice and from time to time after the Closing Date,
upon request of Purchaser, do, execute, acknowledge and deliver,
or will cause to be done, executed, acknowledged and delivered,
all such further acts, deeds, assignments, transfers,
conveyances and assurances as may be reasonably required for the
better assignment, transfer and granting of the Property to
Purchaser, its successors or assigns, but nothing herein shall
obligate Seller to incur any liability beyond that set forth
elsewhere in this Agreement.
9.5 Seller's Deliveries. Seller shall deliver to
Purchaser the following at Closing:
9.5.1 A special warranty deed in recordable
form properly executed by Seller conveying to Purchaser
the Land and the Improvements, in fee simple, subject only
to the Permitted Exceptions, in the form attached hereto
as Exhibit H;
9.5.2 A bill of sale for all Personal Property
in the form attached hereto as Exhibit I;
9.5.3 A FIRPTA affidavit;
9.5.4 All original books, records, tenant
files, operating reports, files, plans and specifications
and other materials in Seller's possession necessary to
the continuity of operation of the Property;
9.5.5 The original executed Leases described in
Exhibit D hereof, together with an assignment of such
Leases, in the form attached hereto as Exhibit I;
9.5.6 A certified rent roll for the Property,
in substantially the same form as Exhibit D-3;
9.5.7 With respect to any service contracts to
be assumed by Purchaser, all original service contracts or
copies thereof relating to the Property together with an
assignment of such contracts in the form attached hereto
as Exhibit I;
9.5.8 Any warranties or guaranties relating to
the Personal Property to the extent assignable without
cost to Seller;
9.5.9 All original certificates of occupancy
relating to the Property to the extent in Seller's
possession;
9.5.10 Any certificates of insurance from the
tenants in Seller's possession;
9.5.11 All original as-built plans and
specifications relating to the Property to the extent in
Seller's possession;
9.5.12 An assignment of all permits, licenses,
certificates and authorizations relating to the Property,
in the form attached hereto as Exhibit I;
9.5.13 All keys to the Improvements which
delivery shall comprise at least one full set of keys;
9.5.14 Letters to all tenants advising them of
the sale to Purchaser in the form attached hereto as
Exhibit J;
9.5.15 A certificate reaffirming all
representations and warranties of Seller set forth in
Article 8 in the form attached hereto as Exhibit K, except
for Encumbrances consented to by Purchaser; and
9.5.16 Such other consents, approvals,
affidavits, estoppel certificates and other instruments
and documents as may be reasonably required by Purchaser
or the Title Company prior to Closing, including, without
limitation, the standard form affidavit required by the
Title Company in order to remove all standard title
exceptions except the leases. Such affidavits,
indemnities and other similar type instruments as may be
requested pursuant to Section 7.5 hereof.
9.6 Tenant Estoppel Certificates. Purchaser shall
receive prior to the Closing Date estoppel certificates from
each tenant addressed to Purchaser in the form attached hereto
as Exhibit L (the "Basic Estoppel Certificate"). Seller shall
use commercially reasonable efforts to obtain estoppel
certificates prior to the end of the Feasibility Period, it
being acknowledged that Seller shall have no obligation to pay
money or to grant other concessions to any tenant in order to
obtain such estoppel certificate.
With respect to estoppel certificates received by
Purchaser at least seven (7) days prior to the end of the
Feasibility Period, Purchaser shall inform Seller before the
expiration of the Feasibility Period if Purchaser objects to any
matter contained in any such estoppel certificate. If Purchaser
does not so inform Seller of its objection prior to the
expiration of the Feasibility Period, then, Purchaesr shall be
deemed to have approved such estoppel certificates. With
respect to estoppel certificates delivered to Purchaser after
such date, Purchaser agrees to inform Seller within ten (10)
days after receiving any such estoppel certificates if Purchaser
objects to any matter contained in such estoppel certificates.
If Purchaser does not inform Seller of its objection within such
ten (10) days period, then Purchaser shall be deemed to have
approved such estoppel certificate. If Purchaser objects to any
exceptions, qualifications, or modifications contained in any
estoppel certificate within the Feasibility Period or within
such ten -day period, as applicable, then Seller shall have a
period of up to thirty (30) days to remedy or cure the subject
matter of such exception, qualification, or modification and to
deliver a substitute estoppel certificate from the tenant which
does not contain such exception, qualification, or modification,
and if necessary, the Closing shall be extended to the end of
such 30-day period. Purchaser shall be obligated to proceed to
Closing only so long as it has received estoppel certificates
acceptable to Purchaser in accordance with the standards set
forth above from all tenants.
9.7 Payment of Bills and Claims. All bills and
claims for labor performed and materials furnished to Seller for
the benefit of the Property during the period preceding the
Closing Date shall be paid in full at or prior to Closing (or
bonded off to the satisfaction of the Purchaser and its
counsel).
9.8 Maintaining the Property. During the period between
the date of this Agreement and the Closing Date, Seller shall
(i) use all reasonable efforts to keep available the services of
its present employees and to maintain its relation with tenants,
suppliers and others having business dealings with it; (ii) at
Seller's expense, maintain the Property in the same order and
condition as the Property was in on the date of this Agreement,
reasonable wear and tear and damage by casualty excepted
provided, however, that if the cost of providing any capital
items or major repairs contemplated by this subsection would
otherwise be reimbursed by the tenants, Seller shall promptly
notify Purchaser of such cost and if Purchaser approves of such
expenditure, Seller shall perform the work and Purchaser shall
reimburse Seller for such costs at Closing; (iii) maintain all
existing insurance policies relating to the Property, including
rental abatement insurance, in full force and effect, (iv) not
mortgage or encumber the Property or any part thereof, (v)
cooperate fully with Purchaser to insure that the transfer of
the Property takes place without inconvenience to tenants and
with the least possible disruption in the normal operation of
the Property; and (vi) cooperate with Purchaser in effecting the
transfer contemplated by this Agreement.
9.9. Seller hereby agrees that until the Closing or
prior termination of this Agreement, Seller shall not sell,
convey or transfer all or any part of the Property to a third
party, or contract to do so, except as otherwise expressly
permitted in this Agreement.
10. Representations and Warranties of Purchaser
Purchaser warrants and represent to Seller as follows:
10.1 Authority. Purchaser is a corporation, duly formed,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts. Purchaser has full and absolute
power and authority to enter into this Agreement and all
ancillary documents delivered pursuant hereto, and to assume and
perform all of its obligations hereunder. The execution and
delivery of this Agreement and the performance by the Purchaser
of its obligations hereunder have been duly authorized by all
requisite action and no further action or approval is required
in order to constitute this Agreement as a binding and
enforceable obligation of the Purchaser.
10.2 Legal Action Against Purchaser. To the best of
Purchaser's knowledge and belief, there are no judgments,
orders, or decrees of any kind against Purchaser unpaid or
unsatisfied of record which would adversely affect the Closing
hereunder, nor any legal action, suit or other legal or
administrative proceeding pending before any court or
administrative agency.
10.3 Bankruptcy or Debt of Purchaser. Purchaser is not in
the hands of a receiver and has not committed an act of
bankruptcy.
10.4 Binding on Purchaser. The execution and delivery of
this Agreement by the Purchaser and the consummation of the
transaction contemplated hereby will be binding upon Purchaser.
The undersigned individual(a) is authorized to sign on behalf of
Purchaser and no additional signatures are required to bind
Purchaser.
11. Risk of Loss
Until recordation of the Deed, the risk of loss or damage
to the Property or any portion thereof shall be assumed by
Seller. In the event of damage to less than ten percent (10%)
of the Property, Seller shall either repair the damage or give
Purchaser a credit against the Purchase Price for the cost of
repairs. In the event of damage to the Property by fire or
other casualty, act of God or any other event, to the extent
that ten percent (10%) or more of the total area of the Property
is damaged as of the Closing Date, Purchaser, at its sole
option, exercised within twenty-one (21) days of receiving
notice of such event, shall have the right to (a) terminate this
Agreement and obtain a refund of its Deposit; or (b) close, in
which event, if restoration has not been completed, the
insurance proceeds (including all rental abatement insurance
applicable to the period after the Closing) as well as any
unpaid claims or rights in connection with such casualty, shall
be assigned to Purchaser at the Closing or, if paid to Seller
prior to Closing, shall be credited at the Closing, together
with the amount of the deductible under the applicable insurance
policy, against the Purchase Price. Purchaser shall have the
right to participate in the negotiations and settlement of any
casualty-related claim in the event Purchaser elects to proceed
with Closing.
12. Condemnation
Seller agrees to give Purchaser written notice of any
action or proceeding instituted or pending, in eminent domain or
for condemnation affecting any part of the Property, promptly
after Seller's receipt thereof. If, prior to the Closing Date,
all or any part of the Property is taken by condemnation or
eminent domain proceeding or other transfer in lieu thereof,
this Agreement may be terminated at the option of Purchaser by
written notice to Seller given within five (5) business days
after Seller gives Purchaser the notice of such condemnation or
conveyance in lieu thereof. If Purchaser elects not to
terminate this Agreement, then this Agreement shall remain in
full force and effect, and Seller shall at Closing assign to
Purchaser all rights of Seller to the condemnation award, but
there shall be no reduction in the Purchase Price.
13. Indemnification
13.1 By Seller. Seller agrees to indemnify and hold
Purchaser harmless from and against all acts of Seller with
respect to:
13.1.1 Subject to the provisions of Section
17.10 hereof, any actual (but not consequential) loss,
liability or damage suffered or incurred by Purchaser
because any representation or warranty of Seller contained
in this Agreement is found to be false in any material
respect;
13.1.2 all reasonable costs and expenses
incurred by Purchaser in connection with any action, suit,
proceeding, demand, assessment or judgment incident to any
of the matters indemnified against in this Section 13.1,
in which Purchaser is the prevailing party.
13.2 By Purchaser. Purchaser agrees to indemnify and hold
Seller harmless from and against:
13.2.1 Subject to the provisions of Section
17.10 hereof, any actual (but not consequential) loss,
liability or damage suffered or incurred by Seller because
any representation or warranty of Purchaser contained in
this Agreement is found to be false in any material
respect;
13.2.2 all reasonable costs and expenses
incurred by Seller in connection with any action, suit,
proceeding, demand, assessment or judgment incident to any
of the matters indemnified against in this Section 13.2,
in which Seller is the prevailing party.
14. Default
14.1 Purchaser's Default. If Purchaser, when otherwise
obligated under this Agreement to do so, fails to consummate the
purchase and sale contemplated herein after all conditions
precedent to Purchaser's obligation to consummate such
transactions have been satisfied or waived by Purchaser, the
Deposit shall be delivered to Seller as full and complete
liquidated damages, as the exclusive and sole right and remedy
of Seller, whereupon this Agreement shall terminate and neither
party shall have any further obligations or liabilities to any
other party.
14.2 Seller's Default. If Seller through no action,
inaction or fault of Purchaser, has failed, refused, is unable
to consummate or if Seller has breached a representation or
warranty that prevents the consummation of the purchase and sale
contemplated herein by the Closing Date, then unless such
breach, failure, refusal or inability is waived in writing by
Purchaser, Escrow Agent shall be required to return the Deposit
to Purchaser and (a) Purchaser may avail itself of any legal or
equitable rights (including, without limitation, the right of
specific performance and/or money damages which Purchaser may
have at law or in equity or under this Agreement), or (b)
Purchaser shall have the right, but not the obligation, to
extend the Closing Date for an additional period to permit
Seller to cure its default without the payment of any further
deposit, provided that if Purchaser extends the Closing Date
pursuant to this Section 14.2(b) and Seller fails to close in
accordance with the requirements of this Agreement within such
time, then Purchaser may exercise any of its rights and remedies
provided for in Section 14.2(a). Seller shall reimburse
Purchaser for all expenses incurred, including reasonable
attorneys' fees, in connection with any action brought under
this Section 14.2.
15. Broker
Seller shall pay any and all brokerage commissions due
Block & Company, Inc. in connection with this transaction, which
payment shall be made pursuant to a separate agreement. Except as
provided above, the parties hereto agree and represent to each other
that no broker, agent or finder has been engaged on their behalf or
otherwise involved in this transaction and each party shall
indemnify, defend and hold the other harmless from and against the
claims of any other broker, agent, consultant of finder claiming to
have acted on behalf of such party in connection with this
transaction or this Agreement.
16. [Intentionally Deleted]
17. Miscellaneous
17.1 Notices. Any and all notices, requests or other
communications hereunder shall be deemed to have been duly given
if in writing and if transmitted by hand delivery with receipt
therefor, by facsimile delivery (with confirmation by hard
copy), by overnight courier, or by registered or certified mail,
return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a
communication may have notified the sender thereof) (the date of
such notice shall be the date of actual delivery to the
recipient thereof):
To Purchaser: TA Realty Corporation
45 Milk Street
Boston, Massachusetts 02109
Attn: Mr. Scott D. Freeman
With a copy to: Bingham, Dana & Gould
1550 M Street, N.W.
12th Floor
Washington, D.C. 20005
Attn: David M. Astrove, Esq.
To Seller: ICMPI, Inc.
c/o Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, California 94549
Attn: Mr. Robert E. Pester
17.2 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Kansas.
17.3 Headings. The captions and headings herein are for
convenience and reference only and in no way define or limit the
scope or content of this Agreement or in any way affect its
provisions.
17.4 Counterpart Copies. This Agreement may be executed
in two or more counterpart copies, all of which counterparts
shall have the same force and effect as if all parties hereto
had executed a single copy of this Agreement.
17.5 Binding Effect. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
17.6 Assignment. This Agreement and all rights of
Purchaser arising hereunder shall not be assigned, sold, pledged
or otherwise transferred by Purchaser, in whole or in part,
without the prior consent of Seller. Any attempted assignment
or other transfer without Seller's prior written consent will,
at Seller's option, be voidable and constitute a material breach
of this Agreement. Notwithstanding the foregoing, Purchaser
shall have the right to assign its rights and interests to this
Agreement to The Realty Associates Fund III, L.P., a Delaware
limited partnership, without Seller's consent.
17.7 Entire Agreement. This Agreement and the Exhibits
attached hereto contain the final and entire agreement between
the parties hereto with respect to the sale and purchase of the
Property and are intended to be an integration of all prior
negotiations and understandings. Purchaser, Seller and their
agents shall not be bound by any terms, conditions statements,
warranties or representations, oral or written, not contained
herein. No change or modifications to this Agreement shall be
valid unless the same is in writing and signed by the parties
hereto. No waiver of any of the provisions of this Agreement
shall be valid unless the same is in writing and is signed by
the party against with which it is sought to be enforced.
17.8 Severability. If any one or more of the provisions
hereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof,
and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein.
17.9 Survival. The provisions of this Agreement,
including without limitation, the representations and warranties
herein shall survive for three (3) years after the Closing and
shall not be merged therein. Subject to the foregoing, any
claim for any breach hereunder shall be time barred and the
applicable party shall have no liability arising hereunder as to
any claim made with respect to such breach unless an action for
the breach hereof is filed in a court of competent jurisdiction
prior to the three (3) year anniversary of the Closing.
17.10 Confidentiality. The parties hereto covenant
and agree that they shall not communicate the terms or any other
aspect of this transaction including but not limited to the due
diligence materials prior to the Closing with any person or
entity other than the other party and their respective agents
and employees and mortgagees, and shall treat the terms of this
Agreement in a confidential manner.
17.11 Agreement Not to Market. Seller agrees that
after the execution of this Agreement and prior to termination
or settlement hereunder, Seller shall take the Property off the
market and not solicit or accept any offers nor engage in any
discussions concerning the sale of the Property other than the
transaction contemplated herein.
17.12 Limitation of Liability. In no event shall any
officer, director or employee of Purchaser or Seller or their
respective partners be personally liable for any of the
obligations under this Agreement or otherwise.
17.13 Prevailing Party. Should either party employ an
attorney to enforce any of the provisions hereof or to recover
damages for the breach of this Agreement, the non-prevailing
party in any final judgment agrees to pay the other party's
reasonable expenses, including attorneys' fees and expenses in
or out of litigation and, if in litigation, trial, appellate,
bankruptcy or other proceedings, expended or incurred in
connection therewith, as determined by a court of competent
jurisdiction.
17.14 Liability of Escrow Agent. The parties
acknowledge that the Escrow Agent shall be conclusively entitled
to rely, except as hereinafter set forth, upon a certificate
from Purchaser or Seller as to how the Deposit should be
disbursed. Any notice sent by Seller or Purchaser (the
"Notifying Party") to the Escrow Agent shall be sent
simultaneously to the other noticed parties pursuant to Section
17.1 herein (the "Notice Parties"). If the Notice Parties do
not object to the Notifying Party's notice to the Escrow Agent
within ten days after the Notice Party's receipt of the
Notifying Party's certificate to the Escrow Agent, the Escrow
Agent shall be able to rely on the same. If the Notice Parties
send, within such ten days, written notice to the Escrow Agent
disputing the Notifying Parties certificate, a dispute shall
exist and the Escrow Agent shall hold the Deposit as hereinafter
provided. The parties hereto hereby acknowledge that Escrow
Agent shall have no liability to any party on account of Escrow
Agent's failure to disburse the Deposit if a dispute shall have
arisen with respect to the propriety of such disbursement and,
in the event of any dispute as to who is entitled to receive the
Deposit, disburse them in accordance with the final order of a
court of competent jurisdiction, or to deposit such funds with
said court pending a final decision of such controversy. The
parties hereto further agree that Escrow Agent shall not be
liable for failure to any depository .
(SIGNATURES APPEAR ON FOLLOWING PAGE)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date or dates set forth below.
SELLER:
ICMPI (Overland Park), Inc.
a Delaware corporation
WITNESS:
/s/ Bob Pester
Bob Pester
By: /s/ Peter B. Bedford
Name: Peter B. Bedford
Its: chairman & CEO
DATE: August 25, 1995
PURCHASER:
WITNESS: TA REALTY CORPORATION,
a Massachusetts corporation
/s/ Scott Freeman
Scott Freeman
By: /s/ Andrew Neher
Name: Andrew Neher
Its: S.V.P.
DATE: , 1995
The undersigned party hereby executes this Agreement for purposes
of making the representations and warranties contained in Article 8 of
this Agreement.
BEDFORD PROPERTY INVESTORS, INC.
a Maryland corporation
By: /s/ Peter B. Bedford
Its: Chairman & CEO
The undersigned party hereby executes this Agreement to evidence its
consent to serve as Escrow Agent in accordance with the terms of this
Agreement.
FIRST AMERICAN TITLE GUARANTY COMPANY
By: John G. Wilson
Its: VP
<PAGE>
/LIST OF EXHIBITS
EXHIBIT A - Legal Description
EXHIBIT B - Due Diligence Checklist
EXHIBIT C - Permitted Exceptions
EXHIBIT D - Existing Leases
EXHIBIT D-1 - Tenant Defaults
EXHIBIT D-2 - List of Brokerage Commissions
EXHIBIT D-3 - Rent Roll
EXHIBIT E - Pending Legal Action
EXHIBIT F - Environmental Reports
EXHIBIT G - List of Licenses and Permits
EXHIBIT H - Special Warranty Deed
EXHIBIT I - Form of Blanket Conveyance
EXHIBIT J - Form of Letter to Tenants
EXHIBIT K - Form of Seller's Reaffirmation of Representations and
Warranties
EXHIBIT L - Form of Tenant Estoppel Certificate
<PAGE>
EXHIBIT A
LEGAL DESCRI PTION
Tract 1:
The South 231 feet of Lot 6; all of Lot 5, except the South 200 feet
thereof, and the East 15 feet of the South 231 feet of Lot 3; all in
Block 3, CONGLETON INDUSTRIAL PARK, a subdivision in the City of
Overland Park, Johnson County, Kansas, according to the recorded plat
thereof.
Tract 2:
The non-exclusive easement appurtenant to and for the benefit of Tract
1 above described for ingress and egress for persons and vehicles
(pedestrian and vehicular) traffic upon all the terms and provisions of
the Easement Declaration dated March 4, 1982, filed for record March 15,
1982, as File NO. 1358001, over upon and across the following described
property in Johnson County, Kansas, to-wit:
The South 25 feet of the North 84 feet of Lot 6 and the South 25 feet
of the East 15 feet of the North 84 feet of Lot 3, all in Block 3,
CONGLETON INDUSTRIAL PARK, a subdivision in the City of Overland Park,
Johnson County, Kansas, according to the recorded plat thereof.
Tract 3:
Reciprocal Ingress and Egress Easement established by the declaration
filed December 5, 1990, as File No. 1990117, in Volume 3275, at Page
307, described as follows:
The North 28 feet of the South 37 feet of the West 300 feet of Lot 3,
all in Block 3, CONGLETON INDUSTRIAL PARK, a subdivision of land in the
City of Overland Park, Johnson County, Kansas, according to the recorded
plat thereof.
<PAGE>
EXHIBIT B
Due Diligenc e Documents
To Be Delive red By Seller
Which Are In The Possession Of Seller
Tenant Information (in possession of Seller)
1. Rent Roll completed to Purchaser's requirements, including sq.
ft., lease term, base and additional rent, expense stops and/or
passthroughs.
2. All leases and amendments thereto, including subleases.
3. List certified by Seller of all concessions made to tenants,
including free rent or reduced rent, above standard tenant
improvements, cash payments, moving allowances or takeover of
previous lease obligations.
4. Most recently available financial statements and credit reports
on any tenant with more than 10% of sq. ft. (or any other tenant
requested by Purchaser) and of any guarantors thereof (if
applicable).
5. Accounts receivable report as of the date of the Agreement and
monthly receivables reports for the prior 24 months.
6. Any letters of intent (executed or otherwise) with prospective
tenants.
7. Most recent leasing status report from leasing broker.
8. Standard form lease.
Operating Information (in possession of Seller)
1. Historical financials, including year end balance sheets and
income statements, for the period the Property has been owned by
the Seller, together with those financial statements provided by
Seller's predecessor in interest for the two prior years of
operation of the Property, about which Seller makes no
representation or warranty.
2. Year to date monthly operating statements certified by Seller.
3. Current operating and capital budgets, including comparison of
actual to budgeted, and an explanation of significant variances.
4. Listing of capital expenditures for the period the Property has
been owned by the Seller.
5. Copies of all service, maintenance, leasing, management or other
contracts.
6. Copies of real estate tax bills (including special assessments)
for the period the Property has been owned by the Seller.
Building Information (in possession of Seller)
1. Plans and specifications showing "as built" condition, with an
architect's certificate of the gross leasable area of the
Property.
2. All reports relating to the physical condition of the Property,
including engineering, mechanical, roof, environmental and
seismographic.
3. List of personal property to be transferred with the Property.
4. Copies of all warranty agreements concerning the Property.
Other Information in possession of Seller
1. Seller's most current title policy, reports or commitments,
including exceptions thereto.
2. All licenses, permits and approvals.
3. Evidence of compliance with all applicable laws, including zoning
regulations which are in the Seller's possession.
4. Certified boundary survey and title survey completed by a
registered surveyor, including a legal description and copies of
any title exceptions noted thereon.
5. Any market data (including rent and sale comparables) in Seller's
possession.
EXHIBIT C
PERMITTED EXCEPTIONS
1. 1990 General taxes include the following installments for special
assessments: (Includes other property)
Turkey Creek Main No. 1
Amount of Assessment; $319.28, PAID, expires 1993.
Turkey Creek Sewer No. 1
Amount of Assessment; $16.16, PAID, expires 2001.
b. Future assessments arising from pending public improvements,
levied by Turkey Creek Main Sewer District No. 1. (No assessments
have been levied as of the date hereof.)
2. Utility easement established in Misc. Book 156, at Page 118, over
the East 15 feet of Lots 5, 6, and 7 of subject property.
3. Easement granted to Kansas City Power and Light Company by the
Instrument filed in Volume 1435, at Page 714, as File No.
1214037, over North 10 feet of the South 210 feet of the West 236
feet of Lot 5 and West 5 feet of the North 118.55 feet of Lot 5
of subject property. (Affects Tract 1)
4. Easement granted to Kansas City Power and Light Company in Volume
1467, at Page 852, described as follows:
A tract of land 10 feet in width the center line of which is
described as follows: beginning on the South Line of Lot 3, Block
3, CONGLETON INDUSTRIAL PARK, a subdivision of land in Johnson
County, Kansas, at a point 5 feet West of the East line of said
Lot 3, thence Northerly to a point 48.9 feet North of said South
line and 10.4 feet West of the East line of said Lot 3, thence
North parallel with the East line of Lot 3 and Lot 2, block 3, of
said subdivision, a total distance of 3300 feet. (Affects Tract
1,2 and 3)
5. Utility easement established in Volume 1611, at Page 147, over
the West 15 feet of Lot 3, of subject property together with
terms and provisions contained therein. (Affects Tracts 1,2 and
3)
6. Covenants and restrictions contained in the instrument filed as
File No. 731753, in Misc. Book 156, at Page 118. Affects Tracts
1, 2 and 3)
By the Assignment filed May 25, 1983, as File No. 1408920, in
Volume 1861, at Page 222, The Congleton Corporation assigned and
conveyed to Tom G. Congleton and all its rights, reservations and
privileges reserved by it as Developer under the aforesaid
instrument.
7. Easement granted to Turkey Creek Main Sewer District No. 1, by
the instrument filed October 9, 1968, as File No. 816564,
recorded in Misc. Book 190, at Page 85, over the West 15 feet of
Lot 3.
8. Terms and provisions of the Declaration of Reciprocal Easements,
dated September 30, 1980, filed October 7, 1980, as File No.
1296859, in Volume 1611, at Page 152, creating easements for
telephone lines, storm sewer lines and conduits across the
property in question and adjoining properties. (Affects Tract 3)
9. Terms and Provisions of the Easement Declaration, dated as of
March, 1982, recorded March 15, 1982, as File No. 1358001, in
Volume 1745, at Page 652, establishing the easement described as
Tract 2, Schedule A, hereof.
10. Intentionally Omitted.
11. Terms and provisions of the Easement Declaration filed December
5, 1990, as File No. 1990117, in Volume 3275, at Page 307,
establishing the easement described as Tract 3, Schedule A
hereof.
<PAGE>
EXH IBIT D
EXI STING LEASES
Sola Optical USA, Inc.
Windsor Products
Interstate Supply Company
<PAGE>
EXH IBIT D
TEN ANT DEFAULTS
<PAGE>
EXHIBIT D-2
LIST OF BROKERAGE COMMISSIONS
<PAGE>
EXHIBIT D-3
RENT ROLL
(Additional Information submitted on a confidential basis)
<PAGE>
EXHIBIT E
PENDING LEGAL ACTION
None
<PAGE>
EXH IBIT F
ENV IRONMENTAL REPORTS
<PAGE>
EXHIBIT G
LIST OF LICENSES AND PERMITS
<PAGE>
EXHIBIT H
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS
THAT ICMPI, Inc., a corporation ("Grantor"), for
and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, has GRANTED, BARGAINED, SOLD, and CONVEYED
and by these presents does GRANT, BARGAIN, SELL, AND CONVEY unto
, a ("Grantee") that certain
tract or parcel of land in the City of Overland Park, County of
Johnson, State of Kansas, more particularly described in Exhibit A
attached hereto and incorporated herein by this reference, together
with all rights, titles, and interests appurtenant thereto (such land
and interests are hereinafter collectively referred to as the
"Property").
This Special Warranty Deed and the conveyance hereinabove set
forth is executed by Grantor and accepted by Grantee subject to the
matters described in Exhibit B attached hereto and incorporated
herein by this reference, to the extent the same are validly existing
and applicable to the Property (hereinafter referred to collectively
as the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular
the rights and appurtenances thereunto otherwise belonging, unto
Grantee, its successors and assigns forever, and Grantor does hereby
bind itself, its successors and assigns, to WARRANT AND FOREVER
DEFEND all and singular the title to the Property unto the said
Grantee, its successors and assigns against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by
through or under Grantor but not otherwise subject only to the
Permitted Encumbrances.
Grantee's address is: c/o TA Associates Realty
45 Milk Street
Boston, MA 02109
EXECUTED this the day of , 1995.
Subject to review for conformance with Kansas Law.
IN WITNESS WHEREOF Grantor has executed this Deed as of the day and
year first hereinabove written.
GRANTOR:
WITNESS: ICMPI, Inc.,
a corporation
By:
Its:
DATE: , 1995
)
) ss:
)
I, a Notary Public in and for the jurisdiction aforesaid, do hereby
certify that , personally appeared before
me in said jurisdiction and acknowledged himself or herself to be the
of Grantor in the foregoing and annexed Special
Warranty Deed bearing date as of the day of ,
1995, who, being by me first duly sworn, acknowledged said instrument
to be the act and deed thereof, and that by virtue of the authority
conferred upon him, executed and delivered the same as such for the
purposes therein contained.
WITNESS my hand and official seal this day of
, 1995.
Notary Public:
My Commission Expires:
<PAGE>
EXHIBIT I
BLANKET CONVEYANCE
THIS BLANKET CONVEYANCE (the "Bill of Sale") is made as of the
day of , 1995 by: (i) ICMPI, Inc.
("Seller"), and (ii) , a
("Purchaser").
KNOW ALL MEN BY THESE PRESENTS:
Concurrently with the execution and delivery hereof, pursuant to
a certain Agreement of Purchase and Sale dated
, 1995 (the "Purchase Agreement"), Seller is conveying to Purchaser
all of Seller's right, title and interest in and to the real property
described on Exhibit A attached hereto and made a part hereof (the
"Land") and in and to the building, parking areas and other
structures and improvements located on the Land (collectively, the
"Improvements") located in the County of Johnson, State of Kansas.
The Land and the Improvements are hereinafter sometimes collectively
referred to as the "Property".
It is the desire of Seller to hereby sell, assign, transfer,
convey, set-over and deliver to Purchaser all of Seller's right,
title and interest in and to the "Assigned Property" (hereinafter
defined).
1. Bill of Sale and Assignment.
Seller does hereby sell, assign, transfer, set-over and deliver
unto Purchaser, its successors and assigns, with special warranty of
title, all right, title and interest of Seller in and to:
(a) all furniture, fixtures, equipment and other personal
property except items owned by tenants, which are now placed in,
attached to or used in connection with or in the operation of the
Property.
(b) to the extent they may be transferred under
applicable law, all licenses, permits and authorizations, including,
without limitation, sewer rights and permits, presently issued in
connection with the operation of all or any part of the Property;
(c) to the extent they are assignable, all warranties, if
any, issued to Seller by any manufacturers and contractors in
connection with construction or installation of equipment included as
part of the Property;
(d) all service, supply and maintenance contracts (if
any) held by Seller with respect to the Property and its mechanical
equipment, elevators and other elements;
(e) all trade names, accounts receivable and general
intangibles relating to the Property; and
(f) all leases of all or any part of the Property.
TOGETHER with the immediate and continuing right to collect and
receive all of the rents, income, receipts, revenues, issues,
profits, deposits and proceeds now due or which may become due or to
which Seller may now or shall hereafter become entitled to make
demand or claim, arising or issuing from or out of any of the
foregoing items assigned or transferred by this Bill of Sale or from
or out of the Property or any part thereof, including, but not by way
of limitation, minimum rents, additional rents, tax and insurance
contributions, deficiency rents and liquidated damages following
default, the premium payable by any party upon the exercise of a
cancellation privilege originally provided for in any of the leases
or contracts, and any rights and claims of any kind which of the
Seller may have against any occupancy tenant under the leases or
against any subtenants or occupants of the Property or against any
Party other than Seller under the contracts; subject, however, to the
rights of Seller set forth in the Purchase Agreement to rents under
the leases assigned hereby attributable to the period prior to the
date hereof.
TO HAVE AND TO HOLD the improvements, leases, contracts,
personalty, security deposits, proceeds, permits, warranties and
intangible property (collectively, the "Assigned Property") unto
Purchaser, its successors and assigns, forever.
2. Representation and Warranty.
Seller represents, covenants and warrants that Seller is the
sole and lawful owner of all of the Assigned Property and that the
Assigned Property is free and clear of all claims, liens or
encumbrances whatsoever except for the Permitted Exceptions (as
defined in the Purchase Agreement). Seller further represents,
covenants and warrants that Seller has the full right, power and
authority to execute this Bill of Sale.
3. No Mechanics' Liens.
Seller hereby affirms that there are no unpaid bills or claims
for labor performed or materials furnished to or for the benefit of
the Property for which mechanics' liens can be filed, and that there
has been no casualty loss or damage to, or pending condemnation of,
any part of the Property.
<PAGE>
4. Assumption
Purchaser hereby expressly assumes all obligations and duties
with respect to the Assigned Property arising from and after the date
hereof.
5. Further Assurances.
Seller agrees that Seller will make, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances,
assignments, notices of assignments, transfers and assurances as
Purchaser shall from time to time reasonably require, for the better
assuring, conveying, assigning, transferring and confirming unto
Purchaser the Property and Assigned Property, and the rights hereby
conveyed or assigned or intended now or hereafter to be conveyed or
assigned to Purchaser, and all other Property as is herein conveyed
or is to be conveyed pursuant to the Purchase Agreement, or for
carrying out the intention or facilitating the performance of the
terms of this Bill of Sale and the Purchase Agreement or registering
or recording this Bill of Sale.
6. Counterpart Copies.
This Bill of Sale may be executed in two or more counterpart
copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this
Bill of Sale.
IN WITNESS WHEREOF, the parties have caused this Bill of Sale to
be executed as of the date first written above.
SELLER:
ICMPI, Inc.,
a corporation
By:
Its:
DATE: , 19
PURCHASER
,
a
By:
Its:
DATE: , 19 <PAGE>
EXHIBIT J
, 199
Attn:
Dear :
We are pleased to advise you that the building in which your premises
are located at has been sold by
effective as of , 199 . Your
lease agreement has been assigned to and accepted by
.
All future correspondence relating to your tenancy, as well as rent
checks and other charges, should be made payable and mailed to
, c/o
We look forward to working with you in the operation of this
Property.
Very truly yours,
,
a
By:
Its:
<PAGE>
EXHIBIT K
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
ICMPI, Inc., referred to as "Seller" under that certain
Agreement of Purchase and Sale dated , 1995, hereby
represents and warrants that the Seller's representations and
warranties in such Agreement are true and correct as of the date
hereof, except as otherwise indicated herein.
Dated: , 1995
WITNESS: SELLER:
ICMPI, Inc.,
a corporation
By:
Name:
Its:
<PAGE>
EXHIBIT K
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
, referred to as "Purchaser" under
that certain Agreement of Purchase and Sale dated ,
1995, hereby represents and warrants that the Purchaser's
representations and warranties in such Agreement are true and correct
as of the date hereof, except as otherwise indicated herein.
Dated: , 1995
WITNESS: PURCHASER:
,
a
By:
Name:
Its:
<PAGE>
EXHIBIT L
TENANT ESTOPPEL CERTIFICATE
To: TA Realty Corporation, its successors and assigns
45 Milk Street
Boston, Massachusetts 02109
Re: Lease Dated: ,
19
Current Landlord:
Current Tenant:
Building Located at:
Premises Square Feet: Approximately
("Tenant") hereby certifies to
Purchaser that as of , 1995:
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 the above referenced Landlord ("Landlord"),
as landlord. 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
assigned/unassigned] parking spaces near the Building during the term
of the Lease.
(c) The term of the Lease commenced on ,
19 , and will expire on , 19 , including any
presently exercised option or renewal term. Except as specified in
Paragraph(s) the Lease, Tenant has no option or right to
renew, extend or cancel the Lease, or to lease additional space in
the Premises or the Building, or to use any parking.
(d) Tenant has no option or preferential right to
purchase all or any part of the Premises (or the land of which the
Premises are 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 ,
1995.
(f) Additional rent is payable under the Lease for (i)
operating, maintenance and repair expenses, (ii) property taxes, and
(iii) insurance premiums. Such additional rent has been paid in
accordance with Landlord's rendered bills through ,
1995. The base year amounts for additional rental items are as
follows: (1) operating, maintenance and repair expenses $
(2) property taxes $ and (3) insurance
premiums $ .
(g) Tenant has made no agreement with Landlord or any
agent, representative or employee of Landlord concerning free rent,
partial rent, rebate of rental payments or any other similar rent
concession that has any present or future effect or application,
except as expressly set forth in Paragraph(s) the Lease
(copy attached).
(h) Landlord currently holds a security deposit in the
amount of $ which is to be applied by Landlord or returned to
Tenant in accordance with the Lease.
3. (a) The Lease constitutes the entire agreement between
Tenant and Landlord with respect to the Premises, has not been
modified, changed, altered or amended and is in full force and effect
in the form attached as Exhibit A. There are no other agreements,
written or oral, which affect Tenant's occupancy 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 Landlord to date
for improvements to the Premises have been paid in full and all of
Landlord'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, other than Hazardous Substances used in the
ordinary and commercially reasonable course of Tenant's business in
compliance with all applicable laws. Tenant has no actual knowledge
that any Hazardous Substances is present, or has been used,
generated, released, discharged, stored or disposed of by any party,
on, under, in or about such Building or land.
7. Tenant hereby acknowledges that Purchaser intends to
purchase the property containing the Premises from Landlord. Tenant
acknowledges the right of Purchaser to rely upon the statements and
representations of Tenant contained in this Certificate and further
acknowledges that such purchase of the property by Purchaser will be
made and entered into in material reliance on this Certificate.
By:
Name:
Its:
[Attach Exhibit A -COMPLETE COPY OF LEASE AND ANY MODIFICATIONS,
AMENDMENTS, SUPPLEMENTS, SIDE LETTERS, ADDENDA AND RIDERS]
<PAGE>
EXHIBIT 99.1
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford September 20, 1995
Chairman of the Board and
Chief Executive Officer
Donald A. Lorenz
Executive Vice President and
Chief Financial Officer
Telephone: 510-283-8910
BEDFORD PROPERTY INVESTORS
ANNOUNCES ACQUISITION
LAFAYETTE, CA -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has completed the acquisition of the Compression
Labs Building, an R&D facility in San Jose, California for
$8,325,000, or $58/sq. ft. This is the second purchase made by
Bedford Property Investors, Inc., within the Silicon Valley Market.
The Compression Labs Building is located in Montague Park at 350
E. Plumeria. The facility is 142,620 square feet situated on an 8.10
acre parcel of land.
The Compression Labs facility was acquired from Merrill Lynch
Hubbard Realty Fund. The building is currently 100% leased to
Compression Labs, a manufacturer and distributor of visual
communication systems currently traded on the NASDAQ (symbol "CLIX").
Six years remain on the current lease. The acquisition of the
Compression Labs Building evidences the Company's ability to execute
its acquisition growth plan.
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."
<PAGE>
EXHIBIT 99.2
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford September 22, 1995
Chairman of the Board and
Chief Executive Officer
Donald A. Lorenz
Executive Vice President and
Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS
COMPLETES ACQUISITION
LAFAYETTE, CA -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has completed the acquisition of the Lackman
Business Center service industrial project in Lenexa, Kansas for
$2.25 million, or $49 per square foot.
The Lackman Business Center is a single-story, 45,956 square
foot service center industrial project acquired from TA Realty
Advisors. The project is 98 percent occupied by 24 tenants.
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.
<PAGE>
EXHIBIT 99.3
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford September 25, 1995
Chairman and Chief Executive Officer
Donald A. Lorenz
Executive Vice President and
Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS, INC.
COMPLETES ACQUISITIONS AND SALE
LAFAYETTE, CA -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has completed the acquisition of two service
industrial buildings in Lenexa, Kansas for $2.65 million, or $55 per
square foot. The two buildings total 48,490 square feet and are fully
occupied by four tenants. The buildings were acquired from TA Realty
Advisors.
Additionally, the Company sold its Cody Street Park, Bldg. 6, also
located in Lenexa, Kansas to TA Realty Advisors for $1.5 million. The
net sales price was approximately equal to the book value of the
property.
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."
