SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 14, 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 offices)
Registrant telephone number, including area code: (510) 283-8910
<PAGE>
Item 2. Acquisition or Disposition of Assets
On December 14, 1995, Bedford Property Investors, Inc. (the
Company ) completed the acquisition of fourteen properties totaling
1,037,000 rentable square feet located in Maplewood, Minnesota; Denver
and Colorado Springs, Colorado; South San Francisco and Fremont,
California; and Beaverton, Oregon. The properties were purchased from
the Landsing Pacific Fund, Inc., a real estate investment trust (REIT)
based in San Mateo, CA for approximately $50 million. The acquisition
was financed with $3,000,000 cash (the remaining portion of the net
cash proceeds from the sale on September 18, 1995 of its Series A
Convertible Preferred Stock), borrowings of $42,700,000 under the Bank
of America's credit facility and a $3,000,000 letter of credit due and
payable in one year from the date of issuance. Prior to the execution
of the Purchase and Sale Agreement dated as of October 19, 1995, by
and between Landsing and the Company for the acquisition of the
Landsing properties, the Company and Landsing had no material
relationship. Martin I. Zankel, a director of the Company, is
Chairman of the Board of Directors, Chief Executive Officer and
President of Landsing. Mr. Zankel is also a shareholder in the
Company and in Landsing. Mr. Zankel did not participate in the
acquisition of the Landsing properties on behalf of the Company.
Item 7. Financial Statement and Exhibits
(A) Financial Statements
Required financial information disclosures with respect to
the acquisition of the Landsing properties will be filed by
amendment to this Form 8-K within sixty (60) days of the
date of this report.
(B) Pro forma Financial Information
Required pro forma financial information disclosures with
respect to the acquisition of the Landsing Pacific Fund
properties will be filed by amendment to this Form 8-K
within sixty (60) days of the date of this report.
(C) Exhibit and Exhibit Index
2.1 Purchase and Sale Agreement dated as of October
19,1995, by and between Landsing Pacific Fund, Inc., a
Maryland corporation ("Seller"), and Bedford Property
Investors, Inc., a Maryland corporation ("Buyer"), as
amended by that certain First Amendment to Purchase
and Sale Agreement dated as of November 15, 1995,
Second Amendment to Purchase and Sale Agreement dated
November 21, 1995, Third Amendment to Purchase
Agreement dated December 14, 1995 and by letter
agreements dated November 15, 1995, November 17, 1995,
November 20, 1995, November 22, November 28, 1995,
December 4, 1995, December 5, 1995 and December 6,
1995.
99.1 Press Release regarding the acquisition of the
Landsing Pacific Fund properties
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: /s/ Donald A. Lorenz
Donald A. Lorenz
Executive Vice President and
Chief Financial Officer
Date: December 27, 1995
<PAGE>
EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
Between
LANDSING PACIFIC FUND, INC.,
a Maryland corporation
as Seller,
and
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation,
as Buyer
Dated as of October 19, 1995.
<PAGE>
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. PURCHASE AND SALE. . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Properties. . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Exclusion of Nohr Plaza . . . . . . . . . . . . . . . . . 2
1.3 Plan of Liquidation.. . . . . . . . . . . . . . . . . . . 3
1.4 No General Assumption of Liabilities. . . . . . . . . . . 3
2. PURCHASE PRICE.. . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Earnest Money . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Cash at Closing.. . . . . . . . . . . . . . . . . . . . . 4
2.3 Seller Financing. . . . . . . . . . . . . . . . . . . . . 4
2.4 Termination Fees/Liquidated Damages.. . . . . . . . . . . 4
2.5 Approximation of Square Footage.. . . . . . . . . . . . . 6
2.6 Allocation of Purchase Price. . . . . . . . . . . . . . . 7
3. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Review of Title.. . . . . . . . . . . . . . . . . . . . . 7
3.2 New Title Exceptions. . . . . . . . . . . . . . . . . . . 8
3.3 Conditions of Title.. . . . . . . . . . . . . . . . . . . 8
3.4 Title Insurance.. . . . . . . . . . . . . . . . . . . . . 9
4. DUE DILIGENCE. . . . . . . . . . . . . . . . . . . . . . . . . 9
4.1 Due Diligence Period. . . . . . . . . . . . . . . . . . . 9
4.2 Delivery of Materials.. . . . . . . . . . . . . . . . . . 10
4.3 Inspections/Interviews. . . . . . . . . . . . . . . . . . 10
4.4 Limitations on Buyer's Inspection/Interview
Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.5 Confidentiality.. . . . . . . . . . . . . . . . . . . . . 12
4.6 Conditions of Property/
"As Is" Sale. . . . . . . . . . . . . . . . . . . . . . . 14
4.7 Assumption of Contracts.. . . . . . . . . . . . . . . . . 15
4.8 Estoppel Certificates.. . . . . . . . . . . . . . . . . . 16
4.9 Local Law Disclosure. . . . . . . . . . . . . . . . . . . 16
5. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 Transactions at Closing.. . . . . . . . . . . . . . . . . 17
5.3 Costs and Expenses. . . . . . . . . . . . . . . . . . . . 21
5.4 Allocation of Closing Costs.. . . . . . . . . . . . . . . 22
5.5 Bulk Sales . . . . . . . . . . . . . . . . . . . . . . . 22
6. CLOSING ADJUSTMENTS AND PRORATIONS.. . . . . . . . . . . . . . 22
6.1 Lease Rentals . . . . . . . . . . . . . . . . . . . . . . 22
6.2 Security Deposits . . . . . . . . . . . . . . . . . . . . 23
6.3 Real Estate Taxes.. . . . . . . . . . . . . . . . . . . . 23
6.4 Insurance.. . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Utilities.. . . . . . . . . . . . . . . . . . . . . . . . 23
6.6 Contracts/Loans.. . . . . . . . . . . . . . . . . . . . . 23
6.7 Calculations for Closing. . . . . . . . . . . . . . . . . 23
6.8 Payment With Interest.. . . . . . . . . . . . . . . . . . 24
7. REPRESENTATIONS AND WARRANTIES.. . . . . . . . . . . . . . . . 24
7.1 Representations or Warranties by Seller. . . . . . . . . 24
(1) Litigation . . . . . . . . . . . . . . . . . . . . . 25
(2) Compliance with Laws.. . . . . . . . . . . . . . . . 25
(3) Environmental. . . . . . . . . . . . . . . . . . . . 25
(4) Foreign Person . . . . . . . . . . . . . . . . . . . 25
(5) Public Improvements. . . . . . . . . . . . . . . . . 25
(6) Condemnation.. . . . . . . . . . . . . . . . . . . . 26
(7) Construction Contracts.. . . . . . . . . . . . . . . 26
(8) Labor Contracts. . . . . . . . . . . . . . . . . . . 26
(9) Solvency.. . . . . . . . . . . . . . . . . . . . . . 26
(10) No Defaults. . . . . . . . . . . . . . . . . . . . . 26
(11) Property Commissions.. . . . . . . . . . . . . . . 27
(12) No Wells.. . . . . . . . . . . . . . . . . . . . . . 27
7.2 Buyer's Representations and Warranties. . . . . . . . . . 27
7.3 Subsequent Changes in Conditions. . . . . . . . . . . . . 27
8. CONDITIONS TO CLOSING. . . . . . . . . . . . . . . . . . . . . 28
8.1 Seller's Conditions.. . . . . . . . . . . . . . . . . . . 28
8.2 Buyer's Conditions. . . . . . . . . . . . . . . . . . . . 29
8.3 Failure of Condition. . . . . . . . . . . . . . . . . . 30
9. DAMAGE OR DESTRUCTION OF THE PROPERTIES;
CONDEMNATION.. . . . . . . . . . . . . . . . . . . . . . . . . 31
9.1 Damage or Destruction of the Properties. . . . . . . . . 31
9.2 Condemnation. . . . . . . . . . . . . . . . . . . . . . . 32
9.3 Arbitration.. . . . . . . . . . . . . . . . . . . . . . . 33
10. COMMISSIONS, EXPENSES AND CREDITS. . . . . . . . . . . . . . . 33
11. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12. CROSS-INDEMNITIES. . . . . . . . . . . . . . . . . . . . . . . 34
12.1 Seller Indemnity. . . . . . . . . . . . . . . . . . . . . 34
12.2 Buyer Indemnity.. . . . . . . . . . . . . . . . . . . . . 34
12.3 Claims Procedure. . . . . . . . . . . . . . . . . . . . . 35
13. MAINTENANCE OF THE PROPERTY. . . . . . . . . . . . . . . . . . 36
14. NEW CONTRACTS AFFECTING
THE PROPERTIES. . . . . . . . . . . . . . . . . . . . . . . . 36
14.1 Consent to New Contracts. . . . . . . . . . . . . . . . . 36
14.2 Proration of New Contract Costs.. . . . . . . . . . . . . 36
15. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 37
15.1 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
15.2 Attorneys' Fees.. . . . . . . . . . . . . . . . . . . . . 37
15.3 No Waiver.. . . . . . . . . . . . . . . . . . . . . . . . 37
15.4 Entire Agreement. . . . . . . . . . . . . . . . . . . . . 37
15.5 Survival. . . . . . . . . . . . . . . . . . . . . . . . . 37
15.6 Successors. . . . . . . . . . . . . . . . . . . . . . . . 38
15.7 Assignment. . . . . . . . . . . . . . . . . . . . . . . . 38
15.8 Governing Law.. . . . . . . . . . . . . . . . . . . . . . 38
15.9 Review by Counsel.. . . . . . . . . . . . . . . . . . . . 38
15.10 Public Announcement of Sale . . . . . . . . . . . . . . 38
15.11 Not Recordable. . . . . . . . . . . . . . . . . . . . . 38
15.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . 38
15.13 Further Assurances. . . . . . . . . . . . . . . . . . . 38
15.14 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . 39
15.15 No Third Party
Beneficiaries . . . . . . . . . . . . . . . . . . . . . 39
15.16 Exhibits and Schedules. . . . . . . . . . . . . . . . . 39
16. LIMITATION ON SELLER'S
LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 39
16.1 Limits on Seller's
Liability.. . . . . . . . . . . . . . . . . . . . . . . 39
16.2 Initial Claims
Cut-Off.. . . . . . . . . . . . . . . . . . . . . . . . 40
16.3 Final Claims Cut-Off. . . . . . . . . . . . . . . . . . 40
16.4 Survival. . . . . . . . . . . . . . . . . . . . . . . . 41
16.5 Arbitration.. . . . . . . . . . . . . . . . . . . . . . 41
17. RESERVE FUND.. . . . . . . . . . . . . . . . . . . . . . . . . 42
17.1 Establishing Reserve
Fund. . . . . . . . . . . . . . . . . . . . . . . . . . 42
17.2 Reduction of Reserve
Fund. . . . . . . . . . . . . . . . . . . . . . . . . . 42
17.3 Statements of
Withdrawals.. . . . . . . . . . . . . . . . . . . . . . 43
17.4 Security Interest.. . . . . . . . . . . . . . . . . . . 43
17.5 Disputes Concerning
Reserve Fund. . . . . . . . . . . . . . . . . . . . . . 43
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is dated as
of October 19, 1995 by and between LANDSING PACIFIC FUND, INC., a
Maryland corporation ("Seller"), and BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation ("Buyer").
RECITALS
A. Seller is the owner of the Properties, as defined in Section
1.1 below. The Properties consist of those fifteen real properties
having the street addresses and/or common names and containing the
approximate square feet of floor area as listed on Exhibit A attached
hereto, together with related tangible and intangible personal
property. The Properties collectively contain approximately 1,049,103
square feet of floor area.
B. Seller desires to sell, convey and assign, and Buyer desires
to purchase, accept and assume, the Properties subject to the terms
and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Buyer agree as follows:
1. PURCHASE AND SALE.
1.1 Properties. Subject to the terms and conditions
hereof, Seller hereby agrees to sell, convey and assign to Buyer, and
Buyer hereby agrees to purchase, accept and assume from Seller on the
Closing Date (as defined in Section 5.1 below) the following (each, a
"Property" and collectively the "Properties"):
(a) the parcels of land that are legally described
on Exhibit A-1 attached hereto, together with any and all rights,
privileges and easements appurtenant to such lands which are owned by
Seller (each, a "Real Property" and collectively, the "Real
Properties");
(b) all buildings located on the Real Properties,
the street addresses and/or commonly used names of which are listed on
Exhibit A attached hereto, and all right, title and interest of Seller
in and to all other improvements and fixtures located on the Real
Properties, including any apparatus, equipment and appliances affixed
thereto and used in connection with the operation and occupancy
thereof, such as heating and air conditioning systems and facilities
used to provide any utility service, or other services thereto
(collectively, the "Improvements");
(c) all right, title and interest of Seller in and
to the tangible personal property described on Exhibit B attached
hereto and all additional tangible personal property that is acquired
by Seller following the date of this Agreement and is used in the
ownership, operation or use of the Real Properties and Improvements
(collectively, the "Tangible Property");
(d) all right, title and interest of Seller in and
to any contracts which Buyer elects to have assigned to it in
accordance with Section 4.7 below (collectively, the "Assumed
Contracts");
(e) all right, title and interest of Seller in and
to any and all consents, authorizations, variances, certificates of
occupancy, licenses, permits and approvals (governmental or otherwise)
held by Seller and relating exclusively to the occupancy or use of the
Real Properties and/or the Improvements, any and all existing
guaranties and warranties held by Seller and given by third parties
with respect to the Real Properties, the Improvements and/or the
Tangible Property, plans and specifications for the Real Properties
and Improvements, rent rolls and financial and other books and records
(subject, however, to the exclusions described in Section 5.2(e)(iv)
below) and any other intangible personal property owned by Seller and
used in connection with the use and operation of the Real Properties,
the Improvements and/or the Tangible Properties including, without
limitation, all trade names (collectively, the "Intangible Property");
and
(f) all of Seller's interest as lessor in the leases
and occupancy agreements that affect the Real Properties and more
particularly described on Exhibit C attached hereto and all other
leases and occupancy agreements that are entered into by Seller after
the date of this Agreement that affect the Real Properties
(collectively the "Leases").
For convenience of reference, the Properties may be referred to
in this Agreement by their common street address or name as contained
on Exhibit A attached hereto.
1.2 Exclusion of Nohr Plaza. Seller may, at any time
prior to the Closing, remove Nohr Plaza as one of the Properties being
sold to Buyer. If Seller elects to remove Nohr Plaza as a Property,
(i) it shall provide written notice thereof to Buyer and Escrow
Holder, (ii) the Purchase Price set forth in Section 2 below (but not
the cash owing by Buyer at Closing pursuant to Section 2.2 below)
shall be reduced by an amount equal to Nine Hundred Thousand Dollars
($900,000), and (iii) Buyer shall have no obligation to deliver at
Closing the promissory note and the deed of trust described in Section
2.3 below.
1.3 Plan of Liquidation. Buyer acknowledges that the
transactions contemplated by this Agreement constitute part of a plan
of liquidation by Seller. Upon the consummation of the transactions
contemplated by this Agreement, Seller anticipates that all or
substantially all of the proceeds from these transactions will be used
to satisfy Seller's then-outstanding liabilities, to wind up Seller's
affairs and to make distributions to Seller's shareholders.
1.4 No General Assumption of Liabilities. Buyer is not
assuming any obligations or liabilities that arise out of or relate to
Seller's ownership, use and operation of the Properties prior to the
Closing Date (the "Excluded Liabilities").
2. PURCHASE PRICE. Buyer shall pay as the total purchase
price for the Properties (the "Purchase Price") the sum of Fifty
Million Seven Hundred Sixty-One Thousand Seven Hundred Eighty Dollars
($50,761,780), subject to decrease as provided in Section 2.3 below.
The Purchase Price shall be paid in the following manner:
2.1 Earnest Money. Buyer has already deposited cash in an
amount equal to Two Hundred Fifty Thousand Dollars ($250,000) (the
"Deposit") with First American Title Guaranty Company, at its office
at 1850 Mt. Diablo Boulevard, Suite 300, Walnut Creek, California
94596 (the "Escrow Holder") in Escrow No. 764966. The Deposit, any
other amounts deposited in Escrow and all interest earned thereon
shall hereinafter collectively be referred to as the "Earnest Money
Deposit" or "Deposit". By signing a copy of this fully executed
Agreement and delivering the copy bearing Escrow Holder's signature to
Seller and Buyer, Escrow Holder agrees to accept the escrow created by
this Agreement, to comply with the terms and conditions of this
Agreement as they relate to the Escrow and to fully and timely fulfill
the obligations of Escrow Holder under this Agreement. Seller and
Escrow Holder agree that until Buyer waives the Due Diligence
Conditions (as defined in Section 4.1 below), Buyer may at any time
request in writing that Escrow Holder release the Earnest Money
Deposit to Buyer. Upon Escrow Holder's receipt of such request,
Seller does hereby instruct Escrow Holder to immediately release, and
Escrow Holder agrees to immediately release, the Earnest Money Deposit
to Buyer, and the parties agree that this Agreement shall terminate
and neither party shall have any further obligations under this
Agreement except for the Surviving Obligations (as defined in Section
2.4(c) below). Escrow Holder acknowledges that additional escrow
instructions may be provided to it by Seller and Buyer and that Escrow
Holder shall be bound to observe such additional escrow instructions,
provided that they are signed by both Seller and Buyer. Escrow Holder
shall place the Deposit in an interest bearing account and shall hold
the Deposit and all interest accrued thereon in escrow, subject to the
terms of this Agreement, as an earnest money deposit towards the
Purchase Price. At the Close of Escrow (defined in Section 5.1
below), the Earnest Money Deposit shall be applied against the
Purchase Price.
2.2 Cash at Closing. Prior to the Close of Escrow, Forty-
Nine Million Eight Hundred Sixty-One Thousand Seven Hundred Eighty
Dollars ($49,861,780.00), less the amount of the Earnest Money
Deposit, in immediately available U.S. funds shall be deposited by
Buyer in Escrow, which amount shall be subject to increase or
decrease due to the effect of the prorations made in Section 6 below.
Buyer shall deposit such funds by federal wire transfer with Escrow
Holder in time sufficient, as determined by Escrow Holder, to close
the transaction contemplated by this Agreement on the scheduled
Closing Date.
2.3 Seller Financing. Provided that Nohr Plaza is sold to
Buyer at the Closing, Buyer shall, at the Closing, execute and deliver
to Escrow a promissory note in the original principal amount of Nine
Hundred Thousand Dollars ($900,000) in exactly the form of note
attached hereto as Exhibit K (the "Note"). Repayment of the Note
shall be secured by a deed of trust in the form attached hereto as
Exhibit L that encumbers Nohr Plaza (the "Deed of Trust"). The Deed
of Trust shall be in a first lien priority, subject only to the
following exceptions to title as shown on Preliminary Title Report No.
501410 dated April 21, 1995 and issued by Escrow Holder: 1, 2, 3, 5,
6, 7 and 8, as well as all matters created by or through Seller. It
shall be a condition to Seller's obligation to close that Escrow
Holder provide Seller with an ALTA 1970 lender's policy of title
insurance that insures the first lien priority of the Deed of Trust,
subject only to the foregoing title exceptions (the "Nohr Title
Policy"). If Seller removes Nohr Plaza as a Property prior to the
Closing pursuant to Section 1.2 above, then, at the Closing, the
Purchase Price shall be reduced by an amount equal to Nine Hundred
Thousand Dollars ($900,000), Buyer shall have no obligation to deliver
the Note and the Deed of Trust, and Escrow Holder shall have no
obligation to issue the Nohr Title Policy.
2.4 Termination Fees/Liquidated Damages.
(a) Once Buyer waives the Due Diligence Conditions, if
this transaction should fail to close for any reason other than an
uncured default by Seller, an Approved Termination Event (as hereafter
defined), Buyer's Board of Directors disapproving this transaction,
provided that such disapproval is made on or before November 30, 1995,
the failure of one of the conditions specified in Sections 8.2(a)
through 8.2(i) or an election by Seller to terminate this Agreement
as provided in Section 2.4(b) below, then Buyer shall immediately pay
to Seller a termination fee in the amount of Five Hundred Thousand
Dollars ($500,000) ("Buyer's Termination Fee"), this Agreement shall
terminate and neither party shall have any further obligations to the
other except for the Surviving Obligations (as defined in Section
2.4(c) below). If this transaction should so fail to close, Escrow
Agent is directed to immediately release the Earnest Money Deposit to
Seller as partial payment of the Buyer's Termination Fee and Buyer
shall, on the date this transaction should so fail to close,
immediately pay to Seller the balance of the Buyer's Termination Fee
(equal to the difference between the Earnest Money Deposit and
$500,000). Any portion of the Buyer's Termination Fee that is not
paid when due shall bear interest at the lesser of (i) the reference
rate as announced by Bank of America from time to time plus four
percent (4%), or (ii) the highest interest rate allowable by law (the
"Interest Rate"). An "Approved Termination Event" means the failure
of this transaction to close due to the inability of Seller to cause a
Disapproved Matter to be removed by the Closing and the election of
Buyer to terminate this Agreement, as provided in Sections 3.1 and 3.2
below, or the termination of this Agreement in its entirety due to a
casualty or condemnation that affects one or more of the Properties,
as provided in Section 9 below.
(b) If Seller is unable to obtain the approval of its
stockholders to the proposal set forth in that certain Proxy Statement
dated September 15, 1995 issued by Seller and that certain
Supplemental Proxy Information dated September 29, 1995 issued by
Seller (collectively, the "Proxy") on or before November 8, 1995 or if
there should occur an Outside Delay (as defined in Section 8.1(f))
that Seller does not Attempt to Remove (as defined in Section 8.1(f)),
then, provided that Buyer is not then in default under this Agreement
and this Agreement has not otherwise terminated, Seller shall
immediately pay to Buyer a termination fee in the amount of One
Hundred Thousand Dollars ($100,000), this Agreement shall terminate
and neither party shall have any further obligations to the other
except for the Surviving Obligations. If Seller elects to terminate
this Agreement for any other reason (including if Seller Attempts to
Remove an Outside Delay but is unsuccessful in its efforts), then,
except for the termination of this Agreement in its entirety due to a
casualty or condemnation that affects one or more of the Properties,
as provided in Section 9 below or the failure of the conditions
contained in Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e) and 8.1(g), and
provided that Buyer is not then in default under this Agreement,
Seller shall immediately pay to Buyer a termination fee equal to Five
Hundred Thousand Dollars ($500,000), this Agreement shall terminate
and neither party shall have any further obligations to the other
except for the Surviving Obligations. The termination fees owing by
Seller under this Section 2.4(b) shall be referred to as the "Seller's
Termination Fee", with the amount of Seller's Termination Fee being
either $100,000 or $500,000, depending on whether Seller's obligation
to pay such fee arises from Seller's inability to obtain stockholder
approval by November 8, 1995 or due to the occurrence of an Outside
Delay that Seller does not Attempt to Remove (in which case Seller's
Termination Fee is equal to $100,000) or from some other cause
specified in this Section 2.4(b) (in which case Seller's Termination
Fee is equal to $500,000). Any portion of the Seller's Termination
Fee that is not paid when due shall bear interest at the Interest
Rate. Notwithstanding anything to the contrary contained in this
Section 2.4(b), if there should occur an Outside Delay, Seller may, in
its sole discretion, elect to terminate this Agreement, pay the
$100,000 Seller's Termination Fee and thereafter Attempt to Remove the
Outside Delay even though this Agreement has been so terminated.
(c) SELLER AND BUYER AGREE THAT THE BUYER'S TERMINATION
FEE AND THE SELLER'S TERMINATION FEE (THE "LIQUIDATED DAMAGES") ARE
INTENDED TO COMPENSATE AND SHALL COMPENSATE SELLER OR BUYER, AS
APPROPRIATE, FOR ALL DAMAGES THAT SELLER OR BUYER WOULD SUFFER SHOULD
SELLER OR BUYER (THE "DEFAULTING PARTY") FAIL TO CLOSE THIS
TRANSACTION. THE PARTIES AGREE THAT IN LIGHT OF THE CIRCUMSTANCES
EXISTING AS OF THE DATE OF THIS AGREEMENT, THE NON-DEFAULTING PARTY'S
ACTUAL DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO ASCERTAIN IF THE
DEFAULTING PARTY FAILS TO CLOSE THIS TRANSACTION AND THE LIQUIDATED
DAMAGES IS THE BEST ESTIMATE OF THE AMOUNT OF DAMAGES THE NON-
DEFAULTING PARTY WOULD SUFFER. THE PAYMENT OF THE LIQUIDATED DAMAGES
TO THE NON-DEFAULTING PARTY IS TO COMPENSATE THE NON-DEFAULTING PARTY
FOR SUCH DAMAGES, AND IS NOT A PENALTY. THE NON-DEFAULTING PARTY'S
SOLE REMEDY SHOULD THE DEFAULTING PARTY FAIL TO CLOSE THIS TRANSACTION
SHALL BE THE RECEIPT OF THE LIQUIDATED DAMAGES, EXCEPT THAT BOTH THE
DEFAULTING PARTY AND THE NON-DEFAULTING PARTY SHALL HAVE THE RIGHTS
AND OBLIGATIONS CREATED UNDER THIS SECTION 2.4 AND UNDER SECTIONS 4.4,
4.5, 4.6, 5.2(c), 6, 7, 10, 12, 14, 15.2, 15.5 (SUBJECT, HOWEVER, TO
THE LIMITATIONS CONTAINED IN SECTIONS 16.2 AND 16.3), 15.6, 15.8,
15.9, 15.10, 15.13, 15.14, 16 and 17 (THE "SURVIVING OBLIGATIONS") AND
THE SURVIVING OBLIGATIONS SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT. THE NON-DEFAULTING PARTY SHALL HAVE NO RIGHT, AND HEREBY
WAIVES ALL RIGHT, TO AN ACTION FOR SPECIFIC PERFORMANCE OF THIS
AGREEMENT OR ANY OTHER REMEDY AVAILABLE AT LAW OR IN EQUITY, EXCEPT
FOR RIGHTS AND REMEDIES TO ENFORCE THE SURVIVING OBLIGATIONS. THE
PARTIES WITNESS THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION
AND THEIR WAIVER OF OTHER REMEDIES (INCLUDING, WITHOUT LIMITATION,
SPECIFIC PERFORMANCE) BUT EXCLUDING RIGHTS AND REMEDIES TO ENFORCE THE
SURVIVING OBLIGATIONS BY INITIALING THIS PARAGRAPH AS FOLLOWS:
SELLER: _______JMM________ BUYER: _______DL_________
2.5 Approximation of Square Footage. Buyer acknowledges
that the square footage of floor area attributed to the Properties in
this Agreement are only approximations and may not represent the
actual square footage of the Properties. Buyer agrees that there
shall be no adjustment in the Purchase Price if the actual square
footage of any Property should vary from the approximations contained
in this Agreement.
2.6 Allocation of Purchase Price. Subject to Seller's
written approval, which shall not be unreasonably withheld, Buyer
shall allocate the Purchase Price among the Properties in a manner
consistent with the requirements of Section 1060 of the Internal
Revenue Code of 1986, as amended (the "Code") and any comparable
applicable state tax provision. Such allocation shall be set forth on
an IRS Form 8594. The allocation shall be binding on Seller and Buyer
for purposes of allocating the Purchase Price for Federal, state and
local franchise, corporate income and sales tax purposes. Buyer and
Seller shall file IRS Forms 8594 and comparable forms under state and
local tax laws consistent with such allocation.
3. TITLE.
3.1 Review of Title.
(a) Buyer shall have until 5:00 PM on November 15, 1995
(the "Title Date") to review the condition of title to the Real
Properties and Improvements. By no later than the Title Date, Buyer
shall notify Seller and Escrow Holder in writing of those items or
matters that affect the condition of title to the Real Properties and
Improvements that are not acceptable to Buyer and must be removed from
title prior to or concurrently with the Closing (the "Disapproved
Matters"). All other matters affecting title to the Real Properties
and Improvements shall, except as provided in Section 3.2 below,
constitute "Approved Title Exceptions." Seller shall then have five
(5) business days to inform Buyer and Escrow Holder in writing whether
it shall cause to be removed by the Closing, at Seller's sole cost and
expense, any Disapproved Matters. For the purposes of this Agreement,
a Disapproved Matter will be deemed "removed" if the title company
that issues the owner's title policy for the Property affected by the
Disapproved Matter will not show the Disapproved Matter as an
exception to title on such owner's title policy or if the title
company will endorse over the Disapproved Matter by an endorsement
that is reasonably satisfactory to Buyer and any lender that is
financing Buyer's purchase of the Properties.
(b) If Seller notifies Buyer of its intention to remove a
Disapproved Matter, then the Disapproved Matter shall be deemed to
have been removed as of the date Seller gives such written
notification. If Seller elects to remove less than all of the
Disapproved Matters, then, within five (5) business days after Buyer
receives Seller's notice as to which Disapproved Matters will be
removed, Buyer may either (i) terminate this Agreement due to a
failure of the Due Diligence Conditions (as defined in Section 4.1
below), or (ii) proceed with the Closing notwithstanding the presence
of the Disapproved Matters that will not be removed and Seller shall
have no liability to Buyer with respect to such Disapproved Matters.
If Seller has agreed to cause a Disapproved Matter to be removed by
the Closing and the Disapproved Matter is in fact not removed at the
Closing, then Buyer may either (x) terminate this Agreement, whereupon
the Earnest Money Deposit shall be returned to Buyer and neither party
shall have any liabilities to the other arising out of this Agreement
except for the Surviving Obligations and except for Seller's
obligation to pay the $500,000 Seller's Termination Fee, or (y)
proceed with the Closing notwithstanding the presence of the
Disapproved Matter and Seller shall have no liability to Buyer with
respect to the Disapproved Matter.
3.2 New Title Exceptions. If at any time after the Title
Date any party hereto becomes aware of a lien, encumbrance, interest
or other exception to title that (i) did not exist as of the end of
the Title Date, or (ii) as to any Real Property, did not show as an
exception to title on the preliminary title report (or downdate
thereof) for such Real Property prepared by Escrow Holder and
delivered to Buyer prior to the expiration of the Due Diligence Period
and would not be disclosed by an ALTA survey of such Real Property,
then, provided that such new lien, encumbrance, interest or other
exception was not caused, created or permitted by the act or omission
of Buyer or an affiliate of Buyer (a "New Exception"), the party
discovering such New Exception shall immediately disclose to the other
parties the existence and nature of the New Exception. If Buyer
objects to a New Exception, it must provide written notice of such
objection to Seller within five (5) business days after the written
notice disclosing such New Exception was received by Buyer (or if
Buyer was the party to discover the New Exception, then Buyer must
disclose such objection concurrently when Buyer delivers the written
notice disclosing such New Exception to the other parties). The
failure of Buyer to object to a New Exception as provided in this
Section 3.2 shall be deemed to constitute Buyer's approval of the New
Exception. If Buyer should object to a New Exception, then such New
Exception shall constitute a Disapproved Matter and shall be subject
to the same procedures for Disapproved Matters as set forth in Section
3.1 above, except that if the New Exception was caused, created or
permitted by Seller or an affiliate of Seller, then Seller shall be
required to remove the Disapproved Matter by the Closing.
3.3 Conditions of Title. Title to the Real Properties shall be
delivered to Buyer and Buyer agrees to accept such title by grant deed
(or their equivalent with respect to Properties located outside
California), in the form provided by Section 5.2(a)(i), subject to all
of the following (the "Permitted Exceptions"):
(a) zoning and building regulations, insurance and
rating codes and regulations and any other laws, codes, regulations or
ordinances affecting the Properties or their uses adopted by any
authority having jurisdiction over the Properties and their respective
uses;
(b) the Approved Title Matters;
(c) any other liens, encumbrances, interests or
other exceptions to title approved by Buyer, or which Buyer has been
deemed to have approved, pursuant to Section 3.2;
(d) the Leases;
(e) such state of facts as would be disclosed by a
visual physical inspection of the Properties; and
(f) any matters created by or through Buyer.
3.4 Title Insurance. At Close of Escrow, Escrow Holder
shall issue to Buyer for each Real Property and the Improvements
thereon an ALTA Owner's form policy of title insurance, each in the
form that is customarily issued in the state where each Real Property
is located, insuring that fee simple title to the Real Properties and
the Improvements thereon is vested in Buyer subject to the Permitted
Exceptions and to such other matters as may be reasonably acceptable
to Buyer (each, a "Title Policy" and collectively, the "Title
Policies"). The amount of insurance provided under each Title Policy
shall be agreed on between Seller, Buyer and the applicable title
insurer prior to the Closing, provided that in no event will the total
amount of insurance provided by all of the Title Policies exceed the
Purchase Price.
4. DUE DILIGENCE.
4.1 Due Diligence Period. Commencing on the date of this
Agreement and continuing until 5:00 pm on November 15, 1995 (such
period of time being the "Due Diligence Period"), Buyer shall have the
right to review the condition of title to the Properties as provided
in Section 3 above, to review the materials described in Section 4.2
below, to conduct the inspections and studies described in Section 4.3
below, to otherwise satisfy itself as to the desirability of the
Properties for Buyer's intended purposes and to determine if the
acquisition of the Properties will cause Buyer to fail to satisfy the
requirements of Sections 856(c)(2), (3) and (5) of the Code
(collectively, the "Due Diligence Conditions"). Seller agrees to
exercise good faith and diligent efforts to assist Buyer in its review
and satisfaction of the Due Diligence Conditions, provided that Seller
shall not be obligated to incur any third party cost or expense in
connection with such efforts. The Due Diligence Conditions will
only be deemed satisfied or waived if Buyer affirmatively approves or
waives such conditions in a writing delivered to Seller and Escrow
Holder prior to the expiration of the Due Diligence Period. If Buyer
fails to respond in writing by the expiration of the Due Diligence
Period as to whether the Due Diligence Conditions have been satisfied,
waived or remain unsatisfied, then all Due Diligence Conditions shall
be deemed to have not been satisfied and (i) this Agreement shall
terminate, (ii) Buyer shall instruct the Escrow Holder to immediately
release the Earnest Money Deposit to Buyer, and (iii) neither party
shall have any further liability to the other under this Agreement
except for the Surviving Obligations.
4.2 Delivery of Materials. From the date of this
Agreement through the Closing Date, Seller shall provide to Buyer
and/or make available for Buyer's inspection at Seller's office the
following materials concerning the Properties for Buyer's review:
(a) a copy of rent rolls, receivables agings, payment
histories, profit and loss statements and other financial information
for each of the Properties to the extent such materials are in
Seller's possession or control;
(b) a copy of environmental assessments for each of the
Properties described on Schedule 1 attached hereto ("Environmental
Assessments");
(c) a copy of each of the Leases described on Exhibit C
attached hereto;
(d) Preliminary title reports for each of the Real Properties as
more particularly described on Schedule 2 attached hereto (the
"Preliminary Reports"), a copy of each of the documents listed as an
exception in the Preliminary Reports, and surveys for some (but not
all) of the Real Properties and Improvements as more particularly
described on Schedule 3 attached hereto (the "Surveys"); and
(e) such other information that Buyer may reasonably request
that relates to the Properties and that is in Seller's possession or
control, including, without limitation, information relating to zoning
and occupancy compliance.
Buyer acknowledges that Seller did not prepare the Preliminary
Reports, Surveys or Environmental Assessments, that Seller makes no
representation or warranty as to the accuracy or thoroughness of such
materials, and that Buyer shall have no recourse against Seller or its
officers, directors or agents with respect to any inaccuracy or
omission contained in the Preliminary Reports, Surveys or
Environmental Assessments.
4.3 Inspections/Interviews. Subject to the provisions of the
Leases, Seller hereby grants and authorizes Buyer and its authorized
agents (i) with a revocable license to enter the Properties during
normal business hours for the purpose of inspecting the same and,
subject to Section 4.4 below, conducting such tests as Buyer shall
deem reasonably necessary to evaluate the condition of the Properties;
(ii) the right to interview tenants at the Properties ; (iii) the
right to investigate the status or validity of governmental licenses,
permits and approvals held by Seller and relating to the use,
occupancy or zoning of the Real Properties and/or the Improvements,
(iv) the right to review and copy all Contracts, Leases,
correspondence, records and other written materials held by Seller in
its offices, at the Property sites or by Seller's third party property
managers at their respective offices that relate to the ownership, use
and operation of the Properties (collectively, the "Records"), and (v)
the right to interview Seller's third party property managers for the
Properties and have access to all Records located at their offices
during the normal business hours of Seller's third party property
managers. Buyer shall give Seller at least twenty-four (24) hours
prior notice of Buyer's desire for access to the Properties located in
California or to Seller's office and at least forty-eight (48) hours
prior notice for access to Properties located outside California or to
the offices of Seller's third party property managers, and Buyer shall
also provide Seller with the names of all of Buyer's employees,
contractors and agents who will be present at any such locations.
4.4 Limitations on Buyer's Inspection/Interview Rights.
Inspections of the Properties by Buyer and its agents shall not allow
for or permit physical penetrations or intrusive testing of any of the
Improvements or the Real Properties without Seller's prior written
consent in each instance, which consent shall not be unreasonably
withheld. Moreover, all inspections shall be subject to the terms of
applicable Leases and shall be conducted in such a manner so as not to
interfere with any tenant's quiet enjoyment of the Property, take
place in accordance with a schedule preapproved by Seller (as
reasonably established by Buyer and Seller), and be observed by Seller
or its designee at Seller's election. Buyer agrees that when it
reviews and copies Records, it shall make reasonable efforts to
minimize the disruption caused to Seller's and its third party
property managers' normal business operations. Buyer shall be
responsible for, and agrees to reimburse Seller, its officers,
directors and agents, and each of their respective successors and
assigns (the "Seller Parties"), and indemnify, defend and hold the
Seller Parties harmless from and against, any liability, claim,
demand, loss or damage (including, without limitation, attorneys' fees
and court costs) threatened against or incurred by a Seller Party by
reason of Buyer's (and its agents') inspection activities and due
diligence review of the Properties. If this transaction does not
close for any reason, copies of all third-party due diligence
materials and reports pertaining to the Properties prepared for Buyer
or delivered to Buyer shall be promptly delivered and returned to
Seller without representation, warranty or liability on the part of
Buyer. Buyer's obligation to deliver to Seller a copy of all third
party reports prepared for Buyer shall be subject to any limitations
as to the use or distribution of such reports imposed by the
consultants that prepared the reports, provided that such limitations
are similar to those customarily imposed by consultants in the same
field as are Buyer's consultants. Seller shall have the right to make
such reports available to third parties, provided Seller shall provide
in delivering such reports that such reports are being delivered
without representation or warranty and that the original addressee of
such report expressly disclaims any liability for the contents
thereof. Buyer shall immediately and at its sole cost and expense
repair and restore any damage caused to the Properties by Buyer or its
agents' inspection of or testing concerning the Properties. In the
event that the Closing should fail to occur for any reason whatever,
Buyer's obligations under this Section 4.4 shall survive the
termination of this Agreement until such obligations have been fully
performed and approved by Seller in writing.
4.5 Confidentiality.
(a) Buyer acknowledges that Seller owns certain confidential,
nonpublic, and/or proprietary information with respect to Seller's
ownership, use and operation of the Properties and that Buyer shall
obtain copies of or have access to such information in connection with
its due diligence investigation concerning the Properties. This
confidential, nonpublic and/or proprietary information includes, but
is not limited to, information encompassed in strategic and
operational plans; budgets; reports; marketing and sales information;
financial information and projections; cost and pricing information;
tenant lists; real estate market data and all other concepts or ideas
in or reasonably related to the business of Seller or the Properties
(the "Evaluation Material"). Buyer further acknowledges that Seller
has expended substantial sums in developing the Evaluation Material,
and the value of the Evaluation Material depends on its not being
disclosed to competitors or potential competitors; it is therefore
necessary for Seller to protect the Evaluation Material by holding it
secret and confidential.
(b) As a condition to the Evaluation Material being furnished
to Buyer and its directors, officers, partners, employees, agents,
advisors, attorneys, accountants, consultants, bankers, and financial
advisors (collectively "Representatives") under this Agreement, Buyer
agrees to treat the Evaluation Material in accordance with the
provisions of this Section 4.5 and to take or abstain from taking
certain other actions hereinafter set forth.
(c) The Evaluation Material shall not include information that:
(i) is or becomes publicly available other than as a result of acts by
Buyer in breach of this Section 4.5; (ii) is in Buyer's possession
before disclosure by Seller or is independently derived by Buyer
without the aid, application, or use of the Evaluation Material; (iii)
is disclosed to Buyer by a third party on a nonconfidential basis; or
(iv) counsel for Buyer advises must be disclosed by law.
(d) Buyer and its Representatives shall exercise diligence to
maintain the confidential, secret and/or proprietary character of all
Evaluation Material and shall use the Evaluation Material solely for
the purposes contemplated in this Agreement. Buyer shall keep the
Evaluation Material confidential and shall not disclose any of the
Evaluation Material in any manner whatsoever; provided, however, that
(i) Buyer may make any disclosure of information contained in the
Evaluation Material to which Seller gives its prior written consent,
and (ii) any information contained in the Evaluation Material may be
disclosed to Buyer's Representatives who require such information for
the purpose of evaluating the Properties and who agree in writing to
keep that information confidential and to refrain from using such
Evaluation Material for their own benefit or for the benefit of any
other party. Buyer shall be responsible for any breach of this
Section 4.5 by any of its Representatives.
(e) Promptly upon (i) the written request of Seller or (ii)
termination of this Agreement, Buyer shall return all copies of the
Evaluation Material to Seller. All notes, studies, reports,
memoranda, and other documents (or copies thereof) prepared by Buyer
or its Representatives that contain or reflect the Evaluation Material
shall be destroyed.
(f) If Buyer or anyone to whom it discloses the Evaluation
Material receives a request to disclose all or any part of the
Evaluation Material under the terms of a subpoena or other order
issued by a court of competent jurisdiction or by a government agency,
Buyer shall: (i) promptly notify Seller in writing of the existence,
terms, and circumstances surrounding such a request; (ii) consult with
Seller on the advisability of taking steps to resist or narrow that
request; (iii) if disclosure of that Evaluation Material is required,
furnish only such portion of the Evaluation Material as Buyer is
advised by counsel is legally required to be disclosed; and (iv)
cooperate with Seller, at Seller's expense, in its efforts to obtain
an order or other reliable assurance that confidential treatment will
be accorded to that portion of the evaluation Material that is
required to be disclosed.
(g) The Buyer hereby acknowledges that it is aware, and that it
will advise those persons who are informed about the matters that are
the subject of this Agreement, that the United States securities laws
prohibit any person who has received material, nonpublic information
concerning the matters that are the subject of this Agreement from
purchasing or selling securities of the issuer to whom those matter
relate or from communicating that information to any other person
under circumstances in which it is reasonably foreseeable that that
person is likely to purchase or sell those securities or otherwise to
violate those securities laws.
(h) Until June 30, 1996, neither Buyer nor its Representatives
shall, without the prior written consent of the Board of Directors of
Seller, (i) in any manner acquire, agree to acquire, or make any
proposal to acquire, directly or indirectly, any voting securities of
Seller, or any rights or options to acquire that ownership, (ii)
propose to enter into, directly or indirectly, any merger or business
combination involving Seller, or to purchase, directly or indirectly,
a material portion of the assets of Seller, (iii) make, or in any way
participate, directly or indirectly, in any solicitation of "proxies"
(as that term is used in regulation 14A under the Securities Exchange
Act of 1934) to vote or seek to advise or influence any person with
respect to the voting of any securities of Seller, (iv) form, join, or
in any way participate in a "group" (within the meaning of section
13(d) of the Securities Exchange Act of 1934) with respect to any
voting securities of Seller, (v) otherwise act, alone or in concert
with others, to seek to control or influence the management, Board of
Directors, or policies of Seller, or (vi) publicly disclose any
intention, plan, or arrangement inconsistent with the foregoing.
Notwithstanding anything to the contrary contained herein, Buyer is
permitted to trade and make investments in the voting securities of
Seller in the ordinary course of business, provided that no Evaluation
Material has been disclosed to any person directing those investments
or executing any order with respect to those investments.
(i) Buyer acknowledges that if this Section 4.5 is breached,
Seller and/or third parties dealing with Seller could be irreparably
damaged and could not be made whole by monetary damages. Accordingly,
Seller, in addition to any other remedy to which it may be entitled by
law or in equity, shall be entitled to an injunction to prevent
breaches of this Section 4.5, and to an order compelling specific
performance of this Section 4.5.
(j) This Section 4.5 expressly supersedes and replaces in its
entirety that certain Confidentiality Agreement dated March 16, 1995
between Seller and Buyer. This Section 4.5 shall terminate and be of
no further force and effect upon the Closing of the transactions
contemplated in this Agreement. This Section 4.5, however, shall
survive any termination of this Agreement.
4.6 Conditions of Property/"As Is" Sale.
(a) Buyer acknowledges that it is acquiring the
Properties in reliance solely on (i) Buyer's inspection of the
Properties, Buyer's review of the Records and any other investigations
conducted by Buyer, (ii) Buyer's independent verification of the truth
of any documents delivered by Seller to Buyer and of any statements
made by Seller to Buyer concerning the Properties and their condition,
(iii) the opinions and advice of consultants engaged by Buyer
concerning the Properties and their development, operation and
management, and (iv) the representations and warranties specifically
made by Seller in this Agreement. Except for those representations
and warranties specifically made by Seller in this Agreement, Seller
has not made any other representations or warranties to Buyer
concerning the physical condition or financial viability of the
Properties or concerning any other matter with respect to the
Properties. Buyer will accept the Properties, including without
limitation the Leases, the Contracts and the matters relating to the
Properties listed below, in their "AS IS" condition and status as the
same will be on the Closing Date:
(A) Soils and geological condition, topography,
area and configuration;
(B) Availability of utilities, public access
and fire and police protection;
(C) Applicable planning, zoning, redevelopment
and subdivision statutes, ordinances, regulations and permits;
(D) The character and amount of park fees,
school fees, impact fees, inspection fees and any other fee or
charge which must be paid to develop, operate, improve or
redevelop the Properties; and
(E) The value, income and economic opportunity
and risk associated with ownership of the Properties.
(b) In addition to and not by way of limitation of
the sale of the Properties on an "AS IS" basis under this Agreement,
Buyer acknowledges that the Environmental Assessments are furnished by
Seller for informational purposes only and not as a comprehensive
survey of the Properties for all forms of Hazardous Materials (as
defined in Section 4.6(c) below). Seller makes no representations or
warranties whatsoever to Buyer regarding (i) the Environmental
Assessments (including, without limitation, the contents and/or
accuracy thereof), and/or (ii) the presence or absence of any
Hazardous Materials in, at, or under the Properties, except as
specifically referred to in Section 7.1(c)(3) below.
(c) For purposes of this Agreement, the term
"Hazardous Material" shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state or local
governmental authority because of its toxicity, infectiousness,
radioactivity, explosiveness, ignitability, corrosiveness or
reactivity, including, without limitation petroleum, petroleum based
products and any fractions thereof. The term "Hazardous Material
Laws" shall mean all laws, rules, regulations and other governmental
edicts that govern the presence, use, release, generation,
transportation or disposal of Hazardous Materials.
4.7 Assumption of Contracts. At least thirty (30) days
before the anticipated Closing Date, Buyer shall notify Seller in
writing of any service, utility, maintenance or other contracts that
relate to the operation, maintenance, leasing and management of the
Properties that Buyer wishes to assume as of the Closing Date (the
"Contracts"). Provided the Contracts are assignable by Seller
without charge, fee or penalty or that Buyer agrees to pay such
charge, fee or penalty, Seller shall assign its rights under the
Contracts to Buyer at the Closing pursuant to the form of Assignment
and Assumption of Contracts attached hereto as Exhibit G.
4.8 Estoppel Certificates. As a condition precedent to
Buyer's obligation to close the transactions contemplated by this
Agreement, Buyer must receive estoppel certificates, each in
substantially the form of the estoppel certificate attached hereto as
Exhibit D ("Estoppels"), from (i) each tenant of each of the
Properties who occupies more than five thousand (5,000) square feet of
rentable area, and (ii) as to any single Property, tenants who
collectively occupy at least eighty percent (80%) of the rentable area
of such Property. If Buyer fails to receive Estoppel from the tenants
specified in the foregoing clauses (i) and (ii) by the Closing, then
Buyer may either (x) terminate this Agreement, whereupon the Earnest
Money Deposit shall be returned to Buyer and neither party shall have
any liabilities to the other arising out of this Agreement except for
the Surviving Obligations, or (y) waive the condition precedent
described in this Section 4.8 and proceed with the Closing.
4.9 Local Law Disclosure. As required by Oregon Statutes
93.040, the following disclosure is made as to Twin Oaks Business and
Twin Oaks Technology:
"THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE
PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO
LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT
AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT
LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930
IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE
CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND
EXISTENCE OF FIRE PROTECTION FOR STRUCTURES."
5. CLOSING.
5.1 Closing. Unless this Agreement is terminated by
Buyer or Seller pursuant to the terms hereof, the purchase and sale of
the Properties shall occur on or before December 14, 1995, subject to
extension due to the occurrence of an event specified in Section
8.1(f) or Section 8.2(g) (the "Outside Closing Date"), or such earlier
date as shall be agreed on in writing by Seller and Buyer. The actual
date the transaction described in this Agreement closes shall be
referred to as the "Closing Date", and shall close through an escrow
("Close of Escrow" or the "Closing") opened with the Escrow Holder.
5.2 Transactions at Closing.
(a) Prior to the Closing Date, Seller shall deliver
to the Escrow Holder the following documents (collectively, the
"Conveyance Documents"):
(i) a grant deed for each of the Real
Properties and Improvements (or their equivalent with respect to
Properties located outside California) in the form attached
hereto as Exhibit E (the "Deeds"), each duly executed and
acknowledged by Seller;
(ii) a Bill of Sale for each of the Properties
in the form attached hereto as Exhibit F (the "Bill of Sale")
duly executed by Seller;
(iii) counterpart originals of the Assignment and
Assumption of Contracts (the "Assignment of Contracts") duly
executed by Seller (the Assignment of Contracts shall include
the Approved Contracts, if any);
(iv) counterpart originals of the Assignment
and Assumption of Leases in the forms attached hereto as Exhibit
H (the "Assignment of Leases") duly executed by Seller [assumes
separate Assignment of Leases for each Property, each in
recordable form];
(v) a Certificate of Non-Foreign Status in the
form set forth on Exhibit I attached hereto (the "FIRPTA
Certificate") duly executed by Seller, to confirm that Buyer is
not required to withhold part of the Purchase Price pursuant to
Section 1445 of the Code and comparable state provisions;
(vi) a copy of corporate resolutions from
Seller's Board of Directors authorizing the consummation of the
transactions contemplated by this Agreement, together with an
incumbency certificate that identifies the authorized
signatories to this Agreement and all closing documents to be
signed by Seller and that contains an exemplar of their
signatures;
(vii) A copy of Seller's articles of
incorporation, together with a Certificate of Status from the
Maryland Secretary of State and a Certificate of Status -
Foreign Corporation from the California, Colorado, Minnesota and
Oregon Secretaries of State, which indicate that Seller is duly
organized and in good standing in Maryland and is entitled to
transact business in California, Colorado, Minnesota and Oregon;
(viii) a letter of good standing from the
California Franchise Tax Board that indicates that Seller is in
good standing and qualified to transact business in California;
(ix) an opinion letter from Seller's counsel in
form and substance reasonably satisfactory to Buyer and its
counsel;
(x) a certificate dated as of the Closing Date
whereby Seller affirms that, except for immaterial changes, the
representations and warranties made in this Agreement are still
true and correct as of the Closing Date, which certificate shall
be in the form of Exhibit M attached hereto;
(xi) a security agreement as provided in Section
17.4 below and such other documents as reasonably requested by
Buyer to perfect the security interest created by the security
agreement;
(xii) such other documents as are required by
applicable governmental authorities in connection with the
purchase and sale of the Properties (e.g., preliminary change of
ownership statements and real property transfer declarations);
and
(xiii) Seller's written instructions to consummate
the Closing in accordance with the terms of this Agreement.
(b) Prior to the Closing Date, Buyer shall deliver
to the Escrow Holder the following:
(i) the Purchase Price and all additional sums
required to be paid by Buyer pursuant to Section 6 below;
(ii) a counterpart original of the Assignment
of Contracts duly executed by Buyer;
(iii) counterpart originals of the Assignments
of Leases duly executed by Buyer;
(iv) if Nohr Plaza is sold to Buyer at the
Closing, the Note and the Deed of Trust, each duly executed by
Buyer;
(v) if Nohr Plaza is sold to Buyer at the
Closing, a Certificate of Non-Foreign Status in the form set
forth on Exhibit I attached hereto (the "FIRPTA Certificate")
duly executed by Buyer and given pursuant to the Code, as well
as a California Form 590-RE;
(vi) a copy of corporate resolutions from
Buyer's Board of Directors authorizing the consummation of the
transactions contemplated by this Agreement, together with an
incumbency certificate that identifies the authorized
signatories to this Agreement and all closing documents to be
signed by Buyer and that contains an exemplar of their
signatures;
(vii) a copy of Buyer's articles of
incorporation, together with a Certificate of Status from the
Maryland Secretary of State and a Certificate of Status -
Foreign Corporation from the California Secretary of State,
which indicate that Buyer is duly organized and in good standing
in Maryland and is entitled to transact business in California;
(viii) a letter of good standing from the
California Franchise Tax Board that indicates that Buyer is in
good standing and qualified to transact business in California;
(ix) an opinion letter from Buyer's counsel in
form and substance reasonably satisfactory to Seller and its
counsel; and
(x) a certificate dated as of the Closing Date
whereby Buyer affirms that, except for immaterial changes, the
representations and warranties made in this Agreement are still
true and correct as of the Closing Date, which certificate shall
be in the form of Exhibit M attached hereto; and
(xi) such other documents as are required by
applicable governmental authorities in connection with the
purchase and sale of the Properties (e.g., preliminary change of
ownership statements and real property transfer declarations);
and
(xii) Buyer's written instructions to consummate
the Closing in accordance with the terms of this Agreement.
(c) On the Closing Date Seller and Buyer shall
execute a tenant notification letter, on a form prepared by Buyer and
approved by Seller, which approval shall not be unreasonably withheld,
to each tenant under the Leases (the "Tenant Notification Letter"),
indicating the change of ownership of the Properties with the name and
address of the Buyer and the Closing Date, and Buyer shall, within
forty eight (48) hours following the Closing, cause the Tenant
Notification Letter to be mailed to such tenants using the U.S. Mail
system.
(d) On the Closing Date, Escrow Holder shall close
the escrow by:
(i) recording all documents as may be necessary
to clear title in accordance with the requirements of this
Agreement;
(ii) recording the Deeds, and instructing the
County Recorders for each of the counties in which the
Properties are located not to affix the amount of any
documentary or transfer taxes to the Deeds but to attach a
separate statement to the Deeds after recording;
(iii) recording the Deed of Trust, if Nohr
Plaza is sold to Buyer ;
(iv) paying all closing costs and making all
adjustments and prorations in accordance with the terms of this
Agreement and a statement of adjustments and prorations prepared
by Buyer and Seller and delivered to Escrow Holder prior to the
Closing;
(v) delivering to Buyer the Title Policies,
Escrow Holder's certified closing statement, and an original of
each of the documents described in Section 5.2(a) above (with a
conformed copy of any documents that are to be recorded);
(vi) delivering to Seller the Purchase Price
(plus or minus closing adjustments and prorations as provided in
Section 6 below), Escrow Holder's certified closing statement, a
conformed copy of the Deeds, the Assignment of Leases and the
Deed of Trust (if applicable), the originally executed Note (if
applicable), an original of each of the documents described in
Section 5.2(a) above and issuing to Seller the Nohr Title Policy
(if applicable).
(e) At the Closing, Seller shall deliver to Buyer the
following:
(i) Originals of all of the Leases or, to the extent
an original Lease is unavailable, a copy thereof together with a
certificate executed by Seller warranting the authenticity of
such copy.
(ii) Rent rolls for each of the Properties, certified
as to its accuracy and executed by Seller, together with a list
of tenants whose rent is past due or who are otherwise in
default under their Leases as of the Close of Escrow.
(iii) Originals of all Contracts or, to the extent an
original Contract is unavailable, a copy thereof with a
certificate executed by Seller warranting the authenticity of
such copy.
(iv) Originals of all financial and other books and
records maintained in connection with the operation of the
Properties (but specifically excluding financial projections,
management reports and other materials prepared for Seller's
internal use and analysis) and all preliminary, final and
proposed building plans and specifications (including "as-built"
drawings) respecting the Improvements that are in Seller's
possession.
(v) Keys to all entrance doors to the Improvements
and keys to all Tangible Property located on the Properties,
which keys shall be properly tagged for identification.
(vi) Possession of the Property.
(vii) To the extent in Seller's possession, originals
of all licenses, consents, easements, rights of way and
approvals required from private parties to make use of utilities
and to insure vehicular and pedestrian ingress and egress to the
Properties or, to the extent an original of a any of the
foregoing documents is unavailable, a copy thereof with a
certificate executed by Seller warranting the authenticity of
such copy.
(viii) To the extent in Seller's possession, originals
of all warranties and guaranties.
5.3 Costs and Expenses. Seller will pay:
(a) Seller's share of all Closing Costs, as provided
in Section 5.4 below);
(b) Seller's share of adjustments and prorations as
provided in Section 6; and
(c) All sales tax imposed by any applicable taxing
authority in connection with the transactions contemplated by this
Agreement.
Buyer will pay:
(a) Buyer's share of Closing Costs, as provided in
Section 5.4 below; and
(b) Buyer's share of adjustments and prorations as
provided in Section 6.
At least five (5) days before the anticipated Closing, Escrow
Holder shall provide Seller and Buyer with a copy of an estimated
closing statement that allocates the Closing Costs as between Seller
and Buyer. Seller and Buyer shall work with Escrow Holder to finalize
the Closing Costs allocation prior to the Closing.
Subject to Section 15.2 below, Buyer and Seller will each pay
their own legal, professional and consulting fees, costs and expenses
incurred by them in connection with the transaction contemplated by
this Agreement.
5.4 Allocation of Closing Costs. Escrow fees and costs,
title insurance premiums, city and county documentary transfer taxes,
document recording charges and all other reasonable and customary
closing costs that arise from the Closing (the "Closing Costs") shall
be allocated between Seller and Buyer on a county by county basis as
more particularly set forth on Exhibit N attached hereto.
5.5 Bulk Sales. Seller shall satisfy all requirements of
the applicable state bulk sales and all other Federal, state or local
laws and requirements that relate to bulk sales.
6. CLOSING ADJUSTMENTS AND PRORATIONS.
The adjustments and prorations set forth below shall be made at the
Close of Escrow. The rights and obligations of the parties contained
in this Section 6 shall survive the Closing.
6.1 Lease Rentals. Except as hereinafter provided, all
accrued rent (including all accrued operating expense and tax
escalations and recoveries), charges, and revenues of any kind under
the Leases shall be prorated as of the Closing Date based on the
actual number of days in the months of closing. Seller shall receive
all such revenue attributable to the period through the Closing Date.
Buyer shall receive all such revenue attributable to the period on and
after the Closing Date. If either Buyer or Seller receives any
revenues attributable to the period during which it is not the owner
of the Properties, said party shall promptly forward such amounts to
the other party (if such revenues are only partially attributable to
the period during which said party is not the owner of the Properties,
the amount it paid to the other party shall be based upon proration as
of the Closing Date as set forth above). Buyer shall use commercially
reasonable efforts to collect and assist Seller in collecting any
revenue which is owed to Seller as of the Closing Date or which comes
due thereafter. All revenues collected by Buyer shall be applied
against the Lease obligations as designated on the check or on any
remittance statement or other correspondence that accompanies such
check. If Buyer has not collected all revenue that is owed to Seller
under this Section 6.1 as of the Closing Date ("Uncollected Revenue")
by the date that is ninety (90) days after the Closing Date, Buyer
does hereby assign and shall be deemed to have assigned to Seller on
such date all of Buyer's rights to commence collection actions, which
may include the institution of legal proceedings, to recover the
Uncollected Revenue. Buyer agrees to execute such documents and take
such actions as Seller shall reasonably request to assist Seller in
collecting the Uncollected Revenue, provided that Buyer shall incur no
third party cost or expense in connection with such actions.
6.2 Security Deposits. Buyer shall be credited with the
amount of any tenant security deposits or any other tenant deposits
held by Seller in connection with the Leases.
6.3 Real Estate Taxes. All real and personal property
taxes, installments of bonds and special taxes and assessments
attributable to the Properties (and not paid directly by tenants)
shall be prorated as of the Closing Date based on a 365-day year and
the assessed value of the Properties in effect immediately prior to
the Close of Escrow. Seller shall pay all such taxes and installments
of assessments attributable to the periods through the Closing Date.
Notwithstanding anything in the foregoing to the contrary, Seller
shall be entitled to any and all tax refunds for tax years during
which Seller owned the Properties based on protests or contests filed
by Seller prior to or that relate to periods prior to the Closing
Date. If Buyer should become liable after the Closing for any real
property taxes or supplemental assessments that are imposed against
the Properties and that relate to the period of time prior to the
Close of Escrow, Seller shall pay to Buyer an amount equal to such
real property taxes or supplemental assessments. Buyer will cooperate
with Seller, at no cost to Buyer, in any such proceedings.
Notwithstanding anything to the contrary contained in this Section
6.3, Seller shall, at or prior to the Closing, pay all real estate
taxes and assessments owing on Nohr Plaza through June 30, 1996.
6.4 Insurance. Seller shall not assign to Buyer any
insurance policies in connection with the Properties.
6.5 Utilities. Utility charges shall be prorated as of
the Closing Date based on estimates from the latest bills available,
subject to adjustment as provided in Section 6.7 below. Seller shall
not assign to Buyer any deposits Seller has with any utility services
or companies and Buyer shall not be entitled to any adjustment in the
Purchase Price with respect to such utility deposits. In any event,
Seller shall pay, through the Closing Date, all utility charges
attributable to the Properties which are not payable directly by
tenants.
6.6 Contracts/Loans. Amounts owing under Contracts
assumed by Buyer shall be prorated as of the Closing Date.
6.7 Calculations for Closing. Seller and Buyer shall
provide Escrow Holder with a preliminary calculation of prorations no
later than five (5) days prior to the Closing Date and a final
calculation two (2) days prior to the Closing Date. The final
calculation shall be signed by each party and may be relied upon by
Escrow Holder in completing the closing adjustments and prorations.
In the event incomplete information is available, or estimates have
been utilized to calculate prorations as of the Closing Date, any
prorations relating thereto shall be further adjusted and completed
outside of escrow by February 28, 1996 or as and when complete
information becomes available to Buyer and Seller. Among other
things, the final prorations adjustment shall include an adjustment
for reconciliations of common area costs and other tenant pass
throughs paid by the tenants of the Properties. Buyer and Seller
agree to conduct reconciliations of common area costs and other tenant
pass throughs by no later than February 28, 1996 so that a prorations
adjustment concerning such costs and other pass throughs can be made
in the final prorations adjustment.
6.8 Payment With Interest. Whenever any payment is due
from any party pursuant to this Agreement or any other document
entered into in connection with this Agreement, unless another time
period is expressly provided, such payment shall be made within five
(5) days of demand. Any payment which is not made within the time
period expressly provided therefor, or if no such time period is
expressly provided within five (5) days of demand, shall bear interest
from the date due until paid at the Interest Rate.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Representations or Warranties by Seller. Seller
hereby represents and warrants to Buyer as follows:
(a) Seller is a Maryland corporation, duly formed
and organized, validly existing and in good standing under the laws of
the state of its incorporation and of California, Oregon, Minnesota
and Colorado, with the authority to own and convey the Properties.
(b) Seller's Board of Directors have approved this
Agreement and the transactions described herein and, subject to the
approval described in Section 8.1(a) below, Seller has full power and
authority to enter into and carry out the terms and provisions of this
Agreement and to execute and deliver all documents which are
contemplated by this Agreement, and all actions of Seller necessary to
confer such authority upon the persons executing this Agreement and
such other documents have been taken;
(c) To the best of Seller's "actual knowledge"
(which for the purpose of this Section 7.1(c) shall mean information
actually (not constructively or impliedly) known to the following
individuals as of the date of this Agreement and as of the Closing
Date: Martin I. Zankel, Joseph M. Mock, Dean Banks, Rebecca Running
and Robert Lewis), and without any independent investigation other
than inquiry of Seller's third party property managers:
(1) Litigation. To Seller's actual knowledge, there is
presently no claim, litigation, proceeding or governmental
investigation pending against any of the Properties or the
transactions contemplated hereby. (Seller shall give Buyer immediate
notice of any such claim, litigation, proceeding or investigation
which becomes known to Seller prior to the Closing Date.)
(2) Compliance with Laws. To Seller's actual knowledge,
no notice of violation of any applicable zoning regulation or
ordinance or other law, order, ordinance, permit, rule, regulation or
requirement, or any covenants, conditions or restrictions that have
been recorded against any of the Properties has been given to Seller
by any governmental agency having jurisdiction or by any other person
entitled to enforce the same. Seller makes no representation or
warranty of any kind whatsoever that any Improvements comply with the
Americans with Disabilities Act ("ADA").
(3) Environmental.
(A) To Seller's actual knowledge, Seller has not
received notice from any governmental agency or regulatory body that
any of the Properties are in violation of any federal, state or local
law, ordinance or regulation relating to industrial hygiene, soil,
water, or environmental conditions on, under or about the Properties
including, but not limited to, the Hazardous Material Laws;
(B) To Seller's actual knowledge, during the period
that Seller has owned the Properties, there has been no enforcement
action or litigation concerning Hazardous Materials brought against
Seller or the Properties, nor any settlements reached by or with any
party or parties alleging the presence, use, release, generation,
transportation or disposal of any Hazardous Materials on, from or
under the Properties, except as disclosed by Seller to Buyer in
writing; and
(C) To Seller's actual knowledge, there has been no
release, discharge or disposal of Hazardous Materials on, from or
under the Properties and to Seller's actual knowledge, there are no
outstanding violations concerning the storage of any Hazardous
Materials on, from or under the Properties, in each case except as
disclosed by Seller to Buyer in writing.
(4) Foreign Person. Seller is not a foreign person and is
a "United States Person," as such term is defined in Section
7701(a)(30) of the Code.
(5) Public Improvements. To Seller's actual knowledge,
there are presently no intended public improvements which will result
in any charge being levied or assessed against any of the Properties
or in the creation of any lien upon any of the Properties. (Seller
shall promptly notify Buyer of any changes affecting this
representation of which it becomes aware prior to the Closing Date).
(6) Condemnation. To Seller's actual knowledge, there is
presently no pending condemnation of any of the Properties or any part
thereof. (Seller shall promptly notify Buyer of any changes affecting
this representation of which it becomes aware prior to the Closing
Date.)
(7) Construction Contracts. To Seller's actual knowledge,
there are no outstanding construction contracts entered into by Seller
for any improvements to any of the Properties which will be binding on
Buyer or will cause a lien to be imposed against the Properties.
(8) Labor Contracts. Seller is not party to, or otherwise
bound by, any collective bargaining agreement or multi-employer
pension fund covering employees who service the Properties.
(9) Solvency. Seller is, and upon the Closing will be,
Solvent. "Solvent" means, with respect to any person on a particular
date, that on such date (i) the fair value of the property of such
person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such person, (ii) the
present fair salable value of the assets of such person is not less
than the amount that will be required to pay the probable liability of
such person or its debts as they become absolute and matured, (iii)
such person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course
of business, (iv) such person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such person's ability
to pay as such debts and liabilities mature and (v) such person is not
engaged in a business or transaction, and is not about to engage in a
business or a transaction, for which such person's property would
constitute unreasonably small capital after giving due consideration
to the prevailing practice in the industry in which such person is
engaged. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the
amount which in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(10) No Defaults. To Seller's actual knowledge, the
closing of the various transactions contemplated by this Agreement
will not constitute or result in any default or event that with a
notice or lapse of time, or both, would be a default, breach or
violation of any lease, covenant or other agreement, instrument or
arrangement by which Seller or the Properties are bound.
(11) Property Commissions. To Seller's actual knowledge,
there are no commissions, finder's fees or other compensation owing or
which may become owing to any broker or any other person or entity
with respect to any lease or occupancy agreement for any of the
Properties.
(12) No Wells. As required by Minnesota Statutes Section
1031.235, to Seller's actual knowledge there are no wells located on
St. Paul East nor on St. Paul West.
7.2 Buyer's Representations and Warranties. Buyer hereby
represents and warrants to Seller as follows:
(a) Buyer is a Maryland corporation, duly formed and
organized, validly existing and in good standing under the laws of the
state of its incorporation and qualified to transact business in
California;
(b) Buyer has the full power and authority to enter
into this Agreement. Subject to the approvals described in Section
8.2(a) below, Buyer shall, prior to the expiration of the Due
Diligence Period, have full power and authority to carry out the terms
and provisions of this Agreement and to execute and deliver all
documents which are contemplated by this Agreement, and all actions of
Buyer necessary to confer such authority upon the persons executing
this Agreement and such other documents have been taken;
(c) Buyer is not a foreign person and is a "United
States Person," as such term is defined in Section 7701(a)(30) of the
Code.
(d) To Buyer's actual knowledge, the closing of the
various transactions contemplated by this Agreement will not
constitute or result in any default or event that with a notice or
lapse of time, or both, would be a default, breach or violation of any
lease, covenant or other agreement, instrument or arrangement by which
Buyer is bound.
7.3 Subsequent Changes in Conditions. If Seller or Buyer
becomes aware of any fact or circumstance which materially changes or
would cause Seller or Buyer to be in breach of a representation or
warranty made by Seller or Buyer in this Agreement, then the party who
becomes aware of such fact or circumstance shall immediately give
written notice of such changed fact or circumstance to the other
party. The sending of such written notice shall not relieve either
party of its liabilities or obligations with respect thereto. Seller
and Buyer shall issue a certificate at the Closing Date stating that
all of the representations and warranties contained in Sections 7.1
(as to Seller) and 7.2 (as to Buyer) are true and correct as of said
date, except as to facts, if any, concerning which Buyer was notified.
8. CONDITIONS TO CLOSING.
8.1 Seller's Conditions. The obligation of Seller to sell
and convey the Properties under this Agreement is subject to the
satisfaction of the following conditions precedent or conditions
concurrent (the satisfaction of which may be waived only in writing by
Seller) as of the Closing:
(a) Seller's stockholders shall have approved the
proposal set forth in the Proxy Statement by no later than November 8,
1995;
(b) delivery and execution by Buyer of all monies,
items, and other instruments required to be delivered by Buyer to
Seller;
(c) Except for immaterial changes, Buyer's
warranties and representations set forth herein shall be true and
correct as of the Closing Date;
(d) all of the actions by Buyer contemplated by this
Agreement shall have been completed;
(e) there shall be no uncured default by Buyer of
any of its obligations under this Agreement; and
(f) no temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the Seller from consummating the transactions contemplated
hereby shall be in effect, nor shall any proceeding brought by any
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, seeking any of the foregoing be
pending; and there shall not be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed
applicable to the transactions contemplated hereby, which makes the
consummation of the transactions contemplated hereby illegal (all such
matters described in this Section 8.1(f) being "Outside Delays");
provided that Seller shall have the right, but not the obligation, to
postpone the Closing Date in order to attempt to cause the Outside
Delay to be dissolved, dismissed or otherwise removed by 5:00 PM on
February 12, 1996 ("Attempt to Remove"). Seller must make its
election to Attempt to Remove an Outside Delay no later than fourteen
(14) days after Seller receives written notice of the Outside Delay;
otherwise, Seller shall be deemed to have waived its right to Attempt
to Remove the Outside Delay. If Seller notifies Buyer of its election
to Attempt to Remove an Outside Delay, then the Outside Closing Date
shall be extended to 5:00 PM on February 12, 1996. If an Outside
Delay should arise on or after December 1, 1995 and Seller does not
Close this transaction on December 14, 1995, then this Agreement shall
be extended for fourteen (14) days after the date the Outside Delay
arises (even though such 14 day period will extend beyond December 14,
1995), or such lesser period of time as Seller needs to decide whether
to Attempt to Remove the Outside Delay. If Seller should elect not to
Attempt to Remove the Outside Delay, then this Agreement shall
terminate on the date Seller elects not to Attempt to Remove the
Outside Delay; and
(g) this Agreement has not otherwise
terminated.
8.2 Buyer's Conditions. The obligation of Buyer to
acquire the Properties under this Agreement is subject to the
satisfaction of the following conditions precedent or conditions
concurrent as of the Closing:
(a) Prior to November 30, 1995, Buyer shall have
obtained the written approval of its Board of Directors to consummate
the transactions contemplated by this Agreement. If all of the Due
Diligence conditions have been satisfied or waived at the expiration
of the Due Diligence Period, then Buyer agrees that its senior
management will make, by no later than November 15, 1995, a written
recommendation to its Board of Directors that they approve the
transactions contemplated by this Agreement (once this written
recommendation is made, Buyer shall promptly provide Seller with
written notice of such act);
(b) delivery and execution by Seller of all monies,
items and other instruments to be delivered by Seller to Buyer;
(c) Except for immaterial changes, Seller's
warranties and representations set forth in Section 7.1 shall be true
and correct as of the Closing Date;
(d) the willingness of the Escrow Holder to deliver
the Title Policies;
(e) all of the actions by Seller contemplated by
this Agreement shall have been taken;
(f) receipt by Buyer of Estoppels that conform to
the requirements set forth in Section 4.8 above;
(g) no Injunction preventing the Buyer from
consummating the transactions contemplated hereby shall be in effect,
nor shall any proceeding brought by any administrative agency or
commission or other governmental authority or instrumentality,
domestic or foreign, seeking any of the foregoing be pending; and
there shall not be any action taken, or any statute, rule, regulation
or order enacted, entered, enforced or deemed applicable to the
transactions contemplated hereby, which makes the consummation of the
transactions contemplated hereby illegal (all such matters described
in this Section 8.2(g) being "Outside Delays"); provided that Buyer
shall have the right, but not the obligation, to postpone the Closing
Date in order to attempt to cause the Outside Delay to be dissolved,
dismissed or otherwise removed by 5:00 PM on February 12, 1996
("Attempt to Remove"). Buyer must make its election to Attempt to
Remove an Outside Delay no later than fourteen (14) days after Buyer
receives written notice of the Outside Delay; otherwise, Buyer shall
be deemed to have waived its right to Attempt to Remove the Outside
Delay. If Buyer elects to Attempt to Remove an Outside Delay, then
the Outside Closing Date shall be extended to 5:00 PM on February 12,
1996. If an Outside Delay should arise on or after December 1, 1995
and Buyer does not Close this transaction on December 14, 1995, then
this Agreement shall be extended for fourteen (14) days after the date
the Outside Delay arises (even though such 14 day period will extend
beyond December 14, 1995), or such lesser period of time as Buyer
needs to decide whether to Attempt to Remove the Outside Delay. If
Buyer should elect not to Attempt to Remove the Outside Delay, then
this Agreement shall terminate on the date Buyer elects not to Attempt
to Remove the Outside Delay;
(h) there shall be no uncured default by Seller of
any of its obligations under this Agreement;
(i) this Agreement has not otherwise terminated.
8.3 Failure of Condition.
(a) In the event of a failure of any condition
contained in Section 8.2 above, then Buyer may, in its sole
discretion:
(i) terminate this Agreement by written notice
to Seller and Escrow Holder, in which event all documents and
funds deposited by Buyer shall be immediately returned to Buyer
(including the Earnest Money Deposit), unless the Buyer's
Termination Fee is owing, all documents deposited by Seller
shall be immediately returned to Seller and neither party shall
have any other obligation to the other except for the Surviving
Obligations and except to the extent Buyer or Seller is entitled
to the Buyer's Termination Fee or the Seller's Termination Fee,
as provided in Section 2.4 above; or
(ii) waive such default and close the
transaction (Buyer's consent to the Closing shall waive the
benefit of, and Seller shall have no liability to Buyer with
respect to, any remaining unfulfilled conditions set forth in
Section 8.2).
(b) In the event of a failure of any condition
contained in Section 8.1 above, Seller may in its sole discretion:
(i) terminate this Agreement by written notice
to Buyer and Escrow Holder, in which event all documents
deposited by Buyer shall immediately be returned to Buyer, funds
deposited by Buyer shall be immediately returned to Buyer
(including the Earnest Money Deposit), unless the Buyer's
Termination Fee is owing, all documents deposited by Seller
shall be immediately returned to Seller, and neither party shall
have any other obligation to the other except for the Surviving
Obligations and except to the extent Buyer or Seller is entitled
to the Buyer's Termination Fee or the Seller's Termination Fee
as provided in Section 2.4; or
(ii) waive such default and close the
transaction (Seller's consent to the Closing shall waive the
benefit of, and Buyer shall have no liability to Seller with
respect to, any remaining unfulfilled conditions set forth in
Section 8.1).
9. DAMAGE OR DESTRUCTION OF THE PROPERTIES; CONDEMNATION.
9.1 Damage or Destruction of the Properties.
(a) If prior to the Closing Date any Property shall
sustain damage caused by fire or other casualty which would cost Five
Hundred Thousand Dollars ($500,000) or more to repair or replace,
Seller shall promptly notify Buyer and Buyer may, at its option, to be
exercised within ten days after delivery of notice of such event from
Seller, terminate this Agreement as to the Property affected by the
casualty (the "Casualty Notice"), but not any other Real Property,
whereupon the Purchase Price and cash payable at closing will be
reduced by an amount agreed on by Seller and Buyer and the Property
affected by the casualty shall not be sold to Buyer. If Seller and
Buyer are unable to agree on the amount by which the Purchase Price
and cash payable at Closing should be reduced, then this Agreement
shall terminate, the Earnest Money Deposit shall be returned to Buyer
(provided that Buyer is not then in default under this Agreement) and
neither party shall have any further obligations to the other except
for the Surviving Obligations. If the Property affected by the
casualty is Nohr Plaza and all requirements set forth in this Section
9.1(a) concerning the termination of this Agreement as to Nohr Plaza
have been met, then the cash to be paid at Closing shall not be
reduced; rather, Buyer shall be relieved of its obligation to execute
and deliver the Note and the Deed of Trust. If Buyer does not
terminate this Agreement as to the Property affected by the casualty
within this ten day period or if the damage to the Property is less
than the $500,000 threshold, then Seller shall promptly and diligently
repair and restore, or commence to repair and restore, the damaged
Property, as nearly as may be practicable, to its condition and
character immediately prior to the damage and the Closing shall not be
postponed as a result of such damage. If such repair and restoration
is not completed by the Closing, then at the Closing, (A) Seller shall
assign, transfer and set over to Buyer, by instruments in form
reasonably satisfactory to Buyer, all of Seller's right, title and
interest in and to all of the policies of insurance covering the loss,
damage or destruction, and any insurance proceeds paid or to be paid
thereunder that have not been used prior to the Closing for the repair
and restoration and the contracts for the repair and restoration, or
assign such other rights as may be reasonably necessary to accomplish
this result; (B) Seller shall deliver to Buyer an acknowledgment from
Seller's insurance carriers, in form and substance reasonably
satisfactory to Buyer, stating the amount of the insurance monies paid
or to be paid in respect of such loss, damage or destruction and
stating that there exists no defense to the payment of such insurance
monies.
9.2 Condemnation. If prior to Closing all or any portion
of a Real Property is subject to a proposed taking by any public
authority, the result of which taking would impair the value of the
Real Property by more than Five Hundred Thousand Dollars ($500,000),
Seller shall promptly notify Buyer of such proposed taking and Buyer
may terminate this Agreement as to the Real Property affected by the
proposed taking (the "Condemned Property"), but not as to any other
Real Property, by written notice delivered to Seller within 15 days
after Seller has delivered written notice of the proposed taking or at
any time prior to the Closing Date, whichever is earlier. If Buyer
elects to terminate this Agreement as to the Condemned Property, then
the Purchase Price and the cash payable at Closing shall be reduced by
an amount agreed on by Seller and Buyer and the Condemned Property
shall not be sold to Buyer. If Seller and Buyer are unable to agree
on the amount by which the Purchase Price and cash payable at Closing
should be reduced, then this Agreement shall terminate, the Earnest
Money Deposit shall be returned to Buyer (provided that Buyer is not
then in default under this Agreement) and neither party shall have any
further obligations to the other except for the Surviving Obligations.
If the Condemned Property is Nohr Plaza and all requirements set forth
in this Section 9.2 concerning the termination of this Agreement as to
Nohr Plaza have been met, then the cash to be paid at Closing shall
not be reduced; rather, Buyer shall be relieved of its obligation to
execute and deliver the Note and the Deed of Trust. If Buyer does not
terminate this Agreement as to a Condemned Property within the time
period allowed in this Section 9.1(b) or if the proposed taking would
not materially impair the value of the Property by more than Five
Hundred Thousand Dollars ($500,000), Buyer shall accept the Property
subject to the taking, without a reduction in the Purchase Price and
shall receive at Closing an assignment of all of Seller's rights to
any condemnation award.
9.3 Arbitration. If a dispute should arise as to whether
(i) with respect to a casualty to any Property, the cost of the repair
or replacement work equals or exceeds $500,000, (ii) with respect to
a proposed taking of any portion of a Property, whether the value of
the Real Property or Improvements would be impaired by more than
$500,000, then Seller and Buyer agree that the dispute shall be
resolved by arbitration conducted in accordance with the then-
effective rules of the American Arbitration Association for commercial
disputes and the outcome of the arbitration shall be binding. The
cost of the arbitration shall be divided equally by Buyer and Seller,
and Buyer and Seller shall each bear their own costs in preparing for
and conducting the arbitration, including attorneys' and consultants'
fees and costs. This arbitration clause shall also apply with respect
to any dispute between Buyer and Seller as to Upfront Costs, as
provided in Section 14(b) below.
10. COMMISSIONS, EXPENSES AND CREDITS. Buyer and Seller each
represent and warrant to the other that it has not engaged any real
estate broker, agent or finder to act on its behalf in connection with
the transactions contemplated by this Agreement. If a real estate
broker, agent or finder claims that it has been engaged by Buyer or
Seller to act on behalf of such party in connection with the
transactions contemplated by this Agreement and that such real estate
broker, agent or finder is entitled to a brokerage or finder's fee,
commission or similar form of compensation, then the party whom such
real estate broker, agent or finder claims to represent (either Seller
or Buyer) agrees to indemnify, defend, protect and hold harmless the
other party from and against all losses, causes of action, liability,
demands, claims and costs (including reasonable attorneys' fees and
costs) that arise out of or relate to such claims. This Section shall
survive the Closing or termination of this Agreement.
11. NOTICES. All notices, requests or demands to a party
hereunder shall be in writing and shall be deemed given (i) on
receipt, when delivered personally or sent by facsimile (provided that
a copy of such notice, request or demand is deposited into the United
States mail within one (1) business day of the facsimile
transmission), (ii) one day after deposit with a nationally recognized
overnight courier service, or (iii) three (3) days after being
deposited into the United States mail (sent certified or registered,
return receipt requested), in each case addressed as follows (or to
such other address as Buyer or Seller may designate in writing in
accordance with Section 11):
To Buyer: Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, California 94549
Fax: (510) 283-5697
Attention: Donald A. Lorenz
Executive Vice President
With a copy to: Shearman & Sterling
555 California Street, Suite 2000
San Francisco, California 94104-1522
Fax: (415) 616-1199
Attention: Michael J. Kennedy
To Seller: Landsing Pacific Fund, Inc.
155 Bovet Road, Suite 101
San Mateo, California 94402
Fax: (415) 358-8813
Attention: Joseph M. Mock
Executive Vice President
With a copy to: Stein & Lubin
600 Montgomery Street, 14th Floor
San Francisco, California 94111
Fax: (415) 981-4343
Attention: Robert S. Stein or
Leon Y. Tuan
12. CROSS-INDEMNITIES.
12.1 Seller Indemnity. Subject to the limitations
contained in Section 16 below, Seller shall indemnify, protect and
defend Buyer, its officers, directors and agents, and each of their
respective successors and assigns (the "Buyer Parties") against and
hold the Buyer Parties harmless from any and all losses, costs,
damages, liabilities and expenses (including, without limitation,
reasonable counsel fees) arising out of or related to any (i) claims,
actions, suits or proceedings that may be made, asserted or commenced
under or in connection with any of the Leases, the Contracts or any
other matter relating to the Properties if any such claim, action,
suit or proceeding results from or by reason of any event or
transaction that occurs prior to the Closing Date, whether or not
known or determined as of that date, (ii) breach by Seller of its
representations or warranties hereunder, or (iii) the Excluded
Liabilities.
12.2 Buyer Indemnity. Subject to the limitations
contained in Section 16 below, Buyer shall indemnify, protect and
defend the Seller Parties against and hold the Seller Parties harmless
from any and all losses, costs, damages, liabilities and expenses
(including, without limitation, reasonable counsel fees) arising out
of or related to any (i) claims, actions, suits or proceedings that
may be made, asserted or commenced under or in connection with any of
the Leases, the contracts or any other matter relating to the
Properties, if any such claim, action, suit or proceeding results from
or by reason of any event or transaction that occurs on or subsequent
to the Closing Date, whether or not known or determined as of that
date, or (ii) breach by Buyer of its representations and warranties
hereunder.
12.3 Claims Procedure.
(a) A party seeking to make a claim pursuant to Sections
12.1 or 12.2 hereof (an "Indemnified Party") against another party (an
"Indemnifying Party") shall give an Indemnifying Party notice of any
matter which an Indemnified Party has determined has given or could
reasonably be expected to give rise to right of indemnification under
this Agreement, within 30 days of such determination, stating the
amount of the loss, if known, and method of computation thereof, and
containing a reference to the provisions of this Agreement in respect
of which such right of indemnification is claimed or arises. The
obligations and liabilities of an Indemnifying Party under this
Section 12 with respect to losses arising from claims of any third
party which are subject to the indemnification provided for in this
Section 12 ("Third Party Claims") shall be governed by and contingent
upon the following additional terms and conditions: if an Indemnified
Party shall receive notice of any Third Party Claim, the Indemnified
Party shall give an Indemnifying Party notice of such Third Party
Claim within 30 days of the receipt by the Indemnified Party of such
notice; provided, however, that the failure to provide such notice
shall not release an Indemnifying Party from any of its obligations
under this Section 12 except to the extent an Indemnifying Party is
materially prejudiced by such failure and shall not relieve an
Indemnifying Party from any other obligation or Liability that it may
have to any Indemnified Party otherwise than under this Section 12.
If an Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnified Party hereunder against any losses that may
result from such Third Party Claim, then such Indemnifying Party shall
be entitled to assume and control the defense of such Third Party
Claim at its expense and through counsel of its choice if it gives
notice of its intention to do so to the Indemnified Party within ten
business days of the receipt of such notice from the Indemnified
Party. In the event an Indemnifying Party exercises the right to
undertake any such defense against any such Third Party Claim as
provided above, the Indemnified Party shall cooperate with such
Indemnifying Party in such defense and make available to such
Indemnifying Party, at such Indemnifying Party's expense, all
witnesses, pertinent records, materials and information in the
Indemnified Party's possession or under the Indemnified Party's
control relating thereto as is reasonably required by the Indemnifying
Party. Similarly, in the event the Indemnified Party is, directly or
indirectly, conducting the defense against any such Third Party Claim,
an Indemnifying Party shall cooperate with the Indemnified Party in
such defense and make available to the Indemnified Party, at such
Indemnifying Party's expense, all such witnesses, records, materials
and information in such Indemnifying Party's possession or under such
Indemnifying Party's control relating thereto as is reasonably
required by the Indemnified Party. No Third Party Claim may be
settled by an Indemnifying Party without the prior written consent of
the Indemnified Party unless as part of such settlement the
Indemnified Party is released from all liability with respect to such
Third Party Claim.
(b) Notwithstanding the foregoing, with respect to any
Third Party Claim arising out of or relating to real property taxes or
assessments, the Indemnifying Party shall not be entitled to assume
and control the defense of such Third Party Claim, provided, however,
that the Indemnified Party shall not settle or compromise any such
Third Party Claim arising out of or relating to real property taxes or
assessments without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld.
13. MAINTENANCE OF THE PROPERTY. From the date of this
Agreement and the Closing, Seller shall: (a) maintain the Properties
in good order, condition and repair consistent with its past practices
for the Properties, reasonable wear and tear excepted, (b) perform all
work required to be done by the landlord under the terms of any
Leases, (c) make all repairs and perform all maintenance of the
Improvements and any Tangible Property, and (d) except for the work
described on Exhibit J and subject to Section 14.2 below, otherwise
operate the Properties in the same manner as before the making of this
Agreement and as though Seller were retaining the Properties.
14. NEW CONTRACTS AFFECTING THE PROPERTIES.
14.1 Consent to New Contracts. Seller shall not, after the
date this Agreement has been executed by Seller and Buyer, enter into
any lease, amendment of Lease, contract or agreement or permit any
tenant of the Properties to enter into any sublease, assignment of
lease, contract or agreement pertaining to the Properties (unless the
applicable lease does not give Seller the right to prevent such action
of the tenant's part), or modify any lease, contract or agreement
pertaining to the Properties or waive any rights of Seller thereunder
(collectively, "New Contracts"), without in each case obtaining
Buyer's prior consent thereto, which consent shall not be unreasonably
withheld. Seller shall submit all proposed New Contracts to Buyer and
Buyer shall have three (3) business days to approve or disapprove the
same. If such approval or disapproval is not received by Seller
within this three (3) business day period, then the same shall be
deemed approved. If Buyer disapproves of any proposed New Contract,
Buyer shall specify with particularity the reason(s) for such
disapproval.
14.2 Proration of New Contract Costs. If Seller is
obligated to make any payments or incur any costs in connection with
any New Contract that has been approved by Buyer or which Buyer has
been deemed to have approved (e.g., leasing commissions, tenant
improvement allowances or other costs paid to secure a new lease for a
Property or an advance paid under a repair contract) ("Upfront Costs")
and Buyer shall realize some or all of the benefits of such New
Contract following the Closing, then Buyer shall reimburse Seller at
the Closing for a prorated portion of the Upfront Costs. For example,
if Seller enters into a new lease with a term that commences one month
before the Closing, the lease has a five year term and Seller had to
pay a $30,000 leasing commission to secure the new lease, Buyer should
reimburse Seller at the Closing in the amount of 59/60ths of the
$30,000 leasing commission (given that Seller realized 1/60th of the
benefit of the new lease and Buyer will realize 59/60ths of the
benefit of the new lease). At the time Buyer approves a New Contract
where Upfront Costs are to be paid, Seller and Buyer will establish
what Buyer's reimbursement obligation shall be at the Closing with
respect to the Upfront Costs. If Seller and Buyer are unable to agree
as to whether or not Buyer should reimburse Seller for Upfront Costs
or the amount of such reimbursement, then the matter shall be
submitted to arbitration in the manner provided for in Section 9.3.
15. MISCELLANEOUS.
15.1 Time. Time is of the essence in the performance of
each party's obligations hereunder.
15.2 Attorneys' Fees. If any legal action, arbitration or
other proceeding is commenced in connection with this Agreement, the
prevailing party shall be entitled to an award of its attorneys' fees
and expenses. The phrase "prevailing party" shall include a party who
receives substantially the relief desired whether by dismissal,
summary judgment, judgment or otherwise.
15.3 No Waiver. No waiver by any party of the performance
or satisfaction of any covenant or condition shall be valid unless in
writing and shall not be considered to be a waiver by such party of
any other covenant or condition hereunder.
15.4 Entire Agreement. This Agreement contains the entire
agreement between the parties regarding the Properties and supersedes
all prior agreements and communications, whether written or oral,
between the parties regarding the same subject. This Agreement may
only be modified in writing.
15.5 Survival. Except for the Surviving Obligations (which
are those obligations contained in Sections 2.4, 4.4, 4.5, 4.6,
5.2(c), 5.3, 5.4, 6, 7, 10, 12, 14, 15.2, 15.5 (subject, however, to
the limitations contained in Sections 16.2 and 16.3), 15.6, 15.8,
15.9, 15.10, 15.13, 15.14, 16 and 17), the agreements, warranties and
representations contained in this Agreement shall not survive the
Closing or earlier termination of this Agreement.
15.6 Successors. Subject to Section 15.7, this Agreement
shall bind and inure to the benefit of the parties hereto and to their
respective legal representatives, successors and permitted assigns
including, without limitation, any successor liquidating trusts.
15.7 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 consent
of Seller, which consent shall be given or denied as determined by
Seller in its sole discretion. Notwithstanding the foregoing, Buyer
may assign its rights under this Agreement to any company of which
Buyer has a controlling interest in without first obtaining Seller's
prior written consent, provided that no assignment by Buyer of its
rights under this Agreement, whether consented to by Seller or for
which Seller's consent is not required, shall relieve Buyer of its
obligations under this Agreement.
15.8 Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in
accordance with the laws of the State of California.
15.9 Review by Counsel. The parties acknowledge that each
party and its counsel have reviewed and approved this Agreement, and
the parties hereby agree that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
15.10 Public Announcement of Sale. Seller and Buyer agree
to cooperate in good faith with the other in connection with the
issuance of public announcements concerning the transaction
contemplated by this Agreement.
15.11 Not Recordable. This Agreement shall not be
recorded and shall not be a lien against the Properties.
15.12 Counterparts. This Agreement may be executed in
several counterparts each of which shall be an original, but all of
such counterparts shall constitute one such Agreement.
15.13 Further Assurances. Following the Closing, each
party agrees to take such actions and execute and deliver such
documents as may be reasonably necessary to consummate the
transactions contemplated by this Agreement. This Section 15.13 shall
survive the Closing.
15.14 Waiver of Jury Trial. Each party hereby waives
any right to trial by jury with respect to any action or proceeding
brought in connection with a default by either party under this
Agreement or to enforce any obligations owing by one party to the
other under this Agreement. Each party agrees that this Agreement
constitutes a written consent to waiver of trial by jury pursuant to
California Code of Civil Procedure Section 631, and that either party
may file this Agreement with the clerk or judge of any court of
competent jurisdiction.
15.15 No Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto and their respective
successors and assigns (subject to any limitations imposed under this
Agreement on a party's ability to assign its rights under this
Agreement). There are no third party beneficiaries to this Agreement,
either express or implied.
15.16 Exhibits and Schedules. The following is a list
of Exhibits and Schedules to this Agreement:
Exhibit A Street Address/Name of Properties
Exhibit A-1 Legal Description of Properties
Exhibit B Tangible Personal Property
Exhibit C Leases and Occupancy Agreements
Exhibit D Form of Estoppel
Exhibit E Grant Deed
Exhibit F Bill of Sale
Exhibit G Assignment and Assumption of Contracts
Exhibit H Assignment and Assumption of Leases
Exhibit I FIRPTA Affidavit
Exhibit J Capital Improvement Schedule
Exhibit K Promissory Note
Exhibit L Nohr Deed of Trust
Exhibit M Datedown Certificate
Exhibit N Closing Cost Allocations
Schedule 1 List of Environmental Assessments
Schedule 2 List of Preliminary Title Reports
Schedule 3 List of Surveys
16. LIMITATION ON SELLER'S LIABILITY.
16.1 Limits on Seller's Liability. Anything in this
Agreement to the contrary notwithstanding, the Seller shall have no
liability to Buyer for a breach of Seller's representations and
warranties contained in Section 7.1 above and no obligation to
indemnify Buyer pursuant to Section 12.1 above unless and until the
aggregate amount of liability for a breach of Section 7.1 and the loss
subject to indemnification pursuant to Section 12.1 exceeds One
Hundred Fifty Thousand Dollars ($150,000) (in which case Seller's
liability and indemnification obligations pursuant to Sections 7.1 and
12.1 shall only be to the extent of such excess). Once the aggregate
amount of liability for a breach of Section 7.1 and loss subject to
indemnification pursuant to Section 12.1 has exceeded $150,000, Seller
shall have no liability to Buyer or obligation to indemnify Buyer for
any discrete occurrence of liability or loss in an amount that is less
than Twenty-Five Thousand Dollars ($25,000). Seller's aggregate
liability for a breach of Section 7.1 and obligation to indemnify
Buyer pursuant to Section 12.1 shall not exceed One Million Dollars
($1,000,000). Moreover, except to the extent of Misapplied Funds (as
hereafter defined) Buyer's sole recourse against Seller for a breach
of Section 7.1 and to recover any loss that Seller is obligated to
indemnify Buyer against pursuant to Section 12.1 shall be against the
funds held in the Reserve Fund (as defined in Section 17 below).
Buyer shall not have any recourse against, nor shall any judgments be
recorded or liens assessed against, (i) any officer, director or
shareholder of Seller, or any assets of any of the foregoing
individuals, or (ii) except to the extent of Misapplied Funds, Seller
or any assets of Seller other than the Reserve Fund, with respect to
Seller's liability for a breach of Section 7.1 and Seller's indemnity
obligations pursuant to Section 12.1. If there should be Misapplied
Funds, Buyer shall, subject to the limitations contained in the first
three sentences of this Section 16.1, be entitled to pursue Seller and
the assets of Seller other than the Reserve Fund to the extent of the
Misapplied Funds. As used herein, "Misapplied Funds" means any funds
held in the Reserve Fund that were used by Seller for a purpose other
than those allowed in Section 17.1.
16.2 Initial Claims Cut-Off. Notwithstanding anything to
the contrary contained in this Agreement, written notice of any claim
of loss that either party hereto believes is subject to recovery or
indemnification pursuant to a breach of Section 7.1 or pursuant to
Section 12.1 (with Seller as the Indemnifying Party) or a breach of
Section 7.2 or pursuant to Section 12.2 (with Buyer as the
Indemnifying Party) (a "Claim") must be received by the Indemnifying
Party, if at all except as provided in Section 16.3 below, by no later
than October 15, 1996. Except as provided in Section 16.3 below,
written notice of any Claim that is received by the Indemnifying Party
after October 15, 1996 shall be unenforceable as against the
Indemnifying Party. If there is any dispute between the parties
concerning a Claim (e.g., whether a duty to indemnify is owed or the
magnitude of the loss), then such dispute shall be subject to
arbitration in the manner provided for in Section 16.5.
16.3 Final Claims Cut-Off. If a party makes a Claim,
the Indemnifying Party receives written notice of such Claim after
October 15, 1996 but before November 30, 1996 and the party making the
Claim is able to obtain, on or before November 30, 1996, injunctive
relief as to such Claim (e.g., a preliminary injunction or temporary
restraining order) from a court with appropriate jurisdiction over the
matter, then such matter shall be subject to arbitration as provided
in Section 16.5 and shall be enforceable against the Indemnifying
Party (if an obligation to indemnify is owing). If a party makes a
Claim and the Indemnifying Party fails to receive written notice of
such Claim by November 30, 1996 or the party making the Claim is able
to unable to obtain, on or before November 30, 1996, injunctive relief
as to such Claim from a court with appropriate jurisdiction over the
matter, then the Indemnifying Party shall have no obligation to
indemnify the first party with respect to such Claim.
16.4 Survival. Neither the period of survival nor the
liability of a party with respect to a Claim shall be reduced by any
investigation made at any time by or on behalf of the Indemnifying
Party. If written notice of a Claim has been received by the
Indemnifying Party on or prior to the deadlines specified in Sections
16.2 and 16.3 above, then the relevant representations and warranties
shall survive as to such Claim until such Claim has been finally
resolved.
16.5 Arbitration. All disputes subject to arbitration
pursuant to this Section 16 and pursuant to Section 17 below shall be
resolved by the Arbiter. No later than November 15, 1995, Seller and
Buyer shall agree on the identity of the Arbiter. For the purposes of
this Agreement, the term "Arbiter" means a firm or person mutually
acceptable to Buyer and Seller, so long as such Arbiter, at the time
that any matter is referred to the Arbiter, is not performing services
for either the Buyer or Seller. The parties agree that they shall,
prior to the expiration of the Due Diligence Period and as a condition
to the satisfaction of the Due Diligence Conditions, agree on a list
of three individuals who shall each be an acceptable Arbiter. If a
Claim should thereafter arise which is subject to arbitration under
this Agreement, then the Indemnifying Party shall select any one of
the three individuals on the list and such individual shall, subject
to his or her availability and provided that such individual has not
performed services for either party in the immediately preceding two
year period, arbitrate the Claim. If such individual is not available
or has performed services for either party in the immediately
preceding two year period, then the Indemnifying Party shall select
one of the other two individuals. In each case where a matter is
referred to the Arbiter, (i) the Arbiter may retain such other experts
and consultants as deemed appropriate by the Arbiter to resolve the
disputes referred to such Arbiter, (ii) the decision of the Arbiter
shall be final and binding on the parties hereto and shall be
enforceable in any court having jurisdiction on an expedited basis,
which shall, for the purposes hereof be a date no later than thirty
(30) days after the date the Arbiter receives notice of a request to
arbitrate, and (iii) the fees and expenses of the Arbiter (including
the costs of any experts or consultants retained in accordance with
clause (i) above) shall be borne equally by Buyer and Seller.
17. RESERVE FUND.
17.1 Establishing Reserve Fund. On the Closing Date, Seller
shall deposit the sum of One Million Dollars ($1,000,000) in an
interest bearing account or accounts (the "Reserve Fund") held with
The Bank of California or some other depository reasonably acceptable
to Buyer. The Reserve Fund may also be invested in cash equivalent
investments (such as certificates of deposit) or Federal or state
government obligations (such as treasury bills). Seller shall use the
Reserve Fund only to pay the following obligations:
(i) Seller's indemnity obligations arising out of Section 12.1;
(ii) to the extent any of the following items in this Section
17.1(ii) are not paid for by insurance when due to be paid by
Seller or its officers or directors, all costs and expenses
(including, without limitation, attorneys', accountants' and
consultants' fees and costs) incurred by Seller or any officer
or director of Seller in defending any claims, causes of action
or other litigation that are brought against Seller or any
officer or director of Seller (in their capacities as an officer
or director of Seller), whether such claims, causes of action or
other litigation are adjudicated in the courts, by way of
arbitration or mediation or otherwise (an "Action");
(iii) the amount of any settlement to be paid by Seller or
Seller's officers or directors to settle any Action; and
(iv) the amount of any binding judgment rendered against Seller
or Seller's officers or directors in connection with an Action,
whether such judgment is rendered in a court, an arbitration or
mediation proceeding or otherwise.
17.2 Reduction of Reserve Fund. Seller covenants that as of
September 30, 1996, the Reserve Fund shall contain funds in an amount
at least equal to the Minimum Fund Level. As used herein, the
"Minimum Fund Level" shall be the lesser of (i) Five Hundred Thousand
Dollars ($500,000), or (ii) an amount equal to $1,000,000, less the
total amount paid to Buyer out of the Reserve Fund in order to fulfill
Seller's indemnity obligations under Section 12.1. Except for those
funds necessary to satisfy any Claims of Seller that have been timely
brought and remain pending in arbitration or for which injunctive
relief has been granted pursuant to Section 16 ("Pending Funds"), all
funds remaining in the Reserve Fund after November 30, 1996 may be
used by Seller for any purpose and without regard to the limitations
contained in Section 17.1. Seller and Buyer agree to exercise
commercially reasonable efforts to resolve all underlying Claims that
have not been resolved as of November 30, 1996 by no later than
December 31, 1996 so that the Pending Funds can either be applied
against the underlying Claims and/or released to Seller by December
31, 1996.
17.3 Statements of Withdrawals. On or before the 15th day of
each month following the Closing Date and continuing through December
15, 1996, Seller agrees to provide Buyer with a statement that shows
all withdrawals made by Seller from the Reserve Account and identifies
with reasonable particularity the purpose(s) for such withdrawals. On
the written request of Buyer, Seller shall provide Buyer with copies
of bills, invoices, pleadings and other documents that reasonably
substantiate the amount and purpose of any withdrawal from the Reserve
Account.
17.4 Security Interest. As security for its indemnity
obligations pursuant to Section 12.1, Seller agrees to provide Buyer
with a first lien priority security interest in the Reserve Fund
pursuant to a form of security agreement approved by Seller and Buyer,
in each case such approval not to be unreasonably withheld, together
with such other documents as Buyer shall reasonably request to perfect
the security interest created by the security agreement. The security
agreement shall expressly provide that Seller may withdraw funds from
the Reserve Account without obtaining Buyer's prior consent, subject
to Section 17.2.
17.5 Disputes Concerning Reserve Fund. All disputes concerning
the Reserve Fund and the obligations created in this Section 17 shall
be submitted for arbitration in the manner provided for in Section
16.5 above.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first set forth above.
Seller: LANDSING PACIFIC FUND, INC.,
a Maryland corporation
By: /s/ Joseph M. Mock
Joseph M. Mock
Its: Executive Vice President
Buyer: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: /s/ Donald A Lorenz
Donald A. Lorenz
Its: Executive Vice President
Escrow Holder acknowledges and agrees that (i) it has received and is
holding the Deposit and will hold the Earnest Money Deposit in
accordance with Section 2.1 of this Agreement, and (ii) it shall
comply with all provisions of this Agreement that impose obligations
on it.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: /s/ Liz Treangen
Liz Treangen
Its: SPEO
(Special Project Escrow Officer)
<PAGE>
EXHIBIT A
STREET ADDRESS/NAME OF PROPERTIES
SQUARE
PROJECT FOOTAGE
San Mateo Co., California
301 E. Grand 57,846
342 Allerton 69,312
410 Allerton 46,050
400 Grandview 107,004
417 Eccles 24,624
Alameda Co., California
Westinghouse Dr. 24,030
Auburn Court 68,030
Nohr Plaza 12,141
Denver Co., Colorado
Bryant St. Annex 55,000
Bryant St. Quad 155,518
El Paso Co., Colorado
Academy Place 84,386
Ramsey Co., Minnesota
St. Paul East 77,000
St. Paul West 108,750
Washington Co., Oregon
Twin Oaks Business 65,238
Twin Oaks Technology 94,174
1,049,103
<PAGE>
EXHIBIT A-1
LEGAL DESCRIPTION OF PROPERTIES
301 EAST GRAND
PARCEL I:
Lot 1, as said Lot is shown on the Map entitled, "CABOT, CABOT &
FORBES INDUSTRIAL PARK UNIT NO. 1-C, SOUTH SAN FRANCISCO, SAN MATEO
COUNTY, CALIFORNIA", which Map was filed in the Office of the Recorder
of the County of San Mateo, State of California on September 23, 1968,
in Book 68 of Maps at pages 20 and 21.
EXCEPTING THEREFROM so much of said Lot as is included with the
boundary lines of the Subdivision as designated on the Map entitled,
"CABOT, CABOT & FORBES INDUSTRIAL PARK, UNIT NO. 3, SOUTH SAN
FRANCISCO, SAN MATEO COUNTY, CALIFORNIA", which map was filed in the
office of the Recorder of the County of San Mateo, State of California
on March 24, 1972, in Book 74 of Maps at pages 41 through 45
inclusive.
PARCEL II:
BEGINNING at the Northeasterly corner of Lot 1, Block 1, as said Lot
and Block are shown on the Map entitled, "CABOT, CABOT & FORBES
INDUSTRIAL PARK UNIT NO. 1-C, SOUTH SAN FRANCISCO, SAN MATEO COUNTY,
CALIFORNIA", which map was filed in the office of the Recorder of the
County of San Mateo, State of California on September 23, 1968, in
Book 68 of Maps at Pages 20 and 21; thence from said point of
beginning Southwesterly and Southerly, along the Southeasterly and
Easterly lines of said Lot 1 to a point of cusp with the general
Westerly line of Grandview Drive as said Drive is shown on the Map
entitle, "CABOT, CABOT & FORBES INDUSTRIAL PARK UNIT NO. 3, SOUTH SAN
FRANCISCO, SAN MATEO COUNTY CALIFORNIA", which Map was filed in the
Office of the Recorder of the County of San Mateo, State of California
on March 24, 1972, in Book 74 of Maps at pages 41 through 45,
inclusive, thence Northeasterly along the last mentioned line to the
Easterly prolongation of the Northerly line of said Lot 1; thence
Westerly along said prolongation to the point of beginning.
A.P. No.: 015-053-010 JPN 015 005 053 01 A
342 ALLERTON
PARCEL I:
Lot 2, as said Lot is shown on the map entitled, "CABOT, CABOT &
FORBES INDUSTRIAL PARK UNIT NO. 1-C SOUTH SAN FRANCISCO, SAN MATEO
COUNTY, CALIFORNIA", which map was filed in the Office of the Recorder
of the County of San Mateo, State of California, on September 23,
1968, in Book 68 of Maps at pages 20 and 21.
EXCEPTING from said Lot 2, so much of said Lot as included within the
boundary lines of the subdivision as designated on the map entitled,
"CABOT, CABOT & FORBES INDUSTRIAL PARK UNIT NO. 3 SOUTH SAN FRANCISCO,
SAN MATEO COUNTY, CALIFORNIA", which map was filed in the Office of
the Recorder of the County of San Mateo, State of California on March
24, 1972, in Book 74 of Maps at pages 41 through 45, inclusive.
PARCEL II:
BEGINNING at the Southeasterly corner of Lot 2, Block 1, as said Lot
and Block are shown on the map entitle, "CABOT, CABOT & FORBES
INDUSTRIAL PART UNIT NO. 1C SOUTH SAN FRANCISCO, SAN MATEO COUNTY,
CALIFORNIA", which map was filed in the Office of the Recorder of the
County of San Mateo, State of California on September 23, 1968, in
Book 68 of Maps at pages 20 and 21; thence from said point of
beginning Northeasterly along the Southeasterly line of said Lot 2 to
a point of cusp with the general Westerly line of Grandview Drive as
said Drive is shown on the Map entitled, "CABOT, CABOT & FORBES
INDUSTRIAL PARK UNIT NO. 3 SOUTH SAN FRANCISCO, SAN MATEO COUNTY,
CALIFORNIA", which map was filed in the Office of the Recorder of the
County of San Mateo, State of California on March 24, 1972, in Book 74
of Maps at pages 41 through 45, inclusive, thence Southeasterly along
the last mentioned line to the Easterly prolongation of the Southerly
line of said Lot 2; thence Westerly along said prolongation to the
point of beginning.
PARCEL III:
BEGINNING at the Southwesterly point of intersection of the
Southeasterly line of Lot 2, Block 1, as said Lot and Block are shown
on the Map entitled, "CABOT, CABOT & FORBES INDUSTRIAL PARK UNIT NO.
1-C SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA", which map was
filed in the Office of the Recorder of the County of San Mateo, State
of California on September 23, 1968, in Book 68 of Maps at pages 20
and 21; with the Northwesterly line of Grandview Drive as said Drive
is shown on the Map entitled, "CABOT, CABOT & FORBES INDUSTRIAL PARK
UNIT NO. 3, SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA" , which
map was filed in the office of the Recorder of the County of San
Mateo, State of California on March 24, 1972, in Book 74 of Maps at
pages 41 through 45, inclusive; thence from said point of beginning
Northeasterly, Northerly and Northwesterly, along the Southwesterly
line of Cabot Court, as said Court is should on said last mentioned
Map to the said Southeasterly line of Lot 2, Block 1; thence
Southwesterly along the last mentioned line to the point of beginning.
A.P. No. 015-053-020 JPN 015 005 053 02 A
410 ALLERTON
Lot 3, as shown on that certain Map entitled, "CABOT, CABOT & FORBES
INDUSTRIAL PARK UNIT NO. 1-C SOUTH SAN FRANCISCO, SAN MATEO COUNTY,
CALIFORNIA", which map was filed in the Office of the Recorder of the
County of San Mateo, State of California on September 23, 1968, in
Book of Maps at pages 20 and 21.
A.P. No. 015-052-010 JPN 015 005 052 01 A
400 GRANDVIEW
PARCEL I:
Parcel 31, as designated on the map entitled, "BEING A RE-SUBDIVISION
OF PARCELS 17 AND 18 OF PARCEL MAP RECORDED IN VOLUME 25 OF MAPS AT
PAGE 344, SAN MATEO COUNTY RECORDS AND OF PARCEL 27 OF PARCEL MAP
RECORDED VOLUME 38 OF MAPS AT PAGE 10, SAN MATEO COUNTY RECORDS AND A
PORTION OF LANDS OF ARTHUR S. HASKINS, DESCRIBED IN DEED RECORDED ON
JUNE 1, 1976, IN VOLUME 7141; OF DEEDS AT PAGE 390, SAN MATEO COUNTY
RECORDS, which map was filed in the office of the Recorder of the
County of San Mateo, State of California on August 18, 1978 in Book 43
of Parcel Maps at page 23.
PARCEL II:
An easement for storm drainage purposes and maintenance of a storm
drain line at the base of the slope providing storm drainage and
connecting with the storm drainage system located in East Grand Avenue
in, over and across the premises described as follows:
All that certain real property situate in the City of South San
Francisco, County of San Mateo, State of California and being a
portion of Lot 1, Block 1, as said lot and block are delineated and so
designated upon that certain map entitled, "BENNETT AND KAHNWEILER,
INDUSTRIAL SUBDIVISION, SOUTH SAN FRANCISCO, SAN MATEO COUNTY,
CALIFORNIA", filed for record August 23, 1972 and recorded in Volume
77 of Maps at pages 13 and 14, records of San Mateo County and being
more particularly described as follows:
BEGINNING at the Southeast corner of said Lot 1, Block 1 running
thence North 7 degrees 00 ' 00" West, 90.00 feet; thence North 1
degree 30' 00" East; 40.00 feet; thence North 3 degrees 30' 00" West,
130'00; thence North 8 degrees 10'00" West, 215.00', thence North 17
degrees 30'00" West, 50.69 feet; thence North 45 degrees 00' 00" East
90.00 feet to the Northeast corner of said Lot 1, Block 1; thence due
South 583.88 feet to the point of beginning.
Said easement is appurtenant to parcel above and was created by that
certain instrument recorded September 6, 1972 in Book 6224, at page
660, Official Records.
An easement for ingress and egress over all of that certain area
designated as "Proposed Ingress-Egress Easement (Reserved for
Successors in Interest to Parcel 31)", and lying within "PARCEL 32" as
shown on that certain Parcel Map recorded August 18, 1978, in Book 43
of Parcel Maps at page 23 in the Records of San Mateo County, State of
California; said area being more particularly described as follows:
Beginning at the Southwesterly corner of Said "PARCEL 32" and said
easement; Thence in a clockwise direction along the perimeter of said
easement, the following courses:
North 62.66 feet; North 89 degrees 45' 23" East 420.00 feet; South 00
degrees 14' 37" East 60.00 feet; South 89 degrees 45' 23" West 345.89
feet; and South 25 degrees 25' 33" West 31.30 feet (shown in error on
said map as being a line radial to the center of curvature of the
Northeasterly line of East Grand Avenue having a radius of 787.55
feet) to a point at the beginning of a non-tangent curve to the left;
Thence continuing along said perimeter in Northwesterly direction
along the arc of last said curve to the left having a tangent bearing
of North 65 degrees 03' 45" West, a radius of 787.55 feet; a central
angle of 04 degrees 48 ' 03 ", an arc distance of 65.99 feet returning
to the point of beginning.
Said easement was created by that certain instrument recorded August
2, 1985 under Recorder's Serial No. 85078200 of Official Records of
San Mateo County, California
A.P. No.: 015-520-380 JPN 015 025 256 16 A
015 025 250 02 A
015 025 250 09 A
417 ECCLES
PARCEL I:
Lot 4, in Block 15, as shown on that certain Map entitled, "SOUTH SAN
FRANCISCO INDUSTRIAL PARK UNIT 3-B SOUTH SAN FRANCISCO, SAN MATEO
COUNTY, CALIFORNIA", which map was filed in the office of the Recorder
of the County of San Mateo, State of California on March 24, 1965 in
Book 62 of Maps at pages 3, 4, 5, 6, 7 and 8.
PARCEL II:
Easement for purposes of vehicular travel as created by Amended Order
Granting Summary Judgement and Amended Judgement had in United States
Bankruptcy Court, Northern District of California, adversary
proceeding No. 93-3-103TC, entitled Landsing Pacific Fund, Plaintiff,
vs. LDP-III Realty Services Corporation, a certified copy of which
recorded August 3, 1993, Series No. 93129773, San Mateo County
Records, and as modified by Amended Order filed October 7, 1993, a
certified copy of which was recorded October 8, 1993, Series No.
93171908, San Mateo County Records.
A.P. No.: 015-071-240 JPN 015 007 071 24 A
410 WESTINGHOUSE
PARCEL ONE:
Lot 23, Tract 4464, filed July 11, 1980, Map Book 120, Page 9, Alameda
County Records.
PARCEL TWO:
A non-exclusive easement for ingress and egress and storm drain
purposes, across Lot 24 for the benefit of Lot 23 as conveyed in that
certain instrument entitled "Easement" and executed by S.K. Brown
Project 24, a California limited partnership to Marathon Project HRM
Associates, a California general partnership, recorded May 14, 1984,
Series No. 84-093292, Alameda County Records.
Being a strip of land 12 feet in width, the Southerly line of which
being more particularly described as follows:
Beginning at the corner common to Lots 23 and 24 and Westinghouse
Drive as said lots and drive are shown on the Map of Tract 4464,
recorded in Map Book 120, Page 9, Alameda County Records; thence from
said point of beginning along said common line North 65 degrees 08'
00" East 248.56 feet to the terminus of this description.
Excepting therefrom all curbs, walkways and parking areas lying within
said 12 foot strip of land.
A.P. No.: 519-1681-26
AUBURN COURT
Lots 5, 6 and 7, Tract 4200, filed August 30, 1979 in Book 112 of
Maps, Page 85, Alameda County Records.
A.P. Nos. 519-1680-010 and
519-1680-011-01
NOHR PLAZA
Lots 19, 20, 21, 22, 23, 24, 25, 26, 27, Tract 557 filed October 19,
1939, in Book 29 of Maps, Page 52, Alameda County Records.
A.P. No 077-0554-004-01
BRYANT STREET ANNEX
THAT PORTION OF THE NORTH HALF OF THE SE 1/4 NE 1/4 OF SECTION 8,
TOWNSHIP 4 SOUTH, RANGE 68 WEST OF THE 6TH P.M., DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SE 1/4 NE 1/4 OF SECTION 8,
TOWNSHIP 4 SOUTH, RANGE 68 WEST, THENCE SOUTHERLY ON THE WEST LINE OF
SAID SE 1/4 NE 1/4 OF SAID SECTION 8, 630.50 FEET; THENCE EASTERLY ON
A LINE PARALLEL TO THE NORTH LINE OF WEST SECOND AVENUE 22.70 FEET TO
THE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID LINE 300.88 FEET
TO A POINT; THENCE AT AN ANGLE TO THE LEFT OF 89 DEGREES 59' 30",
270.64 FEET TO A POINT ON THE SOUTH LINE OF WEST 3RD AVENUE, THENCE ON
AN ANGLE TO THE LEFT 89 DEGREES 59', 301.74 FEET TO A POINT; THENCE AT
AN ANGLE TO THE LEFT, 90 DEGREES 12', 270.77 FEET TO THE POINT OF THE
BEGINNING.
CITY AND COUNTY OF DENVER
STATE OF COLORADO
WITH THE EXCEPTION OF THE EAST .50 FEET WHICH IS LEGALLY DESCRIBED AS
FOLLOWS:
THAT PART OF the SE 1/4 NE 1/4 OF SECTION 8, TOWNSHIP 4 SOUTH, RANGE
68 WEST OF THE 6TH P.M.,
CITY AND COUNTY OF DENVER
STATE OF COLORADO
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NW CORNER OF THE SE 1/4 NE 1/4 OF SECTION 8, TOWNSHIP
4 SOUTH, RANGE 68 WEST; THENCE SOUTHERLY ALONG THE WEST LINE OF SE 1/4
NE 1/4 OF SECTION 8, TOWNSHIP 4 SOUTH, RANGE 68 WEST, 630.50 FEET TO A
POINT, THENCE EASTERLY ON A LINE PARALLEL TO THE NORTH LINE OF WEST
2ND AVENUE, 323.08 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING
EAST ALONG THE AFOREMENTIONED LINE A DISTANCE OF .050 FEET; THENCE ON
AN ANGLE TO THE LEFT OF 89 DEGREES 59'30" A DISTANCE OF 270.64 FEET TO
A POINT ON THE SOUTH LINE OF WEST 3RD AVENUE; THENCE WEST ON AN ANGEL
TO THE LEFT OF 89 DEGREES 59' 00", AND ALONG SAID SOUTH LINE OF WEST
3RD AVENUE A DISTANCE OF 0/50 FEET; THENCE SOUTH ON AN ANGLE TO THE
LEFT OF 90 DEGREES 01'00", A DISTANCE OF 270.64 FEET TO THE TRUE POINT
OF BEGINNING.
CITY AND COUNTY OF DENVER
STATE OF COLORADO
BRYANT STREET QUAD
PARCEL I
ALL THAT PART OF the NORTH HALF OF THE SOUTHEAST QUARTER OF THE
NORTHEAST QUARTER OF SECTION 8, TOWNSHIP 4 SOUTH, RANGE 68 WEST OF THE
6TH P.M., IN THE CITY AND COUNTY OF DENVER, STATE OF COLORADO,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE EASTERLY LINE OF BRYANT STREET
WITH THE NORTHERLY LINE OF WEST 2ND AVENUE; THENCE ALONG SAID
NORTHERLY LINE, EASTERLY 350.9 FEET TO THE SOUTHEAST CORNER OF THAT
TRACT OF LAND CONVEYED TO JACK D'DOMENICO BY DEED RECORDED NOVEMBER
12, 1910 IN BOOK 2147 AT PAGE 432, AND THE SOUTHWEST CORNER OF THAT
TRACT OF LAND DESIGNATED AS PARCEL NO. 1 IN ORDINANCE NO. 292 SERIES
OF 1971 OF THE CITY AND COUNTY OF DENVER RECORDED JULY 30, 1971 IN
BOOK 360 AT PAGE 667; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL NO
1 AND PARALLEL WITH THE EASTERLY LINE OF BRYANT STREET, NORTHERLY 10
FEET TO THE NORTHWEST CORNER OF SAID PARCEL NO 1 BEING THE TRUE POINT
OF BEGINNING, THENCE CONTINUING NORTHERLY, PARALLEL WITH THE EASTERLY
LINE OF BRYANT STREET, 276.73 FEET; THENCE WESTERLY, ON AN ANGLE TO
THE LEFT OF 89 DEGREES 56'33" PARALLEL WITH THE SOUTHERLY LINE OF WEST
4TH AVENUE, 210.9 FEET; THENCE NORTHERLY, ON AN ANGLE TO THE RIGHT OF
90 DEGREES 03', PARALLEL WITH THE EASTERLY LINE OF BRYANT STREET
333.97 FEET, MORE OR LESS, TO THE SOUTHERLY LINE OF WEST 4TH AVENUE;
THENCE ON AN ANGLE TO THE RIGHT OF 89 DEGREES 57' EASTERLY ALONG SAID
SOUTHERLY LINE, 666.65 FEET, MORE OR LESS, TO THE EAST LINE OF THE
AFORESAID SECTION 8; THENCE SOUTHERLY ON AN ANGLE TO THE RIGHT OF 90
DEGREES 02' 31", ALONG SAID EAST LINE, 333.97 FEET, MORE OR LESS, TO
THE NORTHEAST CORNER OF THAT TRACT OF LAND CONVEYED TO EDWIN W. MCLAIN
AND PEARL M. MCLAIN BY DEED RECORDED AUGUST 12, 1969 IN BOOK 70 AT
PAGE 666, THENCE WESTERLY ON AN ANGLE TO THE RIGHT OF 89 DEGREES 53'
03" PARALLEL WITH THE AFORESAID NORTHERLY LINE OF WEST 2ND AVENUE, 140
FEET; THENCE SOUTHERLY ON AN ANGLE TO THE LEFT OF 89 DEGREES 53' 03"
PARALLEL WITH THE EAST LINE OF SAID SECTION 8, 274.74 FEET, MORE OR
LESS, TO THE NORTHERLY LINE OF THE AFORESAID PARCEL 1; THENCE WESTERLY
ON AN ANGLE TO THE RIGHT OF 89 DEGREES 53' 03", ALONG SAID NORTHERLY
LINE 315.82 FEET, MORE OR LESS, TO THE TRUE POINT OF BEGINNING.
CITY AND COUNTY OF DENVER
STATE OF COLORADO
<PAGE>
ACADEMY PLACE
PARCEL A:
Lot 2 in Block 1 in TARGET-ACADEMY PLACE SUBDIVISION NO. 4, CITY OF
COLORADO SPRINGS, COUNTY OF EL PASO, STATE OF COLORADO
PARCEL B:
Lot 3 in Block 1 in TARGET ACADEMY PLACE SUBDIVISION NO. 3, A REPLAT
OF LOTS 2, 3 & 4, TARGET-ACADEMY PLACE SUBDIVISION NO. 2 COUNTY OF EL
PASO, STATE OF COLORADO
ST. PAUL EAST
The land referred to is situated in the State of Minnesota, County of
Ramsey, and is described as follows:
Lots 1 and 2, Block 2, Maplewood Office Center.
ST. PAUL WEST
The land referred to is situated in the State of Minnesota, County of
Ramsev, and is described as follows:
That part of the East Half of the Northeast Quarter of Section 18,
Township 29, Range 22, lying Westerly of Interstate Highway 35E,
except the North 900 feet thereof, together with the right to
construct and maintain a 33 foot road, either private or public, along
the Westerly 33 feet of said East Half for 210 feet North of the right
of way line of County Road A2.
TWIN OAKS BUSINESS
Lots 1, 2 and 3, QUADRANT BUSINESS CAMPUS, in the County of Washington
and State of Oregon;
TWIN OAKS TECHNOLOGY
Lots 4, 5, 6 and 13, QUADRANT BUSINESS CAMPUS, in the County of
Washington and State of Oregon.
<PAGE>
EXHIBIT B
TANGIBLE PERSONAL PROPERTY
One (1) Bangor walk-in freezer approximately 21 feet wide by 48
feet long and approximately 15 feet high located at Bryant Street Quad
within 2475 W. 2nd Avenue, Suite 35 (formerly known as Suite 34 or
Suite 34A).
<PAGE>
EXHIBIT C
LEASES AND OCCUPANCY AGREEMENTS
410 ALLERTON
Unit No. Tenant Name Lease Exp. Sq. Ft.
410 See's Candies, Inc. 04/30/98 46,050
400 GRAND VIEW
Unit No. Tenant Name Lease Exp. Sq. Ft.
400 Toshiba American MRI, Inc. 12/31/96 21,841
402 Eagle USA Air Freight 08/15/97 3,852
406 Eagle USA Air Freight 08/15/97 3,697
410 Kuehne & Nagel, Inc. 06/30/97 26,800
440 Eagle USA Air Freight 08/15/97 13,161
448 Hellman Int'l Forwarders 05/31/99 18,789
458 East Texas Distributing 01/05/97 18,864
342 ALLERTON
Unit No. Tenant Name Lease Exp. Sq. Ft.
342 Burlington Air Express, Inc. 03/31/97 19,751
510 Triple J. Merchant Int'l 03/31/97 9,720
342A Danzas Corporation 02/28/99 30,953
510A Amerford/Fashion Air/TC Trans 08/31/97 8,888
301 EAST GRAND
Unit No. Tenant Name Lease Exp. Sq. Ft.
301 Radix Group International 06/30/98 26,240
325 Office Furniture King 10/31/99 14,400
417 ECCLES
Unit No. Tenant Name Lease Exp. Sq. Ft.
417 Haitai America, Inc. 12/31/97 12,960
419 Ash Equipment Co., Inc. 08/31/97 11,664
WESTINGHOUSE
Unit No. Tenant Name Lease Exp. Sq.Ft.
1 SMT Unlimited, L.P. 09/30/97 24,030
<PAGE>
AUBURN COURT
Unit No. Tenant Name Lease Exp. Sq. Ft.
850 Eternal Electronics, Inc. 10/24/98 15,755
860 Bond Technologies, Inc. 09/14/98 16,095
910 Dow Corning Corp. 04/30/98 12,060
920 Data-Com Cable, Inc. 01/31/99 5,960
930 Alteq Industries 08/31/00 6,100
940 Unmanned Solutions 07/31/00 12,060
NOHR PLAZA
Unit No. Tenant Name Lease Exp. Sq. Ft.
2 ABC Engraving 04/30/99 1,344
3 San Leandro Optometry 12/31/97 1,280
4 Oasis Laundry 04/06/03 2,624
St. PAUL EAST
Unit No. Tenant Name Lease Exp. Sq. Ft.
1 Separation Technology, Inc. 08/31/98 12,300
7 Tillgess Certified Orthotic 05/31/00 4,200
9 Dynequip, Inc. 09/30/99 4,200
11 Voyager Distributing, Inc. 03/31/96 4,650
13 Eye Technology, Inc. 10/31/98 19,000
17 Soo Line Railroad Company 11/30/97 10,200
22 St. Paul Pathology, P.A. 07/31/95 1,500
23 EMD Associates, Inc. 03/31/96 1,500
24 American National Insurance 12/31/95 1,500
25 Linn Building Maintenance 02/28/96 2,250
31 Federal Communications Comm 07/07/03 2,889
32 Phoenix Alternatives 11/30/97 4,950
St. PAUL WEST
Unit No. Tenant Name Lease Exp. Sq. Ft.
2 Monthly Menu 02/28/98 5,000
6 Woodland Hills Church 06/30/00 2,540
8 Mincor Construction, Inc., 04/30/98 3,620
11 City Auto Glass 07/31/00 1,560
12 Corrosion Control Corp. 05/31/97 2,180
13 American Residential Mortgage 02/29/96 2,280
15 Rosewood Construction Svcs. 04/30/98 3,680
17 American Guardian Insurance 09/30/96 1,005
18 TSE, Inc. 01/31/99 2,250
19 Riede Systems, Inc(Omni Tech) 09/30/96 9,920
23 Braun Intertec Engineering 10/31/97 11,770
29 Fantastic Floors 09/30/96 2,180
30 Norby and Associates, Inc. 06/30/96 1,560
31 St. Paul Agency, Inc. 11/30/98 3,680
33 City Wide Carpet Care 09/30/95 1,870
34 Combustion Control Eng. 05/31/95 2,480
36 TLC Electronics 08/31/99 4,920
37 Delta Medical Systems, Inc. 05/31/97 5,000
39 Arnell Business Forms, Inc. 06/30/99 4,430
41 Allstate Insurance Company 01/04/99 1,890
45 Microframe, Inc. 12/31/98 4,320
47 Rotary Automation, Inc. 01/31/96 2,180
48 Aura, Inc. 06/30/94 1,560
49 G&B Promotions(Bonnie Germond)01/31/97 1,790
50 Add+on Temporary Services 04/30/98 1,890
51 NW Artificial Lim & Brace 05/31/97 1,870
52 T.J. Food Ventures, Inc. 05/31/99 2,560
ACADEMY SHOPPING CENTER
Unit No. Tenant Name Lease Exp. Sq. Ft.
5060 Safeway #835
5100 Webco First Bank
5110 Ross Stores #73 01/31/00 38,703
5138 King One Hour Dry Cleaners 07/31/98 1,280
5140 Mail Boxes, Etc. Store 14 07/31/00 1,200
5142 Hoover Company 07/31/98 1,306
5144 Cost Cutters 03/31/96 1,760
5146 Ray's Hallmark 01/31/98 2,746
5148 Once Upon a Child 05/31/99 2,149
5150 Landmark Tours & Travel Ltd 05/31/00 830
5154 A Sunshine Florist & Book St 12/31/98 3,924
5156 Chuck E Cheese #558 12/31/01 10,826
5160 Famous Footwear #59 08/31/97 6,030
5164 Household Finance 11/30/00 2,400
5168 Wall Units 01/31/98 3,240
5170 Edison Bros. Apparel Store 11/14/97 3,633
5172 Colo Springs Mattress Facto 04/30/99 3,014
5190 Perkins Restaurant #8190
5240 Target Stores
BRYANT STREET QUAD
Unit No. Tenant Name Lease Exp. Sq. Ft.
1 Distinctive Tent Rentals 12/31/99 9,372
3 AE Clevite 11/09/98 12,672
5 AKRIT Appliance Supply Co. 12/31/00 12,672
7 Paragon Reproductions, Inc. 12/31/97 8,672
12 Meadow Creek Sales, Inc. 08/31/97 10,457
14 Collectors Edge 07/31/97 9,019
18 Car-go of Colorado, Inc. 11/30/97 3,840
24 Clayton Distributing 03/31/97 17,440
27 1st Choice Leather & Shoe 05/31/98 2,938
29 ALP Enhanced Systems(Cerberus)09/31/95 4,496
30 Spectrum Data Products, Inc. 09/30/97 6,601
34A Equipment Connection, Inc. 01/31/98 1,908
35 Economy Greek Market 06/30/97 3,179
36 Plastiprint Incorporated 05/31/96 10,640
44 King Soopers, Inc. 02/28/96 20,726
51 Mattress Firm 09/30/97 4,875
56 Modine Manufacturing 02/29/96 16,055
BRYANT STREET ANNEX
Unit No. Tenant Name Lease Exp. Sq. Ft.
1 Denver General Hospital 03/22/96 42,148
5 PPG Industries 05/31/96 12,852
TWIN OAKS BUSINESS & TECHNOLOGY
Unit No. Tenant Name Lease Exp. Sq. Ft.
A200 Madden Industrial Craftsmen 03/31/99 3,510
A250 Oregon Title Insurance Co. 01/31/98 2,312
A302 Insurance Options of Oregon 10/31/95 976
A305 West Coast Construction Svc 02/29/96 464
A400 Translogic Technologies, Inc. 02/28/00 3,829
B100 A.G. Crook Company 02/28/97 4,428
B150 Northwest Software, Inc. 03/31/98 2,283
B200 Pacific Laser Tech, Inc. 05/31/99 9,409
B300 Western Micro Technology 11/30/96 2,746
B700 Builders, Inc. 09/30/99 2,368
C100 Oregon micro Systems, Inc. 05/31/96 9,236
C600 Belgard Group, Inc. 07/31/97 2,239
C700 Interwest Applied Research 08/31/97 2,450
D100 United States Postal Service 07/31/96 14,522
1000 Good Samaritan Hospital 04/30/98 7,112
1060 CMS International, Inc. 10/31/00 4,650
1080 Home Care Medical, 03/31/00 3,480
2030 Direct Repair Laboratories 11/30/98 7,608
2060 Powertron, Inc. 02/29/96 2,546
2090 Lexica, Inc. 01/31/99 2,164
2100 Corporate Executive Housing 02/29/96 2,994
3060 Nuvision Technologies, Inc. 11/30/97 4,710
3090 Leybold Vacuum Products, Inc. 10/31/95 2,215
4000 Fire Alarm & Systems, Inc. 03/31/97 1,104
4010 Rapidfire Software, Inc. 08/31/97 10,780
5000 Big John's Deli 03/31/99 1,600
5010 General Telephone Co. of NW 12/31/96 12,240
6000 Metropolitan Area Comm. 06/30/99 8,327
6025 All American Semiconductor 04/25/97 1,545
6030 Marcomtec 09/30/98 2,926
EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
[WITH ATTORNMENT][NON-DISTURBANCE][AND NOTICE OF DEFAULT, ETC.]
To: Bank of America National Trust
and Savings Association ("Bank")
California Real Estate Services Group No. ______
Attn:
________________________________ ("Tenant") hereby certifies and
agrees that as of )_______________, 199 __:
1. Tenant is the present owner and holder of the tenant's
interest under the lease described below, as it may be amended to date
(the "Lease") with ______________ as Landlord (who is called
"Borrower" for purposes of this Certificate). The original landlord
under the lease was _________________, and the original tenant under
the Lease was ___________________________, The Lease covers
approximately ________________ square feet of space on floors ________
in the building (the "Building") at the following address,
__________________________, as more fully identified in the Lease (the
"Premises").
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 term of the Lease commenced on ______________,
19__, and will expire on _______________, 19__, including any
presently exercised option or renewal term. Tenant has no option or
right to renew, extend or cancel the Lease, or to lease additional
space in the Premises or Building (except as specified in
______________ a copy of which is attached hereto). The Lease
provides that in addition to the Premises, Tenant has the right to use
or rent ___________ parking spaces in or near the Building during the
term of the Lease.
(c) Tenant has no option or preferential right to purchase
all or any part of the Premises (or the land or Building of which the
Premises are a part), and has no right or interest with respect to
the Premises or the Building other than as Tenant under the Lease
(except as specified in ______________ a copy of which is attached
hereto).
(d) The annual minimum rent currently payable under the
Lease is $_____________ and such rent has been paid through
____________, 19___.
(e) Tenant has made no agreement with Borrower or any
agent, representative or employee of Borrower concerning free rent,
partial rent, rebate of rental payments or any other similar rent
concession (except as expressly set forth in ______________ a copy of
which is attached hereto). 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.
(f) Borrower currently holds a security deposit in the
amount of $_______________ which is to be applied by Borrower 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 is in full force and effect and constitutes
the entire agreement between Tenant and Borrower with respect to the
Premises, and has not been modified, changed, altered or amended
except as shown in 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 and 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.
(e) All contributions required by the Lease to be paid by
Borrower to date for improvements to the Premises have been paid in
full and all of Borrower's obligations with respect to tenant
improvements have been fully performed. Tenant has accepted the
Premises, subject to no conditions or other than those set forth in
the Lease.
(f) 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.
4. Tenant represents and warrants that is 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 in the ordinary and commercially
reasonable course of Tenant's business in compliance with all
applicable laws. Except for any such legal and commercially
reasonable use by Tenant, Tenant has no actual knowledge that any
Hazardous Substance is present, or has been used, generated, released,
discharged, stored or disposed of by any party, on, under, in or about
such Building or land.
As used herein, "Hazardous Substance" means any substance,
material or waste including 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.
5. Tenant hereby acknowledges that Borrower intends to
encumber or has encumbered the property (the "Property") containing
the Premises with a deed of trust in favor of Bank (the "Deed of
Trust"). Tenant acknowledges the right of Borrower, Bank and
Borrower's future lenders to reply upon the statement and
representations of Tenant contained in the Certificate. Tenant hereby
agrees to furnish Bank with such other and further estoppel
certificates as Bank may reasonably request.
6. Default; Cure; Amendments; Subleases; Etc.
(a) Notices of Default; Material Notices; Bank's Rights to
Cure Default. Tenant shall send a copy of any notice of default or
other material notice of similar statement under the Lease to Bank at
the same time such notice or statement is sent to Borrower. In the
event of any act or omission by Borrower which would give Tenant the
right to terminate the Lease or to claim a partial or total eviction,
Tenant shall not exercise any such right or make any such claim until
it has given Bank written notice of such act or omission and has given
Bank either thirty (30) days to cure the default if the default is
monetary, or a reasonable time for Bank to cure the default if the
default is nonmonetary. Nothing in this Agreement, however, shall be
construed as a promise or undertaking by Bank to cure any default of
Borrower.
(b) Amendments; Subleases; Etc. Bank, if it becomes
Purchaser of the Property or otherwise takes possession of the
Property, and any other Purchaser of the Property, shall not (i) be
bound by any prepayment by Tenant of more than one month's installment
of rent; or (ii) be obligated for any security deposit not actually
delivered to Purchaser; or (iii) be bound by any modification or
amendment of or to the Lease unless the amendment or modification or
amendment of or to the Lease unless the amendment or modification
shall have been approved in writing by Bank; or (iv) be bound by any
sublease or assignment of the Lease except as may be expressly
permitted in the Lease.
(c) Definitions of "Transfer of the Property" and
"Purchaser". As used in this document, the term "Transfer of the
Property" means any transfer of Borrower's interest in the Property by
foreclosure, trustee's sale or other action or proceeding for the
enforcement of the Deed of Trust or by deed in lieu thereof. The term
"Purchaser" means any transferee, including Bank, of the interest of
Borrower as a result of any such Transfer of the Property, and also
includes any and all successors and assigns, including Bank, of such
transferee.
7. Attornment. Tenant hereby agrees that if any Transfer
of the Property should occur, Tenant shall and hereby does attorn to
Purchaser, including Bank if it should become the Purchase, as the
landlord under the Lease, and Tenant shall be bound to Purchase under
all of the terms, covenants and conditions of the Lease for the
balance of the Lease term and any extensions or renewals of it which
may then or later be in effect under any validly exercised extension
or renewal option contained in the Lease, all with the same force and
effect as if Purchaser had been the original landlord under the Lease.
This attornment shall be effective and self-operative without the
execution of any further instruments, upon Purchaser's succeeding to
the interest of the landlord under the Lease (subject however to
Section 8 below).
8. Non-disturbance. The enforcement of the Deed of Trust
shall not terminate the Lease or disturb Tenant in the possession and
use of the Premises unless at the time of foreclosure Tenant is in
default under the Lease or this Agreement and Bank so notifies Tenant
in writing at or prior to the time of the foreclosure sale that the
Lease will be terminated by foreclosure because of such default.
(TENANT)
By:
Name:
Title:
Bank of America National Trust
and Savings Association
By:
Title:
EXHIBIT A
LEASE AND MODIFICATIONS; AMENDMENTS, SUPPLEMENTS AND SIDE LETTERS.
<PAGE>
EXHIBIT E
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Bedford Property Investors
270 Lafayette Circle
Lafayette, California 94549
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
is hereby acknowledged, LANDSING PACIFIC FUND, INC., a Maryland
corporation ("Grantor"), hereby grants to BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation ("Grantee"), that certain real property
more particularly described on Exhibit A attached hereto, together
with (i) any and all rights, privileges and easements appurtenant to
such lands which are owned by Grantor, and (ii) all buildings,
improvements and fixtures located on such real property, including any
apparatus, equipment and appliances affixed thereto and used in
connection with the operation and occupancy thereof, such as heating
and air conditioning systems and facilities used to provide any
utility service, or other services thereto (collectively, the
"Property"), subject only to the matters set forth on Exhibit B
attached hereto.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
the date set forth below.
DATED: December ___, 1995
GRANTOR: LANDSING PACIFIC FUND, INC.,
a Maryland corporation
By: ______________________________
Its: ________________________
<PAGE>
EXHIBIT A
[Attach legal description]
<PAGE>
EXHIBIT B
1. Zoning and building regulations, insurance and rating codes
and regulations and any other laws, codes, regulations or ordinances
affecting the Property or its uses adopted by any authority having
jurisdiction over the Property and its uses.
2. All exceptions to title to the Property approved by Grantee
in writing on or prior to the date of this Grant Deed.
3. All leases and other occupancy agreements assumed by
Grantee in writing on or prior to the date of this Grant Deed.
4. Such state of facts as would be disclosed by a visual
physical inspection of the Property.
5. Any matters created by or through Grantee.
<PAGE>
EXHIBIT F
BILL OF SALE
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency
of which are hereby acknowledged, LANDSING PACIFIC FUND, INC., a
Maryland corporation ("Seller"), does hereby sell, convey and assign
to BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation, the
tangible personal property more particularly described on Exhibit A
attached hereto (the "Personal Property").
The Personal Property is being sold, conveyed and assigned on an
"AS IS" basis, without representation or warranty of any kind, either
express or implied, including, without limitation, implied warranties
of merchantability or fitness for a particular purpose.
DATED as of December ___, 1995
LANDSING PACIFIC FUND, INC.,
a Maryland corporation
By: ______________________________
Its: ________________________
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
AND ASSIGNMENT OF INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND ASSIGNMENT OF
INTANGIBLE PROPERTY (the "Assignment") is made as of December ___,
1995 between LANDSING PACIFIC FUND, INC., a Maryland corporation
("Assignor") and BEDFORD PROPERTY INVESTORS, INC., a Maryland
corporation ("Assignee").
A. Assignor and Assignee have entered into a Purchase and Sale
Agreement dated on or about the date hereof (the "Purchase
Agreement"). Capitalized terms not otherwise defined herein shall
have the meanings given to such terms in the Purchase Agreement.
B. Pursuant to the Purchase Agreement, Assignor desires to
sell, convey and assign, and Assignee desires to purchase, accept and
assume, the Contracts and the Intangible Properties.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Assignor hereby sells, conveys and assigns, without
recourse or warranty of enforceability, and Assignee hereby purchases,
accepts and assumes, all of Assignor's right, title and interest in
and to the Contracts and the Intangible Properties.
2. The mutual indemnities given by Assignor and Assignee
pursuant to Section 12 of the Purchase Agreement, together with all of
the other Surviving Obligations (as defined in the Purchase
Agreement), are made a part of this Assignment.
3. In the event of any dispute between Assignor and Assignee
arising out of this Agreement, the losing party shall pay the
prevailing party's costs and expenses of such dispute, including,
without limitation, reasonable attorneys' fees and costs at trial, on
appeal and on petition for review.
4. This Assignment shall be binding on and inure to the
benefit of the parties hereto and their respective successors and
assigns.
5. This Assignment may be executed in any number of
counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument.
7. This Assignment shall be governed by the laws of the State
of California.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date set forth above.
ASSIGNOR: LANDSING PACIFIC FUND, INC.,
a Maryland corporation
By: _________________________
Its: ___________________
ASSIGNEE: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: _________________________
Its: ___________________
<PAGE>
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment") is
made as of December ___, 1995 between LANDSING PACIFIC FUND, INC., a
Maryland corporation ("Assignor"), and BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation ("Assignee").
A. Assignor is the landlord under certain leases executed with
respect to the real property and improvements thereon more
particularly described in Exhibit A attached hereto (the
"Properties"). The leases are more particularly described in Exhibit
B attached hereto (the "Leases").
B. Assignor and Assignee have entered into a Purchase and Sale
Agreement dated on or about the date hereof (the "Purchase
Agreement"). Capitalized terms not otherwise defined herein shall
have the meanings given to such terms in the Purchase Agreement.
C. Pursuant to the Purchase Agreement, Assignor desires to
assign, and Assignee desires to accept and assume, all of Assignor's
right, title and interest in, and obligations arising under, the
Leases, subject to the terms and conditions below.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Leases; provided, that, to the extent permitted
in the Purchase Agreement, Assignor reserves its right to sue a tenant
under a Lease for damages suffered by Assignor as a result of such
tenant's failure to have paid any rents to Assignor which were payable
prior to the Closing Date so long as any such suit does not seek a
termination of such tenant's Lease, and provided, further, that
Assignor shall retain all rights and benefits under any indemnities
given by any of the tenants under the Leases for the benefit of
Assignor to the extent that such indemnities relate to acts or
omissions of such tenants that occurred prior to the Closing Date.
2. The mutual indemnities given by Assignor and Assignee
pursuant to Section 12 of the Purchase Agreement, together with all of
the other Surviving Obligations (as defined in the Purchase
Agreement), are made a part of this Assignment.
3. Assignee hereby accepts the assignment made by Assignor in
this Assignment and assumes all of the landlord's obligations under
the Leases that arise on or after the Closing Date.
4. In the event of any dispute between Assignor and Assignee
arising out of this Assignment, the losing party shall pay the
prevailing party's costs and expenses of such dispute, including,
without limitation, reasonable attorneys' fees and costs at trial, on
appear and on petition for review.
5. This Agreement shall be binding on and inure to the benefit
of the parties hereto and their respective successors and assigns.
6. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
7. This Assignment shall be governed by the laws of the State
of California.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date set forth above.
ASSIGNOR: LANDSING PACIFIC FUND, INC.,
a Maryland corporation
By: _________________________
Its: ___________________
ASSIGNEE: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: _________________________
Its: ___________________
<PAGE>
EXHIBIT I
FIRPTA AFFIDAVIT
CERTIFICATE OF LANDSING PACIFIC FUND, INC.
(FIRPTA Affidavit)
Section 1445 of the Internal Revenue Code (the "Code") provides
that a transferee of a U.S. real property interest must withhold tax
if the transferror is a foreign person. To inform the transferee that
withholding of tax is not required upon the disposition of a U.S. real
property interest by Landsing Pacific Fund, Inc., a Maryland
corporation ("Landsing"), the undersigned hereby certifies the
following on behalf of Landsing:
1. Landsing is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. Landsing's U.S. tax identification number is
________________________;
3. Landsing's office address is 155 Bovet Road, Suite 101, San
Mateo, California 94402; and
4. Landsing understands that this certification may be
disclosed to the Internal Revenue Service by the transferee and that
any false statement contained herein could be punished by fine,
imprisonment or both.
Under penalty of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true,
correct and complete, and I further declare that I have authority to
sign this document on behalf of Landsing.
Dated as of December ___, 1995
By: ______________________
Its: _____________________
<PAGE>
EXHIBIT J
CAPITAL IMPROVEMENT SCHEDULE
Construction Contracts
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Scheduled Contract Amount
Property Description of Work Contractor Completion Price Date to Date
301 E. Grand Roof Repairs Star Roofing 10/31/95 9,000 0
(All Bay Area Props)
342 Allerton None
410 Allerton Exterior Paint Orlando Trujillo 10/31/95 40,000 Tenant Pays
400 Grandview Waterproofing & SF Waterproofing & 10/31/95 3,810 0
Landscape Green Carpet
417 Eccles Skylight Repair Geltic Glass 10/31/95 4,080 0
Westinghouse None
Auburn Court None
Nohr Plaza None
Bryant St. Annex None
Bryant St. Quad Roof Replacement Superior Roofing 10/31/95 105,000 56,000
Academy Place None
St. Paul East Landscape AJ Snowplowing 10/31/95 7,081 0
St. Paul West None
Twin Oaks Bus. ADA & Sidewalk Repair Lies Brothers
Const. 10/15/95 15,410 0
Stripping & Seal Coat Action Striping 10/31/95 2,000 0
Twin Oaks Tech. CMS Int'l TI's Builder's Inc. 10/10/95 30,000 0
ADA & Sidewalk Repair Lies Brothers
Const. 10/15/95 18,692 0
Stripping & Seal Coat Action Stripping 10/31/95 10,775 0
MACC HVAC Repairs Air Flow Engineer. 11/30/95 4,000 0
MarCom Tec TI's Lynnco, Millennium, 10/31/95 2,000 0
Diversified
</TABLE>
<PAGE>
EXHIBIT K
PROMISSORY NOTE
PROMISSORY NOTE
$900,000 December ___, 1995
FOR VALUE RECEIVED, BEDFORD PROPERTY INVESTORS, INC., a
Maryland corporation ("Borrower"), whose address is 270 Lafayette
Circle, Lafayette, California 94549, promises to pay to LANDSING
PACIFIC FUND, INC., a Maryland corporation ("Holder"), or order, at
155 Bovet Road, Suite 101, San Mateo, California 94402, or at such
other place as Holder may from time to time in writing designate, in
lawful money of the United States of America, the principal sum of
NINE HUNDRED THOUSAND DOLLARS ($900,000) ("Principal Balance"),
together with interest thereon, in like money, from the date of this
Note until fully repaid as set forth below.
1. Interest. The outstanding Principal Balance shall
bear interest at the rate of nine percent (9%) per annum from the date
of this Note until the date or dates such outstanding Principal
Balance is repaid.
2. Payment of Principal and Interest. From the date
hereof to and including the date that is one (1) year after the date
hereof (the "Maturity Date"), the Principal Balance and interest
thereon shall be due and payable as follows:
(a) Borrower shall make semi-annual payments of
interest owing under this Note, in arrears. The first interest
payment owing under this Note (for interest that has accrued during
the first six months that the Principal Balance is outstanding) shall
be made on or before that date that is two hundred ten (210) days
after the date of this Note. The second interest payment owing under
this Note (for interest that has accrued during the second six months
that the Principal Balance is outstanding) shall be made on the
Maturity Date.
(b) On the Maturity Date, Borrower shall make a
final payment which shall include the unpaid portion of the Principal
Balance, any interest accrued and unpaid thereon, and any and all
other sums due under this Note and the Deed of Trust (as defined in
Paragraph 7 below).
3. [Intentionally Deleted]
4. Application of Payments. Each payment received by
Holder from Borrower with respect to this Note shall be applied:
First: to the payment of all costs and expenses incurred by Holder in
connection with the enforcement of this Note (including, without
limitation, all attorneys' fees payable hereunder); Second: to the
repayment of any amounts advanced by Holder in accordance with the
Deed of Trust; Third: to the payment of any late charges due and
payable hereunder; Fourth: to the payment of accrued interest due and
payable hereunder; and Fifth, to the reduction of the Principal
Balance; or in such other order or proportion as Holder, in Holder's
sole discretion, may determine. Payments shall be deemed made when
good funds are received by Holder.
Borrower understands that this Note is not self-
amortizing and that a substantial balloon payment will be due on the
Maturity Date.
5. Prepayment. Borrower may prepay all or any portion
of the Principal Balance at any time without premium on at least
thirty (30) days prior written notice to Holder.
6. Maximum Rate of Interest. Notwithstanding any
provision in this Note, the total liability for payments of interest
and payments in the nature of interest, including without limitation,
all charges, fees or any sums which may at any time be deemed to be
interest, shall not exceed the amount which Holder may lawfully
collect. In the event the total liability for payments of interest
and payments in the nature of interest, including without limitation,
all charges, fees or other sums which may at any time be deemed to be
interest, shall, for any reason whatsoever, result in an effective
rate of interest, which for any interest payment period exceeds the
amount which Holder may lawfully collect, all sums in excess of those
lawfully collectible as interest for the period in question shall,
without further notice to any party hereto, be applied as a reduction
of the Principal Balance immediately upon receipt of such sums by
Holder, with the same force and effect as though Borrower had
specifically designated such excess sums to be so applied to the
reduction of the Principal Balance; provided, however, that Holder
may, at any time, and from time to time, elect, by notice in writing
to Borrower, to waive, reduce or limit the collection of any sums (or
refund to Borrower any sums collected) in excess of those lawfully
collectible as interest rather than accept such sums on prepayment of
the Principal Balance.
7. Security. Payment of this Note is secured by that
certain Deed of Trust With Assignment of Rents (the "Deed of Trust")
dated of even date herewith given by Borrower, as trustor, to First
American Title Insurance Company, as trustee, for the benefit of
Holder, as beneficiary, that encumbers certain real property and the
improvements thereon located in San Leandro, Alameda County,
California (the "Property"). All of the agreements, conditions,
covenants, provisions and stipulations contained in the Deed of Trust
which are to be kept and performed by Borrower are hereby made a part
of this Note to the same extent and with the same force and effect as
if they were fully set forth herein, and Borrower covenants and agrees
to keep and perform them, or cause them to be kept and performed,
strictly in accordance with their terms.
8. Late Charges. Time is of the essence hereof and if
any of the payments of interest on this Note are not paid within ten
(10) days of when due, Borrower shall pay to Holder a late charge
payment equal to five percent (5%) of the amount of such installment.
Borrower recognizes that a default by Borrower in making the payments
agreed to be paid when due will result in Holder' incurring additional
expenses including, but not limited to, sending out notices of
delinquency, computing interest, and segregating the delinquent sums
from not delinquent sums on all accounting, loan and data processing
records, in loss to Holder of the use of the money due, and in
frustration to Holder in meeting their other financial commitments,
but that it is extremely difficult and impractical to ascertain the
extent of such damages. Borrower therefore agrees that a sum equal to
$.05 for each $1.00 of each payment that is not paid ten (10) days
after its due date, is a reasonable estimate of the fair average
compensation for the loss and damages Holder will suffer, that such
amount shall be presumed to be the amount of damages sustained by
Holder in such case, and that Borrower agrees to pay Holder this sum
on demand. Such late charge shall be paid without prejudice to the
right of Holder to collect any other amounts provided to be paid or to
declare a default under this Note or the Deed of Trust.
9. Interest on Late Payment. If all or any portion of
the Principal Balance is not paid in full when due (whether at
scheduled maturity, by acceleration or otherwise), then, from the date
such portion of the Principal Balance is due until the date such
portion is paid in full, such portion shall bear interest at a rate
per annum equal to two percent (2%) over the interest rate that would
otherwise be payable under this Note. Borrower recognizes that a
default by Borrower in making the payments agreed to be paid when due
will result in Holder incurring additional expenses including, but not
limited to, sending out notices of default and adjusting all
accounting, loan and data processing records, in loss to Holder of the
use of the money due, and in frustration to Holder in meeting their
other financial commitments, but that it is extremely difficult and
impractical to ascertain the extent of such damages. Borrower
therefore agrees that the increased interest rate as provided herein
is a reasonable estimate of the fair average compensation for the loss
and damages Holder will suffer, that such amount shall be presumed to
be the amount of damages sustained by Holder in such case, and that
Borrower agrees to pay Holder this sum on demand. Such increased
interest shall be paid without prejudice to the right of Holder to
collect any other amounts provided to be paid or to declare a default
under this Note or the Deed of Trust.
10. Default. Upon the occurrence of any default under
this Note or the Deed of Trust, Holder, at their option and without
further notice, demand, or presentment for payment to Borrower or
others, may declare immediately due and payable the unpaid Principal
Balance and interest accrued thereon together with all other sums owed
by Borrower under this Note and the Deed of Trust (including, but not
limited to attorneys' fees and costs as provided in Paragraph 12
below), anything in this Note and the Deed of Trust to the contrary
notwithstanding. Payment of such sums may be enforced and recovered
in whole or in part at any time by one or more of the remedies
provided to Holder in this Note or the Deed of Trust.
11. Remedies Cumulative. The remedies of Holder, as
provided in this Note and the Deed of Trust, shall be cumulative and
concurrent and may be pursued singly, successively or together, at the
sole discretion of Holder, and may be exercised as often as occasion
therefor shall occur; and the failure to exercise any such right or
remedy shall in no event be construed as a waiver or release thereof.
12. Attorneys' Fees. In the event that suit be brought
hereon, or an attorney be employed or expenses be incurred to compel
payment of this Note or any portion of the indebtedness evidenced
hereby, or to defend the priority of the Deed of Trust or to otherwise
interpret or enforce any of the terms of this Note or the Deed of
Trust, Borrower promises to pay all such attorneys' fees, costs and
expenses all as actually incurred by Holder as a result thereof
including, without limitation, (a) attorneys' fees, costs and expenses
incurred in appellate proceedings or in any action or participation
in, or in connection with, any case or proceeding under Chapters 7 or
11 of the Bankruptcy Code or any successor thereto, and (b) attorneys'
fees, costs and expenses incurred as a result of Holder exercising
their rights to cure any default by Borrower under this Note or the
Deed of Trust, or as a result of the foreclosure of the Deed of Trust,
deed in lieu thereof, or trustee's sale thereunder.
13. Waiver of Notice. Borrower waives diligence, pre-
sentment for payment, demand, notice of demand, notice of nonpayment
or dishonor, protest and notice of protest of this Note, and all other
notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note, except such
notices as are provided in the Deed of Trust.
14. Waiver. Holder shall not be deemed, by any act of
omission or commission, to have waived any of its rights or remedies
hereunder unless such waiver is in writing and signed by Holder, and
then only to the extent specifically set forth in the writing. The
acceptance by Holder of any payment hereunder which is less than
payment in full of all amounts due and payable at the time of such
payment shall not constitute a waiver of the right to exercise any of
the foregoing options at that time or at any subsequent time or
nullify any prior exercise of any such option without the express
consent of Holder, except as and to the extent otherwise provided by
law. A waiver with reference to one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy as to a
subsequent event.
15. Governing Law. This instrument shall be governed
by and construed according to the laws of the State of California.
16. Construction of Certain Terms. Whenever used, the
singular shall include the plural, the plural shall include the
singular, and the words "Holder" and "Borrower" shall be deemed to
include their respective heirs, administrators, executors, successors
and assigns.
17. Notice. All notices under this Note shall be in
writing and shall be deemed delivered upon personal delivery to the
authorized representatives of either party or three days after being
sent by certified mail, return receipt requested, postage prepaid,
addressed to the parties at the following addresses or at such other
addresses as may be designated by written notice given hereunder:
Borrower: Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, California 94549
Holder: Landsing Pacific Fund, Inc.
155 Bovet Road, Suite 101
San Mateo, California 94402
18. Severability of Provisions. In the event any one
or more of the provisions hereof shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining provisions
hereof shall be in no way affected, prejudiced or disturbed thereby.
19. Acceleration Upon Transfer. The Deed of Trust
provides as follows:
"If the trustor shall sell, convey or alienate said
property, or any part thereof, or any interest therein, or
shall be divested of his title or any interest therein in
any manner or way, whether voluntarily or involuntarily,
without the written consent of the beneficiary first being
had and obtained, beneficiary shall have the right, at its
option, except as prohibited by law, to declare any
indebtedness or obligations secured hereby, irrespective of
the maturity date specified in any note evidencing the
same, immediately due and payable."
20. Time of Essence. Time is of the essence of this
Note.
21. Non-Recourse. This Note is a non-recourse note. In
the event of a default by Borrower of any of its obligations hereunder
or under the Deed of Trust, Holder's sole remedy shall be to enforce
its rights under the Deed of Trust.
22. Headings. The section captions are inserted for
convenience of reference only and shall in no way alter or modify the
text of such sections.
IN WITNESS WHEREOF, Borrower, intending to be legally bound
hereby, has duly executed this Note the day and year first above
written.
BORROWER: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: _____________________________
Its: _____________________________
<PAGE>
EXHIBIT L
NOHR DEED OF TRUST
RECORDING REQUESTED BY
First American Title Guarantee Company
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
APN
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(This Deed of Trust contains an acceleration clause)
This DEED OF TRUST, made _______________________, between
____________________________________ herein called TRUSTOR, whose
address is ________________________________________
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation,
herein called TRUSTEE, and ______________________________, herein
called BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in Trust, with Power of
Sale, that property in the City of _________________, County of
______________, State of California, described as:
FOR LEGAL DESCRIPTION SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART
HEREOF
If the trustor shall sell, convey or alienate said property, or any
part thereof, or any interest therein, or shall be divested of his
title or any interest therein in any manner or way, whether
voluntarily or involuntarily, without the written consent of the
beneficiary being first had and obtained, beneficiary shall have the
right, at its option, except as prohibited by law, to declare any
indebtedness or obligations secured hereby, irrespective of the
maturity date specified in any note evidencing the same, immediately
due and payable.
Together with the rents, issues and profits thereof, subject, however,
to the right, power and authority hereinafter given to and conferred
upon Beneficiary to collect and apply such rents, issues and profits.
For the Purpose of Securing (1) payment of the sum of $ ____ with
interest thereon according to the terms of a promissory note or notes
of even date herewith made by Trustor, payable to order of
Beneficiary, and extensions or renewals thereof, and (2) the
performance of each agreement of Trustor incorporated by reference or
contained herein (3) Payment of additional sums and interest thereon
which may hereafter be loaned to Trustor, or his successors or
assigns, when evidenced by a promissory note or notes reciting that
they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the
property above described Trustor expressly makes each and all of the
agreements and adopts and agrees to perform and be bound by each and
all of the terms and provisions set forth in subdivision A. and it is
mutually agreed that each and all of the terms and provisions set
forth in subdivision B of the fictitious deed of trust recorded in
Orange County August 17, 1964, and in all other counties August 18,
1964, in the book and at the page of Official Records in the office of
the county recorder of the county where said property is located,
noted below opposite the name of such county namely:
County Book Page
Alameda 1288 556
Alpine 3 130-31
Amador 133 438
Butte 1330 513
Calaveras 188 338
Colusa 323 391
Contra Costa 4684 1
Del Norte 101 549
El Dorado 704 635
Fresno 5052 623
Glenn 469 76
Humboldt 801 83
Imperial 1189 701
Inyo 165 672
Kern 3756 690
Kings 858 713
Lake 437 110
Lassen 192 367
Los Angeles T-3878 874
Madera 911 136
Marin 1849 122
Mariposa 90 453
Mendocino 667 99
Merced 1660 753
Modoc 191 93
Mono 69 302
Monterey 357 239
Napa 704 742
Nevada 363 94
Orange 7182 18
Placer 1028 379
Plumas 166 1307
Riverside 3778 347
Sacramento 5039 124
San Benito 300 405
San Bernardino 6213 768
San Francisco A-804 596
San Joaquin 2855 283
San Luis Obispo 1311 137
San Mateo 4778 175
Santa Barbara 2065 881
Santa Clara 6626 664
Santa Cruz 1638 607
Shasta 800 633
San Diego Series 5 Book 1964, Page 149774
Sierra 38 187
Siskiyou 506 762
Solano 1287 621
Sonoma 2067 427
Stanislaus 1970 56
Sutter 655 585
Tehama 457 183
Trinity 108 595
Tulare 2530 108
Tuolume 177 160
Ventura 2607 237
Yolo 769 16
Yuba 398 693
Shall inure to and bind the parties hereto, with respect to the
property above described. Said agreements, terms and provisions
contained in said subdivisions A and B (identical in all county is,
and printed on the reverse side hereof) are by the within reference
thereto, incorporated herein and made a part of this Deed of Trust for
all purposes as fully as if set forth at length herein, and
Beneficiary may charge for a statement regarding the obligation
secured hereby, provided the charge therefor does not exceed the
maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default
and any notice of sale hereunder be mailed to him at his address
hereinbefore set forth.
Signature of Trustor
STATE OF CALIFORNIA
COUNTY OF
On _______________, before me, ________________, a Notary Public in
and for said State, personally appeared _____________________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
- ----------------------------------------------------------------------
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed
of Trust recorded in each county in California as stated in the
foregoing Deed of Trust and incorporated by reference in said Deed of
Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust,
Trustor agrees:
(1) To keep said property in good condition and repair;
not to remove or demolish any building thereon; to complete or restore
promptly and in good and workmanlike manner any building which may be
constructed, damaged or destroyed thereon and to pay when due all
claims for labor performed and materials furnished therefor; to comply
with all laws affecting said property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste
thereof; not to commit suffer or permit any act upon said property in
violation of law; to cultivate, irrigate, fertilize, fumigate, prune
and do all other acts which from the character or use of said property
may be reasonable necessary the specific enumerations herein not
excluding the general.
(2) To provide, maintain and deliver to Beneficiary the
insurance satisfactory to and with loss payable to Beneficiary. The
amount collected under any fire or other insurance policy may be
applied by Beneficiary upon any indebtedness secured hereby and in
such order as Beneficiary may determine, or at option of Beneficiary
the entire amount to collected or any part thereof may be released to
Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done
pursuant to such notice.
(3) To appear in a defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses, including
cost of evidence of title and attorney's fees in a reasonable sum, in
any such action or proceeding in which Beneficiary or Trustee may
appear, and in any suit brought by Beneficiary to foreclose this Deed.
(4) To pay; at lease ten days before delinquency all
taxes and assessments affecting said property, including assessments
on appurtenant water stock; when due, all encumbrances, charges and
liens, with interest on said property or any part thereof, which
appear to be prior or superior hereto; all costs, fees and expenses of
this Trial.
Should Trustor fail to make any payment or to do any act as herein
provided, then Beneficiary or Trustee, but without obligation so to do
and without notice to or demand upon Trustor and without releasing
Trustor from any obligation hereof, may; make or do the same in such
manner and to such extent as other may deem necessary to protect to
security thereof, Beneficiary or Trustee being authorized to enter
upon said property for such purposes; appear in and defend any action
or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgement of
either appears to be prior or superior hereto; and in exercising any
such powers, pay necessary expenses, employ counsel and pay his
reasonable fees.
(5) To pay immediately and without demand all sums so
expanded by Beneficiary to Trustee, with interest from date of
expenditure at the amount allowed by law in effect at the date hereof,
and to pay for any statement provided for by law in effect at the date
hereof regarding the obligation secured hereby any amount demanded by
the Beneficiary not to exceed the maximum allowed by law at the time
when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any
condemnation for public use of or injury to said property or any part
there of is hereby assigned and shall be paid to Beneficiary who may
apply or release such moneys received by him in the same manner and
with the same affect as above provided for disposition of proceeds of
fire or other insurance.
(2) That by accepting payments of any sum secured
hereby after its due date, Beneficiary does not waive his right either
to require prompt payment when due of all other sums so secured or to
declare default for failures to pay.
(3) That at any time or from time to time, without
liability therefor and without notice, upon written request if
Beneficiary and presentation of this Deed and Said note for
endorsement, and without affecting the personal liability of any
person for payment of the indebtedness secured hereby. Trustee may:
reconvey any part of said property; consent to the making of any map
or plat thereof; join in granting any easement thereon; or join in any
extension agreement or any agreement subordinating the lien or charge
hereof.
(4) That upon written request of beneficiary stating
that all sums secured hereby have been paid, and upon surrender of
this Deed and said note to Trustee for cancellation and retention or
other disposition as Trustee in its sole discretion may choose and
upon payment of its fees, Trustee shall reconvey, without warranty,
the property then held hereunder. The recitals in such reconveyance
of any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
(5) That as additional security, Trustor hereby gives
to an d confers upon Beneficiary the right, power and authority,
during the continuance of these Trust, to collect the rents, issues
and profits of said property, reserving unto Trustor the right, prior
to any default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, to collect and
retain such rents, issues and profits as they become due and payable.
Upon any such default, Beneficiary may at any time without notice,
either in person, by agent, or by a receiver to be appointed by a
court, and without regard to the adequacy of any security for the
indebtedness hereby incurred, enter upon and take possession of said
property or any part hereof, in his own name sue for or otherwise
collect such rents, issues, and profits, including those past due and
unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any
indebtedness secured hereby, and in such order as Beneficiary may
determine. The entering upon and taking possession of said property,
the collection of such rents, issues and profits and the application
thereof as aforesaid, shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant to such notice.
(6) That upon default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby immediately
due and payable by delivery to Trustee of written declaration of
default and demand for sale and of written notice of default and of
election to cause to be sold said property , which notice Trustee
shall cause to be filed for record. Beneficiary also shall deposit
with Trustee this Deed, said note and all documents evidencing
expenditures secured hereby.
After the lapse of such time as may then be required by law following
the recordation of said notice of default, and notice of sale having
been given as then required by law, Trustee, without demand on
Trustor, shall sell said property at the time and place fixed by it in
said notice of sale, either as a whole or in separate parcels, and in
such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United State, payable at time
of sale. Trustee may postpone sale of all or any portion of said
property by public announcement oat such time and place of sale, and
from time to time thereafter may postpone such sale by public
announcement at the time fixed by the preceding postponement.
Trustee shall deliver to such purchaser its deed conveying to property
so sold, but without any covenant or warranty, express or implied; The
recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary as hereinafter defined, may purchase at such
sale.
After deducting all costs, fees and expenses of Trustee and of this
Trust, including cost of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of all sums
expended under the terms hereof, not then repaid, with accrued
interest at the amount allowed by law in effect at the date hereof;
all other sums then secured hereby; and the remainder, if any to the
person or persons legally entitle thereto.
(7) Beneficiary, or any successor in ownership of any
indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee, named
herein or acting hereunder, which instrument, executed by the
Beneficiary and duly acknowledged and recorded in the office of the
recorder of the county of counties where said property is situated,
shall be conclusive proof of proper substitution of such successor
Trustee or Trustees, who shall, without conveyance from the Trustee
predecessor, succeed to all its title estate rights, powers and
duties. Said instrument must contain the name of the original
Trustor, Three and Beneficiary hereunder, the book and page where this
Deed is recorded and the name and address of the new Trustee.
(8) That the Deed applied to, inure to the benefit of,
and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term
Beneficiary shall mean the owner and holder, including pledgees of the
note secured hereby, whether or not name as Beneficiary herein. In
this Deed, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular number includes
the plural.
(9) That Trustee accepts the Trust when this Deed, duly
executive and acknowledged is made a public record as provided by law.
Trustee is not obligated to notify any party hereto pending sale under
any other Deed of Trust or any action or preceding in which Trustor,
Beneficiary or Trustee shall be party unless brought by Trustee.
<PAGE>
EXHIBIT M
DATEDOWN CERTIFICATE
This Datedown Certificate is given as of December ___, 1995
by LANDSING PACIFIC FUND, INC., A Maryland corporation ("Seller").
1. Seller and Bedford Property Investors, Inc., a
Maryland corporation ("Buyer"), have entered into that certain
Purchase and Sale Agreement dated October ___, 1995 (the "Purchase
Agreement").
2. In accordance with Section 5.2(a)(x) of the
Purchase Agreement, Seller hereby affirms to Buyer that, except for
immaterial changes, all of Seller's representations and warranties
made in Section 7.1 of the Agreement remain true and correct as of the
date of this certificate.
LANDSING PACIFIC FUND, INC.,
a Maryland corporation
By:
Its:
<PAGE>
EXHIBIT N
CLOSING COST ALLOCATION
(chart identifies which party is obligated to pay costs)
Standard Coverage City/County
County/State Title Insurance* Escrow Fee Transfer Taxes
Alameda, CA
[Auburn Court] Buyer Buyer County - Seller
City - None
[Westinghouse] Buyer Buyer County - Seller
City - None
[Nohr Plaza] Seller Seller County - Seller
City - Seller
San Mateo, CA Buyer Buyer County - Seller
City - None
Denver, CO Seller Seller County - Buyer
City - None
El Paso, CO Seller Seller County - Seller
City - None
Ramsey, MN Buyer Buyer County - Seller
City - None
Washington, OR Seller 50/50 County - 50/50
City - None
* Buyer is obligated to pay the additional cost of obtaining an
extended coverage title insurance policy and the cost of all
endorsements.
<PAGE>
EXHIBIT O
CASUALTY/CONDEMNATION ALLOCATION<PAGE>
SCHEDULE 1
LIST OF ENVIRONMENTAL ASSESSMENTS
Report Type of Company Completing
Date Report Report
301 East Grand
6/13/95 Phase I Environmental Assessment SECOR International
12/8/93 Roof Sampling Report CTL Environmental
Services
6/93 Asbestos Survey CTL Environmental
Services
4/9/90 Preliminary Site Assessment PES Environmental,
Inc.
3/30/90 Building Conditions Assessment TransWorld
Consortium, Inc.
2/5/90 Assessment of Suspect Asbestos-
Containing Building Materials Clayton Environmental
11/10/89 Phase I Environmental Assessment Clayton Environmental
342 Allerton
9/6/95 Abandonment of Well Case Letter Health Services
Agency
6/13/95 Phase I Environmental Assessment SECOR International
10/12/94 Underground Storage Tank Case
Closure CTL Environmental
Services
7/26/94 Groundwater Gradient Investigation HLA
12/8/93 Roof Sampling Report PES Environmental,
Inc.
7/93 Asbestos Survey PES Environmental,
Inc.
4/9/93 Preliminary Site Assessment CTL Environmental
Services
3/30/90 Building Conditions Assessment Clayton Environmental
Consultants
2/5/90 Assessment of Suspect Asbestos-
Containing Building Materials TransWorld
Consortium, Inc.
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
2/3/90 Environmental Compliance Assessment
of Dow Corning, U.S.A. Clayton Environmental
Consultants
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
410 Allerton
9/6/95 Abandonment of Well Case Letter Health Services
Agency
6/13/95 Phase I Environmental Assessment SECOR International
5/23/94 Underground Storage Tank Closure Health Services
Agency
6/93 Asbestos Survey PES Environmental,
Inc.
4/9/93 Preliminary Site Assessment CTL Environmental
Services
3/30/90 Building Conditions Assessment Environmental
Geosciences
2/5/90 Assessment of Suspect Asbestos-
Containing Building Materials TransWorld
Consortium, Inc.
2/3/90 Phase II Environmental Assessment Clayton Environmental
Consultants
11/30/89 Phase I Environmental Assessment Clayton Environmental
Consultants
400 Grandview
6/13/95 Phase I Environmental Assessment
Update SECOR International
10/21/94 Ltd. Phase I Environmental
Site Assessment CTL Environmental
Services
12/8/93 Roof Sampling Report CTL Environmental
Services
8/3/93 Supplementary Letter to Preliminary
Site Assessment PES Environmental,
Inc.
6/93 Asbestos Survey CTL Environmental
Services
4/9/93 Preliminary Site Assessment PES Environmental,
Inc.
3/30/90 Building Conditions Assessment TransWorld
Consortium, Inc.
2/5/90 Assessment of Suspect Asbestos-
Containing Building Materials Clayton Environmental
Consultants
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
417 Eccles
6/14/95 Phase I Environmental Assessment SECOR Environmental
12/8/93 Roof Sampling Report CTL Environmental
Services
6/93 Asbestos Survey CTL Environmental
Services
2/5/90 Assessment of Suspect Asbestos-
Containing Building Materials Clayton Environmental
Consultants
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
Westinghouse
5/19/95 Phase I Environmental Assessment SECOR International
9/2/94 Review of Preliminary Environmental
Site Assessment Report CTL Environmental
Services
8/12/94 Preliminary Phase I Environmental
Site Assessment Report GEO Plexus, Inc.
12/8/93 Roof Sampling Report CTL Environmental
Services
12/93 Asbestos Survey CTL Environmental
Services
7/20/93 FINAL - Preliminary Environmental
Site Assessment PES Environmental,
Inc.
12/8/93 DRAFT - Preliminary Environmental
Site Assessment PES Environmental,
Inc.
11/30/89 Phase I Environmental Assessment Clayton Environmental
Consultants
Auburn Court
5/19/95 Phase I Environmental Assessment SECOR International
12/8/93 Roof Sampling Report Environmental
Solutions, Inc.
8/8/93 Addendum #1 for June 1993 Asbestos
Survey CTL Environmental
7/20/93 FINAL - Preliminary Environmental
Site Assessment PES Environmental,
Inc.
7/1/93 DRAFT - Preliminary Environmental
Site Assessment PES Environmental,
Inc.
6/93 Asbestos Survey CTL Environmental
2/20/92 Closure Report for Plating Shop
Facilities Zyng Enterprises Pace Inc.
4/12/90 Building Conditions Assessment TransWorld Consortium
2/5/90 Assessment of Suspect Asbestos-
Containing Building Materials Clayton Environmental
Consultants
2/3/90 Environmental Compliance Assessment
of Zyng Enterprises. Clayton Environmental
Consultants
2/3/90 Environmental Compliance Assessment
of Dow Corning, U.S.A. Clayton Environmental
Consultants
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
7/20/88 Ground Water Monitoring Well
Installation and Chemical Testing BSK & Associates
4/9/86 Soil & Ground Water Contamination
Investigation Beta Association
Nohr Plaza
10/6/95 Letter regarding Phase I/II
Environmental Assessment Hageman-Agular, Inc.
8/24/95 Proposal and Cost Estimate for
Supplementary Site Assessment
Activities Alton GeoScience
8/10/95 Draft Technical Report and Ground-
water Investigation SECOR International
5/18/95 Phase I Environmental Assessment SECOR International
5/19/92 Closure Letter Alameda County Health
Services
Bryant Street Annex
5/19/95 Phase I Environmental Assessment SECOR International
8/15/94 Site Assessment Update Huntingdon
9/3/91 Soil & Ground Water Investigation Chen Northern, Inc.
8/27/91 Phase I Environmental Assessment
Update Chen Northern, Inc.
6/27/91 Asbestos Survey Chen Northern, Inc.
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
Bryant Street Quad
5/19/95 Phase I Environmental Assessment SECOR International
12/11/91 Asbestos Operations & Maintenance
Plan Chen Northern, Inc.
9/3/91 Soil & Ground Water Investigation Chen Northern, Inc.
8/27/91 Phase I Environmental Assessment
Update Chen Northern, Inc.
6/27/91 Asbestos Survey Chen Northern, Inc.
Academy Place
5/19/95 Phase I Environmental Assessment SECOR International
6/27/91 Asbestos Survey Chen Northern, Inc.
4/4/91 Phase I Environmental Assessment Clayton Environmental
Consultants
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
St. Paul - East
5/22/95 Phase I Environmental Assessment SECOR International
12/20/91 Updated Environmental Real Estate
Assessment Pace Incorporated
10/90 Environmental Real Estate
Assessment Pace Incorporated
St. Paul - West
5/22/95 Phase I Environmental Assessment SECOR International
4/4/91 Phase I Environmental Assessment Clayton Environmental
Consultants
Twin Oaks Business
5/22/95 Phase I Environmental Assessment SECOR International
5/94 Asbestos Survey Report PBS Environmental
11/10/89 Phase I Environmental Assessment Clayton Environmental
Consultants
<PAGE>
SCHEDULE 2
LIST OF PRELIMINARY TITLE REPORTS
(all preliminary title reports prepared by First
American Title Insurance Company or its affiliates)
PROPERTY NAME/ADDRESS<PAGE>
PRELIMINARY TITLE REPORT<PAGE>
301 E. Grand<PAGE>
No. 764966 dated April 20, 1995<PAGE>
342 Allerton<PAGE>
No. 764967 dated April 20, 1995<PAGE>
410 Allerton<PAGE>
No. 764969 dated April 20, 1995<PAGE>
400 Grandview
[prelim shows 448]<PAGE>
No. 764968 dated April 20, 1995<PAGE>
417 Eccles<PAGE>
No. 764970 dated April 20, 1995<PAGE>
Westinghouse Dr.<PAGE>
No. 764972-LT dated April 20, 1995<PAGE>
Auburn Court<PAGE>
No. 764974-LT dated April 21, 1995<PAGE>
Nohr Plaza<PAGE>
No. 764973 dated April 20, 1995<PAGE>
Bryant St. Annex<PAGE>
No. 764978 dated May 5, 1995<PAGE>
Bryant St. Quad<PAGE>
No. 764979 dated May 5, 1995<PAGE>
Academy Place<PAGE>
No.764977LT dated May 3, 1995<PAGE>
St. Paul East<PAGE>
No. 764980 dated April 18, 1995<PAGE>
St. Paul West<PAGE>
No. 764981 dated April 15, 1995<PAGE>
Twin Oaks Business<PAGE>
No. 764975 dated May 23, 1995<PAGE>
Twin Oaks Technology<PAGE>
No. 764976LT dated May 24,1995YYY<PAGE>
<PAGE>
SCHEDULE 3
LIST OF SURVEYS
1. 301 East Grand
ALTA Survey, dated May 7, 1993, prepared by Edward W. Baca
2. 342 Allerton
ALTA Survey, dated May 7, 1993, prepared by Edward W. Baca
3. 410 Allerton
ALTA Survey, dated April 23, 1993, prepared by Edward W. Baca
4. Westinghouse
ALTA Survey, dated March 9, 1983, prepared by Keir & Wright
5. 400 Grandview
ALTA Survey, dated April 23, 1993, prepared by Edward W Baca
6. 417 Eccles
ALTA Survey, dated May 9, 1993, prepared by Edward W. Baca
7. Auburn Court
ALTA Survey, dated March 1986, prepared by Waley & Associates
8. Nohr Plaza
No Survey
9. Bryant Street Annex
ALTA/ACSM Survey, dated December 1991, prepared by Kurt O. Linn,
Inc.
10. Bryant Street Quad
ALTA/ACSM Survey, dated December 16, 1991, prepared by Kurt O.
Linn, Inc.
11. Twin Oaks Business
Site Plan, dated September 23, 1983, prepared by Van
Domelen/Looijenga & Associates.
12. Twin Oaks Technology
Site plan, dated May 31, 1983, prepared by Van Domelen/Looijenga
& Associates
13. St. Paul East
Survey and Site Plan dated August 15, 1984, prepared by Carl W.
Peterson & Associates, Inc.
14. St. Paul West
A. Location and Boundary Map, dated July 9, 1982, prepared by
George Schmidt & Associates, Inc.
B. Grading and Parking Plan, dated August 10, 1981, prepared by
Voigt and Fourre, Inc.
15. Academy Place
Improvement Survey Plat, dated June 10, 1991, prepared by Wilson
& Company.
<PAGE>
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is dated as of November 15, 1995 by and between LANDSING PACIFIC FUND,
INC., a Maryland corporation ("Seller"), and BEDFORD PROPERTY
INVESTORS, INC., a Maryland corporation ("Buyer").
RECITALS
A. Seller and Buyer have entered into that certain Purchase and
Sale Agreement dated as of October 19, 1995 (as amended by this
Amendment, the "Purchase Agreement"), pursuant to which Seller has
agreed to sell, and Buyer has agreed to purchase, certain real and
personal property as more particularly described therein. Capitalized
terms not otherwise defined in this Amendment shall have the meanings
given to such terms in the Purchase Agreement.
B. Seller and Buyer desire to amend the Purchase Agreement as
provided for in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Conditional Waiver of Due Diligence. Subject only to the
satisfaction and/or waiver of the New Conditions (as defined in
Paragraph 3 below, each of which shall constitute additional Due
Diligence Conditions under the Purchase Agreement), Buyer hereby
acknowledges that, except for the condition of title to the Real
Properties and Improvements (which shall remain subject to Buyer's
approval as provided in Section 3 of the Purchase Agreement), all
other Due Diligence Conditions are hereby satisfied and/or waived.
2. Extension of Due Diligence Period. The parties hereby extend
the Due Diligence Period until 5:00 pm on November 20, 1995, solely
for the purpose of obtaining the satisfaction and/or waiver of the New
Conditions as provided in Paragraph 3 below. Except for the condition
of title to the Real Properties and Improvements (which shall remain
subject to Buyer's approval as provided in Section 3 of the Purchase
Agreement), all other Due Diligence Conditions have been deemed
satisfied and/or waived pursuant to Paragraph 1 above.
3. New Conditions. The following conditions, each of which
constitutes a Due Diligence Condition under the Purchase Agreement
("New Conditions"), must be satisfied and/or waived in writing by the
expiration of the Due Diligence Period, as extended pursuant to
Paragraph 2 above (which satisfaction and/or waiver must be evidenced
by a writing signed by the party for whose benefit the New Condition
exists):
(a) Letter of Credit. Under the existing Purchase
Agreement, Buyer is to pay Seller at the Closing an amount equal to
Forty-Nine Million Eight Hundred Sixty-One Thousand Seven Hundred
Eighty Dollars ($49,861,780.00), less the amount of the Earnest Money
Deposit, in immediately available U.S. funds (the "Cash Payment").
Buyer has proposed that the Cash Payment be reduced by Three Million
Dollars ($3,000,000) and that, in lieu of a payment of $3,000,000 in
immediately available U.S. funds, Buyer provide Seller with an
Acceptable L/C (as hereafter defined) in the amount of Three Million
Dollars ($3,000,000). As used herein, an "Acceptable L/C" means an
irrevocable, unconditional letter of credit naming Seller as the
beneficiary, containing terms (including draw terms and maturity date)
satisfactory to each of Buyer and Seller in their sole and absolute
discretion and issued by The Bank of America for the account of Buyer.
Seller is willing to reduce the Cash Payment by $3,000,000,
provided that Seller be provided with one or more Acceptable L/Cs (the
exact number of which shall be determined by Seller in its sole and
absolute discretion) that collectively total $3,000,000, which
Acceptable L/Cs will be applied against the Cash Payment and/or
Seller's obligation to fund the Reserve Account, respectively, in a
manner acceptable to each of Buyer and Seller in their sole and
absolute discretion.
Seller and Buyer must agree on the manner in which the Cash
Payment is restructured by an Acceptable L/C(s) and the manner in
which the Acceptable L/C(s) are applied against the Cash Payment
and/or Reserve Fund by the expiration of the Due Diligence Period, as
extended by Paragraph 2 above.
(b) Seller shall be satisfied, in its sole and absolute
discretion, that the restructuring of the Cash-Payment and/or Reserve
Fund obligations as discussed in Paragraph 3(a) above shall not have
adverse tax consequences to Seller and/or its shareholders.
Notwithstanding anything to the contrary contained in this Amendment,
Seller must notify Buyer in writing, on or before 5:00 pm on November
17, 1995, as to whether this New Condition has been satisfied or
waived. If Seller fails to so notify Buyer, then this New Condition
shall be deemed to have failed and the Purchase Agreement shall
terminate as provided in Paragraph 5 below.
(c) Seller and Buyer have agreed in writing on the list of
three acceptable Arbiters, as provided in Section 16.5 of the Purchase
Agreement.
4. Satisfaction of New Conditions. If the New Conditions are
satisfied and/or waived by the expiration of the Due Diligence Period,
as extended by Paragraph 2 above (which satisfaction and/or waiver
must be evidenced by a writing signed by the party for whose benefit
the New Condition exists), then (i) Buyer's senior management shall,
no later than three (3) business days following the date the New
Conditions are satisfied and/or waived, make a written recommendation
to Buyer's Board of Directors that they approve the transactions
contemplated by the Purchase Agreement, and promptly provide Seller
with written notice of such act, and (ii) the November 30, 1995
deadline by which Buyer is to obtain the written approval of its Board
of Directors to the transactions contemplated by the Purchase
Agreement shall be extended to 5:00 pm on December 4, 1995.
5. Failure of New Conditions. If the New Conditions are not
satisfied and/or waived by the expiration of the Due Diligence Period,
as extended by Paragraph 2 above or, with respect to the New Condition
described in Paragraph 3(b) above, by the expiration of the time frame
set forth in Paragraph 3(b) above (which satisfaction and/or waiver
must be evidenced by a writing signed by the party for whose benefit
the New Condition exists), then the Purchase Agreement shall terminate
and neither party shall have any further obligations to the other
except for the Surviving Obligations. Notwithstanding the foregoing
sentence, if the Purchase Agreement should terminate because the New
Conditions are not satisfied and/or waived as provided in this
Paragraph 5, then Seller shall have no obligation to pay the Seller's
Termination Fee and Buyer shall have no obligation to pay the Buyer's
Termination Fee.
6. Continuing Enforceability. The parties acknowledge and agree
that the Purchase Agreement remains in full force and effect,
unchanged except as expressly provided for in this Amendment. This
Amendment and the Purchase Agreement shall be read together as one
document. In the event of any conflict between the terms of this
Amendment and the terms of the Purchase Agreement, the terms of this
Amendment shall govern.
7. Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall constitute an original hereof and
all of which shall constitute one and the same document.
9. Further Modification. This Amendment may only be modified
pursuant to a written agreement signed by all of the parties hereto.
10. Entire Agreement. This Amendment and the documents described
herein contain the entire agreement between the parties hereto with
respect to the matters described herein and supersede all prior
agreements, oral or written, between the parties hereto with respect
to such matters.
11. Headings. The headings contained in this Amendment are for
convenience only and shall not be deemed part of the text of this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
SELLER: LANDSING PACIFIC FUND, INC.,
a Maryland corporation
/s/ Joseph M. Mock
By: Joseph M. Mock
Its: Executive Vice President
BUYER: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
/s/ Donald A. Lorenz
By: Donald A. Lorenz
Its: Executive Vice President
Escrow Holder acknowledges and agrees that it has reviewed and shall
comply with all provisions of the Purchase Agreement, as amended by
this Amendment, that impose obligations on it.
FIRST AMERICAN TITLE INSURANCE
COMPANY
s/s Liz Treangen
By: Liz Treangen
Its: Escrow Officer
<PAGE>
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT, (this
"Second Amendment") is dated as of November 21, 1995 by and between
LANDSING PACIFIC FUND, INC., a Maryland corporation ("Seller"), and
BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation("BUYER").
RECITALS
A. Seller and Buyer have entered into that certain Purchase and
Sale Agreement dated as of October 19, 1995 (the "Initial Agreement"),
as amended by that certain First Amendment to Purchase and Sale
Agreement dated as of November 15, 1995 (the "First Amendment"), a
letter agreement dated November 20, 1995 (collectively, the "Purchase
Agreement"), pursuant to which Seller has agreed to sell, and Buyer
has agreed to purchase, certain real and personal property as more
particularly described therein. Capitalized terms not otherwise
defined in this Second Amendment shall have the meanings given to such
terms in the Purchase Agreement.
B. Seller and Buyer desire to amend the Purchase Agreement as
provided for in this Second Amendment.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Letter of Credit for Cash at Closing. Section 2.2 of the
Initial Agreement is hereby deleted and replaced by the following:
"Prior to the Close of Escrow, Forty-Six Million Eight Hundred
Sixty-One Thousand Seven Hundred Eighty Dollars
($46,861,780.00), less the amount of the Earnest Money Deposit,
in immediately available U.S. funds shall be deposited by Buyer
in Escrow, which amount shall be subject to increase or decrease
due to the effect of the prorations made in Section 6 below.
Buyer shall deposit such funds by federal wire transfer with
Escrow Holder in time sufficient, as determined by Escrow
Holder, to close the transaction contemplated by this Agreement
on the scheduled Closing Date. In addition, Buyer shall, prior
to the Close of Escrow, deposit the Letter of Credit (as
hereafter defined) in Escrow, to be applied against the Purchase
Price at the Closing. Buyer shall procure the Letter of Credit
at its sole cost and expense. The "Letter of Credit" shall mean
a letter of credit issued by the Bank of America N.T. & S.A.
("BofA") that contains the following terms and conditions:
(i) shall be an irrevocable, unconditional letter of credit;
(i) shall be in the amount of Three Million Dollars
($3,000,000) (the "Principal Amount");
(iii) shall name Seller as the beneficiary thereunder;
(iv) shall provide that it may only be drawn during the period
commencing on December 14, 1996 (the "Initial Draw Date") and
ending on January 14, 1997 (the "Expiry Date");
(v) shall have an expiration date not sooner that the Expiry
Date;
(vi) shall provide that it shall be payable upon presentation
of the original letter of credit and a written request by the
beneficiary or its assignee or successor for payment (in the
case of an assignee or successor, such party shall also present
the document that evidence that the beneficiary's interest in
the original letter of credit has been transferred);
(vii) shall provide that it may be freely assigned or
hypothecated and shall contain such further language and shall
be accompanied by such other instruments, notes or documents as
Seller or Seller's lender or proposed assignee may reasonably
request in order to facilitate Sellers' ability to sell and/or
hypothecate the letter of credit (provided that such further
language shall be reasonably acceptable to BofA and shall not
alter the Principal Amount, the Initial Draw Date or the Expiry
Date); and
(viii) shall contain such other provisions or features as may
be reasonably required by Seller so that the substitution of the
Letter of Credit for a portion of the Cash Payment will not have
adverse tax consequences to Seller and/or its shareholders, as
determined by Seller in its sole and absolute discretion
(provided that such other provisions or features shall be
reasonably acceptable to BofA and shall not alter the Principal
Amount, the Initial Draw Date or the Expiry Date)."
2. Removal of Disapproved Matters. Notwithstanding anything to
the contrary contained in the fourth sentence of Section 3.1(a) of the
Initial Agreement (which begins "Seller shall then have..." and
ended"..., any Disapproved Matters"), Seller and Buyer agree that
Seller shall have until 5:00 pm on November 28, 1995 to inform whether
Seller shall cause to be removed by the Closing, at Seller's sole cost
and expense, the Disapproved Matters referred to in a letter date
November 15, 1995 from Diana E. Green, on behalf of Buyer, to Joseph
M. Mock, on behalf of Seller.
3. Amended Closing Procedures. Section 5.2(b) of the Initial
Agreement is amended to provide that Buyer shall deliver the Letter of
Credit to the Escrow Holder prior to the Closing. Section 5.2(d) of
the Initial Agreement is amended to provide that Escrow Holder will
deliver the Letter of Credit to Seller on the Closing Date.
4. Selection of Arbiters. Pursuant to Section 16.5 of the
Initial Agreement and Paragraph 3(c) of the First Amendment, Seller
and Buyer agree that Edward Stern, Harry Low and Daniel Weinstein are
acceptable Arbiters.
5. Continuing Enforceability. The parties acknowledge and
agree that the Purchase Agreement remains in full force and effect,
unchanged except as expressly provided for in this Second Amendment.
This Second Amendment and the Purchase Agreement shall be read
together as on document. In the event of any conflict between the
terms of this Second Amendment and the terms of the Purchase
Agreement, the terms of this Second Amendment shall govern.
6. Governing Law. This Second Amendment shall be governed by,
and construed and enforced in accordance with, the laws of the State
of California.
7. Counterparts. This Second Amendment may be executed in any
number of counterparts, each of which shall constitute an original
hereof and all of which shall constitute one and the same document.
8. Further Modification. This Second Amendment may only be
modified pursuant to a written agreement signed by all of the parties
hereto.
9. Entire Agreement. This Second Amendment and the documents
described herein contain the entire agreement between the parties
hereto with respect to the matters described herein and supersede all
prior agreements, oral or written, between the parties hereto with
respect to such matters.
10. Headings. The headings contained in this Second Amendment
are for convenience only and shall not be deemed part of the text of
this Second Agreement.
11. Effectiveness. This Second Agreement shall become effective
when signed by both Seller and Buyer, regardless of whether Escrow
Holder signs this Second Agreement in the space provided below.
IN WITNESS WHEREOF, the parties have executed this Second
Amendment as of the date first set forth above.
SELLER: LANDSING PACIFIC FUND, INC.,
a Maryland corporation
/s/ Joseph M. Mock
By: Joseph M. Mock
Its: Executive Vice President
BUYER: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
/s/ Donald A. Lorenz
By: Donald A. Lorenz
Its: Executive Vice President
Escrow Holder acknowledges and agrees that it has reviewed and shall
comply with all provisions of the Purchase Agreement, as amended by
this Amendment, that impose obligations on it.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Its:
<PAGE>
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Third
Amendment") is dated as of December 13, 1995 by and between LANDSING
PACIFIC FUND, INC., a Maryland corporation ("Seller"), and BEDFORD
PROPERTY INVESTORS, INC., a Maryland corporation ("Buyer").
RECITALS
A. Seller and Buyer have entered into that certain Purchase and
Sale Agreement dated as of October 19, 1995 (the "Initial Agreement"),
as amended by that certain First Amendment to Purchase and Sale
Agreement dated as of November 15, 1995, Second Amendment to Purchase
and Sale Agreement dated November 21, 1995 (the "Second Amendment")
and by letter agreements dated November 17, 1995, November 20, 1995,
November 22, 1995, November 28, 1995, December 4, 1995, December 5,
1995 and December 6, 1995, respectively (collectively, the "Purchase
Agreement"). Capitalized terms not otherwise defined in this Third
Amendment shall have the meanings given to such terms in the Purchase
Agreement.
B. Seller and Buyer desire to amend the Purchase Agreement as
provided for in this Third Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Adjustment to Purchase Price. The Purchase Price as set forth
in Section 2 of the Initial Agreement and as amended by the December
6, 1995 letter agreement is hereby further amended to be Forty-Nine
Million Seven Hundred Six Thousand Seven Hundred Eighty Dollars
($49,706,780).
2. Adjustment to Cash at Closing. The cash payable at the
Closing as set forth in Section 2.2 of the Initial Agreement and as
amended by the Second Amendment is hereby further amended to be
Forty-Six Million Seven Hundred Six Thousand Seven Hundred Eighty
Dollars ($46,706,780).
3. Title Policies. At the Closing, Seller shall cause Escrow
Holder to issue to Buyer, and Escrow Holder agrees to issue to Buyer,
ALTA owner's title policies in exactly the form of the proforma title
policies attached hereto as Exhibit A. Buyer acknowledges that all
Open Title Items and all other Due Diligence Conditions have been
satisfied.
4. Form of Letter of Credit. The parties agree that the form of
letter of credit attached to this Third Amendment as Exhibit B shall
constitute the form of the Letter of Credit contemplated under the
Second Amendment.
5. Continuing Enforceability. The parties acknowledge and agree
that the Purchase Agreement remains in full force and effect,
unchanged except as expressly provided for in this Third Amendment.
This Third Amendment and the Purchase Agreement shall be read together
as one document. In the event of any conflict between the terms of
this Third Amendment and the terms of the Purchase Agreement, the
terms of this Third Amendment shall govern.
6. Governing Law. This Third Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California.
7. Counterparts. This Third Amendment may be executed in any
number of counterparts, each of which shall constitute an original
hereof and all of which shall constitute one and the same document.
8. Further Modification. This Third Amendment may only be
modified pursuant to a written agreement signed by all of the parties
hereto.
9. Entire Agreement. This Third Amendment and the documents
described herein contain the entire agreement between the parties
hereto with respect to the matters described herein and supersede all
prior agreements, oral or written, between the parties hereto with
respect to such matters.
10. Headings. The headings contained in this Third Amendment are
for convenience only and shall not be deemed part of the text of this
Third Amendment.
11. Effectiveness. This Third Amendment shall become effective
when signed by both Seller and Buyer, regardless of whether Escrow
Holder signs this Third Amendment in the space provided below.
IN WITNESS WHEREOF, the parties have executed this Third
Amendment as of the date first set forth above.
SELLER: LANDSING PACIFIC FUND, INC.
a Maryland corporation
/s/ Joseph M. Mock
By: Joseph M. Mock
Its: Executive Vice President
Date: December 14, 1995
BUYER: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
/s/ Donald A. Lorenz
By: Donald A. Lorenz
Its: Executive Vice President
Date: December 13, 1995
Escrow Holder acknowledges and agrees that it has reviewed and shall
comply with all provisions of the Purchase Agreement, as amended by
this Amendment, that impose obligations on it.
FIRST AMERICAN TITLE GUARANTY
COMPANY
/s/ Liz Treangen
By: Liz Treangen
Its: SPEO
Date: December 13, 1995
<PAGE>
EXHIBIT A
Attach list of proforma policies
<PAGE>
LANDSING PROFORMA TITLE POLICIES
Property Name Escrow No. Proforma Policy No.
301 E. Grand
So. San Francisco, CA 764966 SM-411101
342 Allerton
So. San Francisco, CA 763967 SM-411102
410 Allerton
So. San Francisco, CA 764969 SM-411104
400 Grandview
So. San Francisco, CA 764968 SM-411103
417 Eccles
So. San Francisco, CA 764970 SM-411105
Westinghouse Dr.
Fremont, CA 764972 SP501408 Proforma III
Auburn Court
Fremont, CA 764973 SP501409 Proforma III
Bryant St. Annex
Denver, CO 764978 KC00492B95 Proforma
Bryant St. Quad
Denver, CO 764979 KC00491B95 Proforma
St. Paul East
Maplewood, MN 764980 D 101917
St. Paul West
Maplewood, MN 764981 D 101918
Twin Oaks Business
Beaverton, OR 764975 774476
Twin Oaks Tech.
Beaverton, OR 764976 774477
Academy Place
Colorado Springs, CO 764977 FC01362E95 Proforma
<PAGE>
EXHIBIT B
[On Bank of America Letterhead/Form]
IRREVOCABLE DIRECT DRAW LETTER OF CREDIT
December , 1995
Letter of Credit Number
Landsing Pacific Fund, Inc.
155 Bovet Road, Suite 101
San Mateo, CA 94402
Attn:
Ladies and Gentlemen:
At the request and for the account of our customer Bedford Property
Investors, Inc., a Maryland corporation ("Bedford"), we (the "Bank")
hereby establish in your favor this Irrevocable Direct Draw Letter of
Credit Number ("Letter of Credit"). This Letter of
Credit is issued for your benefit pursuant to that certain Purchase
and Sale Agreement dated as of November 15, 1995 between you and
Bedford, as the same has been amended as of the date of issuance of
this Letter of Credit and may hereafter be amended (the "Purchase
Agreement"). Subject to the terms and conditions herein, this Letter
of Credit authorizes you to draw on us an amount not exceeding U.S.
$3,000,000 (the "Stated Amount").
Subject to the other provisions of this Letter of Credit, you or any
transferee may obtain the funds available under this Letter of Credit
by presentment to us of your sight draft and certification
substantially in the form of the Annex A hereto.
Your sight draft and certification presented with this Letter of
Credit on any Business Day (as defined herein) on or after December
14, 1996, and at or before p.m., Pacific Time on January 14,
1997 will be honored by our payment to you or your designee of the
draft amount in immediately available funds no later than 11:00 a.m.
Pacific Time on the next following Business Day. As used in this
Letter of Credit, "Business Day" means any day other than a Saturday,
Sunday, legal holiday or a day on which banking institutions in
are authorized or required by law to close.
If a demand for payment made hereunder does not, in any instance,
conform to the terms and conditions of this Letter of Credit, we shall
give you prompt notice that the purported demand was not effected in
accordance with this Letter of Credit, stating the reasons therefore
and that we are holding any documents at your disposal or are
returning them to you, as we may elect. Upon being notified that the
purported demand was not effected in conformity with this Letter of
Credit, you may attempt to correct any such nonconforming demand for
payment if and to the extent that you are entitled and able to do so.
Drafts honored by us under this Letter of Credit shall be payable from
our own funds. Each draft honored by us will reduce the Stated Amount.
This Letter of Credit shall expire on January 14, 1997.
This Letter of Credit shall be governed by and construed in accordance
with the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication Number 500,
and to the extent not inconsistent therewith, the laws of the State of
California.
Anything to the contrary in Article 45 or 48 of the Uniform Customs
and Practices notwithstanding, (i) this Letter of Credit shall remain
in full force and effect until it expires in accordance with its
terms, and (ii) this Letter of Credit is transferrable any number of
times, but only in the amount of the full unutilized balance hereof
and not in part. Transfer may be made to any person or entity whom you
or any transferee may designate, including without limitation, The
Bank of California, N.A. Transfer of the right to draw and the
available drawing under this Letter of Credit to such transferee shall
be effected by the presentation to us of this Letter of Credit
accompanied by a request designating your successor in the form of
Annex B attached hereto. Upon presentation of such request, we shall
forthwith effect a transfer of this Letter of Credit to your
designated transferee.
Very truly yours,
Bank of America, National Trust
& Savings Association
By:
<PAGE>
ANNEX A
(Payment Draft)
December , 1995
Bank of America, NT&SA
Re: Irrevocable Letter of Credit No.
Ladies and Gentlemen:
We refer to your Letter of Credit Number (the "Letter of
Credit"). Any term which is defined in the Letter of Credit shall have
the save meaning when used herein. The undersigned, a duly authorized
officer of (the "Beneficiary"), hereby certifies to you that:
1. The Beneficiary is the beneficiary under the Letter of
Credit.
2. The Beneficiary hereby makes demand for payment of Dollars
($ ).
3. The amount of the draft accompanying this Certificate does
not exceed the amount available on the date hereof to be
drawn under the Letter of Credit. We request that the
payment hereby demanded be made no later than p.m.
Pacific Time on , . Please wire
transfer the amount hereby demanded to our account no.
(insert wire instructions and account number).
IN WITNESS WHEREOF, we have executed and delivered this
Certificate as Beneficiary as of the day of , 1996.
Very truly yours,
<PAGE>
ANNEX B
(Transfer Request)
December , 1995
Bank of America, NT&SA
Re: Irrevocable Letter of Credit No.
Ladies and Gentlemen:
For value received, the undersigned beneficiary (the "Transferor")
hereby irrevocably transfers to:
(Name of Transferee and Address)
(the "Transferee") all rights of the Transferor with respect to the
above-referenced Letter of Credit, including the right to draw under
the Letter of Credit~ in the amount of the full unutilized balance
thereof.
By virtue of this transfer, the Transferee shall have the sole rights
as beneficiary of the Letter of Credit; including sole rights relating
to any past or future amendments thereof, or whether increases or
extensions or otherwise. All amendments are to be advised directly to
the Transferee without necessity of any consent of or notice to the
Transferor.
[The advise of such Letter of Credit is returned herewith, and we ask
you to endorse the transfer on the reverse thereof and to forward it
directly to the Transferee with your customary notice of transfer.)
Very truly yours,
Landsing Pacific Fund, Inc.
By:
Acknowledged by:
The Bank of California, N.A.,
as Transferee
By:
Bank of America, NT&SA,
as Issuer
By:
<PAGE>
November 15, 1995
Joseph M. Mock
Executive Vice President
Landsing Pacific Fund, Inc.
155 Bovet Road, Suite 101
San Mateo, CA 94402
Re: Landsing Pacific Fund/Bedford Property Investors
Dear Mr. Mock:
Reference is made to that certain Purchase and Sale Agreement dated
October 19, 1995 between the above referenced parties. According to
Section 3.1 of said Agreement, Disapproved Matters of title are to be
presented no later than 5:00 p.m. on November 15, 1995.
Please be advised that the ensuing fifty pages encompass all title and
survey items that Bedford Property Investors, Inc. considers to be
objectionable.
This letter shall in no way affect Bedford's right to make additional
objections to title upon receipt of a current or amended survey on any
one property.
Sincerely,
/s/ Diana E. Green
Diana E. Green
:deg
ecns.
cc: Robert S. Stein/Stein & Lubin
Donald A. Lorenz/BPI
Michael J. Kennedy/Shearman & Sterling
Liz Treangen/First American Title
<PAGE>
November 17, 1995
Donald A. Lorenz
Executive Vice President
Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, CA 94549
Re: Purchase and Sale Agreement between
Landsing Pacific Fund, Inc. and
Bedford Property Investors, Inc.
Dear Don:
I am writing to you with regard to the Purchase and Sale Agreement
between Landsing Pacific Fund, Inc. ("Seller"), as Seller, and Bedford
Property Investors, Inc. ("Buyer"), as buyer dated as of October 19,
1995, as amended by a First Amendment to Purchase and Sale Agreement
dated November 15, 1995 (the "Amendment", and together with the
Purchase and Sale Agreement, the "Purchase Agreement"). Capitalized
terms not otherwise defined in this letter shall have the meanings
given to such terms in the Purchase Agreement.
Pursuant to Paragraph 3(b) of the Amendment, Seller hereby notifies
Buyer that the condition contained in Paragraph 3(b) of the Amendment
is hereby deemed satisfied. Although Seller acknowledges that the
condition contained in Paragraph 3(b) of the Amendment has been
satisfied, the conditions contained in Paragraphs 3(a) and 3(c) of
the Amendment have not been satisfied or waived as of the date of this
letter.
Please acknowledge your receipt and acceptance of this letter by
signing a copy of this letter in the space provided below, returning a
copy bearing your signature to me by facsimile and mailing the copy
bearing your original signature to me by mail.
Very truly yours,
LANDSING PACIFIC FUND, INC.
/s/ Joseph M. Mock
Joseph M. Mock
cc: Robert S. Stein
Leon Y. Tuan
Michael J. Kennedy
RECEIVED and ACCEPTED:
By: s/ Donald A. Lorenz
Donald A. Lorenz
Executive Vice President
<PAGE>
November 20, 1995
Via Facsimile
(510) 283-5697
Robert Pester
Vice President of Acquisitions
Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, CA 94549
Re: Purchase and Sale Agreement between
Landsing Pacific Fund, Inc. and
Bedford Property Investors, Inc.
Dear Mr. Pester:
I am writing to you with regard to the Purchase and Sale Agreement
between Landsing Pacific Fund, Inc. ("Seller"), as seller, and Bedford
Property Investors, Inc. ("Buyer"), as buyer, dated as of October 19,
1995, as amended by a First Amendment to Purchase and Sale Agreement
dated November 15, 1995 (the "First Amendment") and a letter agreement
dated November 17, 1995 (collectively, the "Purchase Agreement").
Capitalized terms not otherwise defined in this letter shall have the
meanings given to such terms in the Purchase Agreement.
Paragraph 2 of the First Amendment provides that the Due Diligence
Period is to be extended until 5:00 pm on November 20, 1995 solely for
the purpose of obtaining the satisfaction and/or waiver of the New
Conditions as provided in Paragraph 3 of the First Amendment. Seller
has waived the condition contained in Paragraph 3(b) of the First
Amendment pursuant to the November letter agreement. Seller and Buyer
now desire to extend the Due Diligence Period until 5:00 pm on
November 21, 1995 solely for the purpose of obtaining the satisfaction
and/or waiver of the New Conditions as provided in Paragraphs 3(a) and
3(c) of the First Amendment.
Please indicate Buyer's agreement to extend the Due Diligence Period
as provided for in the immediately preceding sentence by signing a
copy of this letter in the space provided below, returning a copy
bearing your signature to me by facsimile and mailing the copy bearing
your original signature to me.
Please call me if you have any questions regarding this matter.
Very truly yours,
/s/ Dean Banks
Dean Banks
Chief Financial Officer
cc: Joseph M. Mock
Robert S. Stein
Leon Y. Tuan
Douglas Young
AGREED TO:
Bedford Property Investors, Inc.
By: /s/ Robert Pester
Robert Pester
Vice President of Acquisitions
<PAGE>
November 22, 1995
Mr. Joseph M. Mock
Executive Vice President
Landsing Pacific Fund, Inc.
155 Bovet Road, Suite 101
San Mateo, CA 94402
Re: Purchase and Sale Agreement Between
Landsing Pacific Fund, Inc. and
Bedford Property Investors, Inc.
Dear Joe:
I am writing to you with regard to the Purchase and Sale Agreement
between Landsing Pacific Fund, Inc. ("Seller"), and Bedford Property
Investors, Inc. ("Buyer") dated as of October 19, 1995 (the "Purchase
Agreement") as amended by a First Amendment to the Purchase Agreement
dated November 15, 1995 (the "First Amendment") and a Second Amendment
to the Purchase Agreement dated November 21, 1995 (the "Second
Amendment"). Capitalized terms not otherwise defined in this letter
shall have the meanings given such terms in the Purchase Agreement.
Pursuant to Paragraph 4(i) of the First Amendment, Buyer hereby
notifies Seller that Buyer's senior management has made a written
recommendation to Buyer's Board of Directors that they a approve the
transactions contemplated by the Purchase Agreement. Although Buyer
acknowledges that the written recommendation has been made, the
condition in Paragraph 4(ii) of the First Amendment requiring written
approval of its Board of Directors to the transaction contemplated by
the Purchase Agreement has not been satisfied or waived as of the date
of this letter.
Pursuant to Paragraph 4.7 of the Purchase Agreement, at lease thirty
(30) days before the anticipated Closing Date, Buyer was to notify
Seller in writing of any Contracts that Buyer wishes to assume as of
the Closing Date. On November 15, 1995 Buyer orally notified Seller
that Buyer does not wish to assume any Contracts as of the Closing
Date. Buyer would now like to confirm in writing that Buyer does not
wish to assume any Contracts as of the Closing Date.
Please acknowledge your receipt and acceptance of this letter by
signing a copy of this letter in the space provided below, returning a
copy bearing your signature to me by facsimile and mailing the copy
bearing your original signature to me by mail.
Very truly yours,
/s/ Donald A. Lorenz
Donald A. Lorenz
Executive Vice President/Chief Financial Officer
cc: Michael J. Kennedy
Robert S. Stein
RECEIVED AND ACCEPTED:
Landsing Pacific Fund, Inc.
By: /s/ Joseph M. Mock
Joseph M. Mock
Executive Vice President
<PAGE>
November 28, 1995
Donald A. Lorenz
Executive Vice President
Bedford Property Investors, Inc.
270 Lafayette Circle
Lafayette, CA 94549
Re: Purchase and Sale Agreement between
Landsing Pacific Fund, Inc. and
Bedford Property Investors, Inc.
Dear Don:
I am writing to you with regard to the Purchase and Sale Agreement
between Landsing Pacific Fund, Inc. ("Seller"), as seller and Bedford
Property Investors, Inc. ("Buyer"), as buyer, dated October 19, 1995
(the "Initial Agreement"), as amended by a First Amendment to Purchase
and Sale Agreement dated November 15, 1995, a Second Amendment to
Purchase and Sale Agreement dated November 21, 1995 and by letter
agreements dated November 17, 1995, November 20, 1995, and November
22, 1995, respectively (collectively, the "Purchase Agreement").
Capitalized terms not otherwise defined in this letter shall have the
meanings give to such terms in the Purchase Agreement.
Seller has received a letter form Diana E. Green, on behalf of Buyer,
dated November 15, 1995 that identifies the Disapproval Matters.
Seller, Buyer and First American Title Guarantee Company ("Escrow
Holder") have discussed the Disapproved Matters and have identified,
on the attachments to this letter, those Disapproved Matters that (i)
Seller will cause to be removed (as that terms identified in Section
3.1(a) of the Initial Agreement), at Seller's sole cost and expense,
at the Closing; (ii) Buyer will accept and take subject to at the
Closing; and (iii) Seller will not cause to be removed at the Closing
(the matters referred to in this clause (iii) being the "Open Title
Items").
Seller, Buyer and Escrow Holder acknowledge, however, that (if Buyer
has yet to receive surveys for several of the Real Properties, and
thus cannot agree as to the condition of title to those Real
Properties, and (ii) Escrow Holder has yet to decide which title
endorsements it will issue in connection with the ALTA Owner's
policies of title insurance for the Real Properties (the items
discussed in clauses (i) and (ii) being the "Open Title Items"). If
Seller, Buyer and Escrow Holder are unable to resolve the Open Title
Items to the satisfaction of each of Seller, Buyer and Escrow Holder,
as determined by each of them in their sole and absolute discretion,
by the Closing, then the Purchase Agreement shall terminate and
neither party shall have any obligations under the Purchase Agreement
except for the Surviving Obligations (excluding, however, the
obligation to pay the Buyer's Termination Fee or the Seller's
Termination Fee, as appropriate). If the Purchase Agreement should
terminate as provided in this paragraph, then neither party shall have
an obligation to pay the Buyer's Termination Fee or the Seller's
Termination Fee, as appropriate.
Buyer shall, pursuant to Section 3.1 (b) of the Initial Agreement,
have until 5:00 PM on December 5, 1995 to either terminate the
Purchase Agreement or proceed with the Closing notwithstanding the
presence of the Open Title Items. If Buyer fails to Notify Seller and
Escrow Holder in Writing by 5:00 PM on December 5, 1995 whether is
shall terminate the Purchase Agreement or proceed with a Closing, then
the Purchase Agreement shall automatically be deemed terminated.
Please call if you have any questions regarding this matter.
Very truly yours,
/s/ Joseph M. Mock
Joseph M. Mock
Executive Vice President
cc: Robert S. Stein
Leon Y. Tuan
Michael J. Kennedy
Liz Treangen
*This page 2 replaces Page 2 previously sent via facsimile and hand
delivered.
Initials JMM DAL
Seller Buyer
AGREED:
Bedford Property Investors, Inc.
By: /s/ Donald A. Lorenz
Donald A. Lorenz
Executive Vice President
Date: November 30, 1995
This letter contemplates that Escrow Holder shall, at the Closing,
remove and/or endorse over, in form acceptable to Buyer, certain
Disapproved Matters identified in this letter when Escrow Holder
issues the ALTA Owner's form policy of title insurance for each of the
Real Properties. Escrow Holder agrees that it shall remove and/or
endorse over, in form acceptable to Buyer, all such Disapproved
Matters at the Closing, subject only to the specific terms and
conditions set forth in this letter. Escrow Holder acknowledges that
Seller and Buyer will continue to work to consummate the transactions
contemplated in the Purchase Agreement in reliance on this agreement
by Escrow Holder, and that Seller and Buyer are justified in so
relying on Escrow Holder's agreement.
First American Title Guaranty Company
By: /s/ Liz Treangen
Name: Liz Treangen
Title: Special Projects Officer
Date: November 29, 1995
<PAGE>
December 4, 1995
Joseph M. Mock
Executive Vice President
Landsing Pacific Fund
155 Bovet Road
San Mateo, CA 94402
Re: Purchase and Sale Agreement between
Landsing Pacific Fund, Inc. and
Bedford Property Investors, Inc.
Dear Joe:
I am writing to you with regard to the Purchase and Sale Agreement
between Landsing Pacific Fund, Inc. ("Seller"), as seller and Bedford
Property Investors, Inc. ("Buyer"), as buyer, dated as of October 19,
1995 (the "Initial Agreement"), as amended by a First Amendment to
Purchase and Sale Agreement dated November 15, 1995, a Second
Amendment to Purchase and Sale Agreement dated November 21, 1995 and
by letter agreements dated November 17, 1995, November 20, 1995,
November 22, 1995, and November 28, 1995, respectively (collectively,
the "Purchase Agreement"). Capitalized terms not otherwise defined in
this letter shall have the meanings given to such terms in the
Purchase Agreement.
In accordance with the Purchase Agreement, Buyer hereby requests from
Seller that Buyer has an extension until 5:00 pm December 5, 1995, to
obtain the written approval of its Board of Directors to consummate
the transactions contemplated by the Purchase Agreement.
Very truly yours,
Donald A. Lorenz
Executive Vice President/Chief Financial Officer
DAL/jw
cc: Michael J. Kennedy
Robert S. Stein
Leon Y. Tuan
Liz Treangen
RECEIVED AND AGREED
Landsing Pacific Fund, Inc.
By: /s/ Joseph M. Mock Date: 12/4/95
Joseph M. Mock
Executive Vice President
<PAGE>
December 5, 1995
Joseph M. Mock
Executive Vice President
Landsing Pacific Fund
155 Bovet Road
San Mateo, CA 94402
Re: Purchase and Sale Agreement between
Landsing Pacific Fund, Inc. and
Bedford Property Investors, Inc.
Dear Joe:
I am writing to you with regard to the Purchase and Sale Agreement
between Landsing Pacific Fund, Inc. ("Seller"), as seller and Bedford
Property Investors, Inc. ("Buyer"), as buyer, dated as of October 19,
1995 (the "Initial Agreement"), as amended by a First Amendment to
Purchase and Sale Agreement dated November 15, 1995, a Second
Amendment to Purchase and Sale Agreement dated November 21, 1995 and
by letter agreements dated November 17, 1995, November 20, 1995,
November 22, 1995, and November 28, 1995, respectively (collectively,
the "Purchase Agreement"). Capitalized terms not otherwise defined in
this letter shall have the meanings given to such terms in the
Purchase Agreement.
In accordance with Purchase Agreement, Buyer hereby notifies Seller
that Buyer has obtained the written approval of its Board of Directors
to consummate the transactions contemplated by the Purchase Agreement.
Pursuant to Section 3.1(b) of the Initial Agreement, Buyer hereby
notifies Seller that Buyer is willing to proceed with the closing
subject to resolution of the Open Title Items to Buyer's satisfaction
by the Closing Date.
Very truly yours,
/s/ Donald A. Lorenz
Donald A. Lorenz
Executive Vice President/Chief Financial Officer
DAL/jw
cc: Michael J. Kennedy
Robert S. Stein
Leon Y. Tuan
Liz Treangen
RECEIVED AND AGREED
Landsing Pacific Fund, Inc.
By: /s/ Joseph M. Mock Date Dec. 5, 1995
Joseph M. Mock
Executive Vice President
<PAGE>
December 6, 1995
Mr. Donald A. Lorenz
Bedford Property Investors, Inc. ("Buyer")
270 Lafayette Circle
Lafayette, CA 94549
Ms. Liz Treangen
First American Title Guaranty Company ("Escrow Holder")
1850 Mt. Diablo Blvd.
Walnut Creek, CA 94596
Re: Nohr Plaza - Escrow #764974
Dear Don and Liz:
Pursuant to Section 1.2 of the Purchase and Sale Agreement dated
October 19, 1995 ("Agreement"), this letter will serve as written
notice that Nohr Plaza is hereby removed as one of the properties
being sold to Buyer. The Purchase Price as set forth in Section 2 of
the Agreement is changed to $49,861,780.00. Buyer shall have no
obligation to deliver at Closing the promissory note and deed of trust
described in Section 2.3 of the Agreement.
Kindly acknowledge receipt of this letter by signing and returning to
me via facsimile a copy of this letter.
Sincerely,
/s/ Joseph M. Mock
Joseph M. Mock
Executive Vice President
Receipt is hereby acknowledged:
By: /s/ Donald A. Lorenz By: /s/ Liz Treangen
Donald A. Lorenz Liz Treangen
12/6/95
cc: Robert Stein
Michael Kennedy
<PAGE>
EXHIBIT 99.1
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford December 14, 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, INC.
ANNOUNCES ACQUISITION OF
PROPERTIES FROM LANDSING PACIFIC FUND, INC.
LAFAYETTE, CA -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has completed the acquisition of the remaining real
estate assets of Landsing Pacific Fund, Inc. (AMEX:LPF), a real estate
investment trust based in San Mateo, California.
Bedford acquired fourteen properties totaling 1,037,000 rentable
square feet for approximately $50 million. The properties are
approximately 90% occupied and are located in St. Paul, MN; Denver and
Colorado Springs, CO; South San Francisco and Fremont, CA; and Portland,
OR.
"This transaction represents a positive step forward toward our
goal of becoming one of the preeminent REITS in the western United
States," said Peter B. Bedford, Chairman and Chief Executive Officer.
"In conjunction with real estate acquisitions previously announced, the
Company has acquired over $80 million of real estate in the past four
months, thus doubling both its rentable square footage and total rental
revenues."
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."
***
