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): October 6, 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 October 6, 1995, Bedford Property Investors, Inc. (the
Company ) completed the acquisition of 6600 College Boulevard which
consists of one building, a 79,316 square foot office complex located
in Overland Park, Kansas. The complex was acquired from AEW #25 Trust
for $ 6.4 million. AEW #25 Trust is an affiliate of Bed Preferred No.
1 Limited Partnership which recently purchased $50 million of the
Company's Series A Convertible Preferred Stock. The directors of the
Company who are affiliated with Bed Preferred No. 1 Limited
Partnership, however, played no role in this acquisition. The Company
used a portion of the net cash proceeds from the sale of the IBM
Building which was completed on October 2, 1995 to finance this
acquisition.
Item 7. Financial Statement and Exhibits
(a) Financial Statements
Required financial information disclosures with respect to
the acquisition of 6600 College Boulevard will be filed by
amendment to this form 8-K within (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 6600 College Boulevard will
be filed by amendment to this form 8-K within sixty (60)
days of the date of this report.
(c) Exhibits and Exhibits Index
10.1 Purchase Contract for 6600 College Boulevard Building
99.1 Press Release regarding the acquisition of the 6600
College Boulevard Building in Overland Park, Kansas
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned, hereunto duly authorized.
BEDFORD PROPERTY INVESTORS, INC.
By: /s/ Donald A. Lorenz
Donald A. Lorenz
Executive Vice President and
Chief Financial Officer
Date: October 17, 1995
<PAGE>
Exhibit 10.1
6600 COLLEGE BLVD.
CONTRACT OF PURCHASE AND SALE
This Contract of Purchase and Sale (the Contract") is entered
into by and between AEW #25 TRUST ("Seller"), and BEDFORD PROPERTY
INVESTORS, INC. ("Purchaser").
This Contract is executed upon the following terms and
provisions:
ARTICLE 1
Property Identification
Section 1.1. Seller hereby agrees to sell and convey to
Purchaser and Purchaser hereby agrees to purchase and accept from
Seller, for the Purchase Price (as hereinafter defined) and subject to
the terms and conditions hereinafter set forth, all of the following:
(a) That certain tract of land (the "Land") situated in
Overland Park, Kansas, and being more particularly described on
Exhibit "A" attached hereto and incorporated herein together
with all rights and appurtenances pertaining thereto, including
all right, title and interest of Seller in and to adjacent
streets, alleys, easements and rights of way.
(b) All improvements (the "Improvements") situated upon
the Land including, but not limited to, those certain buildings,
structures, fixtures and other improvements of every kind and
nature presently situated on, in or under or hereafter erected
or installed on the Land.
(c) All furniture, furnishings, fixtures, equipment,
machinery, heating, ventilation and air conditioning systems,
carpeting, window coverings, supplies and other items of
tangible personal property (the "Personal Property") of every
kind and nature, if any, owned by Seller and now or hereafter
installed, located or situated on or used in connection with the
operation of the Land or Improvements.
(d) All of Seller's rights in all leases and rental
agreements (the "Tenant Leases") covering any portion of the
Land or Improvements and all security and other deposits of
tenants made under the Tenant Leases held by Seller (the "Tenant
Deposits").
(e) All of Seller s rights in any service contract
connected with the operation of the Land or Improvements
designated by Purchaser, and all permits, plans, specifications,
warranties, guaranties, licenses, advertising and leasing
brochures, trade names, trademarks and other intangible property
(the "Intangible Property") connected with the operation of the
Land or Improvements. Seller agrees to terminate any management
and leasing agreements related to the Property and any service
contract not designated to be retained by Purchaser as provided
herein.
The Land and Improvements are hereinafter sometimes referred to
collectively as the "Real Property" and the Real Property, Personal
Property, Tenant Leases and Intangible Property are hereinafter
sometimes referred to collectively as the "Property".
ARTICLE 2
Consideration for Conveyance
Section 2.1 The Purchase Price (herein so called) for the
Property shall be SIX MILLION THREE HUNDRED SEVENTY FIVE THOUSAND AND
NO 100 DOLLARS ($6,375,000). The Purchase Price shall be paid in cash
at Closing.
ARTICLE 3
Title Company and Earnest Money
Section 3.1 The Title Company (herein so called) shall be First
Amnerican Title Guaranty Company, 1850 Mt. Diablo Blvd., #300, Walnut
Creek, CA 94596, Pam Nicolini E #765522 (P.B.)
Section 3.2 Purchaser shall deposit with the Title Company ONE
HUNDRED THOUSAND AND NO 100 DOLLARS ($100,000.00) (the "Earnest
Money") within five (5) business days following the final execution of
this Contract. Purchaser's failure to timely deposit the Earnest
Money shall entitle Seller to terminate this Contract. Upon receipt
of the Earnest Money, the Title Company shall deposit same in a
separate federally insured interest bearing account at a bank or banks
designated by Purchaser. All interest shall become part of the
Earnest Money. The Earnest Money shall be credited toward the
Purchase Price at Closing or, if this Contract does not close, the
Earnest Money shall be delivered in accordance with the terms hereof.
ARTICLE 4
Survey and Preliminary Title Report
Section 4.1 Within twenty (20) days after the final execution of
this Contract, Seller shall, at Seller's sole cost and expense, obtain
and cause to be furnished to Purchaser and Title Company a
recertification of a survey of the Real Property dated October 10,
1991, prepared by R. C. "Bud" Roudebush of Anderson Survey Company.
The recertified survey shall be certified to Seller, Purchaser and
Title Company and shall be updated in a manner sufficient for the
Title Company to provide survey coverage under an ALTA extended
coverage (B-1970) owner's title insurance policy (the "Title Policy").
Purchaser, at Purchaser's sole cost and expense, may request the
surveyor to perform such additional surveying services and to modify
the recertified survey to Purchaser's specifications, provided,
however, that all such work shall be done at Purchaser's sole cost and
expense.
Section 4.2 Within twenty (20) days after final execution of
this Contract, Purchaser shall obtain for itself and shall cause to
be furnished to Seller a commitment (the "Title Commitment") from the
Title Company for the Title Policy setting forth the status of title
to the Real Property and all exceptions to title which would appear in
the Title Policy, if issued, in the full amount of the Purchase Price
together with true legible copies of all instruments referred to in
the Title Commitment as effecting title to the Real Property.
Section 4.3 Purchaser shall have until thirty (30) days after
the final execution of this Contract (the "Review Period") in which to
notify Seller in writing of any objections Purchaser has to any
matters shown or referred to in the survey or in the Title Commitment.
Any matter to which Purchaser does not object shall be considered as a
"Permitted Exception" (herein so called). Seller shall have seven (7)
days after receipt of Purchaser's written objections in which to
notify Purchaser as to which objections, if any, Seller will not
correct. If Seller refuses to correct any objection, Purchaser shall
have three (3) business days after receipt of Seller's notice of same
in which to terminate this Contract by written notice to Seller
otherwise Purchaser shall be deemed to have waived its objection. If
this Contract is terminated by Purchaser as provided above, except for
Purchaser's indemnity under Section 6.3 below, the parties hereto
shall have no further obligations one to the other. If Purchaser
fails to terminate this Contract in the time and manner provided
above, all objections shall be deemed waived and shall be considered
"Permitted Exceptions".
ARTICLE 5
Additional Items to be Furnished
to Purchaser by Seller
Section 5.1 Unless previously furnished, Seller shall furnish
to Purchaser within five (5) days after the final execution of this
Contract the following:
(a) A Rent Roll (herein so called) prepared as of the
first day of August 1995 which shall reflect, as of the date
thereof, with respect to each tenant occupying space on the Land
or in the Improvements:
(i) an identification of the leased premises;
(ii) the name of the tenant(s);
(iii) the monthly rental;
(iv) the amount of any security deposit and any other
deposits and whether or not any deposit has been
previously applied to cure a tenant default;
(v) the date through which rental is paid;
(vi) the commencement and expiration date of the
lease;
(vii) all tenant expansion and renewal options;
(viii) whether the tenant has any purchase option
or right of first refusal with respect to
the Real Property; and
(ix) whether the tenant is currently in material
default.
The Rent Roll shall be certified by Seller as being true
and correct.
(b) An inventory of all of the Personal Property, if any,
which is to be conveyed by Seller to Purchaser at the Closing.
(c) A list of all service contracts or other agreements
(such as management or leasing agreements) affecting the
operation of the Real Property, together with copies of same.
(d) Copies of the most recent ad valorem tax statements on
the Land, Improvements and Personal Property.
(e) Copies of all permits, licenses, "as built plans and
specifications, certificates of occupancy and other such
Intangible Property in Seller's possession affecting the Real
Property or its operations.
(f) Operating statements of the Real Property for 1994 and
the current year to date.
(g) Copies of the Tenant Leases and all amendments
thereto, including any related brokerage agreements which
currently affect any Tenant Lease.
Section 5.2 The following provisions shall apply to Tenant
Estoppels to be furnished by Seller to Purchaser pursuant to this
Contract:
(a) Seller shall use reasonable efforts to obtain and
furnish to Purchaser at least five (5) days prior to the Closing
a Tenant Estoppel Certificate from each tenant occupying space
within the improvements. The form of such Tenant Estoppel
Certificate shall be as attached hereto as Exhibit "B" and shall
be completed by the tenant in a manner not inconsistent with the
terms of the Tenant Lease.
(b) It shall be a condition to Purchaser's obligation to
close hereunder that Purchaser has received a satisfactory
Tenant Estoppel Certificate from Sprint.
(c) If, after using reasonable efforts, Seller fails to
obtain a satisfactory Tenant Estoppel Certificate from Sprint,
it shall not be a Seller's default, but Purchaser may, as it
sole remedy in connection with such failure, either (i)
terminate this Contract, in which event the Purchaser shall
receive back its Earnest Money and the parties hereto shall have
no further obligations or liabilities one to the other, except
for the indemnities set forth in Section 6.3 below, or (ii)
waive the condition precedent in subsection (b) and close this
Contract without deduction in the Purchase Price.
Section 5.3 At or before the Closing, Seller shall furnish to
Purchaser an Updated Rent Roll (herein so called) containing the
information required on the Rent Roll referred to in Section 5.1(a)
above and dated as of a date no earlier than five (5) days prior to
the Closing. The Updated Rent Roll shall be certified by Seller as
being true and correct. If the Updated Rent Roll discloses that a
tenant identified in the Rent Roll has vacated its premises or is more
than thirty (30) days delinquent in its monthly rental payments,
Purchaser may terminate this Contract, by written notice to Seller
whereupon the Earnest Money shall be paid to Purchaser and thereafter,
except for Purchaser's indemnification obligations set forth in
Section 6.3 below, Seller and Purchaser shall have no further
obligations or liabilities to each other hereunder.
Section 5.4 No later than ten (10) days prior to the end of
the Inspection Period, Seller shall prepare and furnish to Purchaser
draft copies of all conveyance documents referred to in Section 10.2
below for review and approval by Purchaser and Purchaser's counsel.
ARTICLE 6
Inspections and Audits
Section 6.1 Purchaser, personally or through its authorized
agent or representative, shall be entitled to enter upon the Real
Property at all reasonable times, and Purchaser, or its authorized
agents or representatives, shall have the right to make such
investigations, including but not limited to, engineering studies,
soil tests, environmental studies and such other studies, inspections
and tests of the Real Property which Purchaser, in its sole
discretion, deems necessary or advisable and to examine, audit and
copy all of Seller's records and files related to Seller's ownership
and operation of the Real Property, which Purchaser, in its sole
discretion, deems necessary or advisable. All entries and all
investigations by Purchaser or its representatives shall be after
notice to Seller (which may be oral) and Seller or a representative of
Seller shall be allowed to be present during each entry or inspection.
Also, Purchaser's activities at the Real Property shall be conducted
in such a manner so as to not unreasonably interfere with the
occupancy of any tenant. Further, Seller agrees to make available to
Purchaser, or to its duly authorized agents or representatives, either
at the office of Seller's property manager in Overland Park, Kansas,
or at the offices of Aldrich, Eastman & Waltch ("AEW") in Boston,
Massachusetts, the originals of all Tenant Leases and all applicable
books and records relating to the Real Property and the operation and
maintenance thereof. Such items may be examined at all reasonable
times during normal business hours upon prior reasonable notice (which
may be oral) to Seller.
Section 6.2 During the period ending forty five (45) days after
the final execution of this Contract (the "Inspection Period"),
Purchaser shall make all audits, inspections or investigations with
respect to any or all of the aforesaid items and the Property desired
by Purchaser in the exercise of its sole discretion. If, within such
period, Purchaser shall, for any reason in Purchaser's sole
discretion, disapprove or shall be dissatisfied with any aspect of the
Property or any item examined by Purchaser, or if Purchaser decides
not to pursue the purchase of the Property for any reason whatsoever
or for no reason at all, then Purchaser shall be entitled to terminate
this Contract by giving written notice thereof to Seller and the Title
Company prior to the expiration of said Inspection Period, whereupon
the Earnest Money shall be returned to Purchaser and thereafter,
except for Purchaser's indemnification obligations set forth in
Section 6.3 below, Seller and Purchaser shall have no further
obligations or liabilities to each other hereunder. If Purchaser
fails to terminate this Contract during the Inspection Period in the
manner provided for herein, Purchaser shall be deemed conclusively to
have accepted all aspects of the Property including, but not limited
to, its physical condition and the approval of the items furnished to
Purchaser pursuant to Section 5.1 above.
Section 6.3. Purchaser shall indemnify and hold Seller harmless
from any claims, damages, causes of action or costs (including
reasonable attorneys fees) for property damage or bodily injury
resulting from the negligence or willful misconduct of Purchaser, or
its agents and representatives, in connection with the inspections and
audits conducted by Purchaser or its agents or representatives under
this Article 6 and, notwithstanding any other provision in this
Contract to the contrary, this indemnification shall survive the
termination or closing of this Contract. Further, Purchaser shall
keep confidential all data and information furnished by Seller
pursuant to this Contract and, in the event this Contract does not
close, Purchaser shall return to Seller all items furnished by Seller
to Purchaser pursuant hereto, including all copies thereof made by
Purchaser. As used herein, the term "keep confidential" shall mean
that Purchaser shall not disclose or publish the data and information
to any person or entity other than those described in Section 14.14
below.
Section 6.4. Prior to the expiration of the Inspection Period,
Purchaser shall notify Seller of all service contracts and other
agreements affecting the Real Property which Purchaser wishes to
assume at the Closing. All service contracts and other agreements
which Purchaser does not wish to assume, shall be terminated by
Seller, at Seller's sole cost, on or prior to the Closing.
ARTICLE 7
Casualty Damage, Condemnation, and other Conditions to Closing
Section 7.1 In the event all or a portion of the Improvements
should be damaged or destroyed by fire or other casualty prior to
Closing such that the cost to repair same exceeds $150,000, Purchaser
may, at Purchaser's sole option, elect to either:
(a) terminate this Contract and receive back its Earnest
Money; or
(b) close this Contract without reduction in the Purchase
Price and require Seller to assign to Purchaser at Closing all
insurance proceeds (including rental loss insurance proceeds)
payable for such damage and pay to Purchaser the amount of any
deductible under the insurance policy.
If the cost to repair the damage does not exceed $150,000,
Purchaser's option shall be limited to (b) above.
Section 7.2 In the event that any portion of the Real Property
should be condemned prior to the Closing, Purchaser may, at
Purchaser's sole option, elect either to:
(a) terminate this Contract and receive back its Earnest
Money; or
(b) close this Contract without reduction in the Purchase
Price and require Seller to assign to Purchaser at Closing all
condemnation proceeds payable as a result of such condemnation
or sale in lieu thereof.
Section 7.3 Purchaser's obligation to close escrow and purchase
the Property from Seller is subject to the following conditions which
must be satisfied or waived by Purchaser prior to Closing:
(a) Purchaser shall have approved or be deemed to have
approved all items inspected by Purchaser pursuant to Sections
6.1 and 6.2 above and the items furnished to Purchaser pursuant
to Section 5.1 above prior to the expiration of the Inspection
Period. If Purchaser fails to terminate this Contract prior to
the expiration of the Inspection Period, this Section 7.3(a)
shall be deemed conclusively to have been satisfied.
(b) Seller shall have performed (or Purchaser shall have
waived or been deemed to have waived) all of Seller's
obligations under this Contract.
(c) The Title Company shall have irrevocably committed to
issues to Purchaser the Title Policy containing no exceptions
other than the Permitted Exceptions and the standard printed
exceptions.
(d) Seller shall have delivered to Purchaser or Purchaser
shall have waived delivery of the Tenant Estoppel Certificate
for Sprint as provided in Section 5.2 above.
(e) The Sprint Tenant Lease shall be in full force.
The provisions of this Section 7.3 are for the benefit of
Purchaser and may be waived by Purchaser at Purchaser's sole
option.
ARTICLE 8
Representations and Warranties
Section 8.1 Seller makes the following representations and
warranties:
(a) Seller is a trust created and validly existing under
the laws of the Commonwealth of Massachusetts.
(b) Seller has full right, power and authority and is duly
authorized to enter into this Contract, to perform each and
every one of the covenants on its part to be performed hereunder
and to execute and deliver, and to perform its obligations under
all documents required to be executed and delivered by it
pursuant to this Contract and this Contract constitutes the
valid and binding obligation of Seller enforceable in accordance
with its terms.
(c) No approval, consent, order or authorization of, or
designation, registration or declaration with, any of the United
States, the Commonwealth of Massachusetts or the State of
Kansas, any department, board, agency, office, commission or
other subdivisions thereof, or any official thereof (each a
"Governmental Authority") is required in connection with the
valid execution and delivery of, and performance of the
covenants of, this Contract by Seller.
(d) The execution of this Contract by Seller and Seller's
observance and performance of all of its respective covenants
and obligations hereunder do not contravene any judgment, order
or provision of the law or any agreement binding upon Seller.
(e) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986.
(f) There has not been filed by or, to Seller's actual
knowledge, against Seller any petition in bankruptcy or other
insolvency proceedings or proceedings for reorganization of
Seller or for the appointment of a receiver or trustee for all
or any substantial part of Seller's property, nor has Seller
made any assignment for the benefit of its creditors or filed a
petition for an arrangement, or entered into an arrangement with
creditors or otherwise admitted in writing its inability to pay
their debts as they become due.
(g) To Seller's actual knowledge, there is presently no
claim, litigation, proceeding or governmental investigation
pending or threatened against or relating to the Property or the
transactions contemplated hereby. Seller shall give Purchaser
immediate notice of any such claim, litigation proceeding or
investigation which becomes known to it prior to the Closing
Date.
(h) No notice of violation of any applicable zoning
regulation or ordinance or other law, order, ordinance, permit,
rule, regulation or requirement, or any covenants, conditions or
restrictions affecting or relating to the use, operation or
occupancy of the Property has been received by Seller from any
governmental agency having jurisdiction or from any other person
entitled to enforce the same.
(i) As of the date of this Contract, Seller has not
received any notice that Seller and/or the Property are in
violation of any federal, state or local law, ordinance or
regulation relating to industrial hygiene, soil, water, or
environmental conditions on, under or about the Real Property
including, but not limited to, the Environmental Requirements
(defined below).
(j) During the period that Seller has owned the Real
Property, Seller has not received any notice that there has been
any use, presence, disposal, storage, generation, release, or
threatened release (as those terms are used in the
Environmental Requirements, and hereinafter collectively
referred to as "Use") of Hazardous Materials (defined below) on,
from or under the Real Property, in violation of the
Environmental Requirements, except as previously disclosed by
Seller to Purchaser in writing or in any reports furnished to
Purchaser by Seller.
(k) Seller has no actual knowledge of any Use of Hazardous
Materials, on, from or under the Real Property which may have
occurred prior to Seller taking title to the Real Property in
violation of any Environmental Requirements, except as
previously disclosed by Seller to Purchaser in writing or in any
reports furnished to Purchaser by Seller.
(l) During the period that Seller has owned the Real
Property, there has been no enforcement action or litigation
brought or threatened against Seller or the Real Property, nor
any settlements reached by or with any party or parties alleging
the Use of any Hazardous Materials on, from or under the Real
Property, except as previously disclosed by Seller to Purchaser
in writing or in any reports furnished to Purchaser by Seller.
(m) Seller has received no notice of any pending or
contemplated condemnation of the Real Property or any part
thereof.
(n) Other than the Tenant Leases, service contracts and
other agreements being assumed by Purchaser, at Closing there
shall be no outstanding contracts made by Seller for any
improvements to the Real Property which have not been fully paid
for by Seller.
(o) Except as provided in the Tenant Leases and/or the
Changes (defined below) delivered to Purchaser by Seller
pursuant to Section 8.3 below, the Tenant Leases are in full
force and effect and there are no other agreements,
modifications, extensions, supplements or other amendments of
any kind whatsoever with respect to the Tenant Leases. To
Seller's actual knowledge, there are no defaults under any of
the Tenant Leases by either Seller or any tenant thereunder
other than as shown on the Rent Roll or the Updated Rent Roll.
(p) To Seller's actual knowledge, all of its records and
files pertaining to its ownership and operation of the Real
Property as referenced in Section 6.1 above are maintained
either at the office of Seller's property manager in Overland
Park, Kansas, or at the offices of AEW in Boston, Massachusetts.
(q) Seller's insurance coverage on the Real Property
includes rental loss insurance in amounts equal to the actual
rental loss, including loss of reimbursements for common area
maintenance expenses, taxes and insurance premiums.
As used in this Agreement, the words "to the best knowledge and
belief of Seller", "to Seller's actual knowledge", "to Seller's
knowledge" or similar language shall mean the actual knowledge of
either Steve Centrella ("Centrella"), John Hyslip ("Hyslip"), or Julie
Schwab ("Schwab"), who are the Seller's asset managers for the
Property. Centrella, Hyslip or Schwab's actual knowledge shall mean
that no information has come to the attention of Centrella, Hyslip or
Schwab after having made reasonable inquiry of the local property
manager of the Real Property that would give Centrella, Hyslip and
Schwab any conscious awareness of the inaccuracy of the statement
limited by such terms or similar language. Seller hereby represents
and warrants that Centrella, Hyslip and Schwab are the employees of
Seller's agent who are currently acting as Seller's asset managers of
the Real Property and no other person who is currently employed by
Seller's agent has had any such responsibility during Seller's
ownership.
If any of the representations and warranties set forth
hereinabove are determined at any time on or before the date of
Closing to be untrue or unfulfilled, then Purchaser, as its sole and
exclusive remedy, may terminate this Contract by providing written
notice of such termination to Seller, in which event the Earnest Money
shall be returned to Purchaser and Seller shall pay to Purchaser its
actual out-of-pocket expenses incurred in connection with the conduct
of its due diligence in connection with this transaction, not to
exceed in the aggregate the sum of $32,000. Thereafter, Seller nor
Purchaser shall have any further liabilities or obligations unto each
other except for Purchaser's obligations under Section 6.3 above.
Seller covenants and agrees to notify Purchaser of any material change
in the representations and warranties set forth herein which occur
prior to Closing.
Section 8.2. Purchaser makes the following representations and
warranties to Seller:
(a) Purchaser is duly formed and validly existing. The
execution and delivery of this Contract have been duly
authorized to the extent required by Purchaser's organizational
documents and no further action on the part of Purchaser is
necessary in order to permit Purchaser to enter into this
Contract. This Contract constitutes the valid and binding
obligation of Purchaser enforceable in accordance with its
terms.
(b) Purchaser has full right, power and authority and is
duly authorized to enter into this Contract, to perform each and
every one of the covenants on its part to be performed hereunder
and to execute and deliver and to perform its obligations under
all documents required to be executed and delivered by Purchaser
pursuant to this Contract.
(c) The execution of this Contract by Purchaser and
Purchaser's observance and performance of all of its covenants
and obligations hereunder do not contravene any judgment, order
or provision of the law or any agreement binding upon the
Purchaser and, when executed and delivered by Purchaser, the
documents and instruments required to be executed and delivered
by Purchaser pursuant to this Contract shall constitute valid
and binding obligations of the Purchaser in accordance with
their respective terms.
(d) There has not been filed by, or to Purchaser's actual
knowledge against Purchaser, any petition in bankruptcy or other
insolvency proceedings or proceedings for reorganization of
Purchaser or for the appointment of a receiver or trustee for
all or any substantial part of Purchaser's property, nor has
Purchaser made any assignment for the benefit of its creditors
or filed a petition for an arrangement, or entered into an
arrangement, with creditors or otherwise admitted in writing its
inability to pay its debts as they become due.
(e) To Purchaser's actual knowledge, there is no
litigation or proceeding pending or threatened against Purchaser
which would affect Purchaser entering into this Contract or
completing the transactions contemplated hereunder.
(f) Purchaser has no actual knowledge of any facts or
circumstances which, if known to Seller, would make Seller's
representations and warranties to Purchaser as set forth in
Section 8.1 above incorrect, untrue or misleading in any manner.
(g) Purchaser has never had and does not currently have
the authority to appoint or terminate Aldrich Eastman Waltch
("AEW") as a pension fund manager for Brown & Williams Master
Pension Trust ("Batus") or to negotiate the terms of AEW's
management agreement, including any renewal or modification
thereof, with Batus.
(h) Purchaser has not relied on and will not rely on any
representation or warranty of Seller in purchasing the Property
other than those specifically set forth in this Contract.
As used in this Contract, the words "to the best knowledge and
belief of Purchaser," "to Purchaser's actual knowledge," "to
Purchaser's knowledge," or similar language shall mean the actual
knowledge of Robert Pester, Vice President of Purchaser. Robert
Pester's "actual knowledge" shall mean that no information has come
to the attention of Robert Pester after having made reasonable inquiry
of the officers of Purchaser that would give Robert Pester any
conscious awareness of the inaccuracy of the statement limited by such
terms or similar lanaguage. Purchaser hereby represents and warrants
that Robert Pester is the officer of Purchaser who is currently in
charge of the acquisition of the Property pursuant to this Contract.
Section 8.3. The following provisions shall govern the
operation of the Real Property during the pendency of this Contract:
(a) Seller shall cause to be maintained in force all fire
and extended coverage insurance (including rental loss
insurance) upon the Real Property, and public liability
insurance with respect to damage or injury to person or property
occurring on the Real Property in at least such amounts as are
maintained by Seller on the date hereof.
(b) Seller shall furnish to Purchaser copies of any new
Tenant Lease or Change (defined below) entered into on or before
five (5) days prior to the expiration of the Inspection Period,
and if Purchaser does not approve same, Purchaser may terminate
this Contract by written notice to Seller prior to the
expiration of the Inspection Period. If Purchaser fails to
terminate this Contract by the end of the Inspection Period, any
new Tenant Lease or Change entered into by Seller prior to five
(5) days prior to the end of the Inspection Period shall be
deemed approved by Purchaser. Beginning five (5) days prior to
the end of the Inspection Period and continuing through Closing,
Seller shall not enter into any new Tenant Lease or modify,
extend, supplement, replace, terminate, assign or otherwise
change or amend any existing Tenant Lease (collectively, a
"Change") without the prior written consent of Purchaser which
shall not be unreasonably withheld or delayed. Failure to
respond in writing within three (3) business days following
written request therefor from Seller shall be deemed
conclusively to constitute Purchaser's approval of the requested
Change. In the event Purchaser timely notifies Seller of its
disapproval of any requested new Tenant Lease or Change, the
reason for such disapproval shall be stated in sufficient detail
to allow Seller the ability to satisfy Purchaser's objections,
if possible. All tenant improvements, leasing commissions and
other costs to the landlord associated with any new Tenant Lease
or Change executed between the date of this Contract and the
Closing shall be prorated at Closing between Seller and
Purchaser based on the percentage of time covered by the new
Tenant Lease or Change occurring before and after Closing. For
example, if the total cost for tenant improvements, leasing
commission and other cost to the landlord associated with any
new Tenant Lease or Change totals $100,000 and, if the period
covered by such new Tenant Lease or change was 60 months and 2
months lapsed prior to Closing and 58 months remained after
Closing, Seller would be responsible for 1/30 of the cost and
Purchaser would be responsible for 29/30 of the cost; thus
making Seller's cost $3,333 and Purchaser's cost $96,667.
Notwithstanding the above, Seller shall be responsible for all
tenant improvements, leasing commissions and other landlord
costs associated with the recent amendment to the Sprint Tenant
Lease entered into prior to the date of this Contract and all
such amounts shall be paid prior to Closing or escrowed at the
Closing.
ARTICLE 9
Purchaser's Risks
Section 9.1 The parties hereto agree and acknowledge that
Purchaser is being furnished access to the Property during the
Inspection Period for the purpose of assessing its condition and
allowing Purchaser to make Purchaser's own determination as to whether
or not Purchaser wishes to purchase the Property. Therefore, it is
agreed and acknowledged that the Property shall be conveyed and
accepted "AS IS". "AS IS" means, without limitation: AS IS physical
condition (both as to property defects seen and unseen and conditions
natural or artificial), AS IS with respect to title to the Property
(as disclosed by the Title Commitment and survey and subject to the
Permitted Exceptions), AS IS with respect to all documents,
agreements, restrictions, leases and covenants to which the Property
is subject which have been disclosed by Seller to Purchaser and AS IS
with respect to all laws, ordinances, rules and regulations to which
the Property is subject under any applicable government or regulatory
jurisdiction. In connection with the purchase of the Property,
Purchaser is not relying on any representation or warranty by Seller
except those set forth in Section 8.1 hereof; and Purchaser, itself or
through its agents, shall make such investigations of the Property,
market conditions, laws and other aspects of the Property as Purchaser
deems necessary. Seller and Purchaser agree that the Property shall
be sold "AS IS, WHERE IS, WITH ALL FAULTS" with no right of setoff or
reduction in the Purchase Price.
Section 9.2. As a part of the items to be furnished to
Purchaser pursuant to this Contract, Seller may provide to Purchaser
copies of reports prepared by parties other than Seller evidencing the
results of an environmental assessment performed on Seller's or
Seller's predecessor's behalf for the purpose of assessing the
environmental issues concerning the Real Property (the "Environmental
Assessment Reports"). Purchaser understands and acknowledges that any
Environmental Assessment Report which may be provided by Seller is
being provided without representation or warranty as to the
completeness or accuracy of the facts, presumptions and conclusions
contained therein. Purchaser has been expressly advised by Seller to
conduct an independent investigation and inspection of the Real
Property utilizing experts as Purchaser deems to be necessary for an
independent assessment of all environmental liability and risk with
respect to the Real Property. Purchaser further acknowledges and
agrees that, having been given the opportunity to inspect the Real
Property, Purchaser is relying solely on its own investigation of the
Real Property and not on any information provided or to be provided by
Seller except as may be a part of the representations and warranties
set forth in Section 8.1 above and hereby waives all claims against
Seller (including, but not limited to, any right or claim of
contribution) arising from or related to any "Hazardous Materials" (as
defined below) on the Real Property except for claims resulting
directly from a misrepresentation or breach of warranty set forth in
Section 8.1 above. For purposes of this Contract, the term "Hazardous
Materials" shall mean any substance which is or contains: (i) any
"hazardous substance" as now or hereafter defined in Section 101(14)
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.)
("CERCLA") or any regulations promulgated under CERCLA; (ii) any
"hazardous waste" as now or hereafter defined in the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.)
("RCRA") or regulations promulgated under RCRA; (iii) any substance
regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601
et. seq.); (iv) gasoline, diesel fuel or other petroleum hydrocarbons;
(v) asbestos and asbestos containing materials, in any form, whether
friable or non friable; (vi) polychlorinated biphenyls; (vii) radon
gas; and (viii) any additional substances or materials which are now
or hereafter classified or considered to be hazardous or toxic under
"Environmental Requirements" (as hereinafter defined) or the common
law, or any other applicable laws related to the Real Property.
Hazardous Materials shall include, without limitation, any substance,
the presence of which on the Real Property (A) requires reporting,
investigation or remediation under Environmental Requirements; (B)
causes or threatens to cause a nuisance on the Real Property or
adjacent property or poses or threatens to pose a hazard to the health
or safety of persons on the Real Property or adjacent property; or (C)
which, if emanated or migrated from the Real Property, could
constitute a trespass.
For purposes of this Contract, the term "Environmental
Requirements" shall mean all laws, ordinances, statutes, codes, rules,
regulations, agreements, judgments, orders and decrees now or
hereafter enacted, promulgated or amended, of the United States, the
states, the counties, the cities or any other political subdivisions
in which the Real Property is located and any other political
subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Real Property, the Real Property or the use of the
Real Property relating to pollution, the protection or regulation of
human health, natural resources or the environment, or the emission,
discharge, release or threatened release of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or waste or
Hazardous Materials into the environment (including, without
limitation, ambient air, surface water, ground water or land or soil).
ARTICLE 10
Closing
Section 10.1 The Closing hereunder shall take place at the
offices of the Title Company at 10:00 A.M. on or before October 27,
1995 (the "Closing Date") upon five (5) days written notice from
Purchaser to Seller.
Section 10.2 At the Closing, Seller shall deliver or cause to
be delivered to Purchaser the following:
(a) Special Warranty Deed (the "Deed") executed and
acknowledged by Seller and conveying the Real Property to
Purchaser subject to no exceptions other than the Permitted
Exceptions.
(b) Bill of Sale (the "Bill of Sale") executed by Seller
assigning and transferring to Purchaser all of the Personal
Property.
(c) All Tenant Leases (with amendments and modifications
thereto) together with an assignment (the "Assignment of
Leases") executed by Seller assigning to Purchaser all of the
lessor's or landlord's interest in the Tenant Leases and the
Tenant Deposits.
(d) Blanket Assignment (the "Assignment") executed by
Seller assigning to Purchaser all of Seller's rights in the
Intangible Property (the Intangible Property to be assigned to
Purchaser shall not include any insurance policy covering the
Property; it being understood that Purchaser shall obtain its
own insurance).
(e) All keys in Seller's possession to all locks on the
Real Property and all documents in the possession of Seller and
Seller's agent pertaining to tenants of the Real Property
including, but not by way of limitation, all applications,
correspondence and credit reports relating to each such tenant.
(f) A Non Foreign Person Affidavit ("Affidavit") for
Seller sworn to by a trustee of Seller as required by Section
1445 of the Internal Revenue Code.
(g) Such evidence or documents as may be reasonably
required by the Title Company evidencing the status and capacity
of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in
connection with the sale of the Property.
(h) The Title Policy in the amount of the Purchase Price
insuring good and indefeasible fee simple title to the Real
Property in the Purchaser, subject only to the Permitted
Exceptions and the printed exceptions.
Section 10.3 At the Closing, Purchaser shall deliver to Seller
the following items:
(a) The Purchase Price in cash.
(b) An executed counterpart of the Assignment of Leases
evidencing its assumption of the landlord's or lessor's
obligations (except for accrued obligations of the landlord or
lessor as of the Closing Date, which shall be and remain the
obligation of Seller) under the Tenant Leases for all periods
after the Closing Date.
(c) An executed counterpart of the Assignment evidencing
its assumption of Seller's unaccrued obligations under any
service contracts and other agreements (to the extent Purchaser
elects to take assignment thereof), warranties, guaranties
deposits, bonds, permits, plans, specifications and other
Intangible Property assigned to Purchaser for periods after the
Closing Date.
(d) Such evidence or documents as may reasonably be
required by the Title Company evidencing the status and capacity
of Purchaser and the authority of the person or persons who are
executing the various documents on behalf of Purchaser in
connection with the purchase of the Property.
Section 10.4 At Closing, the following items shall be adjusted
or prorated between Seller and Purchaser:
(a) Seller shall pay to Purchaser, in cash, the amount of
any rents or other amounts paid to the Seller by tenants of the
Real Property for the Closing Date and thereafter. Any rents or
other amounts subsequently collected by Purchaser which are
owing to the Seller by tenants of the Real Property for periods
prior to the Closing Date shall be forthwith paid by Purchaser
to Seller, provided however, that Purchaser may apply all such
amounts first to monies owed to Purchaser for periods following
the Closing Date. Also, Seller shall have the right to collect
such amounts directly from the tenants at Seller's sole expense,
but Seller may not institute any action for ejectment or
unlawful detainer against any tenant.
(b) Seller shall pay to Purchaser, in cash at Closing, the
amount of any Tenant Deposits held by Seller pursuant to
provisions of any Tenant Lease and not previously applied to
rent or other amounts due by tenant for periods prior to
Closing.
(c) Ad valorem taxes shall be prorated as of the Closing
Date and the Seller shall pay to Purchaser in cash at Closing
Seller's pro rata share of same and Purchaser shall assume all
liability for ad valorem taxes assessed against the Property for
the calendar year in which the Closing occurs. If, at the time
of Closing, the tax rate has not yet been fixed, ad valorem
taxes shall be prorated based upon the tax rate established for
the previous tax year applied to the latest assessed value;
provided, however, that Seller and Purchaser agree that to the
extent the actual taxes for the current year differ from the
amount pro rated at Closing, the parties will make all necessary
adjustments by appropriate payments between themselves following
the Closing, and this provision shall survive the Closing.
(d) All other income and ordinary operating expenses for
or pertaining to the Property, including but not limited to
public utility charges, maintenance, service charges and all
other normal operating charges of the Property shall be prorated
at the Closing effective as of the Closing Date. In this
regard, all such expenses for the Closing Date shall be borne by
Purchaser.
Section 10.5 Possession of the Property shall be delivered to
Purchaser by Seller at the Closing, subject only to the rights of
tenants under the Tenant Leases or other occupancy agreements. Seller
and Purchaser covenant and agree to execute, at Closing, a written
notice of the acquisition of the Property by Purchaser, in sufficient
copies for transmittal to all tenants affected by the sale and
purchase of the Property and properly addressed to all such tenants.
Such notice shall be prepared by Purchaser and approved by Seller,
notifying the tenants of the sale and transfer and containing
appropriate instructions relating to the payment of future rentals,
the giving of future notices, and other matters reasonably required by
Purchaser or required by law. Unless a different procedure is
required by applicable law, in which event such laws shall be
controlling, Purchaser agrees to transmit or otherwise deliver such
letters to the tenants promptly after the Closing in a manner
reasonably acceptable to Seller.
Section 10.6 Seller shall pay all costs for the recertification
of the survey as contemplated by Section 4.1 above; $3,690 toward the
premiums for the Title Policy; and all transfer taxes and/or
documentary stamp charges. Purchaser shall pay all costs for
additional surveying services which may be requested by Purchaser as
contemplated by Section 4.1 above; and all premiums over $3,690 for
the Title Policy. The parties shall share equally all escrow fees
charged by the Title Company. Each party shall bear its own legal
expenses. All other costs and expenses connected with the Closing of
the transaction contemplated by this Contract shall be borne by Seller
and Purchaser in the manner in which such costs and expenses are
customarily allocated between the parties at closings of Real Property
similar to the Real Property in the area in which the Real Property is
located.
Section 10.7 The parties hereto acknowledge that the Tenant
Leases require the tenants to pay a certain portion of operating
expenses (including ad valorem taxes) of the Real Property in excess
of certain base amounts which vary from Tenant Lease to Tenant Lease.
Also, the Tenant Leases provide for the landlord to estimate those
expenses on an annual basis and collect on a monthly basis 1/12th of
those estimated expenses. The Tenant Leases provide for a
reconciliation of those expenses after the expiration of each calendar
year. The parties hereto agree that the Purchaser will, as soon as
practical after the end of the calendar year in which the Closing Date
occurs, reconcile with each tenant the additional amount of operating
expenses owned by the tenant or the refund of any excess estimates
paid by those tenants and upon final reconciliation of same, the
parties hereto shall adjust and settle between themselves the overall
additional amounts owed or the overall refunds due based pro rata on
the period of time during the year of Closing during which each party
hereto owned the Property and giving effect to the ad valorem tax
proration made at the Closing and the estimated expenses collected by
each party during its ownership period. Final settlement and
adjustment hereunder shall be done within thirty (30) days after final
reconciliation is made by the Purchaser with the tenants.
ARTICLE 11
Real Estate Commission
Section 11.1 Each party represents and warrants to the other
that it has dealt with no real estate brokers, agents, finders or
similar persons in connection with the negotiation and execution of
this Contract or the transactions contemplated hereby, except CB
Commercial Real Estate Group, Inc. ("Principal Agent") and Block &
Company, Inc. ("Cooperating Agent"). If this Contract closes, Seller
will pay to Principal Agent and Cooperating Agent a real estate
commission per the terms of a separate commission agreement between
Seller and Principal Agent and Principal Agent and Cooperating Agent.
Seller shall indemnify Purchaser against any loss, cost, damage or
expense including reasonable attorneys' fees and court costs suffered
or incurred by Purchaser as a result of any broker, agent, finder or
similar person claiming by, through or under Seller. Purchaser agrees
to indemnify Seller against loss, cost, damage or expense including
reasonable attorneys' fees and court costs suffered by or incurred by
Seller as a result of any broker, agent, finder or similar person
claiming by or through or under Purchaser other than the sums owed by
Seller to Principal Agent and Cooperating Agent per the commission
agreement between Principal Agent and Seller and Principal Agent and
Cooperating Agent. The indemnities in this Section 11.1 shall survive
the Closing.
ARTICLE 12
Remedies of Default
Section 12.1 In the event the sale of the Property is not
consummated through default on the part of Purchaser, then the Earnest
Money shall be paid to Seller by the Title Company as liquidated
damages for Purchaser's default and as Seller's sole remedy hereunder,
at law or in equity, for Purchaser's failure to close. Such amount is
agreed upon by and between Seller and Purchaser as liquidated damages,
due to the difficulty and inconvenience of ascertaining and measuring
actual damages, and the uncertainty thereof; provided, however,
nothing contained herein shall limit Seller's right to recover its
actual damages for bodily injuries or property damage resulting from a
breach of Purchaser's indemnification obligations under Section 6.3
above.
Section 12.2 In the event Seller defaults hereunder, Purchaser
may, at Purchaser's option and as Purchaser's sole remedy either:
(i) terminate this Contract by giving written notice thereof to Seller
or (ii) enforce specific performance hereunder. If Purchaser elects
option (i) above, Purchaser shall be entitled to the immediate return
of its Earnest Money and shall in addition, be entitled to recover
from Seller the sum of $100,000, which amount is agreed upon by and
between Seller and Purchaser as liquidated damages, due to the
difficulty and inconvenience of ascertaining and measuring actual
damages and the uncertainty thereof, plus its actual out-of-pocket
expenses incurred in connection with the conduct of its due diligence
in connection with this transaction not to exceed in the aggregate the
sum of $32,000. Nothing herein shall limit Purchaser's right to sue
Seller for any misrepresentation or breach of warranty contained in
this Contract which Purchaser discovers after the Closing Date,
provided such claim and the amount of recovery shall be limited by the
provisions of Section 14.12 below.
ARTICLE 13
Exculpation of Trust
This Contract is executed by the undersigned, not individually
but as a trustee of AEW #25 Trust created under a Declaration of
Trust, in the exercise of the power and authority conferred upon and
vested in the undersigned as trustee. It is expressly understood and
agreed by every party now or hereafter claiming any right or interest
herein or hereunder that nothing contained herein shall be construed
as creating any personal liability or obligation upon the undersigned
trustee. This Contract is executed by the undersigned trustee under
and by virtue of the powers contained in the Declaration of Trust, and
each person dealing with any trustee of the Trust expressly agrees to
look solely to the Trust property and the Trust beneficiary for
satisfaction of any obligation set forth herein and agrees that the
trustees of the Trust shall have no personal liability hereunder.
Further, Brown & Williams Master Pension Trust ("Batus") as sole
beneficiary of the Trust, agrees that Purchaser may look to Batus in
satisfaction of any damages incurred by Purchaser as a result of any
misrepresentation or breach of warranty by Seller under Section 8.1
above, up to the lesser of (i) Purchaser's actual damages (exclusive
of any consequential or punitive damages) or (ii) $800,000, provided
Purchaser has otherwise met all of the prerequisites set forth in
Section 14.12 below.
ARTICLE 14
Miscellaneous
Section 14.1 All notices, demands, or other communications of
any type (herein collectively referred to as "Notices") given by
Seller to Purchaser or by Purchaser to Seller, whether required by
this Contract or in any way related to the transaction contracted for
herein, shall be in writing and delivered to the party to whom the
notice is directed, either in person or by United States Mail, as a
Registered or Certified item, Return Receipt Requested. Notices
delivered other than by mail shall be effective when received.
Notices delivered by mail shall be effective when deposited in a Post
Office or other depository under the care or custody of the United
States Postal Service, enclosed in a wrapper with proper postage
affixed, addressed as follows:
if to the Seller: AEW #25 Trust
c o Aldrich, Eastman & Waltch, L.P.
225 Franklin Street
Boston, Massachusetts 02110
Attention: J. Grant Monahon and Steve Centrella
with copy to: Robert L. Trimble
Andrews & Kurth L.L.P.
4400 Thanksgiving Tower
Dallas, Texas 75201
if to the Purchaser: Bedford Property Investors, Inc
270 Lafayette Circle
Lafayette, California 94549
Attention: Robert Pester
with copy to: Matthew P. Shippey
1320 North Street #23
Santa Rosa, California 95404
Either party hereto may change the address for notice specified
above by giving the other party ten (10) days advance written notice
of such change of address.
Section 14.2 For purposes of determining the time for
performance of various obligations under this Contract, the "effective
date of this Contract" or the "date of final execution of this
Contract" shall be the date the Title Company acknowledges receipt of
this Contract executed by Seller and Purchaser.
Section 14.3 Time is of the essence of this Contract.
Section 14.4 This Contract may not be assigned by Purchaser
without the prior written consent of Seller, which will not be
unreasonably withheld.
Section 14.5 Where required for proper interpretation, words in
the singular shall include the plural; the masculine gender shall
include the neuter and the feminine and vice versa.
Section 14.6 This Contract may not be modified or amended,
except by an agreement in writing signed by Seller and Purchaser. The
parties may waive any of the conditions contained herein or any of the
obligations of the other party hereunder, but any such waiver shall be
effective only if in writing and signed by the party waiving such
conditions or obligations.
Section 14.7 Each person executing this Contract warrants and
represents that he is fully authorized to do so.
Section 14.8 In the event either party hereto files a suit to
enforce this Contract or any provisions contained herein, the party
prevailing in such action shall be entitled to recover, in addition to
all other remedies or damages, reasonable attorneys' fees and court
costs incurred in such suit.
Section 14.9 The descriptive headings of the several Articles,
Sections and paragraphs contained in this Contract are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 14.10 This Contract constitutes the entire agreement
among the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings
of the parties in connection therewith. No representation, warranty,
covenant, agreement or condition not expressed in this Contract shall
be binding upon the parties hereto or shall affect or be effective to
interpret, change or restrict the provisions of this Contract.
Section 14.11 Numerous copies of this Contract have been
executed by the parties hereto. Each such executed copy shall have
the full force and effect of an original executed instrument.
Section 14.12 Except as set forth in Sections 6.3, 8.1, 8.2,
10.4(a) and (d), 10.7 and 11.1, no representations or warranties shall
survive the Closing of this Contract. Notwithstanding anything
contained elsewhere herein to the contrary, any claim by Purchaser
against Seller for damages resulting from any misrepresentation or
breach of warranty contained in this Contract, the Rent Roll, the
Updated Rent Roll or any Direct Representation Certificate must be
made in writing to Seller no later than one year after the Closing
Date or such claim shall be conclusively deemed to have been waived by
Purchaser. Further, the amount of damages recoverable by Purchaser
from Seller as a result of any such misrepresentation or breach of
warranty shall be limited to the lesser of (i) Purchaser's actual
damages (exclusive of any consequential or punitive damages) or (ii)
$800,000. Purchaser acknowledges and agrees that the Seller's
representations and warranties referred to above were given in
reliance and conditioned on the time and monetary limits set forth in
this Section 14.12 and Purchaser acknowledges that these time limits
and monetary limits are reasonable and an integral part of those
representations and warranties.
Section 14.13 If any date herein set forth for the performance
of any obligations by Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should be on a Saturday,
Sunday or legal holiday, the compliance with such obligations or
delivery shall be deemed acceptable on the next business day following
such Saturday, Sunday or legal holiday. As used here, the term "legal
holiday" means any state or federal holiday for which financial
institutions or post offices are generally closed for observance
thereof, and the term "business day" means any calendar day other than
Saturday, Sunday or a legal holiday.
Section 14.14 Without the prior written consent of the other,
Seller and Purchaser each agree not to disclose or publish the
existence or terms of this Contract or any negotiations or information
in connection herewith to any person or entity other than their
respective officers, directors, partners, lenders, agents, employees,
attorneys, accountants, contractors and other persons involved or
prospectively involved in the negotiation and consummation of this
transaction. Nothing contained in this section shall be deemed to
prohibit Purchaser from contacting tenants and or vendors connected
with the Property during the normal course of Purchaser's due
diligence.
EXECUTED on this, the 23rd day of August 1995 by Purchaser.
BEDFORD PROPERTY INVESTORS, INC.
By: /s/ Bob Pester
Name: Bob Pester
Title: Vice President
EXECUTED on this, the 24th day of August 1995 by Seller.
AEW #25 TRUST
By: /s/ J. Grant Monahon
Name: J. Grant Monahom
Title: Trustee
RECEIPT BY THE TITLE COMPANY
This Contract, fully executed by Seller and Purchaser, has been
received by the Title Company this 6th day of September 1995.
First American Title Guarantee Company
By: /s/ Rebecca James for Pamela Nicolini
Its: Escrow Officer / Special Projects Office
<PAGE>
EXHIBIT "A"
[Property Description]
A tract of land in the Southwest 1/4 of Section 8, Township 13, Range
25, in the City of Overland Park, Johnson County, Kansas, more
particularly described as follows: Commencing at the Southeast corner
of said Southwest 1/4; thence South 87 degrees 53' 48" West along the
South line of said Southwest 1/4, a distance of 727.83 feet; thence
North 2 degrees 10' 50" West, a distance of 55 feet, to a point on the
North right-of-way line of 111th Street, as now established, said
point being the true point of beginning of said tract; thence South 87
degrees 53' 48" West along a line parallel to the South line of said
Southwest 1/4, a distance of 534.92 feet; thence North 13 degrees 41'
West, a distance of 168.39 feet; thence North 2 degrees 02; 04" West,
a distance of 144.50 feet, to a point of curvature; thence Northerly,
Northeasterly and Easterly, along a curve to the right, having a
radius of 220 feet and a central angle of 90 degrees a distance of
345.58 feet; to a point of tangency; thence North 87 degrees 57 ' 56"
East, a distance of 347.57 feet; thence South 2 degrees 10' 50" East,
a distance of 528.79 feet, to the point of beginning.
together with a non-exclusive appurtenant easement for ingress and
egress over the following described land:
The West 30 feet of the following described tract of land: A tract of
land in the Southwest 1/4 of Section 8, Township 13, Range 25, in the
City of Overland Park, Johnson County Kansas, More particularly
described as follows: Commencing at the Southeast corner of said
Southwest 1/4, thence South 87 degrees 53' 48" West, along the South
line of Said Southwest 1/4, a distance of 727.83 feet; thence North 2
degrees 10' 50" West, a distance of 55 feet, to a point on the North
right-of-way line of 111 Street, as now established, said point also
being the true point of beginning of said tract; thence continuing,
North 2 degrees 10' 50" West a distance of 528.79 to the South line of
110th Street, as now established; thence North 87 degrees 57 ' 56"
East, along the South line of said 110th Street, a distance of 155.37
feet, to a point of curvature; thence Southeasterly, along a curve to
the right, having a radius of 970 feet, and a central angle of 10
degrees 44', a distance of 181.71 feet, to a point of reverse
curvature; thence Southeasterly and Easterly, along a curve to the
left, having a radius of 1030 feet, and a central angle of 10 degrees
44', a distance of 192.95 feet; thence South 80 degrees 02' 58" East,
a distance of 163.73 feet, to a point 60 feet West of the East line of
said Southwest 1/4; thence South 2 degrees 10 ' 50" East, along a line
parallel to the East line of said Southwest 1/4, a distance of 448.97
feet thence South 42 degrees 51' 29" West, a distance of 14.13 feet,
to a point 55 feet North of the South line of said Southwest 1/4;
thence South 87 degrees 53' 48" West, along a line parallel to the
South line of said Southwest 1/4, a distance of 677.83 feet, to the
true point of beginning.
<PAGE>
EXHIBIT "B"
[Tenant Estoppel Certificate]
To: Bedford Property Investors, Inc. ("Bedford)
270 Lafayette Circle
Lafayette, CA 94549
Bank of America N.T. & S.A. ("Bank")
Commercial Real Estate Services Division
50 California Street, 11th Floor
San Francisco, CA 94111
Attn: P. Wong
Re: Lease Dated:
Landlord:
("Landlord")
Tenant:
("Tenant")
Premises: Approximately square feet
located at
("Premises")
Ladies and Gentlemen:
The undersigned, Tenant under the above-described lease ("the
Lease"), hereby certifies to you as of the date hereof the following:
1. Tenant is the present owner and holder of the tenants interest
under the lease described above, as it may be amended to date (the
"Lease"). The Lease covers the Premises referenced above, located
within the building (the "Building") at the address set forth above.
2. (a) The attached Exhibit A accurately identifies the Lease
and all modifications, amendments, supplements, side letters, addenda
and riders of and to it.
(b) The Lease provides that in addition to the Premises,
Tenant has the right to use or rent unassigned parking spaces
near the Building, or in the Building garage, if any, during the term
of the Lease.
(c) The term of the Lease commenced on , 19 ,
and will expire on , including any presently exercised
option or renewal term. Except as specified below, the Tenant has no
option to renew, extend or cancel the Lease, or to lease additional
space in the Premises or the Building, or to use any other parking
other than that specified in Section 2(b) above (if none, so state).
(d) Tenant has no option or preferential right to purchase
all or any part of the Premises (or the land of which the Premises is
a part). Tenant has no right or interest with respect to the premises
or the Building other than as Tenant under the Lease.
(e) The annual minimum rent currently payable under the
Lease is $ and such rent has been paid through , 19 .
(f) (IF APPLICABLE) Additional rent is payable under the
Lease for the following (please check if applicable) (i) operating
maintenance or repair expenses , (ii) property taxes ,
(iii) consumer price index cost of living adjustments , or (iv)
percentage of gross sales adjustments (i.e., adjustments made based on
under payment of percentage rent) . Such additional rent has
been paid in accordance with Landlord's rendered bills through
, 19 . The base year amount for such additional rental items are as
follows: (1) operating, maintenance or repair expenses $ ,
(2) property taxes $ , (3) consumer price index (please
indicate base year CPI level) .
(g) Tenant has made no agreement with Landlord or any agent,
representative or employee or landlord concerning free rent, partial
rent, rebate of rental payments or any other similar rent concession
except as expressly set forth in the Lease.
(h) Landlord currently holds a security deposit in the
amount of $ , which is to be applied by Landlord or returned
to Tenant in accordance with the terms of the Lease. Tenant
acknowledges and agrees that Bank shall have no responsibility or
liability for any security deposit, except to the extent that any
security deposit shall have been actually received by Bank.
3. (a) The Lease constitutes the entire agreement between
Landlord and Tenant with respect to the Premises, and has not been
modified, changed, altered or amended and is in full force and effect
in the form described in Exhibit A. There are no other agreements,
written or oral, which affect Tenant's occupance of the Premises.
(b) All insurance required of Tenant under the Lease has
been provided by Tenant and all premiums have been paid.
(c) To the best knowledge of Tenant, no party is in default
under the lease. To the best knowledge of Tenant, no event has
occurred which, with the giving of notice or passage of time, or both,
would constitute such default.
(d) The interest of Tenant in the Lease has not been
assigned or encumbered. Tenant is not entitled to any credit against
any rent or other charge or rent concession under the lease except as
set forth in the Lease. No rental payments have been made more than
one month in advance.
4. All contributions required to be paid by Landlord to date for
improvements to the Premises have been paid in full and all of
Landlord's obligations with respect to tenant improvements have been
fully performed. Tenant has accepted the Premises, subject to no
conditions other than those set forth in the lease.
5. Neither Tenant nor any guarantor of Tenant's obligations under
the Lease is the subject of any bankruptcy or other voluntary or
involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships.
6. (a) As used here, "Hazardous Substance" means any substance,
material or waste (including petroleum products) which is designated,
classified or regulated as being "toxic" or "hazardous" or a
"pollutant" or which is similarly designated, classified or regulated,
under any federal, state or local law, regulation or ordinance.
(b) Tenant represents and warrants that it has not used,
generated, released, discharged, stored or disposed of any Hazardous
Substances on, under, in or about the Building or the land on which
the Building is located, other than Hazardous Substances used in the
ordinary and commercially reasonable course of Tenant's business in
compliance with all applicable laws. Except for such commercially
reasonable use, 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.
7. Tenant hereby acknowledges the right of Bank and Bedford and
any and all of Bedford's present and future lenders, its successors
and assigns, to relay upon the statements and representations of
Tenant contained in the Certificate and further acknowledges that any
purchase by Bedford of the property which includes the Premises and
the Building, and any loan made by Bank to Bedford and secured in
whole or in part by the property which includes the Premises and the
Building, will be made and entered into in material reliance on this
certificate.
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8. Tenant hereby agrees to furnish Bedford and Bank with such
other and future estoppels as may be reasonably requested from time to
time.
"Tenant"
a
By:
Its:
Date:
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Exhibit 99.1
CONTACT: FOR IMMEDIATE RELEASE
Peter B. Bedford October 10, 1995
Chairman of the Board and Chief Executive Officer
Donald A. Lorenz
Executive Vice President and Chief Financial Officer
Telephone: (510) 283-8910
BEDFORD PROPERTY INVESTORS
COMPLETES ACQUISITION
LAFAYETTE, CA -- Bedford Property Investors, Inc. (NYSE:BED)
announced that it has completed the acquisition of 6600 College
Boulevard in Overland Park, Kansas for $6,360,000.
The 6600 College Boulevard building is a single story, 79,316
square foot office complex acquired from AEW #25 Trust. The project
is 100 percent leased to six tenants.
Bedford Property Investors, Inc. is a self-administered equity
real estate investment trust (REIT) with investments in suburban
office buildings and industrial properties concentrated in the western
United States. It is traded on the New York and Pacific Stock
Exchanges under the symbol BED.
