4
44469/0841
9/23/02/TLP/232020.1
SECOND AMENDMENT
TO
REAL ESTATE SALE AGREEMENT
This Second Amendment to Real Estate Sale Agreement ("Second Amendment") is
entered into as of August 14, 2002 by and between EOP-Industrial Portfolio,
L.L.C., a Delaware limited liability company ("Seller"), and Bedford Property
Investors, Inc., a Maryland corporation ("Purchaser").
Recitals
A. Purchaser and Seller are parties to that certain Real Estate Sale
Agreement dated July 17, 2002, as amended by that certain First
Amendment thereto dated August 6, 2002 (jointly, the "Agreement"),
respecting that certain real property commonly known as South
San Francisco Business Center located at 000-000 Xxxxxxx Xxxxxx,
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx.
B. Purchaser and Seller desire to amend the Agreement as hereinafter set
forth.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
which are hereby acknowledged, Purchaser and Seller hereby agree as follows:
1. Defined Terms. Unless otherwise specified herein, capitalized terms herein
shall have the meanings ascribed to them in the Agreement.
2. Due Diligence Period; Purchaser Approval of Property. Purchaser
acknowledges that the Due Diligence Period has expired and that
Purchaser has approved the Property including, without limitation,
the results of Purchaser's Phase II Investigation.
3. Water Damage Repair; Purchase Price Reduction. The Purchase Price is
reduced by the sum of Forty-One Thousand Two Hundred Nine Dollars
($41,209.00) (the "Repair Cost Estimate") to a total of Twenty-One
Million Nine Hundred Fifty-Eight Thousand Seven Hundred Ninety-One
Dollars ($21,958,791.00) to compensate Purchaser for repairs required
to the Improvement resulting from water damage to the premises leased
to Savin Corporation, as described in those certain Proposals prepared
by (a) International Waterproofing - Roofing Building Restoration dated
August 7, 2002 for sealing concrete floor areas, and (b) Xxxx Xxxxxxx
and Associates dated August 8, 2002 for tile replacement (collectively,
the "Repairs"). In addition, in the event (a) Purchaser completes the
Repairs within sixty (60) days after the Closing, and (b) the actual cost
of the Repairs exceeds the Repair Cost Estimate, Seller shall pay
such excess Repair costs to Purchaser, up to a maximum of Ten
Thousand Dollars ($10,000.00), promptly following Seller's receipt
of written evidence verifying such excess Repair costs. The foregoing
Seller payment obligation shall survive Closing.
4. Allocation of United States Postal Service Tenant Reimbursements.
That certain Lease with the United States Postal Service ("USPS")
provides that USPS shall pay Tenant Reimbursements in arrears for the
five (5)-year period ending October 31, 2003 (the "Reconciliation
Period"). Accordingly, notwithstanding Section 5.5 of the Agreement,
at Closing Purchaser and Seller shall not prorate Tenant
Reimbursements with respect to the USPS Lease, but will treat the
USPS Tenant Reimbursements as follows. Purchaser and Seller will
work together in good faith to timely deliver a reconciliation to
USPS setting forth all sums owed by USPS for Tenant Reimbursements
for the reconciliation Period. Seller estimates that its pro rata
share will equal Ninety-Five Thousand Seven Hundred Fifty-Five
Dollars ($95,755.00) in the aggregate for the portion of the
Reconciliation Period ending on the Closing Date. Promptly
following Purchaser's receipt from USPS of Tenant Reimbursements
for the Reconciliation Period, Purchaser shall remit Seller's pro
rata share thereof to Seller. To the extent USPS challenges any
Tenant Reimbursements for the portion of the Reconciliation Period
prior to the Closing Date, Seller and Purchaser will work together
in good faith to resolve such USPS challenge and agree on the amount
of the Tenant Reimbursement. The foregoing Purchaser payment
obligation shall survive Closing.
5. Ratification; Conflict. Except as expressly set forth herein, the
Agreement remains unmodified and in full force and effect. In the
event of any conflict or inconsistency between the terms of this Second
Amendment and the terms of the Agreement, the terms of this Second
Amendment shall govern and control.
6. Counterparts. This Second Amendment may be executed in one or more
counterparts each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
7. Facsimile Signatures. This Second Amendment may be delivered by facsimile
transmission with original signatures to follow.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Second
Amendment as of the date first set forth above.
SELLER: EOP - INDUSTRIAL PORTFOLIO, L.L.C.,
a Delaware limited liability company
By: EOP Operating Limited
Partnership,
a Delaware limited partnership
Its: Sole Member
By: Equity Office Properties
Trust,
a Maryland real estate
investment trust
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice
President
PURCHASER: BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
JOINDER
The undersigned hereby agrees that it shall be jointly and severally liable
with Seller for the performance of Seller's obligations under Paragraph 3 of the
foregoing Second Amendment.
EOP OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Equity Office Properties
Trust,
a Maryland real estate
investment trust
Its: General Partner
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President -
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