exv10w2






Exhibit 10.2




PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS




BUIE CARLSBAD BUILDING A LLC,

a California Limited Liability Company




BUIE CARLSBAD LOT 10 LLC,

a California Limited Liability Company




“SELLERS”




AND




SHIDLER WEST INVESTMENT PARTNERS, LP

a California Limited Partnership




“BUYER”




FEBRUARY 27, 2008




Carlsbad Buildings A & C




 









 





TABLE OF CONTENTS




	 	 	 
	 	 	Page
	ARTICLE
1 CERTAIN DEFINITIONS
	 	1
	 
	ARTICLE 2 PURCHASE, PURCHASE PRICE AND PAYMENT
	 	10
	 
	ARTICLE 3 ESCROW
	 	13
	 
	ARTICLE 4 INVESTIGATION PERIOD; VOLUNTARY TERMINATION; TITLE
	 	13
	 
	ARTICLE 5 PRE-CLOSING AND POST-CLOSING OBLIGATIONS OF SELLERS
	 	19
	 
	ARTICLE 6 SELLERS’ DELIVERIES
	 	23
	 
	ARTICLE 7 BUYER’S DELIVERIES
	 	25
	 
	ARTICLE 8 CONDITIONS TO CLOSING; CLOSING; DEFAULT; REMEDIES
	 	25
	 
	ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF SELLERS
	 	31
	 
	ARTICLE 10 REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF BUYER
	 	36
	 
	ARTICLE 11 COSTS, EXPENSES AND PRORATIONS
	 	37
	 
	ARTICLE 12 ACTIONS TO BE TAKEN AT THE CLOSING
	 	40
	 
	ARTICLE 13 BROKERS
	 	41
	 
	ARTICLE 14 POST-CLOSING OBLIGATIONS OF SELLER
	 	41
	 
	ARTICLE 15 INDEMNIFICATION
	 	42
	 
	ARTICLE 16 MISCELLANEOUS
	 	44






 









 





	 	 	 
	EXHIBITS	 	 
	 
	Exhibit “A”

	 	Legal Description of Land
	Exhibit “B”

	 	Seller’s Deed
	Exhibit “C”

	 	Bill of Sale
	Exhibit “D”

	 	Certificate of Non-Foreign Status
	Exhibit “E”

	 	Assignment and Assumption of Leases and Security Deposits
	Exhibit “F”

	 	Assignment of Permits, Entitlements and Intangible Property
	Exhibit “G”

	 	General Provisions of Escrow
	Exhibit “H”

	 	Form of Tenant Estoppel Certificate
	Exhibit “I”

	 	Form of Landlord Estoppel Certificate
	Exhibit “J”

	 	Deficit Rental Agreement
	Exhibit “K”

	 	SEC Requirements
	Exhibit “L”

	 	Audit Letter






	 	 	 
	SCHEDULES	 	 
	 
	1.0

	 	List of Seller’s Deliveries
	2.0

	 	Leasing Criteria
	9.8

	 	Leases






 









 





PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS




	 	 	 
	TO:

	 	Stewart Title Guaranty (“Escrow Holder”)
	 

	 	c/o Stewart National Title Services Underwriter
	 

	 	1980 Post Oak Blvd., 6th Floor
	 

	 	Houston, Texas 77056
	 

	 	Attn: Louis Canaras
	 

	 	(713) 625-8152
	 

	 	FAX: (713) 552-1703
	 

	 	E-mail: lcanaras@stewart.com






     THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“Agreement”) is made and
entered into and effective as of the 27th day of February, 2008 (“Effective Date”), by
and between BUIE CARLSBAD BUILDING A LLC, a California limited liability company (“Building A
Seller”), and BUIE CARLSBAD LOT 10 LLC, a California limited liability company (“Lot 10 Seller”)
(Building A Seller and Lot 10 Seller are hereinafter sometimes collectively referred to as the
“Sellers”), and SHIDLER WEST INVESTMENT PARTNERS, LP, a California limited partnership (the
“Buyer”), each of whom shall sometimes separately be referred to herein as a “Party” and both of
whom shall sometimes be collectively referred to herein as the “Parties,” and constitutes: (a) a
binding purchase and sale agreement between Sellers and Buyer; and (b) joint escrow instructions to
Escrow Holder whose consent appears at the end of this Agreement.



     FOR GOOD AND VALUABLE CONSIDERATION RECEIVED, the Parties mutually agree as follows:



ARTICLE 1

CERTAIN DEFINITIONS




     In addition to those terms defined elsewhere in this Agreement, the following terms have the
meanings set forth below:



     “Affiliate” shall mean, with respect to any particular Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is
under common control with, such Person. For this purpose, the term “control” shall be deemed
satisfied to the extent that there exists direct or indirect ownership representing a minimum ten
percent (10%) ownership interest.



     “Agreement” shall mean this Purchase and Sale Agreement and Joint Escrow Instructions
dated as of the 27th day of February, 2008, by and between Sellers and Buyer, together
with all Exhibits and Schedules attached hereto.



     “ALTA” shall mean American Land Title Association.



 









 





     “ALTA Extended Coverage Policy” shall have the meaning given such term in Section
8.1(c) hereof.



     “Asserted Liability” shall have the meaning given to such term in Section 15.2 hereof.



     “Assignment and Assumption of Leases and Security Deposits” shall mean the Assignment
and Assumption of Leases and Security Deposits, in the form of Exhibit “E,” attached hereto and
incorporated herein by reference.



     “Assignment of Permits, Entitlements and Intangible Property” shall mean the
Assignment of Permits, Entitlements and Intangible Property, in the form of Exhibit “F,” attached
and incorporated herein by reference.



     “Audit Letter” shall mean the Audit Letter, in the form of Exhibit “L,” attached
hereto and incorporated herein by reference.



     “AZL” shall have the meaning given to such term in Section 5.2(a) hereof.



     “Bill of Sale” shall mean the Bill of Sale, in the form of Exhibit “C,” attached
hereto and incorporated herein by reference.



     “Books and Records” shall have the meaning given to such term in Section 2.1(f)
hereof.



     “Building A Seller” shall have the meaning given to such term in the Preamble of this
Agreement.



     “Building A” shall mean that certain building located at 5860 Owens Avenue consisting
of approximately fifteen thousand nine hundred forty-seven (15,947) net rentable square feet,
together with all related facilities and improvements, located on the Land.



     “Building A Loan” shall mean that certain loan evidenced by that certain Promissory
Note Secured By Deed of Trust, dated December 23, 2002, executed by Building A Seller in favor of
First Bank & Trust, a California corporation, in the original principal amount of Two Million Three
Hundred Sixty-Two Thousand Five Hundred Dollars ($2,362,500.00), which loan is secured by, among
other things, that certain Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 23, 2002, executed Building A Seller in favor of First Bank & Trust,
and recorded in the Official Records of San Diego County, California as Instrument No.2003-0050101.



     “Building C” shall mean that certain building located at 5868 Owens Avenue consisting
of approximately thirteen thousand eight hundred sixty-three (13,863) net rentable square feet,
together with all related facilities and improvements, located on the Land.



     “Building C Loan” shall mean that certain loan evidenced by a Promissory Note, dated
April 14, 2004, executed by Lot 10 Seller in favor of City National Bank, a national banking
association, in the original principal amount of Two Million One Hundred Fifty-Five Thousand
Dollars ($2,155,000.00), which loan is secured by, among other things, that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing, dated April 14, 2004,



2









 







executed by Lot 10 Seller in favor of City National Bank, and recorded in the Official Records
of San Diego County, California as Instrument No. 2004-0496180.



     “Buildings” shall collectively refer to Building A and Building C.



     “Business Day” shall mean a Calendar Day, other than a Saturday, Sunday or a day
observed as a legal holiday by the United States federal government or the state of California.



     “Buyer” shall mean Shidler West Investment Partners, LP, a California limited
partnership, its successors and assigns.



     “Buyer’s Election Not to Terminate” shall have the meaning given to such term in
Section 4.3 hereof.



     “Buyer’s Election to Terminate” shall have the meaning given to such term in Section
4.2 hereof.



     “Buyer’s Exchange” shall have the meaning given to such term in Section 16.14 hereof.



     “Calendar Day” shall mean any day of the week including a Business Day.



     “Cash” shall mean legal tender of the United States of America represented by either:
(a) currency; (b) a cashier’s or certified check or checks currently dated, payable to Escrow
Holder or order, and honored upon presentation for payment; or (c) funds wire transferred or
otherwise deposited into Escrow Holder’s account at Escrow Holder’s direction.



     “Certificate of Non-Foreign Status” shall mean that certain Certificate of Non-Foreign
Status, in the form of Exhibit “D,” attached hereto and incorporated herein by reference.



     “Claims Notice” shall have the meaning given to such term in Section 15.2(a) hereof.



     “Closing” shall have the meaning given to such term in Section 8.4 hereof.



     “Closing Date” shall mean the Scheduled Closing Date or the Extended Closing Date, as
applicable.



     “Closing Deposit” shall have the meaning given to such term in Section 2.2(c) hereof.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, or corresponding
provisions of subsequent federal revenues laws.



     “Condemnation Proceeding” shall have the meaning given to such term in Section 8.3(a)
hereof.



     “Contracts” shall mean all written or oral: (a) insurance, management, leasing,
security, janitorial, cleaning, pest control, waste disposal, landscaping, advertising, service,
maintenance, operating, repair, collective bargaining, employment, employee benefit, severance,
franchise, licensing, supply, purchase, consulting, professional service, advertising, promotion,
public relations and other contracts and commitments in any way relating to the Property or any
part



3









 







thereof, together with all supplements, amendments and modifications thereto; and (b)
equipment leases and all rights and options of Sellers thereunder, together with all supplements,
amendments and modifications thereto. The term “Contracts” shall specifically exclude the Leases.



     “Cure Deadline” shall mean 5:00 p.m. PST on the date that is two (2) Business Days
prior to the Scheduled Closing Date.



     “Cure Notice” shall have the meaning given to such term in Section 4.1(c) hereof.



     “Delinquent Revenues” shall have the meaning given to such term in Section 11.2(a)(i)
hereof.



     “Deficit Rental Agreement” shall mean the Deficit Rental Agreement, in the form of
Exhibit “J,” attached hereto and incorporated herein by reference.



     “Deposit” shall mean the Initial Deposit and the Second Deposit, as applicable.



     “Disapproved Title Exceptions” shall have the meaning given to such term in Section
4.1(c) hereof.



     “Disapproved Title Exceptions Notice” shall have the meaning given to such term in
Section 4.1(c) hereof.



     “Effective Date” shall have the meaning given to such term in the preamble of this
Agreement.



     “Environmental Laws” shall mean all present and future federal, state or local laws,
ordinances, codes, statutes, regulations, administrative rules, policies and orders, and other
authorities, which relate to the environment and/or which classify, regulate, impose liability,
obligations, restrictions on ownership, occupancy, transferability or use of the Real Property,
and/or list or define hazardous substances, materials, wastes, contaminants, pollutants and/or the
Hazardous Materials including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as now or hereafter
amended (“CERCLA”), the Resources Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as now or hereafter amended (“RCRA”), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., as now or hereafter amended, the Clean Water Act, 33 U.S.C. Section 1251, et seq.,
as now or hereafter amended, the Clear Air Act, 42 U.S.C. Section 7901, et seq., as now or
hereafter amended, the Toxic Substance Control Act, 15 U.S.C. Sections 2601 through 2629, as now or
hereafter amended, the Public Health Service Act, 42 U.S.C. Sections 300f through 300j, as now or
hereafter amended, the Safe Drinking Water Act, 42 U.S.C. Sections 300f through 300j, as now or
hereafter amended, the Occupational Safety and Health Act, 29 U.S.C. Section 651, et seq., as now
or hereafter amended, the Oil Pollution Act, 33 U.S.C. Section 2701, et seq., as now or hereafter
amended, the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001, et seq.,
as now or hereafter amended, the National Environmental Policy Act, 42 U.S.C. Section 4321, et
seq., as now or hereafter amended, the Federal Insecticide, Fungicide and Rodenticide Act, 15
U.S.C. Section 136, et seq., as now or hereafter amended, the Medical Waste Tracking Act, 42 U.S.C.
Section 6992, as now



4









 







or hereafter amended, the Atomic Energy Act of 1985, 42 U.S.C. Section 3011, et seq., as now
or hereafter amended, and any similar federal, state or local laws and ordinances and the
regulations now or hereafter adopted, published and/or promulgated pursuant thereto and other state
and federal laws relating to industrial hygiene, environmental protection or the use, analysis,
generation, manufacture, storage, disposal or transportation of any Hazardous Materials.



     “Escrow” shall have the meaning given to such term in Article 3 hereof.



     “Escrow Holder” shall have the meaning given to such term in the preamble of this
Agreement.



     “Estoppel Certificate” shall mean any Tenant Estoppel Certificate or Landlord Estoppel
Certificate.



     “Estoppel Cure Notice” shall have the meaning given to such term in Section 5.1(g)(i)
hereof.



     “Estoppel Delivery Deadline” shall mean fifteen (15) Business Days prior to the
Scheduled Closing Date.



     “Estoppel Objection Matter” shall have the meaning given to such term in Section
5.1(g)(i) hereof.



     “Estoppel Objection Notice” shall have the meaning given to such term in Section
5.1(g)(i) hereof.



     “Extended Closing Date” shall mean the date that is ten (10) Business Days following
the Scheduled Closing Date.



     “General Provisions” shall have the meaning given to such term in Article 3 hereof.



     “Grant Deed” shall mean the Grant Deed in the form of Exhibit “B,” attached hereto and
incorporated herein by reference.



     “Hazardous Materials” shall mean all hazardous wastes, toxic substances, pollutants,
contaminants, radioactive materials, flammable explosives, other such materials, including, without
limitation, substances defined as “hazardous substances,” “hazardous wastes,” “hazardous
materials,” “toxic substances,” “toxic pollutants,” “petroleum substances,” or “infectious waste”
in any applicable laws or regulations including, without limitation, the Environmental Laws, and
any material present on the Real Property that has been shown to have significant adverse effects
on human health including, without limitation, radon, pesticides, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum products (including any products or
by-products therefrom), lead-based paints and any material containing or constituting any of the
foregoing, and any such other substances, materials and wastes which are or become regulated by
reason of actual or threatened risk of toxicity causing injury or illness, under any Environmental
Laws or other applicable federal, state or local law, statute,



5









 







ordinance or regulation, or which are classified as hazardous or toxic under current or future
federal, state or local laws or regulations.



     “Holdback Amount” shall have the meaning given to such term in Section 14.2(a) hereof.



     “Holdback Escrow Account” shall have the meaning given to such term in Section 14.2(a)
hereof.



     “Improvements” shall mean all buildings, structures, fixtures, trade fixtures,
systems, facilities, machinery, equipment and conduits that provide fire protection, security,
heat, exhaust, ventilation, air conditioning, electrical power, light, plumbing, refrigeration,
gas, sewer and water thereto (including all replacements or additions thereto) and other
improvements now or hereafter located on the Land, including, but not limited to the Buildings,
together with all water control systems, utility lines and related fixtures and improvements,
drainage facilities, landscaping improvements, fencing, roadways and walkways, and all privileges,
rights, easements, hereditaments and appurtenances thereto belonging.



     “Indemnitees” shall have the meaning given to such term in Section 15.1 hereof.



     “Initial Deposit” shall have the meaning given to such term in Section 2.2(a) hereof.



     “Intangible Property” shall have the meaning given to such term in Section 2.1(c)
hereof.



     “Investigation Period” shall have the meaning given to such term in Section 4.1
hereof.



     “Land” shall mean that certain parcel of real property located in the City of
Carlsbad, County of San Diego, State of California, the legal description of which is set forth on
Exhibit “A,” attached hereto and incorporated herein by reference.



     “Landlord Estoppel Certificate” shall have the meaning given to such term in Section
5.1(g) hereof.



     “Leases” shall have the meaning given to such term in Section 2.1(d) hereof.



     “Leasing Commissions” shall mean any and all commissions, finder’s fees or similar
payments in connection with any Lease, including any options to extend, expand or renew.



     “Losses” shall have the meaning given to such term in Section 15.1 hereof.



     “Lot 10 Seller” shall have the meaning given to such term in the Preamble of this
Agreement.



     “Management Agreement” shall mean that certain agreement, dated October 17, 2002, by
and between Lot 10 Seller and Property Manager.



     “Material Loss” shall mean any damage, loss or destruction to any portion of the Real
Property, the amount of which is equal to or greater than Fifty Thousand Dollars ($50,000.00)
(measured by the cost of repair or replacement).



6









 





     “Minimum Tenant Square Footage Requirement” shall mean those Tenants that have entered
into Leases covering not less than eighty percent (80%) of the net rentable square footage in each
of the Buildings, provided, however, that such Tenants shall include all Tenants that have entered
into Leases covering more than three thousand (3,000) net rentable square feet in each of the
Buildings.



     “Monetary Obligations” shall mean any and all liens, liabilities and encumbrances
placed, or caused to be placed, of record against the Real Property evidencing a monetary
obligation which can be removed by the payment of money, including, without limitation, delinquent
real property taxes and assessments, deeds of trust, mortgages, mechanic’s liens, attachment liens,
execution liens, tax liens and judgment liens. Without limiting the foregoing, the term “Monetary
Obligations” shall include the Building A Loan and the Building C Loan. Notwithstanding the
foregoing, the term “Monetary Obligations” shall not include and shall specifically exclude the
liens, liabilities and encumbrances relating to the Permitted Title Exceptions and any matters
caused by any act or omission of Buyer, or its agents or representatives.



     “New Lease” shall have the meaning given to such term in Section 5.1(c) hereof.



     “New Title Exceptions” shall have the meaning given to such term in Section 4.1(d)
hereof.



     “New Title Exceptions Approval Notice” shall have the meaning given to such term in
Section 4.1(d) hereof.



     “Non-Material Loss” shall mean damage, loss or destruction to any portion of the Real
Property, the amount of which is less than Fifty Thousand Dollars ($50,000.00) (measured by the
cost of repair or replacement).



     “Notice” shall have the meaning given to such term in Section 16.2 hereof.



     “Notice of Loss” shall have the meaning given to such term in Section 15.2(d) hereof.



     “OFAC” shall have the meaning given to such term in Section 9.18 hereof.



     “Operating Expenses” shall have the meaning given to such term in Section 11.2(a)(ii)
hereof.



     “Party” or “Parties” shall have the meaning given to such terms in the
Preamble of this Agreement.



     “Permits and Entitlements” shall have the meaning given to such term in Section 2.1(e)
hereof.



     “Permitted Title Exceptions” shall have the meaning given to such term in Section
4.1(c) hereof.



7









 





     “Person” shall mean any individual, corporation, partnership, limited liability
company or other entity.



     “Personal Property” shall have the meaning given to such term in Section 2.1(b)
hereof.



     “Phase I” shall have the meaning given to such term in Section 4.1(e) hereof.



     “POP LP” shall have the meaning given to such term in Section 5.2(a) hereof. .



     “POP Trust” shall have the meaning given to such term in Section 5.2(a) hereof.



     “Pre-Closing Property Expense Reconciliation” shall have the meaning given to such
term in Section 11.2(b)(i) hereof.



     “Preliminary Title Report” shall have the meaning given to such term in Section
4.1(b)(i) hereof.



     “Property” shall have the meaning given to such term in Section 2.1 hereof.



     “Property Expense Reconciliation” shall have the meaning given to such term in Section
11.2(b)(ii) hereof.



     “Property Expense Reimbursement Shortfall” shall have the meaning given to such term
in Section 11.2(b)(iii) hereof.



     “Property Expense Reimbursement Surplus” shall have the meaning given to such term in
Section 11.2(b)(iii) hereof.



     “Property Expenses” shall have the meaning given to such term in Section 11.2(b)
hereof.



     “Property Manager” means Meissner Jacquet Investment Management Services.



     “Proposed New Lease” shall have the meaning given to such term in Section 5.1(c)
hereof.



     “Proration Date” shall have the meaning given to such term in Section 11.2(a) hereof.



     “PST” shall mean Pacific Standard Time (or Pacific Daylight Savings Time, whichever
shall be in effect on the date in question).



     “Public Reporting Entities” shall have the meaning given to such term in Section
5.2(a) hereof.



     “Purchase Price” shall have the meaning given to such term in Section 2.2 hereof.



     “Real Property” shall have the meaning given to such term in Section 2.1(a) hereof.



     “Reconciliation Period” shall have the meaning given to such term in Section 11.2(b)
hereof.



8









 





     “Reports” shall have the meaning given to such term in Section 4.1(b) hereof.



     “Revenues” shall have the meaning given to such term in Section 11.2(a)(i) hereof.



     “Reverse Merger” shall have the meaning given to such term in Section 5.2(a) hereof.



     “Scheduled Closing Date” shall have the meaning given to such term in Section 8.4
hereof.



     “SEC” shall have the meaning given to such term in Section 5.2(b) hereof.



     “SEC Requirements” shall mean the requirements set forth on Exhibit “K,” attached
hereto and incorporated herein by reference.



     “Second Deposit” shall have the meaning given to such term in Section 2.2(b) hereof.



     “Security Deposits” shall mean the original amount of all refundable security
deposits, advance rentals and other deposits and collateral deposited or paid by the Tenants
pursuant to the Leases, whether in the form of cash, negotiable instruments, letters of credit,
certificates of deposit or other forms of security.



     “Sellers” shall collectively refer to the Building A Seller and the Lot 10 Seller.



     “Sellers’ Books and Records” shall mean all books and records, financial and other
information pertaining to the period of Sellers’ ownership and operation of the Property including,
without limitation, the Books and Records and those items set forth on Exhibit “K” attached hereto
and incorporated herein by reference.



     “Sellers’ Deliveries” shall have the meaning given to such term in Section 4.1(a)
hereof.



     “Seller’s Exchange” shall have the meaning given to such term in Section 16.15 hereof.



     “Survey” shall have the meaning given to such term in Section 4.1(b)(ii) hereof.



     “Taxes” shall have the meaning given to such term in Section 11.2(a)(iii) hereof.



     “Tenant Estoppel Certificates” shall have the meaning given to such term in Section
5.1(g) hereof.



     “Tenant Inducement Costs” shall mean any rent holidays, rent concessions, tenant
improvements costs, lease buyout costs, moving, design and refurbishment allowances and
reimbursements, reasonable attorney’s fees and disbursements incurred in connection with the
preparation and negotiation of the applicable Lease and any other out-of-pocket payments required
under a Lease to be paid by the landlord thereunder to or for the benefit of the Tenant thereunder
which is in the nature of a tenant inducement.



     “Tenants” shall mean those Persons renting or occupying space in the Real Property
under the Leases. All references in this Agreement to a Tenant shall mean and refer to the
applicable Tenant.



9









 





     “Third Party Claim” shall mean any claim, demand, lawsuit, arbitration, or other legal
or administrative action or proceeding.



     “Title Insurer” shall mean Stewart Title Guaranty, c/o Stewart Title of California,
Inc. located at 7675 Mission Valley Road, San Diego, CA 92108; Telephone: (619) 398-8035;
Facsimile: (619) 615-2389; Attention: Frank Green; e-mail:fgreen@stewart.com.



     “Transaction Documents” shall mean the Grant Deed, the Bill of Sale, the Certificate
of Non-Foreign Status, the Assignment and Assumption of Leases and Security Deposits, the
Assignment of Permits, Entitlements and Intangible Property, the Deficit Rental Agreement and all
other instruments or agreements to be executed and delivered pursuant to this Agreement or any of
the foregoing.



     “Utilities” shall have the meaning given to such term in Section 9.17 hereof.



     “Vacant Space” shall have the meaning given to such term in Section 14.1 hereof.



ARTICLE 2

PURCHASE, PURCHASE PRICE AND PAYMENT




     Section 2.1 Purchase and Sale of Property. Subject to the terms and conditions set
forth in this Agreement, on the Closing, Sellers shall sell, convey, assign, transfer and deliver
to Buyer, and Buyer shall purchase and acquire from Sellers, as applicable, all of the following
property (collectively, the “Property”):



          (a) Real Property. The Land and the Improvements, together with all of Sellers’
respective right, title and interest in, to and under: (i) all easements, rights-of-way,
development rights, entitlements, air rights and appurtenances relating or appertaining to the Land
and/or the Improvements; (ii) all water wells, streams, creeks, ponds, lakes, detention basins and
other bodies of water in, on or under the Land, whether such rights are riparian, appropriative,
prospective or otherwise, and all other water rights applicable to the Land and/or the
Improvements; (iii) all sewer, septic and waste disposal rights and interests applicable or
appurtenant to or used in connection with the Land and/or the Improvements; (iv) all minerals, oil,
gas and other hydrocarbons located in, on or under the Land, together with all rights to surface or
subsurface entry; and (v) all streets, roads, alleys or other public ways adjoining or serving the
Land, including any land lying in the bed of any street, road, alley or other public way, open or
proposed, and any strips, gaps, gores, culverts and rights of way adjoining or serving the Land,
free and clear of any and all liens, liabilities, encumbrances, exceptions and claims, other than
the Permitted Title Exceptions (collectively, the “Real Property”).




          (b) Personal Property. All equipment, facilities, machinery, tools, appliances,
fixtures, furnishings, furniture, paintings, sculptures, art, inventories, supplies, computer
equipment and systems, telephone equipment and systems, satellite dishes and related equipment and
systems, security equipment and systems, fire prevention equipment and systems, and all other items
of tangible personal property owned by Sellers, respectively, and located on or about the Real
Property or used in conjunction therewith, free and clear of any and all liens, liabilities,
encumbrances, exceptions and claims (collectively, the “Personal Property”).




10









 








          (c) Intangible Property. All intangible personal property not otherwise described in
this Section 2.1 and relating to the Property or the business of owning, operating, maintaining
and/or managing the Property, including, without limitation: (i) all warranties, guarantees and
bonds from third parties, including, without limitation, contractors, subcontractors, materialmen,
suppliers, manufacturers, vendors and distributors; (ii) all deposits, reimbursement rights, refund
rights, receivables and other similar rights from any governmental or quasi-governmental agency;
(iii) all liens and security interests in favor of Sellers, respectively, together with any
instruments or documents evidencing same; (iv) all goodwill relating to the business of owning,
operating, maintaining and managing the Property; (v) all trade names, trademarks, service marks
and logos used in conjunction with the ownership, operation and management of the Property, whether
or not registered, and all trademark, service mark, fictitious business name and other intellectual
property registrations or filings with regard to the foregoing; (vi) all advertising campaigns and
marketing or promotional materials relating to the Property; and (vii) all artwork, photographs and
other intellectual property utilized in conjunction with the ownership, operation and/or management
of the Property, free and clear of any and all liens, liabilities, encumbrances, exceptions and
claims (collectively, the “Intangible Property”).




          (d) Leases and Security Deposits. All of Sellers’ respective right, title and
interest in and to: (i) all leases in effect on the Closing with respect to the Real Property,
including any New Leases, together with any amendments, guarantees and other agreements relating
thereto; (ii) all rentals, deposits, receivables, reimbursements and other similar items payable by
Tenants under the leases; (iii) all Tenant files in Sellers’ possession and/or control with respect
to the leases; (iv) all claims, demands, causes of action and other rights against Tenants and all
guarantors of the leases; and (v) all Security Deposits and other collateral relating to the leases
(collectively, the “Leases”).




          (e) Permits and Entitlements. All of Sellers’ respective right, title and interest
in, to and under: (i) all permits, licenses, certificates of occupancy, approvals, authorizations
and orders obtained from any governmental authority and relating to the Real Property or the
business of owning, maintaining and/or managing the Real Property, including, without limitation,
all land use entitlements, development rights, density allocations, certificates of occupancy,
sewer hook-up rights and all other rights or approvals relating to or authorizing the ownership,
operation, management and/or development of the Real Property; (ii) all preliminary, proposed and
final drawings, renderings, blueprints, plans and specifications (including “as-built” plans and
specifications), and tenant improvement plans and specifications for the Improvements (including
“as-built” tenant improvement plans and specifications); (iii) all maps and surveys for any portion
of the Real Property; (iv) all items constituting the Sellers’ Deliveries; and (v) any and all
other items of the same or similar nature pertaining to the Real Property, and all changes,
additions, substitutions and replacements for any of the foregoing, free and clear of any and all
liens, liabilities, encumbrances, exceptions and claims (collectively, the “Permits and
Entitlements”).




          (f) Books and Records. All books and records relating to the business of owning,
operating, maintaining and/or managing the Property, including, without limitation, all accounting,
financial, tax, employment, sales and other records related to the Buildings (collectively, the
“Books and Records”).




11









 





     Section 2.2 Purchase Price. The purchase price for the Property (“Purchase Price”)
shall be the sum of Six Million Fifty Thousand Dollars ($6,050,000.00). The Purchase Price shall
be payable by Buyer to Sellers in accordance with the following terms and conditions:



          (a) Initial Deposit. Within three (3) Business Days following the Effective Date,
Buyer shall deposit into Escrow the sum of One Hundred Fifty Thousand Dollars ($150,000.00), in the
form of Cash, which amount shall serve as an earnest money deposit (“Initial Deposit”). Buyer may
direct Escrow Holder to invest the Initial Deposit in one or more interest bearing accounts with a
federally insured state or national bank located in California designated by Buyer and approved by
Escrow Holder. Subject to the applicable termination and default provisions contained in this
Agreement: (i) the Initial Deposit shall remain in Escrow prior to the Closing; (ii) upon the
Closing, the Initial Deposit shall be applied as a credit towards the payment of the Purchase
Price; and (iii) all interest that accrues on the Initial Deposit while in Escrow Holder’s control
shall belong to Buyer. Buyer shall complete, execute and deliver to Escrow Holder a W-9 Form,
stating Buyer’s taxpayer identification number at the time of delivery of the Initial Deposit. All
references in this Agreement to the “Initial Deposit” shall mean the Initial Deposit and any and
all interest that accrues thereon while in Escrow Holder’s control.




          (b) Second Deposit. In the event Buyer timely delivers to Seller Buyer’s Election Not
to Terminate this Agreement pursuant to Section 4.3 hereof, within one (1) Business Day after the
expiration of the Investigation Period, Buyer shall deposit with Escrow Holder an additional
deposit in the sum of Fifty Thousand Dollars ($50,000.00) (the “Second Deposit”), in the form of
Cash. Buyer may direct Escrow Holder to invest the Second Deposit in one or more interest bearing
accounts with a federally insured state or national bank located in California designated by Buyer
and approved by Escrow Holder. Subject to the applicable termination and default provisions
contained in this Agreement: (i) the Second Deposit shall remain in Escrow prior to the Closing;
(ii) upon the Closing, the Second Deposit shall be applied as a credit towards the payment of the
Purchase Price; and (iii) all interest that accrues on the Second Deposit while in Escrow Holder’s
control shall belong to Buyer. The Initial Deposit and Second Deposit are collectively referred to
herein as the “Deposit.” All references in this Agreement to the “Deposit” shall mean the Deposit
and any and all interest that accrues thereon while in Escrow Holder’s control.




          (c) Closing Deposit. The Purchase Price, less the Deposit (the “Closing Deposit”),
shall be paid by Buyer to Escrow Holder, in the form of Cash, pursuant to Section 7.1 hereof, and
distributed by Escrow Holder to Sellers on the Closing in accordance with the provisions of Section
12.1(c) hereof.




     Section 2.3 Allocation. Prior to the Closing, Buyer and Sellers shall agree on an
allocation of the Purchase Price for the Property. All allocations pursuant to this Section 2.3
shall be made in accordance with Section 1060 of the Code, and Buyer and Seller agree to file their
respective tax returns and reports (federal, state, local and foreign) consistent therewith in all
respects. In the event that the Parties are unable to agree prior to the Closing upon such
allocation, then, at either Party’s election, the portion of the Purchase Price allocated to the
Real Property shall be the fair market value attributed thereto by the respective taxing
authorities of San Diego County, and the remainder of the Purchase Price shall be allocated to the
Personal



12









 







Property in an amount equal to the book value of the Personal Property and the balance to the
Intangible Property.



ARTICLE 3

ESCROW




     Within three (3) Business Days following the Effective Date, Sellers and Buyer shall open an
escrow (“Escrow”) with Escrow Holder by: (a) Buyer timely depositing with Escrow Holder the Initial
Deposit; (b) Sellers and Buyer delivering to Escrow Holder fully executed counterpart originals of
this Agreement and fully executed counterpart originals of Escrow Holder’s general provisions,
which are attached hereto as Exhibit “H” (“General Provisions”). The date of such delivery shall
constitute the opening of Escrow and upon such delivery, this Agreement shall constitute joint
escrow instructions to Escrow Holder, which joint escrow instructions shall supersede all prior
escrow instructions related to the Escrow, if any. Additionally, Sellers and Buyer hereby agree to
promptly execute and deliver to Escrow Holder any additional or supplementary escrow instructions
as may be necessary or convenient to consummate the transactions contemplated by this Agreement
provided, however, that neither the General Provisions nor any such additional or supplemental
escrow instructions shall supersede this Agreement, and in all cases this Agreement shall control,
unless the General Provisions or such additional or supplemental escrow instructions expressly
provide otherwise.



ARTICLE 4

INVESTIGATION PERIOD; VOLUNTARY TERMINATION; TITLE




     Section 4.1 Investigation Period. During the time period commencing upon the
Effective Date of this Agreement, and terminating at 5:00 p.m. PST on the fifteenth
(15th) Calendar Day thereafter (the “Investigation Period”), Buyer shall have the right
to conduct and complete an investigation of all matters pertaining to the Property and Buyer’s
purchase thereof including, without limitation, the matters described in this Section 4.1.



          (a) Sellers’ Deliveries. Within five (5) Calendar Days following the Effective Date
of this Agreement, Sellers, at Sellers’ expense, shall cause to be delivered to Buyer, true,
correct and complete copies of all documents, agreements and other information relating to the
Property in Sellers’ possession and/or control, including, without limitation, those items listed
on Schedule “1.0,” attached hereto and incorporated herein by reference (collectively, the
“Sellers’ Deliveries”). Sellers will promptly deliver to Buyer supplements and/or updates of
Sellers’ Deliveries to the extent such items are received by Sellers, respectively, prior to
Closing. During the Investigation Period, Buyer shall have the right to conduct and complete an
investigation of all matters pertaining to Sellers’ Deliveries and all other matters pertaining to
the Property and Buyer’s acquisition thereof. In this regard, following reasonable notice to
Sellers, Buyer shall have the right to contact the Tenants, governmental agencies and officials and
other parties and make reasonable inquiries concerning Sellers’ Deliveries and any and all other
matters pertaining to the Property. Sellers agree to reasonably cooperate with Buyer in connection
with its investigation of Sellers’ Deliveries and all other matters pertaining to the Property.




          (b) Preliminary Title Report/Survey; Environmental. Without limiting Sellers’
obligations pursuant to Section 4.1(a) above, Sellers, at Sellers’ expense, shall deliver to




13









 




Buyer the following in accordance with the terms contained herein below (collectively, the
“Reports”):




               (i) Title: Within five (5) Calendar Days following the Effective Date, Sellers shall
cause to be delivered to Buyer a current preliminary title report covering the Real Property,
together with copies of all documents referred to as exceptions therein (“Preliminary Title
Report”).



               (ii) Survey: Within ten (10) Calendar Days following the Effective Date; Sellers
shall cause to be delivered to Buyer two (2) copies of a current ALTA/ACSM survey of the Real
Property prepared by JP Engineering, and dated not earlier than six (6) months prior to the
Effective Date (the “Survey”), which shall be prepared according to the standards of Buyer.
Although Sellers are commissioning the Survey, the Survey shall be prepared in accordance with
Buyer’s standards, and Buyer shall have full control over the preparation and any subsequent
revisions to the Survey. Sellers agree to reasonably cooperate with Buyer in connection with the
foregoing.



          (c) Review of Preliminary Title Report/Survey. Not later than 5:00 p.m. PST on the
date that is the later to occur of the following: (I) five (5) Business Days following Buyer’s
receipt of the last of the Preliminary Title Report and the Survey; or (II) five (5) Business Days
following the Effective Date, Buyer shall have the right to notify Sellers in writing (“Disapproved
Title Exceptions Notice”) of Buyer’s disapproval of any matters set forth in the Preliminary Title
Report and the Survey (“Disapproved Title Exceptions”). In the event Buyer timely delivers to
Sellers a Disapproved Title Exceptions Notice, Sellers shall have the right, but not the
obligation, to agree to cure one or more of the Disapproved Title Exceptions by giving Buyer
written notice (“Cure Notice”) of such election not later than 5:00 p.m. PST on the date that is
five (5) Calendar Days following Sellers’ receipt of Buyer’s Disapproved Title Exceptions Notice.
Following the timely receipt of a Disapproved Title Exceptions Notice from Buyer, if Sellers fails
to timely deliver a Cure Notice to Buyer, then Sellers shall be deemed to have elected not to cure
any of the Disapproved Title Exceptions. A Disapproved Title Exception shall be deemed to have
been cured if Sellers cause such item to be removed from the record title of the Real Property
prior to the Closing or otherwise cure such Disapproved Title Exception as reasonably determined by
Buyer.




     In the event Sellers timely elect (or are deemed to have timely elected) not to cure the
Disapproved Title Exceptions, then prior to the expiration of the Investigation Period, Buyer may
elect: (i) to terminate this Agreement and the Escrow pursuant to the provisions of Section 4.2
hereof; or (ii) to not terminate this Agreement and the Escrow pursuant to Section 4.3 hereof, in
which case those Disapproved Title Exceptions which are not cured and which are not Monetary
Obligations which Sellers are obligated to cure on or before the Closing pursuant to Section 5.1(e)
hereof, shall be deemed to constitute Permitted Title Exceptions.



     Following the timely receipt of a Disapproved Title Exceptions Notice from Buyer, if the
Sellers elect to cure one or more of the Disapproved Title Exceptions, then the Sellers shall have
until the Cure Deadline to either: (y) cure all of the applicable Disapproved Title Exceptions that
Sellers have elected to cure and deliver written notice to Buyer of such cure; or (z) deliver
written notice to Buyer of Sellers’ failure to cure one or more of the Disapproved Title



14









 








Exceptions that Sellers have elected to cure. In the event Sellers: (A) timely elect to cure
one or more of the Disapproved Title Exceptions; and (B) fail to timely cure one or more of the
Disapproved Title Exceptions that Sellers have elected to cure on or before the Cure Deadline,
provided such Disapproved Title Exceptions are not the result of a breach by Sellers of Section
5.1(e) or Section 5.1(f) hereof, then Sellers shall not be in default under this Agreement and, in
such a case, within one (1) Business Day following Buyer’s receipt of Sellers’ notice of such
failure to cure, Buyer may elect to either: (1) continue this Agreement in effect without
modification and purchase and acquire the Property in accordance with the terms and conditions of
this Agreement, subject to such Disapproved Title Exceptions (which will be deemed to constitute
“Permitted Title Exceptions”); provided, however, in such a case, the Scheduled Closing Date shall
automatically be extended to the Extended Closing Date; or (2) terminate this Agreement and the
Escrow pursuant to the provisions of Section 8.5(a) hereof, unless one or more of such Disapproved
Title Exceptions are the result of a breach by Sellers of Section 5.1(e) or Section 5.1(f) hereof,
in which case the provisions of Section 8.6(a) hereof shall govern. Upon any termination of this
Agreement and the Escrow pursuant to Section 4.1(c)(2) hereof, in addition to Buyer’s rights and
remedies under Section 8.5(a) or 8.6(a) hereof, as applicable, Buyer shall be entitled to recover
from Sellers all of Buyer’s actual out-of-pocket legal fees, costs and expenses, together with all
other due diligence fees, costs and expenses, incurred in connection with this Agreement and its
review of the Property.



     Notwithstanding any provision in the Agreement to the contrary, in no event shall the term
“Permitted Title Exceptions” include any Monetary Obligations, and Sellers hereby agree to and
shall remove all Monetary Obligations on or before the Closing.



     Fee title to the Real Property shall be conveyed by Sellers to Buyer subject only to the
following exceptions to title (collectively, the “Permitted Title Exceptions”):



               (i) Non-delinquent real and personal property taxes and assessments.



               (ii) The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5, commencing with
Section 75, of the California Revenue and Taxation Code as a result of a change in ownership or new
construction occurring on or after the date of the policy.



               (iii) Any lien voluntarily imposed by Buyer.



               (iv) Any matters set forth in the Preliminary Title Report and the Survey that are approved by
Buyer in accordance with the procedures and within the time periods set forth in Section 4.1(c)
hereof.



               (v) All New Title Exceptions approved by Buyer pursuant to Section 4.1(d) hereof.



          (d) New Title Exceptions. In the event that prior to the Closing, any new title
exceptions are discovered by or revealed to Seller, which new title exceptions were not otherwise
set forth or referred to in the Preliminary Title Report and/or in the Survey (“New Title
Exceptions”), Sellers shall deliver written notice to Buyer disclosing the existence of such New
Title Exceptions, together with copies of all underlying documents. Each such New Title Exception
shall be deemed to constitute a Disapproved Title Exception except to the extent



15









 







Buyer gives Sellers written notice of Buyer’s approval of one or more New Title Exceptions
within five (5) Business Days (but in no event later than the Closing Date) after the date of
Buyer’s receipt of Sellers’ written notice of the existence of such New Title Exceptions (“New
Title Exceptions Approval Notice”). In the event Buyer timely delivers to Sellers a New Title
Exceptions Approval Notice, those New Title Exceptions approved by Buyer pursuant to the New Title
Exceptions Approval Notice shall be deemed to constitute Permitted Title Exceptions and the
remaining New Title Exceptions shall continue to constitute Disapproved Title Exceptions. On or
before the Cure Deadline, Sellers shall either: (i) cause all New Title Exceptions which are not
approved by Buyer pursuant to a New Title Exceptions Approval Notice (and which are therefore
deemed to constitute Disapproved Title Exceptions) to be cured and deliver written notice to Buyer
of such cure; or (ii) deliver written notice to Buyer of Sellers’ failure to cure one or more of
such Disapproved Title Exceptions. A New Title Exception which is deemed to constitute a
Disapproved Title Exception shall be deemed to have been cured if Sellers cause such item to be
removed from record title to the Real Property prior to the Closing or otherwise cures such New
Title Exception as reasonably determined by Buyer.



     In the event the Sellers do not timely cure one or more of those New Title Exceptions which
are deemed to constitute Disapproved Title Exceptions, then Buyer may elect, at any time on or
before the Closing Date, to either: (A) continue this Agreement in effect without modification and
purchase and acquire the Property in accordance with the terms and conditions of this Agreement,
subject to such New Title Exceptions (which will be deemed to constitute “Permitted Title
Exceptions”); provided, however, in such a case, the Scheduled Closing Date shall automatically be
extended to the Extended Closing Date; or (B) terminate this Agreement and the Escrow pursuant to
the provisions of Section 8.5(a) hereof, unless such New Title Exceptions are the result of a
breach by Sellers of Section 5.1(e) or Section 5.1(f) hereof, in which case the provisions of
Section 8.6(a) hereof shall govern. Upon any termination of this Agreement and the Escrow pursuant
to Section 4.1(d)(B) hereof, in addition to Buyer’s rights and remedies under Section 8.5(a) or
8.6(a) hereof, as applicable, Buyer shall be entitled to recover from Sellers all of Buyer’s actual
out-of-pocket legal fees, costs and expenses, together with all other due diligence fees, costs and
expenses, incurred in connection with this Agreement and its review of the Property.



     Notwithstanding any provision in this Agreement to the contrary, in no event shall the term
“Permitted Title Exceptions” include any Monetary Obligations, and Sellers hereby agree to and
shall remove all Monetary Obligations on or before the Closing.



          (e) Physical Inspection. Subject to the limitations set forth in this Section 4.1(e),
during the Investigation Period, Buyer shall have the right, at Buyer’s expense, to make
inspections (including tests, surveys and other studies) of the Real Property and all matters
relating thereto, including, but not limited to, soils and geologic conditions, location of
property lines, utility availability and use restrictions, environmental conditions, the manner or
quality of the construction of the Improvements, the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Real Property, the effect of applicable
planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the
character and amount of any fees or charges that must be paid to further develop, improve and/or
occupy the Real Property and all other matters relating to the Real Property. During the
Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to



16









 






enter upon the Real Property, at reasonable times during ordinary business hours, to make
inspections and tests as Buyer deems reasonably necessary and which may be accomplished without
causing any material damage to the Real Property. Without limiting the foregoing, Buyer may, in
Buyer’s sole discretion, cause a phase I environmental audit to be prepared by Building Analytics,
which shall be prepared at Buyer’s expense according to the standards of Buyer (the “Phase I”).
Buyer may contact Fay Adamson, Assistant Project Manager, Buie Stoddard Properties, 11260 El Camino
Real, Suite #200, San Diego, California 92130, Telephone: (858) 794-2400, Extension 237, to
schedule all such on-site inspections, and Sellers shall have the right to be present during such
inspections and tests. Notwithstanding the foregoing, in no event shall Buyer, its agents,
contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s
prior approval, which approval shall not be unreasonably withheld. Buyer shall not materially
interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or
tests, and shall return and restore the Property to substantially its original condition prior to
such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against
the Real Property in connection with Buyer’s investigation and inspection of the Real Property
and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and
shall indemnify, defend and hold harmless Sellers and their respective members, managers, partners,
officers, directors, shareholders, employees, agents, representatives, invitees, successors and
assigns, from and against any and all claims, demands, and causes of action for personal injury or
property damage, and all damages, judgments, liabilities, costs, fees and expenses (including
reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by
Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(e)
hereof.




          (f) Investigation of Permits and Entitlements, Contracts, Leases, Intangible Property,
Personal Property and Other Property. During the Investigation Period, Buyer shall have the
right, at Buyer’s expense, to conduct and complete an investigation of all matters pertaining to
the Permits and Entitlements, Contracts, Leases, Intangible Property, Personal Property and all
other items of Property and Buyer’s acquisition thereof. In this regard, at all times prior to the
Closing, Buyer shall have the right to contact governmental officials and other parties and make
reasonable inquiries concerning the Permits and Entitlements, Contracts, Leases, Intangible
Property, Personal Property and all other items of Property, and Buyer shall have no liability
whatsoever arising from its investigation. Sellers agree to reasonably cooperate with Buyer in
connection with its investigation of the Permits and Entitlements, Contracts, Leases, Intangible
Property, Personal Property and all other matters pertaining thereto.




     In the event Buyer disapproves or finds unacceptable, in Buyer’s sole and absolute discretion,
any matters reviewed by Buyer during the Investigation Period, Buyer may elect to terminate this
Agreement and the Escrow pursuant to the provisions of Section 4.2 hereof.



     Section 4.2 Election to Terminate. In the event Buyer desires to terminate this
Agreement and the Escrow for any reason or for no reason whatsoever, Buyer may elect to terminate
this Agreement and the Escrow at any time: (a) by giving Seller written notice of Buyer’s election
to terminate (“Buyer’s Election to Terminate”), not later than 5:00 p.m. PST on the date of
expiration of the Investigation Period; (b) by failing to timely deliver to Sellers Buyer’s
Election Not to Terminate pursuant to Section 4.3 hereof, which failure shall be deemed to
constitute Buyer’s Election to Terminate this Agreement and the Escrow pursuant to this



17









 







Section 4.2; and/or (c) by failing to timely deliver to Escrow Holder the Second Deposit
pursuant to Section 4.3 hereof, which failure shall be deemed to constitute Buyer’s Election to
Terminate this Agreement and the Escrow pursuant to this Section 4.2.



     In the event of any election (including any deemed election) by Buyer to terminate this
Agreement and the Escrow pursuant to this Section 4.2, this Agreement shall automatically terminate
(other than those provisions which expressly provide that they survive any termination of this
Agreement). Within two (2) Business Days after Buyer delivers Buyer’s Election to Terminate to
Sellers pursuant to this Section 4.2 (or within two (2) Business Days after Buyer is deemed to have
elected to terminate this Agreement and the Escrow pursuant to this Section 4.2, as applicable),
and without the need of any further authorization or consent from Sellers, Escrow Holder shall
cause to be paid to Buyer the Initial Deposit, together with all interest accrued thereon. Sellers
and Buyer shall execute such cancellation instructions as may be necessary to effectuate the
cancellation of the Escrow, as may be required by Escrow Holder. Any escrow cancellation, title
cancellation or other cancellation costs in connection therewith shall be borne equally by Buyer
and Sellers.



     Section 4.3 Election Not to Terminate. In the event Buyer desires not to terminate
this Agreement and the Escrow, on or before 5:00 p.m. PST on the date of expiration of the
Investigation Period, Buyer shall deliver written notice to Sellers of Buyer’s election not to
terminate this Agreement (“Buyer’s Election Not to Terminate”).



     In the event Buyer fails to timely deliver to Sellers Buyer’s Election Not to Terminate in
accordance with the provisions of this Section 4.3, such failure shall be deemed to constitute
Buyer’s Election to Terminate this Agreement in accordance with the terms and conditions of Section
4.2 hereof.



     In the event of Buyer’s delivery to Sellers of Buyer’s Election Not to Terminate pursuant to
this Section 4.3, Buyer shall be obligated to deliver the Second Deposit to Escrow Holder on or
before 5:00 p.m. PST one (1) Business Day after the expiration of the Investigation Period, in
accordance with Section 2.2(b) hereof. In the event Buyer fails to timely deliver the Second
Deposit to Escrow Holder, such failure shall be deemed to constitute Buyer’s Election to Terminate
this Agreement and the Escrow pursuant to Section 4.2 hereof.



     Section 4.4 Return of Seller’s Deliveries. Upon any termination of this Agreement and
the Escrow, Buyer shall cause to be delivered to Sellers all items representing Sellers’ Deliveries
which were previously delivered by Sellers to Buyer pursuant to this Agreement.



     Section 4.5 Confidentiality; Public Announcements.



          (a) Buyer’s Obligations. Buyer shall treat all of Sellers’ Deliveries as confidential
and proprietary information of Sellers. Buyer shall hold such information in confidence and shall
not disclose such information or materials to any third-parties other than Buyer’s attorneys,
employees, agents, consultants, contractors, subcontractors, accountants, investors and lenders on
a “need to know” basis. Buyer shall instruct any such outside parties described above to whom such
disclosure is made to treat and hold such information as confidential and proprietary. The
covenants of Buyer set forth in this Section 4.5 shall not apply



18









 






to any confidential information that: (a) is, or subsequently becomes, part of the public
domain other than as a result of a breach of this Agreement by Buyer; (b) was communicated to Buyer
from other sources at the time of disclosure by Sellers to Buyer and such prior knowledge can be
reasonably demonstrated by Buyer; and/or (c) is required by law to be disclosed. Nothing contained
herein shall preclude Buyer from disclosing all or any portion of such confidential information or
materials: (1) pursuant to or in connection with a judicial order, governmental inquiry, subpoena,
or other legal process; (2) as necessary or appropriate in connection with, or in order to prevent,
an audit; and/or (3) in order to initiate, defend or otherwise pursue legal proceedings between the
Parties in connection with this Agreement.




          (b) Public Announcements. Neither Seller, nor any of Sellers’ Affiliates, successors
or assigns, shall make any public announcements regarding the existence of this Agreement and/or
the transactions contemplated herein without the prior written approval of Buyer, which approval
may be granted or withheld in the sole and absolute discretion of Buyer.




          (c) Survival. The covenants and agreements of Buyer set forth in this Section 4.5(a)
hereof shall terminate and no longer be of any force or effect as of the Closing. The covenants
and agreements of Sellers set forth in Section 4.5(b) hereof shall survive the Closing
indefinitely.




ARTICLE 5

PRE-CLOSING AND POST-CLOSING OBLIGATIONS OF SELLERS




     Section 5.1 Sellers’ Pre-Closing Obligations. Sellers hereby covenant and agree as
follows:



          (a) Operations. During the time period commencing upon the Effective Date and
terminating upon the Closing or the earlier termination of this Agreement, subject to the
provisions of Section 8.3 hereof, Sellers shall operate and manage the Real Property substantially
in accordance with their customary practices.




          (b) Maintenance. During the time period commencing upon the Effective Date and
terminating upon the Closing or the earlier termination of this Agreement, subject to the
provisions of Section 8.3 hereof, Sellers shall maintain the Real Property in substantially its
present condition, subject to normal wear and tear, and Sellers shall not diminish the quality or
quantity of maintenance and upkeep services heretofore provided to the Real Property.




          (c) Leases. During the time period commencing upon the Effective Date and terminating
upon the Closing or the earlier termination of this Agreement, subject to the provisions of Section
8.3 hereof, Sellers shall administer and timely perform all of their respective obligations under
the Leases, shall not commit any default under the Leases and shall use commercially reasonable
efforts to cause any default by any Tenant under the Leases to be cured prior to the expiration of
the Investigation Period (but in no event later than the Closing Date). Furthermore, during the
time period commencing upon the Effective Date and terminating on the Closing or the earlier
termination of this Agreement, as applicable, Sellers shall not renew, extend, amend or modify any
of the Leases without the prior written consent of Buyer in each instance, which consent shall be
given or withheld in Buyer’s sole discretion.




19









 




Furthermore, during the time period commencing upon the Effective Date and terminating on the
Closing or the earlier termination of this Agreement, as applicable, Sellers shall not enter into
any new Lease (each, a “Proposed New Lease”), without the prior written consent of Buyer in each
instance, which consent shall be given or withheld in Buyer’s sole discretion. In the event a
Seller desires to enter into a Proposed New Lease, the applicable Seller shall deliver to Buyer a
copy of the Proposed New Lease for Buyer’s review in accordance with the provisions of this Section
5.1(c). Buyer shall have a period of five (5) Business Days following the receipt of such Proposed
New Lease to review and approve or disapprove of the same. Prior to the expiration of such five
(5) Business Day period, Buyer shall deliver written notice to Sellers advising Sellers of Buyer’s
approval or disapproval of such Proposed New Lease. In the event Buyer fails to timely deliver
such written notice of approval or disapproval within such five (5) Business Day period, then Buyer
shall be deemed to have approved such Proposed New Lease. All Proposed New Leases which are
approved by Buyer pursuant to the provisions of this Section 5.1(c), and which are subsequently
entered into and executed by Sellers, as applicable, shall be deemed to constitute a “New Lease”
for purposes of this Agreement. All references in this Agreement to the “Leases” shall mean and
include any New Leases entered into by Sellers, as applicable, and approved (or deemed approved) by
Buyer pursuant to this Section 5.1(c).




          (d) Notices/Violations. During the time period commencing upon the Effective Date of
this Agreement and terminating on the Closing or the earlier termination of this Agreement, Sellers
shall promptly deliver to Buyer any and all notices and/or other written communications delivered
to or received from: (i) any Tenant; (ii) any party under any of the Contracts; and/or (iii) any
governmental authority. During the time period commencing upon the Effective Date of this
Agreement and terminating on the Closing or the earlier termination of this Agreement, Sellers
shall deliver to Buyer prompt notice of: (A) the occurrence of any inspections of the Property by
any governmental authority; (B) any actual or alleged default by a party to any Contract; (C) any
actual or alleged default by any party to any Lease; (D) any notices of violations of laws,
ordinances, orders, directives, regulations or requirements issued by, filed by or served by any
governmental agency against or affecting Sellers or any part or aspect of the Property.




          (e) Monetary Obligations. Sellers shall pay and satisfy in full any and all Monetary
Obligations on or before the Closing Date.




          (f) New Liens, Liabilities or Encumbrances. Sellers shall not cause, grant or permit
any new liens, liabilities, encumbrances or exception to title to the Property without the prior
written consent of Buyer in each instance, which consent may be granted or denied in the sole and
absolute discretion of Buyer.




          (g) Tenant Estoppel Certificates. On or before the Estoppel Delivery Deadline,
Sellers shall deliver to Buyer a fully completed and executed estoppel certificate from each of the
Tenants (each, a “Tenant Estoppel Certificate”), each of which shall be dated effective no earlier
than thirty (30) Calendar Days prior to the Closing Date. The Sellers agree that each Tenant
Estoppel Certificate shall contain the same terms and be in the same form and substance as the form
of certificate attached hereto as Exhibit “I” and incorporated herein by reference, and shall
otherwise be in form and substance satisfactory to Buyer. Each Tenant Estoppel Certificate shall
be duly executed by the applicable Tenant thereof and each guarantor



20









 






of the applicable Lease, if any. In the event the Sellers are able to obtain Tenant Estoppel
Certificates from those Tenants representing the Minimum Tenant Square Footage Requirement on or
before the Estoppel Delivery Deadline, but Sellers are not able to obtain Tenant Estoppel
Certificates from all of the Tenants, then Sellers shall deliver to Buyer, prior to the Estoppel
Delivery Deadline, a landlord estoppel certificate in the form of Exhibit “I,” attached hereto and
incorporated herein by reference (each, a “Landlord Estoppel Certificate”), with respect to each
Lease for which a Tenant Estoppel Certificate has not been obtained in lieu of the Tenant Estoppel
Certificate for such Lease. If Sellers have not timely delivered a Tenant Estoppel Certificate
from those Tenants representing the Minimum Tenant Square Footage Requirement, or alternatively, if
Sellers have timely delivered a Tenant Estoppel Certificate from those representing the Minimum
Tenant Square Footage Requirement, but has not provided a Tenant Estoppel Certificate nor provided
a Landlord Estoppel Certificate to Buyer with respect to any remaining Lease before the Estoppel
Delivery Deadline, then, in such a case, Buyer may exercise one of the following options on or
before the Closing Date: (1) waive the requirement to receive the Estoppel Certificates which
Sellers failed to deliver, continue this Agreement in effect without modification and purchase and
acquire the Property in accordance with the terms and conditions of this Agreement; provided the
Scheduled Closing Date shall automatically be extended to the Extended Closing Date; or (2)
terminate this Agreement and the Escrow pursuant to the provisions of Section 8.5(a) hereof. Upon
Buyer’s receipt of the Estoppel Certificates, the provisions set forth in Sections 5.1(g)(i) and
(ii) shall apply.




               (i) Approval or Disapproval of Estoppel Certificates. Buyer shall have the right to
approve or disapprove of the Estoppel Certificates. If Buyer disapproves of any Estoppel
Certificate, then Buyer may deliver to Sellers written notice of Buyer’s disapproval (“Estoppel
Objection Notice”) within five (5) Business Days following Buyer’s receipt of the last of all the
Estoppel Certificates. The Estoppel Objection Notice shall describe in reasonable detail each item
of dissatisfaction or objection in particular (each, an “Estoppel Objection Matter” and
collectively, the “Estoppel Objection Matters”). If Sellers receive an Estoppel Objection Notice
within such five (5) Business Day period, then Sellers may, but shall not be obligated to, agree to
cure some or all of the Estoppel Objection Matters described in such Estoppel Objection Notice by
delivering written notice (“Estoppel Cure Notice”) to Buyer of Sellers’ election to cure some or
all of the Estoppel Obligation Matters within two (2) Business Days following Sellers’ receipt of
Buyer’s Estoppel Objection Notice. If the Sellers fail to deliver Sellers’ Estoppel Cure Notice to
Buyer within such time period, the Sellers shall be deemed to have elected to cure all such
Estoppel Objection Matters. If Sellers timely elect (or are deemed to have timely elected) to cure
one or more of the Estoppel Objection Matters, then the Sellers shall have until the Cure Deadline
to cure such Estoppel Objection Matters that Sellers have elected (or are deemed to have elected)
to cure, and shall pay all costs associated with such cure.



               (ii) Estoppel Remedies. If the Sellers either: (a) fail to cure an Estoppel Objection
Matter that Sellers have elected (or are deemed to have elected), to cure by the Cure Deadline; or
(b) elect not to cure one or more of the Estoppel Objection Matters, then, in such a case, Buyer
may exercise one of the following options on or before the Closing Date: (1) continue this
Agreement in effect without modification and purchase and acquire the Property in accordance with
the terms and conditions of this Agreement, subject to such Estoppel Objection Matters; provided,
however, in such a case, the Scheduled Closing Date shall



21









 




automatically be extended to the Extended Closing Date; or (2) terminate this Agreement and
the Escrow pursuant to the provisions of Section 8.5(a) hereof.




               (iii) Termination Provisions. In addition to Buyer’s rights and remedies under
Section 8.5(a) hereof, upon any election by Buyer to terminate this Agreement and the Escrow
pursuant to this Section 5.1(g), Buyer shall be entitled to recover from Sellers all of Buyer’s
actual out-of-pocket legal fees, costs and expenses, together with all other due diligence fees,
costs and expenses, incurred in connection with this Agreement and its review of the Property.



          (h) Termination of Negotiations. Sellers shall discontinue all marketing efforts with
respect to the sale of the Property and shall terminate all negotiations with any other Person
other than Buyer for the sale or disposition of the Property.




     Section 5.2 Sellers’ Post-Closing Obligations. Sellers hereby covenant and agree as
follows:



          (a) REIT Formation. Its is acknowledged and agreed that, as more particularly
described in that certain Proxy Statement of Arizona Land Income Corporation (“AZL”), as filed with
the Securities and Exchange Commission on or around December 12, 2007, certain Affiliates of the
Buyer are actively pursuing those certain transactions described in such Proxy Statement, including
but not limited to a transaction pursuant to which it is contemplated that (among other things):
(i) AZL will reincorporate as a Maryland corporation which is treated for tax purposes as a “real
estate investment trust” (as defined in the Code) (such reincorporated entity being referred to as
“POP Trust”), (ii) POP Trust will change its name to “Pacific Office Properties Trust, Inc.,” and
(iii) such Affiliates of the Buyer will, directly or indirectly, contribute various assets and/or
cash to a newly formed limited partnership (the “POP LP”) whose general partner will be POP Trust
(collectively, the “Reverse Merger”). It is further acknowledged and agreed that, as a result of
the Reverse Merger, POP Trust, POP LP, and/or their respective Affiliates (collectively, the
“Public Reporting Entities”) may be subject to various public reporting obligations including, but
not limited to, those imposed pursuant to the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, or, in each case, any regulations or administrative
pronouncements promulgated thereunder.




     Nothing in this Section 5.2 or elsewhere in this Agreement shall be deemed to constitute a
covenant, representation or warranty, express or implied, that POP Trust and/or POP LP will be
formed and/or that the Reverse Merger will be consummated.



          (b) SEC Requirements. Upon Buyer’s written request, for a period of two (2) years
following the Closing, Sellers shall make Sellers’ Books and Records available to Buyer for
inspection, copying and audit by Buyer’s designated accountants, at Buyer’s expense, to enable or
assist any of the Public Reporting Entities, or their successors and assigns, to make any necessary
or appropriate filings (as specified on Exhibit “K,” attached hereto and incorporated herein by
reference), if, as and when such filing may be required by the Securities and Exchange Commission
(“SEC”) or otherwise by applicable law. Furthermore, and without limiting the foregoing, for a
period of two (2) years following the Closing, Sellers, or, in the event one or both Sellers are
dissolved, an Affiliate of Sellers acceptable to Buyer in Buyer’s sole but



22









 






reasonable discretion, shall execute the form of audit letter contained in Exhibit “L,”
attached hereto and incorporated herein by reference, as the same may be modified from time to
time, as and when requested by Buyer.




          (c) Sellers Entity Requirements. For a minimum of thirteen (13) months following the
Closing, each Seller shall not dissolve or liquidate and shall remain an active entity in good
standing in the State of California.




          (d) Survival. The covenants and agreements set forth in this Section 5.2 hereof shall
survive the Closing for a period of two (2) years.




ARTICLE 6

SELLERS’ DELIVERIES




     Section 6.1 Sellers’ Deliveries to Escrow Holder at Closing. On or before 5:00 p.m.
PST on the last Business Day prior to the Closing Date, each Seller shall deliver to Escrow Holder
the items described in this Section 6.1(a) through (h), inclusive, and (k) through (m), inclusive,
hereof, and one or both of the Sellers, as applicable, shall deliver to Escrow Holder the items
described in Sections (i) and (j) hereof.



          (a) Grant Deed. One (1) original Grant Deed, duly executed and acknowledged by the
applicable Seller. Pursuant to Section 12.1(a)(i) hereof, all documentary transfer tax information
shall be affixed to each Grant Deed after recordation.




          (b) Bill of Sale. One (1) original of the Bill of Sale, duly executed by the
applicable Seller.




          (c) Certificate of Non-Foreign Status. One (1) original of the Certificate of
Non-Foreign Status, duly executed and acknowledged by the applicable Seller.




          (d) Assignment and Assumption of Leases and Security Deposits. Two (2) counterpart
originals of the Assignment and Assumption of Leases, duly executed by the applicable Seller.




          (e) Assignment of Permits, Entitlements and Intangible Property. Two (2) counterpart
originals of Assignment of Permits, Entitlements and Intangible Property, duly executed by the
applicable Seller.




          (f) California Form 593-W. A California Form 593-W, duly executed by the applicable
Seller.




          (g) Deficit Rental Agreement. Two (2) counterpart originals of the Deficit Rental
Agreement, duly executed by the applicable Seller.




          (h) REA Notice. A copy of a letter from the applicable Seller to each party to any
reciprocal easement and/or other easement or restrictive agreement which affects the Real Property
stating that the Real Property has been sold and that all notices under the agreement



23









 






relating to the Real Property should now be addressed to Buyer, if any such agreement requires
such notice.




          (i) Sellers’ Charges. In addition to the Purchase Price and other funds deposited by
Buyer with Escrow Holder, such funds as may be required to: (a) discharge all Monetary Obligations;
and (b) pay any amounts required to be paid by Sellers in accordance with the provisions of Article
11 hereof, in the form of Cash.




          (j) Sellers’ Affidavits; Certificates and Evidence of Authority. (a) Any and all
affidavits and any other written documentation required by the Title Insurer as a condition to the
issuance of the ALTA Extended Coverage Policy; and (b) evidence that Sellers and those acting for
Sellers have full authority to consummate the transaction contemplated by this Agreement, as
modified through the Closing including, without limitation, certified copies of the corporate or
other resolutions authorizing the transaction contemplated by this Agreement.




          (k) Sellers’ Closing Statement. Sellers’ Closing Statement, duly executed by each
Seller.




          (l) Additional Documents. Such additional documents, instructions or other items as
may be necessary or appropriate to comply with the provisions of this Agreement and to effect the
transactions contemplated hereby.




     Section 6.2 Sellers’ Deliveries to Buyer at Closing. On or before the Closing,
Sellers shall deliver to Buyer the items described in this Section 6.2.



          (a) Leases, Permits and Entitlements and Intangible Property. Originals, or if the
originals are not available, copies of all of the Leases, Permits and Entitlements and Intangible
Property in Sellers’ possession or control.




          (b) Tenant Notification Letters. A letter to each of the Tenants under the Leases, in
form and substance satisfactory to Buyer, advising such Tenants of the sale of the Property to
Buyer and directing the Tenants to tender all future payments under the Leases to Buyer.




          (c) Rent Roll. An updated, current rent roll relating to the Real Property, certified
by the applicable Seller and Property Manager as being true, correct and complete as of the Closing
Date.




          (d) Books and Records. The originals, or if the originals are not available, copies
of all of the Books and Records in Sellers’ possession or control, to the extent not previously
delivered by Sellers to Buyer.




          (e) Keys. All keys and security cards, if any, relating to the Real Property, and
such additional documents, instructions or other items as may be necessary to operate any security
systems on the Real Property.




          (f) Pre-Closing Property Expense Reconciliation. The Pre-Closing Property Expense
Reconciliation pursuant to Section 11.2(b)(i) hereof.





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ARTICLE 7

BUYER’S DELIVERIES




     On or before 12:00 p.m. PST on the Closing Date, Buyer shall deliver to Escrow Holder the
items described in this Article 7.



     Section 7.1 Closing Deposit. The Closing Deposit for the Property pursuant to Section
2.2(c) hereof.



     Section 7.2 Assignment and Assumption of Leases and Security Deposits. Two (2)
counterpart originals of the Assignment and Assumption of Leases and Security Deposits, duly
executed by Buyer.



     Section 7.3 Assignment of Permits, Entitlements and Intangible Property. Two (2)
counterpart originals of the Assignment of Permits, Entitlements and Intangible Property, duly
executed by Buyer.



     Section 7.4 Deficit Rental Agreement. Two (2) counterpart originals of the Deficit
Rental Agreement, duly executed by Buyer.



     Section 7.5 Buyer’s Charges. In addition to the Purchase Price and other funds
deposited by Buyer with Escrow Holder, funds sufficient to pay all amounts required to be paid by
Buyer in accordance with the provisions of Article 11 hereof, in the form of Cash.



     Section 7.6 Evidence of Authority. To the extent reasonably required by the Title
Insurer and/or Escrow Holder, as applicable, evidence that Buyer and those acting for Buyer have
full authority to consummate the transaction contemplated by this Agreement, as modified through
the Closing including, without limitation, certified copies of the corporate or other resolutions
authorizing the transactions contemplated by this Agreement.



     Section 7.7 Buyer’s Closing Statement. Buyer’s Closing Statement, duly executed by
Buyer.



     Section 7.8 Additional Documents. Such additional documents, instructions or other
items as may be reasonably necessary or appropriate to comply with the provisions of this Agreement
and to effect the transactions contemplated hereby.



ARTICLE 8

CONDITIONS TO CLOSING; CLOSING;

DEFAULT; REMEDIES




     Section 8.1 Conditions to Obligations of Buyer. The Closing of the transaction
contemplated pursuant to this Agreement and Buyer’s obligation to purchase the Property are subject
to satisfaction, prior to the Closing Date, of all of the conditions set forth below, the
determination of the satisfaction of which shall be made by Buyer, in its sole but reasonable
discretion. Sellers hereby acknowledge and agree that each of the conditions set forth in this
Section 8.1 are for the benefit of Buyer and may only be waived by Buyer in its sole but reasonable
discretion.



25









 





          (a) Delivery of Items. Sellers shall have timely delivered to Escrow Holder all of
the items to be delivered by Sellers pursuant to Section 6.1 hereof. Sellers shall have timely
delivered to Buyer all of the items to be delivered by Sellers pursuant to Section 6.2 hereof.




          (b) Performance of Obligations. Sellers shall have timely performed and satisfied all
of the obligations under this Agreement to be performed by Sellers prior to the Closing.




          (c) Title Commitment. Title Insurer is committed to issue an American Land Title
Association Owner’s Policy of Title Insurance with Extended Coverage (ALTA Form 1992), or its state
equivalent, together with such endorsements as may be requested by Buyer, including, without
limitation, an endorsement deleting the so-called “creditor’s rights exclusion” (Item No. 4 in the
Exclusions from Coverage section of such title policy), with liability in the amount of the
Purchase Price, insuring that fee title to the Real Property is vested in Buyer, subject only to:
(i) the exclusions listed in the “Exclusions from Coverage” of the ALTA Extended Coverage Title
Policy (other than Item No. 4 in such Exclusions from Coverage); and (ii) the Permitted Title
Exceptions (“ALTA Extended Coverage Policy”).




          (d) Representations and Warranties. All of Sellers’ representations and warranties
set forth in this Agreement shall be true and correct in all material respects on the Closing Date
as though made at the time of the Closing. Without limiting the foregoing, on or before the Closing
Date, Sellers shall have delivered to Buyer a written certificate, duly executed by each Seller,
certifying that all of the representations and warranties of Sellers set forth in this Agreement
are true and correct as of the Closing.




          (e) Litigation. No suit, action, claim or other proceeding shall have been instituted
or threatened against either Seller which results, or reasonably might be expected to result, in
the transactions contemplated by this Agreement being enjoined or declared unlawful, in any lien
attaching to or against the Property and/or in any liabilities or obligations being imposed upon
Buyer or the Property, other than the Permitted Title Exceptions.




          (f) Damage or Destruction. There shall have been no Material Loss.




          (g) Condemnation Proceeding. No Condemnation Proceeding shall have been instituted or
be threatened against all or any portion of the Real Property.




          (h) Termination of Contracts. All of the Contracts that would be binding on Buyer or
the Property following the Closing shall have been terminated effective as of a date not later than
the Closing Date, and Sellers shall have paid all amounts due under such Contracts up to and
through the effective date of termination including, without limitation, any termination fees or
similar payments, and neither Buyer nor the Property shall be bound thereby or have any liability
or obligations thereunder.




          (i) Evidence of Termination of Management Agreement. Written documentation reasonably
satisfactory to Buyer that the Management Agreement has been terminated effective as of a date not
later than the Closing Date, and that neither Buyer nor the Property shall be bound thereby or have
any liabilities or obligations thereunder.




26









 








          (j) Change in Conditions. There shall have been no material adverse change with
respect to: (i) the ownership, operation or occupancy or the financial or physical condition of the
Property or any part thereof (subject to Section 8.3 hereof); or (ii) the financial condition of
any Tenant.




          (k) No Delinquent Tenants. No Tenant is thirty (30) Calendar Days or more delinquent
in the payment of base rent, minimum rent or other amounts payable under the Tenant’s applicable
Lease.




     Buyer may waive any of the conditions set forth in this Section 8.1 by delivery of written
notice to Sellers on or before the Closing. Without limiting the foregoing, Escrow Holder shall
assume that each of the conditions set forth in Section 8.1(b) shall have been satisfied as of the
Closing Date, unless Buyer shall have given written notice to the contrary to Escrow Holder on or
before the Closing Date.



     Section 8.2 Conditions to Obligations of Sellers. The Closing of the transactions
contemplated pursuant to this Agreement and the obligation of Sellers to sell, convey, assign,
transfer and deliver the Property to Buyer are subject to satisfaction, prior to the Closing Date,
of all of the conditions set forth below, the determination of the satisfaction of which shall be
made by Sellers, in their sole but reasonable discretion. Buyer hereby acknowledges and agrees
that each of the conditions set forth in this Section 8.2 are for the benefit of Sellers and may
only be waived by Sellers in their sole but reasonable discretion.



          (a) Delivery of Items. Buyer shall have timely delivered to Escrow Holder all of the
items to be delivered by Buyer pursuant to Article 7 hereof.




          (b) Performance of Obligations. Buyer shall have performed all of the obligations of
Buyer under this Agreement to be performed by Buyer prior to the Closing.




     Sellers may waive any of the conditions precedent set forth in this Section 8.2 by delivery of
written notice thereof to Buyer. Escrow Holder shall assume that each of the conditions set forth
in this Section 8.2(b) shall have been satisfied as of the Closing Date, unless Sellers shall have
given written notice to the contrary to Escrow Holder on or before the Closing Date.




     Section 8.3 Casualty; Condemnation Proceeding.



          (a) Material Loss; Condemnation Proceeding. In the event that, prior to the Closing,
the Real Property shall suffer a Material Loss or Sellers shall receive notice of the commencement
or the threat of commencement of any eminent domain or condemnation proceeding which involves any
portion of the Real Property (“Condemnation Proceeding”), Sellers shall immediately notify Buyer of
such Material Loss or Condemnation Proceeding and, in such a case: (i) Buyer shall have the right
to terminate this Agreement and the Escrow pursuant to the terms of Section 8.5(a) hereof; or (ii)
accept the Property in its then existing condition and purchase and acquire the Property in
accordance with the terms and conditions of this Agreement, subject to the terms and conditions
described in this Section 8.3. In the event of a Material Loss, if Buyer exercises its right to
purchase and acquire the Property in its present condition, then Sellers shall pay or assign to
Buyer on the Closing any and all casualty insurance proceeds previously paid or payable to Sellers,
and Buyer shall be entitled to a credit against the





27









 







Purchase Price in an amount equal to any insurance deductible, as well as an amount equal to
the estimated costs, fees and expenses to repair and/or replace the uninsured portion of the
Material Loss, as determined by an independent third party general contractor mutually acceptable
to Buyer and Sellers. In the event of a Condemnation Proceeding, if Buyer exercises its right to
purchase and acquire the Property in its present condition, then Sellers shall pay or assign to
Buyer on the Closing any amount of compensation, awards or other payments or relief previously paid
or payable to Sellers resulting from such Condemnation Proceeding. Buyer’s termination right or
Buyer’s acceptance right shall be exercised by written notice to Sellers within thirty (30)
Calendar Days (but in no event later than the Closing Date) after Buyer receives written notice
from Sellers of the occurrence of the Material Loss or Condemnation Proceeding. In the event Buyer
elects to accept the Property and proceed to Closing pursuant to Section 8.3(a)(ii) hereof, then,
in such a case, the Scheduled Closing Date shall automatically be extended to the Extended Closing
Date.




          (b) Non-Material Loss. In the event that, prior to the Closing, the Real Property
shall suffer a Non-Material Loss, Sellers shall immediately notify Buyer of such Non-Material Loss
and, in such a case, Buyer shall be obligated to purchase the Property (in its then existing
condition) in accordance with the terms and conditions of this Agreement, subject to the terms and
conditions of this Section 8.3(b). In such a case, Sellers shall pay and assign to Buyer on the
Closing any and all casualty insurance proceeds previously paid or payable to Sellers, and Buyer
shall also be entitled to a credit against the Purchase Price in an amount equal to any insurance
deductible, as well as an amount equal to the estimated costs, fees and expenses to repair and/or
replace the uninsured portion of the Non-Material Loss, as determined by an independent third party
general contractor mutually acceptable to Buyer and Sellers. In the event such Non-Material Loss
is not covered by insurance, then Buyer shall be entitled to an offset against the Purchase Price
in an amount equivalent to the monetary value of such Non-Material Loss.




     Section 8.4 Closing. In the event all of the conditions set forth in this Agreement
are timely satisfied (or waived in writing by Buyer or Seller, as applicable), the closing of the
transaction contemplated by this Agreement (“Closing”) shall take place on April 15, 2008
(“Scheduled Closing Date”), at the offices of Escrow Holder, or on such other date and/or at such
other location as may be mutually agreed upon in writing by Seller and Buyer.



     Section 8.5 Failure of Conditions to Closing; No Default by Sellers or Buyer.



          (a) Failure of Buyer’s Closing Conditions. In the event one or more of Buyer’s
conditions to the Closing set forth in Section 8.1 hereof are not satisfied or otherwise waived by
Buyer on or before the Closing Date, and the failure of such conditions to be satisfied is not a
result of a default by Sellers or Buyer in the performance of their respective obligations under
this Agreement, then Buyer shall have the right to terminate this Agreement and the Escrow by
giving written notice of such termination to Sellers. Upon any election by Buyer to terminate this
Agreement and the Escrow pursuant to this Section 8.5(a), the provisions of Section 8.5(c) hereof
shall govern.




          (b) Failure of Sellers’ Closing Conditions. In the event one or more of Sellers’
conditions to the Closing set forth in Section 8.2 hereof are not satisfied or otherwise








28









 







waived by
Sellers on or before the Closing Date, and the failure of such conditions to be satisfied is
not a result of a default by Sellers or Buyer in the performance of their respective obligations
under this Agreement, then Sellers shall have the right to terminate this Agreement and the Escrow
by giving written notice of termination to Buyer. Upon any election by Sellers to terminate this
Agreement and the Escrow pursuant to this Section 8.5(b), the provisions of Section 8.5(c) shall
govern.




          (c) Termination Provisions. In the event either Party elects to terminate this
Agreement and the Escrow for the reasons and in accordance with the provisions set forth in this
Section 8.5, then: (i) this Agreement shall automatically terminate (other than those provisions
which expressly provide that they survive any termination of this Agreement); (ii) Escrow Holder
shall immediately cause the Deposit to be paid to Buyer without the need of any further written
authorization or consent from Sellers; and (iii) Sellers and Buyer shall execute such escrow
cancellation instructions as may be necessary to effectuate the cancellation of the Escrow as may
be required by Escrow Holder. Any Escrow cancellation, title cancellation and other cancellation
charges shall be borne equally by Sellers and Buyer.




     Section 8.6 Failure of Conditions to Closing; Default by Seller or Buyer. In the
event either Party defaults in the performance of any of their respective obligations to be
performed prior to the Closing, then the non-breaching Party may elect the applicable remedies set
forth in this Section 8.6, which remedies shall constitute the sole and exclusive remedies of the
non-breaching Party with respect to a default by the other Party under this Agreement.
Notwithstanding the foregoing, a valid termination of this Agreement by Buyer pursuant to Sections
4.2 or 8.5(a) hereof or a valid termination of this Agreement by Sellers pursuant to Section 8.5(b)
hereof shall not be deemed a termination due to the default of either Party and therefore, shall
not be subject to the provisions of this Section 8.6.




          (a) Remedies of Buyer. In the event Buyer is the non-breaching party, as its sole and
exclusive remedy, Buyer may elect to: (i) terminate this Agreement and the Escrow by giving Sellers
written notice describing Sellers’ default and setting forth Buyer’s election to immediately
terminate this Agreement and the Escrow; or (ii) pursue the equitable remedy of specific
performance of this Agreement. Furthermore, and without limiting the foregoing, in no event shall
Buyer have the right to bring or maintain a cause of action against Seller for monetary damages as
a result of Seller’s breach pursuant to this Section 8.6(a), other than: (A) causes of action
specifically authorized pursuant to the express terms and conditions of this Agreement; and (B)
common law causes of action for fraud, intentional misrepresentation, intentional concealment and
similar causes of action. In the event Buyer elects to terminate this Agreement and the Escrow
pursuant to this Section 8.6(a)(i) hereof, then Escrow Holder shall immediately cause the Deposit
to be paid to Buyer without the need of any further authorization or consent from Sellers pursuant
to the provisions of Section 8.6(d) hereof.




          (b) Remedies of Sellers. In the event Sellers are the non-breaching party, as
Sellers’ sole and exclusive remedy, Sellers may elect to terminate this Agreement and the Escrow by
giving Buyer written notice describing Buyer’s default and setting forth Sellers’ election to
immediately terminate this Agreement and Escrow. In the event Sellers elect to terminate this
Agreement and the Escrow pursuant to this Section 8.6(b), the sole and exclusive





29









 







remedy of
Sellers shall be to receive the amount specified as liquidated damages pursuant to Section
8.6(c) hereof.




          (c) SELLERS’ LIQUIDATED DAMAGES. IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE
PROPERTY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, AS A RESULT THEREOF,
SELLERS ELECT TO TERMINATE THIS AGREEMENT AND THE ESCROW PURSUANT TO SECTION 8.6(b) HEREOF, SELLERS
SHALL BE RELEASED FROM THEIR OBLIGATION TO SELL THE PROPERTY TO BUYER. IN SUCH A CASE, SELLERS
AND BUYER AGREE THAT IT WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE THE AMOUNT OF SELLERS’
DAMAGES AS A RESULT OF ANY SUCH BREACH BY BUYER, AND, ACCORDINGLY, AS SELLERS’ SOLE AND EXCLUSIVE
REMEDY AT LAW OR IN EQUITY, SELLERS SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES. SELLERS ACKNOWLEDGE AND AGREE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES
SHALL CONSTITUTE SELLERS’ EXCLUSIVE REMEDY ON ACCOUNT OF BUYER’S DEFAULT AND IN CONSIDERATION OF
THE PAYMENT OF SUCH LIQUIDATED DAMAGES, SELLER SHALL BE DEEMED TO HAVE WAIVED ALL OTHER CLAIMS AT
LAW OR IN EQUITY, INCLUDING ANY CLAIM OF SPECIFIC PERFORMANCE, EXCEPT FOR: (A) CLAIMS FOR INDEMNITY
PURSUANT TO SECTION 4.1(e); (B) ACTIONS FOR THE RETURN OF DOCUMENTS PURSUANT TO SECTION 4.4; (C)
ACTIONS TO EXPUNGE A LIS PENDENS OR OTHERWISE CLEAR TITLE OF ANY LIEN FILED OR IMPOSED BY BUYER;
AND (D) REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED BY SELLER INCIDENT TO CLAUSES (A) THROUGH
(C).




	 	 	 	 	 
	 	/s/ RI	 	/s/ MR	 
	 
	SELLERS’ INITIALS
	 	BUYER’S INITIALS






     THE PROVISIONS OF THIS SECTION 8.6(c) ARE INTENDED BY SELLERS AND BUYER TO COMPLY WITH THE
STATUTORY REQUIREMENTS SET FORTH IN CALIFORNIA CIVIL CODE SECTION 1671.



          (d) Termination Provisions. In the event either Party elects to terminate this
Agreement and the Escrow for the reasons and in accordance with the provisions set forth in this
Section 8.6, then: (i) this Agreement will automatically terminate (other than those provisions
which expressly provide that they survive any termination of this Agreement) without any further
acts of either Sellers or Buyer; (ii) Sellers and Buyer shall execute such escrow cancellation
instructions as may be necessary to effectuate the cancellation of the Escrow as may be required by
Escrow Holder; and (iii) Escrow Holder shall immediately cause the Deposit to be distributed and
paid in accordance with the provisions of this Agreement. The breaching party hereunder shall pay
any and all escrow and title cancellation costs incurred in connection herewith.




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ARTICLE 9

REPRESENTATIONS AND WARRANTIES OF SELLERS




     In addition to the representations, warranties and covenants of Sellers contained elsewhere in
this Agreement, Sellers hereby make the following representations and warranties, each of which is
material and being relied upon by Buyer and shall be true as of the date hereof and as of the
Closing:



     Section 9.1 Organization, Power and Authority. Building A Seller is a limited
liability company duly organized and validly existing under the laws of the State of California.
Lot 10 Seller is a limited liability company duly organized and validly existing under the laws of
the State of California. Each Seller has all requisite power and authority to own the Property, to
execute and deliver this Agreement and the Transaction Documents to which such Seller is a party,
and to perform its obligations hereunder and thereunder and effect the transactions contemplated
hereby and thereby. All requisite limited liability company or other action has been taken to
authorize and approve the execution, delivery and performance by each Seller of this Agreement and
the Transaction Documents to which such Seller is a party.



     Section 9.2 No Conflicts. The execution, delivery and performance by Sellers of this
Agreement and the Transaction Documents to which Sellers are a party, and the consummation of the
transactions contemplated hereby and thereby, will not: (a) violate any provision of the
organizational documents of each Seller; (b) violate, conflict with or result in a breach of or
default under any term or provision of any contract or agreement to which either Seller is a party
or by or to which either Seller or any of its respective assets or properties are or may be bound
or subject; or (c) violate any order, judgment, injunction, award or decree of any court or
arbitration body, or any governmental, administrative or regulatory authority, or any other body,
by or to which either Seller or the Property are or may be bound or subject.



     Section 9.3 Non-Foreign Status. Neither Seller is a “foreign person” as such term is
defined in Section 1445 of the Code.



     Section 9.4 Litigation and Condemnation. Neither Seller has received written notice
of and, to the best of each Seller’s knowledge and belief, there are no: (a) pending or threatened
claims, actions, suits, arbitrations, proceedings (including Condemnation Proceedings) or
investigations by or before any court or arbitration body, any governmental, administrative or
regulatory authority, or any other body, against or affecting the Property or the transactions
contemplated by this Agreement; and (b) orders, judgments or decrees of any court or arbitration
body, any governmental, administrative or regulatory authority, or any other body, against or
affecting the Property or the transactions contemplated by this Agreement.



     Section 9.5 Liabilities. Upon the Closing, neither Buyer nor the Property will be
subject to any liabilities or obligations, whether secured, unsecured, accrued, absolute,
contingent or otherwise, that relate to Sellers’ respective ownership of the Property prior to the
Closing, other than the Leases and the Permitted Title Exceptions.



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     Section 9.6 Fees. There are no impact, mitigation or similar fees owing or payable in
connection with the construction, development, installation and/or operation of the Real Property.



     Section 9.7 Mechanic’s Liens. There are no fees, dues or other charges which are due,
owing or unpaid in connection with the construction of or any repairs to the Real Property. There
are no pending or threatened claims which may or could ripen with the passage of time into a
mechanic’s lien upon the Real Property as the result of any contract, agreement or work performed
on the Real Property.



     Section 9.8 Leases. The rent roll, which is included as part of Sellers’ Deliveries,
and which is attached hereto as Schedule 9.8 and incorporated herein by reference, is a true,
correct and complete list of the Leases and Tenants including, but not limited to, the description,
by agreement and document name and date, of each Lease, together with any amendments, assignments
and other documents with respect thereto. The rent roll includes an addendum describing, with
respect to each Lease, the amount of any advance or prepaid rentals which have not accrued, rental
holidays which have not expired and other allowances granted any Tenant which have not been fully
utilized, if any. All of the information on the rent roll, including the description of the space,
the rent and other charges payable by Tenants, the terms and options to renew, and the Security
Deposits, also is complete, true and correct. The Leases provided to Buyer pursuant to Section
4.1(a) hereof are true and correct copies thereof and such Leases have not been amended or
modified. Sellers are the “Landlord” or “Lessor” under each of the Leases and has full power and
authority to assign the same to Buyer. Neither Seller has received written notice of any uncured
event of default with respect to the performance of any of their respective obligations under the
Leases. To the best of each Seller’s knowledge, each of the Leases is in full force and effect and
there is no monetary or non-monetary default under any Lease by either the landlord or the tenant
thereunder, nor has an event occurred which with the giving of notice or the passage of time or
both would result in a default thereunder by either the landlord or the tenant thereunder. To the
best of each Seller’s knowledge, no valid claims or rights of offset exist with respect to the
Leases. Except as provided on Schedule 9.8 attached hereto and incorporated herein by reference,
no Leasing Commissions, Tenant Inducement Costs or other amounts are now payable to any Person
under any agreement or understanding in connection with any Lease or the renewal thereof, or any
other options thereunder, nor does there exist any Leasing Commissions, Tenant Inducement Costs or
other amounts which may become payable to any Person under any agreement or understanding in
connection with any Lease or renewal thereof, or any options thereunder. To the best of each
Seller’s knowledge, there is no intention or indication of intention by any Tenant to terminate its
Lease or to limit, amend or alter its Lease or its use or occupancy. Neither Seller has previously
assigned, pledged, transferred, hypothecated or conveyed the Leases or any interest therein. All
of the work (including all tenant improvements) to be constructed and installed by the landlord in
the leased premises pursuant to the Leases is complete and fully paid for and/or will be complete
and fully paid for on or before the Closing.



     Section 9.9 Contracts. All of the Contracts are terminable without penalty upon not
more than thirty (30) Calendar Days’ notice. There are no Contracts with any person or entity
relating to the Property which must be assumed by Buyer (or which will be deemed assumed by the
Buyer upon the Buyer becoming the owner of the Property).



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     Section 9.10 Taxes and Assessments. To the best of each Seller’s knowledge, there are
no pending or threatened improvements, liens, or special assessments made or to be made against the
Property by any governmental authority.



     Section 9.11 Construction and Condition of Improvements. To the best of each Seller’s
knowledge, all of the Improvements have been constructed and installed in accordance with
applicable codes, laws, ordinances, rules, regulations, permits and approvals and have been
completed in a professional and workmanlike manner and are in good operating condition and repair.
To the best of each Seller’s knowledge, all of the heating, ventilation and air conditioning
systems, plumbing, fire protection, security and other mechanical and electrical systems of the
Improvements have been constructed and installed in accordance with applicable codes, laws,
ordinances, rules, regulations, permits and approvals, have been completed in a professional and
workmanlike manner and are in good operating condition and repair. To the best of each Seller’s
knowledge, there are no latent defects in any of the Improvements, and the structural components,
foundations, roofs, walls and fixtures are in good operating condition and repair, and the roofs,
foundations and structural components are free from leaks, and the Improvements are free from
termite and other infestation. To the best of each Seller’s knowledge, there are no defects or
inadequacies in the Real Property that might adversely affect the insurability of the same or that
might cause an increase in the insurance premiums therefor.



     Section 9.12 Financial Statements; Books and Records. Each of the financial
statements provided to Buyer pursuant to Section 4.1(a) hereof: (i) is in accord with the Books and
Records of Sellers, as applicable; (ii) presents fairly, completely and accurately the results of
operations for the respective periods covered thereby; and (iii) is prepared in accordance with
generally accepted accounting principles. All of the Books and Records relating to the Property
delivered to Buyer fairly, completely and accurately reflect the ownership, operation and occupancy
of the Property and all income received and expenses incurred by Sellers, respectively, in
connection therewith.



     Section 9.13 Compliance with Laws. In all material respects, each Seller has
complied, and is currently in compliance with, all federal, state and local laws, regulations and
ordinances applicable to the development, ownership, operation, maintenance and management of the
Real Property, and/or otherwise applicable to such Seller, including, without limitation, all laws,
regulations and ordinances relating to zoning, planning, land use and building restrictions,
construction, Environmental Laws, subdivision, fire, health and safety, disability and alcoholic
beverage sales. The Real Property, in all material respects, is in compliance with all applicable
laws, ordinances, rules and regulations (including without limitation those relating to zoning and
the requirements of Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181, et
seq., the Provisions Governing Public Accommodations and Services Operated by Private Entities),
and all regulations promulgated thereunder, and all amendments, revisions or modifications
thereto), and neither Seller has received notice or has any knowledge of a violation of any such
laws, rules or regulations. Neither Seller has received notice or has any knowledge that any
government agency or any employee or official considers the construction of the Real Property or
its operation or use to have failed to comply, in any material respect, with any law, ordinance,
regulation or order or that any investigation has been commenced or is contemplated respecting any
such possible failure of compliance. In all material respects, there are no unsatisfied
requirements for repairs, restorations or improvements from any person, entity or



33









 




authority, including, but not limited to, any tenant, lender, insurance carrier or
governmental authority. All driveway entrances and exits to the Real Property are permanent and no
special access or other permits are required to maintain the same. All existing streets and other
improvements, including water lines, sewer lines, sidewalks, curbing and streets at the Real
Property either enter the Real Property through adjoining public streets, or, if they enter through
adjoining private lands, do so in accordance with valid, irrevocable easements running to the
benefit of the owner of the Real Property. Neither Seller has received from any insurance company
or Board of Fire Underwriters any notice, which remains uncured, of any defect or inadequacy in
connection with the Real Property or its operation.




     Section 9.14 Environmental Matters. To the best of each Seller’s knowledge: (i) the
Improvements are free from Hazardous Materials; (ii) the soil, surface water and ground water of,
under, on or around the Real Property are free from Hazardous Materials; (iii) the Real Property
has never been used for or in connection with the manufacture, refinement, treatment, storage,
generation, transport or hauling of any Hazardous Material in excess of levels permitted by
applicable Environmental Laws, nor has the Real Property been used for or in connection with the
disposal of any Hazardous Materials; and (iv) the Real Property is now and at all times has been in
compliance with all Environmental Laws.



     Section 9.15 Permits and Entitlements. To the best of each Seller’s knowledge,
Sellers have obtained, respectively, all governmental permits, licenses, approvals and
authorizations (including, but not limited to, the Permits and Entitlements) required for the
ownership, operation, maintenance and management of the Property, and all such permits, licenses,
approvals and authorizations (including, but not limited to, the Permits and Entitlements) are in
full force and effect and, to the extent the same are material, are transferable to Buyer.



     Section 9.16 Dependent Properties. Except for the benefits and burdens under
reciprocal easement agreements, where applicable, the continued maintenance, occupancy and
operation of the Real Property is not now, and on the Closing Date will not be, dependent to any
extent on improvements or facilities located at any other property, and the continued maintenance,
occupancy and operation of any other property is not dependent to any extent on improvements or
facilities located on the Real Property (including, but not limited to, the Improvements or the
Personal Property).



     Section 9.17 Utilities. The Real Property has full access rights and is connected to
water, sanitary sewer, storm water, gas, electricity, oil, telephone, cable and other utilities
required for the ownership, operation and occupancy of the Real Property (collectively, the
“Utilities”). To the best of each Seller’s knowledge and belief, all such Utilities: (i) are
installed, connected and are currently in use by Sellers, respectively, on the Real Property; (ii)
were constructed and installed in accordance with all applicable codes, laws, ordinances, rules,
regulations, permits and approvals; (iii) have been completed in a professional and workmanlike
manner and are in good operating condition and repair; and (iv) are sufficient in size and capacity
(and pressure, where applicable) to service and accommodate the reasonably expected needs and
operations of the Real Property. To the best of each Seller’s knowledge and belief, none of the
Utilities and/or any of the lines, pipes, conduits, valves, pumps, heads, hoses, tubes, or related
equipment or facilities, are located outside the boundaries of the Real Property and/or encroach
onto any adjoining real property, or, to the extent that such Utilities and/or any of the



34









 




lines, pipes, conduits, valves, pumps, heads, hoses, tubes, or related equipment or
facilities, are located outside the boundaries of the Real Property and/or encroach onto any
adjoining real property, the same do so in accordance with legal, valid and enforceable permanent
non-terminable easements, which will inure to the benefit of Buyer, its successors and assigns, as
the owner of the Real Property.




     Section 9.18 Prohibited Persons and Transactions. Neither Seller, nor any of their
respective affiliates, nor any of their respective members, and none of their respective officers
or directors is, nor prior to Closing, or the earlier termination of this Agreement, will become, a
person or entity with whom U.S. persons or entities are restricted from doing business under the
regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury
(including those named on OFAC’s Specially Designated Blocked Persons List) or under any U.S.
statute, executive order (including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism), or
other governmental action and is not, and prior to Closing or the earlier termination of this
Agreement will not, engage in any dealings or transactions with or be otherwise associated with
such persons or entities.



     Section 9.19 Integrity of Documents. Sellers have furnished to Buyer all items
constituting Sellers’ Deliveries and all of the information contained in Sellers’ Deliveries is
true and correct in all material respects and contains no material misrepresentations or omissions
of material facts. To the best of each Seller’s knowledge, all of the information contained in the
Reports is true and correct in all material respects and contains no material misrepresentations or
omissions of material facts. The information contained in the attached Exhibits and Schedules is
true and correct in all material respects and contains no material misrepresentations or omissions
of material facts. The representations and warranties of Sellers contained in this Agreement are
true and correct in all material respects and contain no material misrepresentations or omissions
of material facts.



     Section 9.20 Survival. The representations and warranties of Sellers set forth in
Sections 9.1 through 9.3, inclusive, and Section 9.18 hereof, as well as the right and ability of
Buyer to enforce the same and/or to seek damages for its breach, shall survive the Closing. The
representations and warranties of Sellers set forth in Sections 9.4 through 9.17, inclusive, and
Section 9.19 hereof, as well as the right and ability of Buyer to enforce the same and/or to seek
damages for its breach, shall survive the Closing for a period of one (1) year. In this regard,
Buyer must: (a) notify Sellers of any such claim on or before the expiration of such one (1) year
period; and (b) file any action related to such claim within one (1) year from the Closing Date.



     Section 9.21 Sellers’ Representations and Warranties; Reimbursement for Due Diligence
Costs. The continued accuracy in all material respects of the aforesaid representations and
warranties is a condition precedent to Buyer’s obligation to close. If any of said representations
and warranties are not correct in all material respects at the time the same is made or as of
Closing and Sellers had no knowledge of such inaccuracy when the representation or warranty was
made (or when deemed remade at Closing) or if such warranty or representation becomes inaccurate on
or prior to Closing other than by reason of Sellers’ default hereunder, Buyer may, upon being
notified in writing by Sellers of such occurrence on or prior to Closing, either: (a) terminate
this Agreement and Escrow pursuant to the provisions of Section 8.5(a)



35









 




hereof; or (b) waive such matter and proceed to Closing. If any of said representations and
warranties are not correct in all material respects at the time the same is made or as of Closing,
and Sellers had knowledge of such inaccuracy when the representation or warranty was made, or, by
Sellers’ default hereunder caused the representation or warranty to be inaccurate when deemed
remade at Closing, Buyer may either: (a) terminate this Agreement pursuant to the provisions of
Section 8.6(a) and recover from Sellers all of Buyer’s actual out-of-pocket legal fees, costs and
expenses, together with all other due diligence fees, costs and expenses, incurred in connection
with this Agreement and its review of the Property; or (b) waive the breach and proceed to Closing;
provided, however, in such a case, the Scheduled Closing Date shall automatically be extended to
the Extended Closing Date.




     Section 9.22 Seller’s Knowledge Defined. Any reference to “Seller’s knowledge” in
this Agreement shall refer only to the current actual knowledge of each Seller’s principal, Robert
M. Irish, following reasonable inquiry and investigation, which reasonable inquiry and
investigation will include, without limitation, contacting the Property Manager and making
appropriate inquiries and investigations. Buyer acknowledges and agrees that the use of the named
individual is solely for the purpose of establishing a standard for measurement of Seller’s
knowledge, and nothing herein shall impose any personal liability on such individual for any
representation, warranty or covenant of Sellers hereunder.



ARTICLE 10

REPRESENTATIONS, WARRANTIES, COVENANTS AND

AGREEMENTS OF BUYER




     Buyer hereby makes the following representations and warranties, each of which representation
and warranty is: (a) material and being relied upon by Sellers; and (b) true, complete and not
misleading in all material respects as of the date hereof and as of the Closing.



     Section 10.1 Organization, Power and Authority. Buyer is a limited partnership duly
organized and validly existing under the laws of the State of California. Buyer has all requisite
power and authority to execute and deliver this Agreement and the Transaction Documents to which
Buyer is a party, and to perform its obligations hereunder and thereunder and to effect the
transactions contemplated hereby and thereby. All requisite corporate or other action has been
taken to authorize and approve the execution, delivery and performance by Buyer of this Agreement
and the Transaction Documents to which Buyer is a party.



     Section 10.2 No Conflicts. The execution, delivery and performance by Buyer of this
Agreement and the Transaction Documents to which Buyer is a party, and the consummation of the
transactions contemplated hereby and thereby, will not: (a) violate any provision of Buyer’s
organization documents; (b) violate, conflict with or result in a breach of or default under any
term or provision of any contract or agreement to which Buyer is a party or by or to which Buyer or
any of its assets or properties are or may be bound or subject; or (c) violate any order, judgment,
injunction, award or decree of any court or arbitration body, or any governmental, administrative
or regulatory authority, or any other body, by or to which Buyer is or may be bound or subject.



36









 





     Section 10.3 Survival. The representations and warranties of Buyer set forth in this
Agreement, as well as the right and the ability of Seller to enforce them and/or seek damages for
their breach, shall survive the Closing.



ARTICLE 11

COSTS, EXPENSES AND PRORATIONS




     Section 11.1 Costs and Expenses.



          (a) Sellers. Sellers shall pay: (i) all recording costs, documentary transfer taxes,
deed stamps and similar costs, fees and expenses payable in connection with the recordation of each
Grant Deed; (ii) the premium for the ALTA Extended Coverage Policy; (iii) the cost of any binders
or endorsements to the ALTA Extended Coverage Policy requested by Buyer; (iv) all costs, fees and
expenses payable in connection with the discharging of all Monetary Obligations; (v) one-half (1/2)
of Escrow Holder’s fees and costs for the Escrow; (vi) Sellers’ share of prorations; and (vii)
Seller’s attorneys’ fees.




          (b) Buyer. Buyer shall pay: (i) one-half (1/2) of Escrow Holder’s fees and costs for
the Escrow; (ii) Buyer’s share of prorations; and (iii) Buyer’s attorneys’ fees.




     Section 11.2 Prorations, Costs and Expenses.



          (a) Prorations and Adjustments. The following adjustments and prorations shall be
made as of 12:01 a.m. on the Closing Date (“Proration Date”), as though Buyer held title to the
Property throughout the entire day in which the Closing occurs. Such adjustments and prorations
shall be made on the basis of: (i) a 365-day year with respect to Taxes as provided in Section
11.2(a)(iii) hereof; and/or (ii) the number of days in the calendar month in which the Closing Date
occurs with respect to Revenues and Operating Expenses as provided in Sections 11.2(a)(i) and (ii),
respectively, hereof, subject to the following provisions:




               (i) Revenues. All rentals, receipts and other revenues (including, but not limited
to, reimbursements for Property Expenses, common area maintenance, real and personal property
taxes, insurance and other operating expense reimbursements, if applicable, but excluding
percentage rent, if applicable) (collectively, the “Revenues”), billed to Tenants by Sellers,
respectively, as of the Closing, but which are properly allocable to the period after the Proration
Date, shall be credited to Buyer at the Closing. To the extent there are any Revenues owing to
Sellers, respectively, as of the Closing which relate to periods of time prior to the Proration
Date, but which have not actually been collected by Sellers as of the Closing (“Delinquent
Revenues”), Buyer shall not be obligated to pay to Sellers (or give Sellers a credit for), the
amount of such Delinquent Revenues on the Closing. All Revenues which are received by Sellers or
Buyer subsequent to the Closing Date shall be applied: first, to amounts due to Buyer; and second,
to Delinquent Revenues due to Sellers. Each Seller and Buyer hereby agree to promptly remit to the
other the amount of any Revenues received and owing to each other pursuant to the provisions of
this Section 11.2(a)(i). Notwithstanding any provision of this Section 11.2 to the contrary,
Sellers retain their respective rights to recover Delinquent Revenues, including, without
limitation, the right to collect (provided, however, Sellers shall not have the right to file and
maintain a lawsuit or other legal proceeding against a delinquent Tenant



37









 




or evict a delinquent Tenant) the same from delinquent Tenants and/or third parties
responsible for payment of such Delinquent Revenues. Buyer, at no cost and expense to Buyer, shall
use commercially reasonable efforts (provided such commercially reasonable efforts shall not
include an obligation to file and maintain a lawsuit or other legal proceeding against a delinquent
Tenant or other third party or to evict a delinquent Tenant) to enforce the provisions of the
Leases which require the Tenants to pay to Sellers such Delinquent Revenues.




               (ii) Operating Expenses. All costs, fees and expenses (other than management fees and
salaries) relating to the operation, management and repair of the Property, excluding Taxes,
Leasing Commissions and Tenant Inducement Costs (collectively, the “Operating Expenses”), shall be
prorated between Seller and Buyer at the Closing as of the Proration Date.



               (iii) Real and Personal Property Taxes. (A) All general and special real and personal
property taxes and assessments (collectively, the “Taxes”), based on the regular tax bill for the
current fiscal year (or, if such tax bill has not been issued as of the date of the Closing, the
regular tax bill for the fiscal year preceding the current fiscal year) shall be prorated between
Seller and Buyer at the Closing as of the Proration Date. Without limiting the foregoing, any and
all accrued and unpaid supplemental or special real property taxes or assessments that relate to
any time period prior to the Proration Date shall be the responsibility of Sellers and, if not paid
prior to or at Closing, shall be credited to the Buyer at Closing, and any and all supplemental or
special real property taxes or assessments that relate to any time period on or after the Proration
Date shall be the responsibility of Buyer and if paid by Sellers prior to or at Closing, shall be
credited to Seller at Closing. Without limiting the foregoing, in the event any supplemental or
special real property taxes or assessments are levied prior to Closing, but are due and payable in
one or more installments subsequent to the Closing, such supplemental or special real property
taxes or assessments shall be allocated on a pro rata basis over the applicable payment period in
question and prorated between Sellers and Buyer as of the Proration Date. Notwithstanding any of
the terms and conditions to the contrary contained in this Section 11.2(a)(iii), in the event any
such Taxes are paid for directly by the Tenants to the applicable taxing authorities, such Taxes
shall not be prorated between Sellers or Buyer



               (iv) Percentage Rent. Any percentage rent payable under each Lease for the year in
which the Closing occurs shall be prorated between Sellers and Buyer as of the Proration Date.
Seller and Buyer acknowledge that sufficient information to enable Sellers and Buyer to prorate
percentage rent will not be available as of the Closing. Accordingly, the proration contemplated
in this Section 11.2(a)(iv) shall be conducted subsequent to the Closing pursuant to Section
11.2(d) hereof.



               (v) Assumed Contracts. All Operating Expenses accruing under, arising out of or
relating to any of the Assumed Contracts shall be prorated between Sellers and Buyer at the Closing
as of the Proration Date.



          (b) Property Expense Pass-Throughs. To the extent the Leases require the Tenants to
reimburse Sellers for Operating Expenses and/or Taxes (collectively, the “Property Expenses”), in
the event such Property Expenses are reconciled under the terms of the Leases at the end of the
calendar year in which the Closing takes place, to reflect the actual Property





38









 







Expenses incurred for the calendar year, such calendar year shall be deemed to constitute the
“Reconciliation Period” for purposes of this Agreement and the following provisions shall apply:




               (i) On or before the Closing, Sellers shall be responsible for computing and comparing on a
Tenant-by-Tenant basis and delivering to Buyer a written statement setting forth: (A) the amount of
Property Expenses incurred and actually paid by Sellers with respect to the Reconciliation Period;
and (B) the amount of Property Expenses actually received by Sellers from the Tenants and/or third
parties under the Leases with respect to the Reconciliation Period (“Pre-Closing Property Expense
Reconciliation”).



               (ii) Within sixty (60) Calendar Days following the expiration of the Reconciliation Period,
Buyer shall compute the actual Property Expenses incurred and paid by Sellers and Buyer and the
actual Property Expenses reimbursed (or not reimbursed) by the Tenants and/or third parties
(whether in the form of estimated payments or otherwise), to Sellers and/or Buyer with respect to
the Reconciliation Period (“Property Expense Reconciliation”). Following the completion of the
Property Expense Reconciliation, Buyer shall submit the same to Sellers for Sellers’ review and
approval, which approval shall not be unreasonably withheld or delayed. In the event Sellers fails
to approve or disapprove of the Property Expense Reconciliation within ten (10) Business Days
following the receipt of the same, such Property Expense Reconciliation shall be deemed approved by
Sellers. Following the approval (or deemed approval) by Sellers of the Property Expense
Reconciliation, Buyer shall forward the Property Expense Reconciliation to the applicable Tenants.
Buyer hereby covenants to use reasonable efforts to enforce the provisions of the Leases which
require the Tenants and/or third parties to reimburse the landlord for Property Expenses with
respect to the Reconciliation Period. To the extent Buyer or either Seller receives any such
Property Expense reimbursement payments with respect to the Reconciliation Period, the same shall
constitute Revenues and shall be paid to Sellers or Buyer in the manner contemplated in Section
11.2(a)(i) hereof.



               (iii) Following the completion of the Property Expense Reconciliation, if the Property
Expenses incurred and paid by Sellers for that portion of the Reconciliation Period in question
preceding the Closing exceed the reimbursed Property Expenses actually received by Sellers from the
Tenants and/or third parties under the Leases (whether in the form of estimated payments or
otherwise), with respect to the Reconciliation Period (“Property Expense Reimbursement Shortfall”),
Buyer shall pay to Sellers an amount equal to such Property Expense Reimbursement Shortfall, to the
extent that Buyer shall have collected and received such actual identifiable amounts from the
Tenants and/or third parties under the Leases, within ten (10) Business Days following Buyer’s
collection and receipt of the same. If the reimbursed Property Expenses received by Sellers from
the Tenants and/or third parties under the Leases (whether in the form of estimated payments or
otherwise), with respect to the Reconciliation Period preceding the Closing exceed the Property
Expenses incurred and paid by Sellers with respect to the Reconciliation Period (“Property Expense
Reimbursement Surplus”), then Sellers shall pay an amount equal to such Property Expense
Reimbursement Surplus to Buyer within ten (10) Business Days after Sellers’ receipt of the Property
Expense Reconciliation. Upon Sellers’ payment to Buyer of any such Property Expense Reimbursement
Surplus, Buyer shall be obligated to reimburse or credit the Tenants for such Property Expense
Reimbursement Surplus as required under their respective Leases.



39









 





               (iv) Sellers and Buyer hereby agree to reasonably cooperate with each other in connection with
any disputes or claims by Tenants concerning the calculation of Property Expenses during the
Reconciliation Period.



          (c) Security Deposits; Leasing Commissions and Tenant Inducement Costs. All unpaid
Leasing Commissions, unpaid Tenant Inducements Costs and Security Deposits under the Leases shall
be credited to Buyer at the Closing.




          (d) Final Accounting. Sellers and Buyer acknowledge and agree that, on the Closing
Date, Sellers and Buyer may not have sufficient information to conduct and complete a final
proration of all items subject to proration pursuant to this Section 11.2. Accordingly, Sellers
and Buyer agree that, as soon as is reasonably practicable after the Closing Date, Sellers and
Buyer shall make a final accounting of all items relating to the Property to be prorated between
Sellers and Buyer pursuant to this Section 11.2. In conjunction with the performance of such final
accounting, following a request from Seller, Buyer shall provide Sellers with copies of all monthly
and other statements sent to the Tenants itemizing amounts owing under the Leases by the Tenants
(together with copies of invoices, statements and other supporting documentation evidencing such
expenditures and tenant ledgers and related documentation evidencing how Revenues were applied, all
as reasonably requested by Sellers). In the event it is determined, pursuant to such final
accounting, that any amounts are due and owing by Seller to Buyer, then Sellers shall cause such
amounts to be paid to Buyer within ten (10) Calendar Days after such final accounting is completed.
In the event it is determined, pursuant to such final accounting, that any amounts are due and
owing by Buyer to Sellers, then Buyer shall cause such amounts to be paid to Sellers within ten
(10) Calendar Days after such final accounting is completed. All unpaid amounts shall accrue
interest at the lesser of: (i) twelve percent (12%) per annum; or (ii) the maximum rate of interest
allowable under applicable law, which interest, in either case, shall be deemed to accrue effective
as of the date such payment was originally due.




ARTICLE 12

ACTIONS TO BE TAKEN AT THE CLOSING




     Section 12.1 Actions by Escrow Holder. In connection with the Closing, Escrow Holder
shall take the following actions:



          (a) Recording. Escrow Holder shall cause the following documents to be recorded in
the Official Records of San Diego County Recorder’s Office, State of California, in the order set
forth below, and obtain a conformed copy thereof for distribution to Sellers and Buyer:




               (i) Grant Deed (with documentary transfer tax information to be affixed after recording).



          (b) Title Policy. Escrow Holder shall direct Title Insurer to issue the Title Policy
to Buyer.




          (c) Distribution of Funds. Escrow Holder shall disburse all funds deposited with
Escrow Holder by Buyer in payment of the Purchase Price as follows:




40









 








               (i) Deduct, pay and satisfy all items chargeable to the account of Sellers pursuant to Section
11.1 hereof.



               (ii) Deduct, pay and satisfy all Monetary Obligations against the Real Property.



               (iii) If, as a result of the prorations and credits pursuant to Article 11 hereof, amounts are
to be charged to the account of Sellers, deduct the net amount of such charges.



               (iv) Disburse the remaining balance of the Purchase Price to Sellers promptly upon the
Closing.



     All disbursements by Escrow Holder shall be by wire transfer to the designated account of the
receiving party or shall be by certified or cashier’s check of Escrow Holder, as may be directed by
the receiving party.



          (d) Distribution of Documents to Sellers. Disburse to Sellers: (i) counterpart
originals of each of the non-recordable Transaction Documents; (ii) a conformed copy of each of the
recordable Transaction Documents, including, without limitation, the Grant Deed; and (iii) any
other documents deposited into Escrow by Sellers.




          (e) Distribution of Documents to Buyer. Disburse to Buyer: (i) counterpart originals
of each of the non-recordable Transaction Documents; (ii) a conformed copy of each of the
recordable Transaction Documents; and (iii) a copy of all other documents deposited into Escrow by
Buyer.




ARTICLE 13

BROKERS




     Sellers and Buyer hereby represent and warrant to each other that the warranting party has not
entered into nor will such warranting party enter into any agreement, arrangement or understanding
with any other person or entity which will result in the obligation of the other party to pay any
finder’s fee, commission or similar payment in connection with the transactions contemplated by
this Agreement. Sellers and Buyer hereby agree to and shall indemnify, defend and hold harmless
the other from and against any and all claims, costs, damages and/or liabilities arising from the
breach of the foregoing representation by either Sellers or Buyer, as the case may be.



ARTICLE 14

POST-CLOSING OBLIGATIONS OF SELLER




     Section 14.1 Vacant Space Leasing Obligations. As of the Effective Date,
approximately Ten Thousand Five Hundred Ninety-Three (10,593) net rentable square feet of Building
C has not been leased (the “Vacant Space”). Accordingly, from and after the Closing, Buyer shall
use commercially reasonable efforts to enter into new leases for the Vacant Space which satisfy the
leasing criteria set forth on Schedule 2.0 attached hereto and incorporated herein by reference
(the “Leasing Criteria”).



41









 





     Section 14.2 Holdback Amount; Holdback Escrow Account.



          (a) Holdback Amount. On the Closing, the sum of Two Hundred Thirty-Four Thousand
Dollars ($234,000.00) (“Holdback Amount”), shall be deducted from the Closing Deposit and shall be
retained and held by Escrow Holder in Escrow in a separate interest bearing account approved by
Sellers and Buyer (“Holdback Escrow Account”), subject to the terms and conditions set forth in
this Agreement.




          (b) Disbursement of Holdback Amount. Buyer will be entitled to receive disbursements
of designated portions of the Holdback Amount from the Holdback Escrow Account in accordance with
the terms and conditions of the Deficit Rental Agreement.




ARTICLE 15

INDEMNIFICATION




     Section 15.1 Indemnification by Sellers. Each Seller hereby agrees to and shall
indemnify, defend and hold harmless Buyer, its officers, directors, partners, members, managers,
shareholders, agents, employees, attorneys, affiliates, subsidiaries, successors and assigns, and
each of their respective officers, directors, partners, members, managers, shareholders, agents,
employees, attorneys, affiliates, subsidiaries, successors and assigns of all levels (collectively,
the “Indemnitees”), from and against any and all claims, liabilities, causes of action, losses,
costs, damages, attorneys’ fees, judgments or expenses (“Losses”), arising out of, or relating to,
the following matters: (a) the breach by Sellers of any of the representations and/or warranties
made by Sellers in or under this Agreement or any of the Transaction Documents; (b) the breach or
default in the performance by Seller of any of the covenants or obligations to be performed by
Sellers under this Agreement or the Transaction Documents; and (c) any claims, liabilities or
obligations of Seller, whether accrued, absolute, contingent or otherwise, arising out of or
relating to, Sellers’ previous ownership, management and/or operation of the Buildings.



     Section 15.2 Notice and Opportunity to Defend.



          (a) Notice of Asserted Liability. In the event one or more Indemnitees receives
written notice or otherwise becomes aware of any claims, liabilities, causes of action or any other
circumstances that would give rise to a claim for indemnification pursuant to Section 15.1 of this
Agreement (“Asserted Liability”), such Indemnitees shall give written notice thereof to Sellers
(“Claims Notice”). Following the receipt of a Claims Notice, and without in any way limiting or
reducing the obligations of Sellers pursuant to Section 15.1 hereof, the provisions of Section
15.2(b) or (c), as applicable, shall govern.




          (b) Opportunity to Satisfy. Without in any way limiting or reducing the obligations
of Sellers pursuant to Section 15.1 hereof, in the event Sellers receive a Claims Notice from the
Indemnitees for an Asserted Liability that is not a Third Party Claim, then, in such a case,
Sellers shall have a period of ten (10) Calendar Days to endeavor to cure and satisfy, at its sole
expense, the matters which caused such Asserted Liability; provided, however, that in the event of
an emergency situation, Indemnitees may elect to cure and satisfy the matters which caused such
Asserted Liability and shall be entitled to reimbursement for all costs, fees and expenses incurred
in connection with the cure and satisfaction of such Asserted Liability









42









 







pursuant to Section 15.2(d) hereof. In the event the matters are of a type that cannot be
cured and satisfied within such ten (10) Calendar Day period, then Sellers shall have such
additional time as may be reasonably necessary to cure and satisfy such matters so long as Sellers
are diligently pursuing the cure and satisfaction and also so long as: (i) no Third Party Claim
arises out of such Asserted Liability (in which case the provisions of Section 15.2(c) below shall
apply); (ii) the Indemnitees have not incurred any unreimbursed Losses relating to such Asserted
Liability; and (iii) such matters are cured and satisfied within ninety (90) Calendar Days from the
date of the Claims Notice. All costs, fees and expenses incurred in connection with the cure and
satisfaction of any such Asserted Liability, including, without limitation, reasonable attorneys’
fees and costs, shall be borne by and shall be the responsibility of Sellers. Furthermore, and
without limiting the obligations of Sellers pursuant to Section 15.1 hereof, Sellers shall
reimburse Indemnitees for all Losses incurred by Indemnitees in connection with any such Asserted
Liability.




          (c) Opportunity to Defend. Without in any way limiting or reducing the obligations of
Sellers pursuant to Section 15.1 hereof, in the event the Asserted Liability involves a Third Party
Claim, Sellers shall defend and satisfy such Third Party Claim and all costs, fees and expenses,
including legal fees and costs, incurred in connection with the defense and satisfaction of such
Third Party Claim, shall be borne by and be sole responsibility of, Sellers. Notwithstanding the
foregoing, in the event Sellers fail to undertake the defense of the Asserted Liability,
Indemnitees may elect to defend (by their own counsel), compromise and/or satisfy such Third Party
Claim by delivering written notice of such election to Sellers. Without in any way limiting or
reducing the obligations of Sellers pursuant to Section 15.1 hereof, if Indemnitees elect to defend
(by their own counsel), compromise and/or satisfy such Asserted Liability, Sellers shall cooperate
in the defense, compromise and satisfaction of such Asserted Liability. All costs, fees and
expenses incurred in connection with the defense, compromise and satisfaction of any such Asserted
Liability, including, without limitation, reasonable attorneys’ fees and costs, shall be borne by
and shall be the sole responsibility of Sellers. Furthermore, and without limiting the obligations
of Sellers pursuant to Section 15.1 hereof, Sellers shall reimburse Indemnitees for all Losses
incurred by Indemnitees in connection with any such Third Party Claim.




          (d) Timing for Payment. In the event Indemnitees incur any Losses which were not
otherwise paid or satisfied by Sellers pursuant to this Agreement, Indemnitees shall deliver
written notice to Seller advising Sellers that Indemnitees have incurred such Losses (“Notice of
Loss”). The Notice of Loss shall include an itemization of all of the Losses which Sellers are
required to pay pursuant to and in accordance with the terms and provisions of this Agreement.
Within thirty (30) calendar days after the date of receipt by Sellers of the Notice of Loss,
Sellers shall pay to Indemnitees the aggregate amount of the Losses described in such Notice of
Loss. In the event Sellers fail to timely pay to Indemnitees the aggregate amount of such Losses,
any and all unpaid amounts shall bear interest at the lesser of: (a) eighteen percent (18%) per
annum; or (b) the maximum rate of interest allowable under applicable law, which interest, in
either case, shall be deemed to accrue effective as of the date such payment was originally due.




43









 








ARTICLE 16

MISCELLANEOUS




     Section 16.1 Assignment. No assignment of this Agreement or Buyer’s rights or
obligations hereunder shall be made by Buyer without first having obtained Sellers’ written
approval of any such assignment, which approval may be granted or withheld in the sole and absolute
discretion of Seller. Notwithstanding the foregoing, Buyer may assign this Agreement to: (a) an
Affiliate of Buyer; or (b) to a tenancy in common structure in which Buyer or one or more of its
Affiliates are the sponsor, in either case without the prior written consent of Sellers. In the
event of any such assignment, Buyer shall be fully released and discharged from any and all
liabilities and obligations under this Agreement as of the Closing.



     Section 16.2 Notices. Any tender, delivery, notice, demand or other communication
(“Notice”) required or permitted under this Agreement shall be in writing, and shall be personally
delivered or sent by registered or certified mail, postage prepaid, return receipt requested,
overnight mailed, delivered or sent by telefacsimile machine capable of confirming transmission and
receipt, and shall be deemed delivered, given and received upon the earlier of: (a) if personally
served, the date of delivery to the person to receive such notice; (b) if given by telefacsimile,
when sent, provided the telefacsimile machine confirms transmission and receipt; and (c) if sent by
registered or certified mail, four (4) Business Days after the date of posting by the United States
Postal Service; or (d) if sent by Federal Express or other comparable overnight delivery service,
when sent, as documented by the service’s delivery records, all in accordance with the following:




	 	(i)	 	Sellers’ Address. If to Seller, at the following address:




Buie Carlsbad Building A LLC

Buie Carlsbad Lot 10 LLC

11260 El Camino Real, Suite 200

San Diego, California 92130-2646

Attention: Robert M. Irish

Telephone: (858) 794-2400

Facsimile: (858) 794-2401



With a copy to:



Hecht Solberg Robinson Goldberg & Bagley LLP

600 W. Broadway, 8th Floor

San Diego, California 92101

Attn: Darryl Solberg, Esq.

Telephone: (619) 239-3444

Facsimile: (619) 232-6828





44









 









	 	(ii)	 	Buyer’s Address. If to Buyer, at the following address:




Shidler West Investment Partners, LP

10188 Telesis Court, Suite 222

San Diego, California 92121

Attn: Jim Ingebritsen



      Michael Burer




Telephone (858) 678-8500

Facsimile (858) 678-8504



With a copy to:



The Shidler Group

841 Bishop Street, Suite 1700

Honolulu, Hawaii 96813

Attn: Larry Taff



         Tamara Edwards, Esq.

Telephone (808) 544-1219

Facsimile: (808) 599-4391



With a copy to:



Van A. Tengberg, Esq.

Kelly C. Wittorff, Esq.

Foley & Lardner LLP

402 West Broadway, Suite 2100

San Diego, California 92101-3542

Telephone: (619) 685-6408

Facsimile: (619) 234-3510




     Section 16.3 Entire Agreement. This Agreement, including the Exhibits and Schedules
referred to herein, constitutes the entire contract between the Parties with respect to the subject
matter covered by this Agreement. This Agreement supersedes all previous representations,
arrangements, agreements and understandings by and among the Parties with respect to the subject
matter covered by this Agreement including, without limitation, all prior letters of intent
executed between Buyer and Sellers, and any such representations, arrangements, agreements and
understandings are hereby canceled and terminated in all respects. This Agreement may not be
amended, changed or modified except by a writing duly executed by both of the Parties hereto.



     Section 16.4 Severability. If any provision of this Agreement, or any portion of any
such provision, is held to be unenforceable or invalid, the remaining provisions and portions shall
nevertheless be carried into effect.



     Section 16.5 Remedies. All rights and remedies of the Parties are separate and
cumulative, and no one of them, whether exercised or not, shall be deemed to be to the exclusion of
or to limit or prejudice any other legal or equitable rights or remedies which the Parties may



45









 




have, except as otherwise expressly limited herein. Subject to the limitations or remedies
imposed elsewhere in this Agreement, the Parties shall not be deemed to waive any of their rights
or remedies thereunder, unless such waiver is in writing and signed by the party to be bound. No
delay or omission on the part of either party in exercising any right or remedy shall operate as a
waiver of such right or remedy or any other right or remedy. A waiver on any one occasion shall
not be construed as a bar or waiver of any right or remedy on any future occasion.




     Section 16.6 Headings. The headings contained in this Agreement are for convenience
only and are not a part of this Agreement, and do not in any way interpret, limit or amplify the
scope, extent or intent of this Agreement, or any of the provisions of this Agreement.



     Section 16.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which together shall constitute one and the same
agreement.



     Section 16.8 Attorneys’ Fees. In the event any litigation is instituted between the
Parties arising out of or relating to this Agreement, the Party in whose favor judgment shall be
entered shall be entitled to have and recover from the non-prevailing Party all costs and expenses
(including attorneys’ fees and court costs) incurred in such action and any appeal therefrom.



     Section 16.9 Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by and interpreted in accordance with the laws (other than that body of law relating to conflicts
of law) of the State of California. The proper venue for any claims, causes of action or other
proceedings concerning this Agreement shall be in the state and federal courts located in the
County of San Diego, State of California.



     Section 16.10 No Third Party Beneficiary. This Agreement creates rights and duties
only between the Parties, and no third party is or shall be deemed to be or shall have any rights
as a third party beneficiary.



     Section 16.11 Binding Effect. Subject to Section 16.1 hereof, this Agreement shall be
binding upon and shall inure to the benefit of the Parties and their respective successors, assigns
and legal and personal representatives.



     Section 16.12 Time of the Essence. Time is of the essence for the performance of each
and every obligation hereunder.



     Section 16.13 Survivability. Except as otherwise provided in this Agreement to the
contrary, the covenants and obligations of the Parties to this Agreement shall survive the Closing
indefinitely.



     Section 16.14 Buyer’s 1031 Exchange. Sellers acknowledges that Buyer may be
purchasing the Property as part of a tax deferred exchange (“Buyer’s Exchange”) pursuant to Section
1031 of the Code. Without limiting the provisions of Section 16.1 hereof, in order to effect
Buyer’s Exchange, Buyer may assign its rights in, and delegate its duties under, this Agreement, as
well as transfer the Property, to any exchange accommodator which Buyer shall determine. As an
accommodation to Buyer, Sellers agree to cooperate with Buyer in connection



46









 




with Buyer’s Exchange, including the execution of documents therefor, provided the following
terms and conditions are satisfied:




          (a) Neither Seller shall have any obligation to take title to any property in connection with
Buyer’s Exchange;




          (b) Except as otherwise provided in this Agreement, Sellers shall not be obligated to pay any
escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges
incurred with respect to any exchange property;




          (c) The Closing shall not be contingent or otherwise subject to the consummation of Buyer’s
Exchange, and the Escrow shall timely close in accordance with the terms of this Agreement
notwithstanding any failure, for any reason, of the parties to Buyer’s Exchange to effect the same;




          (d) None of the representations, warranties, covenants and indemnification obligations of
Sellers set forth in this Agreement shall be affected or limited by Buyer’s use of an exchange
accommodator and shall survive Buyer’s Exchange and shall continue to inure directly from Sellers
for the benefit of Buyer;




          (e) None of the representations, warranties, covenants and indemnification obligations of
Buyer set forth in this Agreement shall be affected or limited by Buyer’s use of an exchange
accommodator and shall survive Buyer’s Exchange and shall continue to inure directly from Buyer for
the benefit of Sellers




          (f) Buyer agrees to indemnify, protect, defend (with counsel reasonably acceptable to Sellers)
and hold Sellers harmless from and against any and all causes of action, claims, demands,
liabilities, costs and expenses, including actual attorneys’ fees and costs, incurred by Sellers in
connection with Buyer’s Exchange.




     Sellers makes absolutely no representations or warranties of any kind or nature (express or
implied) that tax deferred exchange treatment is available to Buyer with respect to Buyer’s
Exchange, or that such a transaction will qualify in any respect for such treatment. Buyer hereby
acknowledges and represents to Sellers that Buyer is relying solely and entirely upon the advice of
Buyer’s own consultants with respect to any and all aspects of Buyer’s Exchange. In no event shall
the obligation of Buyer under this Agreement be contingent upon this transaction being included as
part of Buyer’s Exchange.



     Section 16.15 Seller’s 1031 Exchange. Buyer acknowledges that one or both of the
Sellers may engage in a tax deferred exchange (“Seller’s Exchange”) pursuant to Section 1031 of the
Code. To effect Seller’s Exchange, the applicable Seller may assign its rights in, and delegate
its duties under this Agreement, as well as transfer the Property, to any exchange accommodator
which Seller shall determine. As an accommodation to such Seller, Buyer agrees to cooperate with
Seller in connection with Seller’s Exchange, including the execution of documents therefor,
provided the following terms and conditions are satisfied:



          (a) Buyer shall have no obligation to take title to any property in connection with Seller’s
Exchange;




47









 








          (b) Buyer shall not be obligated to pay any escrow costs, brokerage commissions, title
charges, survey costs, recording costs or other charges incurred with respect to any exchange
property, and/or Seller’s Exchange;




          (c) The Closing shall not be contingent or otherwise subject to the consummation of Seller’s
Exchange, and the Escrow shall timely close in accordance with the terms of this Agreement
notwithstanding any failure, for any reason, of the parties to Seller’s Exchange to effect the
same;




          (d) None of the representations, warranties, covenants and indemnification obligations of
Seller set forth in this Agreement shall be affected or limited by Seller’s use of an exchange
accommodator and shall survive Seller’s Exchange and shall continue to inure directly from Seller
for the benefit of Buyer;




          (e) None of the representations, warranties, covenants and indemnification obligations of
Buyer set forth in this Agreement shall be affected or limited by Seller’s use of an exchange
accommodator and shall survive Seller’s Exchange and shall continue to inure directly from Buyer
for the benefit of Seller;




          (f) The applicable Seller agrees to indemnify, protect, defend (with counsel reasonably
acceptable to Buyer) and hold Buyer harmless from and against any and all causes of action, claims,
demands, liabilities, costs and expenses, including actual attorneys’ fees and costs, incurred by
Buyer in connection with Seller’s Exchange.




     Buyer makes absolutely no representations or warranties of any kind or nature (express or
implied) that tax deferred exchange treatment is available to either Seller with respect to
Seller’s Exchange, or that such a transaction will qualify in any respect for such treatment, and
Buyer shall incur no liability if Seller’s Exchange fails to qualify for the tax deferred treatment
intended by the applicable Seller. Each Seller hereby acknowledges and represents to Buyer that it
is relying solely and entirely upon the advice of its own consultants with respect to any and all
aspects of Seller’s Exchange. In no event shall the obligations of either Seller under this
Agreement be contingent upon this transaction being included as part of Seller’s Exchange.



     Section 16.16 Business Days. If the Closing Date or any other date described in this
Agreement by which one Party hereto must give notice to the other Party hereto or perform or
fulfill an obligation hereunder is a Calendar Day that is not a Business Day, then the Closing Date
or such other date shall be automatically extended to the next succeeding Business Day.



     Section 16.17 Construction. This Agreement shall not be construed more strictly
against one Party than against the other Party merely by virtue of the fact that it may have been
prepared primarily by counsel for one of the Parties, it being recognized that both Seller and
Buyer have contributed substantially and materially to the preparation of this Agreement.



48









 





     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.



	 	 	 	 	 	 	 	 	 
	 	 	SELLERS:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BUIE CARLSBAD BUILDING A LLC, a California limited liability

company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BUIE STODDARD PROPERTIES LLC, a California limited

liability company, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Robert M. Irish
 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BUIE CARLSBAD LOT 10 LLC, a California limited liability

company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BUIE STODDARD PROPERTIES LLC, a California limited

liability company, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Robert M. Irish	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BUYER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SHIDLER WEST INVESTMENT PARTNERS, LP, a California limited

partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	SWIP, INC., a California corporation, its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Matthew Root	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 





49









 






CONSENT OF ESCROW HOLDER




     The undersigned Escrow Holder hereby agrees to: (i) accept the foregoing Agreement; (ii) be
Escrow Holder under said Agreement; (iii) to make all filings required under Section 6045 of the
Internal Revenue Code of 1986, as amended; and (iv) be bound by said Agreement in the performance
of its duties as Escrow Holder; provided, however, the undersigned shall have no obligations,
liability or responsibility under (a) this Consent or otherwise, unless and until said Agreement,
fully signed by the parties, has been delivered to the undersigned, or (b) any amendment to said
Agreement unless and until the same is accepted by the undersigned in writing.



     Dated:
February 29, 2008



	 	 	 	 	 	 	 
	 	 	STEWART TITLE GUARANTY	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ Lynn Babineaux
 
	 	 
	 
	 	 	 	 
	 	 
	 

	 	Title	 	National Commercial Closing Specialist	 	 
	 

	 	 	 	 	 	 





50









 






FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT 
ESCROW INSTRUCTIONS




     THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“First
Amendment”), dated for reference purposes as of the 13th day of March, 2008, by and
between SHIDLER WEST INVESTMENT PARTNERS, LP, a California limited partnership (the “Buyer”), and
BUIE CARLSBAD BUILDING A LLC, a California limited liability company (“Building A Seller”), and
BUIE CARLSBAD LOT 10, LLC, a California limited liability company (“Lot 10 Seller”) (Building A
Seller and Lot 10 Seller are hereinafter sometimes collectively referred to as the “Sellers”),
constitutes an amendment to that certain Purchase and Sale Agreement and Joint Escrow Instructions,
dated for reference purposes as of February 27, 2008, by and between Buyer and Sellers (the
“Purchase Agreement”). Capitalized terms used herein without definition shall have the meaning
ascribed to such terms in the Purchase Agreement.



     In consideration of the agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Sellers
agree as follows:



     1.
Closing Date. Seller has agreed to grant Buyer an option extend the Scheduled
Closing Date in accordance with the terms and conditions set forth in this Section 1 hereof.
Accordingly, the following provisions shall be added to the end of Section 8.4 of the Purchase
Agreement:




“Notwithstanding the foregoing, Buyer shall have the right,
exercisable in the sole and absolute discretion of Buyer, to extend
the Scheduled Closing Date from April 15, 2008 to April 30, 2008, by
delivering written notice to Seller on or before April 14, 2008. In
the event Buyer timely delivers such written notice to Seller, the
Scheduled Closing Date shall automatically be extended from April
15, 2008, to April 30, 2008, and all references herein to the
‘Scheduled Closing Date’ shall mean April 30, 2008.”



     2.
References. All references in the Purchase Agreement to the “Purchase Agreement”
shall mean the Purchase Agreement, as amended by this First Amendment.



     3.
Full Force and Effect. Except as expressly provided in this First Amendment, all
other terms and conditions of the Purchase Agreement shall remain in full force and effect.



     4.
Capitalized Terms. Capitalized terms not separately defined in this First
Amendment shall bear the meaning assigned thereto in the Purchase Agreement.



     5.
Successors and Assigns. This First Amendment shall be binding upon and inure to
the benefit of Buyer and Sellers and their respective successors and assigns.



     6.
Counterparts. This First Amendment may be executed in counterparts, each of
which shall be deemed an original, and all of which, when taken together, shall constitute one and
the same agreement.



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     IN WITNESS WHEREOF, Buyer and Sellers have executed this First Amendment as of the date first
set forth above.



	 	 	 	 	 	 	 	 	 
	 	 	BUYER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SHIDLER WEST INVESTMENT PARTNERS, LP, a California limited

partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	SWIP, INC., a California corporation, its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Matthew Root	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SELLERS:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BUIE CARLSBAD BUILDING A LLC, a California limited liability

company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BUIE STODDARD PROPERTIES LLC, a California limited

liability company, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Robert M. Irish	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BUIE CARLSBAD LOT 10, a California limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	BUIE STODDARD PROPERTIES LLC, a California limited

liability company, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Robert M. Irish	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title	 	 	 	 
	 

	 	 	 	 	 	 	 	 





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SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT 
ESCROW INSTRUCTIONS




     THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“First
Amendment”), dated for reference purposes as of the 20th day of March, 2008, by and
between SHIDLER WEST INVESTMENT PARTNERS, LP, a California limited partnership (the “Buyer”), and
BUIE CARLSBAD BUILDING A LLC, a California limited liability company (“Building A Seller”), and
BUIE CARLSBAD LOT 10, LLC, a California limited liability company (“Lot 10 Seller”) (Building A
Seller and Lot 10 Seller are hereinafter sometimes collectively referred to as the “Sellers”),
constitutes an amendment to that certain Purchase and Sale Agreement and Joint Escrow Instructions,
dated for reference purposes as of February 27, 2008, by and between Buyer and Sellers (the
“Original Purchase Agreement”), as amended by that certain First Amendment to Purchase and Sale
Agreement and Joint Escrow Instructions, dated for reference purposes as of March 13, 2008, by and
between Buyer and Sellers (the “First Amendment”) (the Original Purchase Agreement and First
Amendment are hereinafter collectively referred to as the “Purchase Agreement”).. Capitalized
terms used herein without definition shall have the meaning ascribed to such terms in the Purchase
Agreement.



     In consideration of the agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Sellers
agree as follows:



     1.
Tenant Estoppel Certificate. Sellers and Buyer have agreed to certain revisions
to the form of Tenant Estoppel Certificate. Accordingly, all references in the Purchase Agreement
to the Tenant Estoppel Certificate shall mean and refer to the form of Tenant Estoppel Certificate
attached hereto as Exhibit “H” and incorporated herein by reference.



     2.
Deficit Rental Agreement; Leasing Criteria. Sellers and Buyer have agreed to
certain revisions to the Deficit Rental Agreement and Leasing Criteria. Accordingly, all
references in the Purchase Agreement to the Deficit Rental Agreement shall mean and refer to the
Deficit Rental Agreement attached hereto as Exhibit “J” and incorporated herein by reference. All
references in the Purchase Agreement to the Leasing Criteria shall mean and refer to the Leasing
Criteria attached hereto as Schedule “2.0” and incorporated herein by reference.



     3.
References. All references in the Purchase Agreement to the “Purchase Agreement”
shall mean the Purchase Agreement, as amended by this Second Amendment.



     4.
Full Force and Effect. Except as expressly provided in this Second Amendment,
all other terms and conditions of the Purchase Agreement shall remain in full force and effect.



     5.
Capitalized Terms. Capitalized terms not separately defined in this Second
Amendment shall bear the meaning assigned thereto in the Purchase Agreement.



     6.
Successors and Assigns. This Second Amendment shall be binding upon and inure to
the benefit of Buyer and Sellers and their respective successors and assigns.



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     7.
Counterparts. This Second Amendment may be executed in counterparts, each of
which shall be deemed an original, and all of which, when taken together, shall constitute one and
the same agreement.



2









 





     IN WITNESS WHEREOF, Buyer and Sellers have executed this Second Amendment as of the date first
set forth above.



	 	 	 	 	 	 	 
	 	 	BUYER:	 	 
	 
	 	 	 	 	 	 
	 	 	SHIDLER WEST INVESTMENT PARTNERS, LP, a California limited

partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	SWIP, INC., a California corporation, its General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Jim Ingebritsen
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title	 	Chief Financial Officer
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	SELLERS:	 	 
	 
	 	 	 	 	 	 
	 	 	BUIE CARLSBAD BUILDING A LLC, a California limited liability

company
	 
	 	 	 	 	 	 
	 	 	By:	 	BUIE STODDARD PROPERTIES LLC, a California limited

liability company, its Manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	/s/ Robert M. Irish
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title	 	President
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BUIE CARLSBAD LOT 10, a California limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	BUIE STODDARD PROPERTIES LLC, a California limited

liability company, its Manager
	 
	 

	 	 	 	By	 	/s/ Robert M. Irish
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title	 	President
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title	 	 
	 

	 	 	 	 	 	 






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