Exhibit






Exhibit 10.1


















	
	
	PURCHASE AND SALE AGREEMENT 
AND ESCROW INSTRUCTIONS
BY AND BETWEEN
KBS CLAYTON PLAZA, LLC
(“Seller”)
AND
FRANKLIN PARTNERS, LLC
(“Buyer”)






[Clayton Plaza, 190 Carondelet Plaza, Clayton, Missouri]














PURCHASE AND SALE AGREEMENT 
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this “Agreement”) is made and entered into as of September 8, 2017, between KBS CLAYTON PLAZA, LLC, a Delaware limited liability company (“Seller”), and FRANKLIN PARTNERS, LLC, an Illinois limited liability company (“Buyer”), with reference to the following:
A.    Seller is the owner of the improved real property (the “Real Property”) described on Exhibit A attached hereto together with certain personal property located upon or used in connection with such improved real property and certain other assets relating thereto, all as more particularly described in Section 2 hereof.
B.    Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Real Property, together with certain personal property and related assets on the terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.BASIC TERMS AND DEFINITIONS; REFERENCES
1.1    Basic Terms and Definitions.
(a)    Effective Date.  The effective date of this Agreement shall be the date set forth above (“Effective Date”).
(b)    Closing Date.  The last day that Close of Escrow (as defined in Section 8.1 hereof) may occur shall be October 2, 2017, at 1:30 p.m. (California time) (the “Closing Date”).
(c)    Title Review Period.  The “Title Review Period” shall end on September 13, 2017, at 5:00 p.m. (California time).
(d)    Due Diligence Period.  The “Due Diligence Period” shall end on September 15, 2017, at 5:00 p.m. (California time).
(e)    Escrow Holder.  The escrow holder shall be Commonwealth Land Title Insurance Company (“Escrow Holder”), whose address is 4100 Newport Place Drive, Suite 120, Newport Beach, California 92660, Escrow Officer:  Joy Eaton; Telephone:  (949) 724-3145; Telecopier:  (949) 271-5762.
(f)    Title Company.  The title company shall be Commonwealth Land Title Insurance Company (“Title Company”), whose address is 888 S. Figueroa Street, Suite 2100, Los Angeles, California 90017, Title Coordinator:  Amy Musselman; Telephone:  (213) 330-3041; Telecopier (213) 330-3085, with a copy to Anthony A. Behrstock; Telephone:  (213) 330-2333; Telecopier:  (213) 330-3113.


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1.2    References.  All references to Exhibits refer to Exhibits attached to this Agreement and all such Exhibits are incorporated herein by reference.  The words “herein,” “hereof,” “hereinafter” and words of similar import refer to this Agreement as a whole and not to any particular Section hereof.
2.    PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, Seller agrees to sell, assign and transfer to Buyer and Buyer agrees to purchase from Seller, for the purchase price set forth in Section 3 hereof, all of Seller’s right, title and interest in and to the following (collectively, the “Property”):
2.1    The Real Property, together with the buildings located thereon, and all associated parking areas, and all other improvements located thereon (the buildings and such other improvements are referred to herein collectively as the (“Improvements”)); all references hereinafter made to the Real Property shall be deemed to include all rights, privileges, easements and appurtenances benefiting the Real Property and/or the Improvements situated thereon, including, without limitation, all mineral and water rights and all easements, rights-of-way and other appurtenances used or connected with the beneficial use or enjoyment of the Real Property;
2.2    All personal property, equipment, supplies and fixtures located at the Real Property (collectively, the “Personal Property”), including the items listed on Exhibit B attached hereto to the extent owned by Seller;
2.3    All of Seller’s interest in any intangible property (expressly excluding the name “KBS” or any derivative thereof, or any name that includes the word “KBS” or any derivative thereof), including the name “Clayton Plaza” (to the extent of Seller’s interest in the same and to the extent assignable by Seller) used or useful in connection with the foregoing, including, without limitation, all contract rights, warranties, guaranties, licenses, permits, entitlements, governmental approvals and certificates of occupancy which benefit the Real Property and/or the Personal Property;
2.4    All of Seller’s interest in all leases and guaranties affecting the Real Property listed on Exhibit L attached hereto to the extent in effect on the Closing Date and all leases hereafter entered into by Seller to the extent permitted by the provisions of this Agreement (the “Leases”); and
2.5    All of Seller’s interest in the contracts listed on Exhibit C attached hereto and all contracts hereafter entered into by Seller to the extent permitted by the provisions of this Agreement (the “Contracts”).
Notwithstanding anything to the contrary contained herein, the term “Property” shall expressly exclude any Rents (as such term is defined in Section 10.1 hereof) or any other amounts payable by tenants under the Leases for periods prior to the Close of Escrow, any Rent or other amounts payable by any former tenants of the Property, and any judgments, stipulations, orders, or settlements with any existing tenants under the Leases relating to the periods prior to the Close of Escrow or former tenants of the Property (hereinafter collectively referred to as the “Excluded Property”).


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3.    PURCHASE PRICE AND DEPOSIT
3.1    Purchase Price.  The purchase price for the Property shall be Eighty Five Million Five Hundred Thousand and 00/100 Dollars ($85,500,000.00) (the “Purchase Price”).
3.2    Payment of Purchase Price.  The Purchase Price shall be payable as follows:
3.2.1    Within three (3) business days after the Effective Date (the “Deposit Deadline”), Buyer shall deposit in escrow with Escrow Holder, in cash or current funds, the sum of One Million and 00/100 Dollars ($1,000,000.00) (the “Deposit”).  If the Deposit is not received by Escrow Holder on or before the Deposit Deadline, this Agreement shall automatically terminate and the parties shall be released from all further obligations under this Agreement (except pursuant to any provisions which by their terms survive a termination of this Agreement).  Immediately upon Escrow Holder’s receipt of the Deposit (the “Opening of Escrow”), Escrow Holder shall invest the same in a federally insured interest-bearing account acceptable to Seller and Buyer, with all interest accruing thereon credited to the Purchase Price.  For purposes of this Agreement, any interest accruing on the Deposit from time to time shall be deemed part of the Deposit.  Upon expiration of the Due Diligence Period, if Buyer has not previously terminated this Agreement by its terms, then the Deposit shall become nonrefundable subject to the terms and conditions of this Agreement.
3.2.2    Provided all the conditions in Section 7.1 hereof have been satisfied or waived by Buyer, Buyer shall deposit in cash or current funds with Escrow Holder no later than 1:30 p.m. (California time) on the Closing Date (as defined in Section 1.1(b) hereof) an amount equal to the Purchase Price less the Deposit and all interest accrued thereon plus or minus applicable prorations pursuant to Section 10 hereof.
3.3    Disposition of Deposit Upon Failure to Close.  If the Close of Escrow fails to occur due to Buyer’s default under this Agreement (all of the conditions to Buyer’s obligation to close having been satisfied or waived), then the disposition of the Deposit and all interest accrued thereon shall be governed by Section 13.1 hereof; if the Close of Escrow fails to occur due to Seller’s default under this Agreement (all of the conditions to Seller’s obligation to close having been satisfied or waived), then the Deposit and all interest accrued thereon shall promptly be governed by Section 13.2; and if the Close of Escrow fails to occur due to the failure of any of the conditions set forth in Sections 7.1 or 7.2 hereof other than as a result of Buyer’s or Seller’s default under this Agreement, then the disposition of the Deposit and all interest accrued thereon shall be governed by Section 9.3 hereof.
3.4    Independent Contract Consideration.  Additionally, at the same time as the deposit of the Deposit with the Escrow Holder, Buyer shall deliver to Seller in cash the sum of One Hundred and No/100 Dollars ($100.00) (the “Independent Contract Consideration”) which amount has been bargained for and agreed to as consideration for Buyer’s exclusive option to purchase the Property and the right to inspect the Real Property as provided herein, and for Seller’s execution and delivery of this Agreement.  The Independent Contract Consideration is in addition to and independent of all other consideration provided in this Agreement, and is nonrefundable in all events.


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4.    PROPERTY INFORMATION; TITLE REVIEW; INSPECTIONS AND DUE DILIGENCE; TENANT ESTOPPEL CERTIFICATES; CONFIDENTIALITY
4.1    Property Information.  Seller shall make available to Buyer within five (5) business days after the date of this Agreement, to the extent in Seller’s possession, the following, all of which shall be made available for review and copying (at Buyer’s cost and expense) in an electronic document center or at the Real Property (collectively, the “Property Information”):
(a)    the Leases and all amendments and side letters;
(b)    a current rent roll for the Real Property, indicating rents collected, scheduled rents and concessions, delinquencies, and security deposits held (collectively, the “Rent Rolls”);
(c)    the most current and the previous three (3) years of operating statements for the Real Property, if available (collectively, the “Operating Statements”);
(d)    copies of the Contracts;
(e)    any building plans, floor plans, and/or as-builts (base building and tenant build-outs), BOMA calculations and CAD files, local architect and engineering contact information, structural and parking reports;
(f)    chiller-10 year tear down report, elevator reports and load tests;
(g)    copies of existing warranties, licenses, permits and certificates of occupancy;
(h)    copies of the last two years’ tax bills and any proposed reassessment valuation;
(i)    a list of all insurance claims and major repairs of a capital nature during the last five (5) years;
(j)    existing land title surveys, if any, for the Real Property (collectively, the “Existing Surveys”); and
(k)    any environmental, soils and/or engineering reports prepared for Seller or Seller’s predecessors.
Under no circumstances shall Buyer be entitled to review any appraisals relating to the Property or any internal financial audits relating to the Property.
4.2    Title and Survey Review; Title Policy.
4.2.1    Delivery of Title Report.  Seller shall promptly request the Title Company to deliver to Buyer a preliminary title report or title commitment covering the Real Property (the “Title Report”), together with copies of all documents (collectively, the “Title 


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Documents”) referenced in the Title Report.  Buyer, at its option and expense, may (a) obtain a new survey for the Real Property or (b) cause one or more of the Existing Surveys to be updated or recertified (either, a “New Survey”).  Buyer understands and acknowledges that if Buyer elects to obtain a New Survey for the Real Property the completion and/or delivery of the surveys or updated or recertified surveys shall not be a condition precedent to the Close of Escrow.  Notwithstanding the foregoing, Buyer further acknowledges that Seller makes no representations or warranties, and Seller shall have no responsibility, with respect to the completeness of the Title Documents made available to Buyer by the Title Company.
4.2.2    Title Review and Cure.  Commencing from the date of this Agreement and continuing through and including the Title Review Period, Buyer shall have the right to approve or disapprove the condition of title to the Real Property.  On or before the expiration of the Title Review Period, Buyer shall deliver to Seller and Escrow Holder written notice (“Buyer’s Title Notice”) of Buyer’s approval or disapproval of the matters reflected in the Title Report, the Existing Survey, and/or the New Survey, if any.  The failure of Buyer to deliver to Seller Buyer’s Title Notice on or before the expiration of the Title Review Period shall be deemed to constitute Buyer’s approval of the condition of title to the Real Property.  If Buyer disapproves any matter of title shown in the Title Report or Existing Survey for the Real Property, then Seller may, but shall have no obligation to, within one (1) business day after its receipt of the Buyer’s Title Notice for the Real Property (“Seller’s Election Period”), elect to eliminate or ameliorate to Buyer’s reasonable satisfaction the disapproved title matters by giving Buyer written notice (“Seller’s Title Notice”) of those disapproved title matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing Date.  Buyer acknowledges and agrees that any title exception disapproved by Buyer shall be deemed ameliorated to Buyer’s reasonable satisfaction to the extent that Seller either causes such exception to be removed from the Title Policy (as such term is defined in Section 4.2.3 hereof) or to be affirmatively insured over.  If Seller does not elect to, or is unable to, eliminate or ameliorate any disapproved title matters, Buyer reasonably disapproves Seller’s Title Notice, or Seller fails to timely deliver Seller’s Title Notice, then Buyer shall have the right, upon delivery to Seller and Escrow Holder (on or before one (1) business day following the expiration of Seller’s Election Period) of a written notice, to either: (a) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (b) terminate this Agreement and the Escrow (as such term is defined in Section 9.1 hereof).  Failure to take either one of the actions described in (a) and (b) above shall be deemed to be Buyer’s election to take the action described in clause (a) above.  If Buyer elects to terminate this Agreement as provided in clause (b) above, this Agreement shall automatically terminate, the parties shall be released from all further obligations under this Agreement (except pursuant to any provisions which by their terms survive a termination of this Agreement), the Deposit shall be immediately returned to Buyer and Buyer shall immediately return all Property Information to Seller.  Buyer shall have been deemed to have approved any title exception that Seller is not obligated to remove and to which either Buyer did not object as provided above, or to which Buyer did object, but with respect to which Buyer did not terminate this Agreement.  Notwithstanding anything stated to the contrary herein, Seller covenants and agrees to remove (or cause to be removed) from the Property (which obligation shall be deemed satisfied if the same is insured over and the amount secured by any of the instruments referenced in clauses (a) and (b) below have been paid and the holders of the same are obligated to cause the same to be released from the Property) concurrently with the Close of Escrow (a) all deeds of trust, mortgages and/or other debt instruments to the extent executed by Seller or expressly assumed 


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by Seller in writing, and (b) any other monetary liens (other than mechanic’s liens that are considered Permitted Exceptions) which are of an ascertainable amount, and do not exceed $75,000.00 in the aggregate and are capable of being removed upon the payment of no more than $75,000.00 in the aggregate; provided, however, that the foregoing $75,000.00 cap shall not apply to the claim of mechanics lien filed by Bates & Associates, Inc. as Case No. 15SL-ML00159 (the “Bates Lien”) recorded October 27. 2015, as Instrument No. 15SL-ML00159; provided, further, that Seller shall cause the Bates Lien to be removed from the Title Policy or to be affirmatively insured over, in which case the Bates Lien shall be deemed approved.
If at any time after the expiration of the Title Review Period, any update to the Buyer’s title commitment or Title Report (an “Updated Title Report”) discloses any additional item (other than any items arising from a new or updated survey obtained by Buyer) that “materially” and adversely affects title to the Property which was not disclosed on any version of or update to the title commitment delivered to Buyer during the Due Diligence Period and which do not constitute a Permitted Exception (a “New Exception”), then Buyer shall have the right to object to such New Exceptions by giving written notice to Seller (the “Additional Title Notice”) of the New Exceptions to which Buyer is objecting within two (2) business days after the receipt by Buyer of the Updated Title Report.  If Buyer does not object to any New Exception by giving timely written notice as herein provided, such New Exception shall be a Permitted Exception.  Seller may, but shall have no obligation to, within two (2) business days after its receipt of the Additional Title Notice (“Seller’s Additional Election Period”), respond to such notice.  If, prior to the expiration of Seller’s Additional Election Period, Seller does not elect to eliminate or ameliorate such New Exceptions, Buyer reasonably disapproves Seller’s response to Buyer’s Additional Title Notice, or Seller fails to timely deliver a response to Buyer’s Additional Title Notice, then Buyer shall have the right, upon delivery to Seller and Escrow Holder (on or before the earlier of the Closing Date and two (2) business days following the expiration of Seller’s Additional Election Period) of a written notice, to either: (a) waive its prior disapproval of any New Exception, in which event said New Exception shall be a Permitted Exception; or (b) terminate this Agreement and the Escrow.  For purposes of this paragraph, a New Exception that consists of a monetary lien shall be deemed to “materially” affect title if the cost to remove or insure over such exception would cost more than $75,000.00 in the aggregate.
Notwithstanding anything to the contrary herein, provided that Buyer provides a completed estoppel certificate for any of the covenants, conditions and restrictions set forth in the Title Report, Seller agrees to use commercially reasonable efforts to deliver same to the appropriate parties for execution; provided, however, that Seller shall have no obligation to deliver such estoppel certificates to Buyer, it being understood and agreed by Buyer that receipt of same shall not be a precondition to the Close of Escrow.
4.2.3    Delivery of Title Policy at Closing.  As a condition precedent to the Close of Escrow, the Title Company shall have issued and delivered to Buyer, or shall have committed to issue and deliver to Buyer, with respect to the Real Property, a Standard Coverage Owner’s Policy of Title Insurance (2006 Form) (the “Title Policy”) issued by the Title Company as of the date and time of the recording of the Deed (as such term is defined in Section 6.1 hereof) for the Real Property, in the amount of the Purchase Price insuring Buyer as owner of good, marketable and indefeasible fee simple title to the Real Property, subject only to the Permitted Exceptions (as hereinafter defined).  For purposes of this Agreement, “Permitted 


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Exceptions” shall mean and include (a) any lien to secure payment of real estate taxes, including special assessments, not delinquent, (b) all matters which could be revealed or disclosed by a physical inspection or a survey of the Real Property and matters affecting the Real Property which are created by or with the written consent of Buyer, (c) the rights of the tenants under the Leases affecting the Real Property, (d) all exceptions disclosed by the Title Report relating to the Real Property and which are approved or deemed approved by Buyer in accordance with Section 4.2.2 hereof, (e) any exception for liens (and/or potential liens) for services, labor or materials heretofore or hereafter furnished to the Property for which Buyer is entitled to a credit at Closing pursuant to this Agreement, for which Buyer is expressly responsible for payment under the terms of this Agreement, and/or which arises from any services, labor or materials contracted for by any tenant at the Property and with respect to which any such tenant is responsible for payment under the terms of its Lease, and (f) all applicable laws, ordinances, rules and governmental regulations (including, without limitation, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property.
4.3    Inspections; Due Diligence Period.
4.3.1    Inspections in General.  Commencing from the Effective Date and continuing through and including the Closing Date, Buyer, its agents, and employees shall have a limited license (the “License”) to enter upon the Real Property for the purpose of making non-invasive inspections at Buyer’s sole risk, cost and expense.  Before any such entry, Buyer shall provide Seller with a certificate of insurance naming Seller as an additional insured and with an insurer and insurance limits and coverage reasonably satisfactory to Seller.  All of such entries upon the Real Property shall be at reasonable times during normal business hours and after at least forty-eight (48) hours prior notice to Seller or Seller’s agent, and Seller or Seller’s agent shall have the right to accompany Buyer during any activities performed by Buyer on the Real Property.  
4.3.2    Notwithstanding anything stated to the contrary herein, Buyer shall have no right to inspect any of the occupied space in the Real Property, and Buyer shall not contact or speak to any of the tenants under the Leases, unless Buyer provides Seller with no less than forty-eight (48) hours prior written notice of such intention and Seller or Seller’s representative is present during such inspections and/or discussions with tenants; any discussions with tenants shall immediately cease at the tenant’s request and any discussions with tenants must be limited to their existing tenancy and premises and may not involve any lease renegotiations.  Seller agrees to make itself or its representatives reasonably available Buyer’s inspections and/or discussions with tenants.  Inspections by Buyer shall not interfere with the rights of tenants.  At Seller’s request, Buyer shall provide Seller (at no cost to Seller) with a copy of the results of any tests and inspections made by Buyer, excluding only market and economic feasibility studies.  If any inspection or test disturbs the Real Property, Buyer will restore the Real Property to the same condition as existed before the inspection or test.  Buyer shall defend, indemnify Seller and hold Seller, Seller’s trustees, officers, tenants, agents, contractors and employees and the Real Property harmless from and against any and all losses, costs, damages, claims, or liabilities, including but not limited to, mechanics’ and materialmens’ liens and Seller’s reasonable attorneys’ fees, arising out of or in connection with Buyer’s, or its agents’, contractors’, employees’, or invitees’ entry upon or inspection of the Real Property, but expressly excluding 


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any such losses, costs, damages, claims or liabilities arising from Buyer’s discovery of a pre-existing condition on the Real Property not caused by Buyer (so long as Buyer and Buyer’s representative did not exacerbate any such pre-existing condition) or arising from Seller’s negligence or willful misconduct.  The License shall be deemed revoked upon termination of this Agreement.  The provisions of this Section 4.3.1 shall survive the Close of Escrow or the earlier termination of this Agreement.
4.3.3    Environmental Inspections.  The inspections under Section 4.3.1 may include non-invasive Phase I environmental inspections of the Real Property, but no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, including without limitation construction materials, either as part of the Phase I inspections or any other inspections, shall be performed without the prior written consent of Seller, which may be withheld in its sole and absolute discretion, and if consented to by Seller, the proposed scope of work and the party who will perform the work shall be subject to Seller’s reasonable  review and approval.
4.3.4    Termination During Due Diligence Period.  If Buyer determines, in its sole discretion, before the expiration of the Due Diligence Period, that the Real Property is unacceptable for Buyer’s purposes, for any reason or no reason, Buyer shall have the right to terminate this Agreement by giving to Seller notice of termination (“Termination Notice”) before the expiration of the Due Diligence Period, in which event the Deposit shall be immediately refunded to Buyer, Buyer shall immediately return all Property Information to Seller and, except for those provisions of this Agreement which expressly survive the termination of this Agreement, the parties hereto shall have no further obligations hereunder.  If Buyer fails to deliver a Termination Notice to Seller and Escrow Holder on or before the expiration of the Due Diligence Period, then Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to Section 4.3.3.  Buyer’s delivery of a Termination Notice to Seller with respect to the Real Property shall constitute Buyer’s election to terminate this Agreement with respect to the Real Property as provided above in this Section 4.3.3.
4.4    Tenant Estoppel Certificates; SNDAs.  Seller shall endeavor to secure and deliver to Buyer by the Closing Date estoppel certificates for all Leases consistent with the information in the Rent Rolls and substantially in the form attached hereto as Exhibit D or such form as may be required under the applicable Leases.  Buyer may terminate this Agreement upon two (2) business days written notice to Seller if, no less than three (3) business days prior to the Closing Date, Seller fails to deliver to Buyer estoppel certificates substantially in the form attached hereto as Exhibit D or such form as may be required under any particular Lease (“Tenant Estoppel Certificates”), executed by tenants under Leases covering at least eighty-five percent (85%) of the leased rental floor area of the Real Property, including Husch Blackwell LLP, Ernst Young US LLP, Olin Corporation and Northern Trust Company, and meeting the foregoing requirements (the “Estoppel Threshold”).  Prior to transmitting the Tenant Estoppel Certificates (with all exhibits thereto attached) to the tenants, Seller shall afford Buyer an opportunity to review the Tenant Estoppel Certificates.  Buyer agrees that it shall approve or provide reasonable objections in writing to Seller within two (2) business days following receipt of the same from Seller; failure by Buyer to provide its approval within such two (2) business day period shall be deemed to be Buyer’s approval of the Tenant Estoppel Certificates, and Seller shall be permitted to transmit the Tenant Estoppel Certificates to the 


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tenants.  Buyer shall have the right to review and approve any Tenant Estoppel Certificates executed by a tenant; provided, however, Buyer shall not be entitled to object to any Tenant Estoppel Certificate executed by a tenant unless (a) the tenant under its Lease modifies any of the statements in the Tenant Estoppel Certificate to disclose material adverse matters, or (b) the tenant under its Lease indicates in the Tenant Estoppel Certificate any of the following:  (1) that Seller is in material default under the terms of the Lease, (2) it has a claim or offset right, and Seller is unwilling or unable to give Buyer a credit in immediately available funds at the Close of Escrow in an amount reasonably satisfactory to Buyer to satisfy such claim or offset right in full, or (3) discloses (i) any information materially inconsistent with the Lease, (ii) a material breach by Seller, (iii) a material dispute between it and the Seller, or (iv) any material unrepaired, uncured or unperformed defect, claim, liability or obligation of Seller and/or with respect to the Real Property, each as reasonably determined by Buyer.  Buyer shall be deemed to have approved an executed Tenant Estoppel Certificate unless it notifies Seller in writing of its disapproval of the same (to the extent permitted above in this Section 4.4) within three (3) business days following its receipt of the same (“Rejected Estoppel”).  To the extent the matters set forth in the Rejected Estoppel cannot be resolved to Buyer’s reasonable satisfaction on or prior to the Closing Date and to the extent the Rejected Estoppel is needed to satisfy the Estoppel Threshold, Buyer shall have the right to terminate this Agreement and receive a return of the Deposit.  For the purposes of this Section 4.4, “material” shall mean the cost to cure would cost more than $75,000.00 in the aggregate.
Following the expiration of the Due Diligence Period (and not until the expiration of the Due Diligence Period), Buyer shall be entitled to deliver to tenants for signature subordination, non-disturbance and attornment agreements (“SNDA’s”) provided (i) Buyer provides to Seller prior to the expiration of the Due Diligence Period, and Seller approves (in Seller’s reasonable discretion), the form of SNDA, and (ii) Buyer has acknowledged in writing that it has received and approved (or waived its right to receive and approve) all Tenant Estoppel Certificates to which it is entitled in accordance with the provisions of this Section 4.4.  Under no circumstances shall Buyer’s receipt of executed SNDA’s from tenants be a condition precedent to Buyer’s obligation to consummate the transaction contemplated under this Agreement.
4.5    Contracts.  Buyer shall assume the obligations arising from and after the Closing Date under the Contracts; provided, however, notwithstanding anything stated to the contrary herein, Buyer shall not be obligated to assume any of Seller’s obligations under, and Seller shall terminate at Close of Escrow, the management and leasing agreement listed in Exhibit C attached hereto and made a part hereof, except that, notwithstanding Seller’s termination of the management and leasing agreement listed in Exhibit C attached hereto, and in consideration of Seller’s terminating the same, Buyer shall be responsible for, and Buyer shall assume pursuant to the terms and provisions of the Assignment of Leases and Contracts and Bill of Sale, as hereinafter defined, all leasing commissions payable (notwithstanding the termination of the management and leasing agreement) under the management and leasing agreement after the Close of Escrow arising out of the lease of space in the Property after the Close of Escrow.
4.6    Confidentiality.  Prior to the Close of Escrow or in the event the Close of Escrow never occurs, the Property Information and all other information, other than matters of public record or matters generally known to the public, furnished to, or obtained through inspection of the Real Property by, Buyer, its affiliates, lenders, employees, attorneys, accountants and other 


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professionals or agents relating to the Real Property, will be treated by Buyer, its affiliates, lenders, employees and agents as confidential, and will not be disclosed to anyone (except as reasonably required in connection with Buyer’s evaluation of the Real Property) except to Buyer’s consultants, investors, lenders, employees, accountants, lawyers, members, managers, directors, officers or agents who agree to maintain the confidentiality of such information, and will be returned to Seller by Buyer if the Close of Escrow does not occur.  The terms of this Agreement will not be disclosed to anyone prior to or after the Close of Escrow except to Buyer’s and Seller’s consultants, investors, lenders, employees, accountants, lawyers, members, managers, directors, officers or agents who agree to maintain the confidentiality of such information and Seller and Buyer agree not to make any public announcements or public disclosures or communicate with any media with respect to the subject matter hereof without the prior written consent of the other party (in their sole and absolute discretion).  The confidentiality provisions of this Section 4.6 shall not apply to any disclosures made by Buyer or Seller as required by law, by court order, or in connection with any subpoena served upon Buyer or Seller; provided Buyer and Seller shall provide each other with written notice before making any such disclosure.  Notwithstanding the foregoing and anything to the contrary in this Agreement, nothing contained herein shall impair Seller’s (or any Seller affiliate’s) right to disclose information relating to this Agreement or the Property (a) to any due diligence representatives and/or consultants that are engaged by, work for or are acting on behalf of, any securities dealers and/or broker dealers evaluating Seller or its affiliates, (b) in connection with any filings (including any amendment or supplement to any S‐11 filing) with governmental agencies (including the United States Securities and Exchange Commission) by any REIT holding an interest (direct or indirect) in Seller, and (c) to any broker/dealers in the Seller’s or any REIT’s broker/dealer network and any of the REIT’s or Seller’s investors.
5.    OPERATIONS AND RISK OF LOSS
5.1    Ongoing Operations.  During the pendency of this Agreement, but subject to the limitations set forth below, Seller shall carry on its businesses and activities relating to the Real Property substantially in the same manner as it did before the date of this Agreement.  The new and pending lease transactions (the “New and Pending Lease Transactions”) reflected on Schedule 1-1 and Schedule 1-2 attached hereto shall be deemed approved by Buyer for purposes of this Agreement.
5.2    New Contracts.  Prior to the expiration of the Due Diligence Period, Seller may without Buyer’s consent enter into contracts relating to the Real Property, provided that Seller provides Buyer with written notice of the same at least three (3) business days prior to the expiration of the Due Diligence Period.  Following the expiration of the Due Diligence Period, Seller will not enter into any contract that will be an obligation affecting the Real Property subsequent to the Close of Escrow (except contracts entered into in the ordinary course of business that are terminable at Seller’s sole cost and expense without cause and on 30‐days’ notice), without the prior consent of the Buyer, which shall not be unreasonably withheld or delayed.
5.3    Leasing Arrangements.  Except for the New and Pending Lease Transactions, Seller shall obtain Buyer’s consent, which Buyer may withhold or delay in Buyer’s sole discretion, before entering into any new lease of space in the Real Property and before entering 


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into a Lease amendment, expansion, or renewal; provided, however, Buyer’s consent shall not be required for any Lease amendment, expansion and/or extension which is provided for in the Lease and with respect to which Seller does not have any discretion.  Buyer shall be deemed to have consented to any new lease or any Lease amendment, expansion, or renewal if it has not notified Seller specifying with particularity the matters to which Buyer reasonably objects, within five (5) days after its receipt of Seller’s written request for consent, together with a copy of the Lease amendment, expansion, or renewal or the new lease.  At the Close of Escrow, (a) Buyer shall reimburse Seller for commissions, legal fees, the cost of tenant improvements, and all other leasing costs and expenses paid by Seller with respect to all New and Pending Lease Transactions entered into and listed on Schedule 1-1 attached hereto and with respect to all other Lease amendments, expansions, or renewals or new leases that were entered into pursuant to this Section 5.3, (b) Buyer shall be entitled to a credit towards the Purchase Price equal to the leasing commissions and tenant improvement allowances referred to in Schedule 1-2 attached hereto to the extent the same remains unpaid as of the Close of Escrow, and (c) Buyer shall assume in writing (pursuant to the Assignment of Leases and Contracts and Bill of Sale) Seller’s obligations (whether arising before or after the Closing Date) under such new leases and Lease amendments, expansions or renewals.
5.4    Title to Real Property.  From and after the Effective Date until the Close of Escrow or earlier termination of this Agreement, Seller shall not place any easements, covenants, restrictions or other instruments on the Property other than any instruments and other matters which Seller causes to be released and discharged of record prior the Close of Escrow.
5.5    Notices to Seller.  From and after the Effective Date, Seller shall deliver to Buyer copies of any written notices relating to the Property and received from (1) a governmental agency or public authority (or a third party acting under the authority of a governmental agency or public authority, (2) a tenant under a Lease alleging a default thereunder, or (3) any party under any declaration of covenants, conditions and restrictions or reciprocal easement agreement recorded against the Property.
5.6    Employment Contracts.  Seller shall not enter into any employment contract or collective bargaining agreement in respect of the Property without the prior written consent of Buyer.
5.7    No Back Up Offers.  So long as this Agreement is in effect, Seller hereby agrees not to execute any letter-of-intent or purchase agreement for the purchase and sale of the Property other than this Agreement.
5.8    Damage or Condemnation.  Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened against the Real Property before the Close of Escrow, and risk of loss to the Real Property due to fire, flood or any other cause before the Close of Escrow, shall remain with Seller.  If before the Close of Escrow the Real Property or any portion thereof shall be materially damaged, or if the Real Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain or condemnation, then Buyer may elect not to acquire the Real Property by delivering written notice of such election to Seller within ten (10) days after 


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Buyer learns of the damage or taking, in which event Buyer shall no longer be obligated to purchase, and Seller shall no longer be obligated to sell, the Real Property.  If the Closing Date is within the aforesaid ten‐day period, then the Close of Escrow shall be extended to the next business day following the end of said ten‐day period.  If no such election is made, and in any event if the damage is not material, this Agreement shall remain in full force and effect, the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Close of Escrow, Seller shall assign, transfer and set over to Buyer all of the right, title and interest of Seller in and to any awards that have been or that may thereafter be made for such taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may thereafter be made for such damage or destruction giving Buyer a credit at the Close of Escrow for any deductible under such policies.  For purposes of this Section 5.8, the phrase(s) (i) “Material damage” or “Materially damaged” means damage reasonably exceeding three percent (3%) of the Purchase Price of the Real Property or damage that results in any tenant leasing more than 10,000 square feet (“Material Tenant”) in the Real Property terminating their lease or reducing their rent, and (ii) “material portion” means (A) any portion of the Real Property that has a “fair market value” exceeding three percent (3%) of the Purchase Price of the Real Property, (B) would result in allowing a Material Tenant to terminate its Lease or to reduce its rent, (c) would materially impair ingress or egress to or from the Real Property, or (d) would reduce the number of parking spaces at the Real Property causing the Property to violate applicable zoning requirements or the lease of any Material Tenant.
6.    SELLER’S AND BUYER’S DELIVERIES
6.1    Seller’s Deliveries into Escrow.  No less than one (1) business day prior to the Closing Date, Seller shall deliver into Escrow (as such term is defined in Section 9 hereof) to the Escrow Holder the following:
(a)    Deed.  A deed (the “Deed”) in the form attached hereto as Exhibit E, executed and acknowledged by Seller, conveying to Buyer Seller’s title to the Real Property.
(b)    Assignment of Leases and Contracts and Bill of Sale.  An Assignment of Leases and Contracts and Bill of Sale (“Assignment of Leases and Contracts and Bill of Sale”) in the form of Exhibit F attached hereto, executed by Seller.
(c)    State Law Disclosures.  Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of the Real Property.
(d)    FIRPTA.  A Foreign Investment in Real Property Tax Act affidavit executed by Seller substantially in the form of Exhibit G attached hereto.
(e)    Owner’s Affidavit.  An Owner’s Affidavit in the form of Exhibit I attached hereto, executed by Seller, except that Buyer shall have no right to receive a copy of or rely on such Owner’s Affidavit.
(f)    Seller’s Update Certificate.  A certificate of Seller in the form of Exhibit J attached hereto confirming whether the representations and warranties made by Seller in Section 11.1 hereof continue to be true and correct in all material respects.


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(g)    Vendor Notice Letters.  Signed copies of the notice letters, but only to the extent prepared by Buyer and delivered to Seller no less than three (3) business days prior to Closing, notifying vendors that the Property has been sold to Buyer.
(h)    Additional Documents.  Any additional documents that Escrow Holder or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement, including any affidavits required by the Title Company relating to the payment of brokerage fees.
6.2    Buyer’s Deliveries into Escrow.  No less than one (1) business day prior to the Closing Date (except as otherwise expressly provided below), Buyer shall deliver into Escrow to the Escrow Holder the following:
(a)    Purchase Price.  The Purchase Price, less the Deposit that is applied to the Purchase Price, plus or minus applicable prorations, deposited by Buyer with the Escrow Holder in immediate, same day federal funds wired for credit into the Escrow Holder’s escrow account and deposited in Escrow Holder’s escrow account no later than 1:30 p.m. (California time) on the Closing Date.
(b)    Assignment of Leases and Contracts and Bill of Sale.  An Assignment of Leases and Contracts and Bill of Sale executed by Buyer.
(c)    State Law Disclosures.  Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of the Real Property.
(d)    Additional Documents.  Any additional documents that Escrow Holder or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement.
6.3    Closing Statements/Escrow Fees; Tenant Notices.  Concurrently with the Close of Escrow, Seller and Buyer shall deposit with the Escrow Holder executed closing statements consistent with this Agreement in the form required by the Escrow Holder and, Seller and Buyer shall execute at the Close of Escrow, and deliver to each tenant immediately after the Close of Escrow, tenant notices regarding the sale of the Real Property in substantially the form of Exhibit H attached hereto, or such other form as may be required by applicable state law.
6.4    Post-Closing Deliveries.  Immediately after the Close of Escrow, to the extent in Seller’s possession, Seller shall deliver to the offices of Buyer’s property manager:  the original Leases and lease files; copies or originals of all contracts, receipts for deposits, and unpaid bills; all keys and codes, if any, used in the operation of the Real Property; and, if in Seller’s possession or control, any “as‐built” plans and specifications of the Improvements.
7.    CONDITIONS TO BUYER’S AND SELLER’S OBLIGATIONS
7.1    Conditions to Buyer’s Obligations.  The Close of Escrow and Buyer’s obligation to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being 


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agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(a)    All of Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, subject to any qualifications hereafter made to any of Seller’s representations as provided for in Section 11.1 hereof;
(b)    As of the Closing Date, Seller shall have performed its respective obligations hereunder and all deliveries to be made at Close of Escrow by Seller shall have been tendered;
(c)    There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s ability to perform its respective obligations under this Agreement;
(d)    There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby or with respect to the Property;
(e)    Subject to Section 4.4 above, no less than three (3) business days prior to the Closing Date, Seller shall have delivered or caused to be delivered to Buyer, Tenant Estoppel Certificates complying with the provisions of Section 4.4 above; and
(f)    The Title Company is in a position to issue the Title Policy as required under Section 4.2.3.
If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Buyer had actual knowledge (limited to the knowledge of Donald Shoemaker and Raymond Warner) as of the Close of Escrow.
7.2    Conditions to Seller’s Obligations.  The Close of Escrow and Seller’s obligations to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions for Seller’s benefit (or Seller’s waiver thereof, it being agreed that Seller may waive any or all of such conditions) on or prior to the Closing Date or the dates designated below for the satisfaction of such conditions:
(a)    All of Buyer’s representations and warranties contained herein shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date;
(b)    As of the Closing Date, Buyer has performed its obligations hereunder and all deliveries to be made at Close of Escrow by Buyer shall have been tendered including, without limitation, the deposit with Escrow Holder of the amounts set forth in Section 6.2(a) hereof;


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(c)    There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Buyer that would materially and adversely affect Buyer’s ability to perform its obligations under this Agreement;
(d)    There shall exist no pending or threatened action, suit or proceeding with respect to Buyer before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby; and
(e)    Seller shall have received all consents and approvals from (i) all governmental bodies from whom such consents and approvals are necessary in order to consummate the Close of Escrow, and (ii) all third parties from whom such consents or approvals are necessary under all contracts, covenants and other agreements relating to the Real Property and which have been recorded against the Real Property or are contained in the Property Information made available to Buyer, but only to the extent Seller’s failure to obtain such consents and/or approvals would prevent Seller from consummating the Close of Escrow.
8.    CLOSE OF ESCROW; POSSESSION
8.1    “Close of Escrow” shall mean and refer to the closing of the transaction contemplated by this Agreement which shall be deemed to have occurred if (1) Seller provides irrevocable direction to the Title Company to record the Deed, (1) the Title Company agrees in writing to comply with Seller’s and Buyer’s closing instructions, and (1) Buyer provides irrevocable direction to release the Purchase Price to Seller.  The Escrow and Buyer’s right to purchase the Real Property will terminate automatically if the Close of Escrow does not occur on or before 1:30 p.m. (California time) on the Closing Date.
8.2    Sole exclusive possession of the Real Property, subject only to the Permitted Exceptions, shall be delivered to Buyer on the Closing Date.


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9.    ESCROW
9.1    Closing.  The escrow (the “Escrow”) for the consummation of this transaction shall be established with Escrow Holder at the address indicated in Section 15.1 hereof by the deposit of an original signed copy of this Agreement with Escrow Holder contemporaneously with the execution hereof.  This Agreement shall constitute both an agreement among Buyer and Seller and escrow instructions for Escrow Holder.  If Escrow Holder requires separate or additional escrow instructions which it deems necessary for its protection, Seller and Buyer hereby agree promptly upon request by Escrow Holder to execute and deliver to Escrow Holder such separate or additional escrow instructions (the “Additional Instructions”).  In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern, and the Additional Instructions shall so provide.  The Additional Instructions shall not modify or amend the provisions of this Agreement unless otherwise agreed to in writing by Seller and Buyer.
On the Closing Date, provided that the conditions set forth in Sections 7.1 and 7.2 hereof have been satisfied or waived, Escrow Holder shall take the following actions in the order indicated below:
(a)    With respect to all closing documents delivered to Escrow Holder hereunder, and to the extent necessary, Escrow Holder is authorized to insert into all blanks requiring the insertion of dates the date of the recordation of the Deed or such other date as Escrow Holder may be instructed in writing by Seller and Buyer;
(b)    Deliver to Seller, in cash or current funds, the Purchase Price, plus or minus, as the case may be, the amounts determined in accordance with the provisions of Section 10 hereof, Buyer’s signed counterparts of the Assignment of Leases and Contracts and Bill of Sale and conformed copies of the recorded Deed;
(c)    Record the Deed in the official records of the County in which the Real Property is located;
(d)    Deliver to Buyer those items referred to in Section 6.1 hereof and a conformed copy of the recorded Deed;
(e)    Cause the Title Company to issue the Title Policy for the Real Property in accordance with the provisions of Section 4.2.3 hereof; and
(f)    Deliver to Seller and Buyer a final closing statement which has been certified by Escrow Holder to be true and correct.
9.2    Escrow and Title Charges.
(a)    Upon the Close of Escrow, escrow, title charges and other closing costs shall be allocated between Seller and Buyer as follows:
(i)    Seller shall pay:  (1) the cost of recording the Deed, and (2) one-half (1⁄2) of any escrow fees or similar charges of Escrow Holder.


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(ii)    Buyer shall pay: (1) one‐half (1⁄2) of any escrow fees or similar charges of Escrow Holder, and (2) the premiums for the Title Policy, and if Buyer desires ALTA extended coverage for any Title Policy, Buyer shall pay the premiums and any additional costs (including any survey costs) for such coverage (additional to the premiums for standard coverage) and the cost of any endorsements to the Title Policy, if required by Buyer.
(iii)    Buyer shall pay all costs incurred in connection with Buyer’s updating or recertifying the Existing Surveys or obtaining any surveys for the Real Property.
(iv)    Except to the extent otherwise specifically provided herein, all other expenses incurred by Seller and Buyer with respect to the negotiation, documentation and closing of this transaction, including, without limitation, Buyer’s and Seller’s attorneys’ fees, shall be borne and paid by the party incurring same.
(b)    If the Close of Escrow does not occur by reason of Buyer’s or Seller’s default under this Agreement, then all escrow and title charges (including cancellation fees) shall be borne by the party in default.
9.3    Procedures Upon Failure of Condition.  Except as otherwise expressly provided herein, if any condition set forth in Sections 7.1 or 7.2 hereof is not timely satisfied or waived for a reason other than the default of Buyer or Seller in the performance of its respective obligations under this Agreement:
(a)    This Agreement, the Escrow and the respective rights and obligations of Seller and Buyer hereunder shall terminate (other than the indemnity and insurance obligations of Buyer set forth in Sections 4.3.1 and 14 hereof and the confidentiality provisions of Section 4.6 hereof which shall survive such termination) at the written election of the party for whose benefit such condition was imposed, which written election must be made (i) within two (2) business days after (but, as to the condition in Section 7.1(e) above, within one (1) business day after) the date such condition was to be satisfied, or (ii) on the date the Close of Escrow occurs, whichever occurs first;
(b)    Escrow Holder shall promptly return to Buyer all funds of Buyer in its possession, including the Deposit and all interest accrued thereon, and to Seller and Buyer all documents deposited by them respectively, which are then held by Escrow Holder;
(c)    Buyer shall return to Seller the Property Information; and
(d)    Any escrow cancellation and title charges shall be borne equally by Seller and Buyer.
10.    PRORATIONS
If the Purchase Price is received by Seller’s depository bank in time to credit to Seller’s account on the Closing Date, the day the Close of Escrow occurs shall belong to Buyer and all prorations hereinafter provided to be made as of the Close of Escrow shall each be made as of the end of the day before the Closing Date.  If the cash portion of the Purchase Price is not so 


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received by Seller’s depository bank on the Closing Date, then the day the Close of Escrow occurs shall belong to Seller and such proration shall be made as of the end of the day that is the Closing Date.  In each such proration set forth below, the portion thereof applicable to periods beginning as of Close of Escrow shall be credited to Buyer or charged to Buyer as applicable and the portion thereof applicable to periods ending as of Close of Escrow shall be credited to Seller or charged to Seller as applicable.
10.1    Collected Rent.  All rent (including, without limitation, all base rents, additional rents and retroactive rents, and expressly excluding tenant reimbursements for Operating Costs, as hereinafter defined) and all other income (and any applicable state or local tax on rent) (hereinafter collectively referred to as “Rents”) collected under Leases in effect on the Closing Date shall be prorated as of the Close of Escrow.  Buyer shall receive a credit against the Purchase Price for any free rent credits owing to any tenant (for periods from and after the Closing Date) to the extent such free rent is set forth on Schedule 1-2 attached hereto.  Uncollected Rent (“Uncollected Rent”) shall not be prorated and, to the extent payable for the period prior to the Close of Escrow, shall remain the property of Seller.  Unless otherwise specifically identified by a tenant to be paid in any other order, Buyer and Seller shall apply Rent from tenants that are collected after the Close of Escrow first to Rents which are due to Buyer after the Close of Escrow and second to Rents which were due to Seller on or before the Close of Escrow.  Any prepaid Rents for the period following the Closing Date shall be paid over by Seller or credited to Buyer.  Buyer will make reasonable efforts, without suit, to collect any Rents applicable to the period before the Close of Escrow including, without limitation, sending to tenants bills for the payment of past due Rents during the first six (6) month period following the Closing Date.  Seller may pursue collection of any Rents that were past due as of the Closing Date, provided that Seller shall have no right to terminate any Lease or any tenant’s occupancy under any Lease in connection therewith.
10.2    Operating Costs and Additional Rent Reconciliation.  Seller, as landlord under the Leases, is currently collecting from tenants under the Leases additional rent to cover taxes, insurance, utilities (to the extent not paid directly by tenants), common area maintenance and other operating costs and expenses (collectively, “Operating Costs”) in connection with the ownership, operation, maintenance and management of the Real Property.  To the extent that any additional rent (including, without limitation, estimated payments for Operating Costs) is paid by tenants to the landlord under the Leases based on an estimated payment basis (monthly, quarterly, or otherwise) for which a future reconciliation of actual Operating Costs to estimated payments is required to be performed at the end of a reconciliation period, Buyer and Seller shall make an adjustment at the Close of Escrow for the applicable reconciliation period (or periods, if the Leases do not have a common reconciliation period) based on a comparison of the actual Operating Costs to the estimated payments at the Close of Escrow.  If, as of the Close of Escrow, Seller has received additional rent payments in excess of the amount that tenants will be required to pay, based on the actual Operating Costs as of the Close of Escrow, Buyer shall receive a credit in the amount of such excess.  If, as of the Close of Escrow, Seller has received additional rent payments that are less than the amount that tenants would be required to pay based on the actual Operating Costs as of the Close of Escrow, Seller shall receive a credit in the amount of such deficiency; provided, however, Seller shall not be entitled to the portion, if any, of such deficiency for which Seller received a credit at the Close of Escrow under clause (b) of Section 10.3 hereof.  Operating Costs that are not payable by tenants either directly or 


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reimbursable under the Leases shall be prorated between Seller and Buyer and shall be reasonably estimated by the parties if final bills are not available.
10.3    Taxes and Assessments.  Real estate taxes and assessments imposed by any governmental authority (“Taxes”) with respect to the Real Property for the relevant tax year in which the Real Property is being sold and that are not yet due and payable or that have not yet been paid shall be prorated as of the Close of Escrow based upon the most recent ascertainable assessed values and tax rates and based upon the number of days Buyer and Seller will have owned the Real Property during such relevant tax year.  Seller shall receive a credit for any Taxes paid by Seller and applicable to any period after the Close of Escrow.  If, as of the Closing Date, Seller is protesting or has notified Buyer, in writing, that it has elected to protest any Taxes for the Real Property, then Buyer agrees that Seller shall have the right (but not the obligation), after the Closing Date, to continue such protest.  In such case, any Taxes paid by Buyer after the Closing Date with respect to the Real Property shall be paid under protest and Buyer shall promptly notify Seller of any payments of Taxes made by Buyer with respect to the Real Property.  Buyer further agrees to cooperate, at no cost to Buyer, with Seller and execute any documents reasonably requested by Seller in connection with such protest.  As to the Real Property, any tax savings received (“Tax Refunds”) for the relevant tax year under any protest, whether filed by Seller or Buyer, shall be prorated between the parties based upon the number of days, if any, Seller and Buyer respectively owned the Real Property during such relevant tax year; any payment of Tax Refunds to the other party shall be net of any fees and expenses payable to any third party for processing such protest, including attorneys’ fees.  Seller shall have the obligation to refund to any tenants in good standing as of the date of such Tax Refund, any portion of such Tax Refund paid to Seller which may be owing to such tenants, which payment shall be paid to Buyer within fifteen (15) business days of delivery to Seller by Buyer of written confirmation of such tenants’ entitlement to such Tax Refunds.  Buyer shall have the obligation to refund to tenants in good standing as of the date of such Tax Refund, any portion of such Tax Refund paid to it which may be owing to such tenants.  Seller and Buyer agree to notify the other in writing of any receipt of a Tax Refund within fifteen (15) business days of receipt of such Tax Refund.  To the extent either party obtains a Tax Refund, a portion of which is owed to the other party, the receiving party shall deliver the Tax Refund to the other party within fifteen (15) business days of its receipt.  If Buyer or Seller fail to pay such amount(s) to the other as and when due, such amount(s) shall bear interest from the date any such amount is due to Seller or Buyer, as applicable, until paid at the lesser of (a) twelve percent (12%) per annum and (b) the maximum amount permitted by law.  The obligations set forth herein shall survive the Close of Escrow and Buyer agrees that, as a condition to the transfer of the Property by Buyer, Buyer will cause any transferee to assume the obligations set forth herein.
10.4    Leasing Commissions, Tenant Improvements and Contracts.  At Close of Escrow, Buyer shall assume (pursuant to the Assignment of Leases and Contracts and Bill of Sale) the obligation to pay all (a) leasing costs that are due or become due prior to the Closing Date to the extent that the same (i) arise from a new lease or any Lease amendment, extension or expansion hereafter entered into by Seller in accordance with the terms and conditions of this Agreement, or (ii) arise out of any New and Pending Lease Transactions (including, without limitation, the commissions and/or tenant improvements referenced in Section 5.3 hereof), and (b) leasing costs that are due after the Closing Date.  Buyer will assume the obligations arising from and after the Closing Date under the Contracts.  In accordance with the provisions 


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of Section 5.3 hereof, Buyer shall receive a credit towards the Purchase Price equal to the leasing commissions and tenant improvement allowances referred to in Schedule 1-2 attached hereto to the extent the same remains unpaid as of the Close of Escrow.
10.5    Tenant Deposits.  All tenant security deposits actually received by Seller (and interest thereon if required by law or contract to be earned thereon) and not theretofore applied to tenant obligations under the Leases in accordance with the terms of the Leases shall be transferred or credited to Buyer at the Close of Escrow or placed in escrow if required by law.  As of the Close of Escrow, Buyer shall assume Seller’s obligations related to tenant security deposits.  Buyer will indemnify, defend, and hold Seller harmless from and against all demands and claims made by tenants arising out of the transfer or disposition of any security deposits and will reimburse Seller for all reasonable attorneys’ fees incurred or that may be incurred as a result of any such claims or demands as well as for all loss, expenses, verdicts, judgments, settlements, interest, costs and other expenses incurred or that may be incurred by Seller as a result of any such claims or demands by tenants.  If any security deposits are in the form of a letter of credit, Seller’s obligation to deliver or credit such deposit shall be satisfied by the delivery by Seller of the original letter of credit to Buyer.  Seller shall cooperate with Buyer to transfer any such letters of credit, including signing any assignment document requested by the issuer and presented to Seller prior to or after Closing, but expressly excluding any obligation to draw on any letter of credit for the benefit of Buyer.  All costs of the assignment of any letter of credit shall be paid by Buyer without prejudice to Buyer’s right to seek reimbursement from a tenant for such costs post-closing if permitted under the respective lease.
10.6    Utilities and Utility Deposits.  Utilities for the Real Property (excluding utilities for which payment is made directly by tenants), including water, sewer, electric, and gas, based upon the last reading of meters prior to the Close of Escrow, shall be prorated.  Seller shall be entitled to a credit for all security deposits held by any of the utility companies providing service to the Real Property and transferred to Buyer.  Seller shall endeavor to obtain meter readings on the day before the Closing Date, and if such readings are obtained, there shall be no proration of such items and Seller shall pay at Close of Escrow the bills therefor for the period to the day preceding the Close of Escrow, and Buyer shall pay the bills therefor for the period subsequent thereto.  If the utility company will not issue separate bills, Buyer will receive a credit against the Purchase Price for Seller’s portion and will pay the entire bill prior to delinquency after Close of Escrow.  If Seller has paid utilities no more than thirty (30) days in advance in the ordinary course of business, then Buyer shall be charged its portion of such payment at Close of Escrow.  Buyer shall be responsible for making any security deposits required by utility companies providing service to the Real Property.
10.7    Owner Deposits.  Seller shall receive a credit at the Close of Escrow in the amount set forth on Schedule 3 attached hereto for all bonds, deposits, letters of credit, set aside letters or other similar items, if any, that are outstanding with respect to the Real Property that have been provided by Seller or any of its affiliates to any governmental agency, public utility, or similar entity (collectively, “Owner Deposits”) to the extent assignable and assigned to Buyer.  To the extent any Owner Deposits are not assignable to Buyer, Buyer shall replace such Owner Deposits and obtain the release of Seller (or its affiliates) from any obligations under such Owner Deposits.  To the extent that any funds are released as a result of the termination of any Owner 


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Deposits for which Seller did not get a credit, such funds shall be delivered to Seller immediately upon their receipt.
10.8    Percentage Rents.  Percentage rents (“Percentage Rents”) actually collected for the month in which the Close of Escrow occurs shall be prorated as of the Closing Date.  Percentage Rents due after the Close of Escrow shall not be prorated; provided, however, after Buyer has completed any reconciliation of actual Percentage Rents payable and estimated Percentage Rents paid by the subject tenants, and all reconciled amounts have been paid, a reconciliation shall be made between Seller and Buyer with regard to such Percentage Rents.  Pursuant to such reconciliation, Seller and Buyer shall be entitled to their proportionate share of all Percentage Rents paid for the subject fiscal Lease year used to calculate each tenant’s Percentage Rents (less any out-of-pocket costs incurred in collecting said amounts, which shall belong to Buyer) based on the number of days of such fiscal year Seller and Buyer owned the Property (and adjusted for any amount of Percentage Rent prorated at Closing or received by Seller or Buyer).  As used in this paragraph, the term “Percentage Rents” shall not include and shall have deducted from such Percentage Rent amount any “base” or “minimum” rent component which is payable each month (regardless of actual sales), which “base” or “minimum” rent component shall be prorated or otherwise handled in the manner provided in this Agreement.  Buyer will make reasonable efforts, without suit, to collect all Percentage Rents payable after the Close of Escrow and relating to the period prior to the Close of Escrow, and all Percentage Rents which are delinquent as of the Close of Escrow, including, without limitation, sending to tenants bills for the payment of the same.  Seller may pursue collection of all Percentage Rents payable after the Close of Escrow and relating to the period prior to the Close of Escrow and all Percentage Rents which are delinquent as of the Close of Escrow, provided that Seller shall have no right to terminate any Lease or any tenant’s occupancy under any Lease in connection therewith.
10.9    Final Adjustment After Closing.  If final prorations cannot be made at the Close of Escrow for any item being prorated under this Section 10, then, provided Buyer and Seller identify any such proration (“Post Closing Proration”) in writing before the Close of Escrow, Buyer and Seller agree to allocate such items on a fair and equitable basis as soon as invoices or bills are available and applicable reconciliation with tenants have been completed, with final adjustment to be made as soon as reasonably possible after the Close of Escrow (but in no event later than ninety (90) days after the Close of Escrow, except that adjustments arising from any tax protest under Section 10.3 or from Percentage Rents under Section 10.8 hereof shall not be subject to such 90‐day limitation, but shall be made as soon as reasonably possible), to the effect that income and expenses are received and paid by the parties on an accrual basis with respect to their period of ownership.  Payments in connection with the final adjustment shall be due no later than ninety (90) days after the Close of Escrow, except that adjustments arising from any tax protest under Section 10.3 or relating to Percentage Rents under Section 10.8 hereof shall not be subject to such 90‐day limitation, but shall be made as soon as reasonably possible.  Seller shall have reasonable access to, and the right to inspect and audit, Buyer’s books to confirm the final prorations for a period of one (1) year after the Close of Escrow.  Notwithstanding anything to the contrary stated in this Section 10, except for any reconciliation arising out of a tax protest under Section 10.3 hereof, or arising out of Percentage Rents under Section 10.8 hereof, and except for any Post Closing Prorations (which must be determined and paid within ninety (90) days after the Close of Escrow), all prorations made under this Section 10 shall be final as of the 


21







Close of Escrow and shall not be subject to further adjustment (whether due to an error or for any other reason) after the Close of Escrow.
11.    SELLER’S REPRESENTATIONS AND WARRANTIES; AS‐IS
11.1    Seller’s Representations and Warranties.  In consideration of Buyer’s entering into this Agreement and as an inducement to Buyer to purchase the Real Property from Seller, Seller makes the following representations and warranties to Buyer:
(a)    Seller is a limited liability company organized and in good standing under the laws of the State of Delaware.  Seller has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Seller is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein.
(b)    There is no agreement to which Seller is a party or to Seller’s Actual Knowledge binding on Seller which would prevent Seller from consummating the transaction contemplated by this Agreement.
(c)    Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Internal Revenue Code and regulations promulgated thereunder, which Seller shall so certify at Closing.
(d)    To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has received no written notice from any governmental agency in the last 24 months that the Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation (including those relating to environmental matters), except with respect to such violations as have been fully cured prior to the date hereof.
(e)    To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, Seller has not received written notice from any governmental agency of any currently pending condemnation proceedings relating to the Property.
(f)    To Seller’s Actual Knowledge, except as disclosed on Schedule 2 attached hereto, except with respect to slip and fall and similar claims or matters covered by Seller’s commercial liability insurance policy, Seller has not received service of process with respect to any litigation that has been filed against Seller that arises out of the ownership of the Property and would materially affect the Property or the use thereof, or Seller’s ability to perform hereunder.


(g)    Seller is not and is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of ERISA, (ii) a “plan” within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, of any such employee benefit plan or plans.


22







(h)    Seller has no employees, either at-will or in the context of an employment contract with Seller, and any employees associated with the Property are employees of Seller’s property manager.
(i)    Seller has not either filed or been the subject of any filing of a petition under the Federal Bankruptcy Law or any federal or state insolvency laws or laws for composition of indebtedness or for the reorganization of debtors.  To Seller’s Actual Knowledge, Seller has not received written notice of the existence of any attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Seller.
(j)    To Seller’s Actual Knowledge, neither Seller nor any of its respective affiliates or constituents, nor any of their respective brokers or other agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (a) conducting any business or engaging in any transaction or dealing with any person appearing on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) list of restrictions and prohibited persons (“Prohibited Person”) (which lists can be accessed at the following web address:  http://www.ustreas.gov/offices/enforcement/ofac/), including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (b) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, relating to “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”; or (c) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempting to violate, any of the prohibitions set forth in any U.S. anti-money laundering law.
For purposes of this Section 11.1, the phrase “To Seller’s Actual Knowledge” shall mean the actual (and not implied, imputed, or constructive) knowledge of Brett Merz (whom the Seller represents is the asset manager for the Real Property), without any inquiry or investigation of any other parties, including, without limitation, the tenants and the property manager of the Real Property.
The representations and warranties made by Seller in this Agreement shall survive the recordation of the Deed until November 30, 2017 and any action for a breach of Seller’s representations or warranties must be made and filed on or before November 30, 2017.  If, after the Effective Date, but before the Close of Escrow, Seller becomes aware of any facts or changes in circumstances that would cause any of its representations and warranties in this Agreement to be untrue at Close of Escrow, Seller may notify Buyer in writing of such fact.  In such case, or in the event Buyer obtains information which would cause any of Seller’s representations and warranties to be untrue at Close of Escrow, Buyer, as its sole and exclusive remedy, shall have the right to either (i) terminate this Agreement to the extent that the failure of any such representation or warranty to be true would have a “material adverse impact” on the Property, in which case the Deposit shall be immediately returned to Buyer and neither party shall have any rights or obligations under this Agreement (except for Sections 4.3.1, 15.3 and 15.5 which survive termination of this Agreement); or (ii) to the extent Buyer is not permitted to terminate this Agreement pursuant to clause (i) above, accept a qualification to Seller’s representations and warranties as of the Close of Escrow and complete the purchase and sale of the Property without 


23







any rights to recovery for breach of the unqualified representation and warranty.  Other than as set forth in the immediately preceding sentence, if Buyer proceeds with the Close of Escrow, Buyer shall be deemed to have expressly waived any and all remedies for the breach of any representation or warranty discovered by Buyer prior to the Close of Escrow.  For purposes of this paragraph, a breached representation or warranty shall be deemed to have a “material adverse impact” if it deals with a liquidated amount in excess of $75,000.00 and Seller elects not to provide Buyer with a credit for such amount at Close of Escrow.
11.2    As-Is.  As of the expiration of the Due Diligence Period, Buyer will have:
(a)    examined and inspected the Property and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b)    reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c)    reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d)    at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER.  AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER 


24







AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES.  EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA).  BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY.  ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES).
WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
		
	1.
	THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;


		
	2.
	THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO BUYER’S REVIEW OF THE CONDITION OF THE PROPERTY; OR


		
	3.
	THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY.




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BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW.
BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S INTENDED USE.  THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW.
	
		
	 
	/s/RW 
BUYER’S INITIALS






12.    BUYER’S COVENANTS, REPRESENTATIONS AND WARRANTIES; RELEASE; ERISA; INDEMNIFICATION
In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Real Property to Buyer, Buyer makes the following covenants, representations and warranties:
12.1    Buyer’s Representations and Warranties.
(a)    Authority.  Buyer is a limited liability company formed and in good standing under the laws of the State of Illinois.  Buyer has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Buyer is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein.  There is no agreement to which Buyer is a party or to Buyer’s knowledge binding on Buyer which is in conflict with this Agreement.
(b)    Executive Order 13224.  To the best of Buyer’s knowledge, neither Buyer nor any of its respective affiliates or constituents, nor any of their respective brokers or other agents acting in any capacity in connection with the transactions contemplated by this Agreement is or will be (a) conducting any business or engaging in any transaction or dealing with any person appearing on the OFAC list of Prohibited Persons (which lists can be accessed at the following web address:  http://www.ustreas.gov/offices/enforcement/ofac/), including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (b) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, relating to “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”; or (c) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempting to violate, any of the prohibitions set forth in any U.S. anti-money laundering law.


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12.2    Release.  By proceeding with this transaction following the expiration of the Due Diligence Period, Buyer shall be deemed to have made its own independent investigation of the Property, the Property Information and the presence of Hazardous Materials on the Real Property as Buyer deems appropriate.  Accordingly, subject to the representations and warranties of Seller expressly set forth in Section 11.1 hereof, Buyer, on behalf of itself and all of its officers, directors, shareholders, employees, representatives and affiliated entities (collectively, the “Releasors”) hereby expressly waives and relinquishes any and all rights and remedies Releasors may now or hereafter have against Seller, its successors and assigns, partners, shareholders, officers and/or directors (the “Seller Parties”), whether known or unknown, which may arise from or be related to (a) the physical condition, quality, quantity and state of repair of the Real Property and the prior management and operation of the Real Property, (b) the Property Information or any other information relating to the Property provided to Buyer by Seller or Seller’s agents, (c) the Real Property’s compliance or lack of compliance with any federal, state or local laws or regulations, and (d) any past, present or future presence or existence of Hazardous Materials on, under or about the Real Property or with respect to any past, present or future violation of any rules, regulations or laws, now or hereafter enacted, regulating or governing the use, handling, storage or disposal of Hazardous Materials, including, without limitation, (i) any and all rights and remedies Releasors may now or hereafter have under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, and the Toxic Substance Control Act, all as amended, and any similar state, local or federal environmental law, rule or regulation, and (ii) any and all claims, whether known or unknown, now or hereafter existing, with respect to the Real Property under Section 107 of CERCLA (42 U.S.C.A. §9607).  As used herein, the term “Hazardous Material(s)” includes, without limitation, any hazardous or toxic materials, substances or wastes, such as (1) any materials, substances or wastes which are toxic, ignitable, corrosive or reactive and which are regulated by any local governmental authority, or any agency of the United States government, (2) any other material, substance, or waste which is defined or regulated as a hazardous material, extremely hazardous material, hazardous waste or toxic substance pursuant to any laws, rules, regulations or orders of the United States government, or any local governmental body, (3) asbestos, (4) petroleum and petroleum based products, (5) formaldehyde, (6) polychlorinated biphenyls (PCBs), and (7) freon and other chlorofluorocarbons.
	
		
	 
	Buyer’s Initials: 
/s/ RW








WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER, ON BEHALF OF ITSELF AND THE OTHER RELEASORS, HEREBY ASSUMES ALL RISK AND LIABILITY RESULTING OR ARISING FROM, OR RELATING TO THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR, OR OPERATION OF, THE PROPERTY.
THE FOREGOING WAIVERS, RELEASES AND AGREEMENTS BY BUYER, ON BEHALF OF ITSELF AND THE RELEASORS, SHALL SURVIVE THE CLOSE OF 


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ESCROW AND THE RECORDATION OF THE DEED AND SHALL NOT BE DEEMED MERGED INTO THE DEED UPON ITS RECORDATION.
12.3    ERISA.  Buyer is not purchasing any of the Property with “plan assets” of an Employee Benefit Plan subject to Title I of the Employee Retirement Income Security Act of 1974 (as amended from time to time, the “Act,” and together with any regulation, rule or judicial or administrative case, order, or pronouncement arising under or connected with the Act, “ERISA”) or of a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”).  Buyer shall take all actions reasonably requested by Seller for the purpose of ensuring, to Seller’s satisfaction, that the transactions contemplated herein will comply with ERISA and not result in an imposition of an excise tax under Section 4975 of the Code; such actions shall include, without limitation, the making of such further representations and warranties as Seller’s counsel reasonably deems necessary to ensure that neither this Agreement nor any of the transactions contemplated herein will violate ERISA or result in an imposition of an excise tax under Section 4975 of the Code.  In the event that this Agreement, or any transaction or other action by Seller in connection herewith, shall be deemed to violate ERISA or result in an imposition of an excise tax under Section 4975 of the Code, Seller may immediately terminate this Agreement (without any liability to Seller) in accordance with, and subject to the terms and conditions of, Section 9.3 hereof as if such termination arose from a failed condition under Section 9.3 hereof.
13.    DEFAULT AND DAMAGES
13.1    DEFAULT BY BUYER.  BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF THE NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ASCERTAIN.  IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND WISHES TO INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF A BUYER DEFAULT.  BUYER AND SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT.  BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL THE ESCROW AND RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES AND ESCROW HOLDER SHALL DELIVER THE DEPOSIT TO SELLER NO EARLIER THAN THREE (3) BUSINESS DAYS AFTER ESCROW HOLDER’S AND BUYER’S RECEIPT OF SELLER’S NOTICE; PROVIDED, HOWEVER, IN THE EVENT BUYER DELIVERS A WRITTEN OBJECTION TO SELLER’S NOTICE WITHIN THE TIME PERIOD SET FORTH ABOVE, ESCROW HOLDER SHALL NOT RELEASE 


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THE DEPOSIT TO SELLER UNTIL SUCH TIME THAT JOINT DIRECTION IS ISSUED BY THE PARTIES, OR IN CONNECTION WITH ESCROW HOLDER FILING AN INTERPLEADER ACTION IN A COURT OF GENERAL JURISDICTION IN THE COUNTY OR CIRCUIT WHERE THE PROPERTY IS LOCATED.  SUCH PAYMENT OF THE DEPOSIT TO SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY.


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NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SECTION 14 HEREOF.  SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
	
		
	 
	Seller’s Initials:  /s/ CJS 
Buyer’s Initials:  /s/ RW








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13.2    Default by Seller.  Notwithstanding anything herein to the contrary, if Seller (a) had actual knowledge that any of the representations and warranties set forth in Section 11.1 hereof were untrue as of the Effective Date and the failure of any such representation or warranty to be true would have a “material adverse impact” (as such term is defined in Section 11.1 hereof) on the Property, or (b) defaults in its obligations expressly stated in this Agreement, then Buyer’s sole and exclusive remedy shall be to elect one of the following:  (i) to terminate this Agreement, in which event Buyer shall be entitled to the return by the Escrow Holder to Buyer of the Deposit and Seller shall reimburse Buyer for Buyer’s out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses), as supported by reasonable documentation satisfactory to Seller, incurred in connection with Buyer’s due diligence investigations and negotiation and execution of this Agreement, not to exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate, or (ii) if Seller’s breach arises out of its failure to sell and convey the Property to Buyer on the Closing Date, to bring a suit for specific performance for such breach provided that any suit for specific performance must be brought as to the Property within 45 days of Seller’s default, Buyer’s waiving the right to bring suit at any later date to the extent permitted by law; provided further, however, to the extent that Seller cause Buyer’s remedy of specific performance to be unavailable due to Seller’s selling the Property to another third-party prior to the Closing Date, then Buyer shall be entitled to recover damages from Seller.  This Agreement confers no present right, title or interest in the Property to Buyer and Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance.  Nothing in this Section 13.2 shall prevent or preclude any recovery of attorneys’ fees or other costs incurred by Buyer pursuant to Section 15.5.
14.    BROKER’S COMMISSIONS
Except for Paul Lundstedt and Dan Deuter at CB Richard Ellis, Seller’s broker (whose commission shall be paid by Seller pursuant to a separate agreement between Seller and Seller’s broker), neither party hereto has had any contact or dealing regarding the Real Property, or any communication in connection with the subject matter of this transaction, through any licensed real estate broker or other person who can claim a right to a commission or finder’s fee as a procuring cause of the sale contemplated herein.  In the event that any other broker or finder perfects a claim for a commission or finder’s fee, the party responsible for the contact or communication on which the broker or finder perfected such claim shall indemnify, save harmless and defend the other party from said claim and all costs and expenses (including reasonable attorneys’ fees) incurred by the other party in defending against the same.




1







15.    MISCELLANEOUS PROVISIONS
15.1    Notices.  All written notices or demands of any kind which either party hereto may be required or may desire to serve on the other in connection with this Agreement shall be served by personal service, recognized overnight courier service or facsimile transmission.  Any such notice or demand so to be served by recognized overnight courier service or facsimile transmission shall be delivered with all applicable delivery charges thereon fully prepaid and, if the party so to be served be Buyer, addressed to Buyer as follows:
Franklin Partners, LLC 
55 Shuman Boulevard, Suite 375 
Naperville, Illinois  60563 
Attention:  Donald Shoemaker and Ray Warner 
Telephone No:  (630) 357-5400 
Fax No.:  (630) 357-5453 
Email: djshoemaker@franklinpartners.net 
rwarner@franklinpartners.net
with a copy thereof to:
Levenfeld Pearlstein, LLC 
Two North LaSalle Street, Suite 1300 
Chicago, Illinois  60602 
Attention:  Marc S. Joseph, Esq. 
Telephone No:  (312) 476-7571 
Fax No.:  (312) 346-8434 
Email: mjoseph@lplegal.com
and, if the party so to be served be Seller, addressed to Seller as follows:
c/o KBS Capital Advisors LLC 
800 Newport Center Drive, Suite 700 
Newport Beach, CA 92660 
Attention:  Brett Merz 
Telephone No:  (949) 417-6545 
Fax No.:  (949) 417-6501 
Email:  bmerz@kbs.com
with copies thereof to:
James Chiboucas, Esq. 
800 Newport Center Drive, Suite 700 
Newport Beach, CA 92660 
Telephone No.:  (949) 417-6555 
Fax No.: (949) 417-6523 
Email:  jchiboucas@kbs.com
and


2







Greenberg Traurig 
3161 Michelson Drive, Suite 1000 
Irvine, California  92612 
Attention:  L. Bruce Fischer, Esq. 
Telephone No.:  (949) 732-6670 
Fax No.:  (949) 732-6501 
Email:  fischerb@gtlaw.com
and, if the party to be served be Escrow Holder, addressed to Escrow Holder as follows:
Commonwealth Land Title Insurance Company 
4100 Newport Place Drive, Suite 120 
Newport Beach, California 92660 
Attention:  Joy Eaton 
Telephone No.:  (949) 724-3145 
Fax No.:  (949) 271-5762 
Email:  joyeaton@cltic.com
Service of any such notice or demand so made by personal delivery, recognized overnight courier or facsimile transmission shall be deemed complete on the date of actual delivery as shown by the addressee’s registry or certification receipt or, as to facsimile transmissions, by “answer back confirmation” (provided that a copy of such notice or demand is delivered by any of the other methods provided above within one (1) business day following receipt of such facsimile transmission), as applicable.  Either party hereto may from time to time, by notice in writing served upon the other as aforesaid, designate a different mailing address to which or a different person to whose attention all such notices or demands are thereafter to be addressed.  Counsel for a party may give notice or demand on behalf of such party, and such notice or demand shall be treated as being sent by such party.
15.2    Assignment; Binding on Successors and Assigns.  Buyer shall not assign, transfer or convey its rights or obligations under this Agreement or with respect to the Property without the prior written consent of Seller, which consent Seller may withhold in its sole, absolute and subjective discretion; provided, however, Buyer may assign its rights under this Agreement without Seller’s consent to an Affiliate (as hereinafter defined), so long as (i) Buyer provides Seller with notice of such assignment at least five (5) business days before the Closing Date of its intentions to assign its rights under this Agreement to the Affiliate, which notice must be accompanied by the name of such assignee and such assignee’s signature block, (ii) the Affiliate assumes, jointly and severally, in writing Buyer’s obligations hereunder and the Affiliate agrees in writing to be subject to all of the terms and conditions set forth in this Agreement pursuant to an assignment and assumption agreement substantially in the form attached hereto as Exhibit K and made a part hereof (the “Assignment and Assumption Agreement”), (iii) Buyer shall not be released from its obligations hereunder; and (iv) the assignee to which Buyer is assigning this Agreement is able to make the representation and warranty in Section 12.1(b) herein without violating the same.  As used in this Section 15.2, the term “Affiliate” means an entity that is partially owned by Buyer or controlled (directly or indirectly) by Buyer or one or more of Buyer’s current principals; provided, however, that, in no event shall Buyer be permitted to assign to multiple Affiliates (two or more), it being understood 


3







and agreed to by the parties hereto that Buyer shall not take title in a so-called “TIC” or tenant-in-common investment structure.
15.3    Work Product.  Effective upon and in the event of a termination of this Agreement for any reason other than Seller’s default or breach, Buyer shall deliver to Seller (without any representation or warranty as to such documents and at no cost to Seller) all third party reports relating to the physical condition of the Real Property that have been generated by Buyer’s third party consultants, whether prior to the Opening of Escrow or during the period of Escrow in connection with Buyer’s proposed acquisition, development, use or sale of the Real Property (collectively, the “Work Product”).  In such event, Buyer shall deliver the Work Product to Seller not later than five (5) days after the date of the termination of this Agreement.  The Work Product shall be fully paid for and shall not be subject to any lien, encumbrance or claim of any kind.  Buyer shall also return all materials and information (including, without limitation, the Property Information) given to it by Seller or its consultants during Escrow, in the same condition as delivered to Buyer.
15.4    Further Assurances.  In addition to the acts and deeds recited herein and contemplated to be performed, executed or delivered by Seller or Buyer, Seller and Buyer hereby agree to perform, execute and deliver, or cause to be performed, executed and delivered, on the Closing Date or thereafter any and all such further acts, deeds and assurances as Buyer or Seller, as the case may be, may reasonably require in order to consummate fully the transactions contemplated hereunder.
15.5    Attorneys’ Fees.  If any legal action or any arbitration or other proceeding is brought or if an attorney is retained for the enforcement of this Agreement or any portion thereof, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover from the other reimbursement for the reasonable fees of attorneys and other costs (including court costs and witness fees) incurred by it, in addition to any other relief to which it may be entitled.  The term “prevailing party” means the party obtaining substantially the relief sought, whether by compromise, settlement or judgment.
15.6    Survival of Representations, Warranties, Covenants, Obligations and Agreements.
(a)    Except as otherwise expressly provided below in this Section 15.6, none of the representations, warranties, covenants, obligations or agreements contained in this Agreement shall survive the Close of Escrow or the earlier termination of this Agreement.
(b)    Notwithstanding the provisions of Section 15.6(a), the indemnification provisions of Buyer under Sections 4.3.1 and 14 hereof and the provisions of Sections 4.6, 11.2, 13.2, 15.3, 15.5, 15.17, 15.19 and 15.20 hereof (collectively, the “Surviving Termination Obligations”) shall survive the termination of this Agreement without limitation (provided, however, that Section 14 only survives for a period of six (6) months after termination of this Agreement), and any claim based upon any breach of a representation or warranty, or a breach of a covenant, obligation or agreement included in any of the Surviving 


4







Termination Obligations shall be actionable and enforceable at any time after the date of the termination of this Agreement.
(c)    Notwithstanding the provisions of Section 15.6(a), the indemnification provisions of Buyer under Sections 4.3.1, 14 and 10.5 hereof, the provisions of Sections 4.6, 10.1, 10.3, 10.4, 10.8, 11.2, 12.1, 12.2, and 12.3 that relate to Buyer and the provisions of Sections 15.5, 15.17, 15.19 and 15.20 hereof (collectively, the “Surviving Closing Obligations”) shall survive the Close of Escrow without limitation (provided, however, that Section 14 only survives for a period of six (6) months after termination of this Agreement), and shall not be merged with the recording of the Deed, and any claim based upon any breach of a representation or warranty, or a breach of a covenant, obligation or agreement included in any of the Surviving Closing Obligations shall be actionable and enforceable at any time after the Closing.
(d)    Notwithstanding the provisions of Section 15.6(a), the indemnification provisions of Seller under Section 14 hereof and the provisions of Section 11.1 hereof (collectively, the “Limited Surviving Closing Obligations”) shall survive the Close of Escrow and the execution and delivery of the Deed only until November 30, 2017, and any claim based upon any breach of a representation or warranty, or a breach of a covenant, obligation or agreement included in any of the Limited Surviving Closing Obligations shall be actionable and enforceable if and only if notice of such claim is given to the party which allegedly breached such representation or warranty, or breached such covenant, obligation or agreement on or before November 30, 2017.  Notwithstanding anything stated to the contrary in this Agreement, in no event shall Seller’s liability, if any, with respect to any Limited Surviving Closing Obligations and/or any Surviving Closing Obligations exceed One Million Seven Hundred Ten Thousand Dollars ($1,710,000.00) in the aggregate. 
15.7    Entire Agreement.  This Agreement contains the entire agreement and understanding of the parties in respect to the subject matter hereof, and the parties intend for the literal words of this Agreement to govern and for all prior negotiations, drafts, and other extrinsic communications, whether oral or written, to have no significance or evidentiary effect.  The parties further intend that neither this Agreement nor any of its provisions may be changed, amended, discharged, waived or otherwise modified orally except only by an instrument in writing duly executed by the party to be bound thereby.  The parties hereto fully understand and acknowledge the importance of the foregoing sentence and are aware that the law may permit subsequent oral modification of a contract notwithstanding contract language which requires that any such modification be in writing, but Buyer and Seller fully and expressly intend that the foregoing requirements as to a writing be strictly adhered to and strictly interpreted and enforced by any court which may be asked to decide the question.  Each party hereto acknowledges that this Agreement accurately reflects the agreements and understandings of the parties hereto with respect to the subject matter hereof and hereby waive any claim against the other party which such party may now have or may hereafter acquire to the effect that the actual agreements and understandings of the parties hereto with respect to the subject matter hereof may not be accurately set forth in this Agreement.
15.8    Governing Law.  This Agreement shall be governed by the laws of the State of Missouri.


5







15.9    Counterparts.  This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
15.10    Headings; Construction.  The various headings of this Agreement are included for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.  When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural and the masculine shall include the feminine and the neuter and vice versa.  The use in this Agreement of the term “including” and related terms such as “include” shall in all cases mean “without limitation.”  All references to “days” in this Agreement shall be construed to mean calendar days unless otherwise expressly provided and all references to “business days” shall be construed to mean days on which national banks are open for business.
15.11    Time of Essence.  Seller and Buyer hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and failure to perform timely any of the terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of, and non-curable (but waivable) default under this Agreement by the parties so failing to perform.
15.12    Partial Validity; Severability.  If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
15.13    No Third Party Beneficiaries.  This Agreement is for the sole and exclusive benefit of the parties hereto and their respective permitted successors and assigns, and no third party is intended to, or shall have, any rights hereunder.
15.14    Intentionally Omitted.
15.15    Joint Product of Parties.  This Agreement is the result of arms-length negotiations between Seller and Buyer and their respective attorneys.  Accordingly, neither party shall be deemed to be the author of this Agreement and this Agreement shall not be construed against either party.
15.16    Calculation of Time Periods.  Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included at, unless such last day is a Saturday, Sunday or legal holiday for national banks in California, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.  Unless otherwise expressly provided herein, the last day of any period of time described herein shall be deemed to end at 5:00 p.m. (California time).
15.17    Procedure for Indemnity.  The following provisions govern actions for indemnity under this Agreement.  Promptly after receipt by an indemnitee of notice of any claim, 


6







such indemnitee will, if a claim in respect thereof is to be made against the indemnitor, deliver to the indemnitor written notice thereof and the indemnitor shall have the right to participate in and, if the indemnitor agrees in writing that it will be responsible for any costs, expenses, judgments, damages, and losses incurred by the indemnitee with respect to such claim, to assume the defense thereof, with counsel mutually satisfactory to the parties; provided, however, that an indemnitee shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnitor, if the indemnitee reasonably believes that representation of such indemnitee by the counsel retained by the indemnitor would be inappropriate due to actual or potential differing interests between such indemnitee and any other party represented by such counsel in such proceeding.  The failure of indemnitee to deliver written notice to the indemnitor within a reasonable time after indemnitee receives notice of any such claim shall relieve such indemnitor of any liability to the indemnitee under this indemnity only if and to the extent that such failure is prejudicial to its ability to defend such action, and the omission so to deliver written notice to the indemnitor will not relieve it of any liability that it may have to any indemnitee other than under this indemnity.  If an indemnitee settles a claim without the prior written consent of the indemnitor, then the indemnitor shall be released from liability with respect to such claim unless the indemnitor has unreasonably withheld such consent.
15.18    Waiver of Jury Trial.  To the extent permitted by applicable law, the parties hereby waive any right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
15.19    No Personal Liability.  Notwithstanding anything stated to the contrary herein, Seller’s liability under this Agreement prior to the Close of Escrow shall be limited to Seller’s interest in the Property, and after the Close of Escrow, neither Seller’s constituent partners and/or members, Seller’s asset manager, Seller’s directors, employees or agents nor Buyer’s constituent partners and/or members, Buyer’s asset manager, Buyer’s directors, employees or agents shall have any personal liability hereunder.
15.20    Joint and Several Liability.  If Buyer is composed of more than one individual or entity, all obligations and liabilities of Buyer under this Agreement shall be joint and several as to each of the individuals or entities who compose Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.


[Signatures on following pages]




7








	
		
	“BUYER”
FRANKLIN PARTNERS, LLC, 
an Illinois limited liability company
By:  /s/ Raymond Warner
Name:  Raymond Warner
Title:  Member
	 








S-1









“SELLER”


KBS CLAYTON PLAZA, LLC,
a Delaware limited liability company


By:    KBS REIT ACQUISITION I, LLC,
a Delaware limited liability company,
its sole member


By:    KBS LIMITED PARTNERSHIP,
a Delaware limited partnership,
its sole member


By:    KBS REAL ESTATE INVESTMENT TRUST, INC.,
a Maryland corporation,
its general partner


By:    /s/ Charles J. Schreiber, Jr.
Charles J. Schreiber, Jr.,
Chief Executive Officer


S-2







	
		
	AGREED TO THIS ____ 
DAY OF ____________, 2017, 
AS TO PROVISIONS RELATING TO ESCROW HOLDER:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By___________________________
Its ___________________________
	 










S-3








LIST OF EXHIBITS AND SCHEDULES
	
			
	EXHIBIT A
	   
	Description of Real Property

	EXHIBIT B
	   
	Description of Personal Property

	EXHIBIT C
	   
	List of Contracts

	EXHIBIT D
	   
	Form of Tenant Estoppel Certificate

	EXHIBIT E
	   
	Form of Deed

	EXHIBIT F
	   
	Form of Assignment of Leases, Contracts and Bill of Sale

	EXHIBIT G
	   
	Form of FIRPTA Affidavit

	EXHIBIT H
	   
	Form of Tenant Notice

	EXHIBIT I
	   
	Form of Owner’s Affidavit

	EXHIBIT J
	   
	Form of Seller’s Update Certificate

	EXHIBIT K
	   
	Form of Assignment and Assumption Agreement

	EXHIBIT L
	   
	List of Leases

	SCHEDULE 1-1
	   
	Description of New and Pending Lease Transactions (Buyer’s Responsibility)

	SCHEDULE 1-2
	   
	Description of New and Pending Lease Transactions (Seller’s Responsibility)

	SCHEDULE 2
	   
	Disclosures

	SCHEDULE 3
	   
	Owner Deposits




















EXHIBIT A
Description of Real Property
Lot 2B of THE RESUBDIVISION OF LOT 2 OF “THE PLAZA IN CLAYTON”, a Subdivision according to the plat thereof recorded in St. Louis County, Missouri real estate records in Plat Book 349 Page 720.


















A-1








EXHIBIT B
Description of Personal Property


	
		
	Management Office
	Qty

	Desk side guest chairs
	2

	Desks (Private offices)
	1

	Chairs (Conference room)
	4

	Conference room table
	1

	Task Chairs
	2

	Cubicle work stations
	0

	Laptops
	1

	Small wood tables (Reception area)
	1

	Reception Desk
	1

	Bookcase in Private Office
	1

	Copier
	1

	Printer
	2

	Storage Cabinet (Conference Room)
	1

	Coffee machine
	1

	Microwave
	1

	Refrigerator
	1

	Private office chairs
	2

	Cintas First Aid Kits
	1

	Server
	1

	Two high filing cabinets
	6

	Five high filing cabinets
	1

	Art work
	6

	Garbage cans
	5

	Three high Filing cabinets
	2

	File Server
	0

	Phones (analog)
	3

	Radios
	0

	Paper Shredder
	1

	Reception Desktop Computer/Monitor
	1

	Office Laptop/Monitor
	1

	Coat Rack
	1










B-1








	
		
	Parking Garage
	Qty

	Sweeper
	1

	Scrubber
	1

	Ford Truck
	1

	Power Washer Trailer
	1

	Electric Scissor Lift
	1






	
		
	Engineering Office
	Qty

	Desk
	3

	Chairs
	3

	Refriegator
	1

	Cabinets
	1

	Blue print cabinets
	1

	Laptops
	2

	Desktop Computers
	2

	Monitors
	3

	Desktop Printers
	3

	Microwave
	1






	
		
	Marketing Center
	Qty

	Conference Table
	1

	Fabric Conference Charis
	8

	TV Stand
	1






	
		
	Lobby Security Desk
	Qty

	Key boards
	1

	Computer
	1

	Desk Chair
	1

	Trash cans
	1

	Wood Desk
	1

	Touchscreen Directory Board
	1

	Phones (Analog)
	1

	Security Camera Software
	1








B-1









	
		
	Tool List
	Qty

	20' Extension Ladder
	1

	16' Extension Ladder
	1

	14' Step Ladder
	1

	12' Step Ladder
	2

	10' Step Ladder
	2

	8' Step Ladder
	3

	6' Step Ladder
	3

	4' Step Ladder
	1

	5' Rolled Scafold
	3

	Wood Deck Platform Dollies
	2

	Drywall/Door Dolly
	1

	4 Wheel Mover Dolly
	1

	2 Wheel Hand Dolly
	2

	10 Gallon Portable Air Compressor
	1

	Stationary Air Compressor
	1

	6" Bench Grinder
	1

	10' Bench Vise
	1

	4" Angle Grinder
	1

	10" Table Saw
	1

	Electric Reciprocating Saw
	1

	7 1/4" Cirrcular Saw
	1

	Electri Saber Saw
	1

	Hand Hack Saw
	1

	Soldering Iron
	1

	Dremmel Set
	1

	FMC Cutter
	1

	1/2" Electric Hammer Drill
	1

	3/3' Batery Hammer Drill
	1

	Milwalkee Re-Chargeable Screw Drive
	3

	3/8 Elecrtric Twist Drill
	1

	3/8 Battery Drill/Screw Gun
	2

	Electric Sewer Auger
	1

	15 Gal. Wet/Dry Vac
	2

	Handl Held Infrared Thermometer
	1

	Ass. Lock Out/Tag Out Devices
	1

	8 Cal Arc Flash Suites
	2

	40 Cal Arc Flash Suite
	1

	 
	 






B-2







	
		
	Ass. 1/2" and 3/8" sockets and ratchet
	1

	Ass. Pipe wrenches and slip joint pliers
	1

	Ass. Wrenches, hammers, screw drie
	1

	Fluke Multi Meter w/ amp clamp
	1

	Hand Toilet Auger
	1

	Toilet Plunger
	2

	Drinking Fountain Plunger
	1

	Burns O Matic Propane Torch Set
	1

	Basin Wrench
	2

	Spud Wrench
	2

	Pry Bar
	3

	7K BTU Propane Heater
	1

	Tubing Cutter
	1

	Flaring Tool
	1

	Light Bulb Changing Pole Set
	2

	Fluorescent Light Diagnostic Tool
	1

	T Handle Water Stop Tool
	2

	3 Ton Floor Jack
	1

	Mule
	1

	Grease Gun
	2










B-3








EXHIBIT C
List of Contracts
	
		
	Service
	Vendor

	Fire Sprinkler Inspection/Service Rates
	Ahern

	Restroom Air Fresheners
	Aire Masters

	Trash/Compactor Removal
	Allied Waste Services

	Nightly Janitorial/Day Porter Service
	Centaur Building Services

	Backflow Inspection
	Certified Backflow Prevention

	Water Treatment
	Chem-Aqua

	Semi Annual Shaft Cleaning
	Drain Surgeons

	BAS System Repair
	Eagle Energy

	Parking Equipment Repairs
	Fisher Parking & Equipment

	Snow Removal
	Full Care

	Interior/Exterior Plant Maintenance
	Growing Green

	Holiday Decorations
	Growing Green

	Exterior/Interior Window Washing
	Hercules

	Touch Screen Directory Maintenance
	Interactive Touchscreen Solutions

	Architectural Services
	Linea Design

	Stone Maintenance
	Mid America Metals

	Lobby/Elevator Music
	Muzak

	Elevator Maintenance
	Otis Elevator

	Davit Inspections
	Pro-Bel

	Pest Control
	Rottler Pest Control

	Wood Maintenance
	Schmidt Brothers

	Lobby Mat Replacement
	St. Louis Matting

	Parking Garage Management
	St. Louis Parking

	Fire Alarm Inspection
	Tech Electronics

	Fire Alarm Monitoring
	Tech Electronics

	Exterior Landscaping
	Top Care

	Chiller Plant Maintenance
	Trane US, Inc.

	Retail AHU Maintenance
	Waldinger

	Fire Extinguisher Inspections
	Weber Fire and Safety

	24/7 Security Services
	Wheelan Security Company

	Scissor Lift Inspection
	Weise

	Carpet Cleaning
	Woodard Restoration & Cleaning

	Brokerage - Leasing
	CBRE Inc.

	Property Management
	CBRE Inc.










C-1








EXHIBIT D
Form of Tenant Estoppel Certificate
(Attached)




D-1








TENANT ESTOPPEL CERTIFICATE
The undersigned (“Tenant”) hereby certifies to _______________________________________, a ________________________________ (“Landlord”), and ________________________, a _____________________________, and its successors and assigns (collectively, “Buyer”), and to Buyer’s lender, its successors and assigns (collectively, “Lender”) as of the date of this estoppel certificate (“Estoppel Certificate”):
A.    Tenant is the Lessee under that certain Lease dated ________________ relating to __________________ (the “Premises”), together with any amendments thereto (collectively, the “Lease”).  A true and correct copy of the Lease is attached hereto as Exhibit A.
B.    The dates of all amendments to the Lease are as follows:
C.    There are no other agreements, oral or in writing, between Landlord and Tenant with respect to the Premises excepted as identified above.
D.    The Lease is in full force and effect.
E.    To Tenant’s actual knowledge, no default exists under the Lease by Landlord.
F.    To Tenant’s actual knowledge, Tenant has no claim or demand against the Landlord.
G.    Monthly base rent is equal to $______ and has been paid through _________________, 20__.
H.    Tenant’s security deposit held by Landlord is $______________________.
I.     Tenant has no right or option to purchase any portion of the real property upon which the Premises are situated.
Tenant acknowledges that this Estoppel Certificate is being given in order to induce Buyer to purchase, and Lender to lend on, the property of which the Premises are a part, and for Buyer to take on the obligations of Landlord.  Buyer and Landlord are entitled to rely upon this Estoppel Certificate.
Dated:__________________, 20__
	
		
	“TENANT”
By:  _______________________________
_______________________________
(Print Name)                             (Title)
	 










D-2








EXHIBIT E
Form of Deed
(Attached)




E-1























                                                    
Space above reserved for Recorder of Deeds certification




Title of Document:        SPECIAL WARRANTY DEED


Date of Document:        _____________________________, 2017


Grantor:            ________________________


Grantee:            ________________________




Grantee’s             _______________________ 
Mailing address:        _________________________
_________________________


Legal Description:        see “Exhibit A” attached hereto






                                                    
(If there is not sufficient space on this page for the information required, state the page reference where it is contained within the document)


 Return to:
    
_________________________
          _________________________
          _________________________
       
















E-2









SPECIAL WARRANTY DEED


___________________, a ___________________ (“Grantor”), for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration paid in hand to Grantor by                          (“Grantee”), the receipt and sufficiency of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY unto Grantee all of the Grantor’s right, title and interest in and to that certain parcel of land located in St. Louis County, Missouri and legally described in Exhibit A attached hereto and incorporated herein by this reference, together with all improvements located thereon and owned by Grantor as of the date hereof and all right, title and interest, if any, that Grantor may have in and to all rights, privileges and appurtenances pertaining thereto, including all of Grantor’s right, title and interest, if any, in and to all rights-of-way, open or proposed streets, alleys, easements, strips or gores of land adjacent thereto (herein collectively called the “Real Property”).


This conveyance is made by Grantor and accepted by Grantee subject to all matters set forth on Exhibit B attached hereto and all other easements, covenants, conditions, restrictions, reservations, and other matters of record in the office of the Recorder of Deeds of St. Louis County, Missouri, unrecorded easements and other matters which would be disclosed by a survey or inspection of the Real Property, the rights of the public in and to parts of the Real Property in streets, roads or alleys, all unpaid general and special real estate taxes and assessments, known or unknown, the lien of general and special real estate taxes and assessments not yet due and payable and the interests of any tenants in possession of the Real Property (collectively, the “Permitted Exceptions”).


Grantor, for itself and its successors, WILL WARRANT AND DEFEND, said Property against all persons lawfully claiming, or to claim the same, by, through or under it; provided, however, that this conveyance is made subject to the foregoing Permitted Exceptions and encumbrances.
    
TO HAVE AND TO HOLD the Real Property together with all improvements located thereon all and singular the rights and appurtenances thereto in anywise belonging, subject to the Permitted Exceptions, unto Grantee, its legal representatives, successors and assigns forever.


If any term or provision of this Deed or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Deed or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Deed shall be valid and enforced to the fullest extent permitted by law.


This Deed may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement.


[Remainder of page intentionally blank]




E-3









IN WITNESS WHEREOF, this Deed has been executed by Grantor as of ____________________, 2017.




[SIGNATURE PAGE FOLLOWS]












E-4









GRANTOR:


________________________
________________________
________________________










E-5









ACKNOWLEDGEMENT


	
	
	A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.














State of California 
County of     )
		
	On 
	 before me,          
(insert name and title of the officer)


personally appeared ____________________________________________________________,  
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________  (Seal)


 



E-6









EXHIBIT A
LEGAL DESCRIPTION
(ATTACHED)


E-7









EXHIBIT B
PERMITTED EXCEPTIONS








E-8








EXHIBIT F
Form of Assignment of Leases and 
Contracts and 
Bill of Sale
(Attached)




F-1








ASSIGNMENT OF LEASES AND CONTRACTS AND BILL OF SALE
This Assignment of Leases and Contracts and Bill of Sale (this “Assignment”) is executed and delivered as of the ____ day of _________, 20__ (the “Closing Date”) pursuant to that certain Purchase and Sale Agreement and Escrow Instructions (“Agreement”) dated ________, 20__, by and between _____________________________, a _____ ___________________ (“Seller”), and _______________________, a _____________________ (“Buyer”), covering the real property described in Exhibit A attached hereto (“Property”).
1.    Sale of Personalty.  For good and valuable consideration, Seller hereby sells, transfers, sets over and conveys to Buyer the following (the “Personal Property”):
(a)    Tangible Personalty.  All of Seller’s right, title and interest, if any, in and to all the furniture, fixtures, equipment, and other tangible personal property listed on Exhibit B attached hereto or otherwise located in or on the Property to the extent owned by Seller; and
(b)    Intangible Personalty.  All the right, title and interest of Seller, if any, in and to assignable licenses and permits relating to the operation of the Property, assignable guaranties and warranties from any contractor, manufacturer or other person in connection with the construction or operation of the Property, and the right to use the name of the Property (if any), but specifically excluding any right, title or interest of Seller in any trademarks, service marks and trade names of Seller (including, without limitation, the name “KBS” or any derivative thereof, or any name that includes the word “KBS” or any derivative thereof) and with reservation by Seller to use such name in connection with other property owned by Seller in the vicinity of the Property.
2.    Assignment of Leases and Contracts.  For good and valuable consideration, Seller hereby assigns, transfers, sets over and conveys to Buyer, and Buyer hereby accepts the following:
(a)    Leases.  All of the Seller’s right, title and interest in and to all tenant leases relating to the Property, including, without limitation, the tenant leases listed in Exhibit C‐1 and Exhibit C‐2 attached hereto (“Leases”);
(b)    Contracts and Agreements.  Seller’s right, title and interest in and to the contracts and agreements described in Exhibit D‐1 and Exhibit D‐2 attached hereto (the “Contracts”).
3.    Assumption.  Buyer hereby assumes the obligations of Seller under (a) the Leases listed on Exhibit C‐1 attached hereto arising from and after the Closing Date, (b) the Leases listed on Exhibit C‐2 attached hereto whether arising before or after the Closing Date, (c) the Contracts listed on Exhibit D‐1 attached hereto arising from and after the Closing Date, (d) the Contracts listed on Exhibit D‐2 attached hereto arising before or after the Closing Date, and (e) that certain leasing agreement dated ______________, entered into by and between Seller and ____________, but only to the extent of any leasing commissions hereafter payable thereunder arising out of the lease of space in the Property by Buyer after the date of this Assignment, and shall defend, indemnify and hold harmless Seller from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Seller by reason of the 


F-2







failure of Buyer to fulfill, perform, discharge, and observe its obligations with respect to the Leases or the Contracts.
4.    Agreement Applies.  Except as may otherwise be provided in the Agreement, the Contracts and Leases are being assigned and transferred, and the Personal Property is being transferred, to Buyer on an “as is,” and “where is” basis, with all faults, and without any representation or warranty, all of which Seller hereby disclaims, all as more particularly set forth in Section 11.1 of the Agreement, which Section shall be, and hereby is, incorporated herein by reference.
5.    Counterparts.  This Assignment may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, with the same effect as if all parties had signed the same signature page.
6.    Attorneys’ Fees.  In any action between the parties to enforce any of the terms or provisions of this Assignment, the prevailing party in the action shall be entitled to recover from the non-prevailing party, in addition to damages, injunctive relief or other relief, and its reasonable costs and expenses, including, without limitation, costs and reasonable attorneys’ fees (including on appeal).
7.    Merger.  This Assignment and the Agreement contain the entire understanding between the parties relating to their subject matter.  All prior and contemporaneous agreements and understandings, whether oral or written, are superseded by this Assignment and the Agreement.  This Assignment may only be modified in writing executed by both Buyer and Seller.  Nothing contained in this Assignment is intended to terminate or affect the validity of any of the representations or warranties contained in the Agreement.
8.    Joint and Several Liability.  All obligations and liabilities of Buyer under this Assignment shall be joint and several as to each of the individuals or entities who compose Buyer.
9.    Miscellaneous.  This Assignment shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, executors, administrators, successor-in-interest and assigns.  If any term or provision of this Assignment shall be held invalid or unenforceable, the remainder of this Assignment shall not be affected.  This Assignment shall be construed in accordance with and governed by the laws of the State of _________.  Nothing in this Assignment shall impair, limit or lessen any of the rights of the parties with respect to the provisions of the Agreement which were intended to survive the Closing Date.  Nothing in this Assignment, express or implied, is intended to confer upon any person or entity, other than the parties hereto and their respective successors and assigns, any rights or remedies.


F-3







IN WITNESS WHEREOF, the undersigned have caused this instrument to be executed as of the date written above.
[Signature Pages to Follow]


F-4







	
		
	 
	SELLER:
______________________________________
a_____________________________________



	 
	

BUYER:
______________________________________
a_____________________________________










F-5







EXHIBIT A
DESCRIPTION OF PROPERTY
[ATTACHED]


F-6







EXHIBIT B
DESCRIPTION OF TANGIBLE PROPERTY
[ATTACHED]


F-7







EXHIBIT C-1
LIST OF LEASES UNDER WHICH BUYER ASSUMES 
OBLIGATIONS AFTER THE CLOSING DATE
[This schedule will include a list of all Leases which exist on the date of the Agreement, but specifically excluding the Leases listed on Schedule 1-1 and Schedule 1-2 attached to the Agreement.]
[ATTACHED]


F-8







EXHIBIT C-2
LIST OF LEASES UNDER WHICH BUYER ASSUMES 
OBLIGATIONS BEFORE AND AFTER THE CLOSING DATE
[This schedule will include a list of (a) all Leases set forth on Schedule 1-1 and Schedule 1-2 to the Agreement, if any, (b) all Leases entered into after the date of the Agreement in accordance with the terms of the Agreement, and (c) all Lease amendments, expansions and renewals entered into by Seller in accordance with the terms of the Agreement.]
[ATTACHED]


F-9







EXHIBIT D-1
LIST OF CONTRACTS UNDER WHICH BUYER ASSUMES 
OBLIGATIONS AFTER THE CLOSING DATE
[This schedule will include all contracts set forth on Exhibit C attached to the Agreement and any new service contracts entered into by Seller in accordance with the terms of the Agreement.]
[ATTACHED]


F-10







EXHIBIT D-2
LIST OF CONTRACTS UNDER WHICH BUYER ASSUMES 
OBLIGATIONS BEFORE AND AFTER THE CLOSING DATE
[This schedule will include any new construction contracts entered into by Seller in connection with the completion of tenant improvement work for tenants under (a) the Leases set forth on Schedule 1-1 and Schedule 1-2 to the Agreement, if any, (b) all Leases entered into after the date of the Agreement in accordance with the terms of the Agreement, and (c) all Lease amendments, expansions and renewals entered into by Seller in accordance with the terms of the Agreement.]
[ATTACHED]




F-11








EXHIBIT G
Form of FIRPTA Affidavit
(Attached)




G-1








FIRPTA CERTIFICATE
__________________ (“Member”) is the sole owner of ________________ (“Seller”).  Seller, a disregarded entity for U.S. tax purposes, is the transferor of certain real property more particularly described on Exhibit A attached hereto (the “Property”).
Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”) provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.  For U.S. tax purposes (including Section 1445 of the Code), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity.  To inform the transferee that withholding of tax will not be required in connection with the disposition of the Property pursuant to that certain Purchase and Sale Agreement and Escrow Instructions dated as of ______________, 20__, by and between ___________________, a __________ (“Buyer”) and Seller, the undersigned certifies the following on behalf of Member:
1.    Member is not a foreign corporation, foreign Company, foreign trust or foreign estate, as those terms are defined in the Code and the regulations promulgated thereunder;
2.    Member is not a disregarded entity as defined in Treasury Regulations §1.1445-2(b)(2)(iii),
3.    Member’s U.S. employer identification number is __________, and
4.    Member’s address is:  800 Newport Center Drive, Suite 700, Newport Beach, California 92660.
It is understood that this certificate may be disclosed to the Internal Revenue Service and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined the foregoing certification and, to the best of my knowledge and belief, it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Member.
Date:  ________________, 20___
	
		
	 
	 








G-2







Exhibit A
Legal Description
(Attached)




G-3








EXHIBIT H
Form of Tenant Notice
(Attached)




H-1








NOTICE TO TENANTS
[Date]
[Project Name] 
[Address] 
[City/State/ZIP]
Dear Tenant:
Notice is hereby given to the tenants of ______________________ (the “Property”) that ________________________________________, a ________________________________ (“Seller”), the current owner of the Property, has sold the Property to _______________________, a _____________________________ (“Buyer”) effective [date of takeover].  Buyer’s address is ______________________________________________.  Buyer has assumed all of the obligations of landlord under your lease, including any obligations with respect to your security deposit, if any, which has been transferred to Buyer.  Attached is an Affidavit given in order to comply with Section 535.081, RSMo.
	
		
	 
	Sincerely,
“SELLER”
a____________________________________


_____________________________________
_____________________________________






	
		
	 
	

“BUYER”
a____________________________________


_____________________________________












1









AFFIDAVIT




The undersigned, being first duly sworn on oath, hereby each aver as follows:


		
	1.
	_________________________________ (the “Property”) has been sold and conveyed by _________________________________________________________________, a ____________________________________ (“Seller”), to _______________________, a _____________________________ (“Buyer”) effective [date of takeover].




		
	2.
	Each of the undersigned is over the age of majority and competent to make this Affidavit on personal knowledge.




		
	3.
	Further Affiants sayeth naught.




__________________________
[NAME OF SELLER]


__________________________
[NAME OF BUYER]




2









ACKNOWLEDGEMENT




	
	
	A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.




















State of California 
County of     )
		
	On 
	 before me,          
(insert name)


personally appeared ____________________________________________________________,  
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same for the purposes set forth therein.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________  (Seal)


 



3











[PROPER FORM OF NOTARY FOR BUYER TO BE INSERTED]












4








EXHIBIT I
Form of Owner’s Affidavit
(Attached)


1








TITLE ORDER: 
ESCROW ORDER:     
PROPERTY: 
COUNTY: 
STATE:
______________________________, a ___________________ (“Seller”), as seller, and _______________________________, a ____________________________ (“Buyer”), as buyer, are parties to that certain Purchase and Sale Agreement and Escrow Instructions (the “Purchase Agreement”) dated _________________, 20__, as the same has been amended and modified, relating to the improved real property (the “Real Property”) referred to in Exhibit “A” attached hereto and made a part hereof.
In connection with the consummation of the transactions contemplated by the Purchase Agreement, Seller hereby represents and warrants to __________________ Title Company the following:
		
	1.
	Seller is a limited liability company organized and existing under the laws of the State of ________________________.


		
	2.
	To Seller’s actual knowledge, (i) Seller’s operating agreement is in full force and effect, and (ii) no proceedings are pending for the dissolution of the Seller.


		
	3.
	To Seller’s actual knowledge, the leases described on Exhibit “B” attached hereto constitute all of the written leases affecting the Real Property with the current tenants of the Real Property.


		
	4.
	To Seller’s actual knowledge, except as disclosed in Exhibit ”C” attached hereto and made a part hereof, (a) there is no capital improvement work currently being constructed (or that was constructed during the last 3 months) on the Real Property that is the subject of a written contract with Seller which could give rise to a mechanic’s or materialman’s lien on the Real Property, and (b) Seller has not entered into any contracts for the furnishing of labor, materials, or services for construction purposes with respect to the Real Property to be furnished subsequent to the date of this affidavit.


For purposes hereof, the “actual knowledge” of Seller shall be limited to the actual knowledge (and not implied, imputed, or constructive) of ______________________, with no duty of inquiry.  Notwithstanding anything contained herein to the contrary, the representations and warranties set forth in this Owner’s Affidavit shall only survive the closing of the transactions contemplated by the Purchase Agreement until ____________, 20___, after which date this Owner’s Affidavit shall be of  no further force or effect and ______________ Title Company shall have no further rights hereunder (notwithstanding that one or more of the representations and/or warranties set forth herein may prove to be incorrect).  This Owner’s Affidavit is being executed for the sole and exclusive benefit of _______________ Title Company and no other party or person shall have any rights hereunder.
Executed as of __________, 20___
[SIGNATURES ON NEXT PAGE]


1









SELLER:
 
    



















EXHIBIT A
LEGAL DESCRIPTION
ATTACHED















EXHIBIT B
LIST OF LEASES
ATTACHED

















EXHIBIT C
IMPROVEMENT WORK
ATTACHED




















EXHIBIT J
Form of Seller’s Update Certificate
(Attached)




1








SELLER’S UPDATE CERTIFICATE
__________, 2017
Pursuant to that certain Purchase and Sale Agreement and Escrow Instructions dated as of _________ (the "Agreement"), by and between _____________ ("Buyer"), and _______________ (“Seller"), Seller hereby certifies to Buyer that, to Seller's Actual Knowledge (as defined in the Agreement), except as set forth on Exhibit A attached hereto, all of Seller's representations and warranties contained in Section 11.1 of the Agreement are true and correct in all material respects as of the Closing Date (as defined in the Agreement), subject to all of the terms and conditions in the Agreement, including without limitation, the cap on Seller’s liability and the limitation of survival and rights with respect thereof as set forth in the Agreement.


(SEE ATTACHED SIGNATURE PAGE)


1









SELLER:
____________________ 
____________________ 
____________________




















EXHIBIT K
Form of Assignment and Assumption Agreement
(Attached)




1








ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENT


This Assignment and Assumption of Purchase Agreement (“Assignment”) is entered into between ________________ (“Assignor”), and ________________ (“Assignee”), as of _________ __, 201__ (“Effective Date”).
RECITALS
A.    Pursuant to the terms of that certain Purchase and Sale Agreement and Escrow Instructions dated _______, 201__ by and between _____________ (“Seller”), as seller, and Assignor, as buyer, as amended (the “Purchase Agreement”), Assignor agreed to acquire the Property (as such term is defined in the Purchase Agreement) commonly referred to as ______________.
B.    Assignor desires to assign, without recourse, representation or warranty, all of its rights, benefits, liabilities and obligations arising under the Purchase Agreement (and related documents) to Assignee, and Assignee desires to assume all of said rights, benefits, liabilities and obligations subject to the terms of this Assignment.
NOW, THEREFORE, in consideration of the foregoing promises, the mutual undertakings of the parties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
1.    Recitals.  The above recitals are incorporated herein by reference.
2.    Assignment and Assumption.  Assignor hereby transfers, assigns and conveys to Assignee, without recourse, representation or warranty, express or implied, all of Assignor’s rights, interests, liabilities and obligations in, to and under the Purchase Agreement (and related documents).  Assignee hereby assumes all such rights, interests, liabilities and obligations, and joins in all representations, warranties, releases, and indemnities, of Assignor under the Purchase Agreement (and related documents).  Assignor agrees it shall not be released from its obligations under the Purchase Agreement as a result of this Assignment, and Assignee agrees that its acquisition of the Property pursuant to the Purchase Agreement shall be subject to all terms and conditions thereof, including without limitation all release and as-is provisions of the Purchase Agreement.  Notwithstanding the foregoing, (a) Seller shall have the right to deal exclusively with Assignee with respect to all matters pertaining to and/or arising out of the Purchase Agreement, (b) Assignor’s approval or consent shall not required in connection with any amendment or modification to the Purchase Agreement hereafter entered into by and between Seller and Assignee, and (c) any and all amendments to the Purchase Agreement hereafter entered into by and between Seller and Assignee shall be binding on Assignor. 
3.    Successors and Assigns.  This Assignment shall be binding upon and inure to the benefit of the parties’ successors and assigns.
4.    Counterparts.  This Assignment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument.  Each counterpart may be delivered by facsimile transmission.  The signature page of any counterpart may be detached therefrom without 


1







impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto.
Executed as of the date set forth above.




ASSIGNOR: 


_______________




By:     _____________________________
Its:     _____________________________




ASSIGNEE:


_______________




By:     _____________________________
Its:     _____________________________






















EXHIBIT L
List of Leases
(Attached) 



1








List of Leases


	
									
	 
	 
	 
	Amendment
	Amendment
	Amendment
	Amendment
	Amendment
	Amendment

	Suite #
	Tenant Name
	Lease Date
	One Date
	Two Date
	Three Date
	Four Date
	Five Date
	Six Date

	100
	The Northern Trust Company
	2/26/2001
	1/2/2002
	3/21/2016
	 
	 
	 
	 

	172
	801 Fish STL, LLC
	11/13/2014
	8/3/2015
	 
	 
	 
	 
	 

	176
	White Box, LLC
	6/13/2014
	 
	 
	 
	 
	 
	 

	178
	Show Me Golf, LLC
	7/3/2007
	6/11/2012
	12/2/2016
	 
	 
	 
	 

	600/700/800/900/1000/1175/1200/1500
	Husch Blackwell
	4/24/2001
	2/20/2002
	4/26/2002
	6/5/2006
	12/31/2008
	9/30/2009
	 

	1100
	Sher Corwin, LLC
	11/22/2011
	5/4/2012
	 
	 
	 
	 
	 

	1111
	Contemporary Productions,
	10/31/2001
	8/26/2003
	10/26/2006
	9/1/2011
	11/22/2016
	 
	 

	1150
	CBRE, Inc.
	9/1/2008
	2/15/2012
	7/22/2012
	7/15/2013
	6/9/2014
	7/10/2015
	5/11/2016

	1300/1425
	Ernst & Young, US, LLP
	3/3/2000
	4/13/2001
	8/27/2001
	12/27/2001
	10/6/2003
	9/30/2009
	5/16/2011

	1400
	CBRE, Inc.
	12/29/2011
	4/20/2015
	 
	 
	 
	 
	 

	1450
	Wright Insurance Planning, LLC
	5/26/2015
	 
	 
	 
	 
	 
	 

	1475
	Baker Botts, LLP
	7/22/2013
	 
	 
	 
	 
	 
	 

	1600
	Olin Corporation
	12/23/2010
	11/19/2012
	9/16/2015
	 
	 
	 
	 

	1,690
	Fulbright & Jaworski, L.L.P.
	7/12/2011
	1/30/2012
	 
	 
	 
	 
	 

	 
	 
	 
	 
	 
	 
	 
	 
	 










1








SCHEDULE 1-1
Description of New and Pending Lease Transactions (Buyer’s Responsibility)




	
										
	Tenant
	Suite / Floor
	Square Feet
	Commencement
	Expiration
	Lease Term (months)
	Rent Schedule
	Tenant Improvement Allowance
	Leasing Commissions

	CBRE, Inc.
	1150
	793
	8/1/2017
	7/31/2018
	12
	8/1/2017-731/2018
	$33.50
	$0.00
	$0.00












1








SCHEDULE 1-2
Description of New and Pending Lease Transactions (Seller’s Responsibility)
(Attached)




	
						
	Suite #
	Tenant Name
	Lease / Amendment Date
	Square Footage
	Outstanding Leasing Commissions
	Outstanding Months Free Rent

	 
	 
	 
	 
	 
	 

	172
	801 Fish STL, LLC
	11/13/2014
	7,074
	$15,098.31
	$0

	1100
	Sher Corwin Winters
	11/22/2011
	8,985
	$0
	$126,282.36 (This amount will be reduced prorata for everyday after 9/1/17 that passes prior to the Closing Date.)












1








SCHEDULE 2
Disclosures




	
			
	Item #
	Complaint / Lawsuit By
	Description of Complaint / Lawsuit

	1
	Bates & Associates vs. 801 Restaurant Group
	Bates & Associates were the architectural firm engaged by 801 Fish to design the space Lease by Tenant from Landlord at 172 Carondelet Plaza.  Bate and Associates claim that 801 Fish owes them a sum in the amount of $42,000 for services rendered and not paid.  They included KBS Clayton Plaza, LLC as a defendant in their suit against Tenant.  Suit was filed in May 2016 and has not been settled by either party.

	 












1








SCHEDULE 3
Owner Deposits


None.








1








TABLE OF CONTENTS
	
			
	 
	 
	Page

	 
	 
	 

	1.
	BASIC TERMS AND DEFINITIONS; REFERENCES
	1

	 
	1.1    Basic Terms and Definitions
	1

	 
	1.2    References 
	2

	2.
	PURCHASE AND SALE
	2

	3.
	PURCHASE PRICE AND DEPOSIT
	3

	 
	3.1    Purchase Price
	3

	 
	3.2    Payment of Purchase Price
	3

	 
	3.3    Disposition of Deposit Upon Failure to Close
	3

	 
	3.4    Independent Contract Consideration
	3

	4.


	PROPERTY INFORMATION; TITLE REVIEW; INSPECTIONS AND DUE
DILIGENCE; TENANTS ESTOPPEL CERTIFICATES; CONFIDENTIALITY
	4

	 
	4.1    Property Information
	4

	 
	4.2    Title and Survey Review; Title Policy
	4

	 
	4.3    Inspections; Due Diligence Period
	7

	 
	4.4    Tenant Estoppel Certificates
	8

	 
	4.5    Contracts
	9

	 
	4.6    Confidentiality
	9

	5.
	OPERATIONS AND RISK OF LOSS
	10

	 
	5.1    Ongoing Operations
	10

	 
	5.2    New Contracts
	10

	 
	5.3    Leasing Arrangements
	10

	 
	5.4    Damage or Condemnation
	11

	6.
	SELLER’S AND BUYER'S DELIVERIES
	12

	 
	6.1    Seller’s Deliveries into Escrow
	12








1







	
			
	 
	6.2    Buyer’s Deliveries into Escrow
	13

	 
	6.3    Closing Statements/Escrow Fees; Tenant Notices
	13

	 
	6.4    Post-Closing Deliveries
	13

	7.
	CONDITIONS TO BUYER'S AND SELLER'S OBLIGATIONS
	13

	 
	7.1    Conditions to Buyer’s Obligations
	13

	 
	7.2    Conditions to Seller’s Obligations
	14

	8.
	CLOSE OF ESCROW; POSSESSION
	15

	9.
	ESCROW
	16

	 
	9.1    Closing
	16

	 
	9.2    Escrow and Title Charges
	16

	 
	9.3    Procedures Upon Failure of Condition
	17

	10.
	PRORATIONS
	17

	 
	10.1   Collected Rent
	18

	 
	10.2   Operating Costs and Additional Rent Reconciliation
	18

	 
	10.3   Taxes and Assessments
	19

	 
	10.4   Leasing Commissions, Tenant Improvements and Contracts
	19

	 
	10.5   Tenant Deposits
	20

	 
	10.6   Utilities and Utility Deposits
	20

	 
	10.7   Owner Deposits
	20

	 
	10.8   Percentage Rents
	21

	 
	10.9   Final Adjustment After Closing
	21

	11.
	SELLER’S REPRESENTATIONS AND WARRANTIES; AS-IS
	22

	 
	11.1   Seller’s Representations and Warranties
	22

	 
	11.2   As-Is
	24

	12.


	BUYER’S COVENANTS; REPRESENTATIONS AND WARRANTIES; RELEASE; 
ERISA; INDEMNIFICATION
	26






2







	
			
	 
	12.1   Buyer’s Representations and Warranties
	26

	 
	12.2   Release
	27

	 
	12.3   ERISA
	28

	13.
	DEFAULT AND DAMAGES
	28

	 
	13.1   DEFAULT BY BUYER
	28

	 
	13.2   Default by Seller
	1

	14.
	BROKER’S COMMISSIONS
	1

	15.
	MISCELLANEOUS PROVISIONS
	2

	 
	15.1   Notices
	2

	 
	15.2   Assignment; Binding on Successors and Assigns
	3

	 
	15.3   Work Product
	4

	 
	15.4   Further Assurances
	4

	 
	15.5   Attorney’s Fees
	4

	 
	15.6   Survival of Representations; Warranties, Covenants, Obligations and 
Agreements
	4

	 
	15.7   Entire Agreement
	5

	 
	15.8   Governing Law
	5

	 
	15.9   Counterparts
	6

	 
	15.10  Headings; Construction
	6

	 
	15.11  Time of Essence
	6

	 
	15.12  Partial Validity; Severability
	6

	 
	15.13  No Third Party Beneficiaries
	6

	 
	15.14  Intentionally Omitted
	6

	 
	15.15  Joint Product of Parties
	6

	 
	15.16  Calculation of Time Periods
	6

	 
	15.17  Procedure for Indemnity
	6






3







	
			
	 
	15.18  Waiver of Jury Trial
	7

	 
	15.19  No Personal Liability
	7

	 
	15.20  Joint and Several Liability
	7








4