Agreement of Purchase and Sale and Joint Escrow Instructions, dated August 19, 2021, by and among CIO SM Land Holdings, LLC, CIO 9985 Pacific Heights, LLC and South Buyer

Exhibit 10.2

[***] = Certain marked information has been omitted from this exhibit because it is both not material and is the type that the registrant treats as private or confidential

AGREEMENT OF PURCHASE AND SALE

AND JOINT ESCROW INSTRUCTIONS

I

SUMMARY AND DEFINITION OF BASIC TERMS

This Agreement of Purchase and Sale and Joint Escrow Instructions (this “Agreement”), dated as of the Effective Date set forth in Section 1 of the Summary and Definition of Basic Terms, below, is made by and between [***] (“Buyer”), and CIO SM LAND HOLDINGS, LLC, a Delaware limited liability company and CIO 9985 PACIFIC HEIGHTS, LLC, a Delaware limited liability company (collectively, “Seller”). The terms set forth below shall have the meanings set forth below when used in the Agreement.

II

RECITALS

A.    Seller owns those certain parcels (each, a “Parcel”) of land more particularly described on Exhibit A attached hereto (the “Land”), which Land is improved with the “Improvements” (as that term is defined below).

B.    Seller desires to sell and convey to Buyer and Buyer desires to purchase and acquire from Seller all of Seller’s right, title and interest in and to the following:

i.    The Land and all of Seller’s interest in all rights, privileges, easements and appurtenances benefiting the Land and/or the “Improvements,” as defined below, including, without limitation, Seller’s interest, if any, in 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 Land and/or the Improvements (the Land, the Improvements and all such rights, privileges, easements and appurtenances are sometimes collectively hereinafter referred to as the “Real Property”);

ii.    The Buildings, associated parking and landscaped areas and all other improvements located on the Land (collectively, the “Improvements”);

iii.    To the extent they are in effect on the Closing Date, all leases, licenses and occupancy agreements covering the Land and Improvements, a list of which is attached hereto as Exhibit I and any new leases or amendments to leases which may be entered into subsequent to the Effective Date to the extent permitted hereunder (said leases and agreements, together with any and all amendments, modifications or supplements thereto, are hereinafter referred to collectively as the “Leases”), subject to the exclusions contained in paragraph vi below;

iv.    The “Approved Contracts” (as hereinafter defined);

v.    All tangible personal property, equipment, supplies and fixtures (collectively, the “Personal Property”) owned by Seller and located on, and used solely in connection with the operation and maintenance of, the Real Property, which Personal Property shall be more particularly identified in Schedule 1 to Exhibit G attached hereto; and

vi.    To the extent assignable, any intangible property issued to Seller in connection with the foregoing, warranties, guaranties, licenses, permits, entitlements, governmental approvals and certificates of occupancy which benefit the Real Property, the Improvements, and/or the Personal Property (collectively, the “Intangible Personal Property”), but excluding (i) any right to the use or ownership of “CIO SM LAND HOLDINGS, LLC, a Delaware limited liability company and CIO 9985 PACIFIC HEIGHTS, LLC, a Delaware limited liability company,” “City Office,” “City Office Development,” “City Office REIT” or any other similar name; (ii) any rights of Seller against third parties including, without limitation, tenants, with respect to the period prior to Closing, and (iii) the rights of Seller to rents and other income from tenants and other third parties for the period prior to the Closing Date (collectively, the “Excluded Rights”). The Real Property, the Improvements, Seller’s interest as lessor under the Leases, the Contracts, the Personal Property and the Intangible Personal Property are sometimes collectively hereinafter referred to as the “Property.”

C.    Prior to the Effective Date, Buyer had the opportunity to conduct all due diligence with regard to the Property as set forth in Sections 4.1 and 4.2, below (collectively, the “Due Diligence Investigations”).

III

AGREEMENT

NOW, THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows, and hereby instruct Escrow Holder as follows.

1.    Purchase and Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Property upon the terms and conditions set forth in this Agreement.

2.    Purchase Price.

2.1    Purchase Price. Subject to the terms, conditions and provisions of this Agreement, Buyer shall pay the Purchase Price for the Property as hereinafter provided in this Section 2 (as increased or decreased by prorations and adjustments as herein provided). The Purchase Price is allocated among the Parcels as set forth on Schedule 1 attached hereto.

2.2    Deposit. No later than one (1) business day after the Effective Date, Buyer shall deliver to Escrow Holder the Deposit. The Deposit shall be deposited by Escrow Holder in an interest-bearing account at a federally insured institution as Escrow Holder and Seller deem appropriate and consistent with the timing requirements of this Agreement. The interest thereon shall accrue to the benefit of the party receiving the Deposit pursuant to the terms of this Agreement, and Buyer and Seller hereby acknowledge that there may be penalties or interest forfeitures if the applicable instrument is redeemed prior to its specified maturity. The term “Deposit” hereunder shall include all interest so earned thereon. Buyer agrees to provide its Federal Tax Identification Number to Escrow Holder upon the Opening of Escrow. The Deposit shall be non-refundable except as otherwise provided in this Agreement. The Deposit together with interest accrued thereon shall be: (i) applied and credited toward payment of the Purchase Price at the Close of Escrow, or (ii) retained by Seller as permitted pursuant to Section 16.2, below, or (iii) returned to Buyer in all other instances if this Agreement is terminated for any reason other than as set forth in Section 16.2 below.

2.3    Cash Balance. No later than 10:00 a.m. Pacific time on the Closing Date, Buyer shall deposit with Escrow Holder cash by means of a confirmed wire transfer through the Federal Reserve System or cashier’s check in the amount of the balance of the Purchase Price, plus Buyer’s share of expenses and prorations as described in this Agreement.

2.4    Independent Consideration. Concurrently with Buyer’s delivery of the Deposit, Buyer shall deliver to Seller, by means of a wire transfer via Escrow, an amount equal to One Hundred and 00/100 Dollars ($100.00) as independent consideration for Seller’s performance under this Agreement (“Independent Consideration”), which shall be retained by Seller in all instances. The Independent Consideration is independent of any other consideration provided hereunder, shall be deemed fully earned by Seller upon the Effective Date hereof, shall be promptly forwarded by Escrow Holder to Seller and is not refundable under any circumstances.

3.    Escrow and Title.

3.1    Opening of Escrow. Buyer and Seller shall promptly deliver a fully executed copy of this Agreement to Escrow Holder (which delivery may be in counterparts), and the date of Escrow Holder’s receipt thereof is referred to as the “Opening of Escrow”. Seller and Buyer shall execute and deliver to Escrow Holder any additional or supplementary instructions as may be necessary or convenient to implement the terms of this Agreement and close the transactions contemplated hereby, provided such instructions are consistent with and merely supplement this Agreement and shall not in any way modify, amend or supersede this Agreement. Such supplementary instructions, together with the escrow instructions set forth in this Agreement, as they may be amended from time to time by the parties, shall collectively be referred to as the “Escrow Instructions.” The Escrow Instructions may be amended and supplemented by such standard terms and provisions as the Escrow Holder may request the parties hereto to execute; provided, however, that the parties hereto and Escrow Holder acknowledge and agree that in the event of a conflict between any provision of such standard terms and provisions supplied by the Escrow Holder and the Escrow Instructions, the Escrow Instructions shall prevail.

3.2    Close of Escrow/Closing. For purposes of this Agreement, the “Close of Escrow” or the “Closing” shall mean the date on which the “Deed” (as defined in Section 5.1.1, below) is recorded in the Official Records of the County where the Land is located (the “Official Records”), or if the Closing occurs with Seller’s consent prior to date on which the Deed is recorded as a part of a “gap” closing, the date on which such gap Closing occurs. The Close of Escrow shall occur on the Closing Date, subject to extension or accelerations of the Closing as provided in the other provisions of this Agreement. Buyer’s and Seller’s failure to perform their respective obligations hereunder, including, without limitation, the timely delivery by Buyer of the balance of the Purchase Price, shall constitute a material and non-curable default under this Agreement.

3.3    Title Insurance. At the Close of Escrow, and as a condition thereto, the Title Company shall issue to Buyer ALTA extended coverage Owner’s Policies of Title Insurance (each a “Title Policy” and collectively, the “Title Policies” substantially in the forms of the proforma title policies attached hereto as Exhibit L (collectively, the “Proforma Policies”), with liability in the amount of the allocated Purchase Price with respect to each Parcel, showing title to the Property, on a Parcel by Parcel basis, vested in Buyer, subject only to (i) the preprinted standard exceptions in such Title Policy, (ii) exceptions approved or deemed approved by Buyer pursuant to Section 4.2, (iii) the rights of tenants under the Leases as tenants only, without rights of first refusal or options to purchase, (iv) non-delinquent real property taxes and special assessments, (v) any exceptions arising from Buyer’s actions, local, state and

federal laws, ordinances or governmental regulations, including, but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property, and (vi) any matters which would be disclosed by an accurate survey or physical inspection of the Property (collectively, the “Permitted Exceptions”); provided, however, notwithstanding the foregoing, in no event shall any exception for mechanic’s liens be considered a Permitted Exception other than (A) mechanic’s liens arising from contracts entered into by a tenant responsible for the payment thereof in accordance with the terms of such tenant’s Lease, or (B) mechanic’s liens arising from ongoing work being performed by Seller for which Buyer is credited at Closing or for which Buyer is otherwise responsible to pay pursuant to the express terms of this Agreement so long as any such exception for mechanic’s liens is limited to the amount of the credit provided to Buyer at Closing or the amount for which Buyer is responsible for payment under the express terms of this Agreement. Buyer shall be responsible to have prepared and delivered to the Title Company one or more ALTA surveys (collectively, “ALTA Survey”) of the Property, at Buyer’s expense. Buyer shall pay the additional premium for extended coverage in excess of the standard portion of the Title Policy and the cost of any title policy endorsements requested by Buyer and any lender policy for Buyer’s lender (if any). The Close of Escrow shall not be extended due to Buyer’s Title Policy requirements. Notwithstanding the foregoing, if Buyer fails to provide an ALTA Survey for the Property acceptable to the Title Company for purposes of issuing the Title Policy, then the Title Policy to be issued on the Close of Escrow shall be an ALTA extended coverage Owner’s Policy of Title Insurance which shall include a general survey exception.

4.    Contingencies; Conditions Precedent to the Close of Escrow.

4.1    Buyer’s Review.

4.1.1    Delivery of Due Diligence Items; Communication with Tenants.

(a)    Prior to the Effective Date, Seller has made (and prior to Closing, Seller shall continue to make) available to Buyer and Buyer’s representatives vis-à-vis Seller’s online due diligence room relating to the Property (the “Data Site”), for Buyer’s inspection and copying at Buyer’s expense and/or at Seller’s offices for inspection and right to copy, at Buyer’s expense, the following: (i) copies of the most recent environmental studies, soils studies, and other similar reports relating to the environmental condition of the Property (“Reports”); (ii) copies of the most recent ALTA survey of the Real Property; (iii) copies of the Leases; (iv) copies of all construction contracts that Seller is a party to, service contracts or service agreements relating to the operation and maintenance of the Property currently in effect (but expressly excluding any contracts Seller determines are “master contracts” affecting properties other than the Property) (collectively, the “Contracts”, a list of which is attached hereto as Exhibit J); (v) property tax bills for the last two (2) fiscal tax years (or, if the Property has been owned by Seller for less than two (2) years, for such period of Seller’s ownership), and the property tax bill for the current year to the extent in the possession of Seller; and (vi) operating statements for the Property for the last two (2) calendar years and the current year-to-date (the foregoing items in clauses (i) through (vi), collectively, “Due Diligence Items”); provided, however, each of the foregoing shall only be deemed to be a Due Diligence Item to the extent available on the Data Site. Notwithstanding the foregoing, in no event shall Seller be obligated to provide to Buyer any confidential or proprietary materials or information (including, without limitation, internal memoranda of Seller, budgets, financial analyses or projections, appraisal reports or other valuation information, organizational, financial and other documents relating to Seller or its affiliates, any reports or studies that have been superseded by subsequent reports or studies, any property condition assessments or reports, and any documents or information subject to attorney-client privilege or that constitute attorney work product); provided, however, notwithstanding the foregoing, in no event shall any third-party reports relating to the physical condition of the property (other than property condition assessments or reports) constitute confidential or proprietary materials or information. Except as expressly set forth herein, Seller makes no representations or warranties regarding the sufficiency, truthfulness, completeness or accuracy

of the Due Diligence Items or that the Due Diligence Items are complete copies of the same. Buyer acknowledges and understands that all such materials made available by Seller were only for Buyer’s convenience in making its own examination and determination prior to the Effective Date as to whether it wishes to purchase the Property, and, in so doing, Buyer has relied exclusively upon its own independent investigation, verification and evaluation of every aspect of the Property and not upon any of the Reports or materials supplied by Seller.

(b)     Prior to the Effective Date, Buyer had the opportunity to conduct customary tenant interviews with major tenants under the Leases.

4.1.2    Entry Rights. Subject to the rights of the tenants under the leases at the Property, Buyer shall have the right to review and investigate the physical and environmental condition of the Property, the character, quality, value and general utility of the Property, the zoning, land use, environmental and building requirements and restrictions applicable to the Property, the state of title to the Property, and any other factors or matters relevant to Buyer’s decision to purchase the Property. Buyer shall provide Seller with at least one (1) business day’s prior email notice or telephone notice with a confirmation email [***] of its desire to enter upon the Property for inspection and/or testing and any such inspections or testing shall be conducted at a time and manner reasonably approved by Seller and to minimize disruption or interference with the tenants. Seller shall have the right to be present at any such inspections or testings. Prior to conducting any inspections or testing, Buyer or its consultants shall deliver to Seller a certificate of insurance naming Seller as additional insured (on a primary, non-contributing basis) evidencing commercial general liability and property damage insurance, issued by a carrier which is licensed or authorized to do business in California, with limits of not less than Two Million Dollars ($2,000,000) for liability coverage, and not less than Two Million Dollars ($2,000,000) for property damage. Notwithstanding the foregoing, Buyer shall not be permitted to undertake any air or paint sampling or any intrusive or destructive testing of the Property, including, without limitation, a “Phase II” environmental assessment (collectively, the “Intrusive Tests”), without in each instance first obtaining Seller’s prior written consent thereto, which consent may be withheld in Seller’s sole and absolute discretion. If Seller fails to advise Buyer of its approval of any proposed Intrusive Tests within two (2) business days after request, such failure shall be deemed Seller’s disapproval thereof. Promptly following any and all testing and inspections conducted by or on behalf of Buyer, Buyer shall restore the Property to substantially its condition prior to such tests and inspections. Buyer hereby agrees to indemnify, defend and hold Seller and the “Seller Group” (defined in Section 10.1.2, below) harmless from any and all costs, loss, damages or expenses of any kind or nature arising out of or resulting from any entry and/or activities upon the Property by Buyer and/or Buyer’s agents, employees, contractors or consultants; provided, however, such indemnification obligation shall not be applicable (i) to the extent of Buyer’s mere discovery of any pre-existing adverse physical condition at the Property or (ii) with respect to any such liability arising due to the gross negligence or willful misconduct of Seller or the Seller Group. Notwithstanding anything to the contrary in this Agreement, Buyer shall not be relieved of its obligation to indemnify, defend and hold harmless Seller in the event that, and to the extent that, any pre-existing condition is aggravated by Buyer and/or Buyer’s representatives in connection with any inspection of the Property. Seller acknowledges Buyer may desire to discuss or otherwise inquire about matters related to the Property with various governmental entities, the tenants of the Property and utilities and other third parties (such third parties are, collectively, the “Third Parties”). Upon at least one (1) business day’s prior email notice or telephone notice with a confirmation email [***], Buyer shall be permitted to contact any Third Parties to discuss such matters so long as Seller is given the opportunity to be present at any such discussions; provided, however, that Buyer shall have the right without notice to Seller to contact governmental entities to perform normal and customary inquiries regarding zoning and code compliance.

4.1.3    Contracts. The Contracts listed on Exhibit N are the Contracts which Buyer desires be terminated on or before the Closing, and which, by their express terms, may be terminated

on or before the Closing (the “Disapproved Contracts”); provided, however, in no event shall Seller be required to terminate any Contracts which by their terms are not terminable prior to the Closing or require the payment of any termination, penalties or charges unless Buyer pays the same (“Non-Terminable Contracts”). Seller shall provide written notice of termination to those applicable third parties with respect to such Disapproved Contracts (that are not Non-Terminable Contracts) on or before the Closing and shall terminate the same as of Closing. Those Contracts not expressly disapproved by Buyer and the Non-Terminable Contracts (collectively, the “Approved Contracts”) shall be assigned by Seller to Buyer at the Closing to the extent allowable under such Approved Contracts pursuant to the “Assignment of Contracts” (as that term is defined in Section 5.1.4 below).

4.1.4    Approval. Buyer hereby approves of the Property, and acknowledges and agrees that any access to the Property or Due Diligence Items conducted by Buyer on or after the Effective Date shall not provide Buyer with the right to terminate this Agreement on account of any due diligence matter or to receive a refund of the Deposit.

4.1.5    Due Diligence Items. In the event Buyer does not purchase the Property for any reason, within five (5) days after the date this Agreement is terminated Buyer shall return to Seller all documents, information and other materials supplied by Seller to Buyer. In the event Buyer does not purchase the Property for any reason other than a Seller default, Buyer shall provide to Seller within five (5) days after the date this Agreement is terminated any inspection reports, studies, surveys, and other reports and/or test results relating to the Property which were developed by or on behalf of Buyer or prepared by consultants retained by Buyer in contemplation of this Agreement, at no charge to Seller, but without any representation or warranty of any kind, and with respect to such reports Seller shall be subject to any confidentiality restrictions set forth therein.

4.2    Title Review and Additional Title Matters.

4.2.1     Title Review. Seller shall remove on or before the Closing Date (a) liens secured by deeds of trust securing loans made to Seller, (b) mechanics’ liens relating to work pursuant to any agreements to which Seller is a party, (c) judgment liens against Seller, any matters recorded by Seller against the Property after the Effective Date other than matters required by law to the extent consented to by Buyer in its reasonable discretion, (e) any other monetary liens of an ascertainable amount that does not exceed [***] in the aggregate and are capable of being removed upon the payment of no more than [***] in the aggregate, and (f) delinquent taxes (“Monetary Liens”). Except for Monetary Liens, all matters shown in the Proforma Policies and ALTA Survey shall be deemed to be approved by Buyer. The parties acknowledge and agree that Seller shall have the right to apply or cause Escrow Holder to apply all or any portion of the Purchase Price to cause the release of any item included in a Title Notice or any Monetary Lien, as applicable.

4.2.2     Supplemental Title Review. If there are any changes to the Proforma Policies after the Effective Date and prior to Closing, Escrow Holder will deliver to Buyer and Seller a Supplemental Preliminary Title Report, together with copies of any new recorded exceptions listed therein (“Supplemental Report”). If a Supplemental Report discloses any material and adverse change(s) to the condition of title to the Property not caused by Buyer (each, a “Material Adverse Change”), then Buyer will have until five (5) business days after receipt of any Supplemental Report to deliver to Seller and Escrow Holder written notice (a “Title Notice”), approving or disapproving the Material Adverse Change(s) set forth in the Supplemental Report. The failure of Buyer to timely deliver a Title Notice with respect to a Supplemental Report will constitute its approval thereof. If Buyer delivers a Title Notice disapproving any Material Adverse Change(s) identified in that report, then within three (3) business days of its receipt of such Title Notice, Seller shall deliver written notice to Buyer and Escrow Holder identifying which Material Adverse Change(s), if any, Seller shall undertake to cure (and the term “cure” as used in

this Section 4.2.2 shall include removal or insuring or endorsing over such Material Adverse Change) (“Seller’s Response”). If the cure for any particular Material Adverse Change is to insure or endorse over the same (as opposed to remove) (the “Subject Material Adverse Change”), then, in addition to such cure, upon and following the Closing, Seller and “Seller’s Guarantor,” as set forth in the “OPLP Guaranty,” as each of those terms are defined in Section 16.5, below, shall jointly and severally indemnify, defend and hold Buyer harmless from any and all third-party costs, loss, damages or expenses to the extent resulting or arising from the Subject Material Adverse Change (“MAC Title Indemnity”) in accordance with the terms and conditions of an indemnity agreement executed and delivered at Closing, substantially in the form of the OPLP Guaranty modified to provide that the underlying obligation is the MAC Title Indemnity. The MAC Title Indemnity shall be freely assignable to any lender providing financing to Buyer or a successor owner of the particular Property subject to the MAC Title Indemnity (and its lender) until such time as the Subject Material Adverse Change is removed or otherwise released from the title records of such Property. The MAC Title Indemnity shall survive the Closing indefinitely, and shall not be subject to the “Floor Amount” or the “Cap Amount,” as those terms are defined in Section 16.5, below, the “Survival Period,” as that term is defined in Section 11.14, below, or any other post-Closing limitations. Notwithstanding anything herein to the contrary, the provision of the MAC Title Indemnity shall be at Seller’s sole election and Seller shall set forth in its Seller’s Response whether or not it will provide the MAC Title Indemnity at Closing. If Seller delivers a Seller’s Response within such three (3) business day period, then it shall be a condition precedent to Buyer’s obligation to purchase the Property that Seller cures each such Material Adverse Change undertaken to be cured in Seller’s Response, as set forth therein (“Seller Cure Items”). Seller shall have until the Closing Date to make such arrangements or take such steps with respect to the Seller Cure Items as set forth in Seller’s Response; provided, however, that (i) Seller may extend the Closing for a period not to exceed five (5) business days as shall be required to effect such cure, and (ii) except with respect to any Monetary Liens (all of which Seller agrees to have removed on or before the Closing Date), Seller shall have no obligation whatsoever to expend or agree to expend any funds, to undertake or agree to undertake any obligations or otherwise to cure or agree to cure any Material Adverse Changes. If Seller does not timely deliver a Seller’s Response, Seller shall be deemed to have elected to not remove or otherwise cure any Material Adverse Changes disapproved by Buyer, other than Monetary Liens which Seller shall remain obligated to have removed as set forth above. If Seller elects (or is deemed to have elected) not to remove the disapproved Material Adverse Change(s), or Seller elects to insure or endorse over the disapproved Material Adverse Change(s) but does not elect to provide the MAC Title Indemnity, or Seller fails to timely cure the Seller Cure Items, then Buyer will have an additional three (3) business days after receipt of notice of Seller’s Response or Seller’s deadline to cure the Seller Cure Items to notify Seller whether it elects to (a) proceed with the purchase and acquire the Property subject to the disapproved Material Adverse Change(s) and without any reduction in the Purchase Price, in which case the disapproved Material Adverse Change(s) will be deemed approved (and will be Permitted Exceptions), or (b) terminate this Agreement and Escrow. Buyer’s failure to give Seller such notice will be deemed to be an election by Buyer to proceed under clause (a) above. For avoidance of doubt, if Seller elects (or is deemed to have elected) not to remove the disapproved Material Adverse Change(s) or Seller fails to timely cure the Seller Cure Items, the same shall not be a default on the part of Seller but rather Buyer shall have the rights set forth in the immediately preceding two sentences. The Closing Date shall be automatically extended to accommodate the time periods set forth in this Section 4.2.2.

4.3    Conditions Precedent to Buyer’s Obligations:

4.3.1    Title Policy. On or before the Closing, Title Company shall have committed to issue to Buyer the Title Policy described in Section 3.3.

4.3.2    Required Estoppel Certificates; SNDAs. Seller covenants and agrees that (i) Seller shall prepare, or cause to be prepared, and deliver to Buyer for review and approval (within such time period as reasonably required in order for tenant estoppel certificates to be dated within thirty (30)

days of Closing to be delivered to Buyer prior to Closing), the estoppel certificates Seller intends to deliver to the tenants (“Prepared Estoppels”), which shall be based on the form of estoppel certificate attached hereto as Exhibit E or in the form required by a tenant’s lease, and (ii) Seller shall remit, or cause to be remitted, the Prepared Estoppels to all the tenants of the Property for signature (within such time period as reasonably required in order for tenant estoppel certificates dated within thirty (30) days of Closing to be delivered to Buyer prior to Closing) following Buyer’s notice to Seller that Buyer has approved the Prepared Estoppels (which approval shall not be unreasonably withheld, and any such disapproval shall only be on the basis of a materially factually incorrect statement or material factual omission within the required estoppel form, which Seller may or may not incorporate in its reasonable judgment to conform with the requirements of this Section 4.3.2). Buyer’s failure to provide Seller with written notice of its reasonable disapproval, together with the specific changes that Buyer is requesting to be made to the Prepared Estoppels, of the Prepared Estoppels within three (3) business days after Buyer’s receipt of the same shall be deemed Buyer’s approval thereof. Upon the receipt of Buyer’s approval (or deemed approval) of the Prepared Estoppels, Seller shall deliver the same to the tenants. On or before the date which is three (3) business days prior to the Closing Date (the “Estoppel Delivery Date”), Seller shall have delivered to Buyer the Required Estoppel Certificates, in substantially the form of the Prepared Estoppel approved (or deemed approved) by Buyer prior to their distribution to tenants (or in the form a tenant is required to deliver under its Lease) (the “Estoppel Delivery Condition”). In the event Seller is unable to obtain the executed Required Estoppel Certificates to satisfy the Estoppel Delivery Condition by the Estoppel Delivery Date (provided that Buyer acknowledges and agrees that Seller shall have no obligation to terminate any tenant’s lease or otherwise bring an action against any tenant for a breach thereof), Buyer may elect to (i) subject to Seller’s right to extend the Estoppel Delivery Date, below, terminate this Agreement and Escrow pursuant to Section 4.4, below, or (ii) waive such condition and proceed to the Closing. To the extent that any signed Required Estoppel Certificate is a “Non-Complying Estoppel Certificate” (as defined in the following sentence), Buyer shall have two (2) business days after receipt of such Non-Complying Estoppel Certificate to approve or disapprove the Required Estoppel Certificate so received (and the failure to timely do so shall constitute approval thereof). A “Non-Complying Estoppel Certificate” means a Required Estoppel Certificate which (a) discloses material adverse economic terms of the applicable Lease that are not expressly disclosed in the applicable Lease or to Buyer by Seller prior to the Effective Date, (b) [***] (c) is not substantially in the form of the Prepared Estoppel approved (or deemed approved) by Buyer prior to their distribution to tenants or substantially in the form a tenant is required to deliver under its Lease, other than de minimis changes or changes approved by Buyer (not to be unreasonably withheld)or a form proposed by a tenant so long as the statements in such form do not omit material statements that are otherwise required to be made by the tenant under its Lease, (d) is not dated within thirty (30) days of the Closing Date, or (e) discloses any matter that materially and adversely affects the value or the operation of the Property. For avoidance of doubt, a Required Estoppel Certificate shall not be a Non-Complying Estoppel Certificate if it states that (A) the tenant thereunder is in default under the subject Lease, or (B) with respect to subsection (a) or (e) above, the matter is of an ascertainable amount (as reasonably approved by Buyer) and Seller elects, in its sole discretion, to provide Buyer with a credit for such amount at Closing. Notwithstanding the foregoing, if Seller has not satisfied the Estoppel Delivery Condition by the Estoppel Delivery Date, Seller shall have the right, by delivering written notice to Buyer prior to 5:00 p.m. (Pacific time) on the Estoppel Delivery Date, to extend the Estoppel Delivery Date for up to thirty (30) days in order to obtain the same prior to the Closing Date. To the extent of such extension, the Closing Date shall also be extended to be the date which is three (3) business days following the extended Estoppel Delivery Date. Notwithstanding the foregoing to the contrary, if the Required Estoppel Certificates cannot be timely delivered, Seller may, but shall not be obligated to, elect to deliver Seller’s Estoppels in lieu thereof if such estoppels are delivered in the form attached hereto as Exhibit E with such modifications as necessary to reflect that it is being signed by Seller and not a tenant of the Real Property [***] (each a “Seller’s Estoppel” and collectively “Seller’s Estoppels”) which Seller’s Estoppels shall be deemed to comply with this Section 4.3.2 and shall satisfy Seller’s obligation with respect to such tenant. Seller shall be entirely released from liability under a Seller Estoppel upon delivery to Buyer of a Required

Estoppel Certificate from the corresponding tenant to the extent such Required Estoppel Certificate is in a form which complies with this Section 4.3.2, and Seller shall have the right to continue to communicate and coordinate with such tenant(s) following Closing with respect to obtaining any such Required Estoppel Certificate. If, despite the use of commercially reasonable efforts, Seller is unable to obtain the Required Estoppel Certificates to satisfy the Estoppel Delivery Condition or declines to provide a Seller’s Estoppel for any particular tenant, the same shall not be considered a default on the part of Seller, but rather a failure of a condition precedent to Closing.

Seller agrees that upon the request of Buyer, Seller shall deliver to tenants of the Property the form of subordination, non-disturbance and attornment agreement required by Buyer’s lender (“SNDAs”) and shall request that such tenants execute and return the SNDAs prior to Closing; provided, however, that it shall not be a condition to Closing that Seller deliver to Buyer the executed SNDAs and Seller’s failure to deliver the executed SNDAs to Buyer shall not constitute a default by Seller under this Agreement.

4.3.3    Seller’s Performance. Seller shall have duly performed in all material respects each and every covenant of Seller hereunder.

4.3.4    Accuracy of Representations and Warranties. On the Closing Date, all representations and warranties made by Seller in Section 11 shall be true and correct in all material respects as if made on and as of the Closing Date except for (i) any inaccuracies therein as to which Buyer has “Buyer’s knowledge” (as defined in Section 11.12, below) prior to the Effective Date, and (ii) any changes in circumstances contemplated or permitted by this Agreement.

4.3.5    Contractor’s Certificates. To the extent Seller is to assign, and Buyer is to assume, any construction contracts in accordance with the terms and provisions of this Agreement, it shall be a condition precedent to Buyer’s obligation to close that Seller shall either deliver to Buyer at Closing (i) a contractor’s certificate in the form of the contractor’s certificate attached hereto as Exhibit S (“Contractor’s Certificate”) and dated within two (2) weeks of the Closing Date, or (ii) deliver to Buyer a seller’s certificate (“Seller’s Certificate”) in the form of the Contractor’s Certificate. Seller shall use commercially reasonable efforts to obtain corresponding unconditional lien waivers for any portion of such construction contract that has been paid by Seller but the same shall not be a condition to Closing.. Notwithstanding the foregoing or anything stated to the contrary herein, the Contractor’s Certificate or Seller’s Certificate, as applicable, to be delivered under the terms and provisions of this Section 4.3.5 may omit paragraph 1 thereunder to the extent the underlying construction contract is, by its express terms, freely assignable without the requirement of any consent or approval of any party.

4.3.6    Violations. As of the Effective Date, Buyer has not received documentation from the City in response to Buyer’s request for (i) a customary zoning letter for each Property address, and (ii) confirmation that there are no existing violations of the fire code that remain uncured or otherwise unresolved at any of the Property addresses in the City’s files (the “Missing Code Information”). If such Missing Code Information, once received by Buyer, discloses the existence of a material zoning or other code violation that would result in material damages to Buyer, then, as a condition to Buyer’s obligation to close the transactions contemplated under this Agreement, Seller, at its sole election, may (i) use commercially reasonable efforts to cause any such noted violations to be cured prior to Closing (provided the same are reasonably susceptible to cure), which cure must be completed by Closing, and shall be considered complete once the City closes such violation (and Seller may extend the Closing by up to ninety (90) days in order to effectuate such cure), or (ii) provide a credit to Buyer at Closing in the amount reasonably necessary for Buyer to undertake such cure post-Closing (in an amount reasonably approved by Buyer). Promptly upon receipt of the Missing Code Information, Buyer shall either (i) confirm in writing to Seller that no action needs to be taken by Seller hereunder and the provisions of this Section 4.3.6 are null and void and no further force or effect, or (ii) request in writing that Seller cure

identified material violations set forth in the Missing Code Information (which request shall include the Missing Code Information). Seller’s failure to cure, for any or no reason, or election not to cure or credit such identified material violations as set forth above shall not be a default on the part of the Seller hereunder, but rather a failure of a condition precedent to Closing in favor of Buyer.

4.4    Failure of Conditions Precedent to Buyer’s Obligations. Buyer’s obligations with respect to the transactions contemplated by this Agreement are subject to the satisfaction of the conditions precedent to such obligations for Buyer’s benefit set forth in Section 4.3. If Buyer terminates this Agreement by notice to Seller because of the failure of such conditions precedent (and Seller does not timely dispute such termination), then (i) Escrow Holder shall return the Deposit to Buyer (plus interest accrued on the Deposit only while held by Escrow Holder) in accordance with Buyer’s written instructions within five (5) business days following Buyer’s delivery of a written termination notice to Seller and Escrow Holder so long as Buyer is not then in breach or default under this Agreement, (ii) Seller and Buyer shall each pay one-half (¹⁄₂) of any Escrow cancellation fees or charges, and (iii) except for Buyer’s indemnity and confidentiality obligations and any other provisions under the Agreement which expressly survive termination of the Agreement, the parties shall have no further rights or obligations to one another under this Agreement.

4.5    Conditions Precedent to Seller’s Obligations. The Close of Escrow and Seller’s obligations with respect to the transactions contemplated by this Agreement are subject to the timely satisfaction or waiver of the following conditions: (i) Buyer shall have duly performed in all material respects each and every covenant of Buyer hereunder, and (ii) Buyer’s representations and warranties set forth in this Agreement shall be true and correct in all material respects as of the Closing Date as if made on and as of the Closing Date. Without limitation of the foregoing, Buyer shall have timely delivered the Purchase Price pursuant to the provisions of Section 2, above.

5.    Deliveries to Escrow Holder.

5.1    Seller’s Deliveries. Seller hereby covenants and agrees to deliver or cause to be delivered to Escrow Holder at least one (1) business day prior to the Closing Date (or other date specified) the following funds, instruments and documents, the delivery of each of which shall be a condition to the Close of Escrow:

5.1.1    Deed. A Grant Deed (each, a “Deed” and collectively, the “Deeds”) in the form of Exhibit B attached hereto, for each Parcel duly executed and acknowledged in recordable form by the Seller party that holds fee title to such Parcel, conveying such Seller’s interest in the Parcel to Buyer;

5.1.2    Non-Foreign Certifications. Certificates duly executed by each party that constitutes Seller in the form of Exhibit C attached hereto and a California Form 593 (the “Tax Certificates”);

5.1.3    Assignment and Assumption of Leases. Two (2) counterparts of the Assignment and Assumption of Leases duly executed by the party that constitutes Seller with respect to each Parcel in the form of Exhibit D attached hereto, pursuant to which such party the constitutes Seller shall assign to Buyer all of such party’s right, title and interest in, under and to the Leases (the “Assignment of Leases”);

5.1.4    Assignment and Assumption of Contracts. Two (2) counterparts of the Assignment and Assumption of Contracts duly executed by the party that constitutes Seller with respect to each Parcel in the form attached hereto as Exhibit F attached hereto, pursuant to which Seller shall assign to Buyer all of Seller’s right, title and interest in, under and to the Contracts (the “Assignment of Contracts”);

5.1.5    Bill of Sale. Two (2) counterparts of a Bill of Sale duly executed by the party that constitutes Seller with respect to each Parcel in the form of Exhibit G attached hereto, conveying Seller’s right, title and interest in and to the Personal Property (the “Bill of Sale”);

5.1.6    General Assignment. Two (2) counterparts of a General Assignment duly executed by the party that constitutes Seller with respect to each Parcel in the form of Exhibit H attached hereto, conveying Seller’s right, title and interest in and to the Intangible Personal Property (the “General Assignment”);

5.1.7    Tenant Notice Letter. A letter (“Tenant Notice Letter”) signed by the party that constitutes Seller with respect to each Parcel addressed to the tenants under the Leases applicable to such Parcel advising such tenants of the sale of the Property to Buyer, the transfer of such tenant’s security deposit to Buyer, and directing that all future rent payments and other charges under the Leases be forwarded to Buyer at an address to be supplied by Buyer. Notwithstanding the foregoing, the Tenant Notice Letters shall not be delivered through Escrow but shall be sent directly by Seller to the tenants on the Closing;

5.1.8    Vendor Notice Letter. A letter (“Vendor Notice Letter”) signed by the party that constitutes Seller with respect to each Parcel addressed to the vendors under the Contracts, advising the vendors of the sale of the Property to Buyer, and directing that all future invoices and other notices under the Contracts be forwarded to Buyer at an address to be supplied by Buyer. Notwithstanding the foregoing, the Vendor Notice Letter shall not be delivered through Escrow but shall be sent directly by Seller to the vendors on the Closing;

5.1.9    Proof of Authority. Such proof of each party that constitutes Seller’s authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Seller to act for and bind Seller, as may be reasonably required by Title Company;

5.1.10    Turnover. To the extent Seller is obligated under this Agreement to deliver the Personal Property and any materials, items or any other portion of the Property (e.g., keys, equipment manuals, on-site equipment, etc.) to Buyer as of the Closing, Seller shall do so either by (i) delivering the same directly to Buyer outside of Escrow, or (ii) leaving such materials and items at the Property; provided, however, with respect to the Contracts and the Leases and any Lease-related files maintained by Seller, Seller shall, to the extent in the possession of Seller, any affiliate of Seller or Seller’s property manager, deliver originals of the same to Buyer upon the Closing. Without limitation on the foregoing, Seller shall at Closing, to the extent in Seller’s, any affiliate of Seller’s or Seller’s property manager, possession as of the Closing, deliver (or leave at the Property) copies of utility bills, real property tax bills, operating statements and records which are material to the continued operation and leasing of the Property (excluding any privileged, confidential or proprietary documents) for the period of Seller’s ownership of the Property preceding the Closing;

5.1.11    Owner’s Affidavit. A title affidavit or owner’s affidavit duly executed by the party that constitutes Seller with respect to each Parcel in form attached hereto as Exhibit O; and

5.1.12    OPLP Guaranty. The OPLP Guaranty executed by Seller’s Guarantor (as such terms are defined in Section 16.5, below).

5.2    Buyer’s Deliveries. Buyer hereby covenants and agrees to deliver or cause to be delivered to Escrow Holder at least one (1) business day prior to the Closing Date (except as otherwise provided below) the following funds, instruments and documents, the delivery of each of which shall be a condition to the Close of Escrow:

5.2.1    Buyer’s Funds. No later than 10:00 a.m. Pacific time on the Closing Date, the balance of the Purchase Price, and such additional funds, if any, necessary to comply with Buyer’s obligations hereunder regarding prorations, credits, costs and expenses;

5.2.2    Assignment of Leases. Two (2) counterparts of the Assignment of Leases duly executed by Buyer;

5.2.3    Assignment of Contracts. Two (2) counterparts of the Assignment of Contracts duly executed by Buyer;

5.2.4    Bill of Sale. Two (2) counterparts of the Bill of Sale duly executed by Buyer;

5.2.5    General Assignment. Two (2) counterparts of the General Assignment duly executed by Buyer; and

5.2.6    Proof of Authority. Such proof of Buyer’s authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Buyer to act for and bind Buyer, as may be reasonably required by Title Company.

6.    Deliveries Upon Close of Escrow. Upon the Close of Escrow, Escrow Holder shall promptly undertake all of the following:

6.1    Tax Filings. The Title Company shall file the information return for the sale of the Property required by Section 6045 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.

6.2    Prorations. Prorate all matters referenced in Section 8 based upon the statement delivered into Escrow signed by the parties;

6.3    Recording. Cause the Deed and any other documents which the parties hereto may direct, to be recorded in the Official Records in the order directed by the parties;

6.4    Seller Funds. Deduct all items chargeable to the account of Seller pursuant to Section 7, below. If, as the result of the net prorations and credits pursuant to Section 8, amounts are to be charged to the account of Seller, deduct the total amount of such charges (unless Seller elects to deposit additional funds for such items in Escrow); and if amounts are to be credited to the account of Seller, disburse such amounts to Seller, or in accordance with Seller’s instructions, at Close of Escrow. Disburse the Purchase Price to Seller, or as otherwise directed by Seller, promptly upon the Close of Escrow in accordance with Seller’s wire transfer instructions.

6.5    Buyer Funds. Disburse from funds deposited by Buyer with Escrow Holder towards payment of all items and costs (including, without limitation, the Purchase Price, which shall be disbursed in accordance with Section 6.4 above and this Section 6.5) chargeable to the account of Buyer pursuant hereto in payment of such items and costs and disburse the balance of such funds, if any, to Buyer;

6.6    Documents to Seller. Deliver to Seller counterpart originals of the Assignment of Leases, Assignment of Contracts, Bill of Sale and General Assignment appropriately executed by Buyer, and a conformed recorded copy of the recorded Deed;

6.7    Documents to Buyer. Deliver to Buyer an original of the Tax Certificates, and counterpart originals of the Assignment of Leases, Assignment of Contracts, Bill of Sale and General Assignment appropriately executed by the party that constitutes Seller with respect to each Parcel, originals of the LC Documentation and OPLP Guaranty, a conformed recorded copy of the Deed applicable to each Parcel, and, when issued, the Title Policy with respect to each Parcel; and

6.8    Title Policy. Direct the Title Company to issue the Title Policies to Buyer.

7.    Costs and Expenses. Seller shall pay through Escrow (i) that portion of the Title Policy premium for standard coverage, (ii) all documentary transfer taxes, (iii) one-half (¹⁄₂) of the Escrow Holder’s fee, and (iv) any legal or professional fees that Seller wishes, in its sole discretion, to pay through Escrow. Buyer shall pay through Escrow (w) all document recording charges, (x) the additional Title Policy premium for ALTA extended coverage and any title endorsements requested by Buyer, and any lender policy for Buyer’s lender (if any), (y) one-half (¹⁄₂) of the Escrow Holder’s fee, and (z) any and all charges for any ALTA survey. Buyer shall pay either through Escrow or outside of Escrow, as Buyer wishes, all costs and expenses related to the Due Diligence Investigations, and all legal and professional fees and costs of attorneys and other consultants and agents retained by Buyer. Any other cost and expense not described in this Section 7 shall be charged to Seller or Buyer in accordance with custom and practice in San Diego County.

8.    Prorations. The following prorations between Seller and Buyer shall be made by Escrow Holder computed as of the Close of Escrow as indicated below, in each instance based on either a 365-day year or, if applicable, the actual number of days in the calendar month in which the Closing occurs:

8.1    Ad Valorem Taxes. All real estate and personal property taxes attributable to the Property will be prorated at Closing. Seller shall be charged with all such taxes up to, but not including, the Closing Date. If the applicable tax rate and assessments for the Property have not been established for the year in which Closing occurs, the proration of real estate and/or personal property taxes, as the case may be, will be based upon the rate and assessments for the preceding year. All taxes imposed because of a change of use of the Property after Closing will be paid by Buyer. All taxes imposed as a result of or in connection with the sale of the Property will be paid by Buyer. Real property tax refunds and credits received after the Closing which are attributable to a fiscal tax year prior to the fiscal year of the Closing shall belong to Seller, and those which are attributable to the fiscal tax year in which the Closing occurs shall be prorated based upon the date of Closing.

8.2    Excise, Transfer and Sales Taxes. Buyer will be responsible for the payment of all excise, transfer, sales and use taxes imposed with respect to the conveyance of the Personal Property contemplated by this Agreement and will indemnify, defend and hold Seller harmless from the payment of such taxes.

8.3    Lease Rentals. All non-delinquent rents (including all accrued tax and operating expense pass-throughs), charges and revenue of any kind receivable from the Leases and other income of the Property will be prorated at Closing. Seller will receive all rents (including all accrued tax and operating expense pass-throughs), charges and other revenue of any kind receivable from the Leases up to, but not including, the Closing Date. No proration will be made with respect to any delinquent rents of any kind receivable from the Leases for any period before Closing. All amounts collected by Buyer subsequent to Closing that relate to delinquent rents or other income from the Property will be promptly remitted to Seller;

provided, however, all rents or other income from the Property that do not identify a specific invoice number received by Buyer after Closing will be applied first to any then-current rental or other income period following the Closing, second to the rental or other income period in which the Closing occurred, and third to satisfy delinquent rental or other income obligations for any period before Closing not prorated at Closing. Seller will retain all ownership rights relating to any such delinquent rents or income; if Buyer has not collected the same within thirty (30) days from the Closing Date, then Seller may take such action as it deems necessary to collect such delinquent rents or other income, including the commencement of an action against the tenants under the Leases or any other person liable for such delinquent rents, but not including any action for unlawful detainer or other action seeking to terminate such tenant’s occupancy of its premises. Notwithstanding the foregoing, if any of such operating expenses and other charges and expenses are payable by tenants under the Leases (collectively, the “Tenant Charges”) on an estimated basis, then the Tenant Charges shall be reconciled against actual charges and expenses as of and at the Closing, to the extent then possible, and Seller shall provide a proposed reconciliation for Buyer’s approval. Buyer shall have a period of one hundred eighty (180) days following the end of the calendar year in which the Closing Date occurs to provide Seller with a final reconciliation of Tenant Charges. Seller shall provide Buyer with any comments to Buyer’s draft within ten (10) business days following receipt, and the final reconciliation of Tenant Charges, as mutually agreed upon by Seller and Buyer, shall be known as the “Final Reconciliation”). Seller agrees to provide Buyer with reasonable accounting records or a copy of the general ledger for Seller’s ownership period during the calendar year of Closing, to be used by Buyer when preparing the proposed reconciliation. If the Final Reconciliation shows that Seller owes Buyer additional sums, Seller shall deliver such amount to Buyer within ten (10) days after determination of the Final Reconciliation. If the Final Reconciliation shows that Buyer owes Seller additional sums, Buyer shall pay such amount to Seller within ten (10) days after determination of the Final Reconciliation and collection of such sums from the tenants (provided that Buyer shall use commercially reasonable good faith efforts to collect such sums). Other than as set forth above, there shall not be any further reconciliation of such Tenant Charges after the Final Reconciliation thereof, the proration of such Tenant Charges pursuant to the Final Reconciliation being conclusively presumed to be accurate. After the Final Reconciliation of Tenant Charges is made by and between the parties, Buyer shall be solely liable and responsible to the tenants under the Leases for such reconciliation of Tenant Charges under the Leases.

8.4    Security Deposit. Buyer shall be credited and Seller shall be charged with the balance of any unapplied security deposits then held by Seller under the Leases. The amounts of the security deposits held by Seller as of the Effective Date are set forth on Exhibit K attached hereto. With respect to any security deposits that are held in the form of a letter of credit (“Letters of Credit”), then Seller shall, on the Closing Date (or as soon as reasonably practicable thereafter) (i) execute and deliver to Buyer such original assignment and/or transfer documentation as may be necessary to effect the transfer of each Letter of Credit, and (ii) concurrently deliver to Buyer the originals of such Letters of Credit or other applicable documents (collectively, the “LC Documentation”). Buyer shall be responsible for the amount of the transfer fee required under such Letters of Credit, and shall otherwise cooperate with Seller to effectuate such transfers, including but not limited to by providing all information required by the issuing bank for a new beneficiary. Once Seller delivers the documentation required from Seller in order to effectuate the transfer, Buyer shall be solely responsible for delivering such documentation to the issuing bank and otherwise taking the necessary steps to effectuate the transfer of the Letters of Credit (provided that Seller will reasonably cooperate with any post-Closing Buyer requests with regard to the transfer of the Letters of Credit, at no material out of pocket cost to Seller).

8.5    Operating Expenses. All utility service charges for electricity, heat and air conditioning service, other utilities, elevator maintenance, common area maintenance, taxes other than real estate taxes such as rental taxes, other expenses incurred in operating the Property that Seller customarily pays and that are not paid by tenants on an estimated or other basis, and any other costs incurred in the ordinary course of business or the management and operation of the Property not so paid by tenants, shall

be prorated on an accrual basis; provided, however, that Seller shall use commercially reasonable efforts to have final meter readings made and to terminate service, and Buyer shall use commercially reasonable efforts to transfer service to its name, as of the Closing. Seller shall pay all such expenses that accrue prior to the Close of Escrow and Buyer shall pay all such expenses accruing on the Close of Escrow and thereafter. Seller and Buyer shall use commercially reasonable efforts to obtain billings and meter readings as of the Close of Escrow to aid in such prorations.

8.6    Leasing Costs. If the Closing occurs, (i) Seller shall be responsible and shall pay for all costs of tenant improvement work or allowances, third-party leasing commissions and other leasing costs (collectively, the “Leasing Costs”) relating to the current term of those Leases executed as of the Effective Date, the outstanding amounts of which are set forth on Exhibit K hereto and are designated as being the obligation of Seller, and (ii) Buyer shall be responsible and shall pay for the Leasing Costs relating to or arising from (a) the exercise by any tenant, after the Effective Date, of a renewal, expansion or extension option contained in any of the Leases executed as of the Effective Date so long as such Leasing Costs are contemplated (i.e., there is a reference to the same) in the Lease (e.g., there is a fair market value determination of rent and concessions) and including broker commissions if it is a brokered transaction, provided that, for any options exercised prior to Closing, Seller shall promptly disclose to Buyer if a broker commission will be involved and if so, will cooperate with the Buyer to reasonably negotiate a “market” commission rate with such broker, if the rate was not already set; (b) any “New Leases” (as that term is defined in Section 9.2) entered into after the Effective Date in accordance with the terms of Section 9.2 so long as such Leasing Costs are expressly disclosed to Buyer in writing at the time Seller requests Buyer’s consent for such New Lease under the provisions of Section 9.2, and (c) any Leasing Costs which are specifically designated as being the responsibility of Buyer as set forth in Exhibit K attached hereto. Any Leasing Costs which are the responsibility of Buyer which are paid by Seller prior to the Closing shall be reimbursed by Buyer to Seller at the Closing through the Escrow. If, on the Closing, there are any outstanding or unpaid Leasing Costs which are the responsibility of Seller as set forth herein, then on the Closing, Buyer shall be entitled to a credit toward the payment of the Purchase Price at Closing in the amount of such unpaid Leasing Costs, and following the Closing (A) Buyer shall assume and be responsible for the payment of such Leasing Costs to the extent of such credit, (B) subject to Section 4.3.5 above, Seller shall assign to Buyer all construction contracts that Seller is a party to relating to such outstanding Leasing Costs, and (C) Buyer shall indemnify, defend and hold harmless Seller for the failure to complete such work related to such outstanding Leasing Costs for which Buyer received a credit.

8.7    Contracts. Amounts payable under the Contracts shall be prorated on an accrual basis. Seller shall pay all amounts due thereunder which accrue prior to the Close of Escrow and Buyer shall pay all amounts accruing on the Close of Escrow and thereafter.

8.8    Free Rent. Buyer shall receive a credit against the Purchase Price at Closing equal to the amount of any “free rent” available to tenants with respect to the current term of the Leases existing as of the Effective Date and an initial estimate is shown on Exhibit K attached hereto. Notwithstanding anything set forth herein to the contrary, the credit with respect to free rent shall be subject to adjustment only based on Seller’s and Buyer’s respective periods of ownership of the Property, and not with respect to amount or any other factor (for purposes of clarity, any portion of any free rent period that occurs during Seller’s period of ownership of the Property shall be deducted from the credit provided to Buyer at Closing). From and after Closing, Buyer shall be solely responsible for all free rent associated with the Leases, including any New Leases.

8.9    Proration Statement. At least two (2) business days prior to the Close of Escrow, the parties shall agree upon all of the prorations to be made and submit a statement to Escrow Holder setting forth the same. In the event that any prorations, apportionments or computations made under this Section 8 shall require final adjustment, then the parties shall make the appropriate adjustments promptly when

accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same, but in no event shall such final adjustment occur later than one hundred eighty (180) days following the Close of Escrow (other than with respect to the Final Reconciliation). Any corrected adjustment or proration shall be paid in cash to the party entitled thereto.

8.10    Survival. The provisions of this Section 8 shall survive the Close of Escrow for the applicable time periods specifically set forth in Section 8.3 and Section 8.9, above.

9.    Covenants of Seller. Seller hereby covenants with Buyer, as follows:

9.1    Contracts. Between the Effective Date and the Closing Date, Seller will not enter into any new Contracts or any amendments or modifications to the existing Contracts (collectively, “New Contracts) without Buyer’s prior written consent, which consent may not be unreasonably withheld, and which consent will be deemed to have been given by Buyer if Buyer does not notify Seller in writing to the contrary within three (3) business days after Seller provides written notice to Buyer of such New Contract. Without limiting the generality of the foregoing, Seller will provide Buyer with copies of all New Contracts.

9.2    Leases. Between the Effective Date and the Closing Date, Seller will not enter into any new Leases or any amendments or extensions of existing Leases (collectively, “New Leases”) without Buyer’s prior written consent, which consent may be withheld in Buyer’s sole discretion, and which consent will be deemed to have been given by Buyer if Buyer does not notify Seller in writing to the contrary within three (3) business days after Seller provides written notice to Buyer of such New Lease. Without limiting the generality of the foregoing, Seller will timely provide Buyer with copies of any and all proposals and/or letters of intent for any New Lease.

9.3    Operation in the Ordinary Course. Subject to Sections 9.1 and 9.2, above, and except to the extent that such maintenance is the obligation of any tenant under the Leases, from the date of this Agreement until the Close of Escrow, Seller shall (i) operate and manage the Property in the ordinary course and consistent with Seller’s past practices, (ii) maintain all present services and amenities, (iii) maintain the Property in good condition, repair and working order (but Seller shall not be required to make capital improvements), (iv) keep on hand sufficient materials, supplies, equipment and other personal property for the efficient operation and management of the Property, (v) maintain all property damage insurance policies carried by Seller with respect to the Property in effect as of the Effective Date (or obtain comparable replacement policies), and (vi) perform when due, and otherwise comply with, all of Seller’s obligations and duties under the Leases and Approved Contracts. None of the Personal Property shall be removed from the Real Property, unless replaced by unencumbered personal property of equal or greater utility and value. All Personal Property and Intangible Personal Property shall be conveyed to Buyer by Seller at the Close of Escrow free from any liens, encumbrances or security interests of any kind or nature other than the Permitted Exceptions.

9.4    Declaration Estoppel. Seller shall use commercially reasonable efforts to obtain an estoppel from the Pacific Corporate Center – North Owners’ Association pursuant to that certain Declaration of Covenants, Conditions and Restrictions for Units 2, 3, 4 and 6 of Pacific Corporate Center, in the form attached hereto as Exhibit P (the “Declaration Estoppel”). Seller’s failure to obtain the Declaration Estoppel shall not be a default on the part of Seller nor shall it be a condition precedent to Closing.

9.5    Title Matters. From and after the Effective Date, Seller covenants and agrees not to record any new title matter encumbering the Property that will not be removed from the Property by Buyer prior to the Closing, other than matters required by law to the extent consented to by Buyer in its reasonable discretion.

9.6    Intended Development. Notwithstanding anything to the contrary set forth in this Agreement, Buyer may, without prior notice to Seller, contact governmental entities to seek entitlements to allow the further development and/or redevelopment of the Property (or any portion thereof) as an office and/or life science project (or other use reasonably approved in advance by Seller) provided that Buyer may not do anything that would have a material and adverse effect on the value of the Property (the “Intended Development”). Seller agrees, at no material cost to Seller, to reasonably cooperate with Buyer in connection with Buyer’s obtainment of the Intended Development, including, but not limited, by executing applications and other related documentation (including executing a letter in favor of the City advising the City that Buyer has authority to process and prepare documentation for the Intended Development) and responding promptly to Buyer to enable timely and complete responses to inquiries by the City regarding the Intended Development.

10.    AS-IS Sale and Purchase. Buyer acknowledges, by its initials as set forth below, that the provisions of this Section 10 have been required by Seller as a material inducement to enter into the contemplated transactions, and the intent and effect of such provisions have been explained to Buyer by Buyer’s counsel and have been understood and agreed to by Buyer.

10.1    Buyer’s Acknowledgment. As a material inducement to Seller to enter into this Agreement and to convey the Property to Buyer, Buyer hereby acknowledges and agrees that:

10.1.1    AS-IS. Except as otherwise expressly set forth in this Agreement, and subject to Seller’s representation and warranties set forth in Section 11 of this Agreement, Buyer is purchasing the Property in its existing condition, “AS-IS, WHERE-IS, WITH ALL FAULTS,” and upon the Closing Date has made or has waived all inspections and investigations of the Property and its vicinity which Buyer believes are necessary to protect its own interest in, and its contemplated use of, the Property.

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