FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS ("Amendment") dated as of this 24th
day of October, 1997 is made by and between Xxxxx Xxxxxx and
Xxxxxx Xxxxxx, Co-Trustees of the Silagi Family Trust (the
"Trust"), Conejo Business Park, LLC, a California limited
liability company ("Conejo LLC"), Marin Corporate Center LLC, a
California limited liability company ("Marin LLC"), Evergreen
Plaza LLC, a California limited partnership ("Evergreen LLC")
(collectively, "Original Seller"), Hillside Corporate Center,
LLC, a California limited liability company and Westlake Gardens,
LLC, a California limited liability company (together,
"Additional Seller"), and Arden Realty Limited Partnership, a
Maryland limited partnership ("Buyer"). Original Seller and
Additional Seller shall collectively be referred to herein as
"Seller".
R E C I T A L S
WHEREAS, Original Seller and Buyer are parties to that
certain Agreement of Purchase and Sale and Joint Escrow
Instructions dated as of August 1, 1997 (the "Agreement");
WHEREAS, Original Seller is the owner of the Property;
WHEREAS, Additional Seller is the owner of the
Additional Property (defined below);
WHEREAS, Buyer desires to purchase, and Additional
Seller desires sell, the Additional Property on the terms and
conditions set forth in the Agreement, as amended by this
Amendment; and
WHEREAS, Seller and Buyer desire, among other things,
to amend the Agreement to add Additional Seller as a party
thereto and to provide for the purchase and sale of the
Additional Property upon and subject to all the terms and
conditions set forth below.
A M E N D M E N T
NOW, THEREFORE, in consideration of the foregoing
recitals, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller
and Buyer hereby amend the Agreement upon and subject to the
following terms, provisions and conditions. Capitalized terms
used in the Amendment and not otherwise defined shall have the
meanings ascribed to such terms as set forth in the Agreement.
PROVIDED FURTHER, that except to the extent otherwise
provided below, the terms and provisions of the Agreement and the
rights and obligations of Original Seller and Buyer thereunder
shall apply with equal force and effect to the Additional
Property, Additional Seller and to Buyer's purchase of the
Additional Property, with conforming changes being deemed
incorporated into the Agreement where necessary to provide
appropriate contextual references. By way of illustration, the
Escrow Holder's deliveries to Buyer in Section 4.4.3 of the
Agreement upon the Hillside Closing (defined below) shall be the
Assignment of Leases, the Assignment of Intangible Property, the
Xxxx of Sale, the Transferor's Certificate and all other items
required to be delivered by Seller pursuant to Sections 4.1 and
8.1.4, but only to the extent such items or documents pertain to
Hillside Corporate Center. Similarly, on the Hillside Closing
Date, the Escrow Holder shall only record the Deed for the
applicable Additional Real Property comprising Hillside Corporate
Center in the appropriate county.
1. PARAGRAPH 1: DEFINITIONS. The following
definitions are hereby added to or replace the corresponding
Definitions in Section 1 of the Agreement:
1.1 "Additional Land" collectively
means the real property located at
(i) 000 Xx. Xxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx (commonly known as Hillside
Corporate Center) and (ii) 2525 and
0000 Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx
(collectively and commonly known as Westlake
Gardens), as each component of the Additional
Land is respectively described in
Exhibits "A-7" and "A-8".
1.2 "Additional Leases" shall mean all
existing leases, rental and occupancy
agreements and lease commitments relating to
the Additional Real Property, including those
Additional Leases which are listed on
Exhibits "F-7" and "F-8", respectively,
together with any and all leases which are
entered into after the date of this Amendment
in accordance with Buyer's written approval
as set forth in Section 5.2 of this
Amendment.
1.3 "Additional Personal Property"
means all the personal property of Seller
located on or in or used in connection with
the Additional Real Property, including those
items set forth on Exhibits "H-7" and "H-8",
respectively.
1.4 "Additional Property" or
"Additional Properties" collectively means
the Additional Real Property, the Additional
Personal Property and the Intangible Property
with respect to the Additional Real Property
and/or Additional Personal Property.
1.5 "Construction Closing Conditions
Period" means the period commencing on the
date this Amendment is executed and delivered
by both Buyer and Seller and ending at
6:00 p.m. (California time) on the first
business day which is five (5) business days
after the Conditions to Construction
Completion as set forth on Schedule "1"
attached hereto have been fully completed to
the satisfaction of Buyer with respect to
construction of Hillside Corporate Center,
Phase I (as defined in Section 1.37) of
Westlake Gardens and Phase II (as defined in
Section 1.37) of Westlake Gardens,
respectively.
1.6 "Additional Real Property" means
the Additional Land, the improvements
situated or to be constructed on the
Additional Land, the Fixtures and the
Appurtenances with respect to the Additional
Land.
1.7 "Amendment" means that certain First
Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions dated October 24, 1997 by and
between Seller, Additional Seller (as defined in the
Amendment) and Buyer.
1.8 "Approved Plans" shall mean the
Plans, and all amendments, modifications and
supplements to the Plans as and when approved
in writing by Buyer.
1.9 "Appurtenances" means all Seller's
interest in all rights, privileges and
easements appurtenant to the Land and
Additional Land, including, without
limitation, all minerals, oil, gas and other
hydrocarbon substances in, on and under the
Land and Additional Land, as well as all
development rights, air rights, water, water
rights and water stock relating to the Land
and Additional Land and any other easements
appurtenant to the Land and Additional Land.
1.10 "Assignments of Leases" means the
Assignments of Leases, to be duly executed
and delivered by Seller in accordance with
Section 4.1 of this Agreement, assigning to
Buyer all of Seller's right, title and
interest in and to the Leases and Additional
Leases. The Assignments of Leases shall each
be in the form of, and upon the terms con
tained in, Exhibit "C".
1.11 "Bills of Sale" means the Bills of
Sale, to be duly executed and delivered by
Seller in accordance with Section 4.1 of this
Agreement, conveying to Buyer all of the
Personal Property and Additional Personal
Property. The Bills of Sale shall each be in
the form of, and upon the terms contained in,
Exhibit "D".
1.12 "Deeds" means the Grant Deeds, to
be duly executed, acknowledged and delivered
in recordable form by Seller in accordance
with Section 4.1 of this Agreement, conveying
to Buyer good and marketable fee simple title
to the Real Property and Additional Real
Property, as applicable. The Deeds shall
each be in the form of, and upon the terms
contained in, Exhibit "E" except that the
Deed with respect to the transfer of Phases I
and II of Westlake Gardens shall contain the
following language:
"The transfer of the Property to
the Grantee pursuant to this Grant
Deed is subject to the terms and
conditions of that certain
Declaration of Covenants,
Conditions and Restrictions
executed by Westlake Gardens LLC,
as declarant, and recorded on
May 7, 1997, in the Official
Records of Ventura County,
California, as Instrument No. 97-
057284."
1.13 "Fixtures" means all fixtures
placed on, attached to, or located at and
used in connection with the operation of, the
Land and the Additional Land.
1.14 "Governmental Regulations" means
any local, state, and federal laws,
ordinances, rules, requirements, codes,
building codes, resolutions, policy
statements and regulations (including, with
out limitation, those relating to land use,
subdivision, zoning, environmental, labor
relations, notification of sale to employer,
Hazardous Materials, occupational health and
safety, water, earthquake hazard reduction
and building and fire codes) bearing on the
construction, development, alteration,
rehabilitation, maintenance, use, operation,
or sale of the Property and the Additional
Property.
1.15 "Hillside Closing" means the
consummation of the conveyances of the
Additional Property, Additional Leases and
any other transactions contemplated under
this Agreement, but only with respect to
Hillside Corporate Center, all of which shall
occur on or before the Hillside Closing Date.
1.16 "Hillside Closing Date" shall
mean five (5) business days after the
expiration of the Construction Closing
Conditions Period for Hillside Corporate
Center.
1.17 "Hillside Corporate Center"
means the Additional Real Property,
Additional Personal Property and Intangible
Property related solely to the real property
located at 000 Xx. Xxxxxxx Xxxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxx.
1.18 "Hillside Purchase Price"
means an amount equal to $8,852,400.00.
1.19 "Hillside Title Policy" means
an ALTA owner's title policy (Form B-1970)
issued by the Title Company for the benefit
of Buyer, which Hillside Title Policy shall
(a) insure Buyer's fee title to the
Additional Real Property at Hillside
Corporate Center, (b) have a liability limit
in the amount of the Hillside Purchase Price,
(c) include those endorsements requested by
Buyer, and (d) show only those matters which
constitute Permitted Exceptions.
1.20 "Intangible Property" means all of
Seller's right, title and interest in and to
any and all intangible personal property now
and through the Closing Date, Hillside
Closing Date or Westlake Closing Date, as
applicable, owned by Seller and/or used in
connection with the ownership, construction,
development, use and/or operation of the Real
Property, Additional Real Property, Personal
Property and/or Additional Personal Property,
including, without limitation, the Service
Contracts (to the extent approved in writing
by Buyer), the Licenses and Permits, the
Intellectual Property and the Records and
Plans and the Warranties.
1.21 "Intellectual Property" means any
and all intellectual property owned by Seller
or licensed to Seller and used in connection
with the ownership, use and/or operation of
the Real Property, Additional Real Property,
Personal Property and/or Additional Personal
Property, including, without limitation,
trade names, logos, derivations, slogans and
other marks owned or used by or licensed to
Seller and associated with the Real Property,
Additional Real Property, Personal Property
and/or Additional Personal Property.
1.22 "Licenses and Permits" means all of
Seller's right, title, interests, privileges,
benefits and remedies in, to and under all
authorizations, approvals, permits,
certificates of occupancy, licenses,
agreements, variances, tentative maps, final
maps, plans and specifications and land use
entitlements held by Seller and/or relating
to the construction, reconstruction,
occupancy, operation or use of any part of
the Real Property, Additional Real Property,
Personal Property, or Additional Personal
Property.
1.23 "Intentionally Omitted."
1.24 "Notices To Tenants" means notices
from Seller to all tenants who are parties to
any of the Leases or Additional Leases
whereby such tenants are notified that the
Property or applicable Additional Property
has been transferred by Seller to Buyer and
instructing them to pay any and all rents and
other sums payable under the Leases or
Additional Leases from and after the Closing,
Hillside Closing or Westlake Closing, as
applicable, directly to Buyer or as otherwise
directed by Buyer, in the form of
Exhibit "G".
1.25 "Plans" shall mean full and
detailed architectural, construction,
landscaping, mechanical and engineering plans
and specifications covering the work to be
performed in connection with the Hillside
Project and the Westlake Project (as each
term is defined in Section 8 below). For
purposes of this definition, the term "Plans"
shall not include plans and specifications
solely relating to specific tenant
improvement work to be performed within a
particular premises at either the Hillside
Project or Westlake Project.
1.26 "Pre-Approved Lease Form"
means Buyer's standard form of lease
agreement.
1.27 "Project Documents" shall mean all
contractors' (including contractors' and
subcontractors), architects', engineers', consultants,
landscaping and other similar contracts entered into by
Seller, or any one of them, with respect to the Project
(as defined in Section 8 of this Amendment).
1.28 "Property" or "Properties"
collectively means the Real Property, the
Personal Property and, with respect to the
Real Property and/or Personal Property only,
the Intangible Property.
1.29 "Purchase Price" means the sum
of Thirty Five Million Three Hundred Seventy
One Thousand Three Hundred Eighty-Seven
Dollars ($35,371,387).
1.30 "Real Property" means the Land, the
improvements situated on the Land, the
Fixtures and the Appurtenances with respect
to the Land.
1.31 "Records and Plans" means (a) all
books and records maintained in connection
with the ownership, development,
construction, maintenance or operation of the
Property and Additional Property, (b) all
preliminary, final and "as-built" plans and
specifications respecting the Real Property
and Additional Real Property, and (c) all
structural reviews, architectural drawings,
topographical maps and engineering, soil,
seismic, environmental, asbestos, geologic
and architectural reports, studies and
certificates and other documents pertaining
to the Real Property and Additional Real
Property (including those which include
comments by any building or safety engineer,
inspector or other person who regularly makes
such inspections) which are within the
possession of, under the control of, or
reasonably available to, Seller.
1.32 "Service Contracts" means the
maintenance contracts, equipment leases,
warranties, guarantees, management contracts
and bonds, and any other similar obligations,
commitments or arrangements, together with
all supplements, amendments and modifications
thereto, relating to the construction,
development, marketing, operation,
maintenance or enjoyment of the Property
and/or Additional Property, which are set
forth on Exhibits "I-1", "X-0," "X-0," "X-0",
"X-0" and "I-6" attached to the Agreement and
Exhibits "I-7" and "I-8", respectively,
attached to this Amendment.
1.33 "Tenant Estoppels" means written
statements in the form of, and upon the terms
contained in, Exhibit "J", in favor of Buyer
from each of the tenants who are parties to
any of the Leases and/or Additional Leases,
dated not earlier than fifteen (15) days
prior to the Closing Date, Hillside Closing
Date or applicable Westlake Closing Date, as
applicable.
1.34 "Warranties" means all third party
warranties and guarantees relating to the
Property and/or Additional Property,
including any instruction books (e.g., for
vertical transportation, HVAC and other
building systems).
1.35 "Westlake Closing" means the
consummation of the conveyances of the
Additional Property, Additional Leases and
any other transactions contemplated under
this Agreement, but only with respect to each
of Phase I and Phase II of Westlake Gardens,
all of which shall occur on or before the
Westlake Closing Date for the applicable
phase.
1.36 "Westlake Closing Date" shall
mean five (5) business days after the
expiration of the Construction Closing
Conditions Period for each of Phases I and II
of Westlake Gardens (i.e., there will be
separate closing dates for each of Phases I
and II of Westlake Gardens).
1.37 "Westlake Gardens" means the
Additional Real Property, Additional Personal
Property and Intangible Property related
solely to the real property located at
0000 Xxxxxxxxx ("Phase I") and 0000 Xxxxxxxxx
("Xxxxx XX"), Xxxxxxxx Xxxxxxx, Xxxxxxxxxx.
1.38 "Westlake Purchase Price"
means collectively an amount equal to
$14,647,600 ($7,323,800 of which is allocated
to Phase I of Westlake Gardens and $7,323,800
of which is allocated to Phase II of Westlake
Gardens).
1.39 "Westlake Title Policies"
means two (2) separate ALTA owner's title
policies (Form B-1970) issued by the Title
Company for the benefit of Buyer, which
Westlake Title Policies shall (a) insure
Buyer's title to the Additional Real Property
for Phase I and Phase II of Westlake Gardens,
(b) have liability limits in the amount of
the Westlake Purchase Price (separately
allocated for Phase I and Phase II of
Westlake Gardens, as applicable), (c) include
those endorsements requested by Buyer, and
(d) show only those matters which constitute
Permitted Exceptions.
2. PARAGRAPH 3: AGREEMENT TO SELL; PURCHASE PRICE.
2.1 The Hillside Purchase Price and the
applicable Westlake Purchase Price shall be paid to Seller (after
taking into account the adjustments described in Sections 10 and
11 of the Agreement) through Escrow Holder, at the Hillside
Closing and the applicable Westlake Closing, respectively.
2.2 Section 3.3(f). The figure set forth in
Section 3.3(f) should be deleted and replaced with $10,885,000."
3. PARAGRAPH 4: DELIVERIES AT CLOSING; CLOSING
PROCEDURES. The Hillside Closing and the Westlake Closing shall
take place on the Hillside Closing Date and the applicable
Westlake Closing Date, respectively.
3.1 Section 4.1. The introduction paragraph in
Section 4.1 of the Agreement is hereby deleted and replaced with
the following: "4.1 By Seller. At least two (2) business days
prior to the Closing, the Hillside Closing, or the applicable
Westlake Closing, as applicable, Original Seller or the
applicable Additional Seller, shall deliver or cause to be
delivered to Escrow Holder (unless otherwise indicated) the
following items with respect to the Properties or Additional
Properties, as applicable, duly executed and, where appropriate,
acknowledged by Seller or the applicable Additional Seller:"
3.2 Sections 4.1.9, 4.4, 4.4.2 and 11.1. The
words "Hillside Title Policy or Westlake Title Policies, as
applicable" are inserted after the words "Title Policy" in
Sections 4.1.9, 4.4, 4.4.2 and 11.1 of the Agreement.
3.3 Section 4.2. Paragraph 4.2.1 of the
Agreement is amended to provide that at the Hillside Closing and
applicable Westlake Closing, as applicable, Buyer shall deliver
the items in Section 4.2.2 and 4.2.3, and also the Hillside
Purchase Price or applicable Westlake Purchase Price, as
applicable, after taking into account the adjustments and costs
allocations in accordance with Sections 10 and 11 of the
Agreement, as amended by this Amendment.
3.4 Section 4.4.4. Paragraph 4.4.4 of the
Agreement is amended to provide that at the Hillside Closing Date
and applicable Westlake Closing Date, as applicable, Escrow
Holder shall deliver to Seller the Hillside Purchase Price or
applicable Westlake Purchase Price, as applicable, after taking
into account the adjustments and cost allocations in accordance
with Sections 10 and 11 of the Agreement, as amended hereby.
4. PARAGRAPH 5: REPRESENTATIONS AND WARRANTIES.
4.1 All of Seller's representations and
warranties made under Section 5.1 of the Agreement are hereby
reaffirmed and made with respect to the Additional Properties and
the Additional Leases, as the context so requires, all of which
are true as of the date of this Amendment and which shall be true
and correct as of the Closing, the Hillside Closing or the
applicable Westlake Closing, as applicable.
4.2 All of Buyer's representations and warranties
made under Section 5.2 are hereby reaffirmed and are true as of
the date of this Amendment and shall be true and correct as of
the Closing, the Hillside Closing or applicable Westlake Closing,
as applicable.
4.3 Exhibits "L" and "M" attached to the
Agreement are replaced by Exhibits "L" and "M", respectively,
attached to this Amendment.
5. PARAGRAPH 6: SELLER'S OBLIGATIONS REGARDING
ADDITIONAL PROPERTIES. Seller hereby covenants to Buyer, upon
which covenants Buyer has relied and will continue to rely, that
for the period from the date of this Amendment through and
including the Hillside Closing Date or the applicable Westlake
Closing Date, as applicable.
5.1 Further Liens and Encumbrances. Additional
Seller will not subject the Additional Properties to any
additional liens, encumbrances, covenants, conditions, easements,
rights of way or similar matters after the date of this
Amendment, provided that, subject to the terms of the Agreement,
as amended hereby, Additional Seller has the right to encumber
Phase II of Westlake in connection with construction financing to
be obtained by Additional Seller for the development of Phase II
of Westlake Gardens. Seller will not hereafter modify, extend,
renew, replace or otherwise change any of the terms, covenants or
conditions of any of such documents, or enter into any new
agreements affecting the Additional Properties without the prior
written consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion.
5.2 Leases; Other Contracts; Interim Activities.
Additional Seller agrees to (i) cooperate with Buyer in
connection with Additional Seller's leasing efforts at the
Additional Properties, and (ii) use its commercially reasonable
efforts to enter into new leases as soon as reasonably
practicable with respect to the Additional Properties, subject to
the terms of this Section 5.2. Buyer shall have the right to
propose new lease transactions to Additional Seller from and
after the date hereof and Additional Seller agrees to (x)
reasonably consider said proposed transactions, and (y) cooperate
with Buyer in connection with Buyer's leasing efforts at the
Additional Properties. Seller will not hereafter terminate,
modify, extend, renew, replace or otherwise change any of the
Additional Leases or enter into new leases or contracts affecting
the Additional Properties after the date of this Amendment (each,
a "new lease"), except with the prior written consent of Buyer,
which consent (a) will not be unreasonably withheld (with respect
to any such action prior to the expiration of the Additional
Property Inspection Period [defined in Section 9.1.2 below]),
provided, however, that Buyer's withholding of consent shall be
deemed reasonable if any new lease is (I) not written on a Pre-
Approved Lease Form or contains terms and conditions materially
different from those contained in the Pre-Approved Lease Form,
(II) with a tenant who is not creditworthy or financially capable
of performing its obligations under such new lease, as reasonably
determined by Buyer, or (III) with a tenant previously occupying
space at one of the Properties and there is available space at
such Property which meets such tenants needs (provided that this
subparagraph (III) shall not apply with respect to LATCO, an
existing tenant at Pennsfield Plaza), and (b) may be withheld in
Buyer's sole and absolute discretion (with respect to any such
action after the expiration of the applicable Additional Property
Inspection Period). So long as Buyer has previously been
provided with the material terms of any proposed new lease
(pursuant to a lease proposal or letter of intent), and detailed
financial statements and credit references reasonably acceptable
to Buyer, Buyer agrees that its consent shall be deemed given to
any proposed new lease if Buyer fails to deliver its approval or
disapproval of any proposed new lease to Seller on or before the
date which is three (3) business days following Buyer's receipt
of (i) a written request for approval, and (ii) the proposed form
of agreement for such new lease (together with any correspondence
or other information in Additional Seller's possession regarding
such proposed tenancy). Seller shall not apply for or otherwise
deal with any governmental authority regarding the development,
entitlement or subdivision of the applicable Additional Real
Property without the prior written consent of Buyer, which may be
withheld in Buyer's sole and absolute discretion, provided that
Additional Seller shall have the right to apply for all necessary
permits for the development of Phase II of Westlake Gardens so
long as Buyer has previously been made aware of said application
and said application is consistent with Buyer's understanding of
the type, size and character of the development of Phase II of
Westlake Gardens. Notwithstanding the foregoing, Additional
Seller has no obligation to incur tenant improvement expenses in
connection with any new leases.
5.3 Service Contracts. Seller shall not enter
into any Service Contracts with respect to the Additional
Properties without Buyer's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed
(provided that no such consent shall be required with respect to
any Service Contracts which Seller agrees to terminate prior to
the applicable Closing Date).
5.4 Compliance with Laws. Seller shall comply
with all Governmental Regulations with respect to the Additional
Properties.
5.5 Actions Pending. Seller shall notify Buyer
promptly of any lawsuits, condemnation proceedings, rezoning, or
other governmental order or action or any threat thereof known to
Seller which might affect the Additional Properties or any
interest of Buyer whatsoever.
5.6 Intentionally Omitted.
5.7 Cooperation with Representatives. Seller
shall cooperate with Buyer and its accountants, counsel and/or
other representatives in providing information and materials
pertaining to the operation and marketing of the Additional
Properties, including access to the Additional Properties.
Without limiting the generality of the foregoing, from and after
the execution and delivery of this Amendment, Seller shall allow
a representative or representatives of Buyer access to the
Additional Properties for the purpose of (a) monitoring the
construction and operation of the Additional Properties and all
improvements thereon, including attending any and all
construction meetings, (b) meeting with and interviewing tenants
or prospective tenants of the Additional Properties, which
tenants shall be made available for such interviewing process,
and (c) performing such investigations and analyses of the
Additional Properties as Buyer may reasonably require.
5.8 No Removal of Personal Property. Seller will
not remove any of the Additional Personal Property unless the
Additional Personal Property so removed is simultaneously
replaced with substantially similar Additional Personal Property
of similar quality or utilities.
5.9 Obtaining Estoppels and Consents. Seller
shall use its best efforts to obtain all written consents from
third parties required or reasonably requested by Buyer or its
accountants, counsel or other representatives in connection with
this Agreement, including, without limitation, the Tenant
Estoppels.
5.10 Service Contracts. Seller shall deliver
notices of termination to any vendors under the Service Contracts
with respect to the Additional Properties which have been
designated in writing by Buyer to be terminated ("Disapproved
Service Contract List") provided that the Disapproved Service
Contract List is delivered by Buyer to Seller on or before the
date which is thirty (30) days prior to the expiration of the
Construction Closing Conditions Period, and provided further that
any such termination shall be conditioned upon and effective only
as of the Hillside Closing or the applicable Westlake Closing, as
applicable. Seller shall, within two (2) days following Buyer's
delivery of the Disapproved Service Contract List, deliver
termination notices to each of the vendors with respect to the
Service Contracts so designated by Buyer in the Disapproved
Service Contract List. Seller shall be solely responsible for
all costs and expenses associated with the termination of any of
the Service Contracts set forth by Buyer in the Disapproved
Service Contract List.
5.11 Audit Rights. At Buyer's request at any
time from and after the date hereof until the date that is one
(1) year after the Hillside Closing Date or applicable Westlake
Closing Date, as applicable, Seller shall, at Buyer's expense,
provide to Buyer's designated independent auditor access to the
books and records of the applicable Additional Property,
regarding the period for which Buyer is required to have audited
financial statements prepared with respect to the applicable
Additional Property as may be required by the Securities and
Exchange Commission, to the extent that such books, records and
related information are in Seller's possession or control and
relate to the period during which Seller held title to the
applicable Additional Property. Further, Seller agrees to
provide to such auditor a representation letter regarding the
books and records of the Additional Property, in substantially
the form of Exhibit "N" attached to the Agreement, in connection
with the normal course of auditing the applicable Additional
Property in accordance with generally accepted auditing
standards.
5.12 Management and Listing Agreements.
Seller agrees to terminate, at Seller's sole cost and expense,
all property management agreements and brokerage leasing
agreements for the Additional Properties effective as of the
Hillside Closing Date or applicable Westlake Closing Date, as
applicable.
5.13 Change in Condition. Seller shall promptly
notify Buyer of any change in any material condition with respect
to the Additional Properties or any event or circumstance which
makes any representation or warranty of Seller under this
Amendment or the Agreement materially untrue or misleading, or
any covenant of Buyer or Seller under this Amendment or the
Agreement incapable of being performed, it being understood that
Seller's obligation to provide notice to Buyer shall in no way
relieve Seller of any liability for a breach by Seller of any of
its representations, warranties or covenants under this Amendment
or the Agreement.
5.14 Loan Fees. As of the Hillside Closing
Date or applicable Westlake Closing Date, as applicable, Seller
is responsible for the payment of any prepayment or other fees
due and owing in connection with or related to the payoff of any
loans or other financing encumbering the respective Additional
Property.
5.15 Non-Disturbance Agreement. Additional
Seller will use its best efforts to obtain from any lenders
encumbering the respective Additional Properties a non-
disturbance agreement reasonably satisfactory to Buyer pursuant
to which, in the event any such lender acquires title to an
Additional Property, such lender agrees to remain bound by the
terms of the Agreement, as amended hereby, as it relates to the
Additional Property(ies) securing the loan(s) made by such lender
to the same extent as if such lender had entered into the
Agreement, as amended, with Buyer.
6. PARAGRAPH 7: TITLE TO REAL PROPERTY. The matters
pertaining to title to the Real Property in Section 7 of the
Agreement shall apply to the matters pertaining to title to each
Additional Property, it being the intent of the parties that
Buyer shall obtain separate title insurance policies for the
Hillside Corporate Center, Phase I of Westlake Gardens and Phase
II of Westlake Gardens in the forms of the Hillside Title Policy
and Westlake Title Policies.
7. PARAGRAPH 8: CONDITIONS PRECEDENT/CONCURRENT TO
CLOSING; CLOSING DATE.
7.1 Section 1. Except as modified or amended
below, all "Buyer's Conditions" set forth in Section 8.1 of the
Agreement shall apply to the closings of the Additional
Properties, and all defined terms in Section 8.1 are hereby
modified or qualified to the extent necessary to carry out the
foregoing intention with respect to the closings of each
Additional Property (i.e., all references in the Agreement to the
"Due Diligence Period" shall instead refer to the "Additional
Property Inspection Period"). In addition, the performance by
Additional Seller of all of its obligations under Section 8 below
shall constitute an additional condition to Buyer's obligations
under the Agreement, as amended.
7.2 Section 8.1.4. The following subparagraphs
are hereby added to the Agreement as new Subsections 8.1.4.11 and
0.0.0.00:
"8.1.4.11 Originals of all Project
Documents.
8.1.4.12 A non-disturbance agreement
from each of the lenders on the respective
Additional Properties in accordance with the
terms of Section 5.15 of the Amendment."
8. CONSTRUCTION OF IMPROVEMENTS ON ADDITIONAL
PROPERTIES. As of the date of this Amendment, Seller has
commenced with the grading necessary for the construction of a
2-story office building at Hillside Corporate Center which shall
contain approximately 60,000 gross square feet and related
facilities (the "Hillside Project") and has commenced with the
construction of one of two separate 3-story office buildings at
Westlake Gardens which shall contain an aggregate of
approximately 99,278 gross square feet and related facilities
(the "Westlake Project"). The Hillside Project and the Westlake
Project shall collectively be referred to herein as the
"Project". Seller covenants and agrees to construct the
applicable Project in accordance with the Approved Plans, subject
to such modifications, alterations or changes that do not
materially affect the value, condition, appearance, aesthetics or
desirability of the applicable Project.
8.1 Seller's Deliveries. In connection with the
construction of the Project, Seller agrees to deliver all of the
following to Buyer for Buyer's review and approval with five (5)
days after the execution of this Amendment by Seller and Buyer:
8.1.1 A detailed construction schedule
for the construction of the Project including any and all tenant
improvements to be completed by Seller on or before the Hillside
Closing Date or applicable Westlake Closing Date, as applicable,
which schedule shall contain the major components of the work
required for the Project, and the time required for each
component of the work, including the scheduled or actual
commencement date of construction of the Project with respect to
each Additional Property, milestone dates and the estimated date
of completion of construction of the Project for each Additional
Property ("Construction Schedule");
8.1.2 An itemized statement of all
estimated construction costs of the Project, including, without
limitation, (i) the total cost to construct all of the
improvements, complete all of the work and obtain or cause to be
obtained all governmental approvals in connection with the
Project therewith, and (ii) the amounts that will be payable by
Seller for (A) contractor, architect, engineering, surveyor,
legal and financial fees associated with the construction of the
Project, (B) permit fees, and (C) all other costs and expenses of
every type whatsoever (whether hard costs or soft costs) in
constructing the Project and completing all work associated with
providing a tenantable Project to Buyer ("Project Budget");
8.1.3 All Plans, Project Documents, the
names and addresses of all contractors (and said contractor's
subcontractors), architects, engineers, consultants and
materialmen engaged or to be engaged by Seller for the
construction of the Project and copies (certified by Additional
Seller to be true and correct) of all Project Documents in effect
as of the date of this Amendment.
8.2 Construction of Improvements; Buyer's
Approval Rights. Additional Seller covenants and agrees to
perform all work in connection with the Project with due
diligence, in a workmanlike manner, and in compliance with the
Approved Plans and all Governmental Regulations. In addition,
all work done in connection with the Project shall be done
according to the standards and upon the terms and conditions set
forth below, except to the extent otherwise provided in the
Approved Plans:
8.2.1 Additional Seller shall proceed
with its work on the Project expeditiously, continuously and
efficiently, and shall use its best efforts to (i) complete the
same, and (ii) obtain certificates of occupancy (or their
equivalent) therefor as soon as possible. Additional Seller
agrees to hold daily construction meetings at the applicable
Additional Property(ies), and to allow Buyer to have a
representative present for all such meetings.
8.2.2 Additional Seller shall have no
authority to materially deviate from the Approved Plans in the
performance and construction of the Project, except as authorized
by Buyer in writing. For the purposes of the foregoing, a
material deviation shall be any deviation from the Approved Plans
which materially affects the value, condition, appearance,
aesthetics or desirability of the Project. Additional Seller
shall furnish to Buyer "as-built" drawings for all work in
connection with the Project within sixty (60) days after
completion and issuance of a certificate of occupancy for each
Project.
8.2.3 In the event that Additional Seller
is not proceeding with the work or other items in connection with
the Project in material compliance with the Approved Plans or
within the time frames set forth in the Construction Schedule,
then, Buyer may give notice thereof to Additional Seller
specifying the disapproved variation from the Approved Plans or
the items which have not been timely performed under the
Construction Schedule ("Noncompliance Notice"). If the variation
is not corrected or the work identified in the Noncompliance
Notice is not completed in accordance with the Approved Plans
within forty-five (45) days after Buyer's delivery of the
Noncompliance Notice (or if the variation or the work identified
in the Noncompliance Notice is not reasonably susceptible of
being cured or corrected, as applicable, within such 45 day
period, and Seller has commenced to cure or correct the same
within such 45 day period and is proceeding toward the completion
of such cure or correction with all due diligence and speed, then
the cure period shall be extended for a reasonable period of
time [not to exceed 90 days following Buyer's delivery of the
Noncompliance Notice]), Buyer shall have the right, but not the
obligation, and without limiting any other right or remedies of
Buyer under this Amendment or the Agreement to either terminate
the Agreement (and this Amendment) with respect to the Project
for which the Noncompliance Notice is given or bring an action
for damages or specific performance against Seller, each in
accordance with and pursuant to Sections 14.1(i) and 14.1(ii) of
the Agreement.
8.2.4 Additional Seller shall provide
Buyer with copies of Additional Seller's draw requests for each
Additional Property within five (5) days following Additional
Seller's delivery of such draw request to the applicable lender.
8.3 Buyer's Approval. Additional Seller shall
submit to Buyer, for Buyer's prior written approval, which shall
not be unreasonably withheld, conditioned or delayed, (i) all
change orders, changes, deviations, amendments or modifications
to the Project Budget, Construction Schedule, Approved Plans and
Project Documents which are material to the Project or which
would otherwise affect the value, condition, appearance,
aesthetics or desirability of the Project, (collectively, the
"Material Change Orders"), (ii) any new Project Documents entered
into after the date of this Amendment, (iii) any and all
contracts, documents or agreements which would burden or encumber
the Additional Properties after the Hillside Closing Date or
applicable Westlake Closing Date, respectively, and (iv) all
finish work with respect to the common areas and other portions
of the applicable Additional Property(ies). The Approved Plans
shall also be revised, and the work shall be changed, all
Seller's sole cost and expense, to incorporate any work required
in the applicable Project by any local governmental field
inspector. Notwithstanding the foregoing, if Buyer has not
notified Additional Seller of Buyer's approval or disapproval of
any Material Change Orders within three (3) business days
following Buyer's receipt of a written request for approval from
Additional Seller, Buyer's approval shall be deemed given.
8.4 Correction of Material Defects. As of the
applicable Closing Date, Additional Seller shall assign to Buyer
all subcontractors', suppliers' and manufacturers' warranties and
guaranties.
8.5 Construction at Phase II of Westlake Gardens.
Additional Seller agrees to commence construction of Phase II of
Xxxxxxxx Xxxxxxx (0000 Townsgate) on a date mutually agreed upon
by and between Buyer and Additional Seller. If Buyer and
Additional Seller are unable to agree upon a date for the
commencement of construction of Phase II of Westlake Gardens,
Additional Seller agrees to commence said construction on the
date selected by Buyer, provided that (i) Buyer notifies
Additional Seller of such date at least sixty (60) days prior to
the selected date, and (ii) in no event shall the date selected
by Buyer be later than the date which is eighteen (18) months
following the closing of the sale of Phase I of Westlake Gardens
to Buyer (the "Deadline Date"). If Buyer and Additional Seller
fail to agree upon a date for the commencement of construction of
Phase II of Westlake Gardens and Buyer's selected date is later
than the Deadline Date, then Buyer and Additional Seller shall
each have the right to terminate the Agreement, as amended
hereby, as it relates only to Phase II of Westlake Gardens and
upon any such termination neither party shall have any further
obligations or liabilities under the Agreement, as amended, with
respect thereto.
9. Additional Property Due Diligence. The following
shall apply to the Additional Property Inspection Period with
respect to the Additional Properties.
9.1 Matters To Be Reviewed. Buyer's obligation
to close the purchase of the Additional Properties and to pay the
Hillside Purchase Price and/or applicable Westlake Purchase
Price, as applicable, shall be subject to and conditioned upon
(i) Buyer's approval of any new leases, and (ii) Buyer's complete
satisfaction with the construction of the applicable Project in
accordance with Paragraph 8 of this Amendment and all of the
following items, each of which Buyer shall have the right to
review and approve or disapprove in Buyer's sole and absolute
discretion.
9.1.1 Title. Buyer will have until 6:00
p.m. (California time) on the later of (i) the date which is
fifteen (15) days following the mutual execution and delivery of
this Amendment, and (ii) the date which is thirty (30) days
following Buyers' receipt of a current preliminary title report
issued by the Title Company relating to the Additional Properties
(and an ALTA survey and all underlying documents relating
thereto) (the "Additional Property Title Review Period") to
examine and approve all matters of title and to notify Seller in
writing of any defects in title, as determined by Seller in its
sole and absolute discretion. If Buyer fails to notify Seller in
writing of any objections to title prior to the expiration of the
Additional Property Title Review Period, title to the applicable
Additional Property shall be conclusively deemed to be approved
by Buyer. If Buyer timely notifies Seller in writing of specific
objections to title prior to the expiration of the Additional
Property Title Review Period, Seller will have two (2) days after
receipt of Buyer's notification of any objection in which to
advise Buyer that:
(a) Seller will remove any objection
able exceptions on or before the Hillside Closing Date or
applicable Westlake Closing Date, as applicable; or
(b) Seller will not cause the
exceptions to be removed.
If Seller advises Buyer that it will not
cause the exceptions to be removed, Buyer will have three (3)
days from its receipt of Seller's notice to elect to:
(i) proceed with the purchase and
acquire the applicable Additional Property subject to such
exceptions, but conditioned upon Seller fulfilling each and every
one of its other obligations hereunder and all of the other
conditions precedent in favor of Buyer having been duly and
timely satisfied; or
(ii) terminate the Agreement (with
respect to the applicable Additional Property only) by written
notice to Seller, in which case all rights and obligations of the
parties with respect thereto shall terminate and be of no further
force or effect, except any rights and obligations which are
expressly stated to survive the termination of the Agreement.
If Buyer does not give Seller written notice
of its election within said three (3) day period, Buyer will be
conclusively deemed to have approved title to the applicable
Additional Property.
If Seller commits to remove any objection to
title and fails to do so by the Hillside Closing Date or
applicable Westlake Closing Date, as applicable, Seller will be
in material default under this Agreement and Buyer may, at
Buyer's election, terminate this Agreement and pursue its reme
dies as set forth in Section 14 of the Agreement.
Notwithstanding anything to the contrary in this
Section 9.1.1, if a new or supplemental title exception or matter
is discovered or identified after the end of the Additional
Property Title Review Period, as it relates to Buyer's review and
approval of such new or supplemental matter, the Additional
Property Title Review Period shall be extended for a period of
five (5) business days following the date of Buyer's receipt of
the new or supplemental title exception or matter and all
underlying documents relating thereto.
9.1.2 Inspections and Studies. Buyer
will have until 6:00 p.m. (California time) on the date which is
the later of (i) fifteen (15) days following the mutual execution
and delivery of this Amendment, and (ii) thirty (30) days
following Buyer's receipt of the Due Diligence Materials (defined
below) (the "Additional Property Inspection Period") to conduct
(as applicable) and review and approve any and all inspections,
investigations, tests, studies (including feasibility studies and
other economic models) and appraisals as Buyer may have elected
to make or obtain with respect to the applicable Additional
Property and/or the operation and financial condition of the
applicable Additional Property, including, without limitation,
calculations of floor areas, financial analysis of the books and
records, environmental inspections and studies, structural and
mechanical investigations, appraisals, and analyses of the
applicable Additional Property's compliance with Governmental
Regulations. Buyer and Buyer's representatives, agents and
designees will have the right to enter the Additional Properties
at all reasonable times, upon reasonable oral notice to Seller to
perform all such investigations of the Additional Properties and
to conduct interviews with (x) tenants of the Additional
Properties, (y) construction management personnel of Seller, and
(z) such other parties as Buyer may deem appropriate in its sole
discretion (provided that no such interview shall occur unless
Buyer has notified Seller of its interest in conducting any such
interview and provided Seller or a Seller representative with an
opportunity to be present for any such interview). Seller will
cooperate with Buyer and its representatives in that regard.
Seller shall deliver to Buyer at Seller's sole cost and expense,
within five (5) days (unless indicated otherwise below) following
the date this Amendment is executed and delivered by Buyer and
Seller, all information in Seller's possession or control which
is reasonably related to the Additional Properties, plus the
following items (collectively, the "Due Diligence Materials"):
(a) To the extent in Seller's
possession, an ALTA "as-built" survey of the Additional Real
Properties prepared by a licensed surveyor;
(b) Any and all Additional Leases and
all modifications or amendments and guaranties relating thereto;
all tenant correspondence and all current financial statements of
tenants to the extent the same are in Seller's possession or
control; all loan documents evidencing, relating to and/or
securing the loans made by Preferred Bank and China Trust Bank
and any other loans secured by one or more of the Additional
Properties; all contracts (including the Service Contracts),
agreements and management agreements (including, without
limitation, parking, elevator, HVAC and landscaping maintenance
contracts); all "operating statements" for the years during which
Seller owned the respective Additional Property(ies); a balance
sheet dated no earlier than December 31, 1996; a year-to-date
income statement for the calendar year 1997, each such statement
to be certified by Seller as being true, correct and complete
reports prepared by Seller in the ordinary course of business;
all "Base Year" information applicable to the Additional Leases;
a cumulative general ledger for year-to-date 1997, reports
(including, to the extent in Seller's possession, all
environmental reports, soils reports, surveys and plans and
specifications affecting or relating to the Additional
Properties, and all modifications or amendments thereto); to the
extent in Seller's possession, all Records and Plans, Warranties,
Licenses and Permits and governmental approvals obtained or held
by Seller and relating to the development, construction,
operation, use or occupancy of any of the Additional Properties.
(c) A current rent roll (to be updated
as of the expiration of the Additional Property Inspection Period
and as of the Hillside Closing and applicable Westlake Closing,
as applicable), prepared and certified by Seller as being true,
correct and complete on a form reasonably acceptable to Buyer
(the "Rent Roll").
(d) Reports of insurance carriers
insuring the Additional Properties during the period of Seller's
ownership of the Additional Properties and each portion thereof
respecting the claims history of the Additional Properties;
insurance policies or certificates of Seller and tenants
respecting the Additional Properties; to the extent in Seller's
possession, all correspondence, reports, and notices pertaining
to the existence of toxic or Hazardous Materials and/or waste at
the Additional Properties; all permits, reports, certificates and
notices pertaining to the existence, removal and/or decommission
of any and all storage tanks located on, at or underneath the
Additional Properties; to the extent in Seller's possession, all
certificates of occupancy; to the extent in Seller's possession,
all maps; to the extent in Seller's possession, all brokerage and
commission agreements; all agreements entered by Seller and
Seller's affiliates affecting the Additional Properties and/or
income and cash flow to be received from the Additional
Properties that will survive the Hillside Closing or applicable
Westlake Closing, as applicable; tax bills and assessments for
the current year and the two (2) year period immediately
preceding the current year; copies of the most recently available
utility bills and similar records respecting the Additional
Properties; any and all information in Seller's possession
respecting the creditworthiness of the tenants under the
Additional Leases at the Additional Properties; to the extent in
Seller's possession, all written reports respecting incidents of
theft, burglary or crimes attempted or committed at, on or to the
Additional Properties or other such incidents which are the
subject of litigation; and such other information reasonably
requested by Buyer of Seller in writing during the Additional
Property Inspection Period.
9.1.3 Indemnity. Buyer agrees to
indemnify and hold Seller harmless from any and all injuries,
losses, liens, claims, judgments, obligations, liabilities,
costs, expenses or damages (including reasonable attorneys' fees
and court costs) sustained by Seller to the extent same results
from or arises out of any inspections by Buyer or any of its
representatives pursuant to Section 9.1.2 above.
9.2 Notice of Objections.
9.2.1 If Buyer fails to notify Seller in
writing of any objections to the items set forth in Section 9.1.2
on or before the expiration of the Additional Property Inspection
Period with respect to the applicable Additional Property, Buyer
shall be conclusively deemed to have approved such items.
9.2.2 If Buyer notifies Seller in writing
of any objections to the condition of one or both of the
Additional Properties or any other matters relating to one or
both of the Additional Properties and/or the operation or
financial condition of one or both of the Additional Properties
as set forth in Section 9.1.2 on or before the expiration of the
Additional Property Inspection Period, the parties will have
three (3) business days to agree upon a resolution of the
objection(s). If the parties cannot agree within the three (3)
business day period, then Buyer may terminate the Agreement (with
respect to the applicable Additional Property only) by delivering
written notice to Additional Seller (which notice must be given
within two (2) business days after the expiration of the three
(3) business day period), in which event all rights and
obligations of the parties existing under the Agreement (with
respect to the applicable Additional Property only) shall
terminate and be of no further force or effect, except any rights
and obligations which are expressly stated to survive the
termination of this Agreement. The Hillside Closing Date and/or
applicable Westlake Closing Date shall be appropriately extended
by the time periods set forth herein for the parties to take the
actions described above.
10 PARAGRAPH 10; PRORATIONS. Except as set forth
below, the prorations set forth in Section 10 of the Agreement
shall apply to the closings of the Additional Properties, except
that defined terms used therein shall be modified to the extent
necessary to carry out the foregoing intention with respect to
the closings of each of the Additional Properties.
11. Miscellaneous.
11.1 No Further Modification. Except as
expressly amended hereby, the Agreement shall remain unchanged
and continue in full force and effect.
11.2 Counterparts. This Amendment 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.
11.3 Memorandum of Amendment. Concurrently
with the mutual execution and delivery of this Amendment, Seller
and Buyer shall execute (with notary attestation) and deliver to
each other a Memorandum of Amendment in the form attached hereto
as Exhibit "P". Buyer shall have the right to record the
Memorandum of Amendment in the Official Records of the
county(ies) in which Hillside Corporate Center and Westlake
Gardens are located.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Amendment as of the date first set forth above.
"SELLER"
/s/ Xxxxx Xxxxxx
XXXXX XXXXXX, Co-Trustee of the
Xxxxxx Family Trust
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX, Co-Trustee of the
Xxxxxx Family Trust
CONEJO BUSINESS PARK, LLC, a
California limited liability
company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
MARIN CORPORATE CENTER, LLC, a
California limited liability
company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
EVERGREEN PLAZA, LLC, a California
limited liability company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
HILLSIDE CORPORATE CENTER, LLC, a
California limited liability
company
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
[Signatures continued from Page 21]
WESTLAKE GARDENS, LLC, a California
limited liability company
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: General Member
"BUYER"
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC., a Maryland
corporation, its general partner
By:/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Its: President and COO
