AMENDMENT TO PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This Amendment to Purchase Agreement And Escrow Instructions
(the "Amendment") is made as of March 11, 1998 by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇ PROPERTIES, LIMITED PARTNERSHIP, a Delaware limited
partnership ("Seller"), and ARDEN REALTY, INC., a Maryland
corporation ("Buyer").
RECITALS
1. Buyer and Seller have entered into that certain
Purchase Agreement And Escrow Instructions dated as of January
30, 1998 regarding the purchase by Buyer of certain real property
located within the area commonly referred to as ▇▇▇▇▇▇ ▇▇▇▇▇▇
Center (the "Center") and described in said Purchase Agreement
And Escrow Instructions as the ▇▇▇▇▇▇ Parcels, the Hotel Parcels
and the Remainder Parcels (the "Purchase Agreement").
2. The parties desire to amend the Purchase Agreement as
hereinafter provided.
NOW THEREFORE, in consideration of the foregoing recitals
and other good and valuable consideration the receipt of which is
hereby acknowledged, Buyer and Seller hereby agree to amend the
Purchase Agreement as follows:
1. Definitions. All capitalized terms in this Amendment
shall have the meanings set forth herein or in the Purchase
Agreement, and all references to "Sections" shall be to Sections
of the Purchase Agreement.
2. Amendment to Section 1. The last two sentences of
Section 1 of the Purchase Agreement are amended and restated in
their entirety as follows:
"The approximately 3.31 acres depicted and/or described
on Exhibit A as ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ and
▇▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ and as future
sites for hotels are hereinafter referred to
as the "Hotel Parcels". The balance of the
Property, approximately 25.28 acres described
on Exhibit A as ▇▇▇▇ ▇, ▇, ▇, ▇, ▇, ▇▇, ▇▇,
12, 13, 14, 17 (partial), 18, 19, 20, 21, 22
and 24 of Tract No. 51419 and ▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇▇, is hereinafter referred to
as the Remainder Parcels."
In addition, Exhibit A attached hereto replaces and
supersedes Exhibit A to the Purchase Agreement.
3. Clarification Regarding Seller's Hotel Overage.
Notwithstanding anything in Section 4(b) to the contrary, only
Seller's right to receive the $4,550,000 purchase price for the
Hotel Parcels shall be evidenced by the Note and secured by the
First Deed of Trust, the form and substance of which have been
agreed to by Buyer and Seller and are attached hereto as Exhibits
B and C. Seller's receipt of the guaranty referred to in said
Section 4(b) shall not be a condition to the release of the First
Deed of Trust. Instead, the obligation to pay to Seller Seller's
Hotel Overage if and when received by Buyer shall remain an
unsecured obligation of Arden Realty, Inc. ("Arden")
notwithstanding any assignment by Arden of its rights or
interests under the Purchase Agreement pursuant to Section 10,
which obligation shall survive the Closing. Without limiting the
foregoing, Seller hereby waives any statutory or common law
vendor's lien securing Seller's Hotel Overage.
4. Indemnity Agreement. The Indemnity Agreement referred
to in Section 5(d) shall be in form and substance attached hereto
as Exhibit D.
5. Deletion of Reference to Prudential Agreement. The
reference to the Prudential Agreement is hereby deleted from
Section 6(a)(5) of the Purchase Agreement.
6. Buyer's Approval of Conditions Set Forth in Section
6(a) and 6(b). Buyer hereby approves the conditions set forth in
Section 6(a) and 6(b); provided, however, it shall be a condition
to Buyer's and Seller's obligation to complete the purchase and
sale of the Property (which condition may be waived by Buyer, and
if so waived, shall also be waived by Seller) that at Closing
Buyer receives a title policy in the form attached to that
certain letter from Buyer's counsel of even date herewith. As a
result of such approval, and in accordance with the provisions of
Section 4(i), the Deposit is now non-refundable, subject to the
satisfaction of the conditions set forth in the Purchase
Agreement, as amended hereby, and shall be credited towards the
Purchase Price.
7. Cost to Build Remaining Infrastructure. With respect
to the work applicable to the construction of Center Drive under
the Development Agreement (the "Infrastructure"), as such scope
was reviewed and approved by Buyer during the Contingency Period,
Seller shall reimburse Buyer for one-half (1/2) of the amount (up
to a maximum of $1 million) by which the actual costs of the
Infrastructure incurred by Buyer exceed Eight Million Three
Hundred Thousand Dollars ($8,300,000) (the "Estimated
Infrastructure Cost"); provided, however, increased costs due
solely to material changes made by Buyer to the scope of work for
such Infrastructure shall be borne by Buyer. These costs shall
include, without limitation, all costs of design and construction
and of securing all necessary governmental approvals and permits.
Seller shall reimburse Buyer for Seller's share of such actual
costs as and when requested by Buyer provided that Seller shall
have received prior to or concurrently with such request for
reimbursement documentation of such costs from Buyer reasonably
satisfactory to Seller. However, if the actual costs of the
Infrastructure are less than the Estimated Infrastructure Cost,
Buyer shall promptly pay to Seller one-half (1/2) of the amount
(up to a maximum of $1 million) by which such actual costs are
less than the Estimated Infrastructure Cost. For example, and
without limiting the generality of the foregoing, if the actual
costs of the Infrastructure are $9 million, Seller shall pay to
Buyer $350,000, and if the actual costs of the Infrastructure are
$7.8 million, Buyer shall pay to Seller $250,000. The obligation
of Buyer in this regard shall remain the obligation of Arden
after the Closing, notwithstanding any assignment by Arden of its
rights or interests under the Purchase Agreement pursuant to
Section 10. The obligations of Buyer and Seller under this
paragraph 7 shall terminate and be of no further force and effect
if not incurred on or before March 31, 2000.
8. Marketing Signage. Prior to the Closing, Seller shall
allow Buyer to place upon the Property at a location reasonably
approved by Seller and Buyer which shall indicate that interested
parties should call ▇▇▇▇ ▇▇▇▇▇▇▇ at the telephone number of
Seller's office located in the office building at 6701 Center
Drive West.
9. Cooperation. Without limitation on the terms and
conditions set forth in the Purchase Agreement, Seller shall
deliver copies of all notices and material correspondence given
or received by Seller from and after the date hereof and shall
not give any consents or approvals with respect to the Property
or enter into any new leases or contracts (or modify any existing
lease or contract) without Buyer's consent, which shall not be
unreasonably withheld. Seller and Buyer shall reasonably
cooperate to assure an orderly transition at Closing.
10. Assignment. Notwithstanding the provisions of the
Purchase Agreement, Buyer shall have the right to assign its
rights or interests in the Purchase Agreement without Seller's
consent.
11. Contingency Date. The Contingency Date under the
Purchase Agreement shall be March 12, 1998.
12. Counterparts. This Agreement may be executed in one or
more counterparts and may be executed by facsimile.
13. Miscellaneous.
A. Seller acknowledges that all project models and
the like will be conveyed to Buyer as part of the Personal
Property covered by the ▇▇▇▇ of Sale.
B. Seller acknowledges that all deposits either
delivered to Seller or held in escrow with respect to the ▇▇▇▇▇▇
Agreement will be credited or assigned to Buyer at Closing.
C. Seller acknowledges that Buyer may utilize the
"Licensed Marks" (as defined in the Trademark Agreement) in a
manner consistent with the current uses without obtaining
Seller's consent. In all events, Buyer's rights to use the
Licensed Marks shall include such rights as may be necessary to
satisfy existing agreements (such as the ▇▇▇▇▇▇ Agreement) being
assumed by Buyer. The Trademark Agreement shall be revised prior
to Closing to reflect the foregoing.
D. Seller acknowledges that if requested by Buyer,
Seller will provide separate assignments (in recordable form) of
its interests as Declarant or the like under existing CC&RS,
reciprocal easement agreements and similar agreements respecting
the Property.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written and such date shall be deemed
the date of this Amendment.
SELLER:
▇▇▇▇▇▇ ▇▇▇▇▇▇ PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
(formerly known as Summa Corporation),
a Delaware corporation, its sole general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. Inarchos
Its: Senior Vice President, General Counsel
BUYER:
ARDEN REALTY, INC., a Maryland corporation
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President and COO
ESCROW HOLDER:
Acknowledged and accepted this day of March, 1998.
▇▇▇▇▇▇▇ TITLE COMPANY
By: ▇▇▇▇ ▇▇▇▇▇
Its: Senior Escrow Officer