FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is entered into as
of August 29, 1997, by and between FRONTIER II PROPERTIES LIMITED
PARTNERSHIP, a Texas limited partnership (the "Seller"), and
ARDEN REALTY LIMITED PARTNERSHIP, a Maryland limited partnership
(the "Buyer").
Recitals:
A. Buyer and Seller entered into that certain Real
Property Purchase and Sale Agreement and Escrow Instructions,
dated as of August 15, 1997 (the "Sale Agreement"), by which
Seller agreed to sell and Buyer agreed to buy certain real
property located at 0000 Xxxxx Xxxxxx Xxxxx, in the City of
Diamond Bar, County of Los Angeles, State of California, and more
particularly described therein (the "Property").
B. Buyer and Seller now wish to amend the Sale Agreement,
on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the
parties agree as follows:
1. Capitalized Terms. All capitalized terms that are used
but not defined in this Amendment shall have the meanings given
to them in the Sale Agreement.
2. Purchase Price. The Purchase Price is hereby reduced
by Ten Thousand Dollars ($10,000.00) to Ten Million Seven Hundred
Ninety Thousand Dollars ($10,790,000.00).
3. Contingencies. Buyer hereby agrees that all of its
contingencies to Closing have either been satisfied or are hereby
waived, except only the following:
3.1 Buyer shall have received, on or before the
Closing Date, an estoppel certificate, in the form specified in
Section 3.3.3 of the Sale Agreement, from the University of
Phoenix;
3.2. Seller shall have duly and timely performed each
and every covenant to be performed by Seller under the Sale
Agreement and Seller's representations and warranties set forth
in the Sale Agreement shall be true and correct as of the Closing
in all material respects;
3.3 Seller shall have duly and timely delivered or
made available to Buyer all of the items described in Section
5.1.1. of this Agreement; and
3.4 At the Closing, there will be no material adverse
changes in the physical or financial condition of the Property
which occurred after the Decision Date.
4. Escrow Holdback. Other than a carpet allowance of
$1.50 psf totaling $4,474.50 (the "Carpet Credit") owing to the
State of California during the last five (5) years of their
lease, Section 5.2.4 of the Sale Agreement is hereby revised to
provide that, instead of requiring a credit against the Purchase
Price for any unpaid tenant improvement expenses at Closing, an
escrow holdback account (the "Escrow Account") shall be
established with the Escrow Holder. Escrow Holder shall hold
$112,441.39 in the Escrow Account in accordance with the
following:
4.1 Tenant Improvement Holdback. Of that amount,
$110,384.74 (the "Tenant Improvement Holdback") shall be for
payment of certain unpaid tenant improvement expenses for
Kleinfelder (a tenant of the Property) of which $105,384.74 is
the amount Seller estimates to be the remaining unpaid tenant
improvement expenses for Kleinfelder, and Five Thousand ($5,000)
Dollars is to be used as a reserve to cover any cost overruns;
provided Seller shall still be solely responsible for all tenant
improvements related to Kleinfelder. Escrow Holder shall hold
such funds and shall only release them upon presentation by Buyer
of invoices for work that has been completed, together with
partial or final lien releases (as appropriate), and Escrow
Holder shall not release the final 10% of such funds until Buyer
presents a final invoice, certifying that all work in connection
therewith has been completed, together with a final lien release.
If upon final payment of all invoices, any of the Tenant
Improvement Holdback remains in escrow , Escrow Holder shall
deliver the remaining amount to Seller. Buyer and Seller agree
to sign such further instructions and take such further actions
as the Escrow Holder may reasonably require in connection
therewith. Seller hereby represents and warrants to Buyer that,
other than the foregoing tenant improvement expense, unpaid
tenant improvement expense relating to the University of Phoenix
as described in Section 5.2.4 of the Sale Agreement, and the
Carpet Credit, as of Closing, there are no other unpaid tenant
improvement expenses for the Property.
4.2 Leasing Commission Holdback. The remaining
$2,056.65 shall be for payment of certain leasing commissions to
be paid on the date that a new tenant, Sayed Consulting Inc.,
occupies premises in the Property and its lease term commences.
Upon presentation by Buyer of a letter certifying that such
tenant has occupied the premises and its lease term has
commenced, Escrow Holder shall pay one-half of such funds to
Xxxxxxxx Xxxx Company and one-half to American Properties Corp.
Buyer and Seller agree to sign such further instructions and take
such further actions as the Escrow Holder may reasonably require
in connection therewith. Seller hereby represents and warrants
to Buyer that, other than the foregoing commission as of Closing
there are no other unpaid leasing commissions for the Property.
5. With respect to paragraph 4.1(z), the new checks
reference therein will not be received until after Closing.
6. Ratification of Sale Agreement. Except as specifically
amended by this Amendment, Buyer and Seller hereby agree that the
Sale Agreement remains in full force and effect without
modification.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
"SELLER": FRONTIER II PROPERTIES LIMITED
PARTNERSHIP, a Texas limited partnership
By: Frontier Holdings, L.L.C., a Texas limited
liability company, its General Partner
By: Frontier Equity Partners II, Ltd., a Texas
liability partnership, a Member
By:TCV #2 GP Holdings Limited
Partnership, a Texas limited
partnership, its General
Partner
By:Sarofim Realty Advisors
Co., a Texas corporation,
as Agent and Attorney-In-
Fact
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
"BUYER": ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By:ARDEN REALTY, INC.,
a Maryland corporation, its General Partner
By: /s/ X. X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: CEO
FIDELITY NATIONAL TITLE COMPANY, THE ESCROW HOLDER IN THE SALE
DESCRIBED IN THE FOREGOING AMENDMENT, HEREBY ACKNOWLEDGES THAT IT
HAS READ THE FOREGOING AMENDMENT AND AGREES TO COMPLY STRICTLY
WITH THE TERMS AND CONDITIONS OF SECTIONS 4.1 AND 4.2 THEREOF.
DATED AS OF SEPTEMBER ___, 1997
FIDELITY NATIONAL TITLE COMPANY
By:
Name:
Title:
