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
XXXXXX XXXXXX 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
consisting of approximately .53 acres located within the area
commonly referred to as Xxxxxx Xxxxxx Center (the "Center") and
described in said Purchase Agreement And Escrow Instructions as
the location of the Spectrum Club (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 4. The first paragraph of Section
4 is amended and restated in its entirety as follows:
"The purchase price for the Property, the Personal
Property and the Intangible Property (the
"Purchase Price") shall be Ten Million
Dollars ($10,000,000)."
3. Exercise of Right of First Offer Under Ground Lease.
Buyer and Seller acknowledge that the Club Owner has exercised
its right of first offer under Section 52 of the Ground Lease to
acquire the Property. Buyer shall acquire the Property subject
to the Club Owner's exercise of such right. In that connection,
Seller shall cooperate with Buyer in endeavoring to have Seller
enter into, prior to the Closing, a purchase and sale agreement
with the Club Owner covering the Club Owner's purchase of the
Property for the same price as the Purchase Price (the "Club
Purchase Agreement"); provided, however, that neither agreement
by the Club Owner to the Club Purchase Agreement nor the
execution thereof by the Club Owner shall be a condition to
Buyer's obligations under the Purchase Agreement. Any Club
Purchase Agreement (or Parking Easement Agreement in connection
therewith) shall in all events be
subject to Buyer's approval. Buyer shall acquire the
Property subject to the terms and conditions of the Club Purchase
Agreement if such Agreement is executed by the Club Owner prior
to the Closing.
4. Seller's Indemnity Regarding Club Owner. Seller hereby
agrees to indemnify and defend (with counsel reasonably
acceptable to Buyer), and hold Buyer, its successors and assigns,
harmless from and against and to reimburse Buyer with respect to
any loss, cost, expense or liability incurred by Buyer in
connection with any claim that Buyer's offer to purchase the
Property was not a bona fide, good faith offer arrived at
independently by Buyer and at arms length with Seller or
otherwise does not comply with or violates the applicable
provisions of the Ground Lease, and any claim relating to any
other matter raised by Club Owner's Counsel in his letter to
Seller dated February 17, 1998, a copy of which is attached
hereto as Exhibit A (any and all such claims being referred to
hereinafter collectively as "Claims"). Seller agrees that if any
Claims are brought, Seller will not unreasonably withhold its
consent to any settlement proposal which may be approved by Club
Owner and Buyer; provided, however, that the $2 million limit on
Seller's indemnification obligation hereunder, as described
below, shall not be affected by any such withholding of consent
by Seller, whether reasonable or unreasonable. Seller's
obligation to pay for the costs of the defense of any such Claims
by Club Owner shall not exceed $150,000 plus one-half (1/2) of
such costs of defense in excess of $150,000 (with the other 1/2
being paid by Buyer) unless Seller rejects any good faith, bona
fide settlement offer acceptable to Buyer and Club Owner in which
case Seller shall be responsible for all costs and expenses
incurred in connection with the defense of such Claims. However,
under no circumstances shall Seller's indemnification obligation,
as described above, exceed $2 million, exclusive of the costs of
defending such Claims. Such indemnification obligation shall be
secured by $2 million of the Purchase Price which shall remain in
Escrow after the Closing (the "Withheld Purchase Price") pursuant
to escrow instructions to be reasonably agreed upon by Seller,
Buyer and Escrow Holder. The Withheld Purchase Price shall be
retained in Escrow until the earlier to occur of (i) the Club
Owner's purchase of the Property pursuant to Club Purchase
Agreement or any other agreement with Buyer (with appropriate
releases of any Claims satisfactory to Buyer), (ii) Buyer's
receipt from Club Owner of a release of the Claims in form and
substance satisfactory to Buyer, or (iii) March 31, 1999.
5. Buyer's Approval of Conditions Set Forth in Section
6(a) and 6(b). Buyer hereby approves the conditions set forth in
Sections 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.
6. 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.
7. 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.
8. Contingency Date. The Contingency Date under the
Purchase Agreement shall be March 12, 1998.
9. Counterparts. This Amendment may be executed in one or
more counterparts and may be executed by facsimile.
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:
XXXXXX XXXXXX PROPERTIES
LIMITED PARTNERSHIP, a
Delaware limited partnership
By: The Xxxxxx Xxxxxx Corporation
(formerly known as Summa Corporation),
a Delaware corporation, its sole general
partner
By:/s/ Xxxxxxx X. Inarchos
Its: Sr. V.P., General Counsel
BUYER:
ARDEN REALTY, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
Its: President and COO
ESCROW HOLDER:
Acknowledged and accepted this
_____ day of March, 1998.
XXXXXXX TITLE COMPANY
By:/s/ Xxxx Xxxxx
Its: Sr. Escrow Officer
