FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS ("Amendment") is made and entered into
and is effective as of the 26th day of November, 1997 (the
"Effective Date"), by and between THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK, a New York mutual life insurance company
("Seller"), and ARDEN REALTY LIMITED PARTNERSHIP, a Maryland
limited Partnership ("Buyer").
RECITALS
A. Seller and Buyer entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions, dated as of November 12,
1997 ("Original Purchase Agreement") pursuant to which Seller
agreed to sell and Buyer agreed to purchase that certain property
as defined in subsections (a) through (g) of the Original
Purchase agreement (collectively referred to herein as the
"Property"). All terms with initial capitalization used and not
otherwise defined herein shall have the meanings set forth in the
Original Purchase Agreement.
B. Seller and Buyer now desire to amend the Original Purchase
Agreement to extend the Investigation Period, and to provide a
mechanism for adjustment of the Purchase Price, to the extent
(and only to the extent) described below, as a result of certain
HVAC deficiencies as disclosed in the report of Xxxx Xxxxxxx
obtained by Buyer with respect to the Glendale Property in
connection with Buyer's due diligence (the "HVAC conditions"),
and to clarify certain other matters relating to the sale, as
further set forth below.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING
RECITALS, the mutual covenants set forth in this Amendment and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree as follows:
1. Definitions. From and after the date hereof, all references
to the "Agreement" in the Original Purchase Agreement shall mean
the Original Purchase Agreement, as amended hereby.
2. Purchase Agreement. The following amendments are made to
the Original Purchase Agreement:
a. Investigation Period. The Investigation Period shall expire
as of noon PST, on Wednesday, November 26, 1997.
b. Additional Deposits; Negotiation Period. The Additional
Deposit shall be required to be made and delivered to Seller or
Buyer (together with the Initial Deposit), and Escrow shall be
canceled, as follows:
1. On or before the expiration of the Investigation Period (as
amended pursuant to Section 2.a above), Buyer shall either cancel
Escrow, or cause to be wired into Escrow (subject to later
confirmation of receipt by Escrow Agent) the Additional Deposit
(of $500,000.00), in immediately available funds, to be held in
Escrow with the Initial Deposit, pending cancellation of Escrow
on or before the expiration of the Negotiation Period (as defined
below), or release of the Deposit to Seller upon expiration of
the Negotiation Period without cancellation of Escrow, in each
case as described (and to the extent permitted) below. If Buyer
shall timely deliver the Additional Deposit, then Buyer's right
to make any further objections relating to the status or
condition of the Property shall be waived, and Escrow shall
remain open; provided, however, that Buyer and Seller shall,
during the Negotiation Period (as defined below), negotiate in
good faith to determine (as described below) the appropriate
decrease in the Purchase Price, to be provided as a result of the
HVAC Conditions. In furtherance thereof, Seller and Buyer
acknowledge and agree (i) that a decrease in the Purchase Price
(up to, but not to exceed the amount of the Maximum Adjustment,
as defined below, and with the exact amount determined as
described below), is appropriate as a result of the HVAC
Conditions, (ii) to jointly inspect such system and (iii) to
negotiate in good faith, during the Negotiation Period, to reach
agreement as to an adjustment in the Purchase Price which Buyer
and Seller in good faith determine, based upon such inspection,
to be sufficient to remedy the reported HVAC Conditions;
provided, however that (A) in no event shall such adjustment to
the Purchase Price exceed One Hundred Fifty Thousand Dollars
($150,000.00)(the "Maximum Adjustment"), and (B) Buyer shall be
required to proceed to close Escrow notwithstanding that the
amount required to remedy the HVAC Conditions is, or is agreed by
Buyer and Seller to be, greater than the Maximum Adjustment
amount, so long as the Purchase Price is decreased by One Hundred
Fifty Thousand Dollars ($150,000.00). In all events, Buyer shall
be solely responsible for any costs related to the HVAC
Conditions in excess of the agreed adjustment to the Purchase
Price. As used herein, the "Negotiation Period" shall be the
period commencing on the expiration of the Investigation Period
and ending on the earlier of (A) the date of agreement by Buyer
and Seller as to the appropriate adjustment in the Purchase
Price, and (B) 5:00 P.M. on Wednesday, December 3, 1997 (the
"Expiration Date").
2. If Buyer fails to timely make the Additional Deposit in
accordance with section 2.b.1 above, or if Buyer and Seller are
unable, prior to the Expiration Date and pursuant to the
provisions of Section 2.b.1 above, to agree on a Purchase Price
adjustment for the HVAC Conditions (with such agreement to be
evidenced by joint Notice to Escrow Agent of the amount of such
agreed-upon Purchase Price adjustment, which Notice shall be
irrevocable upon delivery), then Escrow shall be deemed canceled,
and Buyer's Initial Deposit and Additional Deposit, not only of
fifty percent (50%) of Escrow and title fees, shall be
immediately refunded by Escrow Agent to Buyer without further
Notice or instruction from Buyer or Seller, and notwithstanding
any contrary or inconsistent instruction from Seller; provided,
however, that no such cancellation shall occur in any event if
Seller provides Notice to Escrow Agent that it has agreed to the
Maximum Adjustment in the Purchase Price as a result of the HVAC
Conditions.
3. Unless Escrow is canceled pursuant to section 2.b.2 above,
Escrow Agent is hereby irrevocably instructed to release the
Deposit to Seller in immediately available funds within one (1)
day after the expiration of the Negotiation Period.
4. Title and Survey Exceptions: Closing Date. The extension of
the Investigation Period as described above, and Seller's
agreement to allow a Negotiation Period, shall not extend the
period for Buyer's objection to title matters or survey matters,
which time period Buyer acknowledges has expired, or the Outside
Closing Date.
5. Miscellaneous. Except to the extent the Original Purchase
Agreement is amended hereby, all other terms and provisions of
the Original Purchase Agreement shall remain in full force and
effect. No amendments hereto shall be enforceable except if in
writing and executed by each of the parties. This Amendment may
be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first set forth above.
"SELLER" "BUYER"
THE MUTUAL LIFE INSURANCE ARDEN REALTY LIMITED PARTNERSHIP,
COMPANY OF NEW YORK, a Maryland limited partnership
a New York mutual life insurance company
By: By: /s/ Xxxxxxx X. Xxxxx
Its: Its: Chief Executive Officer
"ESCROW AGENTs" The undersigned acknowledges receipt of this
Amendment and agrees to act in accordance with all applicable
provisions contained herein.
FIRST AMERICAN TITLE INSURANCE COMPANY,
a California corporation
By:
Its
Date: