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EXHIBIT 10.4
SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This SECOND AMENDMENT TO AGREEMENT OR PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS (this "Second Amendment") is made and entered into as of this 19th
day of November, 1997, by and between Activity Business Associates, LLC, a
California limited liability company ("Seller") and Arden Realty Limited
Partnership, a Maryland limited partnership ("Buyer"), with reference to the
following facts and circumstances:
A. Seller and Buyer have heretofore entered into that certain Agreement
of Purchase and Sale and Joint Escrow Instructions dated as of October 8, 1997
(the "Purchase Agreement").
B. Seller and Buyer have heretofore amended the Purchase Agreement by
entering into that certain First Amendment to Agreement or Purchase and Sale and
Joint Escrow Instructions dated as of October 15, 1997 ("First Amendment"). The
Purchase Agreement as amended by the First Amendment is hereinafter referred to
as the "Amended Purchase Agreement".
C. All capitalized terms not otherwise defined herein shall have the
meaning afforded such term in the Amended Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. UNITS. Seller has informed Buyer that Seller will not be exercising
any rights under Section 2.4 of the Amended Purchase Agreement to receive Units.
2. CONTINGENCY PERIOD. The Contingency Period referenced in Article 5 of
the Amended Purchase Agreement has ended and Buyer has approved of (i) title as
set forth in Buyer's approval letter dated October, 1997, (ii) all other matters
pertaining to the Property and (iii) the documents evidencing the Existing Loan
and the assumption thereof. Buyer is willing to cause the formation of a newly
formed, single purpose entity (the "New Borrower") whose only business
operations will involve the ownership of the Property, which new entity will
assume the Existing Loan. Buyer is further willing to guaranty the Existing Loan
and provide an environmental indemnity on behalf of the new, single purpose
entity in the form of the existing guaranty and environmental indemnity
documents. Nevertheless, it shall remain a condition of the Closing that said
lender under the Existing
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Loan approve and consent to the assumption of the Existing Loan pursuant to
assumption documents reasonably acceptable to Buyer, and without imposing
additional obligations upon any party related to Buyer other than Buyer or the
New Borrower, and without imposing obligations upon Buyer or New Borrower which
are beyond those obligations set forth in documents evidencing the Existing
Loan.
3. CLOSING. Section 7.1 of the Amended Purchase Agreement is amended to
provide that the Closing Date shall be Tuesday, January 6, 1998, and not earlier
or later.
4. NO OTHER AMENDMENTS. Except as expressly set forth in this Second
Amendment, the Amended Purchase Agreement shall remain unmodified and in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
BUYER: Arden Realty Limited Partnership
a Maryland limited partnership
By: Arden Realty, Inc.
a Maryland corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Its: President and COO
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SELLER: Activity Business Associates,
LLC, a California limited
liability company
By:
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Xxxxxxx X. Xxxxxxxxx,
its Vice President
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Loan approve and consent to the assumption of the Existing Loan pursuant to
assumption documents reasonably acceptable to Buyer, and without imposing
additional obligations upon any party related to Buyer other than Buyer or the
New Borrower, and without imposing obligations upon Buyer or New Borrower which
are beyond those obligations set forth in documents evidencing the Existing
Loan.
3. CLOSING. Section 7.1 of the Amended Purchase Agreement is amended to
provide that the Closing Date shall be Tuesday, January 6, 1998, and not earlier
or later.
4. NO OTHER AMENDMENTS. Except as expressly set forth in this Second
Amendment, the Amended Purchase Agreement shall remain unmodified and in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
BUYER: Arden Realty Limited Partnership
a Maryland limited partnership
By: Arden Realty, Inc.
a Maryland corporation
Its: General Partner
By:
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Its:
SELLER: Activity Business Associates,
LLC, a California limited
liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx,
its Vice President
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