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EXHIBIT 10.14
THIRD ADDENDUM TO
AGREEMENT TO CONTRIBUTE CAPITAL
AND ESCROW INSTRUCTIONS
THIS THIRD ADDENDUM TO AGREEMENT TO CONTRIBUTE CAPITAL AND ESCROW
INSTRUCTIONS (the "Third Addendum") is executed as of January 13, 1998 by and
between Westwood Center, a California limited partnership (the "Partnership")
and Arden Realty Limited Partnership, a Maryland limited partnership
("Contributor"), with reference to the following facts:
A. The Partnership and Contributor previously executed an Agreement
to Contribute Capital and Escrow Instructions (the "Agreement to Contribute"),
an Addendum to Agreement to Contribute Capital and Escrow Instructions (the
"First Addendum"), and a Second Addendum to Agreement to Contribute Capital and
Escrow Instructions (the "Second Addendum").
B. On or about December 29, 1997, Contributor delivered notice to
the Partnership that it had approved of the Property and all matters and things
that are subject to Contributor's right of review, inspection and approval in
accordance with the provisions of Section 5(b) of the Agreement to Contribute.
Contributor also requested that the Partnership grant an extension to and
including February 2, 1998 within which to Close the transaction contemplated by
the Agreement to Contribute.
C. The parties desire to amend the Agreement to Contribute to extend
the Closing Date and to make certain other changes thereto.
NOW, THEREFORE, with reference to the foregoing recitals and in
reliance thereon and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually agreed by the
Partnership and Contributor as follows:
1. Closing of Escrow. The first sentence of Section 3(b) of the
Agreement to Contribute is amended to read as follows:
"Escrow shall close not later than January 30, 1998, provided the
Contributor's Conditions Precedent to Closing as set forth in
Paragraph 8 hereof have been satisfied and the Partnership's
conditions to Closing set forth in Paragraph 9 have been satisfied.
Notwithstanding the foregoing, Contributor shall have
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the right to extend the Closing to and including February 2, 1998,
in which case the amount of the Capital Contribution to be
contributed by Contributor to the Partnership shall be increased by
the amount of the cost (including any "minimum" premium) of
extending the Partnership's existing insurance policy beyond the
expiration date of January 31, 1998 through the Closing."
2. Capital Contribution. The first sentence of Section 2 of the
Agreement to Contribute is amended to read as follows:
"The amount of the capital contribution (the "Capital Contribution")
to be contributed by Contributor to the Partnership for the
Partnership Interest is the amount of Twenty-Eight Million Seven
Hundred Forty One Thousand Three Hundred Sixty Six and 86/100
Dollars ($28,741,366.86), payable as follows:"
3. Management of the Property. The Partnership shall continue to
manage the Property in the same manner as it has subsequent to the execution of
the Agreement to Contribute pursuant to its normal course of business; provided,
however, that from and after the date hereof, the Partnership shall not do any
of the following without the prior written approval of Contributor: (i) enter
into any new leases or renew or extend any existing leases beyond the scheduled
date of Closing, (ii) renew, extend or replace Service Contracts that expire
prior to the Closing other than those necessary for the continued normal
operation of the Property, (iii) incur any capital expenditure in excess of
$25,000, or (iv) enter into any new contract or commitment to contract that
extends beyond the scheduled date of Closing. No Partnership management
personnel shall be required to be terminated prior to the Closing.
4. Insurance. The Partnership shall continue to maintain its present
insurance policy through the Closing; provided, however, that if Contributor
elects to extend the Closing to and including February 2, 1998, the amount of
the Capital Contribution to be contributed by Contributor to the Partnership
shall be increased by the amount of the cost (including any "minimum" premium)
of extending the Partnership's existing insurance policy beyond the current
expiration date of January 31, 1998 through the Closing.
5. Damage to or Destruction of the Property Prior to Closing.
Section 15(a) of the Agreement to Contribute is amended to read as follows:
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"(a) Damage to or Destruction of Property Prior to Closing;
Risk of Loss. If prior to Closing, the Property shall sustain damage
caused by fire or other casualty that is insured and that would cost
Two Million Five Hundred Thousand Dollars ($2,500,000) or more to
repair or if any uninsured loss or casualty occurs that would cost
One Hundred Fifty Thousand Dollars ($150,000) or more to repair,
either Partnership or Contributor may respectively elect to
terminate this Agreement by written notice to the other within
fifteen (15) days after notice of such event, or at Closing,
whichever is earlier. If neither the Partnership nor Contributor so
elects to terminate its obligations under this Agreement, or if the
loss or casualty would cost less than Two Million Five Hundred
Thousand Dollars ($2,500,000) with respect to an insured casualty
and One Hundred Fifty Thousand Dollars ($150,000) with respect to an
uninsured casualty to repair, the Closing shall take place as
provided herein and the Partnership shall inure to the Partnership's
rights to insurance proceeds with respect to any unrepaired damage
(including any rental loss proceeds for periods after the Closing),
loss or casualty in question with the right to use those proceeds as
determined by Contributor, as the Partnership's general partner from
and after the Closing. The Partnership shall retain all interest in
and to the insurance proceeds that may be payable to the Partnership
on account of repaired and completed damage, but the Partnership
shall have no obligation of repair or replacement."
6. Upon the execution of this Third Amendment, Contributor shall
cause Escrow to immediately release the Deposit to the Partnership. The Deposit
shall be nonrefundable by the Partnership to Contributor except as follows:
(a) If the Closing does not occur and Contributor shall be
entitled to the return of the Deposit as provided in the Agreement
to Contribute, then the Partnership shall immediately return the
Deposit to Contributor.
(b) Notwithstanding the provisions of Section 6(a) of this
Third Addendum, in the event Contributor exercises its right to
terminate the Agreement to Contribute pursuant to Section 15(a)
thereof, if the loss or casualty is insured, then the Partnership
shall return to Contributor the Deposit less only that portion of
the Deposit representing the amount of the Partnership's deductible
on any insurance claim with respect to such loss or casualty (but
not more than the
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Deposit); if the loss or casualty is uninsured, then the Partnership
shall return to Contributor the Deposit less only that portion of
the Deposit in excess of the Partnership's cost to repair.
7. Section 15(j) of the Agreement to Contribute is amended to read
as follows:
"(j) 1997 and 1998 Income Tax Returns. A.S. Xxxxxxxx and Xx X.
Xxxxxxxx shall supervise the preparation of the Partnership's 1997
federal and California income tax returns (collectively, the "1997
Tax Returns") and shall have the sole authority to approve the 1997
Tax Returns. Contributor agrees that it shall execute and file on
behalf of the Partnership the 1997 Tax Returns as approved by
Messrs. Xxxxxxxx and Xxxxxxxx. With respect to the Partnership's
1998 federal and California income tax returns (collectively, the
"1998 Tax Returns"), at least thirty (30) days prior to the due date
for such returns including any extensions, Contributor shall deliver
to A.S. Xxxxxxxx and Xx X. Xxxxxxxx drafts of the Partnership's 1998
Tax Returns for their review and comment. Contributor agrees to
reasonably consider and to reasonably take into account the views
expressed by Xxxxxxxx and Xxxxxxxx with respect to the 1998 Tax
Returns."
8. The Agreement to Contribute, as supplemented and amended by the
First Addendum, the Second Addendum, and this Third Addendum, shall remain in
full force and effect in accordance with its terms.
9. This Third Addendum may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Addendum as of the day and year first hereinabove written.
PARTNERSHIP: WESTWOOD CENTER
a California limited partnership
By: /s/ A. S. Xxxxxxxx
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Name: A.S. Xxxxxxxx, Trustee of
the A.S. Xxxxxxxx Family Trust
Title: General Partner
By: /s/ Xx X. Xxxxxxxx
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Name: Xx X. Xxxxxxxx, Trustee of
the Xx X. Xxxxxxxx Separate
Property Trust
Title: General Partner
CONTRIBUTOR: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
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