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EXHIBIT 10.10
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS ("Amendment") dated as of this 24th day of October, 1997 is
made by and between XXXXX XXXXXX AND XXXXXX XXXXXX, CO-TRUSTEES OF THE SILAGI
FAMILY TRUST (THE "TRUST"), CONEJO BUSINESS PARK, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY ("CONEJO LLC"), MARIN CORPORATE CENTER LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY ("MARIN LLC"), EVERGREEN PLAZA LLC, A CALIFORNIA
LIMITED PARTNERSHIP ("EVERGREEN LLC") (collectively, "Original Seller"),
HILLSIDE CORPORATE CENTER, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY and
WESTLAKE GARDENS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (together,
"Additional Seller"), and ARDEN REALTY LIMITED PARTNERSHIP, A MARYLAND LIMITED
PARTNERSHIP ("Buyer"). Original Seller and Additional Seller shall collectively
be referred to herein as "Seller".
R E C I T A L S
WHEREAS, Original Seller and Buyer are parties to that certain
Agreement of Purchase and Sale and Joint Escrow Instructions dated as of August
1, 1997 (the "Agreement");
WHEREAS, Original Seller is the owner of the Property;
WHEREAS, Additional Seller is the owner of the Additional
Property (defined below);
WHEREAS, Buyer desires to purchase, and Additional Seller desires
sell, the Additional Property on the terms and conditions set forth in the
Agreement, as amended by this Amendment; and
WHEREAS, Seller and Buyer desire, among other things, to amend the
Agreement to add Additional Seller as a party thereto and to provide for the
purchase and sale of the Additional Property upon and subject to all the terms
and conditions set forth below.
A M E N D M E N T
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer hereby amend the Agreement upon and
subject to the following terms, provisions and conditions. Capitalized terms
used in the Amendment and not otherwise defined shall have the meanings ascribed
to such terms as set forth in the Agreement.
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PROVIDED FURTHER, that except to the extent otherwise provided
below, the terms and provisions of the Agreement and the rights and obligations
of Original Seller and Buyer thereunder shall apply with equal force and effect
to the Additional Property, Additional Seller and to Buyer's purchase of the
Additional Property, with conforming changes being deemed incorporated into the
Agreement where necessary to provide appropriate contextual references. By way
of illustration, the Escrow Holder's deliveries to Buyer in Section 4.4.3 of the
Agreement upon the Hillside Closing (defined below) shall be the Assignment of
Leases, the Assignment of Intangible Property, the Xxxx of Sale, the
Transferor's Certificate and all other items required to be delivered by Seller
pursuant to Sections 4.1 and 8.1.4, but only to the extent such items or
documents pertain to Hillside Corporate Center. Similarly, on the Hillside
Closing Date, the Escrow Holder shall only record the Deed for the applicable
Additional Real Property comprising Hillside Corporate Center in the appropriate
county.
1. PARAGRAPH 1: DEFINITIONS. The following definitions are hereby
added to or replace the corresponding Definitions in Section 1 of the Agreement:
1.1 "ADDITIONAL LAND" collectively means the real property
located at (i) 000 Xx. Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
(commonly known as Hillside Corporate Center) and (ii) 2525 and 0000
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx (collectively and commonly
known as Westlake Gardens), as each component of the Additional Land
is respectively described in EXHIBITS "A-7" and "A-8".
1.2 "ADDITIONAL LEASES" shall mean all existing leases, rental
and occupancy agreements and lease commitments relating to the
Additional Real Property, including those Additional Leases which
are listed on EXHIBITS "F-7" and "F-8", respectively, together with
any and all leases which are entered into after the date of this
Amendment in accordance with Buyer's written approval as set forth
in SECTION 5.2 of this Amendment.
1.3 "ADDITIONAL PERSONAL PROPERTY" means all the personal
property of Seller located on or in or used in connection with the
Additional Real Property, including those items set forth on
EXHIBITS "H-7" and "H-8", respectively.
1.4 "ADDITIONAL PROPERTY" or "ADDITIONAL PROPERTIES"
collectively means the Additional Real Property, the Additional
Personal Property and the Intangible Property with respect to the
Additional Real Property and/or Additional Personal Property.
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1.5 "CONSTRUCTION CLOSING CONDITIONS PERIOD" means the period
commencing on the date this Amendment is executed and delivered by
both Buyer and Seller and ending at 6:00 p.m. (California time) on
the first business day which is five (5) business days after the
Conditions to Construction Completion as set forth on Schedule "1"
attached hereto have been fully completed to the satisfaction of
Buyer with respect to construction of Hillside Corporate Center,
Phase I (as defined in Section 1.37) of Westlake Gardens and Phase
II (as defined in Section 1.37) of Westlake Gardens, respectively.
1.6 "ADDITIONAL REAL PROPERTY" means the Additional Land, the
improvements situated or to be constructed on the Additional Land,
the Fixtures and the Appurtenances with respect to the Additional
Land.
1.7 "AMENDMENT" means that certain First Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions dated
October 24, 1997 by and between Seller, Additional Seller (as
defined in the Amendment) and Buyer.
1.8 "APPROVED PLANS" shall mean the Plans, and all amendments,
modifications and supplements to the Plans as and when approved in
writing by Buyer.
1.9 "APPURTENANCES" means all Seller's interest in all rights,
privileges and easements appurtenant to the Land and Additional
Land, including, without limitation, all minerals, oil, gas and
other hydrocarbon substances in, on and under the Land and
Additional Land, as well as all development rights, air rights,
water, water rights and water stock relating to the Land and
Additional Land and any other easements appurtenant to the Land and
Additional Land.
1.10 "ASSIGNMENTS OF LEASES" means the Assignments of Leases,
to be duly executed and delivered by Seller in accordance with
SECTION 4.1 of this Agreement, assigning to Buyer all of Seller's
right, title and interest in and to the Leases and Additional
Leases. The Assignments of Leases shall each be in the form of, and
upon the terms contained in, EXHIBIT "C".
1.11 "BILLS OF SALE" means the Bills of Sale, to be duly
executed and delivered by Seller in accordance with SECTION 4.1 of
this Agreement, conveying to Buyer all of the Personal
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Property and Additional Personal Property. The Bills of Sale shall
each be in the form of, and upon the terms contained in, EXHIBIT
"D".
1.12 "DEEDS" means the Grant Deeds, to be duly executed,
acknowledged and delivered in recordable form by Seller in
accordance with SECTION 4.1 of this Agreement, conveying to Buyer
good and marketable fee simple title to the Real Property and
Additional Real Property, as applicable. The Deeds shall each be in
the form of, and upon the terms contained in, EXHIBIT "E" except
that the Deed with respect to the transfer of Phases I and II of
Westlake Gardens shall contain the following language:
"The transfer of the Property to the Grantee pursuant to this
Grant Deed is subject to the terms and conditions of that
certain Declaration of Covenants, Conditions and Restrictions
executed by Westlake Gardens LLC, as declarant, and recorded
on May 7, 1997, in the Official Records of Ventura County,
California, as Instrument No. 97-057284."
1.13 "FIXTURES" means all fixtures placed on, attached to, or
located at and used in connection with the operation of, the Land
and the Additional Land.
1.14 "GOVERNMENTAL REGULATIONS" means any local, state, and
federal laws, ordinances, rules, requirements, codes, building
codes, resolutions, policy statements and regulations (including,
without limitation, those relating to land use, subdivision, zoning,
environmental, labor relations, notification of sale to employer,
Hazardous Materials, occupational health and safety, water,
earthquake hazard reduction and building and fire codes) bearing on
the construction, development, alteration, rehabilitation,
maintenance, use, operation, or sale of the Property and the
Additional Property.
1.15 "HILLSIDE CLOSING" means the consummation of the
conveyances of the Additional Property, Additional Leases and any
other transactions contemplated under this Agreement, but only with
respect to Hillside Corporate Center, all of which shall occur on or
before the Hillside Closing Date.
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1.16 "HILLSIDE CLOSING DATE" shall mean five (5) business days
after the expiration of the Construction Closing Conditions Period
for Hillside Corporate Center.
1.17 "HILLSIDE CORPORATE CENTER" means the Additional Real
Property, Additional Personal Property and Intangible Property
related solely to the real property located at 000 Xx. Xxxxxxx
Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
1.18 "HILLSIDE PURCHASE PRICE" means an amount equal to
$8,852,400.00.
1.19 "HILLSIDE TITLE POLICY" means an ALTA owner's title
policy (Form B-1970) issued by the Title Company for the benefit of
Buyer, which Hillside Title Policy shall (a) insure Buyer's fee
title to the Additional Real Property at Hillside Corporate Center,
(b) have a liability limit in the amount of the Hillside Purchase
Price, (c) include those endorsements requested by Buyer, and (d)
show only those matters which constitute Permitted Exceptions.
1.20 "INTANGIBLE PROPERTY" means all of Seller's right, title
and interest in and to any and all intangible personal property now
and through the Closing Date, Hillside Closing Date or Westlake
Closing Date, as applicable, owned by Seller and/or used in
connection with the ownership, construction, development, use and/or
operation of the Real Property, Additional Real Property, Personal
Property and/or Additional Personal Property, including, without
limitation, the Service Contracts (to the extent approved in writing
by Buyer), the Licenses and Permits, the Intellectual Property and
the Records and Plans and the Warranties.
1.21 "INTELLECTUAL PROPERTY" means any and all intellectual
property owned by Seller or licensed to Seller and used in
connection with the ownership, use and/or operation of the Real
Property, Additional Real Property, Personal Property and/or
Additional Personal Property, including, without limitation, trade
names, logos, derivations, slogans and other marks owned or used by
or licensed to Seller and associated with the Real Property,
Additional Real Property, Personal Property and/or Additional
Personal Property.
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1.22 "LICENSES AND PERMITS" means all of Seller's right,
title, interests, privileges, benefits and remedies in, to and under
all authorizations, approvals, permits, certificates of occupancy,
licenses, agreements, variances, tentative maps, final maps, plans
and specifications and land use entitlements held by Seller and/or
relating to the construction, reconstruction, occupancy, operation
or use of any part of the Real Property, Additional Real Property,
Personal Property, or Additional Personal Property.
1.23 "INTENTIONALLY OMITTED."
1.24 "NOTICES TO TENANTS" means notices from Seller to all
tenants who are parties to any of the Leases or Additional Leases
whereby such tenants are notified that the Property or applicable
Additional Property has been transferred by Seller to Buyer and
instructing them to pay any and all rents and other sums payable
under the Leases or Additional Leases from and after the Closing,
Hillside Closing or Westlake Closing, as applicable, directly to
Buyer or as otherwise directed by Buyer, in the form of EXHIBIT "G".
1.25 "PLANS" shall mean full and detailed architectural,
construction, landscaping, mechanical and engineering plans and
specifications covering the work to be performed in connection with
the Hillside Project and the Westlake Project (as each term is
defined in Section 8 below). For purposes of this definition, the
term "Plans" shall not include plans and specifications solely
relating to specific tenant improvement work to be performed within
a particular premises at either the Hillside Project or Westlake
Project.
1.26 "PRE-APPROVED LEASE FORM" means Buyer's standard form of
lease agreement.
1.27 "PROJECT DOCUMENTS" shall mean all contractors'
(including contractors' and subcontractors), architects',
engineers', consultants, landscaping and other similar contracts
entered into by Seller, or any one of them, with respect to the
Project (as defined in SECTION 8 of this Amendment).
1.28 "PROPERTY" or "PROPERTIES" collectively means the Real
Property, the Personal Property and, with respect to the Real
Property and/or Personal Property only, the Intangible Property.
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1.29 "PURCHASE PRICE" means the sum of Thirty Five Million
Three Hundred Seventy One Thousand Three Hundred Eighty-Seven
Dollars ($35,371,387).
1.30 "REAL PROPERTY" means the Land, the improvements situated
on the Land, the Fixtures and the Appurtenances with respect to the
Land.
1.31 "RECORDS AND PLANS" means (a) all books and records
maintained in connection with the ownership, development,
construction, maintenance or operation of the Property and
Additional Property, (b) all preliminary, final and "as-built" plans
and specifications respecting the Real Property and Additional Real
Property, and (c) all structural reviews, architectural drawings,
topographical maps and engineering, soil, seismic, environmental,
asbestos, geologic and architectural reports, studies and
certificates and other documents pertaining to the Real Property and
Additional Real Property (including those which include comments by
any building or safety engineer, inspector or other person who
regularly makes such inspections) which are within the possession
of, under the control of, or reasonably available to, Seller.
1.32 "SERVICE CONTRACTS" means the maintenance contracts,
equipment leases, warranties, guarantees, management contracts and
bonds, and any other similar obligations, commitments or
arrangements, together with all supplements, amendments and
modifications thereto, relating to the construction, development,
marketing, operation, maintenance or enjoyment of the Property
and/or Additional Property, which are set forth on EXHIBITS "I-1",
"X-0," "X-0," "X-0", "X-0" AND "I-6" attached to the Agreement and
EXHIBITS "I-7" AND "I-8", respectively, attached to this Amendment.
1.33 "TENANT ESTOPPELS" means written statements in the form
of, and upon the terms contained in, EXHIBIT "J", in favor of Buyer
from each of the tenants who are parties to any of the Leases and/or
Additional Leases, dated not earlier than fifteen (15) days prior to
the Closing Date, Hillside Closing Date or applicable Westlake
Closing Date, as applicable.
1.34 "WARRANTIES" means all third party warranties and
guarantees relating to the Property and/or Additional Property,
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including any instruction books (e.g., for vertical transportation,
HVAC and other building systems).
1.35 "WESTLAKE CLOSING" means the consummation of the
conveyances of the Additional Property, Additional Leases and any
other transactions contemplated under this Agreement, but only with
respect to each of Phase I and Phase II of Westlake Gardens, all of
which shall occur on or before the Westlake Closing Date for the
applicable phase.
1.36 "WESTLAKE CLOSING DATE" shall mean five (5) business days
after the expiration of the Construction Closing Conditions Period
for each of Phases I and II of Westlake Gardens (i.e., there will be
separate closing dates for each of Phases I and II
of Westlake Gardens).
1.37 "WESTLAKE GARDENS" means the Additional Real Property,
Additional Personal Property and Intangible Property related solely
to the real property located at 0000 Xxxxxxxxx ("Phase I") and 0000
Xxxxxxxxx ("Xxxxx XX"), Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx.
1.38 "WESTLAKE PURCHASE PRICE" means collectively an amount
equal to $14,647,600 ($7,323,800 of which is allocated to Phase I of
Westlake Gardens and $7,323,800 of which is allocated to Phase II of
Westlake Gardens).
1.39 "WESTLAKE TITLE POLICIES" means two (2) separate ALTA
owner's title policies (Form B-1970) issued by the Title Company for
the benefit of Buyer, which Westlake Title Policies shall (a) insure
Buyer's title to the Additional Real Property for Phase I and Phase
II of Westlake Gardens, (b) have liability limits in the amount of
the Westlake Purchase Price (separately allocated for Phase I and
Phase II of Westlake Gardens, as applicable), (c) include those
endorsements requested by Buyer, and (d) show only those matters
which constitute Permitted Exceptions.
2. PARAGRAPH 3: AGREEMENT TO SELL; PURCHASE PRICE.
2.1 The Hillside Purchase Price and the applicable Westlake
Purchase Price shall be paid to Seller (after taking into account the
adjustments described in SECTIONS 10 AND 11 of the Agreement) through Escrow
Holder, at the Hillside Closing and the applicable Westlake Closing,
respectively.
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2.2 Section 3.3(f). The figure set forth in Section
3.3(f) should be deleted and replaced with $10,885,000."
3. PARAGRAPH 4: DELIVERIES AT CLOSING; CLOSING PROCEDURES. The
Hillside Closing and the Westlake Closing shall take place on the Hillside
Closing Date and the applicable Westlake Closing Date, respectively.
3.1 SECTION 4.1. The introduction paragraph in SECTION 4.1 of
the Agreement is hereby deleted and replaced with the following: "4.1 BY SELLER.
At least two (2) business days prior to the Closing, the Hillside Closing, or
the applicable Westlake Closing, as applicable, Original Seller or the
applicable Additional Seller, shall deliver or cause to be delivered to Escrow
Holder (unless otherwise indicated) the following items with respect to the
Properties or Additional Properties, as applicable, duly executed and, where
appropriate, acknowledged by Seller or the applicable Additional Seller:"
3.2 SECTIONS 4.1.9, 4.4, 4.4.2 AND 11.1. The words "Hillside
Title Policy or Westlake Title Policies, as applicable" are inserted after the
words "Title Policy" in Sections 4.1.9, 4.4, 4.4.2 and 11.1 of the Agreement.
3.3 SECTION 4.2. Paragraph 4.2.1 of the Agreement is amended
to provide that at the Hillside Closing and applicable Westlake Closing, as
applicable, Buyer shall deliver the items in SECTION 4.2.2 AND 4.2.3, and also
the Hillside Purchase Price or applicable Westlake Purchase Price, as
applicable, after taking into account the adjustments and costs allocations in
accordance with SECTIONS 10 AND 11 of the Agreement, as amended by this
Amendment.
3.4 SECTION 4.4.4. Paragraph 4.4.4 of the Agreement is amended
to provide that at the Hillside Closing Date and applicable Westlake Closing
Date, as applicable, Escrow Holder shall deliver to Seller the Hillside Purchase
Price or applicable Westlake Purchase Price, as applicable, after taking into
account the adjustments and cost allocations in accordance with Sections 10 and
11 of the Agreement, as amended hereby.
4. PARAGRAPH 5: REPRESENTATIONS AND WARRANTIES.
4.1 All of Seller's representations and warranties made under
SECTION 5.1 of the Agreement are hereby reaffirmed and made with respect to the
Additional Properties and the Additional Leases, as the context so requires, all
of which are true as of the date of this Amendment and which shall be true and
correct as of the Closing, the Hillside Closing or the applicable Westlake
Closing, as applicable.
4.2 All of Buyer's representations and warranties made under
SECTION 5.2 are hereby reaffirmed and are true as of the date of this Amendment
and shall be true and correct as of the Closing, the Hillside Closing or
applicable Westlake Closing, as applicable.
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4.3 Exhibits "L" and "M" attached to the Agreement are
replaced by Exhibits "L" and "M", respectively, attached to this Amendment.
5. PARAGRAPH 6: SELLER'S OBLIGATIONS REGARDING ADDITIONAL
PROPERTIES. Seller hereby covenants to Buyer, upon which covenants Buyer has
relied and will continue to rely, that for the period from the date of this
Amendment through and including the Hillside Closing Date or the applicable
Westlake Closing Date, as applicable.
5.1 FURTHER LIENS AND ENCUMBRANCES. Additional Seller will not
subject the Additional Properties to any additional liens, encumbrances,
covenants, conditions, easements, rights of way or similar matters after the
date of this Amendment, provided that, subject to the terms of the Agreement, as
amended hereby, Additional Seller has the right to encumber Phase II of Westlake
in connection with construction financing to be obtained by Additional Seller
for the development of Phase II of Westlake Gardens. Seller will not hereafter
modify, extend, renew, replace or otherwise change any of the terms, covenants
or conditions of any of such documents, or enter into any new agreements
affecting the Additional Properties without the prior written consent of Buyer,
which consent may be withheld in Buyer's sole and absolute discretion.
5.2 LEASES; OTHER CONTRACTS; INTERIM ACTIVITIES. Additional
Seller agrees to (i) cooperate with Buyer in connection with Additional Seller's
leasing efforts at the Additional Properties, and (ii) use its commercially
reasonable efforts to enter into new leases as soon as reasonably practicable
with respect to the Additional Properties, subject to the terms of this Section
5.2. Buyer shall have the right to propose new lease transactions to Additional
Seller from and after the date hereof and Additional Seller agrees to (x)
reasonably consider said proposed transactions, and (y) cooperate with Buyer in
connection with Buyer's leasing efforts at the Additional Properties. Seller
will not hereafter terminate, modify, extend, renew, replace or otherwise change
any of the Additional Leases or enter into new leases or contracts affecting the
Additional Properties after the date of this Amendment (each, a "NEW LEASE"),
except with the prior written consent of Buyer, which consent (a) will not be
unreasonably withheld (with respect to any such action prior to the expiration
of the Additional Property Inspection Period [defined in Section 9.1.2 below]),
provided, however, that Buyer's withholding of consent shall be deemed
reasonable if any new lease is (I) not written on a Pre-Approved Lease Form or
contains terms and conditions materially different from those contained in the
Pre-Approved Lease Form, (II) with a tenant who is not creditworthy or
financially capable of performing its obligations under such new lease, as
reasonably determined by Buyer, or (III) with a tenant previously occupying
space at one of the Properties and there is available space at such Property
which meets such tenants needs (provided that this subparagraph (III) shall not
apply with respect to LATCO, an existing tenant at Pennsfield Plaza), and (b)
may be withheld in Buyer's sole and absolute discretion (with respect to any
such action after the expiration of the applicable Additional Property
Inspection Period). So long as Buyer has previously been provided with the
material terms of any proposed new lease (pursuant to a lease proposal or letter
of intent), and detailed financial statements and credit
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references reasonably acceptable to Buyer, Buyer agrees that its consent shall
be deemed given to any proposed new lease if Buyer fails to deliver its approval
or disapproval of any proposed new lease to Seller on or before the date which
is three (3) business days following Buyer's receipt of (i) a written request
for approval, and (ii) the proposed form of agreement for such new lease
(together with any correspondence or other information in Additional Seller's
possession regarding such proposed tenancy). Seller shall not apply for or
otherwise deal with any governmental authority regarding the development,
entitlement or subdivision of the applicable Additional Real Property without
the prior written consent of Buyer, which may be withheld in Buyer's sole and
absolute discretion, provided that Additional Seller shall have the right to
apply for all necessary permits for the development of Phase II of Westlake
Gardens so long as Buyer has previously been made aware of said application and
said application is consistent with Buyer's understanding of the type, size and
character of the development of Phase II of Westlake Gardens. Notwithstanding
the foregoing, Additional Seller has no obligation to incur tenant improvement
expenses in connection with any new leases.
5.3 SERVICE CONTRACTS. Seller shall not enter into any Service
Contracts with respect to the Additional Properties without Buyer's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed (provided that no such consent shall be required with respect to any
Service Contracts which Seller agrees to terminate prior to the applicable
Closing Date).
5.4 COMPLIANCE WITH LAWS. Seller shall comply with all
Governmental Regulations with respect to the Additional Properties.
5.5 ACTIONS PENDING. Seller shall notify Buyer promptly of any
lawsuits, condemnation proceedings, rezoning, or other governmental order or
action or any threat thereof known to Seller which might affect the Additional
Properties or any interest of Buyer whatsoever.
5.6 INTENTIONALLY OMITTED.
5.7 COOPERATION WITH REPRESENTATIVES. Seller shall cooperate
with Buyer and its accountants, counsel and/or other representatives in
providing information and materials pertaining to the operation and marketing of
the Additional Properties, including access to the Additional Properties.
Without limiting the generality of the foregoing, from and after the execution
and delivery of this Amendment, Seller shall allow a representative or
representatives of Buyer access to the Additional Properties for the purpose of
(a) monitoring the construction and operation of the Additional Properties and
all improvements thereon, including attending any and all construction meetings,
(b) meeting with and interviewing tenants or prospective tenants of the
Additional Properties, which tenants shall be made available for such
interviewing process, and (c) performing such investigations and analyses of the
Additional Properties as Buyer may reasonably require.
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5.8 NO REMOVAL OF PERSONAL PROPERTY. Seller will not remove
any of the Additional Personal Property unless the Additional Personal Property
so removed is simultaneously replaced with substantially similar Additional
Personal Property of similar quality or utilities.
5.9 OBTAINING ESTOPPELS AND CONSENTS. Seller shall use its
best efforts to obtain all written consents from third parties required or
reasonably requested by Buyer or its accountants, counsel or other
representatives in connection with this Agreement, including, without
limitation, the Tenant Estoppels.
5.10 SERVICE CONTRACTS. Seller shall deliver notices of
termination to any vendors under the Service Contracts with respect to the
Additional Properties which have been designated in writing by Buyer to be
terminated ("Disapproved Service Contract List") provided that the Disapproved
Service Contract List is delivered by Buyer to Seller on or before the date
which is thirty (30) days prior to the expiration of the Construction Closing
Conditions Period, and provided further that any such termination shall be
conditioned upon and effective only as of the Hillside Closing or the applicable
Westlake Closing, as applicable. Seller shall, within two (2) days following
Buyer's delivery of the Disapproved Service Contract List, deliver termination
notices to each of the vendors with respect to the Service Contracts so
designated by Buyer in the Disapproved Service Contract List. Seller shall be
solely responsible for all costs and expenses associated with the termination of
any of the Service Contracts set forth by Buyer in the Disapproved Service
Contract List.
5.11 AUDIT RIGHTS. At Buyer's request at any time from and
after the date hereof until the date that is one (1) year after the Hillside
Closing Date or applicable Westlake Closing Date, as applicable, Seller shall,
at Buyer's expense, provide to Buyer's designated independent auditor access to
the books and records of the applicable Additional Property, regarding the
period for which Buyer is required to have audited financial statements prepared
with respect to the applicable Additional Property as may be required by the
Securities and Exchange Commission, to the extent that such books, records and
related information are in Seller's possession or control and relate to the
period during which Seller held title to the applicable Additional Property.
Further, Seller agrees to provide to such auditor a representation letter
regarding the books and records of the Additional Property, in substantially the
form of Exhibit "N" attached to the Agreement, in connection with the normal
course of auditing the applicable Additional Property in accordance with
generally accepted auditing standards.
5.12 MANAGEMENT AND LISTING AGREEMENTS. Seller agrees to
terminate, at Seller's sole cost and expense, all property management agreements
and brokerage leasing agreements for the Additional Properties effective as of
the Hillside Closing Date or applicable Westlake Closing Date, as applicable.
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5.13 CHANGE IN CONDITION. Seller shall promptly notify Buyer
of any change in any material condition with respect to the Additional
Properties or any event or circumstance which makes any representation or
warranty of Seller under this Amendment or the Agreement materially untrue or
misleading, or any covenant of Buyer or Seller under this Amendment or the
Agreement incapable of being performed, it being understood that Seller's
obligation to provide notice to Buyer shall in no way relieve Seller of any
liability for a breach by Seller of any of its representations, warranties or
covenants under this Amendment or the Agreement.
5.14 LOAN FEES. As of the Hillside Closing Date or applicable
Westlake Closing Date, as applicable, Seller is responsible for the payment of
any prepayment or other fees due and owing in connection with or related to the
payoff of any loans or other financing encumbering the respective Additional
Property.
5.15 NON-DISTURBANCE AGREEMENT. Additional Seller will use its
best efforts to obtain from any lenders encumbering the respective Additional
Properties a non-disturbance agreement reasonably satisfactory to Buyer pursuant
to which, in the event any such lender acquires title to an Additional Property,
such lender agrees to remain bound by the terms of the Agreement, as amended
hereby, as it relates to the Additional Property(ies) securing the loan(s) made
by such lender to the same extent as if such lender had entered into the
Agreement, as amended, with Buyer.
6. PARAGRAPH 7: TITLE TO REAL PROPERTY. The matters pertaining to
title to the Real Property in Section 7 of the Agreement shall apply to the
matters pertaining to title to each Additional Property, it being the intent of
the parties that Buyer shall obtain separate title insurance policies for the
Hillside Corporate Center, Phase I of Westlake Gardens and Phase II of Westlake
Gardens in the forms of the Hillside Title Policy and Westlake Title Policies.
7. PARAGRAPH 8: CONDITIONS PRECEDENT/CONCURRENT TO CLOSING; CLOSING
DATE.
7.1 SECTION 1. Except as modified or amended below, all
"Buyer's Conditions" set forth in SECTION 8.1 of the Agreement shall apply to
the closings of the Additional Properties, and all defined terms in SECTION 8.1
are hereby modified or qualified to the extent necessary to carry out the
foregoing intention with respect to the closings of each Additional Property
(i.e., all references in the Agreement to the "Due Diligence Period" shall
instead refer to the "Additional Property Inspection Period"). In addition, the
performance by Additional Seller of all of its obligations under Section 8 below
shall constitute an additional condition to Buyer's obligations under the
Agreement, as amended.
7.2 SECTION 8.1.4. The following subparagraphs are hereby
added to the Agreement as new Subsections 8.1.4.11 and 0.0.0.00:
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"8.1.4.11 Originals of all Project Documents.
8.1.4.12 A non-disturbance agreement from each of the lenders
on the respective Additional Properties in accordance with the terms
of Section 5.15 of the Amendment."
8. CONSTRUCTION OF IMPROVEMENTS ON ADDITIONAL PROPERTIES. As of the
date of this Amendment, Seller has commenced with the grading necessary for the
construction of a 2-story office building at Hillside Corporate Center which
shall contain approximately 60,000 gross square feet and related facilities (the
"HILLSIDE PROJECT") and has commenced with the construction of one of two
separate 3-story office buildings at Westlake Gardens which shall contain an
aggregate of approximately 99,278 gross square feet and related facilities (the
"WESTLAKE PROJECT"). The Hillside Project and the Westlake Project shall
collectively be referred to herein as the "PROJECT". Seller covenants and agrees
to construct the applicable Project in accordance with the Approved Plans,
subject to such modifications, alterations or changes that do not materially
affect the value, condition, appearance, aesthetics or desirability of the
applicable Project.
8.1 SELLER'S DELIVERIES. In connection with the construction
of the Project, Seller agrees to deliver all of the following to Buyer for
Buyer's review and approval with five (5) days after the execution of this
Amendment by Seller and Buyer:
8.1.1 A detailed construction schedule for the
construction of the Project including any and all tenant improvements to be
completed by Seller on or before the Hillside Closing Date or applicable
Westlake Closing Date, as applicable, which schedule shall contain the major
components of the work required for the Project, and the time required for each
component of the work, including the scheduled or actual commencement date of
construction of the Project with respect to each Additional Property, milestone
dates and the estimated date of completion of construction of the Project for
each Additional Property ("CONSTRUCTION SCHEDULE");
8.1.2 An itemized statement of all estimated
construction costs of the Project, including, without limitation, (i) the total
cost to construct all of the improvements, complete all of the work and obtain
or cause to be obtained all governmental approvals in connection with the
Project therewith, and (ii) the amounts that will be payable by Seller for (A)
contractor, architect, engineering, surveyor, legal and financial fees
associated with the construction of the Project, (B) permit fees, and (C) all
other costs and expenses of every type whatsoever (whether hard costs or soft
costs) in constructing the Project and completing all work associated with
providing a tenantable Project to Buyer ("PROJECT BUDGET");
8.1.3 All Plans, Project Documents, the names and
addresses of all contractors (and said contractor's subcontractors), architects,
engineers, consultants and materialmen engaged or to be engaged by Seller for
the construction of the Project and copies
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(certified by Additional Seller to be true and correct) of all Project Documents
in effect as of the date of this Amendment.
8.2 CONSTRUCTION OF IMPROVEMENTS; BUYER'S APPROVAL Rights.
Additional Seller covenants and agrees to perform all work in connection with
the Project with due diligence, in a workmanlike manner, and in compliance with
the Approved Plans and all Governmental Regulations. In addition, all work done
in connection with the Project shall be done according to the standards and upon
the terms and conditions set forth below, except to the extent otherwise
provided in the Approved Plans:
8.2.1 Additional Seller shall proceed with its work on
the Project expeditiously, continuously and efficiently, and shall use its best
efforts to (i) complete the same, and (ii) obtain certificates of occupancy (or
their equivalent) therefor as soon as possible. Additional Seller agrees to hold
daily construction meetings at the applicable Additional Property(ies), and to
allow Buyer to have a representative present for all such meetings.
8.2.2 Additional Seller shall have no authority to
materially deviate from the Approved Plans in the performance and construction
of the Project, except as authorized by Buyer in writing. For the purposes of
the foregoing, a material deviation shall be any deviation from the Approved
Plans which materially affects the value, condition, appearance, aesthetics or
desirability of the Project. Additional Seller shall furnish to Buyer "as-built"
drawings for all work in connection with the Project within sixty (60) days
after completion and issuance of a certificate of occupancy for each Project.
8.2.3 In the event that Additional Seller is not
proceeding with the work or other items in connection with the Project in
material compliance with the Approved Plans or within the time frames set forth
in the Construction Schedule, then, Buyer may give notice thereof to Additional
Seller specifying the disapproved variation from the Approved Plans or the items
which have not been timely performed under the Construction Schedule
("NONCOMPLIANCE NOTICE"). If the variation is not corrected or the work
identified in the Noncompliance Notice is not completed in accordance with the
Approved Plans within forty-five (45) days after Buyer's delivery of the
Noncompliance Notice (or if the variation or the work identified in the
Noncompliance Notice is not reasonably susceptible of being cured or corrected,
as applicable, within such 45 day period, and Seller has commenced to cure or
correct the same within such 45 day period and is proceeding toward the
completion of such cure or correction with all due diligence and speed, then the
cure period shall be extended for a reasonable period of time [not to exceed 90
days following Buyer's delivery of the Noncompliance Notice]), Buyer shall have
the right, but not the obligation, and without limiting any other right or
remedies of Buyer under this Amendment or the Agreement to either terminate the
Agreement (and this Amendment) with respect to the Project for which the
Noncompliance Notice is given or bring an action for damages or specific
performance against Seller, each in accordance with and pursuant to Sections
14.1(i) and 14.1(ii) of the Agreement.
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8.2.4 Additional Seller shall provide Buyer with copies
of Additional Seller's draw requests for each Additional Property within five
(5) days following Additional Seller's delivery of such draw request to the
applicable lender.
8.3 BUYER'S APPROVAL. Additional Seller shall submit to Buyer,
for Buyer's prior written approval, which shall not be unreasonably withheld,
conditioned or delayed, (i) all change orders, changes, deviations, amendments
or modifications to the Project Budget, Construction Schedule, Approved Plans
and Project Documents which are material to the Project or which would otherwise
affect the value, condition, appearance, aesthetics or desirability of the
Project, (collectively, the "Material Change Orders"), (ii) any new Project
Documents entered into after the date of this Amendment, (iii) any and all
contracts, documents or agreements which would burden or encumber the Additional
Properties after the Hillside Closing Date or applicable Westlake Closing Date,
respectively, and (iv) all finish work with respect to the common areas and
other portions of the applicable Additional Property(ies). The Approved Plans
shall also be revised, and the work shall be changed, all Seller's sole cost and
expense, to incorporate any work required in the applicable Project by any local
governmental field inspector. Notwithstanding the foregoing, if Buyer has not
notified Additional Seller of Buyer's approval or disapproval of any Material
Change Orders within three (3) business days following Buyer's receipt of a
written request for approval from Additional Seller, Buyer's approval shall be
deemed given.
8.4 CORRECTION OF MATERIAL DEFECTS. As of the applicable
Closing Date, Additional Seller shall assign to Buyer all subcontractors',
suppliers' and manufacturers' warranties and guaranties.
8.5 CONSTRUCTION AT PHASE II OF WESTLAKE GARDENS. Additional
Seller agrees to commence construction of Phase II of Xxxxxxxx Xxxxxxx (0000
Townsgate) on a date mutually agreed upon by and between Buyer and Additional
Seller. If Buyer and Additional Seller are unable to agree upon a date for the
commencement of construction of Phase II of Westlake Gardens, Additional Seller
agrees to commence said construction on the date selected by Buyer, provided
that (i) Buyer notifies Additional Seller of such date at least sixty (60) days
prior to the selected date, and (ii) in no event shall the date selected by
Buyer be later than the date which is eighteen (18) months following the closing
of the sale of Phase I of Westlake Gardens to Buyer (the "Deadline Date"). If
Buyer and Additional Seller fail to agree upon a date for the commencement of
construction of Phase II of Westlake Gardens and Buyer's selected date is later
than the Deadline Date, then Buyer and Additional Seller shall each have the
right to terminate the Agreement, as amended hereby, as it relates only to Phase
II of Westlake Gardens and upon any such termination neither party shall have
any further obligations or liabilities under the Agreement, as amended, with
respect thereto.
9. ADDITIONAL PROPERTY DUE DILIGENCE. The following shall apply to
the Additional Property Inspection Period with respect to the Additional
Properties.
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9.1 MATTERS TO BE REVIEWED. Buyer's obligation to close the
purchase of the Additional Properties and to pay the Hillside Purchase Price
and/or applicable Westlake Purchase Price, as applicable, shall be subject to
and conditioned upon (i) Buyer's approval of any new leases, and (ii) Buyer's
complete satisfaction with the construction of the applicable Project in
accordance with Paragraph 8 of this Amendment and all of the following items,
each of which Buyer shall have the right to review and approve or disapprove in
Buyer's sole and absolute discretion.
9.1.1 TITLE. Buyer will have until 6:00 p.m.
(California time) on the later of (i) the date which is fifteen (15) days
following the mutual execution and delivery of this Amendment, and (ii) the date
which is thirty (30) days following Buyers' receipt of a current preliminary
title report issued by the Title Company relating to the Additional Properties
(and an ALTA survey and all underlying documents relating thereto) (the
"Additional Property Title Review Period") to examine and approve all matters of
title and to notify Seller in writing of any defects in title, as determined by
Seller in its sole and absolute discretion. If Buyer fails to notify Seller in
writing of any objections to title prior to the expiration of the Additional
Property Title Review Period, title to the applicable Additional Property shall
be conclusively deemed to be approved by Buyer. If Buyer timely notifies Seller
in writing of specific objections to title prior to the expiration of the
Additional Property Title Review Period, Seller will have two (2) days after
receipt of Buyer's notification of any objection in which to advise Buyer that:
(a) Seller will remove any objectionable
exceptions on or before the Hillside Closing Date or applicable Westlake
Closing Date, as applicable; or
(b) Seller will not cause the exceptions to
be removed.
If Seller advises Buyer that it will not cause the
exceptions to be removed, Buyer will have three (3) days from its receipt of
Seller's notice to elect to:
(i) proceed with the purchase and acquire the
applicable Additional Property subject to such exceptions, but conditioned upon
Seller fulfilling each and every one of its other obligations hereunder and all
of the other conditions precedent in favor of Buyer having been duly and timely
satisfied; or
(ii) terminate the Agreement (with respect to
the applicable Additional Property only) by written notice to Seller, in which
case all rights and obligations of the parties with respect thereto shall
terminate and be of no further force or effect, except any rights and
obligations which are expressly stated to survive the termination of the
Agreement.
If Buyer does not give Seller written notice of its
election within said three (3) day period, Buyer will be conclusively deemed to
have approved title to the applicable Additional Property.
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If Seller commits to remove any objection to title
and fails to do so by the Hillside Closing Date or applicable Westlake Closing
Date, as applicable, Seller will be in material default under this Agreement and
Buyer may, at Buyer's election, terminate this Agreement and pursue its remedies
as set forth in SECTION 14 of the Agreement.
Notwithstanding anything to the contrary in this Section 9.1.1, if a
new or supplemental title exception or matter is discovered or identified after
the end of the Additional Property Title Review Period, as it relates to Buyer's
review and approval of such new or supplemental matter, the Additional Property
Title Review Period shall be extended for a period of five (5) business days
following the date of Buyer's receipt of the new or supplemental title exception
or matter and all underlying documents relating thereto.
9.1.2 INSPECTIONS AND STUDIES. Buyer will have until
6:00 p.m. (California time) on the date which is the later of (i) fifteen (15)
days following the mutual execution and delivery of this Amendment, and (ii)
thirty (30) days following Buyer's receipt of the Due Diligence Materials
(defined below) (the "Additional Property Inspection Period") to conduct (as
applicable) and review and approve any and all inspections, investigations,
tests, studies (including feasibility studies and other economic models) and
appraisals as Buyer may have elected to make or obtain with respect to the
applicable Additional Property and/or the operation and financial condition of
the applicable Additional Property, including, without limitation, calculations
of floor areas, financial analysis of the books and records, environmental
inspections and studies, structural and mechanical investigations, appraisals,
and analyses of the applicable Additional Property's compliance with
Governmental Regulations. Buyer and Buyer's representatives, agents and
designees will have the right to enter the Additional Properties at all
reasonable times, upon reasonable oral notice to Seller to perform all such
investigations of the Additional Properties and to conduct interviews with (x)
tenants of the Additional Properties, (y) construction management personnel of
Seller, and (z) such other parties as Buyer may deem appropriate in its sole
discretion (provided that no such interview shall occur unless Buyer has
notified Seller of its interest in conducting any such interview and provided
Seller or a Seller representative with an opportunity to be present for any such
interview). Seller will cooperate with Buyer and its representatives in that
regard. Seller shall deliver to Buyer at Seller's sole cost and expense, within
five (5) days (unless indicated otherwise below) following the date this
Amendment is executed and delivered by Buyer and Seller, all information in
Seller's possession or control which is reasonably related to the Additional
Properties, plus the following items (collectively, the "Due Diligence
Materials"):
(a) To the extent in Seller's possession, an
ALTA "as-built" survey of the Additional Real Properties prepared by a
licensed surveyor;
(b) Any and all Additional Leases and all
modifications or amendments and guaranties relating thereto; all tenant
correspondence and all current financial statements of tenants to the extent the
same are in Seller's possession or control; all loan documents evidencing,
relating to and/or securing the loans made by
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Preferred Bank and China Trust Bank and any other loans secured by one or more
of the Additional Properties; all contracts (including the Service Contracts),
agreements and management agreements (including, without limitation, parking,
elevator, HVAC and landscaping maintenance contracts); all "operating
statements" for the years during which Seller owned the respective Additional
Property(ies); a balance sheet dated no earlier than December 31, 1996; a
year-to-date income statement for the calendar year 1997, each such statement to
be certified by Seller as being true, correct and complete reports prepared by
Seller in the ordinary course of business; all "Base Year" information
applicable to the Additional Leases; a cumulative general ledger for
year-to-date 1997, reports (including, to the extent in Seller's possession, all
environmental reports, soils reports, surveys and plans and specifications
affecting or relating to the Additional Properties, and all modifications or
amendments thereto); to the extent in Seller's possession, all Records and
Plans, Warranties, Licenses and Permits and governmental approvals obtained or
held by Seller and relating to the development, construction, operation, use or
occupancy of any of the Additional Properties.
(c) A current rent roll (to be updated as of the
expiration of the Additional Property Inspection Period and as of the Hillside
Closing and applicable Westlake Closing, as applicable), prepared and certified
by Seller as being true, correct and complete on a form reasonably acceptable to
Buyer (the "Rent Roll").
(d) Reports of insurance carriers insuring the
Additional Properties during the period of Seller's ownership of the Additional
Properties and each portion thereof respecting the claims history of the
Additional Properties; insurance policies or certificates of Seller and tenants
respecting the Additional Properties; to the extent in Seller's possession, all
correspondence, reports, and notices pertaining to the existence of toxic or
Hazardous Materials and/or waste at the Additional Properties; all permits,
reports, certificates and notices pertaining to the existence, removal and/or
decommission of any and all storage tanks located on, at or underneath the
Additional Properties; to the extent in Seller's possession, all certificates of
occupancy; to the extent in Seller's possession, all maps; to the extent in
Seller's possession, all brokerage and commission agreements; all agreements
entered by Seller and Seller's affiliates affecting the Additional Properties
and/or income and cash flow to be received from the Additional Properties that
will survive the Hillside Closing or applicable Westlake Closing, as applicable;
tax bills and assessments for the current year and the two (2) year period
immediately preceding the current year; copies of the most recently available
utility bills and similar records respecting the Additional Properties; any and
all information in Seller's possession respecting the creditworthiness of the
tenants under the Additional Leases at the Additional Properties; to the extent
in Seller's possession, all written reports respecting incidents of theft,
burglary or crimes attempted or committed at, on or to the Additional Properties
or other such incidents which are the subject of litigation; and such other
information reasonably requested by Buyer of Seller in writing during the
Additional Property Inspection Period.
9.1.3 INDEMNITY. Buyer agrees to indemnify and hold
Seller harmless from any and all injuries, losses, liens, claims, judgments,
obligations, liabilities,
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costs, expenses or damages (including reasonable attorneys' fees and court
costs) sustained by Seller to the extent same results from or arises out of any
inspections by Buyer or any of its representatives pursuant to Section 9.1.2
above.
9.2 NOTICE OF OBJECTIONS.
9.2.1 If Buyer fails to notify Seller in writing of
any objections to the items set forth in SECTION 9.1.2 on or before the
expiration of the Additional Property Inspection Period with respect to the
applicable Additional Property, Buyer shall be conclusively deemed to have
approved such items.
9.2.2 If Buyer notifies Seller in writing of any
objections to the condition of one or both of the Additional Properties or any
other matters relating to one or both of the Additional Properties and/or the
operation or financial condition of one or both of the Additional Properties as
set forth in SECTION 9.1.2 on or before the expiration of the Additional
Property Inspection Period, the parties will have three (3) business days to
agree upon a resolution of the objection(s). If the parties cannot agree within
the three (3) business day period, then Buyer may terminate the Agreement (with
respect to the applicable Additional Property only) by delivering written notice
to Additional Seller (which notice must be given within two (2) business days
after the expiration of the three (3) business day period), in which event all
rights and obligations of the parties existing under the Agreement (with respect
to the applicable Additional Property only) shall terminate and be of no further
force or effect, except any rights and obligations which are expressly stated to
survive the termination of this Agreement. The Hillside Closing Date and/or
applicable Westlake Closing Date shall be appropriately extended by the time
periods set forth herein for the parties to take the actions described above.
10. PARAGRAPH 10; PRORATIONS. Except as set forth below, the
prorations set forth in Section 10 of the Agreement shall apply to the closings
of the Additional Properties, except that defined terms used therein shall be
modified to the extent necessary to carry out the foregoing intention with
respect to the closings of each of the Additional Properties.
11. MISCELLANEOUS.
11.1 NO FURTHER MODIFICATION. Except as expressly amended
hereby, the Agreement shall remain unchanged and continue in full force and
effect.
11.2 COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which, when taken together, shall constitute one and the same instrument.
11.3 MEMORANDUM OF AMENDMENT. Concurrently with the mutual
execution and delivery of this Amendment, Seller and Buyer shall execute (with
notary
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attestation) and deliver to each other a Memorandum of Amendment in the
form attached hereto as EXHIBIT "P". Buyer shall have the right to record the
Memorandum of Amendment in the Official Records of the county(ies) in which
Hillside Corporate Center and Westlake Gardens are located.
[this space left intentionally blank]
-21-
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IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as
of the date first set forth above.
"SELLER"
/s/ Xxxxx Xxxxxx
--------------------------------------------
XXXXX XXXXXX, Co-Trustee of the Silagi
Family Trust
/s/ Xxxxxx Xxxxxx
--------------------------------------------
XXXXXX XXXXXX, Co-Trustee of the Silagi
Family Trust
CONEJO BUSINESS PARK, LLC, a California
limited liability company
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: General Member
-------------------------------------
MARIN CORPORATE CENTER, LLC, a California
limited liability company
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: General Member
-------------------------------------
EVERGREEN PLAZA, LLC, a California
limited liability company
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: General Member
-------------------------------------
HILLSIDE CORPORATE CENTER, LLC, a
California limited liability company
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: General Member
-------------------------------------
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23
[Signatures continued from Page 21]
WESTLAKE GARDENS, LLC, a California
limited liability company
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: General Member
"BUYER"
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC., a Maryland
corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Its: President and COO
By:
-----------------------------------
Its:
----------------------------------
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SCHEDULE "1"
CONDITIONS TO CONSTRUCTION COMPLETION
The Hillside Project and the Westlake Project, as applicable, shall
be deemed completed when all of the following conditions have been satisfied:
1. The construction of all improvements have been completed in
accordance with the Approved Plans for the applicable Additional Property;
2. The Additional Seller has (i) delivered to Buyer a copy of the
certification required to be delivered by Buyer to its lender(s) under the loan
documents evidencing the loan(s) on the Additional Properties (which
certification shall concurrently be certified in favor of Buyer), and (ii)
warranted to Buyer that the improvements have been constructed in accordance
with all Governmental Regulations, and all other covenants, codes and
restrictions, public as well as private, and in accordance with the Approved
Plans (and any modifications, alterations or changes thereto which do not
materially affect the value, condition, appearance, aesthetics or desirability
of the applicable Project);
3. Buyer has been furnished with certified copies of all
certificates of approval, acceptance or compliance from all of the city, county
and state departments or authorities having jurisdiction over the applicable
Project;
4. All grading, landscaping, hardscaping, adequate sewer, water,
gas, electrical and other utility facilities, necessary public streets,
sidewalks, parking facilities, draining and curbing in the site area and other
related improvements, both on and offsite, public and private, have been
completed;
5. A valid Notice of Completion for the applicable building or
buildings shall have been timely recorded as provided by law.
6. The statutory deadline for timely recording of any claim of lien
for labor, services or materials performed or furnished in connection with the
applicable Project shall have expired or, at Buyer's election, the Title Company
is unconditionally prepared to issue the Hillside Title Policy or Westlake Title
Policy, as applicable, free of any exceptions for mechanics liens.
7. Additional Seller shall have obtained and delivered to Buyer
copies of all necessary final occupancy permits and final certificates of
occupancy for the applicable Project (except for any tenant improvement work
which has not been completed as of the applicable Closing Date).
8. All mechanical, electrical, HVAC and fire/life/safety systems for
the applicable Project shall be in good working order and condition.
25
EXHIBIT A-7
Legal Description -- Hillside Corporate Center
Xxx 0, Xxxxx Xx. 0000-0, in the City of Thousand Oaks, County of Ventura, State
of California, according to the map thereof recorded in Book 46 Page 37 of
Miscellaneous Records (Maps) in the office of the County Recorder of said
County.
EXCEPT an undivided one-half interest in all oil, gas, hydrocarbon substances
and other minerals of all kinds whether like or unlike hydrocarbons below a
depth of 500 feet of the surface of the real property without, however, the
right to enter upon the surface of such property, as reserved in a deed from
Janss Development Co., a partnership, recorded December 28, 1971, as Document
No. 80094, in Book 3901 Page 363 Official Records.
26
EXHIBIT A-8
Legal Description -- Westlake Gardens
Parcels A and B of Parcel Map LD No. 663, in the City of Xxxxxxxx Xxxx, Xxxxxx
xx Xxxxxxx, Xxxxx xx Xxxxxxxxxx, as per map filed in Book 56, Pages 52 and 53 of
Parcel Maps, in the office of the County Recorder of said County.
EXCEPT all oil, gas and other hydrocarbon substances lying within and under that
portion of said land lying below a depth of 500 feet measured vertically, from
the surface of said land, without, however, any right to enter upon the surface
of said land nor into that portion of the subsurface thereof, lying above a
depth of 500 feet, measured vertically from said surface, per deed recorded
October 28, 1966, in Book 3061, Page 136 of Official Records.
27
EXHIBIT F-7
Additional Leases for Hillside Corporate Center
[to be attached]
28
HILLSIDE CORPORATE CENTER LLC
List of Leases
# TENANT
200 Ladco
29
EXHIBIT F-8
Additional Leases for Westlake Gardens
Phase I (2525 Townsgate):
[to be attached]
Phase II (2555 Townsgate):
[to be attached]
00
XXXXXXXX XXXXXXX LLC
List of Leases
0000 XXXXXXXXX XX.
# XXXXXX
000 XXX Electronics
300 Kingswood Assoc.
31
EXHIBIT H-7
Personal Property for Hillside Corporate Center
[to be attached]
32
EXHIBIT H-8
Personal Property for Westlake Gardens
Phase I (2525 Townsgate):
[to be attached]
Phase II (2555 Townsgate):
[to be attached]
33
EXHIBIT I-7
Service Contracts for Hillside Corporate Center
[to be attached]
34
EXHIBIT I-8
Service Contracts for Westlake Gardens
Phase I (2525 Townsgate):
[to be attached]
Phase II (2555 Townsgate):
[to be attached]
35
EXHIBIT L
Outstanding Brokerage Commissions
[NONE]
36
EXHIBIT M
Lease Matters
[NONE]
37
EXHIBIT P
Memorandum of Amendment
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
--------------------------------------------------------------------------------
MEMORANDUM OF AMENDMENT
This Memorandum of Amendment is dated for identification purposes
only ______________, 1997, and is made and entered into by and among Xxxxx
Xxxxxx and Xxxxxx Xxxxxx, Co-Trustees of the Silagi Family Trust, Conejo
Business Park, LLC, a California limited liability company, Marin Corporate
Center LLC, a California limited liability company, Evergreen Plaza LLC, a
California limited partnership (collectively, "Original Seller"), Hillside
Corporate Center, LLC, a California limited liability company ("Hillside") and
Westlake Gardens, LLC, a California limited liability company ("Westlake
Gardens"), and Arden Realty Limited Partnership, a Maryland limited partnership
("Buyer"). Original Seller, Hillside and Westlake Gardens shall collectively be
referred to herein as "Seller."
R E C I T A L S
WHEREAS, pursuant to that certain First Amendment to Agreement of
Purchase and Sale and Joint Escrow Instructions dated October 24 , 1997 ("First
Amendment"), made by and between Seller and Buyer, Seller agreed to sell, and
Buyer agreed to purchase, those certain properties listed on Exhibit 1 attached
hereto (the "Properties") upon and subject to all of the terms, covenants and
conditions contained in the First Amendment, including, without limitation,
Seller's covenant to construct certain improvements on the Properties. The First
Amendment amends that certain Agreement of Purchase and Sale and Joint Escrow
Instructions dated August 1, 1997, made by and between Original Seller and
Buyer.
WHEREAS, Buyer and Seller desire to execute and record this
Memorandum of Amendment for the purpose of providing record notice of the
existence and terms of the Amendment.
38
MEMORANDUM OF AMENDMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and of
the mutual covenants and agreements set forth in the Amendment, Buyer and Seller
hereby declare as set forth below:
1. Pursuant to the Amendment, Seller covenants and agrees to
construct the Project in accordance with the Approved Plans, upon and subject to
all of the terms, covenants and conditions set forth in Section 8 of the
Amendment. The performance by Hillside and Westlake Gardens of all of their
obligations under Section 8 of the Amendment is a condition to Buyer's
obligation to purchase the Properties under the Agreement, as amended by the
Amendment.
2. Capitalized terms used herein and otherwise defined shall have
the meanings ascribed to such terms as set forth in the Amendment.
IN WITNESS WHEREOF, Seller and Buyer have duly executed this
Memorandum of Amendment on the dates set forth in the notary acknowledgments
attached hereto.
"SELLER"
--------------------------------------------
XXXXX XXXXXX, Co-Trustee of the Silagi
Family Trust
--------------------------------------------
XXXXXX XXXXXX, Co-Trustee of the Silagi
Family Trust
CONEJO BUSINESS PARK, LLC, a California
limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
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MARIN CORPORATE CENTER, LLC, a California
limited liability company
By:
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Name:
-------------------------------------
Title:
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39
EVERGREEN PLAZA, LLC, a California
limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
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HILLSIDE CORPORATE CENTER, LLC, a
California limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
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WESTLAKE GARDENS, LLC, a California
limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
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"BUYER"
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC., a Maryland
corporation, its general partner
By:
-----------------------------------
Xxxxxx X. Xxxxxxx
Its: President and COO
By:
-----------------------------------
Its:
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40
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On _______________ before me, _______________________, personally
appeared ___________________________________________,
[ ] personally known to me [ ] proved to me on the basis of
satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER:
[ ] Individual(s) [ ] Attorney-In-Fact
[ ] Partner(s) [ ] Subscribing Witness
[ ] Trustee(s) [ ] Guardian/Conservator
[ ] Corporate ____________________ [ ] Other:__________________________
Officer(s)____________________ ______________________________________
Title(s) ______________________________________
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies):_______________________________________________
________________________________________________________________________________
