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 __th day of May, 1998 (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 May 12,
1998 ("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 make certain modifications thereto.
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. Magnolia Street Lease. With respect to that certain
lease dated February 16, 1973 by and between the City Of Long
Beach, a municipal corporation ("City"), as lessor, and Boise
Cascade Urban Development Corporation, a Delaware corporation, as
lessee (the "Boise Cascade Lease"), as subsequently assigned
pursuant to that certain "Assignment of Magnolia Street Lease"
dated October 19, 1973, notwithstanding that Chicago Title
Company has agreed to provide title insurance to Buyer in
connection with the Boise Cascade Lease (upon which insurance
Buyer has agreed to rely in connection with Closing the
transaction) even if such an estoppel certificate is not
obtained, Buyer and Seller agree to cooperate to attempt to
obtain an estoppel certificate from the City after the Closing
Date. Similarly, with respect to the License Agreement dated May
10, 1993, by and between Seller and the Redevelopment Agency of
the City of Long Beach, California ("Agency"), concerning a
license to use a portion of an easement area (the "License"),
notwithstanding that Chicago Title Company has agreed to provide
title insurance to Buyer in connection with the License (upon
which insurance Buyer has agreed to rely in connection with
Closing the transaction) even if the Agency's consent to transfer
of the License is not obtained, Buyer and Seller agree to
cooperate to attempt to obtain the consent of the Agency after
the Closing Date
b. Investigation Period. Buyer and Seller acknowledge and
agree that the Investigation Period terminated in accordance with
the Original Purchase Agreement, effective 5:00 p.m, on
Wednesday, May 13, 1998.
c. Additional Work. As a condition precedent to Buyer=s
obligation to Close, Seller shall have either (i) fully paid for,
prior to the Closing Date, repairs with respect to the 10th, 12th
and 14th floors of the Property, as identified with respect to
the 10th floor in the notice dated September 16, 1997, delivered
to Seller by the Long Beach Fire Department, or (ii) to the
extent such work is not fully paid for prior to the Closing Date,
Buyer shall be given a credit at Closing in an amount equal to
the estimated cost of the work remaining unpaid (as determined
based upon the bid obtained by Seller with respect to the 10th
floor work), and Buyer shall be obligated following the Closing
to complete all such uncompleted work with respect to the 10th,
12th and 14th floors, and to pay any and all costs of such work
unpaid as of the Closing Date.
x. X'Xxxxxxxx & Xxxxxx Lease. Section 4(i) of the
Original Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(i) Lease Terminations - X'Xxxxxxxx & Xxxxxx and Xxxx & Xxxx.
Seller hereby advises Buyer that Seller intends to, and
Seller reserves the right to, terminate those certain leases
entered into by Seller with X'Xxxxxxxx & Xxxxxx and Xxxx &
Xxxx, with respect to Suites 500 and 800 respectively, which
tenants are tenants that are currently in default with
respect to their Leases. In the event that Seller
successfully negotiates a termination of the Josi & Xxxx
Lease prior to the Closing, then Buyer acknowledges and
agrees that Buyer shall not be entitled to any credit in
connection with the Closing as a result of the termination
of such Lease (as Carol, Kelly, & Xxxxxxx have agreed to let
the Josi & Xxxx space), and Seller shall retain its rights
to commence and maintain an action against Josi & Xxxx with
respect to that Lease, and the Lease shall not be assigned
to Buyer. In the event the Josi & Xxxx Lease is not
terminated prior to the Closing Date, then Buyer shall
assume the Lease (and rights and obligations thereunder from
and after the Closing Date), so as to enable Buyer to pursue
an unlawful detainer proceeding and a proceeding against
Lease collateral and guarantors after the Closing Date, in
which event any recovery of Rents, any security deposit, and
proceeds of collateral for such Lease, shall be applied
first to Rents accruing after the Closing Date and prior to
the date of rent commencement under the Xxxxxxx Lease, and
then against Rents in arrears prior to the Closing Date.
With respect to the X'Xxxxxxxx & Xxxxxx space, without
regard to whether Seller successfully terminates the Lease
prior to the Closing, Buyer and Seller agree as follows:
(i) Seller shall retain the right to pursue
its claims against such tenant following the
Closing with respect to all Rents arising
under the Lease;
(ii) Buyer shall use its best efforts to let
the space following the Closing in accordance
with Section 16(r) below; and
(iii) Seller shall place in Escrow the sum of
$63,500.00 (the "Funds"), for credit and
release to Buyer on September 5, 1998,
provided that Buyer complies with its
obligation to attempt to relet the premises,
of an amount equal to the difference between
(i) $63,500, and (ii) the sum of (A) rents
received by Buyer after the Closing with
respect to the X'Xxxxxxxx & Xxxxxx Lease, and
(B) if Buyer enters into a new lease with
respect to the X'Xxxxxxxx & Xxxxxx space on
or before September 5, 1998, rents payable by
a new tenant in the X'Xxxxxxxx & Xxxxxx space
for the period between the Closing Date and
September 5, 1998 (calculated based upon
average rent during the initial year of the
new lease and applying it ratably throughout
such period, even if not so paid). All
remaining Funds shall be released to Seller.
Buyer and Seller acknowledge and agree that $3,500.00
of the Funds to be released to Buyer represent Buyer's and
Seller's agreed liquidated reimbursement of Buyer's likely
attorneys' fees and costs to be incurred in connection with
Buyer's prosecution to completion of an unlawful detainer
proceeding against X'Xxxxxxxx & Xxxxxx, and that neither
Buyer nor Seller shall have any further obligation to each
other with respect to such costs, regardless of whether the
actual amount incurred is greater or lesser than such sum.
Without limiting the generality of the foregoing
paragraphs, if the X'Xxxxxxxx & Xxxxxx Lease is not
terminated prior to the Closing Date, then Buyer shall
assume such Lease (and rights and the obligations thereunder
arising from and after the Closing Date), so as to enable
Buyer to pursue an unlawful detainer proceeding after the
Closing Date, for possession only. Prior to and after the
Closing Date, Seller shall have the sole right to pursue an
action (and Buyer hereby consents thereto) to recover
damages against the X'Xxxxxxxx & Xxxxxx, the Lease
collateral and/or any guarantors, and Seller shall be
entitled to retain any security deposit, rents and proceeds
of collateral for such Lease recovered in such action.
Buyer and Seller shall cooperate with each other in pursuing
unlawful detainer proceedings against X'Xxxxxxxx & Xxxxxx
and Xxxxx & Xxxx, and in all other proceedings in connection
with such Leases.
With respect to the leasing of Suite P-220, as to which
Buyer and Seller anticipated that the existing lease with
Alliance Shippers, Inc. ("Alliance"), which Lease expired
April 30, 1998 would be renewed at market rates, the parties
agree that, if Suite P-220 is not relet effective on or
before the Closing Date (either to Alliance or another
tenant, in each case as approved by Buyer pursuant to
Section 6 hereof), Buyer shall receive a credit against the
Purchase Price in the amount of One Hundred Seventy-Five
Thousand Dollars ($175,000.00).
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
COMPANY OF NEW YORK, ARDEN REALTY LIMITED
a New York mutual life PARTNERSHIP,
insurance company a Maryland limited partnership
By: Arden Realty, Inc., a
By: /s/ Xxxxxxx X. Xxxxxxxxxx Maryland corporation
Name: Xxxxxxx X. Xxxxxxxxxx Its: sole general partner
Its: Regional Vice President
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: President and COO
"ESCROW AGENT:" The
undersigned acknowledges
receipt of this Amendment and
agrees to act in accordance
with all applicable provisions
contained herein.
CHICAGO TITLE COMPANY,
a California corporation
By:/s/ Xxxxxx Xxxxxxx
Its: Senior Escrow Officer
Date: May 20, 1998
