Exhibit 2.5
FIRST AMENDMENT
TO
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
CORPORATE OFFICE PROPERTIES, L.P.
THIS AMENDMENT (the "Amendment") to the Amended and Restated Limited
Partnership Agreement of Corporate Office Properties, L.P., a Delaware
limited partnership (the "Partnership") is made and entered into as of
September 28, 1998, by and among the undersigned parties.
Recitals
A. The Partnership is a limited partnership organized under the
Delaware Revised Uniform Limited Partnership Act (the "Act") and governed by
that certain Amended and Restated Limited Partnership Agreement dated as of
March 16, 1998 (the "Partnership Agreement").
B. The sole general partner of the Partnership is Corporate Office
Properties Trust, a real estate investment trust formed under the laws of the
State of Maryland (the "General Partner").
C. The General Partner and the Partnership have entered into that
certain Contribution Agreement and Service Company Asset Contribution
Agreement (the "Constellation Agreements") with Constellation Real Estate
Group, Inc. ("CREG") and certain partnerships and other entities affiliated
with CREG (collectively, "Constellation"), pursuant to which Constellation
will contribute certain real property, partnership and membership interests
in certain entities which hold real property or mortgages secured by real
property and certain other assets (the "Constellation Assets") to or for the
benefit of the General Partner, subject to certain liabilities, in exchange
for the issuance by the General Partner of approximately 6,928,000 Common
Shares of Beneficial Interest in the General Partner ("REIT Shares") and
approximately 969,900 Series A Convertible Preferred Shares of Beneficial
Interest in the General Partner ("Series A Preferred REIT Shares").
D. As required under Sections 4.2(B) and (C) of the Partnership
Agreement, the General Partner intends to transfer the Constellation Assets
(or cause them to be transferred) to or for the benefit of the Partnership in
exchange for additional Partnership Interests in the Partnership having
designations, rights and preferences substantially similar to the economic
rights of the holders of the REIT Shares and Series A Preferred REIT Shares
issued by the General Partner in exchange for the Constellation Assets.
E. The parties desire to amend the Partnership Agreement to provide
for the contribution of the Constellation Assets by the General Partner to
the Partnership in exchange for additional Partnership Interests in the
Partnership in accordance with
Section 4.2(B) of the Partnership Agreement, and for such other matters as
set forth below. Unless otherwise defined herein, all capitalized terms used
in this Amendment shall have the same meanings as set forth in the
Partnership Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
premises set forth herein, the parties hereto, intending to be legally bound
hereby, hereby amend the Partnership Agreement as follows, effective as of
the date set forth above:
1. The foregoing recitals to this Amendment are hereby incorporated
in and made a part of this Amendment.
2. Section 1.1 of the Partnership Agreement is amended by amending
and restating the terms "Partnership Unit," "Preferred Limited Partner,"
"Preferred Unit" and "Priority Return Amount" in their entirety and by adding
the following additional defined terms:
"Initial Limited Partners: Those Persons initially admitted to
the Partnership as Limited Partners in connection with the
contribution of property to the Partnership in accordance with
the Formation Agreement and the other Contribution Agreements.
Initial Preferred Unit: One of the Preferred Units previously
issued or to be issued after the date hereof to the Initial
Limited Partners of the Partnership in connection with the
contribution of the Contributed Property in accordance with
the Contribution Agreements, and any other Preferred Unit
issued after the date hereof with the same rights and
preferences.
Partnership Unit: A fractional, undivided share of the
Partnership Interests (other than Partnership Interests
represented by Preferred Units) of all the Partners heretofore
or hereafter admitted to the Partnership pursuant to Section
4.1 or 4.2 hereof.
Preferred Limited Partner: Those Persons listed as such on
Exhibit 1 attached hereto and made a part hereof, as such
Exhibit 1 may be amended from time to time, in their capacity
as limited partners in the Partnership holding Preferred
Units, including any Person who becomes a Substituted
Preferred Limited Partner or an Additional Preferred Limited
Partner in accordance with the terms of this Agreement and
including the General Partner, but only in its capacity as the
holder of Preferred Units.
Preferred Unit: A portion of the Partnership Interest held by
a Limited Partner or the General Partner that represents a
unit of preferred interest in the Partnership, including an
Initial Preferred Unit, a Series A Preferred Unit and a unit
of any other class or series of preferred interest in the
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Partnership that may be issued to a Partner in the future in
accordance with Section 4.2(A) or (B).
Priority Return Amount: For each Distribution Period, an
amount equal to (i) for each Partner holding Initial Preferred
Units, 1.625% times the number of Initial Preferred Units held
by such Partner times $25.00, (ii) for each Partner holding
Series A Preferred Units, 1.375% times the number of Series A
Preferred Units held by such Partner times $25.00 and (iii)
for each Partner holding a class of Preferred Units issued
after the date hereof, such amount as determined by the
General Partner in accordance with Section 4.2(A) or (B),
whichever is applicable. For all purposes of this Agreement,
the holders of Initial Preferred Units, the Series A Preferred
Units and any future classes or series of Preferred Units
shall be entitled to allocations and distributions with
respect to Priority Return Amounts on a pari passu basis. In
the case of any Preferred Units issued during a Distribution
Period, the Priority Return Amount attributable to such
Preferred Units for such Distribution Period shall be pro
rated to reflect the portion of such Distribution Period
during which such Preferred Units were outstanding.
Series A Preferred Unit: One of the Preferred Units to be
issued to the General Partner in connection with the
contribution of the Constellation Assets to the Partnership by
the General Partner, and any other Preferred Unit issued after
the date hereof with the same rights and preferences."
3. (a) Upon acquisition of the Constellation Assets from
Constellation under the Constellation Agreements, the General Partner shall
contribute the Constellation Assets to the Partnership, provided that certain
Constellation Assets may, at the direction of the General Partner, be
conveyed directly to the Partnership or to one or more limited liability
companies owned and controlled by the Partnership. The Constellation Assets
shall be accepted subject to existing liabilities, as the same may be
modified by the General Partner and/or the Partnership.
(b) Upon the contribution of the Constellation Assets to
the Partnership by the General Partner, and in accordance with Section 4.2(B)
of the Partnership Agreement, the Partnership shall issue to the General
Partner (i) a number of Partnership Units equal to the number of REIT Shares
issued by the General Partner to Constellation under the Constellation
Agreements and (ii) a number of Series A Preferred Units equal to the number
of Series A Preferred REIT Shares issued by the General Partner to
Constellation under the Constellation Agreements.
(c) For purposes of the Partnership Agreement, including the
maintenance of Capital Accounts, the General Partner shall be treated as making
a Capital Contribution equal the sum of (i) $10.50 times the number of
Partnership Units issued to the General Partner, plus (ii) $25.00 times the
number of Series A Preferred Units issued
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to the General Partner. For purposes of the Partnership Agreement, the
initial Agreed Value of the Constellation Assets shall equal the sum of the
foregoing Capital Contribution made by the General Partner plus the aggregate
amount of liabilities assumed by the Partnership in connection with such
contribution or to which the Constellation Assets are subject.
(d) The General Partner shall amend Exhibit 1 to the
Partnership Agreement to reflect the issuance of additional Partnership Units
and Series A Preferred Units to the General Partner, and shall also amend
Exhibit 1 to reflect the different classes of Preferred Stock held by the
respective Partners.
4. (a) That portion of the Constellation Assets acquired by the
General Partner from Constellation under that certain Service Company Asset
Contribution Agreement (the "Service Assets") shall, immediately following
their contribution to the Partnership by the General Partner, be contributed
by the Partnership to Corporate Office Management, Inc., a Maryland
corporation ("COMI"), in exchange for cash of $24,750 (or such other amount
as determined by the General Partner), one or more promissory notes in the
aggregate principal amount of $2,005,000, 10 shares of Class A Voting Stock
of COMI and 18,800 shares of Class B Non-Voting Common Stock of COMI.
(b) The Constellation Assets other than the Service Assets may
be held directly by the Partnership, or through such partnerships, limited
liability companies or other entities owned and controlled by the Partnership
as the General Partner may determine.
5. Section 5.2(C) of the Partnership Agreement is amended to add
the following paragraph thereto:
"(9) In the event that during any taxable year any Preferred
Units are converted, pursuant to Section 9.8(A), into
Partnership Units prior to a distribution having been made
under Section 5.3(A) of an unpaid Priority Return Amount with
respect to such Preferred Units, there shall be allocated to
the Partner who held such converted Preferred Units items of
loss and deduction in an amount equal to the excess of (a)
allocations previously made with respect to such converted
Preferred Units pursuant to Section 5.2(A)(5) over (b) the
Priority Return Amount previously distributed or remaining to
distributed with respect to such converted Preferred Units
pursuant to Sections 5.3(A), 9.8(A) and 9.8(B)."
6. Section 5.3(A)(2) of the Partnership Agreement is amended and
restated to read as follows:
"(2) Second, there shall be distributed with respect to each
Partnership Unit an amount equal on a per Unit basis to the
amount distributed (other than in REIT Shares) by the General
Partner on its common shares during
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the Fiscal Year (other than a liquidating distribution),
except that (i) the first distribution paid to a Limited
Partner with respect to newly issued Partnership Units shall
be pro rated to reflect the actual portion of the Distribution
Period for which the distribution is being paid during which
such Partnership Units were outstanding, and (ii) the first
distribution made to the General Partner with respect to
Partnership Units newly issued to the General Partner pursuant
to Section 4.2(B) hereof shall be pro rated to the same extent
(if any) by which the first dividends payable on the REIT
Shares newly issued by the General Partner are subject to
proration. To the extent practicable, distributions under this
paragraph shall be made at the same time as the dividend
distributions made by the General Partner on its REIT Shares."
7. Section 9.8(A) of the Partnership Agreement is amended and
restated to read as follows:
"(A) (1) Each Limited Partner holding Preferred Shares shall
have the right, at any time or from time to time, to convert
on or after October 1, 1999 some or all of its Preferred Units
into Partnership Units, effective upon January 1, April 1,
July 1 or October 1 of any year, by providing the General
Partner with a Conversion Notice not less than 30 days prior
to the effective date of such conversion. Upon the effective
date of any such conversion, the Preferred Units which are the
subject of such conversion shall be converted, without
necessity of any further action by the General Partner, into
that number of Partnership Units the Limited Partner is
entitled to receive on such conversion plus an amount of cash
equal to the accrued Priority Return Amount in respect of such
Preferred Units.
(2) In the case of Initial Preferred Units, each
Initial Preferred Unit may be converted into Partnership Units
on the basis of 3.5714 Partnership Units for each Initial
Preferred Unit being converted.
(3) Other classes of Preferred Units, if any, issued
to Limited Partners after the date hereof shall be convertible
into Partnership Units on such terms as may be agreed by the
Partnership and the holder of such Preferred Units, and the
right to convert such Preferred Units shall be subject to such
further restrictions and limitations as may be agreed upon.
(4) At such time as any Series A Preferred REIT
Shares issued by the General Partner are converted into REIT
Shares by the holder thereof, an equal number of Series A
Preferred Units held by the General Partner shall
automatically be converted into a number of Partnership Units
equal to the number of REIT Shares issued by the General
Partner upon the conversion of such Series A Preferred REIT
Shares.
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(5) In any case in which the conversion into
Partnership Units under this Section 9.8(A) would result in
the issuance of a fractional Partnership Unit, the General
Partner shall pay the converting Partner cash in lieu of
issuance of a fractional Partnership Unit, with the value of
such fractional interest being determined by reference to the
Unit Value applicable on the date of conversion.
8. Section 9.8(B) of the Partnership Agreement is amended to add the
following sentence at the end thereof:
"Notwithstanding anything to the contrary in this Section
9.8(B) or Section 5.3(A)(1) hereof, in any case in which there
is an unpaid Priority Return Amount with respect to a Series A
Preferred Unit that is converted pursuant to Section 9.3(A)
hereof, the converting Partner shall be entitled to
distributions (and allocations) under Article V and Section
10.2 of this Agreement to the same extent and in the same
amount as the holder of the Series A Preferred REIT Shares
with respect to which such Series A Preferred Units are being
converted is entitled to receive dividends from the General
Partner upon the conversion of such Series A Preferred REIT
Shares."
9. Clause (iii) of Section 11.1(B) of the Partnership
Agreement, relating to amendments that may be made to the Partnership
Agreement without the consent of any Limited Partner, shall be amended and
restated as follows:
"(iii) reflect the admission, substitution, termination or
withdrawal of Partners in accordance with this Agreement
(including the issuance of Partnership Units and Preferred
Units to a Partner (including the General Partner) in
accordance with the requirements of Section 4.2(A) or (B)
hereof, and the designation of the preferences and rights of
any such Preferred Units),"
(Remainder of Page Intentionally Left Blank)
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10. This Amendment may be executed in several counterparts, which
shall be treated as originals for all purposes, and all so executed shall
constitute one amendment, and shall be binding and effective when a
counterpart of this Amendment has been executed by the General Partner and
that number of Limited Partners whose consent is required to this Amendment
under Section 11.1 of the Partnership Agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the parties hereto as of the day and year first above written.
GENERAL PARTNER:
CORPORATE OFFICE PROPERTIES TRUST
By:
-----------------------------------------
LIMITED PARTNERS:
SHIDLER EQUITIES, L.P.
By: SHIDLER EQUITIES CORP.
By:
-----------------------------------------
Name:
Title:
- --------------------------------------------
Jay H. Shidler
LBCW LIMITED PARTNERSHIP
By: /s/ Clay W. Hamlin, III
-----------------------------------------
Clay W. Hamlin, III, General Partner
CHLB PARTNERSHIP
By: /s/ Clay W. Hamlin, III
-----------------------------------------
Clay W. Hamlin, III, General Partner
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/s/ Clay W. Hamlin, III
- --------------------------------------------
Clay W. Hamlin, III
LGR INVESTMENT FUND, LTD.
By:
-----------------------------------------
Name:
- --------------------------------------------
Robert L. Denton
- --------------------------------------------
John E. de B. Blockey, Trustee of the
John E. de B. Blockey Living Trust
dated 9/12/88
- --------------------------------------------
Henry D. Bullock
- --------------------------------------------
Frederick K. Ito
/s/ James K. Davis
- --------------------------------------------
James K. Davis
/s/ Denise J. Liszewski
- --------------------------------------------
Denise J. Liszewski
- --------------------------------------------
Samuel Tang
/s/ David P. Hartsfield
- --------------------------------------------
David P. Hartsfield
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/s/ Lawrence J. Taff
- --------------------------------------------
Lawrence J. Taff
/s/ Kimberly F. Aquino
- --------------------------------------------
Kimberly F. Aquino
TIGER SOUTH BRUNSWICK, L.L.C.
By:
-----------------------------------------
Name:
Title:
WESTBROOK REAL ESTATE FUND T, L.P.
By: WESTBROOK REAL ESTATE PARTNERS
MANAGEMENT T., L.L.C.
By:
-----------------------------------------
Name:
Title:
WESTBROOK REAL ESTATE CO. INVESTMENT
PARTNERSHIP T., L.P.
By: WESTBROOK REAL ESTATE PARTNERS
MANAGEMENT I, L.L.C.
By:
------------------------------------------
Name:
Title:
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