Exhibit 2.1.2
AMENDMENT AND REINSTATEMENT OF
PURCHASE AND SALE AGREEMENT
THIS AMENDMENT AND REINSTATEMENT OF PURCHASE AND SALE AGREEMENT (the
"AMENDMENT AND REINSTATEMENT") is made as of the 29th day of March, 1999, by and
between COPLEY INVESTORS LIMITED PARTNERSHIP, a limited partnership organized
under the laws of the State of Delaware ("CILP") and CORPORATE ACQUISITIONS,
INC., a Delaware corporation ("BUYER"), and is joined in by Anchor Title Company
of Columbia, Maryland (the "TITLE COMPANY"), M.O.R. Commons Limited Partnership
("MOR"), Corporate Office Properties, L.P. ("COP LP") and CILP/Commons Office
Limited Partnership, a limited partnership organized under the laws of the State
of Delaware ("COLP").
WHEREAS, CILP and Buyer have entered into that certain Purchase and
Sale Agreement dated February 26, 1999 (the "PURCHASE AND SALE AGREEMENT")
pursuant to which, INTER ALIA, CILP agreed to sell and Buyer agreed to purchase
CILP's partnership interests in Commons Office Research Partnership and COLP,
respectively;
WHEREAS, pursuant to that certain letter from Roger A. Waesche, Jr. to
AEW Capital Management dated March 3, 1999 (the "TERMINATION NOTICE"), Buyer
exercised its right to terminate the Purchase and Sale Agreement; and
WHEREAS, the parties hereto wish to reinstate the Purchase and Sale
Agreement, subject however to the amendments set forth below.
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Unless otherwise specifically defined herein, all capitalized terms
shall have the meanings set forth in the Purchase and Sale Agreement.
2. Notwithstanding anything to the contrary contained in the Purchase
and Sale Agreement, the Purchase Price (as that term is defined in the Purchase
and Sale Agreement) shall be reduced by Three Hundred Thousand Dollars
($300,000.00) so that the Purchase Price shall be the sum of Sixteen Million
Eight Hundred Forty-Three Thousand Five Hundred Forty-Five and 60/100 Dollars
($16,843,545.60) and the amount of cash held by the Partnership on the Closing
Date; or, if Closing occurs pursuant to the terms of Section 14.14 of the
Purchase and Sale Agreement, the Purchase Price shall be Twenty-Five Million
Seven Hundred Thousand and 00/100 Dollars ($25,700,000.00). The adjustment to
the Purchase Price depending upon the date on which Closing occurs, referred to
in Sections 2(a), 2(b) and 2(c) of the Purchase and Sale Agreement, shall no
longer apply, and, accordingly, Sections 2(b) and 2(c) are hereby deleted in
their entirety.
3. CILP acknowledges receipt of written notice (the "TITLE OBJECTION")
from Buyer of Buyer's disapproval of certain matters disclosed in its title
report, which Title Objection was dated March 1, 1999 and was received on March
2, 1999. With respect to the matters set forth in the Title Objection, on or
before Closing, CILP shall do the following:
a. CILP shall use diligent efforts to cause the current owner
of Lot 5 (the "Lot 5 Owner") to (i) accept title to so-called "Lot 11,"
which is a storm water management area serving Lot 5; (ii) with respect
to Mellon Road, enter into an easement agreement, substantially in the
form entered into for the benefit of Northwest Airlines with respect to
Lot 8 (a copy of which has previously been delivered to Buyer), and
otherwise in form reasonably acceptable to Seller, Buyer and the Lot 5
Owner, providing for, among other things, a sharing of maintenance
expenses for Mellon Road; and (iii) either consent to the fence
blocking the Lot 5 Owner's access easement to Lot 5 from Lot 3, or
terminate such access easement. Seller shall be under no obligation to
accomplish any of the foregoing on or before Closing, and it shall not
be a condition of Buyer's obligation to proceed to closing that any of
the foregoing be accomplished.
b. CILP shall execute and deliver for the benefit of the Title
Company such affidavits and indemnities, in form and substance
reasonably acceptable to CILP, in order to permit the Title Company to
issue a non-imputation endorsement to Buyer's title policy.
c. CILP shall cause to be attached to the Certificate of
Compliance with respect to the Declaration of Covenants (a copy of
which has previously been delivered to Buyer) an acknowledgement,
permitting the Certificate to be recorded.
d. CILP shall provide Buyer with a copy of a Termination of
Agreement, pursuant to which Hardee's Food Systems has waived its right
to purchase Lot 2.
e. CILP shall provide a letter to Buyer that CILP is not aware
of any outstanding bonds or letters of credit except with respect to
grading permits for Lots 6 and 7 of the Property currently in effect.
CILP has been informed by the county that the grading on Lots 6 and 7
has been satisfactorily completed, and CILP shall cause the letters of
credit with respect to such grading permits to be released as soon as
reasonably practicable after Closing.
Subject to Seller's fulfillment of its obligations set forth above in
this Paragraph 3, Buyer accepts title to the Property in its current condition,
waives all objections to title set forth in the Title Objection not addressed in
this Paragraph 3, and waives any
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objections to title which were not described in the Title Objection.
4. Buyer hereby acknowledges that both the First Inspection Period and
the Second Inspection Period have expired. Buyer further acknowledges that,
subject to Paragraph 3 above, it has waived any objections it may have had to
any and all aspects of the Property, and that the Property is fully satisfactory
to Buyer in all respects. Consequently, Buyer shall have no right to terminate
the Purchase and Sale Agreement except for Buyer's right to terminate the
Purchase and Sale Agreement under Section 4.2(d) if CILP fails to perform its
obligations set forth in Paragraph 3 above.
5. If the First Deposit has been returned to Buyer, Buyer shall,
concurrent with the execution and delivery of this Amendment and Reinstatement,
redeliver the First Deposit to the Title Company.
6. Subject to the amendments set forth in paragraphs 2 through 5 above,
the parties hereto hereby reinstate the Purchase and Sale Agreement, so that the
Purchase and Sale Agreement shall continue in full force and effect,
notwithstanding the Termination Notice, as if the Termination Notice had never
been given.
7. The parties hereto agree that the Termination Notice never had any
effect upon the validity or enforceability of that certain Right of Entry
Agreement dated February 26, 1999, which Right of Entry Agreement has continued
and still continues in full force and effect.
8. CILP, COLP, Buyer, COP LP and MOR each hereby acknowledge that, for
purposes of the Purchase and Sale Agreement, the amount of the Debt as of the
Closing, regardless of the date upon which the Closing occurs, shall be deemed
to be Eight Million Eight Hundred Fifty-Six Thousand Four Hundred Fifty-Four and
40/100 Dollars ($8,856,454.40).
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IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment and Reinstatement as of the date first written above.
CILP: COPLEY INVESTORS LIMITED PARTNERSHIP,
a Delaware Limited Partnership
By: Copley Management Partnership,
a Massachusetts general partnership, its
Managing Partner
By: AEW Advisors, Inc., a Massachusetts
corporation, its Managing General
Partner
By: /s/ Alison Husid Cutler
-------------------------------
Name:Alison Husid Cutler
Title:Vice President
BUYER: CORPORATE ACQUISITIONS, INC.,
a Delaware corporation
By: /s/ Roger A. Waesche Jr.
-------------------------------------
Name: ROGER A. WAESCHE JR.
Title: Sr. V.P.
TITLE COMPANY: ANCHOR TITLE COMPANY,
a Maryland corporation
By: /s/ M. Charlotte Powel
-------------------------------------
Name: M. Charlotte Powel
Title: President
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MOR: M.O.R. COMMONS LIMITED PARTNERSHIP
By: RA & DM, Inc., its general partner
By: /s/ Richard Alter
----------------------------
Name: Richard Alter
Title: President
COP LP: CORPORATE OFFICE PROPERTIES, L.P.
By: Corporate Office Properties Trust,
its general partner
By: /s/ Roger A. Waesche Jr.
----------------------------
Name: ROGER A. WAESCHE JR.
Title: Sr. V.P. and CFO
COLP: CILP/COMMONS OFFICE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Copley Investors limited Partnership, a
Delaware limited partnership, its Managing
General Partner
By: Copley Management Partnership,
a Massachusetts general partnership, its
Managing General Partner
By: AEW Advisors, Inc., a
Massachusetts corporation, its
Managing General Partner
By: /s/ Alison Husid Cutler
-------------------------
Name: Alison Husid Cutler
Title: Vice President
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