Exhibit 2.4
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO CONTRIBUTION AGREEMENT ("Second Amendment") is
made and executed as of this 28th day of September, 1998 by and between
CORPORATE OFFICE PROPERTIES TRUST and CORPORATE OFFICE PROPERTIES, L.P.
(collectively, the "Buyer") and the Sellers listed on the signature page to this
Second Amendment and as defined in the Contribution Agreement (collectively, the
"Sellers" and each individually, a "Seller").
A. Sellers and Buyer entered into a Contribution Agreement dated May
14, 1988, as amended on July 16, 1998 by a First Amendment to Contribution
Agreement (the "Contribution Agreement"), pursuant to which Sellers agreed to
contribute a property known as Xxxxxxx and certain interests in Entities which
own certain real estate and a mortgage in Maryland to the Buyer in exchange for
cash, the assumption of certain debt, and Common Shares and Convertible
Preferred Shares. Capitalized terms used, but not defined, in this Second
Amendment shall have the meanings given to such terms in the Contribution
Agreement.
X. Xxxxxxx and Buyer desire to amend the Contribution Agreement as set
forth in this Second Amendment.
NOW, THEREFORE, in consideration of the agreements contained herein and
intending to be legally bound hereby, Sellers and Buyer agree as follows:
1. Exhibit "TIF Agreement" is hereby deleted from the Contribution
Agreement, and Exhibit "TIF Agreement" attached hereto and made a part hereof,
is hereby attached to and made part of the Contribution Agreement as Exhibit
"TIF Agreement".
2. Buyer hereby elects to convert all of the Satisfied Indebtedness to
Assumed Indebtedness pursuant to Section 1.83 of the Contribution Agreement.
Sellers and XXXX shall be released from all future liability under such
converted Assumed Indebtedness.
3. Pursuant to Section 11.1.4 of the Contribution Agreement, Sellers
have elected to transfer certain partnership and limited liability company
interests prior to Closing as shown in Exhibit "Interest Changes" attached
hereto and made a part hereof. Except as shown on Exhibit "Interest Changes",
there have been no changes in the composition of any Entity between May 14, 1998
and the date hereof. Sellers represent and warrant that certified copies of all
documents necessary to effectuate the transfers shown on Exhibit "Interest
Changes" will be delivered to Buyer on or before the First Closing.
4. The term "Development Management Agreement" is hereby deleted from
Section 1.31 of the Contribution Agreement, and the term "Project Consulting and
Management Agreement" is substituted in its place. The term "Development
Management Agreement" is hereby deleted wherever it appears in Section 5.7 of
the Contribution Agreement, and the term "Project Consulting and Management
Agreement" is hereby substituted in its place. Exhibit "Development Management
Agreement" is hereby deleted from the Contribution Agreement, and Exhibit
"Projects Consulting and Management Agreement" attached hereto and made a part
hereof, is hereby attached to and made part of the Contribution Agreement as
Exhibit "Project Management and Consulting Agreement".
5. The first sentence of Section 6.2.1 of the Contribution Agreement is
amended by changing "December 31, 1998" to "March 31, 1999". The second sentence
of Section 6.2.2 is revised by adding at the end thereof the following language:
"; provided, however, that notwithstanding the foregoing,
Buyer and Sellers shall consummate the Woodlands Closing
simultaneously with the closing of the first financing
transaction by Buyer for all or any portion of the Projects
transferred to Buyer at the First Closing. In the event of
such a simultaneous closing of a financing transaction with
the Woodlands Closing, the Woodlands Gross Value shall be
$17,600,000, and shall not be reduced pursuant to Section
3.2.5; and Sellers shall, from time to time, reimburse Buyer,
within seven (7) days after presentation of a xxxx therefor,
for all interest payments with respect to financing on the
Woodlands I Project from the date of the Woodlands Closing
until October 21, 1998."
6. Exhibit "Option Projects" to the Contribution Agreement is hereby
deleted from the Contribution Agreement, and Exhibit "Option Projects" attached
hereto and made a part hereof, is hereby attached to and made part of the
Contribution Agreement as Exhibit "Option Projects". All references in the
Contribution Agreement to the Option Project identified as "Annapolis Exchange"
are deleted.
7. Exhibit "Projects" to the Contribution Agreement is hereby amended
by adding to the reference for One Constellation Centre the following:
"Unit 5, Constellation Centre Condominium
vacant land
30,495 sq. ft. tract"
and by changing the reference to Constellation Centre - Nations Bank Parcel from
"25,933 sq. ft. tract" to "47,701 sq. ft. tract".
8. The address for notices to Buyer is hereby changed as follows:
Corporate Office Properties Trust
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, III
President and Chief Executive Officer
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Copies of notices to Buyer shall still be sent as set forth in the Contribution
Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Sellers
and Buyer have executed this Second Amendment on the day and year first above
written.
BUYER:
CORPORATE OFFICE PROPERTIES, L.P.
By: Corporate Office Properties Trust,
its sole general partner
By:
-----------------------------------
Xxxx X. Xxxxxx, III
President and Chief Executive Officer
SELLERS:
CONSTELLATION PROPERTIES, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPI NATIONAL BUSINESS PARK I, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPI NATIONAL BUSINESS PARK II, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
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[SIGNATURES CONTINUED ON NEXT PAGE]
CPI NATIONAL BUSINESS PARK IV, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPO CONSTELLATION CENTRE, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPO LAUREL TOWER, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPO THREE CENTRE PARK, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPI XXXXX'X WHARF, INC.,
a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
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[SIGNATURES CONTINUED ON NEXT PAGE]
CPI PARTNER, INC., a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPI TRED AVON, INC., a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
CPI GATESPRING, INC., a Maryland corporation
By:
-----------------------------------
Xxx X. Xxxxxxxxxx
Secretary
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EXHIBIT "TIF AGREEMENT "
INDEMNIFICATION AGREEMENT
(National Business Park--TIF)
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this day of
September, 1998 by CONSTELLATION PROPERTIES, INC. ("CPI") in favor of CORPORATE
OFFICE PROPERTIES L.P. ("COPLP"); CPI being sometimes referred to as
"Indemnitor" and COPLP, and its successors and assigns, being sometimes referred
to as "Indemnitee."
WITNESSETH
WHEREAS, CPI, through various related and affiliated entities, has
developed and continues to develop the "National Business Park", which is
located in Annapolis Junction, Xxxx Arundel County, Maryland (the "Park");
WHEREAS, in connection with the development of the Park, CPI
determined, in conjunction with the County Council of Xxxx Arundel County,
Maryland, that in order to most efficiently and effectively develop the
necessary infrastructure and public improvements in and around the vicinity of
the Park, that Xxxx Arundel County would (i) impose tax incremental financing on
certain properties located in the County, including, among others, the Park, and
(ii) create a Special Tax District which included the Park pursuant to the
authority granted to the County Council by Article 6, Title 4A, Section 4A-101
et seq. of the Xxxx Arundel County Code;
WHEREAS, the Special Tax District pertaining to the Park is commonly
referred to as the "NBP Special Tax District" and was approved by the County
Council of Xxxx Arundel County on March 4, 1998, in Xxxx No. 15-98;
WHEREAS, as of the date hereof, COPLP has (i) acquired an ownership
interest in several of the NBP Properties described as Lot 3B (commonly referred
to as the "Tower" or "One National Business Park"), Lot 6AR (known as "131
National Business Park"), Lot 6-BR (known as "133 National Business Park"), Lot
7A (known as "135 National Business Park") and Lot 7B (known as "141 National
Business Park") and (ii) will acquire an interest in Lot 11 (known as "134
National Business Park") pursuant to the terms of that certain Option Agreement
dated May 14, 1998 by and between NBP-III, LLC and COPLP;
WHEREAS, Xxx Xxxxxxxx Xxxxxxxx Xxxx, 000 Xxxxxxxx Xxxxxxxx Xxxx, 133
National Business Park, 135 National Business Park and 000 Xxxxxxxx Xxxxxxxx
Xxxx and 000 Xxxxxxxx Xxxxxxxx Xxxx are referred to collectively herein as the
"COPLP Properties";
WHEREAS, CPI does not anticipate that there will be any increase in the
taxes or assessments levied on the COPLP Properties as a result of the tax
incremental financing or the creation of the NBP Tax District, as compared to
the taxes or assessments that would be levied on the COPLP Properties if the tax
incremental financing or the NBP Tax District did not exist;
WHEREAS, in consideration of COPLP acquiring an ownership interest in
the COPLP Properties, to the extent that the taxes and/or assessments levied on
the COPLP Properties as a result of the creation and continued existence of the
tax incremental financing and/or the NBP Tax District exceed those taxes and/or
assessments which would be levied if the tax incremental financing and/or NBP
Tax District did not exist (the "Tax Differential"), CPI has agreed to indemnify
and hold COPLP harmless from and against any additional taxes and/or assessments
resulting from the Tax Differential which are levied on the COPLP Properties in
which COPLP or any affiliates or subsidiary acquires an ownership interest.
NOW THEREFORE, it is mutually agreed, as follows:
1. Incorporation of Recitals. The Recitals shall be deemed to be an
integral part of this Agreement.
2. Indemnification.
2.1 Indemnitor hereby indemnifies Indemnitee and undertakes to hold it
harmless from the Tax Differential and shall reimburse Indemnitee within
forty-five (45) days after receipt from Indemnitee of a written notice
identifying the amount of the Tax Differential and reasonable supporting
documentation ("Indemnitee's Request").
2.2 Indemnitor shall notify Indemnitee in writing within thirty (30)
days after receipt of Indemnitee's Request of any objections to the Indemnitee's
Request (the "Objection Notice"). If Indemnitor delivers an Objection Notice
within the thirty (30) day period, Indemnitor shall have the right to extend the
forty-five (45) day period for payment for an additional period of forty-five
(45) days (resulting in payment being required within ninety (90) days after the
date of Indemnitee's Request) to permit the Indemnitor to evaluate the cause for
the Tax Differential with the appropriate officials of Xxxx Arundel County.
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2.3 If Indemnitor determines, in conjunction with Xxxx Arundel County,
that the Tax Differential claimed by the Indemnitor was not computed accurately,
Indemnitor shall notify the Indemnitee in writing on or before that day which is
sixty (60) days after the date of Indemnitee's Request of the accurate amount of
the Tax Differential, if any, together with reasonable supporting documentation
which is either prepared by Xxxx Arundel County or obtained from its records.
2.4 Any claims made by Indemnitee under the terms of this Agreement
shall be made within three (3) years after the date of that the Tax Differential
is assessed or levied.
3. Term. The term of this Agreement shall be from the date hereof to
that date which is twenty (20) calendar years after the date hereof ("Term").
Indemnitee shall have no further rights to deliver an Indemnitee's Request after
the expiration of the Term.
4. Binding Nature. This Agreement and all duties and rights hereunder
shall run with the land and shall be binding on Indemnitor's successors and
assigns and shall inure to the benefit of Indemnitee's successors and assigns.
5. Miscellaneous.
(a) Notices. Any notice required by the terms hereof shall be given in
writing at the address set forth below by any of the following means: (a)
personal service, (b) electronic communication, whether by facsimile, telex,
telegram or telecopy, (c) registered or certified United State mail, postage
prepaid, return receipt requested, or (d) by nationally recognized overnight
delivery service, as follows:
CPI: Constellation Properties, Inc.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
With a copy to: Constellation Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
COPLP: Corporate Office Properties, L.P.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
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With a copy to: Corporate Office Properties L.P.
Corporate Office Properties Trust
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, III
President and Chief Executive
Officer
Such address(es) may be changed by either party by notice to the other
in the manner provided above. Any notice sent (i) pursuant to subsection (a)
shall be deemed received upon personal service, (ii) pursuant to subsection (b)
shall be deemed received upon dispatch by electronic means, (iii) pursuant to
subsection (c) shall be deemed received three (3) days following deposit in the
United States mail, and (iv) pursuant to subsection (d) shall be deemed received
one (1) business day after delivery to the nationally recognized overnight
delivery service.
(b) Applicable Law. The formation of this Agreement and the respective
rights and obligations of the parties under this Agreement shall be construed in
accordance with the laws of the State of Maryland.
(c) Captions. The captions of the Agreement are for convenience
purposes only and shall have no effect on its construction or interpretation.
(d) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(e) Entire Agreement.This Agreement, together with any exhibits
attached hereto, represents the entire agreement between Owner and Manager and
all prior agreements and negotiations have been merged herein. This Agreement
may not be changed or terminated orally.
(f) Severability. Each provision of this Agreement is intended to be
severable. If any term or provision of this Agreement shall be determined by a
court of competent jurisdiction to be illegal or invalid for any reason
whatsoever, that provision shall be severed from this Agreement and shall not
affect the validity of the remainder of this Agreement.
(g) Attorney's Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such may be entitled.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective on the day and year first set forth above.
ATTEST: CONSTELLATION PROPERTIES, INC.
By:
------------------------------- -------------------------------------
Xxx X. Xxxxxxxxxx, Secretary
ATTEST: CORPORATE OFFICE PROPERTIES L.P.
By: Corporate Office Properties Trust,
its sole general partner
By:
------------------------------- -------------------------------------
Xxxx X. Xxxxxx, III
President and Xxxxx Xxxxxxxxx
Xxxxxxx
0
XXXXX XX XXXXXX XX ,XX WIT:
------------ -------------------
I HEREBY CERTIFY, that on this day of , 1998, before
--- -----------
me, undersigned Notary Public of said State, personally appeared
, who acknowledged himself to be the
--------------------------- ---------------
of Constellation Properties, Inc., a Maryland corporation, known to me or
satisfactorily proven to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the purposes
therein contained as the duly authorized of said corporation
----------------
by signing the name of the corporation himself as .
------------------------
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
------------------------------------
Notary Public
My commission expires:
STATE OF COUNTY OF ,TO WIT:
------------ -------------------
I HEREBY CERTIFY, that on this day of , 1998,
---- ------------
before me, undersigned Notary Public of said State, personally appeared
XXXX X. XXXXXX, III, known to me or satisfactorily proven to be the person
whose name is subscribed to the within instrument, who acknowledged himself
to be the President and Chief Executive Officer of Corporate Office Proerties
Trust, general partner of Corporate Office Properties L.P., a limited
partnership and acknowledged that he executed the same for the purposes
therein contained as the duly authorized President and Chief Executive
Officer of said general partner of said limited partnership by signing the
name of the corporation by himself as President and Chief Executive Officer.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
-----------------------------------
Notary Public
My commission expires:
-------------
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ATTORNEY CERTIFICATION
THE UNDERSIGNED, an attorney admitted to practice before the Court of
Appeals of Maryland, hereby certifies that the above instrument was prepared by
me or under my supervision.
-----------------------------------
Xxxx Xxxxxx Xxxxxx, Attorney-at-Law
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EXHIBIT "INTEREST CHANGES"
Type of Interest Original % Closing %
---------------- ---------- ---------
PARTNERSHIPS
Xxxxx'x Wharf Limited Partnership
Constellation Properties, Inc. GP 0.4 0.4
LP 39.6 98.6
CPI Xxxxx'x Wharf, Inc. GP 0.6 0.6
LP 59.4 0.4
NBP-II Limited Partnership
Constellation Properties, Inc. GP 2.0 2.0
LP 2.94 78.0
CPI National Business Park
II, Inc. GP 0.0 0.0
LP 95.06 20.0
LIMITED LIABILITY COMPANIES
Tred Lightly Limited Liability Company
Constellation Properties, Inc. Member 0.0 75.0
CPI Tred Avon, Inc. Member 75.0 0.0
TA Associates Member 25.0 25.0
Limited Partnership
EXHIBIT "PROJECT CONSULTING AND MANAGEMENT AGREEMENT"
PROJECT CONSULTING AND MANAGEMENT AGREEMENT
THIS PROJECT CONSULTING AND MANAGEMENT AGREEMENT (hereinafter the
"Agreement") is made as of the _____ day of ________, 1998, by and between
CONSTELLATION PROPERTIES, INC. (hereinafter "Owner"), and CORPORATE OFFICE
MANAGEMENT, INC., a Maryland Corporation (hereinafter "Manager").
W I T N E S S E T H:
WHEREAS, Owner through its various subsidiaries and affiliates is the
owner of a portfolio of properties and projects (both vacant land and buildings
in construction) located in the Central Maryland area (hereinafter the
"Properties"), the exact locations and designations of the Properties being
known by the parties hereto;
WHEREAS, Owner is managing its ownership of the Properties, including
the planning and development of the Properties for residential, commercial and
industrial uses; and
WHEREAS, Owner and Manager acknowledge and agree that the following
projects are included, among others, within the Properties and are currently in
various stages of development by the Owner through the specified subsidiaries
and affiliates: (i) NBP IV, LLC is the owner of an office building known as 000
Xxxxxxxx Xxxxxxxx Xxxxxxx which project is nearing completion; needing only
certain interior, elevator and exterior landscaping work to be completed; (ii)
Constellation Gatespring, LLC is the owner of an office building project known
as Woodlands One which project is nearing completion; (iii) Piney Orchard
Village Center, LLC is the owner of a retail strip project known as Piney
Orchard Village Center which project is under construction with completion
scheduled for completion December 31, 1998; and (iv) Constellation Springfield,
LLC is the owner of 60% LLC interest in another entity (Xxxx-Spring TSA, LLC)
which is the owner of a retail shopping center in Springfield, Virginia, which
project is under construction with completion scheduled for December 31, 1998 (
the foregoing items (i) through (iv) collectively referred to herein as the
"Under Development Projects").
WHEREAS, Owner desires to employ Manager to provide ongoing planning,
management and consulting services with respect to the management of Owner's
Properties, including management of the completion of development of the Under
Development Projects;
WHEREAS, Owner desires to employ Manager as set forth herein and
Manager is willing to manage same in accordance with the terms set forth herein.
NOW, THEREFORE, in consideration of the sums of money to be paid by
Owner to Manager, and in further consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Recitals. Each party represents to the other that the recitals set
forth above contain no material misrepresentation of fact.
2. Employment of Manager. Owner hereby retains Manager, and Manager
hereby agrees, to provide to Owner consulting services and general management
and administration services with respect to the Properties and to initiate, and
thereafter, to diligently coordinate, supervise and pursue all steps necessary
to implement development plans for the various Properties upon such schedules as
are reasonably approved from time to time by Owner, upon the terms and
conditions, and for the term and compensation hereinafter set forth.
3. Term. The term of this Agreement, and of the employment of Manager
by Owner pursuant hereto, shall be for the period commencing as of the date
hereof and ending on the date that is the last day of the month that is eighteen
(18) months after the date of this Agreement ("Term").
4. Services. Subject to the direction and control of Owner, the
consulting, development, management and administrative services to be rendered
by Manager shall, when appropriate, include, but not be limited to, each of the
following services:
(a) Preliminary site analysis and project planning.
(b) Coordinate and manage the process of securing preliminary approval
of the land use plans and the preliminary engineering criteria.
(c) Assist Owner in retaining appropriate consultants related to the
various Properties including, but not limited to, landscape architect, civil
engineer, architect, traffic consultant, soil engineer, attorney, accountant,
marketing consultant, appraiser and surveyor and thereafter, act as Owner's
representative's contact with such consultants regarding the development of the
Properties.
(d) Act as Owner's representative and liaison with community and other
civic groups in connection with the development of the Properties.
(e) Assist in the preparation of cost line budgets and cash flow
projections for the development of the Properties.
(f) Prepare and monitor compliance with development schedules approved
by Owner.
(g) Coordinate the securing of all appropriate and necessary
governmental approvals relating to the development plans for the Properties.
(h) Consult with respect to the management of the Properties which are
not in development at any one time.
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(i) Consult with engineers, lenders and attorneys the securing of all
permits and the posting of all security required for the development of the
Properties.
(j) Consult with respect to the issuance of all construction bid
documents, provide analysis of bids and recommendations on awards of contracts,
and assist in the issuance of contracts for all construction work.
(k) Assist in the coordination of construction activities relating to
the Project by visiting the site during critical phases of construction and by
meeting with County officials, inspectors, contractors, subcontractors and
construction supervisors.
(l) Coordinate land development documentation with marketing programs
including, but not limited to, the preparation of any homeowner's association
documents, cross-easements, declarations of covenants and restrictions and deeds
to governmental bodies for roads, recreation spaces and open spaces.
(m) Advise on the status of all construction/building permits and the
release of all security posted in connection with the development of the
Properties.
(n) Provide advice on the overall marketing and publicity program for
the Properties including advertising, signage, promotional brochures and model
homes parks.
(o) Meet regularly with designated representatives of Owner and furnish
summary reports on at least a monthly basis reflecting the status of overall
development.
With regard to the above enumerated services to be performed by Manager
hereunder it is agreed that the parties will regularly consult and mutually and
reasonably agree upon the scope, timing, order of importance and overall
direction of the services.
Notwithstanding anything herein to the contrary, with respect to the
Under Development Projects, Manager shall provide all those management services
reasonably required by Owner (or Owner's subsidiary or affiliate which holds
title to each of the Under Development Projects) in connection with bringing
each of the Under Development Projects to completion as evidenced by the
obtaining for each Under Development Project of a certificate of use and
occupancy or similar governmental permit. The work of Manager shall generally be
described as the performance of all those managerial and oversight functions
reasonably required so as to bring each Under Development Project to physical
completion on a timely basis and in line with budgeted costs.
5. Costs and Expenses. Owner shall pay, and Manager shall have no
responsibility whatsoever for, the payment of any independent costs or
out-of-pocket expenses incurred in connection with the work to be performed by
it hereunder. Manager shall be responsible only for its own overhead expenses
incurred in the performance of its obligations under this Agreement. Manager
shall not authorize or incur outside costs in excess of $5,000 for
3
any one item or service without the prior written approval of Owner.
Notwithstanding anything herein to the contrary, with regard to the Under
Development Projects, in performing its management services hereunder Manager
shall use its good faith, commercially reasonable efforts to consult with Owner
to save costs and to bring each Under Development Project to completion at a
cost within prior approved budgeted sums. Under no circumstances shall Manager
authorize or permit additional costs above budget or changes to any Under
Development Project that would increase costs without same being approved in
advance and in writing by the Owner of the particular Under Development Project.
6. Owner's Responsibility. Owner shall:
(a) Reimburse Manager for all independent costs and out-of-pocket
expenses properly incurred and approved (if required) by Owner in accordance
with the terms hereof.
(b) Pay to Manager for its services as rendered hereunder the total sum
of $2,000,000. This sum shall be paid as follows on a monthly basis:
(i) $250,000 per month from the date hereof through the last day of the
third (3rd) calendar month after the date hereof;
(ii) $150,000 per month from the first day of the fourth (4th) calendar
month after the date hereof through the last day of the sixth (6th) calendar
month after the date hereof;
(iii) $100,000 per month from the first day of the seventh (7th)
calendar month after the date hereof through the last day of the tenth (10th)
calendar month after the date hereof;
(iv) $50,000 per month from the first day of the eleventh (11th)
calendar month after the date hereof through the last day of the eighteenth
(18th) calendar month after the date hereof.
(c) Indemnify and hold Manager and all of its officers, agents,
servants and employees, harmless from and against any claims, actions, damages,
losses and expenses (including attorney's fees) of any kind whatsoever arising
out of or in connection with the work and services performed by Manager
hereunder, except Owner shall not be liable under this clause if said liability
shall arise by reason of the gross negligence or intentional misconduct of
Manager. Owner agrees that it will have Manager added as a named insured on the
public liability policies acquired by the various owners of the Properties.
(d) Cooperate with Manager in expediting the performance of its work
hereunder. Owner shall cooperate with Manager by (i) providing information, (ii)
providing funds required pursuant to invoices from and contract with providers
of services and suppliers of materials with respect to the various Properties,
(iii) rendering decisions on matters affecting the
4
development of the various Properties, all within the timeframes and in the form
reasonably recommended by Manager.
7. Limitation on Manager's Responsibility. It is expressly understood
and agreed between the parties hereto, that notwithstanding anything to the
contrary in this Agreement, (i) Manager does not warrant, or guarantee the
performance of any professional or contractor employed in connection with the
Properties or warrant or guarantee the performance of under any construction
contracts relating to the Properties. Moreover the consulting development,
management and administrative services rendered by Manager hereunder will
involve recommendations as to how the various Properties might be developed and
estimates made by Manager as part of its development management services, and
the assumptions upon which they are based, represent Manager's judgment based
upon available information as of the date of preparation. No such
recommendation, estimate or assumption is intended to constitute a warranty,
guarantee or promise by Manager that the stated objectives can be achieved in
the manner described. Manager shall not be liable to Owner if any of Owner's
objectives with respect to the Properties are not achieved either in whole or in
part or in a timely manner or otherwise.
8. Default. If either party to this Agreement defaults in the
performance of its obligations under this Agreement after notice and opportunity
to cure set forth below in Section 8, the non-defaulting party shall have all
rights and remedies available to it at law or in equity on account of such
default, provided, however, that Owner shall not have the right to seek the
remedy of termination of this Agreement unless and until Manager has been given
the notice and opportunity to cure set forth below in this Section 8, and
thereafter, a court of competent jurisdiction has rendered a final,
non-appealable decision holding that the Manager has committed a material breach
of this Agreement. Anything contained in this Agreement to the contrary
notwithstanding, any act or omission which would otherwise be a default under
this Agreement by either party shall not be a default unless the non-defaulting
party shall have given the defaulting party notice of such alleged default, and
the defaulting party shall have failed to cure such alleged default within
thirty (30) days after such notice, or if the alleged default is one which
cannot with due diligence be cured within thirty (30) days, the defaulting party
shall have failed to commence curing such default within such thirty (30) day
period.
9. Notices. All notices required or provided for in this Agreement, if
hand delivered shall be deemed to have been given and received on the date hand
delivered to the party receiving same. If the United States mails are used,
notices shall be sent certified or registered mail, return receipt requested,
postage prepaid, and shall be deemed to have been given and received on the
second (2nd) business day from the date deposited in the United States mails
addressed as follows:
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If to Owner:
Constellation Properties, Inc.
Attention: Xx. Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxx Xxxxx - Xxxxx 000
Xxxxxxxx, XX 00000
and
Xxx X. Xxxxxxxxxx, Esquire
Constellation Holdings, Inc.
000 X. Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
If to Manager:
Corporate Office Management, Inc.
Attention: Xx. Xxx X. Xxxxxxxxxx
0000 Xxxxxx Xxxx Xxxxx - Xxxxx 000
Xxxxxxxx, XX 00000
and
Xx. Xxxx X. Xxxxxx, III
Corporate Office Properties Trust
000 Xxxx Xxxxxx. Xxxxx 000
Xxxx Xxxxxx, XX 00000
Each party shall have the right to designate a different address,
provided the party's new address is contained in a written notice to the other
party.
10. Miscellaneous.
(a) This Agreement contains the final understanding of the terms and
provisions between the parties and supersedes any prior agreement among the
parties.
(b) This Agreement shall be interpreted under the laws of the State of
Maryland.
(c) If any provision of this Agreement is found to be unenforceable or
void, the remaining provisions of this Agreement shall be enforceable between
the parties.
(d) This Agreement may not be assigned by either party hereto without
the consent of the other party, which shall not be unreasonably withheld or
delayed, except that either party may assign to a subsidiary or affiliate of it
without the prior written consent of the other party.
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(e) Nothing in the provisions of this Agreement shall be deemed in any
way to create between the parties hereto any relationship of partnership, joint
venture or association, and the parties hereto hereby disclaim the existence
thereof.
(f) Each party hereto warrants and represents that the person who has
signed this Agreement on its behalf is duly authorized to so sign, and this
Agreement is the legal, valid and binding agreement of such party, enforceable
against such party, in accordance with its terms.
(g) Manager agrees that it will not disclose confidential information
furnished to it by Owner as a consequence of its employment under this
Agreement.
IN WITNESS WHEREOF, the parties hereto sign and seal this Agreement on
the day and year first above written.
WITNESS CONSTELLATION PROPERTIES, INC.
By: (SEAL)
---------------------------- ----------------------------------
CORPORATE OFFICE MANAGEMENT, INC.
By: (SEAL)
---------------------------- ----------------------------------
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EXHIBIT "OPTION PROJECTS"
All documents listed below are attached.
1. National Business Park
5 Year Option and Right of First Refusal
2. Xxxxx'x Wharf adjacent land - Right of First Refusal
3. Xxxxxxxxxxxxx Xxxxxx Xxxx 0 and 7 - Right of First Refusal
