Exhibit 2.1.3
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
(POST-CLOSING AGREEMENT)
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (POST- CLOSING
AGREEMENT) is made and entered into this 28th day of April, 1999, between XXXXXX
INVESTORS LIMITED PARTNERSHIP ("CILP"), CORPORATE OFFICE PROPERTIES, L.P. ("COP
LP"), COPT COMMONS LLC ("COPT Commons") and ANCHOR TITLE COMPANY ("Escrow
Agent").
RECITALS:
A. CILP and Corporate Acquisitions, Inc. are parties to that certain
Purchase and Sale Agreement dated February 26, 1999 regarding the sale by CILP
of its partnership interests in Commons Office Research Partnership (the
"Partnership") and in CILP/Commons Office Limited Partnership ("COLP") (as
amended, the "Purchase and Sale Agreement").
B. COP LP and COPT Commons (collectively, "Buyer") are the assignees of
the right and interest of Corporate Acquisitions, Inc. in the above-referenced
Purchase and Sale Agreement.
C. On April 28, 1999, CILP as a partner of COLP sold or assigned its
interest in COLP to COPT Commons.
D. On April 28, 1999, CILP sold or assigned its interest in the
Partnership, the owner of certain improved real property described in the
Purchase and Sale Agreement (the "Property"), to COP LP.
E. The parties hereto have agreed to perform certain post-closing
obligations as more specifically described herein.
NOW, THEREFORE, in consideration of the premises, mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
1. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Purchase and Sale Agreement.
2. COLLECTION OF PERCENTAGE RENT FROM NOODLES, INC. DBA MAMA LUCIA.
Pursuant to Section 7.7 of the Purchase and Sale Agreement, it was agreed that
(i) Buyer would use reasonable efforts to collect, on CILP's behalf, rents
accrued and unpaid on the Closing Date; and (ii) if, within sixty (60) days of
the Closing Date, CILP has not received all accrued and unpaid rents due as of
the Closing Date, CILP would be entitled to collect such accrued and unpaid
rents directly against the defaulting tenant. As of the Closing Date, Noodles,
Inc. dba Mama Lucia ("Mama Lucia"), a tenant of the Property, is in arrears in
percentage rent payments in the approximate amount of Seven Thousand Dollars
($7,000.00). CILP hereby agrees that, for a period of four (4) months following
the Closing Date, it shall not take any action to collect the rents accrued but
unpaid by Mama Lucia as of the Closing Date. During said four (4) month period,
Buyer shall use reasonable efforts to collect such rents for the benefit of CILP
in accordance with Section 7.7 of the Purchase and Sale Agreement.
3. PAYMENT OF HARDEES' CLAIM. Hardees Food Systems, a former tenant of
the Property ("Hardees"), has claimed that, prior to the Closing Date, it paid
to the Partnership, as landlord, Hardees' share of real estate taxes on the
Property (as such share was defined in Hardees' lease) for the 1998-1999 tax
year (the "Hardees' 1998-1999 Tax Share"), notwithstanding the fact that the
term of Hardees' lease terminated prior to the expiration of such tax year.
Prior to the Closing Date, Hardees has claimed that it is owed a refund for the
portion of the Hardees' 1998-1999 Tax Share paid by Hardees which is
attributable to the period between the termination of Hardees' lease and the end
of the 1998-1999 tax year (the "Claimed Amount"). CILP hereby agrees to promptly
pay the Claimed Amount to Hardees and to provide Buyer with reasonable evidence
of such payment. CILP agrees that it shall not make any claim against Buyer or
the Partnership for the Claimed Amount so paid by CILP to Hardees.
4. ESCROW.
(a) CILP has delivered to Escrow Agent the sum of Twenty-Five
Thousand Dollars ($25,000.00) to be held in escrow and disbursed in accordance
with the terms of this Paragraph 4. CILP's Tax I.D. Number is 00-000-0000.
Escrow Agent shall deposit the Escrow Funds in an interest bearing escrow or
trust account for the benefit of CILP, COP LP and COPT Commons. All funds
deposited hereunder, together with all interest earned thereon, shall
hereinafter be referred to as the "Escrow Funds".
(b) For purposes of this Paragraph 4, the following terms
shall have the following meanings:
(i) "Overpayments" shall mean the total overpayments
in operating expenses, real estate taxes and percentage rent made by tenants of
the Property during the 1998 operating year.
(ii) "Underpayments" shall mean the total
underpayments in operating expenses, real estate taxes and percentage rent made
by tenants of the Property during the 1998 operating year.
(iii) "Net Overpayments" shall mean the amount, if
any, by which the Overpayments exceed the Underpayments.
(iv) "Estimated Net Overpayments" shall mean the
amount of Net Overpayments estimated by CILP and Buyer as of the Closing Date,
and set forth on the closing
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statement, a copy of which is attached hereto as EXHIBIT A.
(v) "Uncredited Net Overpayments" shall mean the
amount, if any, by which the Net Overpayments set forth on the Approved
Statement (as hereinafter defined) exceed the Estimated Net Overpayments.
(c) CILP has deposited the Escrow Funds with Escrow Agent for
the purpose of paying to COP LP the Uncredited Net Overpayments. CILP shall
prepare or cause to be prepared a statement identifying the amount of the Net
Overpayments, if any, together with such supporting documentation as COP LP
shall reasonably require (the "Statement"), and shall submit the same to COP LP
for its approval within sixty (60) days of the date hereof, which approval shall
not be unreasonably withheld, conditioned or delayed. The parties hereto agree
that it shall be unreasonable for COP LP to disapprove of the Statement on the
grounds that the Net Overpayments are not determined with certainty unless it
was reasonably possible for CILP to make such determination with the level of
certainty sought by COP LP during the aforesaid sixty (60) day period. CILP
shall simultaneously deliver a copy of the Statement to Escrow Agent. In the
event that the Statement is not submitted to COP LP within sixty (60) days of
the date hereof, all of the Escrow Funds shall be delivered by Escrow Agent to
COP LP.
(d) If the Statement, as reasonably approved by COP LP (the
"Approved Statement"), indicates that there are Uncredited Net Overpayments,
then COP LP shall be entitled to the Escrow Funds to the extent of such
Uncredited Net Overpayments, and CILP shall be entitled to the remainder of the
Escrow Funds. If the Approved Statement indicates that there are Uncredited Net
Overpayments which exceed the amount of the Escrow Funds, then COP LP shall be
entitled to all of the Escrow Funds. If the Approved Statement indicates that
there are no Uncredited Net Overpayments, then CILP shall be entitled to all of
the Escrow Funds.
(e) Notwithstanding the provisions of paragraph (d) above, (i)
Escrow Agent shall not make any disbursement of any of the Escrow Funds until
five (5) business days after the Statement is provided to COP LP; and (ii) if
Escrow Agent receives written objection to the Statement within such five (5)
business day period, then subject to paragraph (g) below, Escrow Agent shall not
make any disbursement of the Escrow Funds unless and until Escrow Agent receives
joint written instructions from CILP and COP LP.
(f) In performing any of its duties hereunder, Escrow Agent
shall not incur any liability to anyone for any damages, losses or expenses
except for willful default or negligence, and it shall accordingly not incur any
such liability with respect to (i) any action taken or omitted in good faith
upon advice of its counsel given with respect to any questions relating to the
duties and responsibilities of the Escrow Agent under this Agreement, or (ii)
any action taken or omitted in reliance upon any instrument, including the
written notices provided for herein, not only as to its provisions, but also as
to the truth and accuracy of any information contained therein which the Escrow
Agent shall in good faith believe to be genuine, to have been signed or
presented by a proper
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person or persons, and to conform with the provisions of this Agreement. The
parties hereby agree, jointly and severally, to indemnify and hold harmless the
Escrow Agent against any and all losses, claims, damages, liabilities and
expenses, including reasonable costs of investigation and counsel fees and
disbursements, which may be imposed upon the Escrow Agent or incurred by the
Escrow Agent hereunder or the performance of his duties hereunder, including any
litigation arising from this Agreement or involving the subject matter hereof or
the Escrow Funds.
(g) In the event of a dispute between the parties hereto, the
Escrow Agent shall be entitled to tender into the registry or custody of any
court of competent jurisdiction the money that is in dispute, together with such
legal pleadings as Escrow Agent deems appropriate. Any such legal action may be
brought in such court as Escrow Agent shall determine to have jurisdiction
thereof.
5. ADDITIONAL REPRESENTATION OF CILP. The following shall be added to
the Purchase and Sale Agreement as a new Section 3.4(p):
To the best knowledge of CILP, as of the Closing Date, the
Partnership does not owe any sums to any contractors, vendors or
tenants of the Property as a result of any tenant improvement work
performed at the Property.
6. EVIDENCE OF PERMITS. For a period of sixty (60) days following the
date hereof, CILP shall use, or shall cause its agents to use, at CILP's sole
cost and expense, reasonably diligent efforts to obtain evidence, reasonably
satisfactory to COP LP, that the Property has obtained all certificates of
occupancy, building permits and/or use and occupancy permits required under
applicable county law. The parties hereto specifically agree that, without
limitation, a letter from the Department of Planning and Code Enforcement,
substantially similar to the form of letter attached hereto as EXHIBIT B, shall
constitute such reasonably satisfactory evidence. The parties hereto further
agree that, for purposes of this paragraph 6, "reasonably diligent efforts"
shall not include any efforts to correct or cure any violation of any applicable
law, regulation, ordinance, order or permit, and CILP shall have no obligation
to undertake any such cure. COP LP and COPT Commons agree to cooperate with CILP
in obtaining reasonably satisfactory evidence, to the extent reasonably
necessary, including without limitation, causing the owner to join in any
request to the county for a letter similar to that attached hereto as Exhibit B,
if such joinder is required. Provided CILP uses reasonably diligent efforts to
obtain the aforesaid evidence during such sixty (60) day period, after the
expiration of such sixty (60) day period, CILP shall have no further obligations
hereunder.
7. SAIC. Buyer has been provided with a Tenant Estoppel Certificate
from Science Applications International Corporation ("SAIC") dated April 27,
1999. In said estoppel certificate, SAIC claims to have paid monthly base rent
through May 31, 1999. CILP has not yet received the rent payment from SAIC for
the month of May, 1999. CILP agrees to forward said payment to Buyer promptly
after it receives the same.
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8. Except as expressly amended hereby, the parties hereby ratify and
affirm the terms of the Purchase and Sale Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the day and year first above-written.
XXXXXX INVESTORS LIMITED PARTNERSHIP
BY: Xxxxxx Management Partnership
BY: AEW Advisors, Inc.
BY: /s/ Xxxxxx X. Xxxxxx
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Name:Xxxxxx X. Xxxxxx
Title: President
CORPORATE OFFICE PROPERTIES, L.P.
a Delaware limited partnership
BY: Corporate Office Properties Trust,
General Partner
Xxxxxxx X. Xxxxx Xxxxxxxxx BY: /s/ Xxxx Xxxxxx Xxxxxx
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Xxxx Xxxxxx Xxxxxx, Vice President
COPT COMMONS LLC
Xxxxxxx X. Xxxxx Zseleczky BY: /s/ Xxxx Xxxxxx Xxxxxx
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Name: Xxxx Xxxxxx Xxxxxx
Title: Vice President
ANCHOR TITLE COMPANY
a Maryland corporation
Xxxxxxx X. Xxxxx Zseleczky BY: /s/ XX Xxxxx
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Printed Name: M. Xxxxxxxxx Xxxxx
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Title: President
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Date: 4/28/99
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