EXHIBIT 10.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
CARRAMERICA REALTY, L.P.
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF CARRAMERICA REALTY, L.P. (this "First Amendment"), dated
October 6, 1997, is entered into by CarrAmerica Realty GP Holdings, Inc., a
Delaware corporation, as general partner (the "General Partner") of CarrAmerica
Realty, L.P. (the "Partnership"), for itself and on behalf of the limited
partners of the Partnership, and 2600 West Olive Partnership, Ltd., a California
limited partnership (the "Contributor").
WHEREAS, on the date hereof, the Contributor is receiving Class D
units of limited partnership interest ("Class D Units") in the Partnership in
exchange for the property known as 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
(the "Contributed Property") and certain other assets pursuant to a closing
under that certain Contribution Agreement dated as of July 15, 1997 by and
between the Partnership and the Contributor (the "Contribution Agreement");
WHEREAS, pursuant to the authority granted to the General Partner
pursuant to Section 14.1 of the Partnership Agreement, the General Partner
desires to amend the Partnership Agreement (i) to establish a new class of
Units, to be entitled Class D Units, and to set forth the designations, rights,
powers, preferences and duties of such Class D Units, (ii) to admit the
Contributor as an Additional Limited Partner of the Partnership, and (iii) to
amend and restate Exhibit A to reflect the admission of the Contributor as an
Additional Limited Partner and the holder of a specified number of Class D
Units;
WHEREAS, the Contributor is agreeing to become, upon execution
hereof, a party to the Partnership Agreement and to be bound by all of the
terms, conditions and other provisions of the Partnership Agreement; and
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement as
follows:
1. Article I hereby is amended to add the following definition:
"Class D Unit" means a Partnership Unit with such
designations, preferences, rights, powers and duties as are
described in Section 4.2.C hereof and that is specifically
designated by the General Partner as being a Class D Unit.
2. Section 4.2 hereby is amended by renumbering Section 4.2.D to
be Section 4.2.E and adding after Section 4.2.C the following section:
D. Class D Units. Under the authority granted to it by
Section 4.2.A hereof, the General Partner hereby establishes an additional class
of Partnership Units entitled "Class D Units." Class D Units shall have the
designations, preferences, rights, powers and duties as set forth in Exhibit F
hereto.
3. Section 5.1 hereby is amended by inserting "Subject to the
provisions of Exhibit F hereto," at the beginning of the first sentence.
4. Exhibit A hereby is amended by replacing such Exhibit A with
the Exhibit A attached to this First Amendment, and the Contributor hereby is
admitted to the Partnership as an Additional Limited Partner.
5. Exhibit F hereby is added, and shall read as follows:
EXHIBIT F
CLASS D UNITS
Notwithstanding any other provision of the Partnership Agreement,
including the provisions of Exhibits A through E thereof, Class D Units shall
have the following designations, preferences, rights, powers and duties:
(1) General. Except as otherwise provided below, each Class D Unit
shall have the same designations, preferences, rights, powers and duties as each
Class A Unit.
(2) Distributions. Prior to any distribution to Class A Units
pursuant to Section 5.1 of the Agreement, the General Partner shall distribute,
to the extent that there is sufficient Available Cash, to each holder of Class D
Units, a distribution per Class D Unit (multiplied by the Conversion Factor)
equal to the dividend per REIT Share paid by the General Partner for such
quarter multiplied by a fraction, the numerator of which is the number of days
in the quarter or shorter period to which such distribution relates that the
Class D Unit was issued and outstanding, and the denominator of which is the
total number of days in the quarter or shorter period to which such distribution
relates. To the extent that there is not sufficient Available Cash to pay the
distributions to holders of Class D Units, CarrAmerica Realty GP Holdings, Inc.
and CarrAmerica Realty LP Holdings, Inc. jointly and severally agree (i) to the
extent they have previously received distributions of Available Cash, they will
recontribute such funds, [and (ii) if there remains insufficient Available Cash
after the application of clause (i) above, they will make an additional Capital
Contribution in an amount sufficient to provide sufficient Available Cash to pay
the distribution to all holders of Class D Units].
(3) Redemption Right. A holder of Class D Units shall not have the
Redemption Right under Section 8.6 of the Agreement with respect to such Class D
Units until on or after the date two (2) years after each Class D Unit is
issued.
(4) Conversion to Class A Units. If the Partnership consummates
the sale of the Contributed Property (other than in a transaction that would not
trigger gain under Section 704(c) of the Internal Revenue Code of 1986, as
amended), then, on the date that is sixty (60) days following the date of
closing of any such sale, each Class D Unit shall automatically convert to a
Class A Unit, and each Class D Unit shall be canceled and retired.
6. Any amendments to this First Amendment shall require the
consent of the holders of a majority of the Class D Units.
7. The Contributor hereby agrees to become a party to the
Partnership Agreement and to be bound by all of the terms, conditions and other
provisions of the Partnership Agreement.
* * * *
All capitalized terms used in this First Amendment and not
otherwise defined shall have the meanings assigned in the Partnership Agreement.
Except as modified herein, all terms and conditions of the Partnership Agreement
shall remain in full force and effect, which terms and conditions the General
Partner hereby ratifies and affirms.
IN WITNESS WHEREOF, the undersigned has executed this First
Amendment as of the date first set forth above.
CARRAMERICA REALTY GP HOLDINGS, INC.,
as General Partner of CarrAmerica Realty, L.P.
and on behalf of existing Limited Partners
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Managing Director and Vice President
------------------------------------
2600 WEST OLIVE PARTNERSHIP, LTD.
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee of Xxxx Family
Trust u/d/t dated June 20, 1985, its
Managing Joint Venturer
By: /s/ Xxxx X. XxXxxxxxx
---------------------------------------
Xxxx X. XxXxxxxxx, Trustee of the
XxXxxxxxx Family Trust u/d/t dated
January 20, 1982, its Managing Joint
Venturer
