Exhibit 10.42
FIRST AMENDMENT
TO
AMENDED AND
RESTATED
AGREEMENT OF LIMITED
PARTNERSHIP
OF
CARR REALTY HOLDINGS,
L.P.
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP (this
“Amendment”) is entered into as of June 30, 2004, and
shall be effective upon the UPREIT Effective Time (as defined
below), by CARRAMERICA REALTY CORPORATION, a Maryland corporation
(“CarrAmerica”), as the withdrawing General Partner and
a Limited Partner, for itself and on behalf of the Limited Partners
of the Partnership, and CARRAMERICA REALTY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (“Operating
Partnership”), as the new General Partner and a Limited
Partner, for itself and on behalf of the Limited Partners of the
Partnership.
WHEREAS, Carr Realty L.P., a
Delaware limited partnership (“CRLP”) and Carr Realty
LP Holdings, L.L.C., a Delaware limited liability company
(“CRLP Holdings, LLC”) entered into that certain
Agreement of Limited Partnership of Carr Realty Holdings, L.P. (the
“Partnership”) on December 23, 2003;
WHEREAS, each of CRLP and the
Partnership is party to the Agreement and Plan of Merger, dated as
of December 23, 2003 (the “Merger Agreement”), by
and among CRLP, Carr Realty GP, LLC, a Delaware limited liability
company, Carr Realty Merger Subsidiary, L.P., a Delaware limited
partnership (“Merger LP”), the Partnership and CRLP
Holdings, LLC, pursuant to which Merger LP merged with and into
CRLP, with CRLP being the surviving entity (the
“Merger”);
WHEREAS, pursuant to the Merger,
(i) each Class A, Class B and Class C Unit (as defined in
the CRLP Agreement) of limited partnership interest in CRLP issued
and outstanding as of December 31, 2003, immediately prior to
the Effective Time (as defined in the Merger Agreement), ceased to
be outstanding and was converted into and exchanged for the right
to receive one Class A, Class B and Class C unit of limited
partnership interest in the Partnership, respectively, and
(ii) the General Partner Interest (as defined in the CRLP
Agreement) in CRLP issued and outstanding as of December 31,
2003, immediately prior to the Effective Time, ceased to be
outstanding and was automatically converted into and exchanged for
the right to receive the General Partner Interest in the
Partnership (collectively, “CRLP
Restructuring”);
WHEREAS, CarrAmerica has entered
into that certain Amended and Restated Agreement of Limited
Partnership dated as of December 31, 2003 (the
“Partnership Agreement”) for itself and on behalf of
the Limited Partners to reflect the CRLP Restructuring;
WHEREAS, CarrAmerica is completing a
restructuring transaction (the “UPREIT Conversion”),
pursuant to which CarrAmerica will transfer substantially all of
the assets that it directly owns, including its General Partner and
Limited Partner interests in the Partnership, and all or
substantially all of its related liabilities, to
Operating Partnership, and Operating Partnership
will assume all of the assets from CarrAmerica, including its
General Partner and Limited Partner interests in the Partnership,
and all or substantially all of CarrAmerica’s related
liabilities, such transfer date and time being the effective date
and time of the UPREIT Conversion (the “UPREIT Effective
Time”);
WHEREAS, pursuant to
Section 11.2.C of the Partnership Agreement, a committee of
the Board of Directors of CarrAmerica, the General Partner of the
Partnership, determined in good faith that the UPREIT Conversion,
including without limitation, assignment by CarrAmerica of its
interest in the Partnership to Operating Partnership and the
assumption by Operating Partnership of interests in the
Partnership, would not have a material adverse effect on the value
of the Limited Partnership Interests (determined without regard to
any tax consequences to Limited Partners as a result of the UPREIT
Conversion);
WHEREAS, CarrAmerica has determined
that this Amendment is permitted to be undertaken by the General
Partner for itself and on behalf of the Limited Partners, without
the consent of the Limited Partners, pursuant to the provisions of
Section 14.1.B(1), (2) and (4) and no Limited
Partner is adversely affected by this Amendment; and
WHEREAS, CarrAmerica and Operating
Partnership, for themselves and on behalf of the Limited Partners
of the Partnership, desire to amend the Partnership Agreement
pursuant to Section 14.1 thereof to reflect (i) the
assignment of CarrAmerica’s interest in the Partnership to
Operating Partnership and the withdrawal of CarrAmerica as the
General Partner and a Limited Partner of the Partnership, and
(ii) the assumption by the Operating Partnership of
CarrAmerica’s interest in the Partnership and the admission
of Operating Partnership as the General Partner and a Limited
Partner of the Partnership, and to make certain other conforming
changes.
NOW, THEREFORE, in consideration of
the premises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partnership Agreement is hereby amended as
follows:
1. CarrAmerica withdraws as the
General Partner and a Limited Partner of the Partnership and is
released from all rights and obligations under the Partnership
Agreement, and Operating Partnership is admitted as the General
Partner and a Limited Partner of the Partnership and expressly
assumes and agrees to be bound by all of the terms and conditions
of the Partnership Agreement.
2. All references to “the
General Partner” in (a) the definition of “
Articles of Incorporation ” in Article 1, (b) the
definition of “ Conversion Factor ” in Article
1, (c) the definition of “ REIT Share ” in
Article 1, (d) the definition of “ REIT Shares
Amount ” in Article 1, (e) after the words “
provided that if ” in the definition of
“ Specified Redemption Date ” in Article 1,
(f) Section 7.1.A(1), (g) clauses (i) and
(ii) of Section 7.9.D, and (h) the sixth line of
Section 7.12.A shall be replaced with references to
“CarrAmerica.”
3. Definition of “
CarrAmerica ” shall be added to Article 1, following
definition of “ Capital Contribution ” as
follows: “ CarrAmerica ” means CarrAmerica
Realty Corporation, a Maryland corporation, or its
successors.”
2
4. Definition of
“Indemnitee” in Article 1 shall be amended by deleting
such definition in its entirety and inserting the following in lieu
thereof: “Indemnitee” means (i) any Person made a
party to a proceeding by reason of his, her or its status as
(A) the General Partner or an Affiliate of the General Partner
(including, without limitation, CarrAmerica), (B) a Limited
Partner or (C) a director or officer of the Partnership, the
General Partner or an Affiliate of the General Partner and
(ii) such other Persons (including Affiliates of the General
Partner or the Partnership) as the General Partner may designate
from time to time (whether before or after the event giving rise to
potential liability), in its sole and absolute
discretion.
5. Definition of “ General
Partner ” in Article 1 shall be amended by deleting such
definition in its entirety and inserting the following in lieu
thereof: “ General Partner ” means CarrAmerica
Realty Operating Partnership, L.P., a Delaware limited partnership,
or its successors as general partner of the Partnership, and for
purposes of Section 7.5.C, “General Partner” also
means CarrAmerica.”
6. Section 3.1 shall be amended
by deleting such section in its entirety and inserting the
following in lieu thereof:
“Section 3.1 Purpose and
Business
The purpose and nature of the
business to be conducted by the Partnership is (i) to conduct
any business that may be lawfully conducted by a limited
partnership organized pursuant to the Act, provided, however, that
such bu
