Exhibit 10.1
FIRST AMENDMENT TO THE
LIMITED LIABILITY COMPANY AGREEMENT OF
TRIPLE NET INVESTMENT LLC
This FIRST AMENDMENT TO THE LIMITED LIABILITY COMPANY AGREEMENT
OF TRIPLE NET IVNESTMENT COMPANY LLC, dated as of April 22, 2004, is made and
entered into, as of December 22, 2004 (this "Amendment"), by and among Lexington
Corporate Properties Trust, a Maryland real estate investment trust ("LXP"), and
Utah State Retirement Investment Fund, a common trust fund created pursuant to
the statutes of the State of Utah (the "Fund").
WHEREAS, Triple Net Investment Company LLC, a Delaware limited
liability company (the "Company") is governed by that certain Limited Liability
Company Agreement, dated as of April 22, 2004, by and among LXP, as a member and
the sole manager of the Company, and the Fund, as a member of the Company, (the
"Agreement");
WHEREAS, pursuant to Section 12.12 of the Agreement, the
Agreement may not be amended without the written consent of all of the Members;
and
WHEREAS, the parties hereto, constituting all of the Members,
desire to amend the Agreement in the manner set forth herein. Unless otherwise
defined, all defined terms used herein shall have such meaning ascribed such
terms in the Agreement.
NOW, THEREFORE, the Members, in consideration of the covenants
and agreements set forth herein, hereby amend the Partnership Agreement as
follows.
1. Amendment to Section 1.1. - Revised Definitions. Section 1.1
of the Agreement is hereby amended by deleting the definition of "Qualified
Property" or "Qualified Properties" in its entirety and replacing it with new
definition of "Qualified Property" or "Qualified Properties," which shall read
as follows:
"Qualified Property" or "Qualified Properties" shall mean (x) the
interest of the Partnership in each parcel of real property acquired as
provided in Section 3.6 hereof, together with all buildings, structures
and improvements located thereon, fixtures contained therein,
appurtenances thereto and all personal property owned in connection
therewith, and (y) subject to the provisions of Section 2.8 hereof, the
Malvern Property.
2. Amendment to Section 1.1. - New Definitions. Section 1.1 of
the Partnership Agreement is hereby amended by adding the following new defined
terms thereto:
"Lexington TNI" shall mean Lexington TNI LLC, a Delaware limited
liability company and wholly-owned subsidiary of LXP.
"Other Partner's Interest" shall mean the limited partner interest in
Triple Net Investment L.P. held by another Member.
"Partnership" shall mean Triple Net Investment L.P., a Delaware limited
partnership of which the Members are the limited partners and Lexington
TNI is the general partner.
"Partnership Agreement" shall mean the agreement of limited partnership
of the Partnership dated as of December 8, 2004.
"Partnership Properties" shall mean all Approved Qualified Properties
acquired directly or indirectly by the Partnership.
3. Amendment to Article II. Article II of the Partnership
Agreement is hereby amended by adding a new Section 2.8 thereto which shall read
as follows:
2.8 Treatment of the Partnership Properties as Qualified Properties.
(a) It is the intention of the parties that the Partnership
Properties be regarded as Qualified Properties, notwithstanding that (i)
the Partnership is not an SP Subsidiary, and (ii) the Company does not
have an interest in the Partnership Properties. Accordingly, for
purposes of this Agreement (and the agreements and arrangements
contemplated by this Agreement), the Members agree that, subject to the
provisions of this Section 2.8, the Partnership Properties shall be
deemed to be "Qualified Properties" for purposes of this Agreement as of
the date they are acquired by the Partnership and that, without limiting
the generality of the foregoing: (i) LXP, acting through Lexington TNI,
shall manage the Partnership Properties and the Partnership in
accordance with, and subject to, the provisions of Article III hereof
and that LXP shall obtain the consent of the Fund in each instance in
which such consent would otherwise have been required if the Partnership
Properties were owned by the Company; (ii) capital contributions made by
the LXP and the Fund to the Partnership shall be credited toward the
Members' Capital Commitment requirements under this Agreement; (iii)
capital contributions made by the LXP and the Fund to the Partnership,
Acquisition Fees and Financing Fees paid by the Fund in its capacity as
a limited partner of the Partnership, and distributions, if any, paid by
the Partnership to LXP and the Fund shall be factored into the
calculation of "12% IRR" under this Agreement; (iv) the Manager and the
Asset Manager, as applicable, shall be entitled to receive the
Acquisition Fees, Financing Fees, Management Fees and Oversight Fees
with respect to the Partnership Properties; (v) for purposes of Section
3.7, and Section 11.1, the Right of First Refusal and Buy/Sell Property,
as applicable, shall be deemed to include the Other Partner's Interest;
(vi) for purposes of Section 3.8, the total debt of the Company shall
include any debt related to the Partnership Properties; (vii) for
purposes of Section 8.3, the Removal Amount shall include the net
proceeds from the sale of the Partnership Properties; and (viii) for
purposes of Section 11.2 and Schedule 5, the average maturity and Fair
Market Value tests which are applicable to the Redemption Right granted
to the Fund shall include the Partnership Properties and the references
to "Retained Qualified Properties" and "Proposed Tendered Qualified
Properties" shall include, with respect to the Partnership Properties,
the Other Partner's Interest, as applicable.
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(b) Notwithstanding the provisions of clause (a), the Members
agree that while their intent is to treat the Partnership Properties as
if they were Qualified Properties hereunder, in order to avoid "double
counting", the Members further acknowledge that: (i) the Company shall
not call for capital from the Members, and the Members shall not make
capital contributions to the Company, in respect of the Partnership
Properties, provided, however, that if either LXP or the Fund fails,
with respect to the Partnership Properties, to (x) make a required
Capital Contribution, Additional Capital Contribution, Extraordinary
Capital Contribution or Extraordinary Loan (as such terms are defined in
the Malvern Owner LP Agreement) or (y) satisfy a claim under the Default
Amount or Claim Amount (as such terms are defined in the Partnership
Agreement), as the case may be, with respect thereto shall be a Default
Amount or Claim Amount, as the case may be, under this Agreement (as
well as the Partnership Agreement) which results in an adjustment to the
Percentage Interests in this Agreement (as well as the Partnership
Agreement); (ii) the Members shall not receive distributions from the
Company in respect of the Partnership Properties by virtue of their
interests in the Company (which distributions shall be payable by the
Partnership pursuant to the Partnership Agreement); (iii) the Members
shall not be allocated profits and losses (or items thereof) in respect
of the Partnership Properties by virtue of their interests in the
Company (which allocations shall be applied by the Partnership pursuant
to the Partnership Agreement); (iv) expenses exclusively attributable to
the Partnership Properties shall not be treated as expenses of the
Company; (v) revenues generated by the Partnership Properties shall not
be treated as revenues of the Company; and (vi) the governing
instruments of the Partnership and the SP Subsidiaries formed to acquire
Partnership Properties may not be amended without consent of all of the
Members.
4. Amendment to Section 3.8(a) - Limitation on Company
Indebtedness. Section 3.8 of the Agreement is hereby amended by deleting the
figure "$92,857,143" and replacing it with "$225,510,204.08."
5. Amendment to Schedule 1 - Names and Capital Commitments of
Members. Schedule 1 of the Agreement is hereby amended by deleting it in its
entirety and replacing it with:
SCHEDULE 1
Names and Capital Commitments of Members
----------------------------------------
Member Name Capital Commitment Percentage Interest
----------- ------------------ -------------------
Lexington Corporate Properties Trust $36,428,571.43 30%
Utah State Retirement Investment Fund $85,000,000.00 70%
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6. Amendment to Paragraph 12(a)(ii) of Schedule 5 - Calculation
of Purchase Price.
(a) Paragraph 12(a)(ii)(y) of Schedule 5 of the Agreement is
hereby amended by deleting the figure "11.0" and replacing it with "12.0."
(b) Paragraph 12(a)(ii)(z) of Schedule 5 of the Agreement is
hereby amended by deleting the figure "$21.20" and replacing it with "$21.87."
7. Ratification and Confirmation of the Agreement; No Other
Changes. Except as modified by this Amendment, the Agreement is hereby ratified
and affirmed in all respects. Nothing herein shall be held to alter, vary or
otherwise affect the terms, conditions and provision of the Partnership
Agreement, other than as stated above.
8. Further Assurances. Each of the parties hereto covenants and
agrees to promptly take such action, and to cause such party's affiliates to
promptly take such action, as may be reasonably required to effectively carry
out the intent and purposes of this Amendment.
9. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of Delaware, without giving effect to
the provisions, policies or principles thereof relating to choice or conflict of
laws.
10. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment to the Agreement is executed
effective as of the date first set forth above.
LXP
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LEXINGTON CORPORATE PROPERTIES TRUST
By:/s/ Patrick Carroll
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Name: Patrick Carroll
Title: Chief Financial Officer
THE FUND
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UTAH STATE RETIREMENT INVESTMENT FUND
By:/s/ Devon W. Olson
---------------------------------
Name: Devon W. Olson
Title: Director of Real Estate