Exhibit 99.6
FIRST AMENDMENT TO OPERATING AGREEMENT OF
LEXINGTON ACQUIPORT COMPANY, LLC
This FIRST AMENDMENT TO OPERATING AGREEMENT OF LEXINGTON ACQUIPORT
COMPANY, LLC (this "Amendment") made as of the 5th day of December, 2001 by
Lexington Corporate Properties Trust, a Maryland real estate investment trust,
as a managing member ("LXP") and The Comptroller of the State of New York, as
Trustee of the Common Retirement Fund, as a non-managing member (the "Fund").
LXP and the Fund are sometimes individually referred to herein as a "Member" and
collectively referred to herein as the "Members". All capitalized terms used in
this Amendment without definition shall have the respective meanings ascribed to
them in the Agreement (as defined below).
W I T N E S S E T H:
-------------------
WHEREAS, LXP and the Fund entered into the Operating Agreement (the
"Agreement") of Lexington Acquiport Company, LLC, a Delaware limited liability
company (the "Company"), dated as of July 14, 1999;
WHEREAS, Section 12.12 of the Agreement provides that the Agreement may
be amended only upon the written consent of all the Members;
WHEREAS, LXP and the Fund, constituting all the Members of the Company,
hereby desire to supplement and amend the Agreement as provided herein; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained the Members amend the Agreement as
follows:
ARTICLE I
AMENDMENTS TO OPERATING AGREEMENT
A. Amendments to Definitions. The following definitions contained in
Section 1.1 of the Agreement are amended and restated in their entirety as
follows:
"Asset Manager" shall mean a corporation, the capital stock of
which is held from time to time either wholly by LXP or partly by LXP
with the voting stock and value held in a manner so as to satisfy LXP
in its sole discretion that such ownership will meet any requirements
imposed on LXP with respect to its status as a real estate investment
trust under the Code.
"Management Agreement" shall mean the agreement between the Asset
Manager and the Company dated as of July 14, 1999 as amended by that
First Amendment to Management Agreement, and as such may from time to
time be further amended, supplemented or otherwise modified from time
to time.
"Operating Expenses" shall mean (x) all reasonable and customary
costs and expenses of Third Parties retained in connection with the
ownership, leasing, operation, repair and maintenance of the Tranche II
Properties and (y) real estate taxes, insurance
premiums, utility charges, rent collection and lease enforcement costs,
brokerage commissions to the extent applicable to the period in
question (but excluding any acquisition fees payable to the Manager or
the Asset Manager under Section 3.6(g) hereof), maintenance expenses,
costs of repairs and replacements (which, under generally accepted
accounting principles consistently applied, may be expensed during the
period when made) and management fees (but excluding any management
fees or the Oversight Fee payable to the Manager or Asset Manager
pursuant to Section 3.10(c) hereof) in connection with the ownership,
leasing, operation, repair and maintenance of the Tranche II
Properties. Operating Expenses shall not include general and
administrative costs and overhead of the Company and debt payments."
B. Additional Definitions. Section 1.1 of the Agreement is hereby
modified and amended by inserting therein the following definitions in the
appropriate alphabetical order:
"First Amendment to Management Agreement" shall mean that First
Amendment to the Management Agreement, dated as of the date hereof,
substantially in the form attached hereto as Exhibit B-1 and made a
part hereof.
"Oversight Fee" is defined in Section 3.10(c) hereof.
C. Section 3.10(c) of the Agreement is hereby modified and amended by
deleting such section in its entirety and substituting the following therefore:
"(c) Management Fee. The Manager shall cause the Company to pay to
the Asset Manager (or to the Manager in the event the Management
Agreement is terminated) an annual management fee equal to two percent
(2%) of Net Rents, payable monthly. Such fee shall be calculated
monthly, based on Net Rents received by the Company for such month, and
adjusted as provided herein. Within thirty (30) days of the Company's
receipt of the annual reports described in Section 4.3 hereof for a
fiscal year, the Asset Manager shall provide to the Advisor and the
Fund a written statement of reconciliation setting forth (a) the Net
Rents for such fiscal year and the management fee payable to the Asset
Manager in connection therewith, pursuant to this Agreement, (b) the
management fee already paid by the Company to the Asset Manager during
such fiscal year, and (c) either the amount owed to the Asset Manager
by the Company (which shall be the excess, if any, of the management
fee payable to the Asset Manager for such fiscal year pursuant to this
Agreement over the management fee actually paid by the Company to the
Asset Manager for such fiscal year) or the amount owed to the Company
by the Asset Manager (which shall be the excess, if any, of the
management fee actually paid by the Company to the Asset Manager for
such fiscal year over the management fee payable to the Asset Manager
for such fiscal year pursuant to this Agreement). The Asset Manager or
the Company, as the case may be, shall pay to the other the amount owed
pursuant to clause (c) above within five (5) Business Days of the
receipt by the Advisor and the Fund of the written statement of
reconciliation described in this Section 3.10(c). In addition, and
effective as of December ___, 2001, in those cases in which a tenant of
any Property requests that the Company provide property management
services at such tenant's expense, Asset Manager shall be entitled to
an oversight fee for such property management services for the tenant
of such Property equal to one half of one percent
2
(0.50%) of the Net Rent from such Property ("Oversight Fee"), which
Oversight Fee shall be payable by the tenant of such Property, in
accordance with the terms as such tenant and Asset Manager may agree.
Concurrently with the reconciliation statement required above, the
Asset Manager shall provide to the Advisor and the Fund a written
statement setting forth all Oversight Fees paid to the Asset Manager
during such fiscal year and the Net Rents relating to such Properties
for such fiscal year.
D. Form of First Amendment. Exhibit A attached hereto is made a part of
the Agreement as Exhibit B-1 thereto.
ARTICLE II
GENERAL PROVISIONS
A. Governing Law. This Amendment and the obligations of the Members
hereunder shall be interpreted, construed and enforced in accordance with the
laws of the State of Delaware without regard to its choice of law provisions.
B. No Additional Amendment. Except as modified by this Amendment, the
Agreement and each of the terms and provisions thereof shall remain unchanged
and in full force and effect in all respects.
C. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original, but
all such counterparts together shall constitute but one and the same instrument;
signature and acknowledgment pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature and
acknowledgement pages are physically attached to the same document. This
Amendment shall become effective upon the execution of a counterpart hereof by
each of the parties hereto and delivery to each of the Members of a fully
executed original counterpart of this Amendment.
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IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first set forth above.
LXP, AS THE MANAGING MEMBER
---------------------------
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Its: Chief Financial Officer
THE FUND, AS A NON-MANAGING MEMBER
----------------------------------
COMPTROLLER OF THE STATE OF NEW YORK, AS
TRUSTEE OF THE COMMON RETIREMENT FUND
By: /s/ Xxxx X. Xxxx
------------------------------------------------
Name: Xxxx X. Xxxx
Title: Deputy Comptroller, Division of
Investments and Cash Management
S-1
EXHIBIT A
FORM OF FIRST AMENDMENT TO MANAGEMENT AGREEMENT
This FIRST AMENDMENT TO MANAGEMENT AGREEMENT (this "Amendment") made as
of the __ day of December, 2001 between Lexington Acquiport Company, LLC, a
Delaware limited liability company (the "Company"), and Lexington Realty
Advisors, Inc., a Delaware corporation (the "Asset Manager"). All capitalized
terms used in this Amendment without definition shall have the respective
meanings ascribed to them in the Agreement (as defined below).
W I T N E S S E T H:
-------------------
WHEREAS, the Company and the Asset Manager entered into the Management
Agreement (the "Agreement") dated as of July 14, 1999;
WHEREAS, the Company and the Asset Manager hereby desire to supplement
and amend the Agreement as provided herein; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained the parties hereto agree as follows:
ARTICLE I
AMENDMENT TO MANAGEMENT AGREEMENT
Section 11(b) of the Agreement is hereby modified and amended by
deleting such section in its entirety and substituting the following therefore:
"(b) The Company shall pay to the Asset Manager an annual
management fee equal to two percent (2%) of Net Rents, payable monthly.
Such fee shall be calculated monthly, based on Net Rents received by
the Company for such month, and adjusted as provided in this Section
11(b). Within thirty (30) days of the Company's receipt of the annual
reports described in Section 4.3 of the Operating Agreement for a
fiscal year, the Asset Manager shall provide to the Company a written
statement of reconciliation setting forth (a) the Net Rents for such
fiscal year and the management fee payable to the Asset Manager in
connection therewith, pursuant to this Management Agreement, (b) the
management fee already paid by the Company to the Asset Manager during
such fiscal year, and (c) either the amount owed to the Asset Manager
by the Company (which shall be the excess, if any, of the management
fee payable to the Asset Manager for such fiscal year pursuant to this
Agreement over the management fee actually paid by the Company to the
Asset Manager for such fiscal year) or the amount owed to the Company
by the Asset Manager (which shall be the excess, if any, of the
management fee actually paid by the Company to the Asset Manager for
such fiscal year over the management fee payable to the Asset Manager
for such fiscal year pursuant to this Agreement). The Asset Manager or
the Company, as the case may be, shall pay to the other the amount owed
pursuant to clause (c) above within five (5) Business Days of the
receipt by the
Advisor and the Fund of the written statement of reconciliation
described in this Section 11. In addition, and effective as of December
__, 2001, in those cases in which a tenant of any Property requests
that the Company provide property management services at such tenant's
expense, Asset Manager shall be entitled to an oversight fee for such
property management services for the tenant of such Property equal to
one half of one percent (0.50%) of the Net Rent from such Property
("Oversight Fee"), which Oversight Fee shall be payable by the tenant
of such Property, in accordance with the terms as such tenant and Asset
Manager may agree. Concurrently with the reconciliation statement
required above, the Asset Manager shall provide to the Advisor and the
Fund a written statement setting forth all Oversight Fees paid to the
Asset Manager during such fiscal year and the Net Rents relating to
such Properties for such fiscal year."
ARTICLE II
GENERAL PROVISIONS
A. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
B. No Additional Amendment. Except as modified by this Amendment, the
Agreement and each of the terms and provisions thereof shall remain unchanged
and in full force and effect in all respects.
C. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original, but
all such counterparts together shall constitute but one and the same instrument;
signature and acknowledgment pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature and
acknowledgement pages are physically attached to the same document. This
Amendment shall become effective upon the execution of a counterpart hereof by
each of the parties hereto and delivery to each of the Members of a fully
executed original counterpart of this Amendment
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IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first set forth above.
COMPANY LEXINGTON ACQUIPORT COMPANY,
LLC, a Delaware limited liability company
By: LEXINGTON PROPERTIES CORPORATE
TRUST, a Maryland real estate investment trust,
the managing member
By: ____________________________________________
Name:
Its:
ASSET MANAGER LEXINGTON REALTY ADVISORS, INC.
By: _________________________________
Name:
Its:
