FIRST AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT OF KING I LLC
Exhibit 99.7
FIRST AMENDMENT TO AMENDED
AND RESTATED OPERATING AGREEMENT OF KING I LLC
AND RESTATED OPERATING AGREEMENT OF KING I LLC
This FIRST AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT of KING I LLC (this
“Amendment”) is made as of July 5, 2005 by and between COLUMBIA EQUITY LP, a Virginia limited
partnership (“Columbia”) and AETNA LIFE INSURANCE COMPANY, a Connecticut corporation (“Aetna”), as
the sole members of King I LLC, a Virginia limited liability company (the “Company”).
WHEREAS, the Company was formed by the conversion of King Street I Associates, a Virginia
general partnership, to a Virginia limited liability company, pursuant to the filing of a certain
certificate dated and effective as of January 24, 2003, with the State Corporation Commission for
the Commonwealth of Virginia; and
WHEREAS, the Company’s affairs are governed by that certain Amended and Restated Operating
Agreement of King I LLC dated as of February 20, 2003 by and among The Xxxxxx Xxxx Company, a
District of Columbia corporation (“OCC”), Xxxx Capital Real Estate Investments, LLC, a Virginia
limited liability company (“CCREI”), Xxxxxx X. Xxxx, Xx., an individual (“OTCJr”), Xxxxxx X. Xxxxx,
an individual (“Xxxxx”), The Xxxxx X. Xxxxx Trust (the “Xxxxx Trust”) and Aetna (the “Operating
Agreement”); and
WHEREAS, Columbia has acquired all of the membership interests in the Company previously owned
by OCC, CCREI, OTCJr, Xxxxx and the Xxxxx Trust, and a portion of Aetna’s membership interest in
the Company such that, as of the date hereof, Columbia and Aetna are the sole members of the
Company and each the owner and holder of a fifty percent (50%) membership interest in the Company;
and
WHEREAS, Aetna and Columbia wish to amend certain provisions of the Operating Agreement as
more particularly set forth herein.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Aetna and Columbia hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Operating Agreement.
2. Consent for Columbia’s Admission as Member and Manager. Aetna hereby confirms its
consent to the admission of Columbia as a Substituted Member and the designation of Columbia as
Manager. Columbia hereby acknowledges its admission as a Substituted Member and accepts its
appointment as Manager.
3. Amendment of Operating Agreement. The Operating Agreement is hereby amended as
follows:
a. Section 1.1 is amended by inserting the following definition:
“Columbia” means Columbia Equity LP, a Virginia limited partnership.”
b. Section 1.1 is amended by amending and restating the definition of “Management
Agreement” to read in its entirety as follows:
“Management Agreement” shall mean that certain Management Agreement dated as of June
22, 2004 between the Company and Xxxxxxx Xxxx Services, Inc., or such other agreement
providing for the management of the Property by Property Manager entered into with the
Consent of Aetna.
c. Section 1.1 is amended by amending and restating the definition of “Manager” to
read in its entirety as follows:
“Manager” shall mean Columbia, unless and until (a) a successor Manager is
designated pursuant to §6.1(e), or (b) Aetna exercises its right to replace
Columbia as Manager pursuant to §6.7, in either of which case “Manager” shall mean
and refer to such successor or replacement Manager on and after such date.”
d. Section 1.1 is amended by amending and restating the definition of “Members” to
read in its entirety as follows:
“Members” means Columbia and Aetna collectively, or their respective
permitted successors or assigns in interest as a Substituted Member.”
e. Section 1.1 is amended by deleting the definition of “Non-Aetna Member”.
f. Section 1.1 is amended by amending and restating the definition of “Percentage
Interest” to read in its entirety as follows:
“Percentage Interest” means, at any time, Aetna 50%, and Columbia 50%.
g. Section 1.1 is amended by amending and restating the definition of “Property
Manager” to read in its entirety as follows:
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“Property Manager” shall mean Xxxxxxx Xxxx Services, Inc. or other property management
company selected by Manager with the Consent of Aetna.
h. Section 4.7(b) is amended and restated to read in its entirety as follows:
“(b) In the event any interest in the Company is transferred in accordance
with the terms of this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent such Capital Account relates to the
transferred interests.”
i. Section 6.3(a) is amended and restated to read in its entirety as follows:
“(a) The Property shall be managed by the Property Manager pursuant to the Management
Agreement, in consideration for which the Company will pay the Property Manager a
management fee in the amount of up to 3% of the gross monthly income derived from the
Property for the period for which such fee is paid, plus reimbursement of such costs and
expenses of the Property Manager as set forth in the Management Agreement. Except as
provided in the Management Agreement, the Manager shall have no right to terminate or
replace the Property Manager or amend, modify, or terminate the Management Agreement
without the Consent of Aetna.”
j. Section 10.1(b) is amended and restated to read in its entirety as follows:
“(b) A transfer of a controlling interest within a Member shall also be
considered a Transfer for purposes of this Agreement. For purposes of this
provision, a “controlling interest within a Member” shall mean (i) the transfer of
fifty percent (50%) or more of the ownership interest of the Member or the transfer
and/or issuance of more than fifty percent (50%) of the voting stock of the Member,
if the Member is not a publicly held corporation, to any Person that is not an
owner or stockholder of the Member on the date of execution of this Agreement, or
(ii) the sale, transfer or other conveyance of all or substantially all of the
Member’s assets. The Transfer prohibitions of this Section 10.1 shall not apply to
Transfers (x) as a result of death, or in connection with the estate planning, of a
natural person to a spouse, son or daughter or descendant of either, to a stepson
or stepdaughter or descendant of either, (y) from a Member to its Affiliate, or (z)
as a result of a corporate merger or acquisition of substantially all of the
ownership interests within a Member or substantially all of a Member’s assets (a
“Permitted Transfer”). A transferee of a Member’s Interest will be admitted as a
Substituted Member only pursuant to Section 10.3. Any purported Transfer that does
not comply with the provisions of this Section 10 shall be void and shall not cause
or constitute a dissolution of the Company.”
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k. Section 11.4 is amended by changing the period that appears at the end of
Subsection 11.4(i) to a semi-colon, followed by “and”, and inserting a Subsection 11.4(j)
as follows:
“(j) upon written request by Aetna, copies of any notices or reports sent by
Columbia’s general partner to its shareholders, filings made by Columbia’s general
partner with the United States Securities and Exchange Commission, or filings made
by Columbia’s general partner with any stock exchange at which its securities are
traded.”
l. Section 13.3 is amended and restated to read in its entirety as follows:
Ҥ13.3. Other Businesses. Aetna, Columbia or any of their respective
Affiliates may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to the
business of the Company, and the Company shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Company, shall not be deemed wrongful or improper. No Member,
Manager or Affiliate thereof shall be obligated to present any particular
investment opportunity to the Company, even if such opportunity is of a character
that, if presented to the Company, could be taken by same, and Aetna, Columbia or
any of their respective Affiliates shall have the right to take for its own account
(individually or as a partner, shareholder, fiduciary or otherwise) or to recommend
to others any such particular investment opportunity.”
m. Schedule A to the Operating Agreement is amended by substituting the
Schedule A attached hereto for the Schedule A to the Operating Agreement.
n. All references in the Operating Agreement to “this Agreement” shall mean and refer
to the Operating Agreement, as amended by this Amendment.
4. Status of Operating Agreement. Except as specifically amended hereby, the
Operating Agreement has not been amended or modified. As amended hereby, the Operating Agreement
remains in full force and effect, and the parties hereto hereby reaffirm their respective
obligations as Members (and in the case of Columbia, as the Manager) thereunder.
5. Binding Effect. This Amendment shall be binding upon and inure to the benefit of
all of the parties and, to the extent permitted by this Amendment, their respective successors,
heirs, legal representatives and assigns.
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6. Severability. The invalidity or unenforceability of any particular provision of
this Amendment shall not affect the other provisions hereof, and this Amendment shall be construed
in all respects as if such invalid or unenforceable provision were omitted.
7. Counterparts. This Amendment may be executed in any number of counterparts with
the same effect as if the parties hereto had signed the same document. All counterparts shall be
construed together and shall constitute one instrument.
8. Integration. This Amendment constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior agreements and
understanding pertaining thereto.
9. Governing Law. This Amendment and the rights of the parties hereunder shall be
interpreted in accordance with the laws of the State, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
Remainder of Page is Intentionally Blank; Following is Signature Page
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
stated.
| MEMBERS: | ||||||
| AETNA LIFE INSURANCE COMPANY, a Connecticut corporation |
||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Xxxxx X. Xxxxxx | ||||||
| Managing Director | ||||||
| COLUMBIA EQUITY LP, a Virginia limited partnership |
||||||
| By: | Columbia Realty Trust, Inc., a Maryland corporation, its general partner |
|||||
| By: | /s/ Xxxxxx X. Xxxx, III | |||||
| Xxxxxx X. Xxxx III Chairman and Chief Executive Officer |
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SCHEDULE A
| Members and Addresses | Deemed Capital | Membership Percentage | ||||||
Aetna Life Insurance Company |
$ | 5,725,000.00 | 50 | % | ||||
000 Xxxxxxxxxx Xxxxxx, XXXX Xxxxxxxx, Xxxxxxxxxxx 00000 |
||||||||
Columbia Equity LP |
$ | 5,725,000.00 | 50 | % | ||||
c/x Xxxx Capital Corporation 0000 X Xxxxxx, X.X. Xxxxx 000 Xxxxxxxxxx, X.X. 00000 Attention: Xxxxxx Xxxxxxx |
||||||||
Total |
$ | 11,450,000.00 | 100 | % | ||||
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