Exhibit 10.2
EXECUTION COPY
AMENDMENT NO. 2 TO
CONTRIBUTION AGREEMENT
THIS AMENDMENT NO. 2 TO CONTRIBUTION
AGREEMENT (“ Amendment ”) is made as of the 20th
day of February, 2008, between The Lexington Master Limited
Partnership, a Delaware limited partnership (“ LMLP
”), and Net Lease Strategic Assets Fund L.P., a Delaware
limited partnership (the “ Partnership ”).
RECITALS
A. LMLP and the Partnership have
previously entered into a certain Contribution Agreement, dated as
of August 10, 2007, as amended by that certain Amendment
No. 1 thereto, dated as of December 20, 2007 (as amended,
the “ Agreement ”), having as the subject matter
the contribution of property or properties and direct or indirect
interests in owners of property or properties as set forth on
Schedule 1 of the Agreement.
B. Except as expressly provided
herein, all capitalized terms shall have the same meanings as set
forth in the Agreement.
B. LMLP and the Partnership
desire to modify and amend the Agreement pursuant to Section
6.3 of the Agreement.
NOW THEREFORE, in consideration of
the mutual covenants and agreements contained in the Agreement and
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.1 Section 1.1 .
Section 1.1 is hereby amended by deleting the following
defined terms:
“
Eastgar ” means Eastgar Associates Limited
Partnership, a Connecticut limited partnership.
“
Eastgar Consent ” means the consent of two-thirds in
interest of the limited partners of Eastgar to the contribution of
the general partnership interest in Eastgar to the
Partnership.
“
Eastgar Partnership Agreement ” means the limited
partnership agreement of Eastgar, as the same may be amended from
time to time.
1.2 Section 1.1 .
Section 1.1 is hereby amended by adding the following
defined terms:
“
Honeywell Lease ” means that certain Lease and
Agreement, dated as of April 26, 1985, between Lexington
Glendale LLC (as successor to GlenArrow Associates Limited
Partnership by assignment) and Honeywell International Inc. (as
successor to Sperry Corporation by assignment).
“
Honeywell Property ” means the property located at
19019 N. 59 th Avenue,
Glendale, Arizona.
“
Baker Hughes Christensen Property ” means the property
located at 9110 Grogans Mill Road, The Woodlands, Texas.
“
Raytheon Property ” means the property located at 1200
Jupiter Road, Garland, Texas.
1.3 Section 2.2 . The
second sentence of Section 2.2 is hereby amended by
deleting it in its entirety and replacing it with the
following:
The execution,
delivery and performance by each LMLP Entity of this Agreement, as
applicable, have been duly and validly approved by all necessary
limited partnership and limited liability company action and no
other actions or proceedings on the part of any LMLP Entity are
necessary to authorize this Agreement or the transactions
contemplated hereby and thereby.
1.4 Section 2.5 . The
third sentence of Section 2.5 is hereby amended by
deleting it in its entirety and replacing it with the
following:
Subject to
obtaining waivers of the ROFO/ROFR Rights, LMLP has the absolute
right, power and capacity, to sell, assign, convey, transfer and
deliver the Interests as contemplated by this Agreement, free and
clear of any liens, claims or other encumbrances, other than the
applicable Loan.
1.5 Section 2.10 .
Section 2.10 is hereby amended by deleting it in its
entirety.
1.6 Section 3.1(c) .
Section 3.1(c) is hereby amended by deleting it in its
entirety and replacing it with the following:
Leases .
As of a Closing: with respect to such Contributed Asset,
(i) the current Tenant Estoppel for the applicable Lease
disclosing no matters reasonably objectionable to the Partnership
and Inland, has been delivered to the Partnership and Inland;
(ii) the current Ground Lease Estoppel for the applicable
Ground Lease, if applicable, disclosing no matters reasonably
objectionable to the Partnership and Inland, have been delivered to
the Partnership and Inland; (iii) the consent of the ground
lessor under the Ground Lease, if applicable and if required under
the Ground Lease; (iv) the Leases and, if applicable, the
Ground Leases shall be in full force and effect and no monetary or
material nonmonetary default or claim by landlord or tenant shall
have arisen under any Leases or, if applicable, the Ground Lease
that was not specifically disclosed in writing to the Partnership
and Inland; (v) no tenant at the applicable Property shall
have initiated or had initiated against it any insolvency,
bankruptcy, receivership or other similar proceeding;
(iv) there shall not have been any amendment to the Lease or
Ground Lease, as applicable, after the date hereof, unless
consented to by the Partnership and Inland; and (vii) there
shall not have occurred an event of any material damage or
destruction to the applicable Property or any significant
condemnation of the applicable Property which are not the
obligation of the tenants thereof to
repair and
renders such Property unusable by the tenant thereof or gives the
tenants thereof the right to terminate; provided that LMLP shall
have the right to exercise the Owner’s rights under the
Honeywell Lease with respect to the Released Option Parcel (as
defined in the Honeywell Lease).
1.7 Section 3.1(f) .
Section 3.1(f) is hereby amended by deleting it in its
entirety.
1.8 Article 7 .
Article 7 is hereby amended by adding the following
sections:
Section 7.3 . Honeywell Release Parcel .
Notwithstanding anything to the contrary, the Real Property
constituting the Honeywell Property shall not include the Released
Parcel (as defined in the Honeywell Lease).
Section 7.4 . Condition Precedent to Closing for
Raytheon Property . Notwithstanding anything to the contrary,
the obligation of each of the Partnership and LMLP to consummate a
Closing with respect to the Interests related to the Raytheon
Property is subject to the acquisition by NLSAF Garland L.P. of a
100% fee interest in the Raytheon Property.
1.9 Schedule 1 .
Schedule 1 is hereby amended by deleting it in its
entirety and replacing it with Schedule 1 hereto.
1.10 Schedule 2 .
Schedule 2 is hereby amended by deleting it in its
entirety and replacing it with Schedule 2 hereto.
1.11 Schedule 2.5 .
Schedule 2.5 is hereby amended by deleting it in its
entirety and replacing it with Schedule 2.5
hereto.
1.12 Schedule 2.8 .
Schedule 2.8 is hereby amended by deleting it in its
entirety and replacing it with Schedule 2.8
hereto.
1.13 Schedule 4.2 .
Schedule 4.2 is hereby amended by deleting it in its
entirety and replacing it with Schedule 4.2
hereto.
1.14 No Further Amendment .
Except as expressly provided for in this Amendment, the Agreement
is in full force and effect and in accord
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