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Exhibit 99.10
FIRST AMENDMENT TO OPERATING AGREEMENT
OF MADISON PLACE, LLC
This FIRST AMENDMENT TO
OPERATING AGREEMENT of MADISON PLACE, LLC (this
"Amendment") is made as of July 5 th , 2005 by and among COLUMBIA
EQUITY LP, a Virginia limited partnership ("Columbia"), CARR
CAPITAL MADISON, LLC, a Virginia limited liability company
("CCM") and AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation ("Aetna"), as the sole members of Madison Place,
LLC, a Virginia limited liability company (the
"Company").
WHEREAS, the Company was
formed pursuant to the filing of certain Articles of Organization
dated June 26, 2003 with the State Corporation Commission for
the Commonwealth of Virginia on July 1, 2003; and
WHEREAS, the
Company’s affairs are governed by that certain Operating
Agreement of Madison Place, LLC dated as of July 16, 2003 by
and among CCM, Carr Capital Real Estate Investments, LLC, a
Virginia limited liability company ("CCREI") and Aetna (the
"Operating Agreement"); and
WHEREAS, Columbia has
acquired a portion of Aetna’s membership interest in the
Company such that, as of the date hereof, CCM is the owner and
holder of a fifteen percent (15%) membership interest in the
Company, Columbia is the owner and holder of a thirty-five percent
(35%) membership interest in the Company and Aetna is the owner and
holder of a fifty percent (50%) membership interest in the Company;
and
WHEREAS, Aetna, CCM 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, CCM 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. Each of
Aetna and CCM 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 in
replacement for CCREI. Aetna hereby consents to the transfer and
assignment (by liquidation or otherwise) of CCM’s membership
interest in the Company to Columbia. Upon Aetna’s receipt of
written notice from Columbia that CCM has transferred its
membership interest to Columbia, the Operating Agreement will be
deemed amended such that the definition of "CCM" appearing in
Section 1.1 will be
deleted, and all subsequent references in the Operating
Agreement to "CCM" shall be deemed to mean and refer solely to
Columbia.
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 Trammel Crow 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,
CCM and Aetna collectively, or their respective permitted
successors or assigns in interest as a Substituted Member."
e. 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%, CCM 15% and Columbia 35%.
f. Section 1.1 is amended by
amending and restating the definition of "Property Manager" to read
in its entirety as follows:
"Property Manager" shall
mean Trammel Crow Services, Inc. or other property management
company selected by Manager with the Consent of Aetna.
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g. 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 Ag
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