ex10.htm


    Exhibit
10.1

    


    


    FIRST
AMENDMENT TO AMENDED AND RESTATED LIMITED

     PARTNERSHIP
AGREEMENT

    


    This
Amendment (this “Amendment”)
to the Amended and Restated Limited Partnership Agreement of JER US Debt
Co-Investment Vehicle, L.P. is made as of this 4th day of December, 2008, by and
among JER Debt Co-Investment Advisors, L.P., a Delaware limited partnership, as
general partner (the “General
Partner”), JERIT Non-CDO Assets Holding LLC, a Delaware limited liability
company, as limited partner, JER Fund IV US Debt Co-Investment, LLC, a Delaware
limited liability company, as limited partner and the California Public
Employees’ Retirement System, as limited partner (collectively, the “Limited
Partners”).

    


    WHEREAS,
the General Partner and the Limited Partners have entered into (either directly
or by subscription agreement, as applicable) that certain Amended and Restated
Limited Partnership Agreement of JER US Debt Co-Investment Vehicle, L.P. (the
“LPA”)
dated as of December 11, 2007; and

    


    WHEREAS,
the General Partner and the Limited Partners desire to amend certain provisions
of the LPA in accordance with the terms of this Amendment.

    


    NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby recognized and acknowledged by the parties hereto, the parties
hereto agree as follows:

    


    1.           Amendments. (a) The
definition of “Expiration
Date” in Article I of the LPA is hereby deleted in its entirety, and the
following definition is hereby substituted therefor:

    


    “Expiration
Date:  The date which is the second anniversary of the
Closing.”

    


    (b) The following definitions of “WestLB Line” and “Management Fee Determination
Date” are hereby inserted into Article I of the LPA:

    


    “Management Fee Determination
Date”:  With respect to a determination of the Management Fee,
the applicable date the Management Fee is calculated hereunder.

    


    “WestLB Line”: That certain
revolving credit facility made pursuant to that certain Revolving Credit
Agreement dated as of February 1, 2008 by and among the Partnership, as
borrower, WestLB AG New York Branch, as administrative agent and WestLB AG New
York Branch, as structuring agent, as the same may be amended, restated,
extended, supplemented, replaced or otherwise modified.

    


    (c)
Section 4.6(a) of the LPA is hereby deleted in its entirety, and the following
is hereby substituted therefor:

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “4.6 Other Activities. Exclusivity.
(a)  Except as provided herein, until December 11, 2008, the
General Partner shall seek to pursue all investment opportunities meeting the
Investment Guidelines for the exclusive benefit of the Partnership; provided, that the foregoing
shall not apply to investments, the acquisition costs of which individually do
not exceed $5,000,000. Notwithstanding the foregoing, the General Partner may
cause the Partnership to co-invest in any investment opportunity meeting the
investment objectives of the (i) Partnership and (ii) JER Fund IV and/or JERIT,
with such co-investment being allocated 55% to the Partnership and 45% to JER
Fund IV and/or JERIT; provided, that where the
Partnership and JER Fund IV and/or JERIT invest in the same investment
opportunity, JER Fund IV and/or JERIT shall, subject to tax, legal, regulatory,
accounting and other similar considerations, invest and divest at substantially
the same time and on substantially the same terms and conditions as those on
which the Partnership invests; provided, that the
Partnership may separately dispose of its pro rata share of such Investment
without the consent of JER Fund IV and/or JERIT, as applicable; and provided, further, that until
four months after the Closing date all Target Investments shall be allocated
100% to the Partnership. The General Partner hereby confirms that no allocation
pursuant to the immediately preceding sentence shall result in CalPERS, through
its Interest in the Partnership, indirectly owning less than 50% of any
Investment. Notwithstanding anything to the contrary contained herein, it is
hereby acknowledged and agreed that from and after December 11, 2008, the
General Partner shall have no further duty or obligation (i) to pursue any
investment opportunities for the benefit of the Partnership or (ii) to allocate
any investment opportunities between/among the Partnership, JER Fund IV and/or
JERIT, as would otherwise be required hereunder.”

    


    (d) Section 6.1(a) of the LPA is hereby
deleted in it is entirety, and the following is hereby substituted
therefor:

    


    “6.1
Management Fees. (a)
The Management Fee will commence accruing as of the date of the Closing. CalPERS
shall make a Capital Contribution to the General Partner of the fee applicable
to such Limited Partner (the “Management Fee”) described
below. The Management Fee shall be paid quarterly in arrears in the manner and
on the dates set forth in Section 3.1. The Management Fee may also be paid out
of CalPERS’ share of Investment Proceeds, and the General Partner may cause the
Partnership to borrow funds to pay the Management Fee. Commencing on December
11, 2008, through and including December 11, 2009, the Management Fee on any
date shall be an amount equal to the product of (I) 1.5% per annum and (II) the
sum of (A) CalPERS’ aggregate Capital Contributions for Investments plus (B) CalPERS’ pro rata
share of the outstanding principal balance on the WestLB Line as of the
applicable Management Fee Determination Date minus (C) CalPERS’ pro rata
share of all unrestricted cash and cash equivalents held by the Partnership as
of the applicable Management Fee Determination Date minus (D) Capital
Contributions for Investments that have been the subject of a Disposition. After
December 11, 2009, the Management Fee on any date shall be an amount equal to
the product of (I) 1.5% per annum and (II) the sum of (A) CalPERS’ aggregate
Capital Contributions for Investments minus (B) Capital
Contributions for Investments that have been the subject of a
Disposition.”

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.           Continuing Effect.
Except as expressly set forth in this Amendment, the LPA remains in full force
and effect and is hereby ratified and confirmed in all respects.

    


    3.           Counterparts. This
Amendment may be executed in one or more counterparts, all of which shall
constitute one and the same instrument.

    


    


    [SIGNATURES APPEAR ON THE FOLLOWING
PAGE]

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered in their names as of the date first written
above.

    


    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	 
      	
                                      GENERAL
      PARTNER:

                                    
	 
      	 
      	 
      	 
      	 
      
	 
      	
                                      JER DEBT CO-INVESTMENT
      ADVISORS, L.P., 

                                      a Delaware
      limited partnership

                                    
	 
      	 
      
	 
      	
                                      By:

                                    	
                                      JER
      DEBT Co-Investment Advisors, L.L.C., 

                                      its
      general partner

                                    
	 
      	 
      
	 
      	 
      	
                                      By:

                                    	/s/
      Mark S. Weiss	 
      
	 
      	 
      	 
      	
                                      Name: 
      Mark S. Weiss

                                    	 
      
	 
      	 
      	 
      	
                                      Title: 
      Managing Director

                                    	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                                      LIMITED
      PARTNERS:

                                    
	 
      	 
      	 
      	 
      	 
      
	 
      	
                                      CALIFORNIA
      PUBLIC EMPLOYEES’

                                    
	 
      	
                                      RETIREMENT
      SYSTEM

                                    
	 
      	 
      
	 
      	
                                      By:

                                    	/s/
      JJ Jelincic	 
      
	 
      	 
      	
                                      Name: 
      JJ Jelincic

                                    
	 
      	 
      	
                                      Title: 
      Investment Officer III

                                    
	 
      	 
      
	 
      	 
      
	 
      	
                                      JERIT
      NON-CDO ASSETS HOLDING LLC, 

                                      a
      Delaware limited liability company

                                    
	 
      	 
      	 
      	 
      	 
      
	 
      	
                                      By:

                                    	
                                      JER
      Investors Trust Inc., a Maryland 

                                      corporation,
      its sole member

                                    
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                                      By:

                                    	/s/ Mark S. Weiss	 
      
	 
      	 
      	 
      	
                                      Name: 
      Mark S. Weiss

                                    	 
      
	 
      	 
      	 
      	
                                      Title: 
      President

                                    	 
      
	 
      	 
      
	 
      	 
      
	
                                      [SIGNATURES CONTINUE ON THE
      FOLLOWING PAGE]

                                    
	 
      	 
      	 
      	 
      	 
      


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	 
      	 
      	 
      	 
      	 
      
	 
      	
                                  JER FUND IV US DEBT
      CO-INVESTMENT, LLC, 

                                  a Delaware
      limited liability company

                                
	 
      	 
      
	 
      	
                                  By:

                                	
                                  JER
      REAL ESTATE PARTNERS IV, L.P.

                                  a
      Delaware limited partnership, Member

                                
	 
      	 
      	 
      
	 
      	 
      	
                                  By:
      JER REAL ESTATE ADVISORS IV, L.P.

                                  a
      Delaware limited partnership, its general partner

                                
	 
      	 
      	
                                  By:
      JER REAL ESTATE ADVISORS IV, INC.

                                  a
      Delaware corporation, its general partner

                                
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                                  By:

                                	/s/
      Gerald R. Best	 
      
	 
      	 
      	 
      	
                                  Name: 
      Gerald R. Best

                                
	 
      	 
      	 
      	
                                  Title: 
      Director & Counsel

                                
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                                  By:

                                	
                                  JER
      REAL ESTATE QUALIFIED PARTNERS IV, L.P.

                                  a
      Delaware limited partnership, Member

                                
	 
      	 
      	
                                  By:
      JER REAL ESTATE ADVISORS IV, L.P.

                                  a
      Delaware limited partnership, its general partner

                                
	 
      	 
      	
                                  By:
      JER REAL ESTATE ADVISORS IV, INC.

                                  a
      Delaware corporation, its general partner

                                
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                                  By:

                                	/s/ Gerald R. Best	 
      
	 
      	 
      	 
      	
                                  Name: 
      Gerald R. Best

                                
	 
      	 
      	 
      	
                                  Title: 
      Director &
Counsel