THE CONTRIBUTION AGREEMENT, THE
VEHICLES WILL NOT BE TRANSFERRED TO THE COMPANY.
RATHER, THE NEW MANAGEMENT
AGREEMENT WILL CONTAIN PROVISIONS (ACCEPTABLE TO INVESTOR LP AND OPERATOR LP)
REQUIRING THAT THE PROPERTY MANAGER COORDINATE THE AVAILABILITY OF VEHICLES AT
THE LOCATIONS IN THE ORDINARY COURSE OF THE OPERATION OF THE LOCATIONS (IT BEING
AGREED THAT THE VEHICLES WILL BE ALSO AVAILABLE TO NON-COMPANY FACILITIES
OPERATED BY YSI LP (OR ITS AFFILIATES ON A NON-DISCRIMINATORY BASIS).
IN THAT
REGARD:
(A)
SECTION 1.3(D) OF THE CONTRIBUTION
AGREEMENT IS HEREBY AMENDED TO STRIKE THEREFROM THE WORDS "INCLUDING TRUCKS
AND/OR VEHICLES LOCATED AT EACH LOCATION ("VEHICLES")"; AND
(B)
SECTION 4.7 IS HEREBY STRICKEN FROM THE
CONTRIBUTION AGREEMENT.
4.
CERTAIN TYPOGRAPHICAL CORRECTIONS.
THE
FOLLOWING PROVISIONS OF THE CONTRIBUTION AGREEMENT ARE HEREBY AMENDED TO CORRECT
TYPOGRAPHICAL ERRORS THEREIN:
(A)
THE WORDS "WITH RESPECT TO MATERIAL
OBJECTIONS" CONTAINED AT THE BEGINNING OF THE FOURTH SENTENCE OF
SECTION 3.2(C) OF THE CONTRIBUTION AGREEMENT SHALL BE REPLACED WITH THE WORDS
"WITH RESPECT TO ANY TITLE DEFECTS"; AND
(B)
THE REFERENCES TO "INVESTOR LP" AND "INVESTOR
GP" IN SUBSECTION (J) OF SECTION 3.5 OF THE CONTRIBUTION AGREEMENT SHALL BE
REPLACED WITH REFERENCES TO "OPERATOR LP" AND "OPERATOR GP".
5.
MODIFICATION OF EXHIBIT C AND
EXHIBIT D.
INVESTOR LP AND OPERATOR LP ACKNOWLEDGE THAT EXHIBIT D INCORRECTLY
IDENTIFIED LOCATION #702 (4309 EHRLICH ROAD, TAMPA FL) AS A TRANCHE II LOCATION
AND THAT SUCH IS ACTUALLY A TRANCHE I LOCATION.
AS SUCH, THE REVISED EXHIBIT C
AND REVISED EXHIBIT D ATTACHED TO THIS AMENDMENT ARE SUBSTITUTED IN THE PLACE
AND STEAD OF EXHIBIT C AND EXHIBIT D ORIGINALLY ATTACHED TO THE CONTRIBUTION
AGREEMENT.
6.
MISCELLANEOUS. EXCEPT AS EXPRESSLY
AMENDED HEREBY, THE CONTRIBUTION AGREEMENT SHALL REMAIN UNMODIFIED AND IN FULL
FORCE AND EFFECT.
THIS AMENDMENT MAY BE EXECUTED IN COUNTERPARTS AND MAY BE
EXECUTED BY FACSIMILE OR ELECTRONIC TRANSMISSION OF SIGNATURES BY THE PARTIES
AND SUCH FACSIMILE OR ELECTRONIC SIGNATURES SHALL BE VALID AND BINDING FOR ALL
PURPOSES.
[Signature Pages Follow as S-1 and S-2]
2
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of
the Effective Date.
OPERATOR LP:
YSI VENTURE LP LLC, a Delaware limited liability company
By:
/s/ Jeffrey P. Foster
Name:
Jeffrey P. Foster
Title:
Vice President
INVESTOR LP:
HART - YSI INVESTOR LP LLC, a Delaware limited liability company
By:
HEITMAN AMERICA REAL ESTATE HOLDING, L.P., a Delaware limited liability company,
its sole member
By:
HEITMAN AMERICA REAL ESTATE HOLDING GP, LLC, a Delaware limited liability
company, its general partner
By:
HEITMAN AMERICA REAL ESTATE REIT LLC, a Delaware limited liability company, its
managing member
By:
HEITMAN AMERICA REAL ESTATE TRUST, L.P., a Delaware limited partnership, its
managing member
By:
HEITMAN AMERICA REAL ESTATE TRUST, LLC, a Delaware limited liability company,
its general partner
By:
/s/ David Perisho
Name:
David Perisho
Title:
Senior Vice President
S-1
JOINDER AND AGREEMENT OF YSI LP AND AFFILIATE OWNERS
By executing below, the undersigned hereby joins in this First Amendment to
Contribution Agreement for the sole