JOINDER AGREEMENT
THIS JOINDER AGREEMENT, dated November 7, 2005, among XXXXXXX REALTY
TRUST, INC., a Maryland corporation (the "Company"), FIRST UNION REAL ESTATE
EQUITY AND MORTGAGE INVESTMENTS, an Ohio business trust ("First Union"), and THE
XXXXXXX MASTER LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Partnership").
R E C I T A L S:
WHEREAS, the Company and First Union are party to that certain Securities
Purchase Agreement dated November 7, 2005 (the "Securities Purchase Agreement")
pursuant to which First Union is acquiring 3,125,000 shares of common stock in
the Company;
WHEREAS, the Company is acquiring a general partner interest in the
Partnership;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Securities Purchase Agreement that the Partnership join in
and become a party to the Securities Purchase Agreement;
NOW, THEREFORE, in consideration of the premises, warranties and mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Capitalized Terms. Capitalized Terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Securities Purchase
Agreement.
2. Joinder. The Partnership hereby joins in and becomes party to the
Securities Purchase Agreement solely for purposes of the representations and
warranties set forth in ARTICLE III of the Securities Purchase Agreement and the
indemnification obligations of the Company set forth in ARTICLE IX of the
Securities Purchase Agreement.
3. Representations and Warranties. The Partnership hereby represents and
warrants to First Union as of the date hereof as follows:
(a) All of the representations and warranties set forth ARTICLE III
of the Securities Purchase Agreement that relate to the Partnership are true and
correct in all material respects;
(b) This Agreement has been duly authorized, executed and delivered
and constitutes the legal, valid and binding obligation of the Partnership,
enforceable against the Partnership in accordance with its terms except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency and similar laws affecting rights of creditors generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
4. Governing Law. This Assignment shall be governed by and construed under
the laws of the State of New York, without respect to principles governing
conflict of laws.
5. Successors and Assigns. This Assignment shall inure to the benefit of,
and be binding upon, the heirs, executors, administrators, successors and
assigns of the parties hereto.
6. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one document.
IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
XXXXXXX REALTY TRUST, INC.
By:
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Xxxxx Xxxxxxxxx
President
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By:
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Xxxxxxx X. Xxxxxx
Chief Executive Officer
THE XXXXXXX MASTER LIMITED PARTNERSHIP
By: Xxxxxxx Realty Trust, Inc.
General Partner
By:
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Xxxxx Xxxxxxxxx
President
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