SECOND AMENDED AND RESTATED AGREEMENT by and among LIGHTSTONE VALUE PLUS REIT II LP, LIGHTSTONE SLP II LLC and DAVID LICHTENSTEIN
by
and
among
LIGHTSTONE
VALUE PLUS REIT II LP,
LIGHTSTONE
SLP II LLC
and
XXXXX
XXXXXXXXXXXX
This
Second Amended and Restated Agreement (this “Agreement”)
is
made as of November 10, 2008, by and among Lightstone Value Plus REIT II LP,
a
Delaware limited partnership (the “OP”), Lightstone SLP II LLC, a Delaware
limited liability company (the “Company”),
and
Xxxxx Xxxxxxxxxxxx, in his individual capacity.
WHEREAS,
the Lightstone Value Plus Real Estate Investment Trust II, Inc. (the
“REIT”)
intends to hold an initial public offering (the “Offering”)
of up
to 51,000,000 shares of its common stock at a price of $10 per share, subject
to
applicable volume discounts;
WHEREAS,
pursuant to an agreement dated June 5, 2008 (the “Original
Agreement”),
Xxxxx
Xxxxxxxxxxxx committed to advance the REIT its offering and organization
expenses (the “O&O
Expenses”)
in an
amount equal to the greater of (a) up to ten percent of proceeds from the
Offering (the “Offering
Proceeds”)
or (b)
the O&O Expenses, in exchange for certain subordinated distributions (the
“Subordinated
Distributions”)
from
the OP, as detailed in the Registration Statement on Form S-11 of the REIT
filed
with the Securities and Exchange Commission on June 9, 2008, as amended;
WHEREAS,
the Company is wholly owned by Xxxxx Xxxxxxxxxxxx and was formed for the purpose
of advancing such O&O Expenses and receiving the Subordinated Distributions;
WHEREAS,
the OP admitted the Company as an associate general partner pursuant to an
Agreement of Limited Partnership of Lightstone Value Plus REIT II LP, dated
as
of April 30, 2008;
WHEREAS,
the parties amended and restated the Original Agreement on October 6, 2008
(the
“First
Amendment”)
whereby the parties agreed that Xxxxx Xxxxxxxxxxxx would commit to advance
the
REIT up to ten percent of the Offering Proceeds to pay dealer manager fees
and
selling commissions in connection with the Offering, and to the extent that
such
dealer manager fees and selling commissions is less than ten percent of the
Offering Proceeds, the O&O Expenses;
WHEREAS,
the parties hereto wish to amend and restate the First Amendment to provide
for
the semiannual purchase and sale of the associate general partnership interests
of the OP; and
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises, covenants
and agreements contained herein, the parties hereto, intending to be legally
bound hereby, agree as follows:
1.
Commitment.
The
Company agrees to pay, and Xxxxx Xxxxxxxxxxxx agrees to fund, up to ten percent
of the Offering Proceeds to pay dealer manager fees and selling commissions
and,
to the extent that such dealer manager fees and selling commissions in
connection with the Offering are less than ten percent of the Offering Proceeds,
O&O Expenses. In partial consideration of such funding, the Company shall
receive the Subordinated Distributions. Xxxxx Xxxxxxxxxxxx agrees to pay for
all
O&O Expenses to the extent that O&O Expenses exceed the proceeds
remaining from the purchase and sale of associate general partnership interests
after all selling commissions and dealer manager fees are paid.
2.
Satisfaction
of Commitment.
Commencing on or around January 1, 2009 or when the Company sells the minimum
number of shares in the Offering, and semiannually thereafter, the OP agrees
to
issue to the Company, and the Company agrees to purchase from the OP,
one associate general partner interest of the OP for each $1,000,000 in
Offering Proceeds received by the REIT, at a price per unit of $100,000.
3.
Miscellaneous.
3.1
This
Agreement may be amended only by written instrument duly executed by the parties
hereto.
3.2
This
Agreement will be governed by, and construed and enforced in accordance with,
the laws of the State of New York, without regard to its choice of law rules.
3.3
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original, but all of which, taken together, shall constitute one and the
same
instrument.
3.4
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
[Signature
page follows.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
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/s/
Xxxxx Xxxxxxxxxxxx
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Xxxxx
Xxxxxxxxxxxx
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LIGHTSTONE
VALUE PLUS REIT II LP
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By:
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Lightstone
Value Plus Real Estate
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Investment
Trust II, Inc., its General
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Partner
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By:
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/s/
Xxxxx Xxxxxxxxxxxx
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Name:
Xxxxx Xxxxxxxxxxxx
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Title:
Chief Executive Officer
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LIGHTSTONE
SLP II LLC
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By:
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/s/
Xxxxx Xxxxxxxxxxxx
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Name:
Xxxxx Xxxxxxxxxxxx
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Title:
Member
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