EX-4.4 8 v135269_ex4-4.htm
 
 
THIRD AMENDED AND RESTATED AGREEMENT
by and among
LIGHTSTONE VALUE PLUS REIT II LP,
LIGHTSTONE SLP II LLC
and
DAVID LICHTENSTEIN
 
This Third Amended and Restated Agreement (this “Agreement”) is made as of January 30, 2009, 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 David Lichtenstein, 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”), David Lichtenstein 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 David Lichtenstein 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 David Lichtenstein 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 amended and restated the First Amendment on November 17, 2008 (the “Second Amendment”) to provide for the semiannual purchase and sale of the associate general partnership interests of the OP;

WHEREAS, the parties hereto wish to amend and restate the Second Amendment to provide for that the semiannual purchase and sale of the associate general partnership interests, commencing on or around the date which the REIT obtains subscriptions in the aggregate amount of $5,000,000, with either cash or interests in real property of equivalent value; 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.

1.1   The Company agrees to purchase, and David Lichtenstein agrees to fund, the purchase of associate general partnership interests in the OP at a price of $100,000 for each $1,000,000 in subscriptions up ten percent of the Offering Proceeds.   The Company may elect to purchase associate general partnership interests in the OP with (i) cash or (ii) contributions of interests in real property of equivalent value. The proceeds received from the cash purchase and sale of subordinated profits interests will be used to pay the dealer manager fees and selling commissions in connection with the Offering.  If the Company elects to purchase associate general partnership interests with interests in properties, a majority of the REIT’s board of directors (including a majority of its independent directors) will determine the value of the interest based on an appraisal obtained by a qualified independent real estate appraiser concerning the underlying property.

1.2   In partial consideration of such funding, the Company shall receive the Subordinated Distributions.

1.3   David Lichtenstein agrees to pay for all O&O Expenses to the extent that O&O Expenses exceed the proceeds remaining (if any) from the cash 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 the date 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, in accordance with paragraph 1.1 hereof.
 
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.
 
 
/s/ David Lichtenstein
  
 
David Lichtenstein 
  
     
 
LIGHTSTONE VALUE PLUS REIT II LP 
  
     
 
By:  
Lightstone Value Plus Real Estate
Investment Trust II, Inc., its General
Partner 
  
       
       
 
By:  
/s/ David Lichtenstein
  
     
Name: David Lichtenstein 
  
     
Title: Chief Executive Officer 
  
     
       
 
LIGHTSTONE SLP II LLC
  
       
 
By:
/s/ David Lichtenstein
  
   
Name: David Lichtenstein
  
   
Title: Member