0001539497-22-000011.txt : 20220103 0001539497-22-000011.hdr.sgml : 20220103 20220103165559 ACCESSION NUMBER: 0001539497-22-000011 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 31 CONFORMED PERIOD OF REPORT: 20211229 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20220103 DATE AS OF CHANGE: 20220103 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LXP Industrial Trust CENTRAL INDEX KEY: 0000910108 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 133717318 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12386 FILM NUMBER: 22502789 BUSINESS ADDRESS: STREET 1: ONE PENN PLAZA STREET 2: SUITE 4015 CITY: NEW YORK STATE: NY ZIP: 10119 BUSINESS PHONE: (212) 692-7200 MAIL ADDRESS: STREET 1: ONE PENN PLAZA STREET 2: SUITE 4015 CITY: NEW YORK STATE: NY ZIP: 10119 FORMER COMPANY: FORMER CONFORMED NAME: LEXINGTON REALTY TRUST DATE OF NAME CHANGE: 20070104 FORMER COMPANY: FORMER CONFORMED NAME: LEXINGTON CORPORATE PROPERTIES TRUST DATE OF NAME CHANGE: 19980625 FORMER COMPANY: FORMER CONFORMED NAME: LEXINGTON CORPORATE PROPERTIES INC DATE OF NAME CHANGE: 19930816 8-K 1 n2288-x16_8k.htm FORM 8-K
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 UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

Current Report

Pursuant to Section 13 OR 15(d) of The

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): December 29, 2021

 

LXP INDUSTRIAL TRUST
(Exact name of registrant as specified in its charter)
 

 

Maryland 1-12386 13-3717318

(State or other jurisdiction

of incorporation)

(Commission File Number) (IRS Employer Identification No.)
     

 

One Penn Plaza, Suite 4015, New York, New York 10119-4015

 

(Address of principal executive offices) (Zip Code)

 

(212) 692-7200

(Registrant’s telephone number, including area code)

 

LEXINGTON REALTY TRUST

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered
Shares of beneficial interest, par value $0.0001 per share, classified as Common Stock LXP New York Stock Exchange
6.50% Series C Cumulative Convertible Preferred Stock, par value $0.0001 per share LXPPRC New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

Item 1.01. Entry into a Material Definitive Agreement.

On December 29, 2021, LXP Industrial Trust, or the Trust, Lepercq Corporate Income Fund L.P., a subsidiary of the Trust (the “Partnership”), and Net Lease Strategic Assets Fund L.P., a subsidiary of the Trust (“NLS”), entered into a purchase and sale agreement (the “Purchase Agreement”) with LX JV Investor II LLC, an affiliate of Davidson Kempner Capital Management LP, which provides for the sale of interests in various entities that collectively own 22 manufacturing and cold storage assets to NNN MFG Cold JV L.P. (“MFG JV”), a newly formed joint venture between LX JV Investor II LLC and affiliates of the Trust, for $550 million. The sale occurred on December 29, 2021.  

MFG JV is governed by a Limited Partnership Agreement, dated as of December 29, 2021 (the “JV Agreement”), among LX JV Investor II LLC, as a limited partner, LXP MFG C L.P., as a limited partner, and LXPDK II GP LLC, as the sole general partner.   LXP MFG C L.P., a wholly-owned subsidiary of the Trust (the “Lexington Partner”), owns 20% of MFG JV and LX JV Investor II LLC owns 80% of MFG JV.  LXPDK II GP LLC, a wholly-owned subsidiary of the Trust, is entitled to acquisition, asset management fees, leasing fees (other than for tenant renewals in accordance with a lease), property management fees where the landlord has primary management responsibilities, and market construction management fees. LXPDK II GP LLC may be removed as general partner upon certain conditions following a For Cause Event (as defined in the JV Agreement).

The JV Agreement provides for quarterly distributions of distributable funds pursuant to a distribution waterfall that includes promoted interests for the Lexington Partner starting after LX JV Investor II LLC has received a cumulative ten percent (10%) Internal Rate of Return (as defined in the JV Agreement).   The JV Agreement also provides the limited partners with customary major decision rights and contains buy/sell and forced sale provisions after a lockout period. 

The foregoing description is qualified in its entirety by reference to the Purchase Agreement and the JV Agreement, which are respectively attached as Exhibit 10.1 and 10.2 to this Current Report on Form 8-K.

Item 7.01 Regulation FD Disclosure.

On January 3, 2022, we made available a presentation entitled “LXP Industrial Trust – $550 Million Recapitalization of Special Purpose Industrial Portfolio ” on the “Investors” section of our web site at www.lxp.com and issued a related press release, copies of which are furnished herewith as Exhibits 99.1 and 99.2.

The information furnished pursuant to this “Item 7.01 - Regulation FD Disclosure”, including Exhibits 99.1 and 99.2, shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or otherwise subject to the liabilities of that section, and shall not be deemed to be incorporated by reference into any filing made by us under the Exchange Act or the Securities Act of 1933, as amended, regardless of any general incorporation language in any such filing, except as shall be expressly set forth by specific

reference in such a filing. Information contained on our web site is not incorporated by reference into this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits.

(d)    Exhibits 

  

10.1       Purchase and Sale Agreement, dated as of December 29, 2021, between the Trust, the Partnership and NLS, as sellers, and LX JV Investor II, as purchaser

10.2        Limited Partnership Agreement of NNN MFG Cold JV L.P., dated as of December 29, 2021, among LX JV Investor II LLC, as a limited partner, LXP MFG C L.P., as a limited partner, and LXPDK II GP LLC, as a general partner

99.1       Presentation entitled “LXP Industrial Trust – $550 Million Recapitalization of Special Purpose Industrial Portfolio”

99.2       Press Release issued January 3, 2022

104         Cover Page Interactive Data File (embedded within the Inline XBRL document)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Lexington Realty Trust
Date: January 3, 2022 By:   /s/ Beth Boulerice
Beth Boulerice
Chief Financial Officer

 

 

EX-10.1 2 exh10-1.htm PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 29, 2021

Exhibit 10.1

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made as of the 29th day of December, 2021 (the “Effective Date”), by and among LXP Industrial Trust, a Maryland real estate investment trust (“LXP”), Net Lease Strategic Assets Fund L.P. (“NLSA”), a Delaware limited partnership and Lepercq Corporate Income Fund L.P., a Delaware limited partnership (“LCIF” and, together with NLSA and LXP, individually and/or collectively, as the context may require, jointly and severally, “Seller”), and LX JV Investor II LLC, a Delaware limited liability company (“Investor Partner”).

RECITALS

A.       NNN MFG Cold JV L.P., a Delaware limited partnership (the “Partnership”), was formed on October 28, 2021, pursuant to and in accordance with the Delaware Revised Uniform Limited Partnership Act (6 Del. C. § 17 101, et seq.), as amended and in effect as of the date of determination, and the Partnership will be governed by a limited partnership agreement (the “Partnership Agreement”), among LXPDK II GP LLC, a Delaware limited liability company, as the general partner, and LXP MFG C L.P., a Delaware limited partnership, and Investor Partner or an affiliate thereof, as limited partners, in substantially the form attached as Exhibit D hereto (the “Partnership Agreement”), it being agreed that, subject to Section 7.6 hereof, any changes to the attached form shall be factual updates only.

B.       The Partnership formed two (2) subsidiaries, (i) NNN MFG Cold Holdco L.P., a Delaware limited partnership (“Holdco LP”), on November 10, 2021, pursuant to and in accordance with the Delaware Revised Uniform Limited Partnership Act (6 Del. C. § 17 101, et seq.), as amended and in effect as of the date of determination and (ii) NNN MFG Cold Holdco GP LLC, a Delaware limited liability company (“Holdco GP LLC” and together with Holdco LP, collectively, “Holdco Subsidiaries”), on November 10, 2021, pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. § 18 101, et seq.), as amended and in effect as of the date of determination.

C.       Immediately prior to Closing, subject to Section 7.6 hereof, Purchaser shall assign this Agreement to the Partnership and Holdco LP pursuant to an Assignment of Purchase and Sale Agreement in substantially the form attached as Exhibit A hereto (the “Assignment of Purchase Agreement”).

D.       At Closing, Seller will sell or cause to be sold to Purchaser direct and/or indirect interests in the Owners of the Properties as further described on Schedule 1, subject to the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

 

ARTICLE 1

DEFINITIONS

1.1            Definitions. In addition to the terms defined in this Agreement, the following terms shall have the meanings set forth herein:

Access Agreement” means that certain Access Agreement, dated as of September 24, 2021, between LXP, Owner, certain other affiliates of LXP, and DKCM LP, as amended by that certain First Amendment to Access Agreement, dated as of October 12, 2021, as further amended by that certain Second Amendment to Access Agreement, dated as of November 1, 2021, as further amended by that certain Third Amendment to Access Agreement, dated as of November 30, 2021 and as further amended by that certain Fourth Amendment to Access Agreement, dated as of December 16, 2021, and as the same may hereafter be further amended, restated, supplemented and/or otherwise modified from time to time.

Affiliate” shall mean, as to any specified Person, any other Person that directly or indirectly Controls, is Controlled by, or is under Common Control with such first Person.

Agreement” is defined in the preamble to this Agreement.

Amended Lex Warren Operating Agreements” is defined in Section 7.3(d) of this Agreement.

Assignment of Interests” is defined in Section 7.3(c) of this Agreement.

Assignment of Purchase Agreement” is defined in the recitals of this Agreement.

Bifurcated Closing Option” is defined in Section 7.6 of this Agreement.

Broker” means, collectively, the Sale Broker and the Mortgage Broker.

Business Day” means any day of the year other than Saturday, Sunday or any other day on which banks located in New York, New York generally are closed for business.

Chester Lender” means JPMorgan Chase Bank, N.A., together with its successors and assigns.

Chester Loan” means that certain mortgage loan made by the Chester Lender (as assigned and currently serviced by KeyBank Real Estate Capital) to Chester Owner in the original principal amount of $14,000,000.00 secured by the Chester Property.

Chester Owner” means Lexington Chester Industrial, LLC, a South Carolina limited liability company.

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Chester Property” means the Property owned by the Chester Owner and located at 590 Ecology Lane, Chester, South Carolina.

“Closing” is defined in Section 7.2 of this Agreement.

Closing Date” is defined in Section 7.2 of this Agreement.

Code” means the Internal Revenue Code of 1986, as amended.

Commitments” is defined in Section 5.1 of this Agreement.

Common Control” means that two (2) or more Persons are Controlled by the same other Person.

Confidentiality Agreement” means that certain Confidentiality Agreement, dated June 7, 2021, executed by DKCM LP.

Control” (and any reasonable variation thereof) means, when used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. The possession, directly or indirectly, by another Person of a right to approve or consent to (or otherwise restrict) certain business or affairs of the specified Person through major decision rights or similar protective approval rights shall not, in and of itself, constitute or indicate Control, nor shall a Person be deemed not to possess Control solely because another Person possesses, directly or indirectly, such major decision rights or similar protective approval rights with respect to the specified Person.

Demand” is defined in Section 10.14(i) of this Agreement.

Demanding Party” is defined in Section 10.14(i) of this Agreement.

Deposit” is defined in Section 2.1(a) of this Agreement.

Dispute Notice” is defined in Section 10.14(i) of this Agreement.

DKCM LP” means Davidson Kempner Capital Management LP.

Endorsements” means the endorsements obtained by Purchaser as provided in Section 5.1 of this Agreement.

Environmental Laws” is defined in Section 3.1(k) of this Agreement.

ERISA” is defined in Section 3.1(aa) of this Agreement

Escrowed Title Funds” is defined in Section 5.3(c) of this Agreement.

Exception Matter” is defined in Section 3.3(a) of this Agreement.

Existing Insurance Coverage” is defined in Section 3.1(i) of this Agreement.

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Existing Lender” means the holders of the note(s) in respect of the Existing Loan.

Existing Loan” means the loan made by Brighthouse Life Insurance Company to Lex Warren L.P. on May 2, 2018, secured by a mortgage encumbering the Property located in Warren, Michigan.

Existing Loan Documents” means the material documents and instruments evidencing and securing the Existing Loan (excluding any certificates or similar instruments delivered to the lender in connection with the origination of the Existing Loan that do not contain any terms of the Existing Loan, provided that the breach or violation of any such certificates or instruments could not result in an event of default under the Existing Loan), and all amendments, modifications and supplements thereto.

“First Closing” is defined in Section 7.6 of this Agreement.

First Closing Date” is defined in Section 7.6 of this Agreement.

First Closing Properties” means the Interests in respect of those Properties designated as “First Closing Properties” on Schedule 1 attached hereto.

Financing Term Sheet” means that certain letter of interest, dated October 28, 2021, between Bank of America, N.A. and LXP.

Floor” is defined in Section 3.2 of this Agreement.

Fundamental Transaction” means any of the following:

(1) LXP consolidates with or merges with or into any person or conveys, transfers, sells or otherwise disposes of or leases (other than existing leases or leases with respect to tenants occupying any properties or amendments of the foregoing) all or substantially all of its assets to any person, or any corporation consolidates with or merges into or with LXP, in any such of the foregoing events pursuant to a transaction in which LXP’s outstanding voting shares are changed into or exchanged for cash, securities or other property, other than (a) any such transaction where LXP’s outstanding voting shares are not changed or exchanged at all (except to the extent necessary to reflect a change in LXP’s jurisdiction of formation), or (b) where (i) LXP’s outstanding voting shares are changed into or exchanged for cash, securities and other property (other than equity interests of the surviving corporation) and (ii) LXP’s shareholders immediately before such transaction own, directly or indirectly, immediately following such transaction, more than fifty percent (50%) of the total outstanding voting stock of the surviving corporation;

(2) LXP is liquidated or dissolved or adopts a plan of liquidation or dissolution; or

(3) any other change in the control of LXP that results in Seller not proceeding with the transactions contemplated by this Agreement.

General Partner” means each of the Persons listed on Schedule 1 hereto under the heading “General Partner.”

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Governmental Authority” means any federal, state, county or municipal government, or political subdivision thereof, any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court or administrative tribunal.

Ground Lease” means, any ground lease pursuant to which the Owner is a leasehold owner of such Property and ground leases such Property from a Third-Party Ground Lessor, and, in each case, all amendments thereto.

Ground Lessee” means an Owner who is a tenant under a Ground Lease.

Hazardous Materials” is defined in Section 3.1(k) of this Agreement.

Holdco GP LLC” is defined in the preamble to this Agreement.

Holdco LP” is defined in the preamble to this Agreement.

Holdco Subsidiary” is defined in the preamble to this Agreement.

Houston Tax Appeal” is defined in Section 3.1(s) of this Agreement.

Indemnified Party” is defined in Section 10.16(b) of this Agreement.

Independent Contract Consideration” is defined in Section 2.1(d) of this Agreement.

Individual Interest Price” is defined in Section 2.1.

Intangible Property” means, as to a Property, all intangible property owned by the Owner and used in connection with the Real Property or the Personal Property including, without limitation, all of the Owner’s right, title and interest in and to all: licenses; approvals; applications and permits issued or approved by any Governmental Authority and relating to the use, operation, ownership, occupancy and/or maintenance of the Real Property or the Personal Property; utility arrangements; access agreements; indemnities; claims against third parties; warranties; surety bonds; letters of credit; plans; drawings; specifications; surveys; maps; engineering reports and other technical descriptions; books and records; insurance proceeds and condemnation awards; and all other intangible rights used in connection with or relating to the Real Property or the Personal Property, including rights, if any to current and past names of the Real Property.

Interest” means a direct or indirect equity interest in an Owner, as described on Schedule 1 hereto.

Investor Partner” is defined in the preamble to this Agreement.

Lease” means, any lease or sublease of a particular Property by a Tenant in which an Owner is the landlord or sublandlord, and all amendments, modifications and/or

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supplements thereto. For the avoidance of doubt, the term “Lease” does not include any Ground Lease.

Loan” means the non-recourse mortgage loan (and, if applicable, mezzanine loan) that may be obtained by the Partnership (on behalf of certain subsidiaries of the Partnership) to finance a portion of the Sales Price, as more particularly described in the Financing Term Sheet.

Loan Documents” means the documents that may be executed by Owners and certain Affiliates of Seller in connection with the Loan, including, without limitation, any subordination, non-disturbance and attornment agreements required by the lender under the Loan to be delivered by any Owners and Tenants.

LXP” is defined in the preamble to this Agreement.

Material Title Exception” is defined in Section 5.3(a) of this Agreement.

Metalsa” means Metalsa Structural Products, Inc., a Delaware corporation.

Metalsa Defaults” means (a)(i) Metalsa’s expansion of the building located at 750 North Black Branch Road, Elizabethtown, Kentucky (“750”) onto Metalsa’s property adjacent to such building, (ii) Metalsa’s amendment to plats affecting 750 resulting in the legal descriptions in the Lease affecting 750, the Ground Lease affecting 750 and the Memorandum of Ground Lease and Memorandum of Lease affecting 750 being different than such plats and (iii) Metalsa’s potential inability to comply with the Owner of 750’s option to purchase the fee interest in respect of 750 and (b)(i) Metalsa’s amendment to the plat affecting 730 North Black Branch Road, Elizabethtown, Kentucky (“730”) in order to swap certain land previously subject to the Lease affecting 730 with the adjoining property owner, resulting in the legal descriptions in the Lease affecting 730, the Ground Lease affecting 730 and the Memorandum of Ground Lease and Memorandum of Lease affecting 730 being different than such plats and encumbering such swapped land with a mortgage in favor of such adjoining owner’s lender and (ii) Metalsa’s potential inability to comply with the Owner of 730’s option to purchase the fee interest in respect of 730.

Metalsa Properties” means 750 and 730.

Mortgage Broker” is defined in Section 10.16(a) of this Agreement.

OFAC” means the United States Treasury’s Office of Foreign Assets Control, Department of the Treasury.

Other Loan” is defined in the last paragraph of Article 6 of this Agreement.

Outside First Closing Date” is defined in Section 7.6 of this Agreement.

Outside Second Closing Date” is defined in Section 7.6 of this Agreement.

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Owner” means each of the Persons listed on Schedule 1 hereto under the heading “Owner.”

Owner Financial Statements” means the balance sheets and statements of income and expenses of the Owners delivered by Seller to Purchaser as of September 30, 2021.

Owner Organizational Documents” means the certificates of formation, certificates of limited partnership, certificates of conversion, certificates of merger and limited partnership and limited liability company agreements governing each Holdco Subsidiary, each Owner and each General Partner, as applicable, which have previously been delivered to Purchaser, and good standing certificates with respect to each Owner (from each jurisdiction in which an Owner was formed and each jurisdiction in which the Property owned by such Owner is located), each General Partner (from each jurisdiction in which a General Partner was formed) and each Holdco Subsidiary (from each jurisdiction in which a Holdco Subsidiary was formed) to be delivered on or after the Effective Date.

Partnership” is defined in the Recitals to this Agreement.

Partnership Agreement” is defined in the Recitals to this Agreement.

Party” or “Parties” means, individually or collectively, as the case may be, Seller and Purchaser, and their respective permitted successors and assigns.

Permitted Exceptions” mean such exceptions to title to a Property (i) that are contained in the most recent pro forma Title Policy delivered to Purchaser on or prior to the Effective Date, (ii) that are not Material Title Exceptions, and (iii) that Purchaser has accepted or is deemed to have accepted as provided in Section 5.3 of this Agreement.

Permitted Lease Modification” is defined in Section 4.1 of this Agreement.

Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other legal entity.

Personal Property” means, as to each Property, all tangible property owned by the Owner now or on the Closing Date and used in conjunction with the operation, maintenance, ownership and/or occupancy of the Real Property including without limitation: furniture; furnishings; art work; sculptures; paintings; office equipment and supplies; landscaping; plants; lawn equipment; and whether stored on or off the Real Property, tools and supplies, maintenance equipment, materials and supplies used in the operation of the Real Property, shelving and partitions, and any construction and finish materials and supplies not incorporated into the improvements and held for repairs and replacements thereto, wherever located.

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Property” means, for each property described on Schedule 1 hereto, the applicable Owner’s fee simple or leasehold right, title and interest, if any, as applicable, in Real Property, together with such Owner’s right, title and interest in the Leases, Ground Leases, Personal Property and Intangible Property related to it, and “Properties” means all Property collectively.

Purchaser” means (i) Investor Partner, in respect of any time prior to Closing (including, without limitation, for purposes of Purchaser’s representations and warranties set forth in Section 3.5 and any reference herein to facts, circumstances, events and/or documents being “disclosed to Purchaser”) and (ii) the Partnership, in respect of any time at or after Closing.

Purchaser’s Affiliates” is defined in Section 3.3(a) of this Agreement.

Real Property” means, as to each Property, the real property, together with all rights, privileges, hereditaments and interests appurtenant thereto, including, without limitation: any water and mineral rights, development rights, air rights, easements, and any and all rights of the Owner in and to any streets, alleys, passages and other rights of way; and all buildings and other improvements located on or affixed to such real property and all replacements and additions thereto.

Sale Broker” is defined in Section 10.16(a) of this Agreement.

Sales Price” is defined in Section 2.1 of this Agreement.

Second Closing” is defined in Section 7.6 of this Agreement.

Second Closing Date” is defined in Section 7.6 of this Agreement.

Second Closing Properties” means the Interests in respect of the Properties designated as “Second Closing Properties” on Schedule 1 attached hereto.

Seller” is defined in the preamble to this Agreement.

Seller’s Affiliates” is defined in Section 10.15 of this Agreement.

Seller’s Warranties” is defined in Section 3.2 of this Agreement.

Service Provider Contracts” is defined in Section 3.1(g) of this Agreement.

Surviving Obligations” is defined in Section 5.3(c) of this Agreement.

Tenant” means a direct tenant (or subtenant, with respect to any Property subject to a Ground Lease) of the Owner of any Property pursuant to such tenant’s applicable Lease.

Third-Party Ground Lessor” means the Person who is the landlord under a Ground Lease in which an Owner is the Ground Lessee.

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Title Company” means First American Title Insurance Company, 1125 17th Street, Suite 750, Denver, Colorado 80202, Attention: Jordan Dunn.

Title Exception” is defined in Section 5.3(a) of this Agreement.

Title Objection Notice” is defined in Section 5.3(a) of this Agreement.

Title Policy” means an ALTA or TLTA Owner’s Policy of title insurance with respect to each Property, issued by the Title Company as of Closing, in the amount of the Sales Price for the applicable Interest related to such Property, containing the Endorsements, and insuring that the Owner of the Property is the owner of fee simple title or leasehold title, as applicable, to the Property, subject only to the Permitted Exceptions.

Transfer Taxes” means all transfer, documentary, sales, use, stamp, registration, mortgage, intangibles and other such taxes and fees (including any penalties and interest) incurred in connection with the transactions contemplated by this Agreement.

Unfunded TI Allowances” is defined in Section 7.5(b) of this Agreement.

Updated Survey” is defined in Section 5.2 of this Agreement.

Warranty Expiration Date” is defined in Section 3.2 of this Agreement.

ARTICLE 2
Sales Price

2.1            The aggregate purchase price for the Interests is FIVE HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($550,000,000.00) (the “Sales Price”). The allocated Sales Price for each Interest individually is as set forth in Schedule 1 attached hereto (each, an “Individual Interest Price”).

The Sales Price will be paid as follows:

(a)             Deposit. Within two (2) business days after the Effective Date (or on the Effective Date, if the Effective Date is the same date as the Closing Date), Purchaser shall deposit in escrow with the Title Company TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00) (the “Deposit”) to be held and released by Title Company in accordance with this Agreement, including the provisions of Section 10.14 of this Agreement. Purchaser's deposit of the Deposit with the Title Company within the prescribed time period is a condition precedent to the effectiveness of this Agreement; and, if Purchaser fails to deliver the Deposit to the Title Company within the time prescribed, this Agreement will be of no further force and effect; provided however, the Parties acknowledge and agree that if the Effective Date is the same date as the Closing Date, Purchaser’s obligations under this Section 2.1(a) shall be deemed to have been satisfied if Purchaser funds the entire Sales Price in accordance with Section 2.1(c) below rather than separately funding the Deposit. The Deposit shall be held in an interest-bearing account and all interest thereon shall be deemed a part of the Deposit. If the Closing as contemplated hereunder should occur, then the Deposit will be paid by the Title Company to Seller at the Closing, and the Deposit will be credited against the Sales Price payable by Purchaser to Seller at the Closing. The

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Deposit will be non-refundable to Purchaser except that the Deposit will be refundable to Purchaser if this Agreement is canceled and terminated by Purchaser under Section 3.3(b) (“No Liability for Exception Matters”), Section 5.3(b) and (c) (“Title Objections”), Section 6.1 (“Obligation of Purchaser”), Section 9.1 (“Casualty”), Section 9.2 (“Condemnation”) and Section 10.1(b)(i) (“Remedies”).

(b)             Existing Loan. Purchaser shall receive a credit against the Sales Price at the Closing for the outstanding principal balance of the Existing Loan. Purchaser shall not receive a credit against the Sales Price for the amount of any escrows or reserves paid by Seller and held by the Existing Lender as of the Closing Date and Purchaser shall pay to Seller the amount of such escrows or reserves in addition to the Sales Price (and the amount held by the Existing Lender shall continue to be held as the escrows or reserves under the Existing Loan, but Seller shall have no further right to such amount).

(c)             Balance. The balance of the Sales Price, after applying, as a partial payment of the Sales Price, the Deposit, and subject to adjustment for all credits, prorations and closing costs provided for in this Agreement, will be paid to the Title Company for payment to Seller at the Closing hereunder, in each case, by wire transfer of immediately available funds.

(d)             Independent Contract Consideration. The sum of $100.00 (the “Independent Contract Consideration”) is a non-refundable portion of the Deposit as consideration for Purchaser’s exclusive right to inspect and purchase the Interests pursuant to this Agreement and for Seller’s execution, delivery and performance of this Agreement. Any reference in this Agreement to Purchaser receiving back the Deposit means the Title Company shall return the Deposit (less the non-refundable Independent Contract Consideration) to Purchaser and deliver the Independent Contract Consideration to Seller.

2.2            The Parties hereto acknowledge and agree that the value of the Personal Property is de minimis and that no part of the Sales Price is allocable thereto. 

ARTICLE 3
REPRESENTATIONS AND WARRANTIES

3.1            Representations and Warranties of Seller. Seller hereby represents and warrants as follows to the Purchaser:

(a)             Due Organization. Each Seller, each Holdco Subsidiary, each General Partner and each Owner has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization and is qualified to do business and in good standing in all jurisdictions where such qualification is necessary to carry on its business as now conducted. No Holdco Subsidiary, General Partner or Owner has been registered under, been known by, or conducted business under any name other than the current name of such Holdco Subsidiary, General Partner or Owner listed in this Agreement, except as included in any Owner Organizational Documents delivered to Purchaser prior to the Effective Date.

(b)             Due Authorization. Seller has the power and authority to enter into this Agreement and all documents executed by Seller which are to be delivered to Purchaser at Closing and to perform its obligations hereunder and thereunder.

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(c)             Due Execution and Delivery. This Agreement has been, and all documents executed by Seller which are to be delivered to Purchaser at Closing will be, duly authorized, executed and delivered by Seller, and this Agreement does not and such other documents will not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller, the Interests or the Properties are subject.

(d)             Conflicts; Consents. The execution and delivery of this Agreement, and the performance by Seller under this Agreement, do not and will not conflict with or result in a breach of (with or without the passage of time or notice, or both) the terms of any of Seller’s constituent documents, or any judgment, order or decree of any Governmental Authority binding on Seller, and, to Seller’s knowledge, do not breach or violate any applicable law, rule or regulation of any Governmental Authority. The execution, delivery and performance by Seller under this Agreement will not result in a breach or violation of (with or without the passage of time or notice, or both) the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller, any Holdco Subsidiary, any General Partner or Owner is subject, assuming that, prior to or simultaneously with the Closing, the Existing Lender provides its consent as required under Section 6.1(d) of this Agreement. All consents of any third parties (including, without limitation, creditors and Governmental Authorities) necessary to such Seller’s execution and delivery of this Agreement and its consummation of the transaction contemplated by this Agreement have been duly obtained prior to the Effective Date, other than the consent of the Existing Lender.

(e)             Interests. Seller holds title to each Interest free and clear of any liens, claims or other encumbrances. Seller holds, either directly or indirectly, one hundred percent (100%) of the Interests. Other than intercompany loans which shall be satisfied in full by the applicable Seller as of the Closing, Seller has not, directly or indirectly, sold, conveyed, transferred, given, pledged, mortgaged or otherwise disposed of, encumbered or granted in any manner any Interest. Other than intercompany loans which shall be satisfied in full by the applicable Seller as of the Closing, there are no outstanding warrants, options, rights, agreements, calls or other commitments to which Seller, any Holdco Subsidiary or any General Partner (directly or indirectly) is a party relating to or providing for the sale, conveyance, transfer, gift, pledge, mortgage or other disposition, encumbrance or granting of, or permitting any Person to acquire any Interest. Seller has the absolute right, power and capacity, to sell, assign, convey, transfer and deliver the Interests as contemplated by this Agreement, free and clear of any liens, claims or other encumbrances. No Owner owns or, to Seller’s knowledge, has at any time previously owned, any material assets or property other than the Property that it currently owns or leases (except for (i) any assets or property related to the Property and (ii) property that may be the subject of a swap of property and/or acquisition of any additional property in connection with Metalsa curing the Metalsa Defaults and which swapped or acquired property has been or shall be disclosed to Purchaser) and has not engaged in any business other than the ownership, development, operation, use, management, maintenance, leasing and financing of such Property. No General Partner owns, or has at any time previously owned, any assets or property other than the general partnership interest in the applicable Owner that it currently owns, and no General Partner has engaged in any business other than the ownership of such general partnership interest. No Holdco Subsidiary owns, or has at any time previously owned, any assets or property other than the general partnership or limited partnership interest in the applicable Owner that it currently owns, and no Holdco Subsidiary has engaged in any business other than the ownership of such general

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partnership or limited partnership interest. Each Holdco Subsidiary, Owner and General Partner is, and has been at all times during Seller’s ownership of such Holdco Subsidiary, Owner and General Partner, treated as a disregarded entity from its owner for U.S. federal income tax purposes.

(f)              Litigation. Except as disclosed in writing to Purchaser, there is no action, suit or proceeding, or any order, decree or judgment, at law or in equity pending or, to Seller’s knowledge, threatened against any Interests, Seller, Holdco Subsidiary, Owner or General Partner that, if adversely determined, would have a material adverse effect on the financial condition or results of operations of any Holdco Subsidiary, Owner or General Partner, or that challenges or impairs Seller’s ability to execute, deliver or perform under this Agreement or to assign the Interests, or to consummate the transaction as contemplated herein. Except as disclosed in writing to Purchaser, to Seller’s knowledge, there is no action, suit or proceeding, or any order, decree or judgment, at law or in equity pending or threatened against the Properties that, if adversely determined, would have a material adverse effect on the financial condition or results of operations of the Properties, or that challenges or impairs Seller’s ability to execute, deliver or perform under this Agreement or to assign the Interests, or to consummate the transaction as contemplated herein.

(g)             Leases. Seller has made available to the Purchaser true, correct and complete copies of all of the Leases affecting the Properties including all guarantees of such Leases. Other than the Leases and the Ground Leases, any matters of record as reflected in the Title Commitments and as disclosed in writing to Purchaser, none of Seller, any Holdco Subsidiary, any General Partner or any Owner has entered into any contract or agreement with respect to the occupancy of the Properties or any portion or portions thereof which will be binding on the Owners after the Closing, other than (i) consent and recognition agreements with respect to (x) subleases and (y) Tenant equipment financings and (ii) customary agreements for utilities, cable, antennae, fiber optic and other similar service providers (collectively, the “Service Provider Contracts”). To the extent such Service Provider Contracts are in Seller’s actual possession, Seller has made available to Purchaser true, correct and complete copies of such Service Provider Contracts. Except as disclosed in writing to the Purchaser, as of the Effective Date (i) no written notice has been given or received by any Owner under such Leases with respect to any material default under the Leases that remains uncured and (ii) to Seller’s knowledge, no material default exists on the part of any Tenant under such Leases, except for the Metalsa Lease Defaults. Except for the Unfunded TI Allowances and as otherwise disclosed in writing to the Purchaser, there is no free rent outstanding under any Lease, all of the Owner’s obligations to construct tenant improvements have been performed in full, all of the Owner’s obligations to reimburse Tenants for tenant improvements under the Leases and all concessions from the Owner under the Leases have been paid in full, and no leasing commissions are due under the Leases or any separate leasing commission or brokerage agreements. No Tenant has paid any base rent, additional rent or any other amount due under the Lease more than one (1) month in advance of the applicable due date, other than any security deposits (but any advance payment thereof after the Effective Date shall not constitute an Exception Matter if such payment is prorated as provided in Section 7.5 of this Agreement). Except as disclosed in writing to the Purchaser, there are no security deposits paid by Tenants, but any application of security deposits in accordance with the applicable Leases after the Effective Date shall not constitute an Exception Matter.

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(h)             Ground Leases. Seller has made available to Purchaser true, correct and complete copies of all of the Ground Leases affecting the Properties. Except as disclosed in writing to Purchaser, as of the Effective Date no written notice has been given or received by Owner with respect to any material default under a Ground Lease that remains uncured and, to Seller’s knowledge, as of the Effective Date no monetary or material non-monetary default exists on the part of any Third-Party Ground Lessor or Owner under such Ground Leases, except for the Metalsa Defaults.

(i)              Insurance Policies. Seller has furnished to Purchaser an accurate schedule of all current insurance policies maintained by Seller that now affect the Properties to the extent of the terms and conditions of each such policy (the “Existing Insurance Coverage”). The Existing Insurance Coverage is in full force and effect, and all premiums due thereunder have been paid (or will be paid, if payment first becomes due after the Effective Date and before the Closing Date) for a period extending through the Closing Date, and, to Seller’s knowledge, as of the Effective Date neither Seller nor any Owner has received any written notice from the respective insurance carrier(s) which provides the Existing Insurance Coverage stating that any of the Existing Insurance Coverage will not be renewed, or that any work is required to be performed to the Property.

(j)              Legal Compliance. Except as disclosed in writing to Purchaser, as of the Effective Date no Seller or any Owner has received any written notice from any Governmental Authority of any violation or alleged violation of any laws, rules, regulations or codes, including, without limitation, applicable zoning, subdivision, fire safety, building and other governmental laws and ordinances, with respect to any Interests or Property that (i) are an Owner’s obligation to cure pursuant to any of the Leases, (ii) if not cured would have a material adverse effect on such Property or Owner’s ability to conduct its business and (iii) remains uncured.

(k)             Environmental. Except as disclosed in (i) writing by Seller to Purchaser or Purchaser’s Affiliates, (ii) any environmental site assessments, correspondence or other information delivered to Purchaser or Purchaser’s Affiliates via email or any online “data room” created by Seller or Broker to which Purchaser or Purchaser’s Affiliates had access or (iii) any environmental site assessments, correspondence or other information obtained by Purchaser or Purchaser’s Affiliates prior to the Effective Date, (x) no Owner has received written notice from any Governmental Authority or any other Person alleging that such Owner or any portion of any Property is not in compliance with any Environmental Laws (as hereinafter defined) and (y) no Owner or, to Seller’s knowledge, any Tenant, Third-Party Ground Lessor or any other Person, including, without limitation, any management company, contractor or agent of any Owner, has used, generated, processed, stored, released, transported or disposed of Hazardous Materials (as hereinafter defined) on, at or under any Property, except in material compliance with applicable Environmental Laws. “Hazardous Materials” means inflammable explosives, radioactive materials, asbestos, asbestos–containing materials, polychlorinated biphenyls, lead, lead-based paint, radon, under and/or above ground tanks, hazardous materials, hazardous wastes, hazardous substances, mold, oil, or related materials that are listed in or regulated by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Resources Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe Drinking Water Act (14 U.S.C. Section 1401, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section

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1801, et seq.), the Toxic Substance Control Act (15 U.S.C. Section 2601, et seq.), or any other applicable federal, state or local laws imposing requirements or standards of conduct related to protection of the environment, protection of natural resources or protection of human health from Hazardous Materials (collectively, “Environmental Laws”). The term “Hazardous Materials” includes petroleum, including crude oil or any fraction thereof, natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas or such synthetic gas), and any substance, material waste, pollutant or contaminant listed or defined as hazardous or toxic under any Environmental Law.

(l)              Disclosure. To Seller’s knowledge, other than the documents delivered to Purchaser and matters of record appearing in the Commitments, no Holdco Subsidiary, General Partner or Owner has any material agreements of any kind relating to the Interests or the Properties to which any Holdco Subsidiary, General Partner or Owner would be bound after Closing and Seller has no material agreements of any kind relating to the Interests to which Purchaser would be bound after Closing, other than agreements the costs of which shall be disclosed in the “2022 Annual Business Plan” defined in the Partnership Agreement.

(m)           Existing Loan. (i) Seller has delivered true, correct and complete copies of the Existing Loan Documents to Purchaser, (ii) the payments due under or with respect to such Existing Loan are current and interest has been paid through the date set forth on the loan statements with respect to the Existing Loan disclosed in writing to Purchaser, (iii) no notices of default have been received from (or on behalf of) the Existing Lender or its servicer with respect to any default that remains outstanding and uncured and (iv) except as disclosed to Purchaser in writing, to Seller’s knowledge, there exists no outstanding and uncured monetary or material non-monetary default under the Existing Loan Documents. The outstanding principal balance of the Existing Loan as of the Effective Date is as set forth on the loan statement with respect to the Existing Loan disclosed in writing to Purchaser. The Existing Loan is fully funded and the applicable Owner is not entitled to receive any additional advances pursuant to the Existing Loan Documents. All origination, funding or other similar fees payable to the Existing Lender under the Existing Loan Documents have been paid in full. No Property, other than that securing the Existing Loan, is subject to any mortgage created or assumed by Seller.

(n)             Anti-Terrorism. None of Seller, any Holdco Subsidiary, any General Partner or any Owner is acting, directly or indirectly for, or on behalf of, any person, group, entity or nation named by any Executive Order of the President of the United States of America (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department, as a terrorist, “Specially Designated National and Blocked Person,” or other banned or blocked person, entity, or nation pursuant to any law that is enforced or administered by the United States Office of Foreign Assets Control, and is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nation.

(o)             Management Agreements. As of the Effective Date there are no property or asset management agreements currently in effect relating to the management of any Property, whether with an affiliated or third-party management company, to which Seller, any Holdco Subsidiary, Owner, General Partner or any of their respective Affiliates are parties.

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(p)             Employees. No Holdco Subsidiary, Owner or General Partner has any employees.

(q)             Condemnation. No Owner has received any written notice of, and, to Seller’s knowledge, there is not, any pending or threatened action by any Governmental Authority having the power of eminent domain, which could reasonably be expected to result in any part of any Property being taken by condemnation or conveyed in lieu thereof.

(r)              Bankruptcy. No Seller, Holdco Subsidiary, General Partner or Owner has made any general assignment for the benefit of creditors, become insolvent or filed a petition for voluntary bankruptcy or filed a petition or answer seeking reorganization or an arrangement or composition, extension or readjustment of its indebtedness or consented, in any creditors’ proceeding, to the appointment of a receiver or trustee of such Seller, Holdco Subsidiary, General Partner or Owner, for the Interests or any Property or any part thereof or been named in an involuntary bankruptcy proceeding and to Seller’s knowledge, no such actions are contemplated or have been threatened.

(s)             Taxes. Other than taxes required under any Lease to be paid by a Tenant, Seller has paid or caused to be paid any and all federal, state and local taxes attributable to each Owner, General Partner, Holdco Subsidiary, the Interests and the Properties that are due and payable prior to the Effective Date (taking into account applicable extensions). Seller has timely filed or caused to be filed (taking into account applicable extensions) all material tax returns required to be filed with respect to each Owner, General Partner, Holdco Subsidiary, the Interests and the Properties (or any portion thereof), and all such tax returns are true, correct, and complete in all material respects. Other than with respect to real property tax assessments described in Section 3.1(y), none of Seller, any Holdco Subsidiary, any General Partner, or Owner (x) has any knowledge of any proceeding by any Governmental Authority for the enforcement of collection of taxes for which any Holdco Subsidiary, General Partner or Owner is responsible, (y) has granted any waiver of any statute of limitation with respect to, or any extension of a period for, the assessment of any taxes for which any Holdco Subsidiary, General Partner or Owner is responsible, and (z) has received any written notice of a special tax or assessment to be levied with respect to a Holdco Subsidiary, General Partner or Owner (in its capacity as a partnership or limited liability company, not as an owner of real estate) or the Interests, except as disclosed in writing to Purchaser. To Seller’s knowledge, Seller has not received any written notice of any claim by an authority in a jurisdiction where the Holdco Subsidiaries, General Partners or Owners do not file tax returns that any Holdco Subsidiary, General Partner or Owner is or may be subject to taxation by that jurisdiction. No Holdco Subsidiary, General Partner or Owner has made an election to be taxed as a corporation taxable under Subchapter C of the Code. Seller has not received a written notice of (1) any pending tax audit with respect to any Holdco Subsidiary, General Partner or Owner or (2) any dispute or claim by any authority in a jurisdiction where the Holdco Subsidiaries, General Partners or Owners files tax returns concerning any liability for taxes of any Holdco Subsidiary, General Partner or Owner. As of the Effective Date Seller has not initiated any real estate tax appeals concerning any Property that are pending, other than with respect to the Property located at 13863 Industrial Road, Houston, Texas (the “Houston Tax Appeal”).

(t)              Organizational Documents. The copies of the Owner Organizational Documents delivered to the Purchaser prior to the Effective Date are true, correct

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and complete copies and no amendments thereto, oral or written, have been filed, executed or made except as included or disclosed in such Owner Organizational Documents delivered to Purchaser.

(u)             Intentionally Omitted.

(v)             Liabilities. As of the Closing Date, (a) there will be no liabilities in accordance with generally accepted accounting principles of any Holdco Subsidiary, General Partner or Owner that have not been disclosed to Purchaser (i) of which Seller has actual knowledge and (ii) for which Purchaser, any Holdco Subsidiary, any General Partner or any Owner will be responsible following Closing, and as of the Closing Date, none of the Purchaser, any Holdco Subsidiary, any General Partner or any Owner will be a debtor under any financing, other than the Existing Loan, the Loan, trade payables incurred in the ordinary course of business and as otherwise shown on the Owner Financial Statements and (b) there will be no liabilities in accordance with generally accepted accounting principles of Chester Owner with respect to the Chester Loan.

(w)           Owner Financial Statements. The Owner Financial Statements referred to herein are current, correct and complete in all material respects, fairly present the financial condition and assets of each Owner as of September 30, 2021 and no other liabilities are required by U.S. generally accepted accounting principles to be disclosed thereunder. Since the date of the Owner Financial Statements, except as otherwise disclosed in writing to Purchaser, there has been no material change in the financial position of the Holdco Subsidiaries, General Partners, the Owners, the Interests or the Properties.

(x)             Not a Foreign Person. None of Seller, any Holdco Subsidiary, any General Partner or any Owner is a “foreign person” which would subject Purchaser to the withholding tax provisions of Section 1445 or Section 1446(f) of the Code.

(y)             Proposed Assessments. Other than as disclosed in writing to Purchaser, no Owner has received any written notice of any assessments proposed to be assessed against any Property by any Governmental Authority for public or private improvements for which such Owner would be, in whole or in part (as opposed to any Tenant or Third-Party Ground Lessor, being solely), liable after the Closing Date.

(z)             Licenses. Seller has made available to Purchaser true, correct and complete copies of all material licenses and permits issued to the Owners and in Seller’s actual possession.

(aa)          ERISA. Neither the Interests nor any Property is a “plan asset” as defined in the Employment Retirement Income Security Act of 1974, as amended (“ERISA”), and the transaction contemplated by this Agreement is not a “prohibited transaction” under ERISA.

The Parties agree that any reference in this Agreement to (y) receipt of written notice by Seller, or words of similar import, means the actual receipt by Seller of the notice (but not including receipt by email unless email is the only form of acceptable notice under the notice provisions of the applicable document in question, or any amendment, supplement or modification thereto, or otherwise under applicable law), but shall not mean receipt by any Person whose actions may be imputed to Seller and (z) true, correct and complete copies shall mean only that the applicable

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documents provided to Purchaser are the same documents as in Seller’s files. Further, Investor Partner acknowledges and agrees that the transaction contemplated by this Agreement is not subject to any right of first offer/refusal in favor of the Third-Party Ground Lessors or Tenants pursuant to the Ground Leases or Leases.

3.2            Enforcement. The representations and warranties set forth in Section 3.1 (“Seller’s Warranties”) will be void, ab initio, and will lapse and terminate if this Agreement terminates or is terminated, except if this Agreement is subsequently reinstated by mutual agreement of the Parties or if Seller exercises any applicable right hereunder to nullify a termination by Purchaser. The Seller’s Warranties shall be deemed to be remade at Closing, subject in each case to any Exception Matter as described in Section 3.3 below and the provisions of Section 3.3(b) of this Agreement. If the Closing occurs, Seller’s Warranties will survive the Closing hereunder, for the benefit of the Purchaser for a period ending at 5:00 p.m. New York time on the date that is (a) nine (9) months after the Closing Date, with respect to all representations and warranties other than those set forth in Sections 3.1(k) and 3.1(v)(b), (b) twelve (12) months after the Closing Date with respect to the representations and warranties in Sections 3.1(k) and (c) three (3) years after the date of defeasance of the Chester Loan with respect to the representations and warranties in Section 3.1(v)(b) (collectively, the “Warranty Expiration Date”). No claim for a breach of any Seller’s Warranties, or the failure or default of a covenant or agreement of Seller that survives Closing, shall be actionable or payable unless the valid claims for all such breaches collectively aggregate more than FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) (the “Floor”) (but in the event Purchaser’s claims exceed such amount, Seller shall be responsible for the entire amount of such claims and not just the excess amounts above such threshold, subject to Section 10.17); provided, that, such minimum amount shall not apply with respect to any claims made by Purchaser pursuant to Sections 7.4, 7.5 or 10.16 of this Agreement. To the extent a claim for a breach of any Seller’s Warranties relates to matters covered by the Title Policies, Purchaser shall first exhaust all of its remedies against the Title Company under such Title Policies before it may bring an action against Seller for such breach of Seller’s Warranties; provided, however, if Purchaser has given notice to Seller of any such claim prior to the applicable Warranty Expiration Date, Purchaser’s time to commence an action against Seller shall be tolled until a final, non-appealable judgement shall have been issued in Purchaser’s action against the Title Company or such action shall have been settled by the parties thereto. Any amounts recovered by Purchaser from any Title Policies shall offset any damages to which Purchaser may be entitled as a result of a breach of any applicable Seller’s Warranties, subject to the provisions of this Section 3.2 and Section 10.17 of this Agreement. Seller will not be liable or responsible in any circumstances for any special, incidental, exemplary, indirect or consequential damages or lost profits, and the Purchaser hereby releases and waives all claims for special, incidental, exemplary, indirect and consequential damages and lost profits, except to the extent Purchaser has paid or is required to pay to a third party any such punitive or consequential damages in connection with the breach of Seller’s representations and warranties contained in Section 3.1(k). If, on or prior to the applicable Warranty Expiration Date, the Purchaser has not notified Seller, in writing, of any claim the Purchaser has against Seller for breach of any of Seller’s Warranties and, within thirty (30) days after the applicable Warranty Expiration Date, commenced an action against Seller, Purchaser will be forever barred and precluded from making a claim based upon any breach of the Seller’s Warranties, and Seller will be deemed released from all liabilities and obligations with respect thereto.

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3.3            No Liability for Exception Matters.

(a)             As used herein, the term “Exception Matter” will refer to (i) a fact, circumstance, potential claim, or other matter disclosed in writing to Purchaser, Affiliates of Purchaser and each of their partners (direct or indirect, other than any Seller, Holdco Subsidiary, General Partner or Owner), officers, directors, shareholders, members, managers, agents, employees or contractors (collectively “Purchaser’s Affiliates”) by Seller, Seller’s agents, employees or contractors, Broker, Tenants or a Third-Party Ground Lessor in writing before the Closing Date, including, without limitation, all documents delivered to Purchaser or Purchaser’s Affiliates prior to the Closing Date via email or any online “data room” created by Seller or Broker to which Purchaser or Purchaser’s Affiliates had access or (ii) a fact, circumstance, potential claim, or other matter known by Purchaser or Purchaser’s Affiliates (provided that for Purchaser’s contractors only, the fact, circumstance, potential claim, or other matter known would be with respect to matters for which such contractor has been retained by Purchaser or Purchaser’s Affiliates (or for whom Purchaser has been granted reliance status by the applicable contractor) to perform diligence in its professional capacity in respect of the applicable Property) before the Closing Date, in each case that would make a representation or warranty of Seller contained in this Agreement (including any Seller Warranty) untrue or incorrect and would collectively with all other valid claims for breach of Seller’s Warranties exceed the Floor. Purchaser and Seller will promptly notify each other in writing of any Exception Matter of which it obtains knowledge before the Closing.

(b)             If an Exception Matter arises and is disclosed in writing to Seller or Purchaser, Seller shall have the option to adjourn the Closing for a period not to exceed ninety (90) days to endeavor to cure the applicable Exception Matter such that Seller’s Warranties will remain true and correct, which option may be exercised by Seller by providing written notice to Purchaser at any time prior to five (5) Business Days before the Closing Date (or, if the Exception Matter is discovered by Seller within five (5) Business Days before the Closing Date, such written notice must be provided before the Closing Date). In the event Seller fails to timely exercise such option to adjourn Closing or exercises such option but is unable to cause such Seller’s Warranties to be true and correct within such period described above, or exercises such option but subsequently notifies Purchaser within such ninety (90) day period that Seller will not undertake to cause the Seller’s Warranties to be true and correct, then, in each case, Purchaser may terminate this Agreement by delivering notice of such termination to Seller within five (5) days after the earlier to occur of (i) the date by which Seller was required to, but failed, to exercises such option to adjourn the Closing, (ii) the expiration of the date by which Seller had the right to cure such Exception Matter or (iii) the date on which Seller notified Purchaser in writing that it would not undertake to cure such Exception Matter. If Purchaser terminates this Agreement, Seller may elect by written notice to Purchaser, delivered to Purchaser within ten (10) days after receipt of Purchaser’s termination notice, to nullify the termination notice by agreeing to credit the Purchaser at Closing the amount by which the Exception Matter in question diminishes the value of the applicable Property or Properties (such amount to be mutually reasonably agreed upon by the Parties), and the Purchaser shall close this transaction notwithstanding such Exception Matter. Purchaser’s failure to deliver a termination notice within the time set forth above shall be deemed a waiver of Purchaser’s right to terminate this Agreement by reason of an Exception Matter, Purchaser shall proceed to Closing and consummate the acquisition of the Interests subject to and by accepting such Exception Matter without reduction in the Sales Price and Seller will have no

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liability with respect to such Exception Matter, notwithstanding any contrary provision, covenant, representation or warranty contained in this Agreement. If Purchaser terminates this Agreement and Seller does not nullify such termination, the Deposit shall be returned to Purchaser by the Title Company, and, thereafter, the Purchaser and Seller shall have no further rights, liabilities or obligations hereunder other than as set forth in Section 10.1(b), save and except that the Purchaser will continue to be liable for the Surviving Obligations.

(c)             The following provisions shall apply notwithstanding the provisions of Section 3.3(b) above:

(i)              If the Exception Matter results from a notice relating to condemnation, in which case the provisions of Section 9.2 shall govern, Purchaser’s right to terminate this Agreement pursuant to Section 3.3(b) shall not apply and Purchaser shall proceed to Closing hereunder notwithstanding such changed fact or circumstance, subject to any termination rights under Section 9.2;

(ii)            If an Exception Matter arises prior to the Effective Date and Purchaser executes and delivers this Agreement, Purchaser shall be deemed to have waived its right to terminate this Agreement as a result of such Exception Matter, Seller’s Warranties shall be deemed modified for all purposes by such Exception Matter, Purchaser shall (subject to the other terms and provisions of this Agreement) proceed to Closing and consummate the acquisition of the Properties subject to and by accepting such Exception Matter without reduction in the Sales Price and Seller will have no liability with respect to such Exception Matter, notwithstanding any contrary provision, covenant, representation or warranty contained in this Agreement; and

(iii)          if an Exception Matter arises and Purchaser fails to notify Seller thereof prior to the Closing Date, Seller’s Warranties shall be deemed modified by such Exception Matter and Seller will have no liability with respect to such Exception Matter, notwithstanding any contrary provision, covenant, representation or warranty contained in this Agreement.

3.4            Seller’s Knowledge. For purposes of this Agreement, whenever the phrase “to Seller’s knowledge” or the “knowledge” of Seller or words of similar import are used, they will be deemed to mean and are limited to the current actual knowledge only of Lara Johnson, Natasha Roberts and James Dudley without inquiry, and not any implied, imputed or constructive knowledge of such individual or of Seller; it being understood and agreed that such individual will have no personal liability in any manner whatsoever hereunder or otherwise related to the transactions contemplated hereby.

3.5            Representations and Warranties of Purchaser. Purchaser hereby represents and warrants as follows to Seller.

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(a)             Due Organization. Purchaser has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization and is qualified to do business and in good standing in all jurisdictions where such qualification is necessary to carry on its business as now conducted.

(b)             Due Authorization. Purchaser has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Purchaser of this Agreement have been duly and validly approved by all necessary limited liability company action, and no other actions or proceedings on the part of Purchaser are necessary to authorize this Agreement or the transactions contemplated hereby. No consent, waiver, approval, or authorization of, or filing, registration, or qualification with, or notice to, any governmental instrumentality or any Person (including without limitation, its partners, managers or members) is required to be made, obtained, or given by Purchaser in connection with the execution, delivery, and performance of this Agreement or, if required, such consent or action has been obtained or taken. Without limiting the generality of the foregoing, the performance of this Agreement by Purchaser does not require the consent of the holder of any lien or loan encumbering Purchaser. Additionally, the execution, delivery and performance of this Agreement by Purchaser does not conflict with any organizational documents of Purchaser. Purchaser has duly and validly executed and delivered this Agreement.

(c)             Enforceability. This Agreement constitutes, and the documents executed pursuant to this Agreement when executed will constitute, legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms, except to the extent such enforceability may be limited by applicable bankruptcy and other laws affecting creditors’ rights, or by general equitable principles.

(d)             Conflicts. The execution and delivery of this Agreement, and the performance by Purchaser under this Agreement, do not and will not conflict with or result in a breach of (with or without the passage of time or notice or both) the terms of any of Purchaser’s constituent documents, any judgment, order or decree of any Governmental Authority binding on Purchaser, and, to Purchaser’s knowledge, do not breach or violate any applicable law, rule or regulation of any Governmental Authority. The execution, delivery and performance by Purchaser under this Agreement will not result in a breach or violation of (with or without the passage of time or notice or both) the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Purchaser is a party or by which Purchaser is bound. All consents of any third parties (including, without limitation, creditors and Governmental Authorities, but excluding Seller or any Affiliate of Seller) necessary to Purchaser’s execution and delivery of this Agreement and its consummation of the transaction contemplated by this Agreement have been duly obtained prior to the Effective Date.

(e)             Sufficient Funds. Purchaser has sufficient funds available to acquire the Interests in accordance with the terms of this Agreement.

(f)              Seller’s Warranties. Purchaser has no knowledge that any of Seller’s Warranties are untrue in any material respect as of the Effective Date.

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(g)             Anti-Terrorism. Purchaser is not acting, directly or indirectly for, or on behalf of, any person, group, entity or nation named by any Executive Order of the President of the United States of America (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department, as a terrorist, “Specially Designated National and Blocked Person,” or other banned or blocked person, entity, or nation pursuant to any law that is enforced or administered by the United States Office of Foreign Assets Control, and is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nation.

(h)             Purchaser’s Independent Evaluation. Subject to Seller’s Warranties, as of the Effective Date, Purchaser has had ample opportunities to have to the extent Purchaser deemed necessary:

(i)              Examined and inspected the Interests and the Properties and is satisfied with the physical condition, quality, quantity and state of repair of the Properties in all respects and the status of the Interests, and by proceeding with this transaction will be deemed to have determined that the same is satisfactory to Purchaser;

(ii)            Reviewed the documents and information delivered to Purchaser, or Purchaser’s Affiliates via email or any online “data room” created by Seller or Broker to which Purchaser and Purchaser’s Affiliates had access, or otherwise obtained by Purchaser, and Purchaser, by proceeding with this transaction will be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Purchaser;

(iii)          Reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Properties, and Purchaser, by proceeding with this transaction will be deemed to have determined that the same are satisfactory to Purchaser; and

(iv)           Investigated, examined and approved the presence or absence of Hazardous Materials in, on or under the Properties.

(i)              The Purchaser’s representations and warranties set forth in this Section 3.5 shall be deemed remade at Closing.

ARTICLE 4
covenants and agreements of seller

Seller covenants to and with Purchaser between the Effective Date and the Closing Date as follows:

4.1            Leasing Arrangements. Seller shall not (i) enter into or permit any Owner to enter into any new Lease or Ground Lease or any amendments, modifications, expansions or renewals of any existing Lease or Ground Lease (or any memorandums thereof), (ii) consent to or permit

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any Owner to consent to any request made by a Tenant or Third-Party Ground Lessor under the applicable Lease or Ground Lease or (iii) waive in writing or permit any Owner to waive in writing any provisions of any such Lease or Ground Lease, in each case, without Purchaser's prior written consent, which shall not be unreasonably withheld, conditioned or delayed; provided, however, no such consent shall be required and Seller shall have the right to enter into or cause the applicable Owner to enter into any amendments, modifications, expansions or renewals of any Lease or Ground Lease or grant any consents thereunder (x) that are expressly required by the terms of any Lease or Ground Lease in effect as of the Effective Date as a matter of right for the applicable Tenant or Third-Party Ground Lessor, (y) with respect to the granting of consent only, if the Lease or Ground Lease expressly provides that the applicable Owner’s consent shall not be unreasonably withheld to a request by the applicable Tenant or Third-Party Ground Lessor or (z) that are entered into in connection with rectifying issues related to the description of the property that is the subject of the Leases and Ground Leases related to the Metalsa Properties (it being agreed that in connection therewith Seller also may cause the applicable Owner to exercise the option to purchase the Metalsa Properties and any amendments that apply to 750 and 730 (and are made in accordance with this Agreement) may apply to any or all other Leases and Ground Leases affecting any other Properties in which Metalsa has a fee or leasehold interest) (each, a “Permitted Lease Modification”). Seller shall deliver to Purchaser (a) a copy of any Permitted Lease Modification (including, without limitation, any documents evidencing the option to purchase the Metalsa Properties) within two (2) Business Days after the execution and delivery thereof and (b) copies of any material written correspondence (including emails) delivered by any Owner to, or received by any Owner from, any Tenant or Third-Party Ground Lessor within two (2) Business Days after the delivery or receipt thereof, including, without limitation, any notice of default, any material correspondence related to the Metalsa Defaults, any formal, written request for consent in the manner required by the applicable Ground Lease or Lease or any response from Seller or any Owner to any such request for consent.

4.2            New Contracts. Seller shall not enter into or permit any Holdco Subsidiary, Owner or General Partner to enter into any contract, or modify, amend, renew or extend any existing contract (including, without limitation, any of the Existing Loan Documents, except as required under Section 7.3(e)), that will be an obligation affecting any Interests, Property or any part thereof subsequent to the Closing without Purchaser’s prior written consent in each instance (which Purchaser agrees shall not be unreasonably withheld, conditioned or delayed), except in the case of any emergency action (and, in the event of such emergency action Seller shall provide a copy of the applicable contract to Purchaser promptly following execution thereof) and contracts entered into in the ordinary course of business that are terminable without cause (and without penalty or premium) on thirty (30) days’ (or less) notice.

4.3            Operation of Property. Seller shall cause the applicable Owners to continue to operate the Property in a manner generally consistent with Seller’s and such Owner’s past practices.

4.4            Insurance. Seller shall, at Seller’s expense, continue to maintain substantially the same liability and casualty insurance that Seller currently maintains (including existing deductible amounts) with respect to the Interests and the Properties.

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4.5            Notices to Purchaser. Seller shall cause the applicable Owner to deliver to Purchaser, within three (3) Business Days of receipt thereof (but, in any event, prior to the Closing Date), (a) any notice of any condemnation, eminent domain or other litigation proceeding concerning such Owner or the Properties sent by or delivered to any Owner and (b) any notice of violation concerning such Owner or the Property delivered to such Owner by any Governmental Authority that would have a material adverse effect on the financial condition or results of operations of such Property if not cured. Seller shall cause the applicable Owner to deliver to Purchaser written notice of any casualty that has occurred at or that otherwise affects any Property of which Owner has knowledge within two (2) Business Days following Owner first acquiring knowledge thereof.

4.6            No New Employees. Seller shall not permit any Holdco Subsidiary, General Partner or Owner to hire any employees.

4.7            Real Property Tax Appeals. Seller shall (a) notify Purchaser in writing promptly following the initiation by any Seller, Holdco Subsidiary, General Partner or Owner of any real property tax appeal or any other tax proceedings concerning the Property (or any portion thereof) and shall keep Purchaser reasonably apprised of the status of any such proceedings (including, without limitation, the Houston Tax Appeal), (b) notify Purchaser in writing promptly following Seller receiving written notice from Tenant or any Third-Party Ground Lessor of any real property tax appeal or any other tax proceedings concerning the Property (or any portion thereof) initiated by a Tenant, or Third-Party Ground Lessor and (c) not, without Purchaser’s prior written consent not to be unreasonably withheld, delayed or conditioned, settle any such appeal or proceedings in respect of the current tax year in a manner that would increase the liability of any Owner or otherwise adversely affect the Holdco Subsidiaries, General Partners, the Owners or any Property (or any portion thereof).

4.8            Payment of Taxes; No New Elections and Filings. Seller shall (i) pay or cause to be paid any and all federal, state and local taxes attributable to each Holdco Subsidiary, Owner, General Partner, the Interests and the Properties that are due and payable without penalty prior to the Effective Date (taking into account applicable extensions), other than taxes required to be paid by a Tenant pursuant to any Lease and (ii) not permit any Holdco Subsidiary, General Partner or Owner to make any new elections for income tax purposes.

4.9            No Marketing of the Interests or the Properties. Seller shall suspend (and shall cause its respective employees, agents, Affiliates and any other third parties acting on its behalf to suspend) all discussions relating to a potential sale, recapitalization, joint venture or other equity and/or debt transaction for any or all of the Interests or the Properties with other parties (other than Purchaser and in connection with the Loan) unless otherwise agreed in writing by Purchaser, and, unless otherwise agreed in writing by Purchaser, Seller shall not (and shall cause its respective employees, agents, Affiliates and any other third parties acting on its behalf to not) market the Interests or the Properties in connection with any of the foregoing potential transactions, or otherwise solicit, negotiate or accept any offer to purchase any individual Interests or Property or any direct or indirect interest (including beneficial ownership interests) therein, other than from Purchaser.

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4.10         Cure of Certain Violations. Seller shall use commercially reasonable efforts, at Seller’s sole cost and expense, to cure any notice of violation received by Seller from any Governmental Authority of any applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning, parking requirements and land use) that are any Owner’s responsibility to cure under an applicable Ground Lease or Lease issued prior to Closing concerning any part of the Properties or any of the Interests. Notwithstanding the forgoing, Seller shall have the right to contest any such notice of violation in accordance with applicable law and shall give Purchaser prompt written notice thereof. Seller shall request the applicable Tenant or Third-Party Ground Lessor to cure any notice of violation received by Seller from any Governmental Authority of any applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning, parking requirements and land use) that are any Tenant’s or Third-Party Ground Lessor’s responsibility to cure under an applicable Ground Lease or Lease issued prior to Closing concerning any part of the Properties.

4.11         Seller’s Warranties. Seller’s Warranties shall be modified to the extent of any actions taken (a) in accordance with the provisions of Sections 4.1, 4.2, 4.3 and 4.7, and (b) if required, with the prior written consent of Purchaser, and such actions shall not constitute Exception Matters hereunder.

ARTICLE 5

TITLE MATTERS

5.1            Commitments. Seller has delivered to Purchaser title commitments (the “Commitments”) for ALTA or TLTA Owner’s Title Policies issued by the Title Company, together with an active link to all documents affecting the Real Property as provided by the Title Company and referred to in the Commitments and Purchaser has approved the title exceptions and Endorsements and the state of title set forth in the Commitments and pro forma Title Policies received by Purchaser as of the Effective Date. Purchaser acknowledges it shall obtain its Title Policies, if any, solely from the Title Company.

5.2            Surveys. Seller has delivered to Purchaser an existing survey with respect to each Real Property in Seller’s possession and an updated or new survey prepared for each Real Property (collectively, the “Updated Survey”). Purchaser has approved the matters shown on the Updated Survey.

5.3            Title Objections.

(a)             If (i) an amendment, update or continuation of a Commitment shows a Material Title Exception that is raised by the Title Company for the first time after the Effective Date, or (ii) a Material Title Exception on a survey appears for the first time after the Effective Date, in each case, to which Purchaser does not consent (each, a “Title Exception”), Purchaser will provide Seller with written notice of the Title Exception(s) raised by such matter (the “Title Objection Notice”) within five (5) days after receipt of same. Purchaser’s failure to make such objections within such period will constitute a waiver by Purchaser of any such Title Exceptions. For purposes hereof, the term “Material Title Exception” shall, with respect to Real Property, refer

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to any title matters that in the mutually agreeable opinion of both parties diminishes the value of the Real Property individually, or when aggregated with any other title matters for all Real Property collectively, by more than Five Hundred Thousand and No/100 Dollars ($500,000.00).

(b)             If Purchaser does timely provide a Title Objection Notice to Seller, Seller may endeavor to cure all such Title Exceptions (though Seller shall have no obligation to cure), and Seller shall have the right to adjourn the Closing for up to ninety (90) days to do so. Seller’s failure to deliver a response to the Title Objection Notice within five (5) days after Purchaser’s delivery of a Title Objection Notice shall be deemed Seller’s election not to endeavor to cure such title objection. Purchaser, within five (5) days after the earliest to occur of (a) Seller notifying Purchaser of its election (or Seller’s deemed election in accordance with the immediately preceding sentence) not to endeavor to cure such title objection, (b) Seller notifying Purchaser that it is unable or unwilling to cure a Title Exception it previously notified Purchaser it would endeavor to cure and (c) ninety (90) days from the Purchaser’s delivery of the Title Objection Notice if such Title Exception remains uncured, shall notify Seller that it will either close notwithstanding the Title Exceptions identified in the Title Objection Notice without any reduction in the Sales Price or that it terminates this Agreement. Purchaser’s failure to deliver such termination notice shall be deemed Purchaser’s election to close notwithstanding such Title Exceptions.

(c)             If Purchaser terminates this Agreement pursuant to Section 5.3(b) above, Seller may elect by written notice to Purchaser, within ten (10) days after receipt of the termination notice, to nullify the termination notice by depositing into escrow with the Title Company pursuant to an escrow agreement to be mutually reasonably agreed by the Parties, the amount by which the Title Exception(s) in question diminishes the value of the applicable Real Property (such amount to be mutually reasonably agreed upon by the Parties) (the “Escrowed Title Funds”), and Purchaser shall close the transaction contemplated by this Agreement notwithstanding such Title Exception. After the Closing, subject to the next sentence, Seller may endeavor to cure such Title Exception for a period of up to three (3) months from the Closing Date. If the Title Exception is not cured on or prior to three (3) months after the Closing Date, or if at any time during such three (3) month period Seller notifies Purchaser that it will cease efforts to cure such Title Exception, the Escrowed Title Funds shall be released to the Partnership and thereafter Seller shall have no further obligations hereunder in respect of the Title Exception. If Purchaser terminates this Agreement and Seller does not nullify such termination, the Deposit shall be returned to Purchaser by the Title Company, Purchaser shall retain all rights and remedies under Section 10.1(b) with respect to the intentional creation by Seller of a Material Title Exception and, thereafter, the Purchaser and Seller shall have no further rights, liabilities or obligations hereunder, save and except that Purchaser will continue to be liable for the obligations set forth in Sections 7.4, 10.11, 10.15 and 10.16 (the “Surviving Obligations”). The provisions of this Section 5.3(c) shall survive the Closing.

(d)             Seller will be deemed to have duly cured any defects in title if Seller causes the Title Company to agree to provide the Purchaser, at Closing (at no cost to the Purchaser), with specific title insurance insuring the applicable Owner over any loss occasioned by such defects, pursuant to an endorsement reasonably satisfactory to the Purchaser. Notwithstanding the foregoing or anything to the contrary set forth in this Section 5.3, Seller agrees, and shall be obligated to satisfy, by payment or other appropriate measure of satisfaction as agreed to by Seller, either prior to Closing or simultaneously with Closing by using proceeds from the sale, (i) any

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mortgages, deeds of trust or similar security instrument created or assumed by any Seller, Holdco Subsidiary, General Partner or Owner in respect of the Interests or the Properties (other than the Existing Loan to be indirectly assumed by the Purchaser), or (ii) any other liens against title to the Real Property of parties claiming by, through or under the Seller (but not Tenants or Third-Party Ground Lessors, provided the applicable Tenant or Third-Party Ground Lessor is obligated to remove or otherwise cure such lien under its Lease or Ground Lease and, in such case, Seller shall use reasonable efforts consistent with its past practices to cause such Tenant or Third-Party Ground Lessor to remove or cure such lien, but in no event shall Seller be required to cause Tenant or Third-Party Ground Lessor to cure such lien prior to Closing nor shall the Closing be delayed as a result of such lien) that (solely in the case of this clause (ii)) are curable solely by the payment of a liquidated amount of money not to exceed One Million Dollars ($1,000,000.00) in the aggregate.

ARTICLE 6

CONDITIONS PRECEDENT

6.1            Obligation of Purchaser. The obligation of the Purchaser to consummate the Closing is subject to the satisfaction, or waiver by Purchaser, of each of the following conditions:

(a)             Representations and Warranties. Seller’s Warranties shall be true and correct in all material respects when made, and on and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date, except for Exception Matters and as otherwise provided in Sections 3.3(b) and (c) of this Agreement.

(b)             No Defaults. Subject to the provisions of Section 10.1(b) of this Agreement, there shall be no breach, violation or default by Seller (beyond any applicable cure periods) of any of its material covenants, agreements, obligations and undertakings contained in this Agreement, including, without limitation, the required delivery and performance by Seller under Section 7.3 of this Agreement.

(c)             Title. At Closing, the Title Company shall be irrevocably committed to deliver to Purchaser Title Policies with respect to the Properties, subject to the payment of premiums therefor.

(d)             Intentionally Omitted.

(e)             Existing Loan. The Existing Lender or any servicer on behalf of the Existing Lender shall have provided its written consent to the Amended Lex Warren Operating Agreements.

6.2            Obligation of Seller. The obligation of Seller to consummate the Closing is subject to the satisfaction, or waiver by Seller, of each of the following conditions:

(a)             Representations and Warranties. The representations and warranties of the Purchaser contained herein shall be true and correct in all material respects when made and on and as of the Closing Date, if applicable, as though such representations and warranties were made on and as of the Closing Date.

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(b)             No Defaults. Subject to the provisions of Section 10.1(a) of this Agreement, there shall be no breach, violation or default by Purchaser (beyond any applicable cure periods) of any of its material covenants, agreements, obligations and undertakings contained in this Agreement, including, without limitation, the required delivery and performance by Purchaser under Section 7.3 of this Agreement.

Seller shall have the right to extend the Closing Date for up to ninety (90) days to endeavor to (i) cause a Seller’s Warranty that is subject to an Exception Matter to be true and correct in accordance with Section 3.3(b) of this Agreement, (ii) cure a Title Exception in accordance with Section 5.3(b) of this Agreement, or (iii) satisfy any of the Closing conditions set forth in Section 6.1 of this Agreement. Subject to Seller’s right to extend the Closing Date as set forth above, if at Closing any of the conditions specified in Sections 6.1 and 6.2 have not been satisfied or (if waivable) waived by the applicable Party, then Purchaser with respect to Section 6.1 and Seller with respect to Section 6.2, may, at such Party’s sole option, deliver to Purchaser or Seller, as the case may be, a written cancellation notice terminating this Agreement and, upon such Party’s receipt of the cancellation notice, this Agreement shall terminate. If such termination results from a failure of the conditions set forth in (x) Section 6.1, the Deposit shall be paid to the Purchaser or (y) Section 6.2, the Deposit shall be paid to Seller; provided, however, if a failure of any condition set forth in Section 6.1 is a result of Seller’s intentional or willful default, then Seller also shall reimburse Purchaser for its actual out-of-pocket third party costs incurred in connection with this Agreement and the transaction contemplated by this Agreement (which may include, without limitation, reasonable attorneys’ fees) in an amount not to exceed Two Million and No/100 Dollars ($2,000,000.00). Upon such payment, the Parties will be mutually released from all liabilities and obligations hereunder, save and except Purchaser will continue to be liable for the Surviving Obligations.

ARTICLE 7

CLOSING; bifurcated closing option

7.1            Sale. Subject to and in accordance with the terms and provisions of this Agreement, Seller agrees to sell the Interests to the Purchaser and the Purchaser agrees to purchase the Interests from Seller.

7.2            Closing. Except as otherwise provided in Section 7.6, the consummation of the sale of the Interests to the Purchaser and the other transactions contemplated to occur simultaneously therewith shall take place on a Business Day mutually agreed by the Parties that is on or before December 29, 2021, as such date may be extended as permitted in this Agreement or as otherwise agreed to in writing by Seller and Purchaser (the date of such consummation being hereinafter referred to as the “Closing Date”), through an escrow with the Title Company, requiring the simultaneous delivery of the Interests and payment by the Purchaser and disbursement of the Sales Price to Seller in accordance with Section 2.1 hereof, and upon completion of the deliveries hereunder and satisfaction of the other conditions set forth herein with respect to the sale of the Interests (the “Closing”). Notwithstanding anything herein to the contrary, the Parties acknowledge that the Closing is occurring on the Effective Date.

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7.3            Deliveries by Parties. At Closing, each Party shall make or cause to be made the following deliveries and performance:

(a)             Partnership Agreement. The Partnership Agreement, duly executed by Seller and Purchaser (or their applicable Affiliates).

(b)             Assignment of Purchase and Sale Agreement. Purchaser shall assign its interest in this Agreement to the Partnership and Holdco LP, and the Partnership and Holdco LP shall assume all of Purchaser’s obligations hereunder, pursuant to the Assignment of Purchase Agreement.

(c)             Assignment of Interests. An assignment (the “Assignment of Interests”) of the Interests, in substantially the form attached as Exhibit B hereto, executed and acknowledged by Seller, assigning the Interests to the Purchaser and/or Holdco LP, together with any filings required in the jurisdiction in which the entity to which such Interest relates is organized.

(d)             Organizational Documents. (i) Amended or amended and restated (as applicable) limited liability company and limited partnership agreements of (x) each General Partner and each Owner (other than Lex Warren L.P. and Lex Warren GP LLC) in substantially the form attached as Exhibit F-1 (with respect to any Owner or General Partner that is a limited liability company) and Exhibit F-2 (with respect to any Owner or General Partner that is a limited partnership) hereto and (y) Lex Warren L.P. and Lex Warren GP LLC, to reflect the transaction contemplated by this Agreement (the “Amended Lex Warren Operating Agreements”), (ii) a limited liability company agreement of Holdco GP LLC in substantially the form attached as Exhibit F-3 and (iii) a limited partnership agreement of Holdco LP in substantially the form attached as Exhibit F-4.

(e)             Existing Loan. Any documents (other than the Amended Lex Warren Operating Agreements) required by the Existing Lender in connection with the consent contemplated by Section 6.1(e) above, executed and delivered by the parties thereto, but in no event shall Seller be obligated to provide any indemnities or other agreements creating any material liability or cost to Seller.

(f)              Metalsa Consent. If obtained by Seller, the consent by Metalsa that any future transfer of a direct or indirect interests in each applicable Owner to DKCM LP or any Affiliate thereof shall be permitted under each Lease and Ground Lease between an Owner and Metalsa.

(g)             Closing Statement. The Title Company’s closing statement, duly executed by Seller and Purchaser.

(h)             FIRPTA. A certificate of non-foreign status for purposes of Section 1445 and Section 1446(f) of the Code executed by Seller that complies with the requirements of treasury regulations section 1.1445-2(b).

(i)              Title Company Documents. Any documents reasonably required by the Title Company to consummate the transaction contemplated hereby, including such documentation as the Title Company may reasonably require to evidence the authority of Seller to convey the applicable Interests to Purchaser, Transfer Tax forms and an owner’s affidavit and non-imputation affidavit substantially in the form annexed hereto as of Exhibit C from Seller and Owners, but other than the documentation set forth in this clause (i), neither Seller nor any Owner shall be

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obligated to provide to the Title Company any other indemnities or other agreements creating any liability or cost to Seller or such Owner.

7.4            Costs and Expenses. Premiums for Title Policies and the loan policies of title insurance required in connection with the Loan (if the Loan closes), costs of Updated Surveys and UCC searches, Transfer Taxes, recording fees, escrow fees, if any, Loan (if the Loan closes) and Existing Loan costs and expenses (including, without limitation, any required costs and expenses of the applicable lender(s) and the cost of any interest rate cap or hedge instrument), the fee to the Mortgage Broker, the cost of property condition, environmental assessment and zoning reports with respect to the Properties, any amounts due and payable as of the Closing Date by Lex Duncan L.P. to CBRE, Inc. pursuant to that certain Commission Agreement dated as of December 20, 2021 in connection with that certain Lease Extension Letter dated December 13, 2021 between Lex Duncan L.P. and Plastic Omnium Auto Exteriors, LLC, and other closing costs shall be paid by the Partnership; provided, however, that (a) Seller and Investor Partner shall pay their own legal fees incurred in connection with this Agreement and the Partnership Agreement, (b) Investor Partner shall pay any costs related to its due diligence in respect of the Interests and the Properties not required in connection with the Loan and (c) the fee to the Sale Broker for the equity capitalization of the Partnership shall be paid by Seller pursuant to a separate written agreement between Seller and the Sale Broker. Not later than thirty (30) days after the Closing, the Parties will true up all costs and expenses related to this Agreement and the Access Agreement in accordance with Section 7.5. The provisions of this Section 7.4 shall survive the Closing or the expiration or earlier termination of this Agreement. In the event the Closing does not occur, the provisions of the Access Agreement with respect to costs and expenses shall govern.

7.5            Prorations and Adjustments.

(a)             The Parties, acting in good faith, will prepare prior to Closing a calculation of prorations and other adjustments, which shall include, without limitation, rent and any other income derived by the Owners from the Properties, in each case to the extent actually received by Owners, debt service for the Existing Loan, ground rent payable by the applicable Owners to any Third-Party Ground Lessor, property operating expenses, real property taxes and assessments (on the basis upon which each applicable Tenant is billed by an Owner), personal property taxes and assessments, in all cases to the extent not paid directly by a Tenant or Third-Party Ground Lessor, Tenant and Third-Party Ground Lessor reimbursements, and other customary items, which amounts shall be prorated and adjusted between the Parties as of 11:59 P.M. (Eastern Time) on the day preceding the Closing, based upon the actual number of days in the applicable month or year. It is understood and agreed by the Parties that some of the prorations and their adjustments may be based upon good faith estimates.  The Parties agree to re-prorate and readjust such items on a fair and equitable basis as soon as income or invoices or other bills are available and after final reconciliation with Tenants and Third-Party Ground Lessors, with final adjustment to be made as soon as reasonably possible after Closing. Except as otherwise provided in the first sentence of this Section 7.5(a), all expenses due and payable shall be prorated at Closing on an accrual basis by the Seller and the Purchaser with respect to the pre- and post-sale periods, respectively. Notwithstanding the foregoing, there shall be no proration of property operating expenses, real property taxes and assessments, personal property taxes and assessments to the extent such expenses are payable directly by a Tenant or a Third-Party Ground Lessor. Payments either from or to the Seller or the Purchaser, as the case may be, in connection with the final

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adjustment shall be due within thirty (30) days after a determination of such final adjustment, and the parties shall document the final prorations.  To the extent delinquent rents are received after Closing, such rents shall be applied to current rents due and then to arrearages in the reverse order in which they were due, remitting to the applicable Seller any rent properly allocated to the pre-sale period. After taking into account the prorations required by this Section 7.5(a), all cash reserves in any Owner, General Partner or Holdco Subsidiary bank accounts shall be for the account of Seller. The obligations of Seller and Purchaser under this Section 7.5(a) shall survive the Closing.

(b)             At Closing, Purchaser shall receive a credit against the Sales Price for amounts unpaid as of the Closing Date for the cost of any landlord work and tenant improvements commitments of the Owners as of August 12, 2021, for the Properties located in Crossville, Tennessee, Duncan, South Carolina, Lumberton, North Carolina, Dry Ridge, Kentucky, and Marshall, Michigan (individually, an “Unfunded TI Allowance” and collectively, the “Unfunded TI Allowances”). However, for the Property located in Duncan, South Carolina, because the amount of the Unfunded TI Allowance is not yet finally determined as of the Effective Date, the Parties estimate such amount to be $877,253.50. The actual Unfunded TI Allowance to be credited to Purchaser on the Closing Date in respect of the Duncan, South Carolina Property shall be $877,253.50 less amounts actually expended by Seller as of the Closing Date, as evidenced by invoices. Within thirty (30) days after the work in respect of the Duncan, South Carolina Property is complete, the parties shall reconcile the actual amount of the Unfunded TI Allowance and, if Purchaser’s credit at Closing was less than the actual amount required to be credited to Purchaser, Seller shall pay such difference to Purchaser and, if Purchaser’s credit at Closing was more than the actual amount required to be credited to Purchaser, Purchaser shall pay such difference to Seller. The obligations of Seller and Purchaser under this Section 7.5(b) shall survive the Closing.

(c)             Other than taxes required under a Lease to be paid by a Tenant or a Third-Party Ground Lessor under a Ground Lease, Seller shall remain liable for any and all taxes (including any taxes imposed by a taxing authority pursuant to an audit or other proceeding) determined to have accrued or have been due and payable with respect to a Holdco Subsidiary, General Partner, Owner or the Property (or any portion thereof) on or prior to the Closing Date during the applicable statute of limitations period (other than any Transfer Taxes payable by the Partnership in accordance with Section 7.4 and any taxes subject to the prorations set forth in Section 7.5(a) above).

7.6            Bifurcated Closing Option. If the Loan has not closed by 6:00 p.m. December 29, 2021, Purchaser shall have the option to bifurcate (the “Bifurcated Closing Option”) the Closing by delivering notice to Seller not later than 11:59 p.m. New York time on December 29, 2021 and the Closing (the “First Closing”) of the sale-purchase of the First Closing Properties shall then occur on or before December 30, 2021 (the “Outside First Closing Date”), and the Closing (the “Second Closing”) of the sale-purchase of the Second Closing Properties shall be extended to a date on or before February 16, 2022; provided, if the Loan has not closed on or prior to February 8, 2022 and Purchaser is pursuing another loan with a lender other than Bank of America, N.A. (the “Other Loan”), the Second Closing may be extended on notice from Purchaser to Seller delivered on or before February 8, 2022 to no later than March 10, 2022 ( as applicable, the “Outside Second Closing Date”) to allow Purchaser additional time to satisfy the lender’s closing

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requirements in respect of the Other Loan. In such event, the First Closing shall otherwise proceed (subject to all applicable terms, provisions and conditions of this Agreement, including, without limitation, Article 6 and this Section 7.6) on or prior to the Outside First Closing Date (such date on which the First Closing occurs, the “First Closing Date”) and the Individual Interest Price for each of the Second Closing Properties shall be deducted from the Sales Price to be paid by Purchaser at the First Closing. The Parties agree that the Second Closing shall take place through escrow in accordance with this Article 7 on a Business Day mutually agreed by the Parties that is the earlier of (i) the Business Day on which the Loan or, if applicable, an Other Loan, is expected to close or (ii) the Outside Second Closing Date, unless a later date is mutually agreed by Seller and Purchaser in each of their sole discretions (the “Second Closing Date”); provided that, for the avoidance of doubt, the Second Closing Date may be the same date as the First Closing Date, the First Closing and Second Closing may occur simultaneously, but the First Closing cannot occur beyond the Outside First Closing Date. If Purchaser exercises the Bifurcated Closing Option, the terms “Closing” and “Closing Date” when used in this Agreement shall automatically be deemed to refer to such First Closing or Second Closing, as the case may be, or First Closing Date or Second Closing Date, as the case may be, including, without limitation, for purposes of any representations, warranties and covenants that survive the Closing. If Purchaser elects to exercise the Bifurcated Closing Option, the following provisions shall apply and shall supersede any contrary provision in the Agreement:

(a)             The Parties shall negotiate in good faith to amend the Partnership Agreement to reflect such modifications related to the bifurcation of the Closing and the acquisition of the Second Closing Properties as are reasonably acceptable to the Parties, which amendment shall be executed and delivered on or prior to the Second Closing Date.

(b)             The Deposit shall not be applied against the Sales Price payable at the First Closing, but shall continue as the Deposit under this Agreement to be held and released by Title Company in accordance with this Agreement, including the provisions of Section 10.14 of this Agreement at or prior to the Second Closing.

(c)             The closing conditions set forth in Sections 6.1 other than Sections 6.1(d) and (e) shall apply to the First Closing;

(d)             The closing deliveries set forth in Section 7.3 other than Sections 7.3(d)(i)(y), Section 7.3(e) and Section 7.3(f) (other than with respect to the Property leased by Metalsa and located in Owensboro, Kentucky) shall apply and be required in connection with the First Closing;

(e)             The closing conditions set forth in Sections 6.1 shall apply and be required in connection with the Second Closing, except that notwithstanding the provisions of Sections 3.5 and 6.1(a), Seller’s Warranties shall not be deemed remade as of the Second Closing and shall not be required to be true and correct in all material respects on and as of the Second Closing Date;

(f)              The closing deliveries set forth in Section 7.3 other than Section 7.3(a) shall apply and be required in connection with the Second Closing;

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(g)             A partial Assignment of Purchase Agreement shall be delivered at the First Closing solely with respect to the First Closing Properties and a partial Assignment of Purchase Agreement shall be delivered at the Second Closing solely with respect to the Second Closing Properties;

(h)             References to Two Million and No/100 Dollars ($2,000,000.00) in the paragraph following Section 6.2 and in Section 10.1(b) shall be deemed aggregate amounts of actual out-of- pocket third party costs incurred in connection with the First Closing and Second Closing;

(i)              Section 10.1(b)(i)(B) and the definition of “Fundamental Transaction” shall be deemed deleted from this Agreement from and after the First Closing;

(j)              Section 10.8 shall be amended from and after the First Closing by deleting the words “; provided, however, that until the date that is ten (10) days prior to the Closing Date, Purchaser shall have the right to assign this Agreement to an Affiliate of DKCM LP with advance written notice to, but without the consent of, Seller”;

(k)             The reference to TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) in Section 10.17 shall be deemed an aggregate amount for the First Closing Properties and the Second Closing Properties; and

(l)              In no event shall Purchaser have the right to acquire the Second Closing Properties if for any reason Purchaser has not acquired the First Closing Properties.

ARTICLE 8

AS IS

8.1       AS-IS. EXCEPT FOR SELLER’S WARRANTIES IN SECTION 3.1 OF THIS AGREEMENT, THIS SALE IS MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS OR IMPLIED) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, PURCHASER AGREES TO ACCEPT THE INTERESTS ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY OTHER REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS. EXCEPT FOR SELLER’S WARRANTIES IN SECTION 3.1 OF THIS AGREEMENT, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER WITH RESPECT TO THE INTERESTS OR PROPERTIES AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS MATERIALS OR TOXIC SUBSTANCES, THE PRESENCE OF VIRUSES OR BACTERIA, THE PRESENCE OF LEAD-CONTAINING OR ASBESTOS CONTAINING MATERIALS OR DUST, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). PURCHASER ACKNOWLEDGES THAT PURCHASER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL (INCLUDING, BUT

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NOT LIMITED TO, HEALTH AND SAFETY), ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE INTERESTS AND PROPERTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN WITH RESPECT TO SELLER'S WARRANTIES, PURCHASER EXPRESSLY RELEASES, AND WAIVES (TO THE EXTENT ALLOWED BY APPLICABLE LAW) ANY CLAIMS UNDER FEDERAL LAW, STATE OR OTHER LAW, WHETHER IN LAW OR EQUITY THAT PURCHASER MIGHT OTHERWISE HAVE AGAINST SELLER RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE INTERESTS OR THE PROPERTIES WHETHER ARISING BEFORE OR AFTER THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, ANY PHYSICAL, ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITION THEREOF AND ANY CLAIM FOR INDEMNIFICATION, COST RECOVERY OR CONTRIBUTION ARISING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (42 U.S.C. SECTION 9601 ET SEQ.) OR ANY SIMILAR FEDERAL, STATE OR LOCAL STATUTE, RULE OR ORDINANCE RELATING TO LIABILITY OF INTERESTS OR PROPERTY OWNERS FOR ENVIRONMENTAL MATTERS, IN EACH CASE WHETHER KNOWN OR NOT KNOWN TO PURCHASER. Notwithstanding anything herein to the contrary, the terms of this section 8.1 shall not waive or otherwise limit any rights or remedies available under THE PARTNERSHIP AGREEMENT.

  /s/ MPB  

Purchaser’s Initials  

ARTICLE 9

CASUALTY AND CONDEMNATION

9.1            Casualty. In the event a casualty results in damage to any Property that would give a Tenant the right to, and Tenant does, deliver notice to the applicable Owner to terminate its Lease and such terminated Lease(s) results in a reduction of annual net operating income in an amount greater than Three Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00) in the aggregate for all Properties (measured on the current in place annual net operating income for the Properties as of the Effective Date), Purchaser will have the option, exercisable within fifteen (15) days after receipt of Seller's notice that Tenant has cancelled the Lease, of either (i) declaring this Agreement terminated in which event the Title Company will refund to Purchaser the entire Deposit whereupon this Agreement and all rights of the Purchaser hereunder will terminate and neither Seller nor Purchaser will have any further claim against the other, except that Purchaser will continue to be liable for the Surviving Obligations, or (ii) closing in accordance with this Agreement and paying in full the Sales Price, except as set forth below. If Purchaser fails to timely make an election pursuant to the foregoing sentence, Purchaser will be deemed to have elected to proceed with the purchase of the Interests in accordance with clause (ii) above. If Purchaser elects or is deemed to have elected to proceed with the purchase of the Interests or in the event of any other casualty to the Properties, Seller and Purchaser shall proceed to close under this Agreement and Seller will assign to Purchaser at Closing Seller’s rights under any insurance policies to receive insurance proceeds due Seller as a result of such damage or destruction (other than reasonable costs of collection of such proceeds and amounts expended by Seller to secure the Properties safely

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or to repair the Properties) and Purchaser shall assume responsibility (subject to Tenant’s obligations under the Leases) to repair the Properties. The Purchaser also shall receive a credit at Closing for any deductible required by any Lease or Ground Lease to be paid by any Owner under said insurance policies and not expended to secure or repair the Properties.

9.2            Condemnation. If prior to the Closing, such portion of the Real Property is taken by condemnation, eminent domain or deed in lieu thereof or such a taking is threatened in writing by the applicable Governmental Authority having jurisdiction over the Real Property that would give a Tenant the right to, and such Tenant does, deliver notice to the applicable Owner to terminate its Lease and such terminated Lease(s) results in a reduction of annual net operating income in an amount greater than Three Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00) in the aggregate for all Properties (measured on the current in place annual net operating income for the Properties as of the Effective Date), this Agreement will be automatically canceled, the entire Deposit will be returned to Purchaser and thereupon neither party will have any further liability or obligation to the other, except that Purchaser will continue to be liable for the Surviving Obligations. If the Lease is not terminated by Tenant as a result of such condemnation, Purchaser will accept the applicable Interest subject to the condemnation, eminent domain or taking, in which event on the Closing Date the net proceeds of Seller’s interests in the award or payment (after payment of all actual reasonable collection costs to Seller) will be assigned by Seller (or the applicable Owner) to Purchaser and net monies theretofore received by Seller or the applicable Owner and not paid to Tenant pursuant to its Lease or Third-Party Ground Lessor pursuant to its Ground Lease in connection with such condemnation, eminent domain or taking will be allowed as a credit against the Sales Price hereunder.

ARTICLE 10
MISCELLANEOUS

10.1         Remedies.

(a)             If Purchaser defaults in the performance of any material term of this Agreement for more than ten (10) days after written notice from Seller (except there shall be no grace period or notice required if Purchaser intentionally defaults in the payment of the Sales Price on the Closing Date), Seller, as its sole and exclusive remedy hereunder, may terminate this Agreement and the Title Company will pay Seller all of the Deposit that Seller may retain, which amount is agreed upon by and between Seller and Purchaser as liquidated damages due to the difficulty and inconvenience of ascertaining and measuring actual damages and the uncertainty thereof; and no other damages, rights or remedies at law or in equity shall in any case be collectible, enforceable or available to Seller, but Seller shall accept said cash payment as Sellers total and exclusive damages and relief; provided, however, that Sellers receipt and acceptance of the Deposit will not prejudice, waive or in any manner affect any and all remedies available at law, in equity, or hereunder with respect to enforcing the Purchasers Surviving Obligations.

(b)             If Seller defaults (x) except as set forth in the next succeeding clause (y), in the performance of any material term of this Agreement for more than ten (10) days after written notice from the Purchaser or (y) intentionally in the assignment and conveyance of the Interests on the Closing Date for more than two (2) Business Days after written notice from the Purchaser, the Purchaser, as its sole and exclusive remedy, may either: (i) cancel and terminate

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this Agreement by written notice, and upon such termination, the Title Company will pay Purchaser all of the Deposit, and in the event the default is as a result of Seller’s intentional failure to assign and convey the Interests on the Closing Date, Seller’s intentional misrepresentation of a Seller Warranty, the intentional creation by Seller of a Material Title Exception that is not cured by Seller on or prior to the Closing or an act of Seller done with the intent to prevent a condition precedent to Closing from being fulfilled, (A) if such default by Seller was not caused by Seller and/or its Affiliates engaging in a Fundamental Transaction, Seller will reimburse Purchaser for its actual out-of-pocket third party costs incurred in connection with this Agreement and the transaction contemplated by this Agreement (which may include, without limitation, reasonable attorneys’ fees) in an amount not to exceed Two Million and No/100 Dollars ($2,000,000.00) or (B) if such default by Seller was caused by Seller and/or its Affiliates engaging in a Fundamental Transaction and such default results in Seller’s failure to close pursuant to this Agreement, (1) Seller will reimburse Purchaser for its actual out-of-pocket third party costs incurred in connection with this Agreement and the transaction contemplated by this Agreement (which may include, without limitation, reasonable attorneys’ fees) in an amount not to exceed Two Million Seven Hundred Fifty Thousand and No/100 Dollars ($2,750,000.00) and (2) Seller will be required to pay Purchaser a fee equal to Five Million and No/100 Dollars ($5,000,000.00) not later than ten (10) Business Days following such termination, and thereafter neither party shall have any further liability hereunder, except that Purchaser will continue to be liable for the Surviving Obligations or, (ii) except if Seller’s failure to close pursuant to this Agreement was caused by Seller and/or its Affiliates engaging in a Fundamental Transaction (in which case Purchaser’s sole remedy shall be pursuant to clause (b)(i)(B) above), as an alternative remedy to such cancellation, Purchaser may apply for a decree of specific performance, provided that any suit for specific performance must be brought within thirty (30) days after the expiration of Seller’s cure period with respect to such default. In no event may a suit for specific performance be brought in respect of any particular provision of this Agreement but only in respect of specific performance of Seller’s obligation to assign and convey the Interests and/or execute and deliver (or cause to be executed and delivered) the documents set forth in Section 7.3 of this Agreement. Purchaser’s failure to bring such suit within thirty (30) days after the expiration of Seller’s cure period with respect to such default shall be deemed a waiver of the right to bring suit at any later date for specific performance with respect to the relevant default (but not with respect to any other default occurring after such date) and, in the event such default was the failure on the part of Seller to consummate the sale of the Interests as contemplated hereunder, shall constitute the Purchaser’s election to terminate this Agreement in accordance with the terms of Section 10.1(b)(i)(A) above. In no event will Seller be liable or responsible for (and Purchaser hereby waives) all claims to recover any monetary damages whatsoever, whether general, special, incidental or consequential allegedly arising from any breach of this Agreement by Seller, except as provided in Section 3.2, this Section 10.1(b) or Section 10.11, but subject in all cases to the limitations of Sections 3.2 and 10.17.

/s/ MPB   /s/ JB
Purchaser Initials   Seller’s Initials

 

10.2         Additional Actions and Documents. Each of the Parties hereto hereby agrees to take or cause to be taken such further actions, to execute, deliver and file or cause to be executed, delivered and filed such further documents, and will obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement.

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10.3         Amendments. No amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed and delivered by the Party against whom enforcement of the amendment, modification, or discharge is sought.

10.4         Notices. Any notices required or permitted to be given hereunder will be given in writing, signed by the Party giving the same, and will be delivered (a) in person, (b) by a commercial overnight courier that guarantees next Business Day delivery and provides a receipt, or (c) by electronic mail (with Request a Read Receipt), when followed by delivery via nationally recognized overnight courier, and such notices will be addressed as follows:

To Seller: c/o LXP Industrial Trust
  One Penn Plaza, Suite 4015
  New York, NY 10119
  Attention: Lara Johnson
  E-mail:  ljohnson@lxp.com
   
with a copy to: c/o LXP Industrial Trust
  One Penn Plaza, Suite 4015
  New York, NY 10119
  Attention: Joseph Bonventre, Esquire
  E-mail:  jbonventre@lxp.com; LANotices@lxp.com and LALegal@lxp.com  
   
with a copy to: Eiseman Levine Lehrhaupt & Kakoyiannis P.C.
  805 Third Avenue
  New York, New York  10022
  Attention: Jonathan Eiseman, Esq.
  E-mail: jeiseman@eisemanlevine.com
   
To Purchaser: LX JV Investor II LLC
  520 Madison Ave
  30th Floor
  New York, NY 10022
  Attention: Andrew Shore
  E-mail: ashore@dkpartners.com
   
with a copy to: Dechert LLP
  Three Bryant Park
  1095 Avenue of the Americas
  New York, NY 10036
  Attention: Craig Brown, Esq.
  E-mail: craig.brown@dechert.com
   
To Title Company:   First American Title Insurance Company
  1125 17th Street, Suite 500
  Denver, Colorado 80202
  Attention: Jordan Dunn and Seth Holley
  E-mail: jdunn@firstam.com and seholley@firstam.com

 

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or to such other address as either Party may from time to time specify in writing to the other Parties. Any notice, personally delivered, will be effective upon delivery. Any such communication, if sent via electronic mail or if sent via facsimile, will be deemed to have been given and received on the day indicated on either the electronic mail or the confirmed facsimile delivery transmission (provided duplicate copy is also sent via overnight courier). If the last day of a period within which either Party is required or allowed to provide a notice, demand, offer, election, acceptance or other communication hereunder should fall upon a Saturday, Sunday or legal holiday then, the next full Business Day will be included in such period and such notice, offer, demand, request or communication may be made and given on such next full Business Day. Notices may be delivered on behalf of the parties by their respective attorneys.

10.5         Waivers. No delay or failure on the part of any Party hereto in exercising any right, power or privilege under this Agreement or under any other documents furnished in connection with or pursuant to this Agreement shall impair any such right, power or privilege to be construed as a waiver of any default or any acquiescence therein. No single or partial exercise of any such right, power or privilege shall preclude the further exercise of such right, power or privilege, or the exercise of any other right, power or privilege. No waiver shall be valid against any Party hereto unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.

10.6         Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

10.7         Governing Law. This Agreement is delivered in and shall be governed by and construed according to the substantive laws and judicial decisions of State of New York (regardless of the place of business, residence, location or domicile of the Parties hereto or any of their constituent members, partners or principals). Each Party hereby submits to personal jurisdiction in the State of New York for the enforcement of this Agreement and hereby waives any claim or right under the laws of any other state or of the United States to object to such jurisdiction. If such litigation is commenced, each Party agrees that service of process may be made by serving a copy of the summons and complaint upon each Party, through any lawful means, including upon its registered agent within the State of New York, whom each Party hereby appoints as its agent for this purpose. The means of obtaining personal jurisdiction and perfecting service of process set forth above are not intended to be exclusive but are in addition to all other means of obtaining personal jurisdiction and perfecting service of process now or hereafter provided by applicable law.

10.8         Assignment. Except as otherwise expressly provided by Sections 7.3(b) and 7.6 of this Agreement, no Party hereto shall assign its rights and/or obligations under this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Parties hereto; provided, however, that until the date that is ten (10) days prior to the Closing Date, Purchaser shall have the right to assign this Agreement to an Affiliate of DKCM LP with advance written notice to, but without the consent of, Seller.

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10.9         No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto, and no provision of this Agreement shall be deemed to confer any third-party benefit.

10.10     Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.

10.11     Attorneys’ Fees If either Party brings an action at law or equity against the other in order to enforce the provisions of this Agreement or as a result of an alleged default under this Agreement, the prevailing Party in such action shall be entitled to recover court costs and reasonable attorney's fees actually incurred from the other. The provisions of this Section 10.11 shall survive the Closing, or if the purchase and sale is not consummated, any cancellation or termination of this Agreement.

10.12     Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE PROVISIONS OF THIS SECTION 10.12 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

10.13     Tax Free Exchanges. Notwithstanding Section 10.8 hereof, Seller is permitted to designate any Interest as part of a one or more tax-free exchanges under the Code (a “Tax Free Exchange”). Each Interest that is designated as part of a Tax Free Exchange shall be treated as a separate and independent “deferred exchange” within the meaning of Treasury Regulation 1.1031(k)-1(a), with a separate qualified intermediary and as such the Seller shall be eligible to identify up to three (3) potential replacement properties with respect to each Interest and shall not be subject to the limitations set forth in Treasury Regulation Section 1.1031(k)-1(c)(4)(i). The Parties hereto agree to cooperate with the other in each such transaction, including, but not limited to, executing any commercially reasonable documents requested by the Seller and cooperating in a commercially reasonable manner with any facilitator in each such Tax Free Exchange, provided that (a) the Closing shall not be delayed or extended (other than extensions otherwise expressly contemplated by the terms of this Agreement) or affected by reason of any Tax Free Exchange nor shall the consummation or accomplishment of any Tax Free Exchange be a condition precedent or condition subsequent to any Party’s obligations under this Agreement, (b) Seller shall effect each Tax Free Exchange through an assignment or partial assignment of its rights under this Agreement to a qualified intermediary or exchange accommodation titleholder within the meaning of Treasury Regulations Section1.1031(k)-1(g)(4)(v) (provided no such assignment shall release or diminish any of the obligations and liabilities of Seller hereunder) and (c) Purchaser shall not be required to acquire or hold title to any real property other than the Real Properties for purposes of consummating any Tax Free Exchange. Purchaser shall not by this Agreement or acquiescence to any Tax Free Exchange, (1) have its rights under this Agreement affected or diminished in any manner, (2) be responsible for compliance with or be deemed to have warranted that any Tax Free Exchange in fact complies with applicable provisions of the Code, (3) incur any additional cost or expense or potential liability as a result of any Tax Free Exchange by Seller (other than de minimis

38

costs associated with the review by Purchaser’s counsel of acknowledgments and/or notices required in connection with each such Tax Free Exchange) or (4) be obligated to execute any agreement to effectuate any Tax Free Exchange promulgated by Seller (or any other party to the Tax Free Exchange), other than a Notice of Assignment to Purchaser which shall be substantially in the form of Exhibit E attached hereto or a separate purchase and sale agreement for certain of the Interests, provided that such purchase and sale agreement, when taken together with this Agreement, does not otherwise affect any of the rights or obligations of Purchaser. Seller shall indemnify Purchaser and hold Purchaser harmless from any and all actual out of pocket third party costs, damages, claims, liabilities or expenses (including without limitation, court costs and reasonable attorneys’ fees and disbursements) incurred by Purchaser solely in connection with any exercise by Seller of any of its rights under this Section 10.13 to designate any Interest as part of a Tax Free Exchange. The provisions of this Section will survive the Closing or, if the purchase and sale is not consummated, any cancellation or termination of this Agreement.

10.14     Escrow Agent.

(a)             The Title Company shall accept the Deposit with the understanding of the parties that Title Company is not a party to this Agreement except to the extent of its specific responsibilities hereunder and does not assume or have any liability for the performance or non-performance of Purchaser or Seller hereunder to each other.

(b)             The Title Company shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument or other document that is given to the Title Company without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument or other document.

(c)             The Title Company shall not be bound in any way by any other agreement or understanding between the Parties hereto, whether or not the Title Company has knowledge thereof or consents thereto unless such consent is given in writing.

(d)             The Title Company’s sole duties and responsibilities under as escrow agent for the Deposit shall be to hold and disburse the Deposit in accordance with this Agreement.

(e)             The Title Company shall not be liable for any action taken or omitted by the Title Company in good faith and believed by the Title Company to be authorized or within its rights or powers conferred upon it by this Agreement, except for damage caused by the fraud, willful misconduct or gross negligence of the Title Company.

(f)              Upon the disbursement of the Deposit in accordance with the terms of this Agreement, the Title Company shall be relieved and released from any liability under this Agreement.

(g)             The Title Company may resign at any time upon at least ten (10) days prior written notice to the Parties hereto. If, prior to the effective date of such resignation, the parties hereto shall all have approved, in writing, a successor escrow agent, then upon the resignation of the Title Company, the Title Company shall deliver the Deposit to such successor escrow agent. From and after such resignation and the delivery of the Deposit to such successor escrow agent, the Title Company shall be fully relieved of all of its duties, responsibilities and obligations under this

39

Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor escrow agent. If for any reason the Parties hereto shall not approve a successor escrow agent within such period, the Title Company may bring any appropriate action or proceeding for leave to deposit the Deposit with a court of competent jurisdiction, pending the approval of a successor escrow agent, and upon such deposit the Title Company shall be fully relieved of all of its duties, responsibilities and obligations under this Agreement.

(h)             Seller and Purchaser hereby agree to, jointly and severally, indemnify, defend and hold the Title Company harmless from and against any liabilities, damages, losses, costs or expenses incurred by, or claims or charges made against, the Title Company (including reasonably attorneys’ fees, expenses and court costs) by reason of the Title Company’s acting or failing to act in connection with any of the matters contemplated by this Agreement in its capacity as escrow agent for the Deposit or in carrying out the terms of this Agreement, except as a result of the Title Company’s fraud or negligence.

(i)              In the event that a dispute shall arise in connection with this Agreement, or as to the rights of any of the Parties in and to, or the disposition of, the Deposit, either Party (a “Demanding Party”) may deliver to the other Party and the Title Company a written demand for payment of the Deposit (the “Demand”). The Title Company shall pay the Deposit to the Demanding Party unless the other Party, within ten (10) days following the delivery of the Demand to the other Party, shall deliver written notice (the “Dispute Notice”) to the Title Company and the Demanding Party stating that the other Party disputes the right of the Demanding Party to receive payment of the Deposit. If the other Party fails to timely deliver a Dispute Notice to the Title Company and the Demanding Party, the Title Company, promptly upon the expiration of such ten (10) day period, shall pay the Deposit to the Demanding Party without further authorization or direction from the other Party and conclusively shall be discharged and released from any liability or obligation to the other Party with respect to such payment. If the other Party timely delivers a Dispute Notice to the Title Company and the Demanding Party, the Title Company either shall (w) hold and retain all or any part of the Deposit until such dispute is settled or finally determined by litigation, arbitration or otherwise, or (x) deposit the Deposit in an appropriate court of law, following which the Title Company shall thereby and thereafter be relieved and released from any liability or obligation under this Agreement, or (y) institute an action in interpleader or other similar action permitted by stakeholders in the State of New York, or (z) interplead any of the Parties in any action or proceeding which may be brought to determine the rights of the Parties to all or any part of the Deposit. Notwithstanding anything to the contrary contained herein, Seller, Purchaser and Title Company each hereby acknowledges and agrees that payment of the Deposit and the balance of the Purchase Price to Seller pursuant to Section 7.2 of this Agreement shall not require written demand therefor by the Party to whom the Deposit and the balance of the Purchase Price is to be paid, nor shall such payment be subject to objection by the other Party.

(j)              The Title Company shall not have any liability or obligation for loss of all or any portion of the Deposit by reason of the insolvency or failure of the institution of depository with whom the escrow account is maintained.

(k)             The provisions of this Section 10.14 shall survive the Closing or any termination of this Agreement.

40

10.15     Non-Imputation. Purchaser hereby acknowledges that the obligations of Seller hereunder are those solely of Seller and not of its officers, directors, shareholders, members, managers, agents or employees (collectively the “Seller’s Affiliates”). Purchaser shall have no right to seek damages from, or allege a cause of action against, the Seller’s Affiliates. Purchaser hereby agrees that its sole recourse for any actions, claims, liabilities, damages and demands of every nature whatsoever, whether known or unknown, arising out of any matter in connection with this Agreement or the transactions contemplated hereby, to the extent specifically provided for in this Agreement, shall be to Seller’s interest in the Interests and the net proceeds thereof and Purchaser specifically agrees that neither the Seller nor the Seller’s Affiliates shall be personally liable for any judgment or the payment of any monetary obligations to Purchaser. The provisions of this Section 10.15 shall survive the Closing, or if the purchase and sale is not consummated, any cancellation or termination of this Agreement.

10.16     Broker.

(a)             Warranty. The Parties represent and warrant to each other that no broker or finder was instrumental in arranging or bringing about this transaction other than Eastdil Secured, L.L.C. (in its capacity as broker arranging for the equity capitalization of the Partnership, the “Sale Broker” and in its capacity as broker arranging for the Loan, the “Mortgage Broker”). At Closing, pursuant to a separate agreement between Seller and the Sale Broker, Seller will pay a commission to the Sale Broker in accordance with the provisions of Section 7.4 of this Agreement and pursuant to a separate agreement to be entered into between the Partnership and the Mortgage Broker, the Partnership will pay a commission to the Mortgage Broker in accordance with the provisions of Section 7.4 of this Agreement.

(b)             Indemnity. If any other person brings a claim for a commission or finder’s fee based upon any contact, dealings or communication with Seller or Purchaser, then the party through whom such person makes its claim will defend the other party (the “Indemnified Party”) from such claim, and will indemnify the Indemnified Party and hold the Indemnified Party harmless from any and all costs, damages, claims, liabilities or expenses (including without limitation, court costs and reasonable attorneys’ fees and disbursements) incurred by the Indemnified Party in defending against the claim. The provisions of this Section will survive the Closing or, if the purchase and sale is not consummated, any cancellation or termination of this Agreement.

10.17     Joint and Several; Limitation on Liability. All obligations of the Seller under this Agreement shall apply to each Seller on a joint and several basis. Notwithstanding anything to the contrary contained in this Agreement, the maximum aggregate liability of Seller collectively and the maximum aggregate amount which may be awarded to and collected by Purchaser under this Agreement will under no circumstances whatsoever exceed TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) in the aggregate for all of the Properties, provided that, such maximum amount shall not apply with respect to any liability of Seller under Sections 3.1(k), 3.1(s), 3.1(v)(b), 7.4, 7.5, 10.13 and 10.16 (and, for the avoidance of doubt, any amounts awarded to and collected by Purchaser with respect to any liability of Seller under such sections shall not have the effect of reducing the maximum aggregate liability set forth in this Section 10.17).

41

10.18     Survival. Except as expressly set forth to the contrary herein, no representations, warranties, covenants or agreements of Seller contained herein will survive the Closing.

10.19     TIME IS OF THE ESSENCE. TIME SHALL BE OF THE ESSENCE in the performance by Purchaser of all of its respective obligations hereunder.

10.20     No Construction Against Drafter. The Parties took an equal share in drafting this Agreement; therefore, no rule of contract construction that would operate to construe this Agreement or any part thereof strictly against the drafter shall be applied in any action or proceeding relating hereto.

10.21     Contract Execution. Notwithstanding any provision contained in this Agreement to the contrary, this Agreement shall become effective only after the execution and delivery of this Agreement by each of the Parties hereto and no course of conduct, oral agreement or written memoranda shall bind Purchaser or Seller or the Parties hereto with respect to the subject matter hereof except this Agreement.

10.22     Entire Agreement. This Agreement, all of the Exhibits and schedules hereto and thereto, the Access Agreement and the Confidentiality Agreement, contain all representations, warranties and covenants made by Purchaser and Seller and their respective Affiliates and constitute the entire understanding between the Parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda or agreements (other than the Confidentiality Agreement and Sections 6, 12 and 14 of the Access Agreement) in connection with the transaction contemplated by this Agreement are replaced in total by this Agreement, together with the Exhibits and schedules hereto and thereto.

10.23     Financing. The Parties have mutually agreed to apply for a Loan directly or indirectly encumbering the Properties (other than the Property located in Warren, Michigan) to finance a portion of the Purchase Price, but the closing of such Loan shall not be a condition to Closing (and, for the avoidance of doubt, the Parties shall have no obligation to obtain the Loan). If the Loan closes, all costs and expenses incurred by the Parties in connection with the Loan shall be paid in accordance with Section 7.4 of this Agreement. Otherwise, Seller shall pay twenty percent (20%) and Investor Partner shall pay (or cause to be paid) eighty percent (80%) of any costs and expenses associated with the attempt to obtain such Loan, including, without limitation, lender-required due diligence, lender legal fees, breakage costs for any interest rate cap or hedge instrument, and title and other search charges, promptly after receipt of invoices therefor. If the Loan is obtained by Closing, Seller and Purchaser shall execute at Closing the Loan Documents in form and substance mutually agreeable to the Parties. The provisions of this Section 10.23 shall survive the Closing or the expiration or earlier termination of this Agreement.

[Signature Page Follows]

42

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed on their behalf as of the date first above written. 

  SELLER:
         
  LXP INDUSTRIAL TRUST, a Maryland real estate investment trust
         
  By: /s/ Joseph Bonventre
  Name: Joseph Bonventre
  Title: Executive Vice President
         
         
  NET LEASE STRATEGIC ASSETS FUND L.P.,
  a Delaware limited partnership
         
  By: LMLP GP LLC,
  a Delaware limited liability company,
  its general partner
         
    By: LXP Manager Corp.,
    a Delaware corporation,
    its manager
         
      By: /s/ Joseph Bonventre
      Name: Joseph Bonventre
      Title: Vice President
         
  LEPERCQ CORPORATE INCOME FUND L.P.,
  a Delaware limited partnership
         
    By: Lex GP-1 Trust,
    a Delaware statutory trust,
    its general partner
         
      By:   /s/ Joseph Bonventre
      Name: Joseph Bonventre
      Title: Vice President
         

 


 

         
  INVESTOR PARTNER:
         
  LX JV Investor II LLC, a Delaware limited liability company
         
         
  By: /s/ Morgan P. Blackwell
  Name: Morgan P. Blackwell
  Title: Manager
     
     
     
     
     
     

 


         
  This Agreement has been received by the Title Company this 29th day of December, 2021. By its execution of this Agreement, below, the Title Company hereby agrees to be bound by the terms hereof to the extent that this Agreement imposes duties upon the Title Company, including, without limitation, all of the terms and provisions of Section 10.14 hereof.
     
     
  FIRST AMERICAN TITLE INSURANCE COMPANY
     
     
  By: /s/ Seth Holley
    Name: Seth Holley
    Title: Underwriting Counsel
     

 

Schedule 1

List of HOLDCO SUBSIDIARIES, General Partners, Owners and Properties

[Omitted]

  
  

Exhibit A

FORM OF ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

This ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (“Assignment”) is made as of the ____ day of _________, 2021, by and between [_________________] (“Assignor”) and _____________________ (“Assignee”).

In consideration of Ten ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual covenants and agreements contained herein, Assignor and Assignee hereby agree as follows:

1.               Assignor does hereby assign, convey and transfer unto Assignee all right, title and interest of Assignor in, to and under that certain Purchase and Sale Agreement (the “Contract”), dated as of December _, 2021, between LXP Industrial Trust, Net Lease Strategic Assets Fund L.P. and Lepercq Corporate Income Fund L.P., as Seller, and Assignor, as Purchaser, in respect of the Interests as defined and described in such Contract. This Assignment includes all of Assignor’s right, title and interest in and to the Deposit (as defined in the Contract).

2.               Assignee hereby accepts the foregoing assignment and assumes all of the covenants, conditions, obligations and liabilities under the Contract.

3.               This Assignment may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. For purposes of this Assignment, any signature transmitted by e-mail (in pdf format) shall be considered to have the same legal and binding effect as any original signature.

(Signatures on following page)

  
  

IN WITNESS WHEREOF, this Assignment has been duly signed the date above set forth.

  ASSIGNOR:
  [___________________], a ________
     
  By:  
    Name:
    Title:
     
  ASSIGNEE:
   
  _______________________a Delaware limited partnership
   
  By:
  a Delaware limited liability company,
  its General Partner
   
  By:  
    Name:
    Title:

  
  

Exhibit B

FORM OF ASSIGNMENT OF INTERESTs

Assignment of INTERESTS

THIS ASSIGNMENT OF INTERESTS (this “Assignment”) is made as of [] [], 2021 between ______________, a _________________ (“Assignor”), and ___________________, a Delaware limited partnership (the “Partnership”).

WHEREAS, Assignor is the owner of 100% of the general partnership interests, non-member manager interests, limited partnership interests and limited liability company interests (collectively, the “Interests”) described on Schedule 1 hereto in the limited partnership and limited liability companies set forth in Schedule1 hereto; and

WHEREAS, Assignor desires to assign, transfer and convey all of its right, title and interest in the Interests to the Partnership.

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

1.       Assignment. Assignor hereby assigns, transfers and sets over to the Partnership the Interests including all capital relating thereto and profits derived therefrom, in each case, free of liens, security interests and encumbrances. The Partnership hereby accepts such assignment, and assumes all of Assignor’s duties, obligations and rights relating to the Interests on and after the date hereof subject to the terms of the applicable limited liability company or limited partnership agreements.

2.       Parties Bound. No party may assign this Assignment without the prior written consent of the other party, and any such prohibited assignment shall be void. Subject to the foregoing, this Assignment shall be binding upon and inure to the benefit of the respective legal representatives, successors, assigns, heirs, and devisees of the parties.

3.       Governing Law. This Assignment shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the State of Delaware without giving effect to the conflict of law principles thereof.

4.       Time. Time is of the essence in the performance of this Assignment.

5.       Execution in Counterparts. This Assignment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Assignment.

  
  

6.       Representations and Warranties. This Assignment is made without recourse and without any representation or warranty (express or implied) except as set forth in that certain Purchase and Sale Agreement dated as of December __, 2021 between Assignor and _________, as assigned by ____________ to the Partnership by Assignment and Assumption of Purchase and Sale Agreement, dated as of __________ __, 2021.

  
  

IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be signed as of the date first above written.

  ___________________________
     
  By:  
    Name:
    Title:
     
  ___________________________
     
     
     
  By:  
    Name:
    Title:

  
  

SCHEDULE 1

  
  

Exhibit C

Form of

OWNER’S AFFIDAVIT AND NON-IMPUTATION AFFIDAVIT

TO: FIRST AMERICAN TITLE INSURANCE COMPANY (the “Title Company”)

File No.______________________

Joseph Bonventre, being duly sworn, deposes and says:

1.               I am the Executive Vice President of LXP Industrial Trust (“Lexington”) and the Vice President of _________, the ________ of ________ (“_______” and together with Lexington, “Indemnitors”) and am authorized to make this affidavit on behalf of each Indemnitor. The following representations and warranties of Lexington made herein are limited to apply only to those properties and property owners owned by Lexington as shown on Exhibit A attached hereto, and the representations and warranties of ________ made herein are limited to apply only to those properties and property owners owned by _______ as shown on Exhibit A attached hereto.

2.               No property owner has granted any leases or rights of possession in and to the premises described on Schedule A to the above-referenced commitment to insure (the “Property”), other than those certain leases described in the title commitment.

3.               Except as set forth on Schedule 2 hereto, no property owner has ordered any work to be done on any Property in the last 180 days for which payment has not been made and no property owner has ordered any other work prior to 180 days which is still in progress.

4.               No proceedings in bankruptcy have ever been instituted by or against Lexington, __________, or any property owner, and no party has made an assignment for the benefit of creditors.

5.               Indemnitors are, directly or indirectly, selling to_________ all of the membership and partnership interests in the property owners listed next to their respective names in Exhibit A attached hereto. In connection with such sale, Title Company is issuing a non-imputation endorsement in favor of the buyer of the membership and partnership interests in the owners of the Property, insuring said buyer against the respective knowledge of Lexington and ________, as the owner of the property owners.

6.               Neither Indemnitors, nor any property owner, has done anything to create any unrecorded deeds, purchase agreements, leases, easements (other than customary agreements for utilities, cable, antennae, fiber optic and other similar service providers), options to purchase (except as provided in the leases), rights of first refusal (except as set forth in the leases),

  
  

mortgages, deeds of trust, judgments, liens, encumbrances in any Property whatsoever, except (b) as shown on the title commitments issued by Title Company or as may have been omitted by the Title Company from any prior title commitment sent by the Title Company to Indemnitors , or (c) as otherwise set forth in this Owner’s Affidavit. No tenant has a right of first refusal or right of first offer in connection with the sale of the interests contemplated by this transaction.

7.               This affidavit is made for the purposes of inducing the Title Company to issue their policies of title insurance with respect to the Property without exception to mechanic liens, interests not shown in the property records, and rights of parties in possession, and with the aforementioned non-imputation endorsement. Whenever the context so requires, the singular number includes the plural and the masculine includes the feminine. Any reference in this Affidavit to the “Company” shall not include any agent of the Company or any lessee of the Property, or any successor thereof, or any subtenant or assignee of any such lessee or successor.

{REMAINDER OF PAGE LEFT INTENTIONALLY BLANK}

  
  

SIGNATURE PAGE TO OWNER’S AFFIDAVIT

  LXP Industrial Trust
     
     
  By:  
        Name: Joseph Bonventre
        Title: Executive Vice President
     
     
  ______________________
     
  By: __________, its __________
     
    By:    
    Name:
    Title:

Sworn to and subscribed to

before me this ___ day of ______ 2021.

_____________________

Notary Public

  
  

EXHIBIT A

Entities

Entities owned by.

Entities owned by LXP Industrial Trust

  
  

Schedule 1

  
  

Schedule 2

  
  

Exhibit D

FORM OF PARTNERSHIP AGREEMENT

[separately filed]

  
  

Exhibit E

Tax Free Exchange Acknowledgment and Consent

NOTICE OF ASSIGNMENT TO PURCHASER

You are hereby notified that all of Taxpayer’s right, title, and interest (but not its obligations) in and to the Relinquished Property Contract have been assigned to Qualified Intermediary, under the Exchange Agreement between Taxpayer and Qualified Intermediary.

Purchaser acknowledgement

NNN MFG Cold JV L.P., a Delaware limited partnership

By: LXPDK II GP LLC, a Delaware limited liability company, its general partner
By: LXP Manager Corp., a Delaware corporation, its manager

By: _____________________________
Its: _________________________

NNN MFG Cold Holdco L.P., a Delaware limited partnership

By: NNN MFG Cold Holdco GP LLC, a Delaware limited liability company, its general partner
By: NNN MFG Cold JV L.P., a Delaware limited partnership, the sole member
By: LXPDK II GP LLC, a Delaware limited liability company, its general partner
By: LXP Manager Corp., a Delaware corporation, its manager

By: _____________________________
Its: _________________________

  
  

Exhibit F-1

form of amended and restated subsidiary llc agreement

[Omitted]

  
  

Exhibit F-2

form of amended and restated subsidiary lp agreement

[Omitted]

  
  

Exhibit F-3

form of holdco gp llc agreement

[Omitted]

  
  

Exhibit F-4

form of holdco lp agreement

[Omitted]

EX-10.2 3 exh10-2.htm LIMITED PARTNERSHIP AGREEMENT OF NNN MFG COLD JV L.P., DATED AS OF DECEMBER 29, 2021

Exhibit 10.2

EXECUTION VERSION




LIMITED PARTNERSHIP AGREEMENT


OF



NNN MFG COLD JV L.P.

A DELAWARE LIMITED PARTNERSHIP


DATED AS OF DECEMBER 29, 2021


  
  

Table of Contents

Page

Section 1. Definitions 1
Section 2. Organization of the Partnership 23
2.1 Name 23
2.2 Place of Registered Office; Registered Agent 23
2.3 Principal Office 23
2.4 Filings 23
2.5 Term 23
2.6 Expenses of the Partnership; Reimbursement 24
2.7 Purchase Agreement 24
Section 3. Purpose; Powers 24
Section 4. Capital Contributions, Percentage Interests and Capital Accounts 24
4.1 Initial Capital Contributions; Tax Characterization. 24
4.2 Additional Capital Contributions 25
4.3 Percentage Interest 28
4.4 Return of Capital Contribution 28
4.5 No Interest on Capital 28
4.6 Capital Accounts 28
4.7 New Partners 29
4.8 Capital Contributions by LXP Partners 29
4.9 Credit Support 29
Section 5. Distributions 30
5.1 Distribution of Distributable Funds 30
5.2 Distributions for Indemnities and Shortfall Loans 32
Section 6. Allocations. 33
6.1 Allocation of Net Income and Net Loss 33
6.2 Mandatory Allocations 33
6.3 U.S. Tax Allocations 35
6.4 Withholding 35
Section 7. Books, Records, Tax Matters and Bank Accounts 36
7.1 Books and Records 36
7.2 Reports and Financial Statements 36

  
  

Table of Contents

(continued)

Page

7.3 Tax Matters. 37
7.4 Bank Accounts 38
7.5 Tax Returns 38
7.6 Tax Status 38
7.7 754 Election 38
Section 8. Management and Operations 39
8.1 Management 39
8.2 Asset Management and Property Level Services and Fees 42
8.3 Annual Business Plan; Annual Budget 44
8.4 Implementation of Annual Business Plan 45
8.5 Other Activities; Duties 45
8.6 Limitation on Actions of Partners; Binding Authority 45
8.7 Foreign Corrupt Practices Act 46
8.8 Prohibited Persons, Patriot Act and Anti-Money Laundering 46
8.9 Proposed Property Acquisitions. 47
Section 9. Confidentiality 54
Section 10. Representations and Warranties; REIT Provisions. 56
10.1 Representations and Warranties 56
10.2 REIT Provisions 58
Section 11. Sale, Assignment, Transfer or Other Disposition. 59
11.1 Prohibited Transfers 59
11.2 Permitted Transfers 59
11.3 Admission of Transferee 60
11.4 Withdrawals 60
11.5 Sale of Property or Partner’s Interest with Right of First Offer 61
11.6 Buy-Sell 65
11.7 Option Events. 70
Section 12. Dissolution. 71
12.1 Limitations 71
12.2 Exclusive Events Requiring Dissolution 71
12.3 Liquidation 71

 ii 
  

Table of Contents

(continued)

Page

12.4 Certificate of Cancellation 72
12.5 Continuation of the Partnership 72
Section 13. Indemnification. 73
13.1 Exculpation 73
13.2 Indemnification by the Partnership 73
13.3 Credit Support Indemnification 73
13.4 Survival 75
Section 14. Miscellaneous 75
14.1 Notices 75
14.2 Governing Law 76
14.3 Successors 77
14.4 Interpretation 77
14.5 Severability 77
14.6 Counterparts 77
14.7 Entire Agreement 77
14.8 Amendment 78
14.9 Further Assurances 78
14.10 Time 78
14.11 No Third-Party Rights 78
14.12 Incorporation by Reference 78
14.13 Limitation on Liability 78
14.14 Attorneys’ Fees 78
14.15 Remedies Cumulative 79
14.16 No Waiver 79
14.17 Limitation on Use of Names 79
14.18 Publicly Traded Partnership Provision 79
14.19 Press Releases 79
14.20 No Construction Against Drafter 79
14.21 Good Faith Negotiations 79
14.22 Approvals 80
14.23 Binding Agreement 80

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Table of Contents

(continued)

Page

Section 15. Insurance 80
Section 16. Title 80
16.1 Title Policies 80
16.2 Partnership and Partner Claims Under Owner’s Title Policies 80
16.3 Recoveries under Owner’s Title Policies 81
16.4 Indemnification 81
16.5 Survival and Third Party Beneficiaries 81

Exhibit A Properties
Exhibit B Major Decisions
Exhibit C Reports
Exhibit D Credit Support as of the Effective Date
Exhibit E-1 LXP Guarantor Joinder
Exhibit E-2 DK Guarantor Joinder
Exhibit F Draft of Environmental Insurance Policy Endorsement

 iv 
  

LIMITED PARTNERSHIP AGREEMENT
OF
NNN MFG COLD JV L.P.

This LIMITED PARTNERSHIP AGREEMENT OF NNN MFG COLD JV L.P. (as amended from time to time in accordance herewith, this “Agreement”) is made and entered into and is effective as of December 29, 2021 (the “Effective Date”) by and among LX JV Investor II LLC, a Delaware limited liability company (“Investor Partner”), and LXP MFG C L.P., a Delaware limited partnership (“LXP LP”), each as a limited partner of the Partnership, and LXPDK II GP LLC, a Delaware limited liability company (“LXP GP”), as general partner of the Partnership. Capitalized terms used herein shall have the meanings ascribed to such terms in this Agreement.

W I T N E S S E T H:

WHEREAS, NNN MFG Cold JV L.P., a Delaware limited partnership (the “Partnership”), was formed on October 28, 2021, pursuant to and in accordance with the Act;

WHEREAS, LXP GP is the only general partner of the Partnership, and Investor Partner and LXP LP are the only limited partners of the Partnership, in each case as of the Effective Date; and

WHEREAS, Investor Partner, LXP LP and LXP GP desire to participate in the Partnership for the purposes described herein.

NOW, THEREFORE, in consideration of the agreements and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Partners agree as follows:

Section 1.                Definitions. As used in this Agreement:

Acquisition Costs” is defined in Section 8.9(f).

Acquisition Fee” is defined in Section 8.9(g).

Act” means the Delaware Revised Uniform Limited Partnership Act (6 Del. C. § 17 101, et seq.), as amended and in effect as of the date of determination.

Additional Capital Call” is defined in Section 4.2(a).

Additional Capital Contributions” is defined in Section 4.2(a).

Adjusted Capital Account Deficit” means, with respect to any Partner, the deficit balance, if any, in such Partner’s Capital Account as of the end of the applicable Fiscal Year after (i) crediting such Capital Account with any amounts that such Partner is deemed to be obligated to restore pursuant to sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, and (ii) debiting such Capital Account by the amount of the items described in sections 1.704- 1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations. The foregoing definition of Adjusted Capital Account Deficit is

 1 
  

intended to comply with the provisions of section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.

Advance Contribution” is defined in Section 4.2(b).

Advance Contributor” is defined in Section 4.2(b).

Affiliate” means, as to any specified Person, any other Person that directly or indirectly Controls, is Controlled by, or is under Common Control with such first Person. No Partner or its Affiliates, on the one hand, shall be deemed to be an Affiliate of the Partnership or its Subsidiaries, on the other hand, or vice versa, solely for the purposes of the use of the term Affiliate herein. With respect to any Loan or Lease, the General Partner shall be considered an Affiliate of the Partnership.

Agreed Upon Value” means with respect to any real property or personal property contributed by a Partner to the Partnership in accordance herewith, the fair market value thereof (net of liabilities secured by such property that the Partnership assumes or takes subject to) in an amount determined by General Partner using such reasonable method of valuation as it may adopt and as Approved by the Non-GP Partners.

Agreement” is defined in the preamble hereof.

Annual Budget” means an annual budget for the Partnership in the aggregate and for each Property on an individual basis.

Annual Business Plan” means an annual business plan, including the Annual Budget, for the Partnership in the aggregate and for each Property on an individual basis.

Anti-Corruption Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which the Partnership or any Subsidiary of the Partnership is located or doing business.

Anti-Money Laundering Laws” means any applicable laws pertaining to anti-money laundering or terrorism financing, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including those arising under the Bank Secrecy Act of 1970, all as amended and in effect as of the date of determination.

Appraisal” is defined in Section 8.1(b).

Approve” (and any reasonable variation thereof) means the prior written consent of a Partner or other applicable Person to the matter presented, which, in the case of the Partners and their respective Affiliates, shall be in accordance with Section 14.22.

Approved Annual Budget” means, as of the date of determination, the Annual Budget included in the Approved Annual Business Plan.

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Approved Annual Business Plan” means, as of the date of determination, the then-current Annual Business Plan, as and to the extent Approved (or deemed Approved) in accordance herewith.

Approved Property” is defined in Section 8.9(f).

Approved Property Capital Commitment” means, with respect to each Partner, such Partner’s Percentage Interest multiplied by $250,000,000, as such amount may be amended or modified from time to time upon the unanimous approval of the Partners. Any payment of the Acquisition Fee shall neither increase nor decrease a Partner’s Approved Property Capital Commitment. Each Partner’s Approved Property Capital Commitment shall be reduced by all Additional Capital Contributions made by such Partner to fund (i) the Acquisition Costs of any Approved Property or (ii) the Expansion of any Portfolio Property.

Approved Property Capital Contributions” means, with respect to any Partner with respect to an Approved Property, the aggregate Capital Contributions (including all Capital Contributions made with respect to Acquisition Costs) contributed by such Partner to the Partnership with respect to such Approved Property, including any Capital Contributions made by such Partner with respect to Partnership Expenses that are allocated by the General Partner to such Approved Property.

Approved Property Pool #1” means all of the Approved Properties acquired by the Partnership or any Subsidiary after the Effective Date until the Approved Property Capital Contributions made by the Partners hereunder equals the greater of (i) $125,000,000.00 and (ii) the aggregate amount of Approved Property Capital Contributions made by the Partners upon the acquisition of the Approved Property that causes Approved Property Capital Contributions to first exceed $125,000,000.00 (such amount, the “Approved Property Pool #1 Threshold”).

Approved Property Pool #2” means all of the Approved Properties acquired by the Partnership or any Subsidiary after the Partners have made Approved Property Capital Contributions equal to the Approved Property Pool #1 Threshold.

Approved Property Pool #1 Distributable Funds” means, with respect to any applicable period, an amount equal to the Cash Flow for such period relating to all Approved Properties in the Approved Property Pool #1 (including deduction for each such Approved Property’s allocable share of Partnership Expenses, as reasonably determined by the General Partner), reduced by reserves of the Partnership for anticipated capital expenditures, future working capital needs and operating expenses, contingent obligations and other purposes relating to such Approved Properties in the Approved Property Pool #1, the amounts of which shall be reasonably determined from time to time by General Partner. For the avoidance of doubt, for purposes of the foregoing the reserves of the Partnership shall be determined on a consolidated basis with any Subsidiaries with an interest in such Approved Properties (to the extent of the Partnership’s direct and indirect interests therein).

Approved Property Pool #1 Distributions” means, with respect to any Approved Property in the Approved Property Pool #1, Distributions of Approved Property Pool #1 Distributable Funds made to a Partner.

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Approved Property Pool #2 Distributable Funds” means, with respect to any applicable period, an amount equal to the Cash Flow for such period relating to all Approved Properties in the Approved Property Pool #2 (including deduction for each such Approved Property’s allocable share of Partnership Expenses, as reasonably determined by the General Partner), reduced by reserves of the Partnership for anticipated capital expenditures, future working capital needs and operating expenses, contingent obligations and other purposes relating to such Approved Properties in the Approved Property Pool #2, the amounts of which shall be reasonably determined from time to time by General Partner. For the avoidance of doubt, for purposes of the foregoing the reserves of the Partnership shall be determined on a consolidated basis with any Subsidiaries with an interest in such Approved Properties (to the extent of the Partnership’s direct and indirect interests therein).

Approved Property Pool #2 Distributions” means, with respect to any Approved Property in the Approved Property Pool #2, Distributions of Approved Property Pool #2 Distributable Funds made to a Partner.

Approved Property Preferred Return Amount” means, with respect to a Partner as of the date of determination, with respect to the Approved Properties in Approved Property Pool #1 or Approved Property Pool #2, as applicable, an aggregate amount, computed like interest at the rate of fifteen percent (15%) per annum, compounded quarterly, on the outstanding balance from time to time of such Partner’s Undistributed Approved Property Pool #1 Preferred Contributions and/or Undistributed Approved Property Pool #2 Preferred Contributions, as applicable, with respect to the Approved Properties in Approved Property Pool #1 or Approved Property Pool #2, as applicable, reduced by Approved Property Pool #1 Distributions and Approved Property Pool #2 Distributions, as applicable, with respect to such Approved Properties in Approved Property Pool #1 or Approved Property Pool #2, as applicable, made to such Partner since the Effective Date under Section 5.1(b)(1)(x) or Section 5.1(c)(1)(x).

Approved Property Purchase Agreement” is defined in Section 8.9(c).

Approved Proposed Property” is defined in Section 8.9(c).

Asset Management Fee” is defined in Section 8.2(b).

Bank of America Loan” is defined in Section 2.7.

Bankruptcy Code” means Title 11 of the United States Code or any other applicable bankruptcy or insolvency statute or similar law, all as amended and in effect as of the date of determination.

Bankruptcy/Dissolution Event” means, with respect to a Partner, (i) the entry of an Order for Relief under the Bankruptcy Code with respect to such Partner, (ii) the admission in writing by such Partner of its inability to pay its debts generally as they become due, (iii) the making by such Partner of an assignment for the benefit of creditors generally, (iv) the filing by such Partner of a petition in bankruptcy or a petition for relief under the Bankruptcy Code or any other applicable federal or state bankruptcy or insolvency statute or any similar law, (v) the filing of an involuntary petition under the Bankruptcy Code with respect to such Partner, provided that the same shall not have been vacated, set aside or stayed within ninety (90) days after filing, (vi) an

 4 
  

application by such Partner for the appointment of a trustee for the assets of such Partner, (vii) an involuntary petition seeking the liquidation, reorganization, arrangement or readjustment of such Partner’s debts under any other federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within ninety (90) days after filing, (viii) the imposition of a judicial or statutory lien on all or a substantial part of such Partner’s assets unless such lien is discharged or vacated or the enforcement thereof is stayed within sixty (60) days after its effective date, or (ix) a dissolution or liquidation of such Partner.

Broker” is defined in Section 8.2(a).

Business Day” means a day other than a Saturday, Sunday or holiday recognized by banks in the State of New York.

Buy-Sell” means a transaction under Section 11.6.

Buy-Sell Closing Date” is defined in Section 11.6(d).

Buy-Sell Notice” is defined in Section 11.6.

Buy-Sell Notice Check” is defined in Section 11.6(a)(3).

Capital Account” is defined in Section 4.6.

Capital Contribution” means, with respect to any Partner, the aggregate amount of cash, real property or personal property contributed by such Partner to the Partnership in accordance herewith; provided that no Shortfall Loan (or interest thereon) or payment to the Partnership by a Partner in respect of its indemnification, hold harmless and defense obligations hereunder shall constitute, or be deemed to constitute, a Capital Contribution. With respect to any real property or personal property contributed by a Partner to the capital of the Partnership in accordance herewith after the Effective Date, the amount of the Capital Contribution applicable to such contribution shall be equal to the Agreed Upon Value thereof.

Capital Demand Notice” is defined in Section 4.2(a).

Cash Flow” means, for any period for which Cash Flow is being calculated, gross cash receipts of the Partnership (but excluding Capital Contributions), less all sums expended by the Partnership, in each case during such period. For the avoidance of doubt, for purposes of the foregoing, the gross cash receipts and sums expended by the Partnership shall be determined on a consolidated basis with all Subsidiaries (to the extent of the Partnerships’ direct and indirect interests therein), determined on an aggregate basis with respect to (i) all Portfolio Properties, (ii) all Approved Properties in Approved Property Pool #1, and (iii) all Approved Properties in Approved Property Pool #2, as applicable; provided, that Partnership Expenses shall be allocated among the Properties as determined by the General Partner in its reasonable discretion.

Cause” means the occurrence of a For Cause Event.

Certificate” means the Certificate of Limited Partnership of the Partnership, as amended as of the date of determination.

 5 
  

‎“CFIUS” means the Committee on Foreign Investment in the United States.‎

Close Relative” means, with respect to any individual, such individual’s spouse, parents, spouse’s parents, grandparents, children, siblings, spouse’s siblings, first cousins and other close relations (e.g., where such relations are financially dependent on such individual).

Closing Costs” is defined in Section 8.9(f).

Code” means the Internal Revenue Code of 1986, including the corresponding provisions of any successor law, all as amended and in effect as of the date of determination.

Common Control” means that two or more Persons are Controlled by the same other Person.

Confidential Information” is defined in Section 9.

Consent Requirement” means a requirement to obtain the consent of any Person under an agreement with the Partnership or any Subsidiary (for the avoidance of doubt, including any Fee Owner), including the consent of any tenant or counterparty under a Lease or any Lender under any documents governing any Loan.

Contributing Partners” is defined in Section 4.2(c).

Contribution Deadline” is defined in Section 4.2(a).

Contribution Period” is defined in Section 4.2(a).

Control” (and any reasonable variation thereof) means, when used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. The possession, directly or indirectly, by another Person of a right to approve or consent to (or otherwise restrict) certain business or affairs of the specified Person through major decision rights or similar protective approval rights shall not, in and of itself, constitute or indicate Control, nor shall a Person be deemed not to possess Control solely because another Person possesses, directly or indirectly, such major decision rights or similar protective approval rights with respect to the specified Person.

Covered Person” is defined in Section 13.1.

Credit Support” is defined in Section 4.9.

Credit Support Indemnitee” is defined in Section 13.3.

Credit Support Indemnitor” is defined in Section 13.3.

Depreciation” means, for each Fiscal Year, an amount equal to the federal income tax depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such Fiscal Year, except that if the Gross Asset Value of an asset differs from its adjusted basis

 6 
  

for federal income tax purposes at the beginning of such Fiscal Year or other period, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deductions for such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by General Partner and Approved by the Non-GP Partners.

Disapproving Partner” is defined in Section 8.9(e).

Dissolution Event” is defined in Section 12.2.

Distributions” (and any reasonable variation thereof) means the distributions made to a Partner in accordance herewith.

DK Guarantor” is defined in Section 13.3(c).

DK Partner Group” means Investor Partner.

Dollars” is defined in Section 14.4.

Earnest Money” means any money deposited pursuant to an Approved Property Purchase Agreement with respect to any Proposed Property (or other asset to be acquired) that is, or upon the passage of time becomes, non-refundable to the Partnership or any Subsidiary.

Effective Date” is defined in the preamble hereof.

Emergency” means an event that reasonably requires immediate action in order to avert or mitigate (i) loss or impairment of life or personal injury at any Property, (ii) material damage to any Property, or (iii) the suspension of material utility service required for the operation of any Property.

Environmental Assessment” means, with respect to any Proposed Property, a phase one environmental site assessment performed in accordance with the then current ASTM Standard Practice for Environmental Site Assessments, E1527, by a qualified environmental consultant selected by the General Partner and, if required by the General Partner or the Investor Partner, any additional Phase II sampling, investigation, monitoring or other activities performed by a qualified environmental consultant.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended and in effect as of the date of determination.

Escrow Agent” means First American Title Insurance Company, 1380 17th Street, Denver, Colorado 80202, Attention: Jordan Dunn (or such other commercially reasonable escrow agent Approved by (i) the Initiating Partner and the Non-Initiating Partner (with respect to a Forced Sale or ROFO Sale) or (ii) the Offeror and the Offeree (with respect to a Buy-Sell)).

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Essex Ground Lease” means that certain Amended and Restated Ground Lease, dated as of January 15, 1985, between Essex Group, Inc., as lessor, and Newkirk Syrcar LLC (successor-by-conversion to Newkirk Syrcar L.P., successor-by-merger to Syrcar Associates Limited Partnership), as lessee, as the same has been amended, modified and/or supplemented.

Exercise Period” is defined in Section 11.5.

Expansion” is defined in Section 8.9(g).

Facilitating Payment” means a small value payment made to a Government Official to expedite or secure the performance of routine, or non-discretionary governmental action that is ordinarily and commonly performed by a Government Official.

Fee” means any fee payable to the General Partner or LRA (or any Affiliate or permitted assignee thereof) pursuant to this Agreement, including the Asset Management Fee, the Acquisition Fee and the property management fees and leasing fees described in Section 8.2(a) hereof.

Fee Owner” means any Subsidiary of the Partnership that owns fee title to, or a ground lease interest in, one (1) or more Properties.

Fiscal Year” means each calendar year ending December 31.

For Cause Event” means, with respect to a Partner, any of the following events, in each case except as may otherwise be Approved by any Partner in the Partner Group that does not include such Partner in their respective sole and absolute discretion:

(a)                any act or omission by such Partner with respect to the Partnership or any Subsidiary that constitutes fraud, gross negligence or willful misconduct;

(b)               the occurrence of a Bankruptcy/Dissolution Event with respect to such Partner; and

(c)                criminal misconduct by such Partner, its Affiliates or their respective employees with respect to the Partnership or a Subsidiary; provided that if such misconduct is committed (a) by an employee who is not a Vice President or more senior officer (or holds a comparable position) of such Partner or its Affiliates, and (b) without the actual prior knowledge, action or knowing involvement of any Vice President or more senior officer (or similar position) of such Partner or any of its Affiliates, such misconduct may be cured if, within thirty (30) days after being notified of such event, such Partner (i) permanently removes such employee from matters related to the Partnership and replaces such employee, (ii) makes full restitution to the Partnership and the other Partners of all losses (including reasonable attorneys’ fees) caused by, in connection with or arising out of such misconduct (less any portion of such losses that has been recovered from insurance held by or for the benefit of the Partnership or any Subsidiary, and excluding from such carve out all deductibles and self-retention amounts) and (iii) promptly takes all necessary or appropriate actions with respect to such misconduct to protect the interests of the Partnership.

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A Partner may contest whether a For Cause Event with respect to such Partner has occurred solely in the manner provided in Section 14.2, in which event the remedies hereunder applicable to such For Cause Event shall be stayed until resolution thereof in accordance with Section 14.2.

Forced Sale” is defined in Section 11.5.

Foreign Corrupt Practices Act” means the Foreign Corrupt Practices Act of the United States, 15 U.S.C. Sections 78a, 78m, 78dd-1, 78dd-2, 78dd-3, and 78ff, if applicable, or any similar law of any jurisdiction where one or more of the Properties are located or where the Partnership or any Subsidiary transacts business or any other jurisdiction, if applicable, all as amended and in effect as of the date of determination.

Fundamental Decision” means (i) any amendment, modification or termination of this Agreement, except for amendments or modifications that would not materially and disproportionately (as compared to the other Partners) diminish the rights or increase the obligations of a Partner, and only to the extent such amendments or modifications are necessary to reflect (A) the admission of any Partner in accordance with the terms of this Agreement, or (B) any other actions contemplated by this Agreement; (ii) dissolving, terminating or winding up the Partnership; (iii) taking any action that would require any Impacted Partner or one or more Affiliates of any Impacted Partner to provide any Credit Support (for the avoidance of doubt, without limiting any Credit Support provided prior to the date of the applicable For Cause Event), (iv) a merger or recapitalization of the Partnership or any of the Subsidiary(ies) (i.e., any action described in item (vi)(a) of Exhibit B), provided, for the avoidance of doubt, that the term “recapitalization” as used in this clause (iv) shall not include any action described in item (vii) of Exhibit B), (v) except as otherwise provided in Sections 8.1(c)(i) and 11.2, the admission of a Partner, (vi) taking any action described in items (i), (v), (x), (xiv) and (xviii) of Exhibit B, (vii) Approvals contemplated under the definitions of For Cause Event and Gross Asset Value and under Sections 4.2(d), 4.4, 7.6, 8.1(c)(i), 8.5, 8.6, 11.1, 11.5, 11.6, 13.3(c), 14.17, 14.19, 14.21 and 16.2, and (viii) taking any action materially inconsistent with Section 3.

Fundamental Transaction” means (a)(i) the transfer, exchange or issuance of shares in any Person that holds direct or indirect interests in a Partner and in which Person shares are publicly traded immediately prior to the consummation of such transfer or issuance of shares, (ii) the consolidation, merger or similar transaction involving all or substantially all of the interests of any such Person or (iii) any other transfer, sale or disposal of all or substantially all of the assets of any direct or indirect owner of the General Partner, or of all or substantially all of the beneficial interests in the General Partner, in each case, that results in a change of Control of such Partner, other than (A) any such transaction where LXP’s outstanding voting shares are not changed or exchanged at all (except to the extent necessary to reflect a change in LXP’s jurisdiction of formation), or (B) where (1) LXP’s outstanding voting shares are changed into or exchanged for cash, securities and other property (other than equity interests of the surviving corporation) and (2) LXP’s shareholders immediately before such transaction own, directly or indirectly, immediately following such transaction, more than fifty percent (50%) of the total outstanding voting stock of the surviving corporation, (b) any transaction pursuant to which a majority of the board of trustees of LXP is removed or replaced, such that, following such removal or replacement, the decision-making authority of such board of trustees rests with its new trustees, or (c) any liquidation or dissolution, or adoption of a plan of liquidation or dissolution, with respect to LXP.

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General Partner” means LXP GP, unless and until LXP GP is replaced as General Partner pursuant to and in accordance with this Agreement (after which such replacement shall be General Partner).

Government Official” means anyone working in an official capacity for a government, government agency or instrumentality (including employees of government owned or controlled companies), public international organization or political party or any officer thereof or any candidate for office in any jurisdiction.

GP Managed Properties” is defined in Section 8.2(b).

GP Subsidiary” means any Subsidiary of the Partnership that acts as the general partner of a Fee Owner that is a limited partnership.

Gross Asset Value” means, with respect to any asset of the Partnership, such asset’s adjusted basis for federal income tax purposes, except as follows or as otherwise specifically provided herein:

(a)                the initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset at the time of contribution as determined by General Partner using such reasonable method of valuation as it may adopt and as Approved by the Partners;

(b)               in the discretion of General Partner, the Gross Asset Values of any assets of the Partnership shall be adjusted to equal their respective gross fair market values, as reasonably determined by General Partner, at the times specified in section 1.704-1(b)(2)(iv)(f) of the Regulations or at such other times as may be permitted by the Regulations;

(c)                any adjustments to the adjusted basis of the Partnership assets pursuant to section 734 or 743 of the Code shall be taken into account in determining such asset’s Gross Asset Value in a manner consistent with section 1.704-1(b)(2)(iv)(m) of the Regulations;

(d)               the Gross Asset Values of any Partnership assets Distributed to any Partner shall be the gross fair market values of such assets as reasonably determined by General Partner and Approved by the Non-GP Partners as of the date of Distribution; and

(e)                if the Gross Asset Values of any Partnership assets have been determined pursuant to clause (a), (b) or (c) of this definition, such Gross Asset Values shall thereafter be adjusted for Depreciation with respect to such assets for purposes of computing Net Income and Net Loss.

Gross Collections” means the entire amount of all Property receipts, determined on a cash basis (without duplication and determined on a consistent basis with prior periods), from (i) tenant rentals and other sums collected pursuant to Leases (excluding security deposits relating to the Property) and other amounts collected for rental of the Property, including parking income, parking fees, facility fees and similar amounts, (ii) amounts collected from tenants or

 10 
  

counterparties pursuant to Leases as tax, insurance, common area maintenance or other reimbursements, (iii) proceeds from rental loss or business interruption insurance, (iv) any sums and charges collected in connection with termination of the Leases or settlement of rent claims, and (v) other miscellaneous income.

Guarantor” means either DK Guarantor or LXP Guarantor.

Holdco Subsidiaries” means, collectively, NNN MFG Cold Holdco L.P., a Delaware limited partnership, and NNN MFG Cold Holdco GP LLC, a Delaware limited liability company.

Impacted Partner” is defined in Section 8.1(c)(ii).

Income” means the gross income of the Partnership for any month, Fiscal Year or other period, as applicable, including gains realized on the sale, exchange or other disposition of the Partnership’s assets.

Indemnified Party” is defined in Section 13.3(b).

Indemnifying Party” is defined in Section 13.3(b).

Initial Capital Contribution” is defined in Section 4.1(a).

Initiating Partner” is defined in Section 11.5.

Initial Value” means, with respect to any asset of the Partnership (or Subsidiary of the Partnership), the gross fair market value of such asset at the time of contribution or acquisition as determined by General Partner using such reasonable method of valuation as it may adopt and as Approved by the Partners; provided, that, (i) with respect to each of the Portfolio Properties, the Initial Value shall be as set forth in the Purchase Agreement, and (ii) with respect to any acquired Approved Property, the Initial Value shall be the Acquisition Costs for such Property.

Intentional Withholding Claim” is defined in Section 16.2.

Interest” means, with respect to a Partner, the entire interest of such Partner in the Partnership as of the date of determination, including the right of such Partner to any and all of the benefits to which such Partner may be entitled as provided in this Agreement and the Act, together with the obligations of such Partner to comply with all of the terms and provisions of this Agreement.

Internal Rate of Return” means the annual percentage rate that causes the present value of the aggregate (i) Portfolio Distributions to a Partner to equal the present value of such Partner’s aggregate Portfolio Capital Contributions, or (ii) Approved Property Distributions with respect to Approved Property Pool #1 or Approved Property Pool #2, as applicable, to a Partner to equal the present value of such Partner’s aggregate Approved Property Capital Contributions with respect to such Approved Property pool; provided, however, that for purposes of the Internal Rate of Return, (x) Capital Contributions that constitute Preferred Contributions and (y) Distributions under Section 5.1(a)(1), Section 5.1(b)(1) or Section 5.1(c)(1) shall, in each case, be excluded.

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The Internal Rate of Return shall be calculated using the “XIRR” spreadsheet function in Microsoft Excel, where values are an array of values with Portfolio Capital Contributions or Approved Property Capital Contributions, as applicable, being negative values and Portfolio Distributions or Approved Property Distributions, as applicable, being positive values and the corresponding dates in the array being the actual dates that Portfolio Capital Contributions, Approved Property Capital Contributions, Portfolio Distributions and Approved Property Distributions, as applicable, were made.

Investor Partner” is defined in the preamble hereof, and includes its successors and permitted assigns hereunder.

LCIF” is defined in Section 16.1.

Lease” means any lease, license or other written agreement for the use or occupancy of all or any portion of any Property, including any such agreement relating to any antennae or satellite or condominium interest.

Lender” means the lender or lenders under any Loan.

Limited Partner” means any Person that is as of the date of determination a limited partner of the Partnership and shown as such on the books and records of the Partnership in its capacity as a limited partner of the Partnership. For purposes of the Act, the Limited Partners shall constitute a single class, series or group of limited partners of the Partnership. As of the Effective Date, the Limited Partners are Investor Partner and LXP LP.

Liquidity” means, with respect to each Guarantor, as of a given date, (a) amounts that are available to be drawn upon demand by such Guarantor pursuant to a line of credit to which such Guarantor is a party, which line of credit is (i) from an institutional lender that is not subject to a bankruptcy or similar proceeding and (ii) not in default or imminent default, (b) an amount equal to one hundred percent (100%) of (i) uncalled capital commitments of such Guarantor’s investors to such Guarantor, plus distributions to such Guarantor’s investors by such Guarantor which distributions may be subject to recall, to the extent such capital commitments and/or recallable distributions are (A) payable in cash and (B) readily available to be called or recalled by such Guarantor without restriction or any other condition at any time and from time to time other than notice, less (ii) any amounts then outstanding under any lines of credit of such Guarantor secured by any such uncalled capital commitments or recallable distributions; provided further that all uncalled capital commitments or recallable distributions must be from (or recallable from) an investor that is not subject to a bankruptcy or similar proceeding and (c) all unrestricted (i) cash and (ii) any of the following: (A) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by an agency thereof and backed by the full faith and credit of the United States; (B) marketable direct obligations issued by any state or territory of the United States of America or any political subdivision of any such state or territory or any public instrumentality thereof which, at the time of acquisition, has a long term unsecured debt rating of not less than “BBB” by Standard & Poor’s Corporation, “BBB” by Fitch Investors and “Baa2” by Moody’s Investors Service, Inc., and is not listed for possible down-grade in any publication of any of the foregoing rating services; (C) domestic certificates of deposit or domestic time deposits or repurchase agreements issued by any commercial bank organized under the laws

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of the United States of America or any state thereof or the District of Columbia having a long term unsecured debt rating of not less than “BBB” by Standard & Poor’s Corporation, “BBB” by Fitch Investors and “Baa2” by Moody’s Investors Service, Inc., and not listed for possible down-grade in any publication of any of the foregoing rating services; (D) money market funds having assets under management in excess of $500,000,000; (E) any stock, shares, certificates, bonds, debentures, notes or other instrument which constitutes a “security” under the Securities Act (other than securities of any Partner or any Partner’s Affiliate) which are freely tradable on any nationally recognized securities exchange or otherwise readily marketable and liquid; (F) amounts available under lines of credit of such Guarantor; and/or (G) obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause (G) (1) must have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (2) if rated by Standard & Poor’s Corporation, must not have any qualifier affixed to their rating, (3) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, (4) must not be subject to liquidation prior to their maturity and (5) must have maturities of not more than 365 days.

Loan” means any loan to the Partnership or its Subsidiaries that is outstanding as of the date of determination.

Lock-Out Date” means the date that is three (3) years following the Effective Date.

Loss” means the aggregate of losses, deductions and expenses of the Partnership for any month, Fiscal Year or other period, as applicable, including losses realized on the sale, exchange or other disposition of the Partnership’s assets.

LRA” means Lexington Realty Advisors, Inc., a Delaware corporation and an Affiliate of LXP and LXP GP.

LXP” is defined in Section 10.2.

LXP GP” is defined in the preamble hereof, and includes its successors and permitted assigns hereunder (but, for the avoidance of doubt, not including a Replacement General Partner).

LXP Guarantor” is defined in Section 13.3(c).

LXP LP” is defined in the preamble hereof, and includes its successors and permitted assigns hereunder.

LXP Partner Group” means the LXP Partners.

LXP Partners” means, individually or collectively as the context requires, LXP LP and LXP GP.

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Major Decisions” is defined in Section 8.1(a).

Management Internalization Event” means the acquisition by the Partnership and its Subsidiaries of Properties (including the Portfolio Properties) with an aggregate Initial Value of at least One Billion Two Hundred Fifty Million and No/100 Dollars ($1,250,000,000.00).

Material Changes” is defined in Section 8.9(c).

ML Claim” is defined in Section 16.2.

Negotiation Period” is defined in Section 14.21.

Negotiation Notice” is defined in Section 14.21.

Net Income” and “Net Loss” mean, respectively, for each Fiscal Year or other period, the Partnership’s taxable income or loss for such Fiscal Year or other period, determined in accordance with section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to section 703(a)(1) of the Code shall be included in taxable income or loss), adjusted as follows:

(a)                any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss shall be added to such taxable income or loss;

(b)               in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period;

(c)                any items that are specially allocated pursuant to Section 6.2 shall not be taken into account in computing Net Income or Net Loss;

(d)               any expenditures of the Partnership described in section 705(a)(2)(B) of the Code (or treated as such under section 1.704-1(b)(2)(iv)(i) of the Regulations) and not otherwise taken into account in computing Net Income or Net Loss shall be deducted from such taxable income or loss;

(e)                in the event the Gross Asset Value of any Partnership asset is adjusted in accordance with clause (b) or (c) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Loss;

(f)                gain or loss resulting from any disposition of any Partnership asset with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the asset disposed of, notwithstanding the fact that the adjusted tax basis of such asset differs from its Gross Asset Value; and

(g)               an allocation of the Partnership’s Net Income or Net Loss to a Partner shall be treated as an allocation to such Partner of the same share of each item of income, gain,

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loss and deduction that has been taken into account in computing such Net Income or Net Loss except as otherwise required by law.

Net Operating Income” means the amount by which Gross Collections exceed Operating Costs (without regard to amounts incurred for interest or other payments under monetary obligations, income taxes or reserves).

Net Worth” means, with respect to each Guarantor, as of a given date (exclusive of the value of such Guarantor’s indirect interest in the assets of the Partnership), the sum of (a) all amounts that would be included under net assets (the result of total assets minus total liabilities) on the consolidated statement of net assets of such Guarantor and its consolidated subsidiaries at such date, determined pursuant to the fair value basis of accounting in conformity with GAAP, including, without limitation, with respect to such Guarantor and its consolidated subsidiaries, one hundred percent (100%) of the amount of (i) uncalled capital commitments of such Guarantor’s investors to such Guarantor, all distributions to such Guarantor’s investors by such Guarantor which may be subject to recall, and all lines of credit available to such Guarantor, which capital commitments, recallable distributions or lines of credit are (A) payable in cash and (B) readily available to be called or recalled by such Guarantor without restriction or any other condition at any time and from time to time other than notice, less (ii) any amounts then outstanding under any lines of credit of Guarantor secured by any such uncalled capital commitments or recallable distributions; provided further that all uncalled capital commitments and recallable distributions must be from (or recallable from) an investor that is not subject to a bankruptcy or similar proceeding.

NLSAF” is defined in Section 16.1.

Non-Contributing Partner” is defined in Section 4.2(c).

Non-GP Partner” means all of the Partners other than General Partner.

Non-Initiating Partner” is defined in Section 11.5.

Non-Initiating Partner Group” is defined in Section 11.5.

Non-Recourse Guaranty” means any customary non-recourse carve-out guaranty required by a Lender in connection with a Loan.

Nonrecourse Deduction” has the meaning given such term in section 1.704-2(b)(1) of the Regulations.

Nonrecourse Liability” has the meaning given such term in section 1.704-2(b)(3) of the Regulations.

Notice” is defined in Section 14.1.

OFAC” means the United States Treasury’s Office of Foreign Assets Control.

Offer Notice” is defined in Section 11.5.

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Offeree” is defined in Section 11.6.

Offeree Notice” is defined in Section 11.6(c).

Offeree Notice Check” is defined in Section 11.6(c).

Offeror” is defined in Section 11.6.

Operating Costs” means, with respect to each Fiscal Year, the sum of (without duplication and determined on a consistent basis with prior periods): (i) all cash expenditures of the Partnership for costs and expenses, including: payments of interest or other monetary obligations; accounting, legal and auditing fees; taxes payable by the Partnership (to the extent not attributable to a particular Partner); public or private utility charges; sales, use, payroll taxes and withholding taxes related thereto (to the extent not attributable to a particular Partner); and all other advertising, management, leasing, government approval and other operating costs and expenses actually paid by the Partnership during such Fiscal Year; plus (ii) such reserves established from time to time in respect of such Fiscal Year in accordance with the Approved Annual Budget or as otherwise reasonably determined by General Partner for Partnership expenditures.

Option Event” means a Forced Sale, a ROFO Sale or a Buy-Sell.

Option Notice” means an Offer Notice or a Buy-Sell Notice.

Owner’s Affidavit” is defined in Section 16.1.

Owner’s Title Policies” is defined in Section 16.1.

Partner” and “Partners” means, individually or collectively as the context requires, Investor Partner, LXP LP, LXP GP and any other Person admitted to the Partnership pursuant to this Agreement.

Partner Group” means, individually or collectively as the context requires, DK Partner Group or LXP Partner Group.

Partner in Question” is defined in Section 14.13.

Partner Minimum Gain” has the meaning given the term “partner nonrecourse debt minimum gain” as defined in section 1.704-2(i)(2) of the Regulations.

Partner Nonrecourse Debt” has the meaning given the term “partner nonrecourse debt” in section 1.704-2(b)(4) of the Regulations.

Partner Nonrecourse Deductions” has the meaning given the term “partner nonrecourse deductions” in section 1.704-2(i) of the Regulations.

Partnership” is defined in the Recitals.

Partnership Audit Procedures” means Subchapter C of Chapter 63 of Subtitle F of the Code, as modified by section 1101 of the Bipartisan Budget Act of 2015, Public Law

 16 
  

Number 114-74 and any successor statute thereto or Regulations promulgated or official guidance issued thereunder (or any comparable provision of foreign, state or local income tax laws, and any corresponding or similar provision of any succeeding income tax law).

Partnership Expenses” means, with respect to each Fiscal Year or other applicable period, (i) all cash expenditures of the Partnership for Partnership costs and expenses, including the Asset Management Fee and other Operating Costs, and (ii) such reserves established from time to time in respect of such Fiscal Year or other period in accordance with the Approved Annual Budget or as otherwise reasonably determined by General Partner for Partnership expenditures, in each case, to the extent that such expenditures or reserves relate to obligations, costs or expenses of the Partnership not properly allocable to any particular Property or Properties. Partnership Expenses shall be allocated among Portfolio Properties and Approved Properties as determined by the General Partner in its reasonable discretion, taking into account the actual cost of the Properties, the period of time during which the Properties have been held during the subject allocation period, and the amount of time the General Partner (and its Affiliates) devote to the various Properties during the subject allocation period.

Partnership Minimum Gain” has the meaning given the term “partnership minimum gain” in sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.

Partnership Representative” is defined in Section 7.3(a).

Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56 and the regulations issued thereunder, all as amended and in effect as of the date of determination.

Percentage Interest” means, with respect to a Partner, the number, expressed as a percentage, determined by dividing the aggregate amount of such Partner’s Capital Contributions by the aggregate amount of all Partners’ Capital Contributions. For purposes of calculating the foregoing, Capital Contributions that constitute Preferred Contributions or amounts contributed to satisfy any obligation to pay Acquisition Fees shall be excluded from the determination of Percentage Interest. A Partner’s “Percentage Interest” of an amount or liability means such amount, or the amount of such liability, as the case may be, multiplied by such Partner’s Percentage Interest.

Performance Standard” means the standard of care required of prudent and experienced third-party asset managers in accordance with customary industry standards performing similar functions with respect to similar investments as those made by the Partnership in accordance herewith, subject in all cases to the availability of Partnership funds.

Permitted Expenses” means: (i) with respect to each line item in the Approved Annual Budget (for the avoidance of doubt, for any line item for the Partnership in the aggregate and for any line item for a Property on an individual basis), any expenditure that, together with all Permitted Expenses that the Partnership has made in respect of such line item in the same Fiscal Year (excluding any such Permitted Expenses that a third party or insurer has reimbursed), would not exceed the greater of (A) an amount equal to one hundred five percent (105%) of the amount of such line item or (B) Twenty Thousand Dollars ($20,000); (ii) expenditures that General Partner

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determines in accordance with the Performance Standard are necessary in order to avoid or mitigate an Emergency; (iii) expenditures for any other obligation of the Partnership or its Subsidiaries Approved by all of the Partners in their respective sole and absolute discretion, including pursuit or acquisition costs for any Approved Property (for the avoidance of doubt, subject to Section 8.1(c)(ii)); (iv) amounts due and payable by the Partnership in respect of the Partnership’s indemnification obligations under Section 13.2; (v) amounts necessary to pay judgments or liens against the Partnership, any of the Properties or any of the Subsidiaries that, in each case, (A) together with all Permitted Expenses that the Partnership has made in respect of this clause (v) in the same Fiscal Year (excluding any such Permitted Expenses that a third party or insurer has reimbursed), would not exceed Five Hundred Thousand Dollars ($500,000), and (B) have been fully adjudicated; (vi) all reasonable and customary costs and expenses of any third party retained in connection with the operation of the Properties and the Partnership or Subsidiary(ies) (so long as such third party was not retained in violation of this Agreement); (vii) all costs and expenses due and payable under, or required by, any Lease, Loan or other document or instrument affecting a Property (so long as the relevant instruments or agreements (including any amendments thereto) were not entered into in violation of this Agreement); (viii) any reasonable costs or expenses incurred in implementing a Major Decision (not including any Partner’s overhead or employee costs), provided that all of the Partners have Approved such Major Decision (for the avoidance of doubt, subject to Section 8.1(c)(ii)), to the extent such costs and expenses are not otherwise already included in the Approved Annual Business Plan; (ix) reasonable costs and expenses incurred in connection with the formation, organization and/or initial capitalization of the Partnership or Subsidiary(ies), not including any Partner’s overhead or employee costs; (x) amounts for real estate or personal property taxes for any Property; and (xi) other costs and expenses of the Partnership expressly set forth in this Agreement.

Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other legal entity.

‎“Physical Inspection Report” means a report prepared by a qualified ‎independent third party engineer, architect or other real estate inspector selected by the General ‎Partner concerning the physical condition of any Proposed Property.‎

Portfolio Capital Contributions” means, with respect to any Partner, the aggregate Capital Contributions contributed by such Partner to the Partnership with respect to the Portfolio Properties (i.e., all Capital Contributions other than Approved Property Capital Contributions), including any Capital Contributions made by such Partner with respect to Partnership Expenses that are allocated by the General Partner to the Portfolio Properties.

Portfolio Distributable Funds” means, with respect to any applicable period, an amount equal to the Cash Flow for such period relating to the Portfolio Properties (including deduction for the Portfolio Properties’ allocable portion of Partnership Expenses), reduced by reserves of the Partnership for anticipated capital expenditures, future working capital needs and operating expenses, contingent obligations and other purposes relating to the Portfolio Properties, the amounts of which shall be reasonably determined from time to time by General Partner. For the avoidance of doubt, for purposes of the foregoing, the reserves of the Partnership shall be

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determined on a consolidated basis with all Subsidiaries with an interest in any Portfolio Property (to the extent of the Partnership’s direct and indirect interests therein).

Portfolio Distributions” means Distributions of Portfolio Distributable Funds made to a Partner.

Portfolio Preferred Return Amount” means, with respect to a Partner as of the date of determination, an aggregate amount, computed like interest at the rate of fifteen percent (15%) per annum, compounded quarterly, on the outstanding balance from time to time of such Partner’s Undistributed Portfolio Preferred Contributions, reduced by Portfolio Distributions made to such Partner since the Effective Date under Section 5.1(a)(1)(x).

Portfolio Property” means, whether individually or collectively, all right, title and interest in and to each real property owned by the Partnership or any Subsidiary as of the Effective Date, which such real property is identified on Exhibit A, to the extent that any such Property is still owned as of the applicable date of determination.

Preferred Contribution” is defined in Section 4.2(d).

Prior Notice” is defined in Section 11.7(a).

Priority Event” is defined in Section 11.7(a).

Pro Rata Share” is defined in Section 4.2(a).

Prohibited Person” means any Person that is: (i) the subject or target of any Sanctions; (ii) named in any Sanctions-related list maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons”; or (iii) owned or Controlled by any such Person or Persons described in the foregoing clause (i) or clause (ii).

Property” means, whether individually or collectively, all right, title and interest in and to each real property owned by the Partnership or any Subsidiary as of the date of determination, including the Portfolio Properties and any Approved Properties owned by the Partnership or any Subsidiary.

Property Manager” is defined in Section 8.2(a).

Proposed Property” is defined in Section 8.9(a).

Proposed Property Overview” is defined in Section 8.9(b).

Purchase Agreement” means that certain Purchase and Sale Agreement, dated as of the date hereof, by and among LXP, LCIF, Net Lease Strategic Assets Fund L.P., a Delaware limited partnership, and Investor Partner, as amended as of the date of determination.

Purchase/Redemption Price” means One Hundred Dollars ($100).

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Purchase Price” is defined in Section 11.6(b).

Purchaser” is defined in Section 11.6(d).

Pursuer” is defined in Section 9.

Pursuit Costs” is defined in Section 8.9(f).

REIT” is defined in Section 10.2.

Receiving Person” is defined in Section 9.

Reconciliation Statement” shall have the meaning provided on Exhibit CRecords” is defined in Section 7.1.

Regulations” means the Treasury Regulations promulgated pursuant to the Code, including the corresponding provisions of any successor regulations, all as amended and in effect as of the date of determination.

Regulatory Allocations” is defined in Section 6.2(h).

Removal Date” is defined in Section 8.1(c)(i).

Removal Notice” is defined in Section 8.1(c)(i).

Removing Partner” is defined in Section 8.1(c)(i).

Replacement General Partner” is defined in Section 8.1(c)(i).

Required Capital” is defined in Section 4.2(a).

Risk Based Audit” is defined in Section 7.1.

ROFO Default” is defined in Section 11.5(b).

ROFO Deposit” is defined in Section 11.5.

ROFO Election” is defined in Section 11.5.

ROFO Purchaser” is defined in Section 11.5.

ROFO Sale” is defined in Section 11.5.

ROFO Seller” is defined in Section 11.5.

Sale Price” is defined in Section 11.5.

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Sale Right” means any option, right of first offer, right of first refusal or similar right to purchase a Property in favor of any Person, including any such right of a tenant or a counterparty under a Lease.

‎“Sanctioned Entity” means any individual, entity, group, sector, territory or ‎country that is the target of any Sanctions, including without limitation, any legal entity that is ‎deemed to be a target of Sanctions based on the direct or indirect ownership or control of such ‎entity by any other Sanctioned Entity.‎

Sanctioned Jurisdiction” means, as of the date of determination, a country, territory or geographical region that is the subject or target of any Sanctions (as of the Effective Date, including, without limitation, Afghanistan, the Balkans, Belarus, Burma, Cote D’Ivoire (Ivory Coast), Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, North Korea, Sudan, Syria, and Zimbabwe).

Sanctions” means, as of the date of determination, economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced by U.S. governmental authorities (including OFAC, the U.S. Department of State and the U.S. Department of Commerce, or through any existing or future executive order), the United Nations Security Council, the European Union, the United Kingdom or Her Majesty’s Treasury or any other relevant governmental authorities.

Securities Act” means the Securities Act of 1933, as amended and in effect as of the date of determination.

Seller” is defined in Section 11.6(e).

Sharefile” means shared access to a data room, network drive or similar electronic means of sharing due diligence materials, notices or other data among Partners.

Shortfall Amount” is defined in Section 4.2(c).

Shortfall Deadline” is defined in Section 4.2(c).

Shortfall Loan” is defined in Section 4.2(d).

Shortfall Loan Rate” is defined in Section 4.2(e).

Shortfall Loan Return” means, as of the date of determination, all accrued and unpaid interest on a Shortfall Loan in accordance with this Agreement.

Specified Valuation Amount” is defined in Section 11.6(a)(2).

Subject Property” is defined in Section 11.5.

Subsidiary” means any Person of which fifty percent (50%) or more is owned, directly or indirectly, by the Partnership.

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Target Property” means any single-tenant, net-leased, industrial real estate property that is at least eighty-five percent (85%) used (based on the aggregate rentable square footage of such property) for manufacturing, assembly, cold storage, research and development, laboratory or other specialized use providing for a higher yield than single-tenant warehouse and distribution assets, in all cases, excluding: (i) properties in which LXP owns an interest, directly or indirectly, on the Effective Date; (ii) land acquired for the purpose of building, or properties built or used primarily for warehouse and distribution purposes; (iii) properties located within, or within one (1) mile of, a park, association, plat or development tract where LXP then (a) owns an interest in a property (including, without limitation, land) or (b) is, directly or indirectly, under contract to acquire a property (including, without limitation, land); and (iv) properties within a portfolio containing at least one (1) property that is not a Target Property.

Tax Contest” means any inquiries, claims, assessments, audits, controversies or similar events conducted by any Taxing Authority.

Taxing Authority” is defined in Section 6.4.

Title Company” is defined in Section 16.

Transfer” (and any reasonable variation thereof) means (i) as a noun, any transfer, sale, assignment, exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other disposition, voluntary or involuntary, by operation of law or otherwise, and (ii) as a verb, to transfer, sell, assign, exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise dispose of, voluntarily or involuntarily, by operation of law or otherwise.

Undistributed Approved Property Pool #1 Preferred Contributions” means, with respect to a Partner as of the date of determination with respect to an Approved Property in the Approved Property Pool #1: (a) the sum of the Preferred Contributions made by such Partner since the Effective Date with respect to Approved Properties in Approved Property Pool #1; reduced (but not below zero) by (b) the Approved Property Pool #1 Distributions with respect to such Approved Properties to such Partner since the Effective Date pursuant to Section 5.1(b)(1)(y).

Undistributed Approved Property Pool #2 Preferred Contributions” means, with respect to a Partner as of the date of determination with respect to an Approved Property in the Approved Property Pool #2: (a) the sum of the Preferred Contributions made by such Partner since the Effective Date with respect to Approved Properties in Approved Property Pool #2; reduced (but not below zero) by (b) the Approved Property Pool #2 Distributions with respect to such Approved Properties to such Partner since the Effective Date pursuant to Section 5.1(c)(1)(y).

Undistributed Portfolio Preferred Contributions” means, with respect to a Partner as of the date of determination with respect to the Portfolio Properties: (a) the sum of the Preferred Contributions made by such Partner since the Effective Date with respect to all Portfolio Properties; reduced (but not below zero) by (b) the Portfolio Distributions to such Partner since the Effective Date pursuant to Section 5.1(a)(1)(y).

Warren Property” means that Property with an address of 26700 Bunert Road, Warren, Michigan.

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Section 2.                Organization of the Partnership.

2.1              Name. The name of the Partnership shall be “NNN MFG Cold JV L.P.”. The business and affairs of the Partnership shall be conducted under such name or such other name as, in the reasonable determination of General Partner, may be or become necessary or appropriate to comply with the requirements of law in any jurisdiction in which the Partnership may elect to do business or otherwise necessary or desirable, so long as concurrently with or promptly following any such change, notice thereof shall be given to each Partner, which notice shall include an explanation of the reason(s) for such change.

2.2              Place of Registered Office; Registered Agent. The address of the registered office of the Partnership in the State of Delaware is 251 Little Falls Drive, Wilmington, DE 19808-1674 in New Castle County. The name and address of the registered agent for service of process on the Partnership in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808-1674 in New Castle County. General Partner may at any time on five (5) days’ prior notice to all other Partners change the location of the Partnership’s registered office or change the registered agent.

2.3              Principal Office. The principal address of the Partnership shall be One Penn Plaza, Suite 4015, New York, NY 10119-4015 or at such other place as may be reasonably determined by General Partner from time to time so long as concurrently with or promptly following any such change, notice thereof shall be given to each Partner, which notice shall include an explanation of the reason(s) for such change.

2.4              Filings. On or before the Effective Date, an authorized person within the meaning of the Act shall have duly filed or caused to be filed the Certificate with the office of the Secretary of State of Delaware in accordance with the Act. General Partner shall amend the Certificate whenever, and within the time periods, required by the Act, or otherwise when reasonably determined to be necessary by General Partner from time to time, so long as concurrently with or promptly following any such change, notice thereof shall be given to each Partner, which notice shall include an explanation of the reason(s) for such amendment. Further, on or before the Effective Date, General Partner shall have arranged for the qualification of the Partnership to transact business in each jurisdiction in which such qualification is necessary to carry out the purposes of the Partnership. The Partners hereby ratify any such filing and qualification. General Partner shall use its commercially reasonable efforts to take such other actions as may be reasonably necessary in accordance with the Performance Standard to perfect and maintain the status of the Partnership as a limited partnership in good standing under the laws of Delaware and its qualification to transact business as a foreign limited partnership and its good standing in each jurisdiction in which such qualification is necessary to carry out the purposes of the Partnership. Notwithstanding anything to the contrary, the Partnership shall not do business in any jurisdiction that would jeopardize the limitation on liability afforded to the Partners under the Act or this Agreement.

2.5              Term. The Partnership shall continue in existence from the Effective Date until the Partnership is dissolved as provided in Section 12.

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2.6              Expenses of the Partnership; Reimbursement. Except as provided elsewhere in this Agreement or in agreements entered into between the Partnership or a Subsidiary and a Partner or its Affiliate, none of the Partners (or their respective Affiliates) shall be paid any compensation by the Partnership or its Subsidiaries for rendering services to the Partnership or its Subsidiaries. Except as otherwise provided in this Agreement and except for any costs to be borne by any third party under any agreement with the Partnership or its Subsidiaries, the Partners intend that the Partnership and its Subsidiaries shall be responsible for paying, and shall themselves pay, all direct costs and expenses related to the business and affairs of the Partnership and its Subsidiaries.

2.7              Purchase Agreement. The Partners hereby Approve and ratify (i) the assumption by the Partnership of the Purchase Agreement, on such date as Approved by the General Partner and Investor Partner, (ii) the acquisition, directly or indirectly, on the Effective Date, of the limited liability company and limited partnership interests of the Fee Owners of the Portfolio Properties, the GP Subsidiaries and the Holdco Subsidiaries, in each case, pursuant to and in accordance with the Purchase Agreement, (iii) the Loan from Bank of America, N.A. in the aggregate amount of Three Hundred Eighty-One Million and No/100 Dollars ($381,000,000.00) (the “Bank of America Loan”), if Approved by the Partners and obtained by the Partnership and/or its Subsidiaries on or after the Effective Date with respect to the Properties other than the Warren Property and (iv) the assumption of a Loan in the original principal amount of Twenty-Five Million Eight-Hundred Fifty Thousand and No/100 Dollars ($25,850,000.00) by the Partnership and/or the applicable Subsidiary on or after the Effective Date with respect to the Warren Property.

Section 3.                Purpose; Powers. The nature of the business to be conducted or promoted by the Partnership shall be solely to, directly or indirectly through one or more Subsidiaries or Property Managers, Brokers or other professionals engaged by the Partnership or the Subsidiaries in accordance with the terms hereof, (i) own, hold, administer and otherwise deal with the Partnership’s interest in the Subsidiaries, (ii) acquire the limited liability company and limited partnership interests in the Fee Owners of the Portfolio Properties and the GP Subsidiaries under the Purchase Agreement, and to acquire or form one or more Fee Owners that will acquire Approved Properties and one or more GP Subsidiaries to act as the general partner of any such Fee Owner, if applicable, and cause each Fee Owner to acquire, own, hold, develop, redevelop, construct, operate, manage, lease, license, improve, renovate, repair, alter, finance, refinance, encumber, sell, exchange or otherwise deal with and dispose of the applicable Property and any portion thereof, (iii) oversee and conduct the operation, management, leasing, improvement, renovation, repair, alteration and other activities of the Property and (iv) engage in any and all activities necessary, appropriate, advisable or incidental to and in connection with any of the foregoing. Subject to the terms and conditions hereof, the Partnership and General Partner on behalf of the Partnership (a) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in herein and (b) shall have and exercise all of the powers and rights conferred upon limited partnerships formed pursuant to the Act.

Section 4.                Capital Contributions, Percentage Interests and Capital Accounts.

4.1              Initial Capital Contributions; Tax Characterization.

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(a)                On the Effective Date, each Partner made a Capital Contribution in the amount set forth in an Approval executed by the Partners contemporaneously herewith (each, its “Initial Capital Contribution”).

(b)               The Partners agree and acknowledge that for federal income tax purposes (and applicable state and local tax purposes) the Fee Owners of the Portfolio Properties and the GP Subsidiaries acquired under the Purchase Agreement will be treated as purchased by the Partnership from an Affiliate of General Partner in a taxable transaction intended to be governed by section 1001 of the Code.

4.2              Additional Capital Contributions.

(a)                General Partner shall in accordance with the Performance Standard from time to time call for “Additional Capital Contributions” from each Partner in the aggregate amount required to fund the timely payment of Permitted Expenses for which the Partnership is not reasonably expected to have sufficient cash available (the “Required Capital”). Investor Partner may (but shall not be required to) in accordance with the Performance Standard call for Additional Capital Contributions if (i) General Partner fails to timely call for Additional Capital Contributions as required under this Agreement, (ii) Investor Partner has delivered notice of such failure (which notice shall include an explanation of why such Additional Capital Contributions are required) to General Partner and (iii) General Partner has not called for such Additional Capital Contributions within five (5) days following General Partner’s receipt of such notice. Each call for Additional Capital Contributions pursuant to this Section 4.2 shall be an “Additional Capital Call” and shall be made by delivery of notice therefor to all other Partners (each, a “Capital Demand Notice”). Each Capital Demand Notice shall provide such details regarding the relevant Additional Capital Call as may be appropriate, including (in any event) the Permitted Expense(s) for which the Additional Capital Call is made, whether the Additional Capital Call relates to Permitted Expenses relating to the Portfolio Properties or to an Approved Property or to Partnership Expenses (in which case, the Additional Capital Contributions made with respect to such Partnership Expenses shall be allocated among Portfolio Capital Contributions and Approved Property Capital Contributions as reasonably determined by the General Partner), the amount of the Required Capital and each Partner’s pro rata share (based upon its Percentage Interest) of the Required Capital (with respect to each Partner, its “Pro Rata Share”). Each Partner shall contribute its Pro Rata Share in cash by wire transfer of funds to the Partnership account(s) designated in the Capital Demand Notice on or prior to the date that is fifteen (15) Business Days after receipt of the Capital Demand Notice or prior to such later date as is set forth in the Capital Demand Notice or such earlier date as may be set forth in the Capital Demand Notice in accordance with Section 8.9(f) (the “Contribution Deadline”). Each period beginning when the Partners receive a Capital Demand Notice and ending on the date of the Contribution Deadline shall be a “Contribution Period”.

(b)               During any Contribution Period, the Partner that delivered the Capital Demand Notice initiating such Contribution Period may (but shall not be required to) unilaterally (and/or together with its Affiliated Partners) make any or all of the applicable Additional Capital Contributions as it determines, in accordance with the

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Performance Standard, that the Partnership must receive prior to the applicable Contribution Deadline in order to avoid a default by, additional costs to or other material adverse effects on the Partnership, any Subsidiary or any Property. Each Additional Capital Contribution pursuant to the foregoing sentence shall be an “Advance Contribution” and each Partner that made such Advance Contribution shall be an “Advance Contributor”. With respect to any Advance Contribution, the following provisions shall apply:

(1)if, as of the applicable Contribution Deadline, all Partners have made their Additional Capital Contributions, the Partnership shall repay to each Advance Contributor, without interest, from the first available source of funds therefor (including the Additional Capital Contributions), an amount equal to (x) the amount of such Partner’s Advance Contribution less (y) such Partner’s Pro Rata Share; or
(2)if, as of the applicable Shortfall Deadline, any Partner that is not an Advance Contributor has failed to make its Additional Capital Contribution, then each Advance Contributor may elect by notice to the other Partners given within five (5) Business Days following the Shortfall Deadline to (A) treat the portion of the Advance Contribution equal to such Advance Contributor’s Pro Rata Share as such Advance Contributor’s Capital Contribution and treat the remainder of such Advance Contribution (less any amount reimbursed (or available to be reimbursed) as a Shortfall Loan made as of the Shortfall Deadline by the Advance Contributor to each Partner that failed to make its Additional Capital Contribution, in accordance with Section 4.2(d), or (B) be refunded the Advance Contribution (x) in full (or, to the extent then utilized, repaid from the first available source of funds therefor) or (y) to the extent in excess of such Advance Contributor’s Pro Rata Share, and to treat such Advance Contributor’s Pro Rata Share as a Preferred Contribution with respect to the Portfolio Property or Approved Property, as applicable, relating to the Advance Contribution.

(c)                In the event that a Partner fails to contribute its Pro Rata Share on or before the Contribution Deadline, then: (i) General Partner shall promptly provide notice to all other Partners of such failure (provided, however, that General Partner shall not be required to provide such notice to any Partners that are Affiliates of General Partner and General Partner and such Affiliates shall be deemed to have received such notice as of the Contribution Deadline); and (ii) if such Partner’s failure (A) continues for a period of five (5) Business Days after such Partner receives (or is deemed to have received) notice thereof (the “Shortfall Deadline”), then such Partner shall be a “Non-Contributing Partner”, the Partners that made such Additional Capital Contributions shall be the “Contributing Partners” and the amount of the failed contribution shall be the “Shortfall Amount”, or (B) is cured prior to the Shortfall Deadline, such Partner shall be deemed to have made the relevant Additional Capital Contribution as of the applicable Contribution Deadline.

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(d)               A Contributing Partner may (but shall not be required to) as its sole remedy elect by notice to the other Partners given within five (5) Business Days following the Shortfall Deadline to: (1) advance to the Partnership on behalf of, and as a loan to, the Non-Contributing Partner, an amount equal to the Shortfall Amount (each such loan, a “Shortfall Loan”); (2) receive a refund of its Additional Capital Contribution; or (3) contribute to the Partnership the Shortfall Amount and treat such Shortfall Amount and its Additional Capital Contribution as a priority preferred Capital Contribution with respect to the Portfolio Property or applicable Approved Property (or, with respect Partnership Expenses, allocated among the Portfolio Properties and Approved Properties, as determined by the General Partner in its reasonable discretion) (a “Preferred Contribution”). If any Partner in a Partner Group elects to make a Shortfall Loan, then all Partners in such Partner Group shall be deemed to have elected to make a Shortfall Loan. The aggregate amount of all Shortfall Loans made by all Contributing Partners must be equal to the aggregate amount of all Shortfall Amounts, in each case with respect to the applicable Additional Capital Call. If there is more than one Contributing Partner that elects to make a Shortfall Loan, then each such Contributing Partner’s Shortfall Loan shall be made in proportion to such Contributing Partners’ Percentage Interests (or in such other proportion as they may Approve in their respective sole discretion). If the Contributing Partner(s) elect in accordance with the foregoing to make a Shortfall Loan, such Shortfall Loan shall be advanced to the Partnership within fifteen (15) Business Days following the Contribution Deadline. The failure to timely make such election or to timely make such Shortfall Loan shall be deemed to be an election under clause (2). Upon a Contributing Partner’s election (or deemed election) under clause (2), General Partner shall promptly refund each Contributing Partner’s Additional Capital Contribution. Notwithstanding anything to the contrary, if a Contributing Partner and Non-Contributing Partner with respect to an Additional Capital Call belong to the same Partner Group and any Contributing Partner in the other Partner Group makes a Shortfall Loan, then such Contributing Partner that is an Affiliate of the Non-Contributing Partner shall not be permitted to exercise (or be deemed to exercise) any of the remedies set forth above, including the right to receive a refund of its Additional Capital Contribution under clause (2).

(e)                In the event of a Shortfall Loan, the Capital Account of the Non-Contributing Partner shall be credited with the amount of the Shortfall Loan made by the Contributing Partner(s) and the aggregate amount of the Shortfall Loan made by the Contributing Partner(s) shall be treated as a loan to the Non-Contributing Partner and shall constitute a debt owed by the Non-Contributing Partner to the Contributing Partner(s). Any Shortfall Loan shall bear interest at the rate of fifteen percent (15%) per annum, compounded quarterly, but in no event in excess of the highest rate permitted by applicable laws (the “Shortfall Loan Rate”), and shall be payable by the Non-Contributing Partner as provided in Section 5.2. Interest on a Shortfall Loan, to the extent unpaid, shall accrue and compound on a quarterly basis. A Shortfall Loan shall be prepayable, in whole or in part, at any time or from time to time, together with all interest accrued thereon, without penalty. Any such Shortfall Loans shall be with full recourse to the Non-Contributing Partner and shall be secured by the Non-Contributing Partner’s Interest, including such Non-Contributing Partner’s right to Distributions. For the avoidance of doubt, “full recourse” to a Partner shall mean recourse solely to such Partner and not to any of its Affiliates. In

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furtherance thereof, upon the making of such Shortfall Loan, the Non-Contributing Partner hereby pledges, assigns and grants a security interest in its Interest to the Contributing Partner(s) and agrees to execute such documents and statements reasonably requested by the Contributing Partner(s) to further evidence and secure such security interest; provided however, that such security interest may be foreclosed upon only in the event that during the period in which a Shortfall Loan is outstanding, Distributions are paid to the Non-Contributing Partner prior to payment in full of all amounts (including interest) owed under the Shortfall Loan. Payments on a Shortfall Loan shall be applied first to payment of any Shortfall Loan Return with respect to such Shortfall Loan and then to principal due under such Shortfall Loan until all amounts due thereunder are paid in full. At the request of the Contributing Partner, the borrower under a Shortfall Loan shall execute and deliver a negotiable promissory note in the amount of such Shortfall Loan payable to the Contributing Partner in a form reasonably required by the Contributing Partner no later than fifteen (15) days after such request is made.

4.3              Percentage Interest. Percentage Interests shall not be adjusted by Distributions made (or deemed made) to a Partner, nor by reason of any Shortfall Loan or Preferred Contribution.

4.4              Return of Capital Contribution. Except as Approved by the Partners in their respective sole and absolute discretion, no Partner shall have any right to withdraw or make a demand for withdrawal of the balance reflected in such Partner’s Capital Account (as determined in accordance with Section 4.6) until the full and complete winding up and liquidation of the business of the Partnership; provided however, that nothing contained in this Section 4.4 shall preclude a Partner from (i) receiving Distributions in accordance with Section 5.1 or (ii) exercising its rights pursuant to Section 11.5 or Section 11.6.

4.5              No Interest on Capital. Interest earned on Partnership funds shall inure solely to the benefit of the Partnership, and no interest shall be paid upon any Capital Contributions or upon any undistributed or reinvested income or profits of the Partnership.

4.6              Capital Accounts. “Capital Account” means a book account that shall be maintained by the Partnership in accordance with the following provisions for each Partner:

(a)                To each Partner’s Capital Account there shall be credited (i) the amount of cash contributed by such Partner, (ii) the initial Gross Asset Value of any other asset contributed by such Partner to the capital of the Partnership (net of liabilities secured by such asset that the Partnership assumes or takes subject to), (iii) such Partner’s distributive share of Net Income, (iv) the amount of any of the liabilities of the Partnership assumed by such Partner and (v) any other items in the nature of income or gain that are allocated to such Partner; and

(b)               To each Partner’s Capital Account there shall be debited (i) the amount of cash Distributed to such Partner, (ii) the Gross Asset Value of any property Distributed to such Partner pursuant to any provision of this Agreement (net of liabilities secured by such property that such Partner assumes or takes subject to), (iii) such Partner’s

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distributive share of Net Losses and (iv) any other items in the nature of expenses or losses that are allocated to such Partner.

(c)                No Partner shall be required to restore any negative balance in its Capital Account. In the event that a Partner’s Interest or portion thereof is Transferred within the meaning of section 1.704-1(b)(2)(iv)(l) of the Regulations, the transferee shall succeed to the Capital Account of such Partner to the extent that it relates to the Interest or portion thereof so Transferred.

(d)               The Capital Account of each Partner shall be adjusted to reflect any adjustment to the Gross Asset Values of the Partnership’s assets under clause (c) of the definition of Gross Asset Value.

(e)                The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with sections 1.704-1(b) and 1.704-2 of the Regulations, and shall be interpreted and applied in a manner consistent with the Regulations.

(f)                The Capital Account of each Partner as of the Effective Date shall be an amount equal to such Partner’s Initial Capital Contribution.

4.7              New Partners. Except as otherwise provided in Sections 8.1(c)(i) and 11.3 (with respect to a Transfer permitted under Section 11.2), no Person shall be admitted as a Partner without the Approval of the Partners in their respective sole and absolute discretion.

4.8              Capital Contributions by LXP Partners. Nothing in this Agreement shall limit the ability of any LXP Partner to make an Additional Capital Contribution that otherwise is required to be made by any other LXP Partner. If any LXP Partner makes an Additional Capital Contribution that otherwise is required to be made by any other LXP Partner by the Contribution Deadline, any LXP Partner shall instruct the Partnership as to how (and if) they would like to adjust the Percentage Interests of the LXP Partners as between such LXP Partners as a result thereof; provided that such Percentage Interests in the aggregate shall not exceed the Percentage Interests that such LXP Partners would have had in the aggregate if such LXP Partners each funded their share of such Additional Capital Contribution and, provided, further, that absent such instruction or in the event of conflicting instructions, such LXP Partners shall be treated as having funded their respective Percentage Interests of such Additional Capital Contribution and shall be deemed to have entered into a transaction between themselves and not involving the Partnership or any of the other Partners in order to provide the other with the funds to make such Additional Capital Contribution.

4.9              Credit Support. To the extent that a Lender, governmental authority or other third party requires any surety bonds, letters of credit, guarantees, indemnifications or other credit support from a Person other than the Partnership or a Subsidiary with respect to the obligations of the Partnership or a Subsidiary (“Credit Support”), then (following Approval thereof as a Major Decision, if, and only if, such Approval is required under this Agreement), each of the Partners shall provide (or cause a creditworthy Affiliate Approved by the other Partners to provide) such Credit Support (on a joint and several or on a several basis, depending on the terms required by

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the Lender, governmental authority or third person); provided, however, that General Partner shall provide (or cause a creditworthy Affiliate to provide) any Non-Recourse Guaranty. Approval by a Partner of any financing that requires any Credit Support from such Partner (or its Affiliate) shall constitute a commitment of such Partner to provide (or cause its Affiliate to provide) such Credit Support. Any Credit Support that is provided by a Partner (or its creditworthy Affiliate) on a several basis shall be provided in an amount equal to such Partner’s Percentage Interest multiplied by the required amount of such Credit Support (provided that the LXP Partners shall have the right to allocate amongst themselves their collective share of such Credit Support). The Credit Support in effect as of the Effective Date is as set forth on Exhibit D.

Section 5.                Distributions.

5.1              Distribution of Portfolio Distributable Funds and Approved Property Distributable Funds.

(a)                General Partner shall cause the Partnership to, as soon as reasonably practical as determined by General Partner in accordance with the Performance Standard (and in any event, no less frequently than quarterly), make Distributions of Portfolio Distributable Funds to the Partners in the following order of priority:

(1)First, (x) to the Partners that have an accrued and unpaid Portfolio Preferred Return Amount, pari passu and pro rata in proportion to their aggregate accrued and unpaid Portfolio Preferred Return Amounts, until the accrued and unpaid Portfolio Preferred Return Amount of each Partner is reduced to zero; and thereafter (y) to the Partners that have Undistributed Portfolio Preferred Contributions, pari passu and pro rata in proportion to their aggregate Undistributed Portfolio Preferred Contributions, until the Undistributed Portfolio Preferred Contributions of each Partner is reduced to zero;
(2)Second, to the Partners pari passu and pro rata in proportion to their respective Percentage Interests until Investor Partner has received a cumulative ten percent (10%) Internal Rate of Return on its Portfolio Capital Contributions;
(3)Third, thirty percent (30%) to the LXP LP, and seventy percent (70%) to Investor Partner, pari passu until Investor Partner has received a cumulative fifteen percent (15%) Internal Rate of Return on its Portfolio Capital Contributions (taking into account cumulative distributions made pursuant to this Section 5.1(a)(3) and Section 5.1(a)(2) hereof); and
(4)Thereafter, forty-five percent (45%) to the LXP LP, and fifty-five percent (55%) to Investor Partner, pari passu.

(b)               General Partner shall cause the Partnership to, as soon as reasonably practical as determined by General Partner in accordance with the Performance Standard

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(and in any event, no less frequently than quarterly), make Distributions of Approved Property Pool #1 Distributable Funds to the Partners in the following order of priority:

(1)First, (x) to the Partners that have an accrued and unpaid Approved Property Preferred Return Amount with respect to any Approved Properties in Approved Property Pool #1, pari passu and pro rata in proportion to their aggregate accrued and unpaid Approved Property Preferred Return Amounts with respect to the applicable Approved Properties in Approved Property Pool #1, until the accrued and unpaid Approved Property Preferred Return Amount with respect to the applicable Approved Properties in Approved Property Pool #1 of each Partner is reduced to zero; and thereafter (y) to the Partners that have Undistributed Approved Property Pool #1 Preferred Contributions with respect to the applicable Approved Properties in Approved Property Pool #1, pari passu and pro rata in proportion to their aggregate Undistributed Approved Property Pool #1 Preferred Contributions with respect to the applicable Approved Properties in Approved Property Pool #1, until the Undistributed Approved Property Pool #1 Preferred Contributions with respect to the applicable Approved Properties in Approved Property Pool #1 of each Partner is reduced to zero;
(2)Second, to the Partners pari passu and pro rata in proportion to their respective Percentage Interests until Investor Partner has received a cumulative ten percent (10%) Internal Rate of Return on its Approved Property Capital Contributions with respect to the Approved Properties in Approved Property Pool #1;
(3)Third, thirty percent (30%) to the LXP LP, and seventy percent (70%) to Investor Partner, pari passu until Investor Partner has received a cumulative fifteen percent (15%) Internal Rate of Return on its Approved Property Capital Contributions with respect to the Approved Properties in Approved Property Pool #1 (taking into account cumulative distributions made pursuant to this Section 5.1(b)(3) and Section 5.1(b)(2) hereof); and
(4)Thereafter, forty-five percent (45%) to the LXP LP, and fifty-five percent (55%) to Investor Partner, pari passu.

(c)                General Partner shall cause the Partnership to, as soon as reasonably practical as determined by General Partner in accordance with the Performance Standard (and in any event, no less frequently than quarterly), make Distributions of Approved Property Pool #2 Distributable Funds to the Partners in the following order of priority:

(1)First, (x) to the Partners that have an accrued and unpaid Approved Property Preferred Return Amount with respect to any Approved Properties in Approved Property Pool #2, pari passu and pro rata in
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proportion to their aggregate accrued and unpaid Approved Property Preferred Return Amounts with respect to the applicable Approved Properties in Approved Property Pool #2, until the accrued and unpaid Approved Property Preferred Return Amount with respect to the applicable Approved Properties in Approved Property Pool #2 of each Partner is reduced to zero; and thereafter (y) to the Partners that have Undistributed Approved Property Pool #2 Preferred Contributions with respect to the applicable Approved Properties in Approved Property Pool #2, pari passu and pro rata in proportion to their aggregate Undistributed Approved Property Pool #2 Preferred Contributions with respect to the applicable Approved Properties in Approved Property Pool #2, until the Undistributed Approved Property Pool #2 Preferred Contributions with respect to the applicable Approved Properties in Approved Property Pool #2 of each Partner is reduced to zero;

(2)Second, to the Partners pari passu and pro rata in proportion to their respective Percentage Interests until Investor Partner has received a cumulative ten percent (10%) Internal Rate of Return on its Approved Property Capital Contributions with respect to the Approved Properties in Approved Property Pool #2;
(3)Third, thirty percent (30%) to the LXP LP, and seventy percent (70%) to Investor Partner, pari passu until Investor Partner has received a cumulative fifteen percent (15%) Internal Rate of Return on its Approved Property Capital Contributions with respect to the Approved Properties in Approved Property Pool #2 (taking into account cumulative distributions made pursuant to this Section 5.1(c)(3) and Section 5.1(c)(2) hereof); and
(4)Thereafter, forty-five percent (45%) to the LXP LP, and fifty-five percent (55%) to Investor Partner, pari passu.

(d)               Notwithstanding anything to the contrary, if General Partner is replaced for Cause in accordance with Section 8.1(c)(i), then commencing as of the Removal Date, Portfolio Distributable Funds, Approved Property Pool #1 Distributable Funds and Approved Property Pool #2 Distributable Funds shall thereafter no longer be distributed in accordance with Sections 5.1(a)(2) – (4), 5.1(b)(2) – (4) or 5.1(c)(2)(4) but shall instead thereafter be Distributed to the Partners first in accordance with Section 5.1(a)(1), 5.1(b)(1) or 5.1(c)(1), as applicable, and thereafter in proportion to their respective Percentage Interests.

5.2              Distributions for Indemnities and Shortfall Loans. Notwithstanding anything to the contrary, any amounts otherwise distributable to a Partner under this Agreement shall be paid (i) first, to satisfy amounts due and payable on account of the unsatisfied indemnity obligations of such Partner or its Affiliates under this Agreement, and (ii) second, if such Partner or its Affiliate is borrower under any Shortfall Loan, to the lender in respect of such Shortfall Loan,

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pari passu in proportion to the amount due thereunder, until such Shortfall Loan, together with all Shortfall Loan Return thereon, has been paid in full, provided that if such Person is a borrower under more than one (1) Shortfall Loan, the Shortfall Loans shall be repaid in the order made (i.e., the earliest Shortfall Loan and all Shortfall Loan Return thereon shall be paid first). Each payment made pursuant to this Section 5.2 shall be deemed Distributed to the Partner to which such amount was otherwise distributable.

Section 6.                Allocations.

6.1              Allocation of Net Income and Net Loss. Subject to Section 6.2 and except as otherwise provided in this Agreement, Net Income and Net Losses (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Partnership for each Fiscal Year shall be allocated among the Partners in a manner such that, as of the end of such Fiscal Year and taking into account all prior allocations of Net Income and Net Losses of the Partnership and all Distributions made by the Partnership through the end of such Fiscal Year, the Capital Account of each Partner is, as nearly as possible, equal to (i) the Distributions that would be made to such Partner pursuant to Section 12.3(d)(2) if the Partnership were dissolved, its affairs wound up and assets sold for cash equal to their Gross Asset Value, all Partnership liabilities were satisfied (limited with respect to each Nonrecourse Liability to the Gross Asset Value of the assets securing such liability), and the net assets of the Partnership were distributed in accordance with Section 12.3(d)(2) immediately after such allocation, minus (ii) such Partner’s share of Partner Minimum Gain and Partnership Minimum Gain immediately prior to such hypothetical gain.

6.2              Mandatory Allocations.

(a)                No Excess Deficit. No allocation of loss or deduction shall be made to any Partner if, as a result of such allocation, such Partner would have an Adjusted Capital Account Deficit. To the extent an allocation of loss or deduction is disallowed under the preceding sentence, such items of loss or deduction shall be allocated to the other Partners in accordance with Section 6.1, but in a manner that will not produce an Adjusted Capital Account Deficit as to such Partners.

(b)               Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this Section 6, if there is a net decrease in Partner Minimum Gain during any Fiscal Year, then, subject to the exceptions set forth in sections 1.704-2(f)(2), (3), (4) and (5) of the Regulations, each Partner shall be specially allocated items of the Partnership income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Partner’s share of the net decrease in Partner Minimum Gain, as determined under section 1.704-2(g) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant thereto. The items to be so allocated shall be determined in accordance with section 1.704-2(f) of the Regulations. This Section 6.2(b) is intended to comply with the minimum gain chargeback requirements in section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

(c)                Partner Minimum Gain Chargeback. Notwithstanding any other provision of this Section 6, except Section 6.2(b), if there is a net decrease in Partner

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Minimum Gain attributable to a Partner Nonrecourse Debt during any Fiscal Year, then, subject to the exceptions set forth in section 1.704-2(i)(4) of the Regulations, each Partner who has a share of the Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of the Partnership income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Partner’s share of the net decrease in Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with section 1.704-2(i)(4) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant thereto. The items to be so allocated shall be determined in accordance with section 1.704-2(i)(4) of the Regulations. This Section 6.2(c) is intended to comply with the minimum gain chargeback requirement in section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.

(d)               Qualified Income Offset. Notwithstanding any other provision of this Section 6, except Sections 6.2(b) and 6.2(c), in the event any Partner receives any adjustments, allocations or distributions described in section 1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations, that cause or increase an Adjusted Capital Account Deficit of such Partner, items of the Partnership income and gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Partner as quickly as possible, provided that an allocation pursuant to this Section 6.2(d) shall be made only if and to the extent that such Partner would have an Adjusted Capital Account Deficit after all other allocations provided for in this Section 6 have been tentatively made as if this Section 6.2(d) were not in this Agreement. This Section 6.2(d) is intended to constitute a “qualified income offset” within the meaning of section 1.704-l(b)(2)(ii)(d)(3) of the Regulations and shall be interpreted consistently therewith.

(e)                Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year shall be allocated to the Partners in the same manner as set forth in Section 6.1.

(f)                Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Partner that bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with section 1.704-2(i)(2) of the Regulations.

(g)               Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Property pursuant to section 734(b) or 743(b) of the Code is required, pursuant to section 1.704-1(b)(2)(iv)(m) of the Regulations, to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to section 1.704-1(b)(2)(iv)(m) of the Regulations. Each Partner hereby agrees to provide the Partnership with all information

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necessary to give effect to an election made under section 754 of the Code if the Partnership has made or if General Partner determines to make such an election pursuant to Section 7.7.

(h)               Curative Allocations. The allocations set forth in Sections 6.2(a) through 6.2(g) (the “Regulatory Allocations”) are intended to comply with certain requirements of sections 1.704-1(b) and 1.704-2 of the Regulations. The Regulatory Allocations shall be taken into account for the purpose of equitably adjusting subsequent allocations of Net Income and Net Losses, and items of income, gain, loss and deduction among the Partners so that, to the extent possible, the net amount of such allocations of Net Income and Net Losses and other items to each Partner shall be equal to the net amount that would have been allocated to each such Partner if the Regulatory Allocations had not occurred.

6.3              U.S. Tax Allocations. Subject to section 704(c) of the Code, for U.S. federal and state income tax purposes, all items of Partnership income, gain, loss, deduction and credit shall be allocated among the Partners in the same manner as the corresponding item of income, gain, loss, deduction or credit was allocated pursuant to the preceding paragraphs of this Section 6.

(a)                Section 704(c). In accordance with section 704(c) of the Code and the Regulations promulgated thereunder, income and loss with respect to any property contributed to the capital of the Partnership (including, if the property so contributed constitutes a partnership interest, the applicable distributive share of each item of income, gain, loss, expense and other items attributable to such partnership interest whether expressly so allocated or reflected in partnership allocations) shall, solely for U.S. federal income tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property to the Partnership for U.S. federal income tax purposes and its Gross Asset Value at the time of contribution. Such allocation shall be made in accordance with the traditional method set forth in section 1.704-3(b) of the Regulations, provided that, to the extent that a traditional method allocation results in a material and adverse tax consequence to any Partner relative to the consequences of using remedial allocations, the Partnership shall use remedial allocations to eliminate such difference. Allocations pursuant to this Section 6.3 are solely for purposes of U.S. federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Partner’s share of Net Income, Net Loss, other items or distributions pursuant to any provisions of this Agreement.

(b)               Transfer of an Interest. If a Partner acquires an Interest, redeems all or a portion of its Interest or transfers an Interest during a Fiscal Year, the Net Income and Net Losses (and other items referred to in Section 6.1 or Section 6.2) attributable to such Interest for such Fiscal Year shall be allocated between the transferor and the transferee by closing the books of the Partnership as of the date of the transfer, or by any other method permitted under section 706 of the Code and the Regulations thereunder that is selected by General Partner.

6.4              Withholding. The Partnership shall at all times be entitled to make payments with respect to any Partner in amounts required to discharge any obligation of the

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Partnership to withhold or make payments to any U.S. federal, state, local or foreign taxing authority (“Taxing Authority”) with respect to any Distribution or allocation of income or gain to such Partner and to withhold (or deduct) the same from Distributions to such Partner. Any funds withheld from a Distribution or allocation by reason of this Section 6.4 shall nonetheless be deemed Distributed to applicable Partner for all purposes under this Agreement. If the Partnership in good faith makes any payment to a Taxing Authority in respect of a Partner hereunder that is not withheld from actual Distributions to the Partner, then the Partner shall reimburse the Partnership for the amount of such payment, on demand. The amount of a Partner’s reimbursement obligation under this Section 6.4, to the extent not paid, shall be deducted from the Distributions to such Partner, and any amounts so deducted shall constitute a repayment of such Partner’s reimbursement obligation hereunder and no such payment or deduction shall be deemed a Capital Contribution. Each Partner shall furnish the Partnership with any representations and forms as shall reasonably be requested by the Partnership to assist the Partnership in determining the extent of, and in fulfilling, any withholding obligations the Partnership may have. Each Partner shall indemnify and hold harmless the Partnership and the other Partners from and against any liability with respect to taxes, interest or penalties that may be asserted by reason of the failure to deduct and withhold tax on amounts distributable or allocable to such Partner. Each Partner’s reimbursement and indemnification obligations under this Section 6.4 shall survive and continue after the liquidation of the Partnership, the transfer of such Partner’s Interest and withdrawal by such Partner from the Partnership.

Section 7.                Books, Records, Tax Matters and Bank Accounts.

7.1              Books and Records. General Partner shall use efforts consistent with the Performance Standard to maintain the books and records of account of the Partnership (collectively, the “Records”) in accordance with, where applicable, generally accepted accounting principles in the United States, consistently applied. The Records shall be available to any Partner at a location in New York, NY, or electronically for reasonable review, investigation, copying and, if requested by Investor Partner not more than once in any calendar year, for Investor Partner to prepare a risk-based performance audit of the Partnership (a “Risk-Based Audit”), all at such Partner’s sole cost and expense, during normal business hours and on at least twenty-four (24) hours’ prior notice. In connection with such reasonable review, investigation, copying, or Risk-Based Audit, General Partner shall use efforts consistent with the Performance Standard to, upon request of the applicable Partner, (i) make its employees available to meet and consult with such Partner (and its representatives and agents) and (ii) provide opportunities to such Partner to attend meetings and meet and consult with third-parties having dealings or any other relationship with the Partnership or any Subsidiaries or with General Partner, in any case in respect of the Partnership or any Subsidiaries. If General Partner spends more than eight (8) hours in a calendar year in connection with a Risk-Based Audit, Investor Partner shall promptly pay to General Partner an amount equal to Three Hundred Fifty Dollars ($350) per hour for each hour in excess of eight (8) hours.

7.2              Reports and Financial Statements.

(a)                General Partner shall cause each Partner to be furnished with the information and statements described in Exhibit C, at such times as are required therein.

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(b)               The expenses incurred in connection with the preparation of such information and statements shall be reimbursed by the Partnership to General Partner. Any reports or financial statements required to be audited under this Section 7.2 (including, for the avoidance of doubt, as required under Exhibit C) shall be audited by LXP’s then-current public accounting firm auditor or such other firm of certified public accountants as Approved by the Partners, and any such audit shall be coordinated by General Partner (and General Partner shall be responsible for liaising with the relevant auditors). General Partner shall use efforts consistent with the Performance Standard to produce any reports, financial statements or other information not required under this Agreement, to the extent and within the timeframe reasonably required by any Lender.

7.3              Tax Matters.

(a)                General Partner is hereby designated as the “partnership representative” of the Partnership and the Subsidiaries, as defined in section 6223(a) of the Code (the “Partnership Representative”) and shall have the authority to appoint a “designated individual” of the Partnership within the meaning of section 301.6233-1 of the Regulations. The Partnership Representative shall consult with the other Partners with respect to any written notice of any material Tax Contest and shall not settle, compromise or otherwise resolve any such Tax Contest without the Approval of the other Partners to the extent such action would cause a tax liability in excess of $250,000 (individually or in aggregate, including Investor Partner’s share of any tax imposed on the Partnership).

(b)               The Partnership Representative shall have the right to implement the Partnership Audit Procedures and make on behalf of the Partnership any election and take such other action available to the Partnership Representative under the Code that the Partnership Representative deems necessary or desirable, including the election pursuant to section 6226 of the Code (as enacted by the Partnership Audit Procedures) or similar provisions (subject to Section 7.3(a)). In the event the Partnership incurs any liability for taxes, interest or penalties pursuant to the Partnership Audit Procedures:

(i)                 the Partnership Representative shall, on a good faith basis, allocate such liability among the Partners (including any former Partners) that were Partners in the relevant year or years to which such liability relates, and each such Partner shall pay such amount to the Partnership, and such amount shall not be treated as a Capital Contribution;

(ii)               any such amount not paid by a Partner (or former Partner) at the time requested by the Partnership Representative shall accrue interest at the rate of the lower of (x) the federal funds rate as published in the Wall Street Journal on the date such amount was due plus ten percent (10%) per annum and (y) the maximum rate permitted by applicable law, in either case compounded quarterly, until paid; and

(iii)             without reduction in a Partner’s (or former Partner’s) obligation under Sections 7.3(b)(i)-(ii), any amount paid by the Partnership that is attributable to a Partner (or former Partner) and that is not paid by such Partner

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pursuant to Sections 7.3(b)(i)-(ii) shall be offset against future Distributions and shall be treated for purposes of this Agreement as a Distribution to such Partner (or former Partner).

The provisions of this Section 7.3 shall survive the expiration or earlier termination of this Agreement.

7.4              Bank Accounts. All funds of the Partnership and each applicable Subsidiary (i) are to be deposited in the Partnership’s name (or, in the applicable Subsidiary’s name, as reasonably determined by General Partner), in such bank account or accounts of the Partnership and/or its Subsidiaries as may be reasonably designated by General Partner, and shall be invested only in U.S. government insured accounts or U.S. Treasuries or such other investment vehicles as shall be Approved by the Partners, provided that the initial Partnership and Subsidiary bank account(s) shall be at Bank of America, N.A., KeyBank, National Association, Wells Fargo Bank, N.A. and/or Citizens Bank and (ii) may be withdrawn and/or disbursed on the signature of such Person or Persons as General Partner may authorize. General Partner shall cause each Partner to be provided “view only” access to the Partnership and Subsidiary bank accounts.

7.5              Tax Returns. General Partner shall prepare or cause to be prepared and timely file (including extensions) all income and other tax returns of the Partnership and the Subsidiaries required by applicable law and shall deliver to the Partners (x) an estimate of each Partner’s allocable share of Partnership taxable income no later than March 1 of each calendar year, (y) draft versions of all income tax returns of the Partnership no later than April 15 of each calendar year, and (z) final versions of all income tax returns of the Partnership one calendar week following the delivery of draft versions of such returns pursuant to clause (y). Except as otherwise provided in this Agreement, all elections required or permitted to be made by the Partnership and its Subsidiaries under the Code or state tax law shall be timely determined and made by General Partner, provided that General Partner shall not make any tax election without the Approval of a Partner to the extent such election (i) would cause a tax liability to such Partner in excess of $250,000 and (ii) could reasonably be expected to have a disproportionately adverse impact on such Partner relative to the other Partners, taking into account all relevant facts and circumstances.

7.6              Tax Status. The Partners intend that the Partnership be treated as a partnership for U.S. federal, state and local tax purposes, and the Partners shall not elect or authorize any Person to elect to change the status of the Partnership from that of a partnership for U.S. federal, state and local income tax purposes without the Approval of all of the Partners in their respective sole and absolute discretion.

7.7              754 Election. Upon the request of any Partner (and subject to Section 7.5), the Partnership and each Subsidiary shall make an election pursuant to section 754 of the Code to adjust the basis of the Partnership’s property in the manner provided in sections 734(b) and 743(b) of the Code.

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Section 8.                Management and Operations.

8.1              Management.

(a)                General Partner shall manage the day-to-day business operations and affairs of the Partnership and, through the Partnership, of the Subsidiaries, and shall otherwise have the sole right and authority to make decisions regarding the Partnership and the Subsidiaries, in any case except as otherwise specifically set forth in this Agreement (including, without limitation, as set forth in Section 8.1(g)). Other than as set forth in this Agreement or the Act (subject to this Agreement), the Limited Partners shall have no part in the management, control or operation of the Partnership and shall have no authority or right to act on behalf of the Partnership in connection with any matter. The Limited Partners shall not have voting rights with respect to any Partnership matters (hereunder or under the Act), other than the right to vote on matters as specifically set forth in this Agreement. Subject to Section 8.1(c)(ii), General Partner shall not (nor shall any other Partner) take any action or implement any decision on the matters set forth in Exhibit B (collectively, the “Major Decisions”) without the Approval of all of the Partners in their respective sole and absolute discretion. Upon Approval of any Major Decision, General Partner shall utilize efforts consistent with the Performance Standard to implement such decision on behalf of the Partnership and/or the Subsidiaries. General Partner, in accordance with and subject to the terms, conditions, limitations and restrictions of this Agreement, shall have the authority to exercise all of the powers and privileges granted by the Act, any other law or this Agreement, together with any powers incidental thereto, and to take any other action not prohibited under this Agreement, the Act or other applicable law, so far as such powers or actions are necessary or convenient or related to the conduct, promotion or attainment of the business, purposes or activities of the Partnership and the Subsidiaries. Except as provided in this Agreement, whenever in this Agreement a Partner is permitted or required to make a decision affecting or involving the Partnership, any Partner or any other Person, such Partner shall be entitled to consider such interests and factors as such Partner desires, including such Partner’s interests, and shall, to the fullest extent permitted by applicable law, have no duty or obligation to give any consideration to any interest of or factors affecting the Partnership or any other Partner or Person. General Partner shall devote to the Partnership’s business such time as is necessary and appropriate to direct and supervise the Partnership’s day-to-day business operations and affairs as required hereunder in a prudent and reasonable manner in accordance with the Performance Standard. Any and all obligations of General Partner hereunder shall be subject to the availability of Partnership funds and wherever in this Agreement General Partner is obligated to take an action or make a judgment in the performance of its obligations hereunder, it shall be obligated only to do so consistent with the Performance Standard.

(b)               Notwithstanding anything to the contrary, each Partner shall have the right to obtain, at any time, appraisals or broker price opinions or similar property valuation reports (an “Appraisal”) with respect to one or more Properties prepared by any broker or appraisal firm selected by such Partner in its sole and absolute discretion, and any such Appraisal shall be obtained at the Partnership’s cost and expense (to the extent such cost and expense is reasonable and customary), and regardless of whether such costs and expenses are then contemplated in the Approved Annual Business Plan; provided,

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however, that no more than one (1) such Appraisal of each Property may be obtained at the Partnership’s cost and expense in any one (1) year period.

(c)                For Cause Events.

(i)                 If a For Cause Event occurs with respect to General Partner, any other Partner that is not an Affiliate of General Partner (the “Removing Partner”) shall have the right to remove General Partner by notice thereof to General Partner and the other Partners (a “Removal Notice”), provided that (x) such removal shall be effective upon the date (the “Removal Date”) that is fifteen (15) days following delivery of such Removal Notice to General Partner and (y) the Removing Partner shall, on or before the Removal Date, appoint an experienced real estate manager as a replacement General Partner for the Partnership (and issue an Interest to such Person) (“Replacement General Partner”). Such appointment (including of such Person’s Interest and the fees paid to such Person, including any performance-based fees) shall be on then-current market-rate terms. To the extent that the Replacement General Partner is issued an Interest, the Percentage Interest with respect thereto shall be zero percent (0%) (except to the extent the Percentage Interest is Transferred to such Replacement General Partner by a Partner in accordance with Section 11.2). Any removal of General Partner and the replacement thereof shall be subject to compliance with Section 11.3 (as if the Replacement General Partner is a transferee and the Removing Partner is the Transferring Partner) and to obtaining Approval thereof to the extent required under any agreement to which the Partnership or any Subsidiary is a party or by which the Partnership or any Subsidiary is bound (for the avoidance of doubt, including under any documents governing any Loan). In connection with any such removal and replacement of General Partner, the Removing Partner shall use commercially reasonable efforts to cause all applicable Lenders or other obligees under any Credit Support given by General Partner or its Affiliates to deliver to General Partner and any Affiliate of General Partner that executed any Credit Support in favor of such Lender or other obligee a release and discharge of General Partner and such Affiliates therefrom (it being agreed, however, that such release and discharge shall not be required to cover (x) any gross negligence, willful misconduct or fraud by General Partner and/or its Affiliates on or after the Removal Date or (y) any events, occurrences, acts or omissions arising or occurring prior to the Removal Date); provided, for the avoidance of doubt, that the removal of General Partner on the Removal Date pursuant to this Section 8.1(c)(i) shall not be conditioned upon or made subject to the release or discharge of any Partner or Affiliate of any Partner from any Credit Support. Promptly following such removal, the Partnership shall pay the removed General Partner and/or LRA, as applicable, any unpaid Fee due hereunder through the Removal Date (pro rata through the Removal Date). Notwithstanding anything to the contrary, (i) in no event shall removal and replacement of General Partner by the Removing Partner pursuant to this Section 8.1(c)(i) be deemed a Major Decision or Fundamental Decision and (ii) the Removing Partner shall, subject to the terms of this Agreement, have the full right, power and authority to, on its own behalf and on behalf of the Partnership, take all actions reasonably necessary to effectuate the removal and replacement of General

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Partner and the termination of any services then being provided to the Partnership by LRA or any other Affiliate or designee of the General Partner, if applicable, pursuant to this Section 8.1(c)(i), including (x) designating new bank accounts for deposit of the funds of the Partnership and the applicable Subsidiaries and (y) designating signatories for such bank accounts. If (and only if) the Replacement General Partner is an Affiliate of the Removing Partner, then the Partner Group of the Removing Partner shall be deemed to include the Replacement General Partner.

(ii)               Notwithstanding anything to the contrary, if a For Cause Event occurs with respect to any Partner, no Partner in the Partner Group of such Partner (including such Partner) (each, an “Impacted Partner”) shall thereafter have the right to exercise any Approval right expressly provided under this Agreement, including any Major Decision, in any case other than a Fundamental Decision.

(iii)             Notwithstanding anything to the contrary, no Replacement General Partner shall be permitted to give or withhold any Approvals contemplated under the definition of Gross Asset Value or under Section 4.4, 4.7, 13.3(c) or 16, obtain an Appraisal (unless requested by a Partner in accordance with Section 8.1(b)) or give or receive an Offer Notice or a Buy-Sell Notice (or otherwise have any rights under Sections 11.5 and 11.6).

(d)               It is expressly understood that the Partnership may conduct its business directly or indirectly through direct or indirect Subsidiaries. General Partner (and LRA, if applicable) shall, through the Partnership, perform the same or substantially identical services for each such direct or indirect Subsidiary as General Partner (or LRA, if applicable) performs for the Partnership, subject to the terms, conditions, limitations and restrictions of this Agreement, including the terms regarding Major Decisions.

(e)                Notwithstanding anything to the contrary, General Partner shall be permitted to cause the Partnership and any Subsidiary to take actions that General Partner determines in accordance with the Performance Standard are reasonably necessary or desirable in response to an Emergency and incur Permitted Expenses in connection therewith, and may cause the Partnership and any applicable Subsidiary to pay (without duplication) for such Permitted Expenses directly and/or may cause the Partnership to reimburse General Partner for such Permitted Expenses if incurred directly by General Partner. If General Partner is to be reimbursed, General Partner and any of its Affiliated Partners may elect not to make an Additional Capital Contribution therefor and instead to issue a Capital Demand Notice for Additional Capital Contributions therefor only to the other Partner(s) for such other Partner’s pro rata portion of such Permitted Expenses (in proportion to their respective Percentage Interests), in which case General Partner (and its Affiliates) shall only be reimbursed for the other Partner’s pro rata portion of such Permitted Expense and General Partner (and its Affiliates) shall be deemed to have made an Additional Capital Contribution for its (or their) pro rata portion of such Permitted Expenses.

(f)                Notwithstanding anything to the contrary, any Partner that is not an Affiliate of General Partner shall have the right to act on behalf of the Partnership and/or

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its Subsidiaries acting with the good faith belief that such acts are in the best interests of the Partnership to enforce, pursue or waive any rights of the Partnership under any agreement between the Partnership or Subsidiaries, on the one hand, and General Partner or its Affiliates, on the other hand, including, for so long as LXP GP is General Partner, the Purchase Agreement; provided that, the LXP Partners acknowledge and agree that in no event shall the Investor Partner be required to give any consideration to any interest of or factors affecting any of the LXP Partners, solely in their role as Affiliates of the “Seller” under the Purchase Agreement, in connection with any such enforcement, pursuit or waiver. In no event shall the Investor Partner be required to make any Capital Contribution or Additional Capital Contribution to fund any amounts due to the Partnership or any other Person in respect of any breaches of the seller’s representations and warranties, any indemnities provided by the seller and its Affiliates and any other breaches or violations of seller’s duties, obligations and covenants under the Purchase Agreement.

(g)               Notwithstanding the foregoing provisions of this Section 8.1, upon the occurrence of a Management Internalization Event, the Partners may, in good faith, negotiate a transfer of all management rights held by the General Partner (and its applicable Affiliates with respect to the Properties) to an internal Partnership management team, which negotiation shall include, among other things, discussion of (i) an amendment to this Agreement to reflect the new management structure of the Partnership and (ii) the buy-out of LXP Partners’ Interest.

8.2              Asset Management and Property Level Services and Fees.

(a)                Notwithstanding anything to the contrary, General Partner may cause each Fee Owner to retain leasing agents and sales brokers (each, a “Broker”) and property managers (each, a “Property Manager”) for the applicable Property (including Brokers and Property Managers that are Affiliates of General Partner), in each case pursuant to a written agreement on market terms (including with respect to any fees, reimbursements or commissions provided for thereunder) commensurate with the size and complexity of the subject Property. Without limiting the foregoing, any such agreement (i) may provide that the applicable Fee Owner shall have the unilateral right to terminate such Property Manager or Broker (as applicable) upon thirty (30) days’ notice and (ii) that is with an Affiliate of General Partner shall provide that the applicable Fee Owner shall have the right to terminate such Property Manager or Broker (as applicable) upon the occurrence of a For Cause Event. Unless and until General Partner has been replaced in accordance with Section 8.1(c)(i), General Partner may provide or may engage an Affiliate to provide the foregoing property management services and leasing services described below. Unless and until General Partner has been replaced in accordance with Section 8.1(c)(i), General Partner (or any Affiliate, if any, engaged by General Partner) shall be entitled to receive, and the Partnership shall pay, a property management fee with respect to each Portfolio Property or Approved Property for which the landlord, as opposed to any applicable tenant, has primary property management responsibilities at such Portfolio Property or Approved Property, equal to the greater of (i) the property management fee reimbursable by the tenant(s) at such Property (less any amounts paid to a third-party Property Manager) and (ii) one percent (1%) of the gross revenues with respect to any Leases at such Property, payable monthly (in addition to any fees payable to a third-party

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property manager). Unless and until General Partner has been replaced in accordance with Section 8.1(c)(i), the Partnership will pay to LRA (or its designee or assignee) a leasing fee for new Leases or extensions of existing Leases (other than extensions or renewals pursuant to renewal rights exercised by then existing tenants in accordance with the terms of their existing Leases) equal to the sum of (i) three-quarters of one percent (0.75%) of the rent payable over the first ten (10) years of the new or extended Lease term and (ii) one and one-half percent (1.5%) of the rent payable over the portion of the Lease term beyond ten (10) years (on a gross or net basis depending upon local custom with respect to the applicable Property). The foregoing leasing fee is in addition to any fees payable to third-party leasing brokers in connection with such leasing events.

(b)               Unless and until General Partner has been replaced in accordance with Section 8.1(c)(i), General Partner (or its assignee or designee, including LRA, without duplication of any fees payable hereunder) shall be entitled to receive, and the Partnership shall pay, an annual asset management fee, payable quarterly, in arrears, within ten (10) Business Days following the end of each calendar quarter, in an amount equal to the greater of (i) one-half of one percent (0.5%) of the aggregate Initial Value of all assets (as of the date of acquisition or contribution) owned by the Partnership or any Subsidiary at any time during such quarter, (ii) One Hundred Twenty-Five Thousand Dollars ($125,000) per Property owned in whole or in part by the Partnership or any Subsidiary at any time during such quarter, and (iii) Four Hundred Thousand Dollars ($400,000) (the “Asset Management Fee”). General Partner (or its assignee or designee) shall be entitled to any and all Asset Management Fees payable with respect to the Portfolio Properties and other Approved Properties, which together with the Portfolio Properties have an aggregate Initial Value up to, but not exceeding, $800,000,000 (such Portfolio Properties and Approved Properties, collectively, the “GP Managed Properties”), and LRA shall be entitled to any and all other Asset Management Fees payable by the Partnership. In consideration therefor, General Partner (or its assignee or designee) shall provide asset management services to the Partnership with respect to the GP Managed Properties and LRA shall provide asset management services to the Partnership with respect to any Approved Properties other than the GP Managed Properties, in both cases, including reporting and compliance under any documents governing any Loan, sale transaction oversight and management, Lease and leasing management, construction oversight, Partnership accounting and asset management, all to the extent required hereunder and in accordance with the terms hereof.

(c)                Notwithstanding anything to the contrary, in connection with any capital project or renovation work to be performed at any Property that constitutes a Permitted Expense, General Partner may cause the applicable Fee Owner to enter into a construction management agreement with LRA pursuant to which LRA would act as construction manager and would be paid a market rate fee, to the extent that such capital project or renovation work is not fully managed by the applicable tenant.

(d)               General Partner on request of any Partner shall provide such Partner access to all (i) pertinent, written formal communications under the Leases affecting the Properties and (ii) final, executed, written term sheets and letters of intent associated with the leasing or sale of the Properties.

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8.3              Annual Business Plan; Annual Budget.

(a)                No later than sixty (60) days prior to the end of each Fiscal Year, General Partner shall (i) prepare (or cause to be prepared) an Annual Business Plan for the next Fiscal Year and (ii) deliver a copy of such Annual Business Plan to the other Partners, together with notice requesting such Partners’ Approval of such Annual Business Plan. Further, General Partner may from time to time prepare (or cause to be prepared) an update to the current Approved Annual Business Plan and deliver a copy of such update to the other Partners, together with notice requesting the other Partners’ Approval of such update. Each such other Partner shall, within thirty (30) days after receipt of such update or Annual Business Plan, deliver to General Partner notice stating that such Partner either Approves or disapproves such proposed update or Annual Business Plan (which notice shall describe in reasonable detail the reasons for any such disapproval). If a Partner fails to deliver notice of its Approval or disapproval of such update or Annual Business Plan within such thirty (30) day period, then such Partner shall be deemed to have disapproved such update or Annual Business Plan.

(b)               If prior to the start of a Fiscal Year, there is no Annual Business Plan for such Fiscal Year Approved in accordance with Section 8.3(a), then there shall, unless and until such Annual Business Plan is so Approved, be deemed an Approved Annual Business Plan for such Fiscal Year that includes:

(1)any items or portions of the Annual Business Plan and amounts of expenses provided therein that have been so Approved;
(2)for each month of such Fiscal Year noncapital, recurring expenses in an amount equal to the budgeted amount for the immediately preceding Fiscal Year, as set forth on the immediately preceding Fiscal Year’s Approved Annual Business Plan after giving effect to any dispositions or other material changes to the Properties (including acquisitions of any Approved Properties) during the prior or current Fiscal Year and to inflation; provided, however, that if any contract to which the Partnership or a Subsidiary is a party provides for an automatic increase in costs thereunder, then such increase shall be deemed part of the Approved Annual Business Plan for such Fiscal Year;
(3)(i) real estate or personal property taxes for any Property; (ii) insurance premiums; (iii) regular payments of debt service, mandatory amortization amounts and any reserve amounts due under any Loan; (iv) amounts currently due and payable, or to become due and payable, during the Fiscal Year under any Leases, service contracts or other agreements or contractual obligations to which the Partnership or any Subsidiary is a party or obligor, whether or not the same are categorized for accounting purposes as ordinary operating expenses or capital improvements and cannot be cancelled, terminated or deferred without material penalty or other
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material adverse effect to the Partnership or any Subsidiary; (v) costs of utilities; (vi) amounts required to be paid to maintain the legal compliance of any Property; (vii) Fees payable to the General Partner (or any Affiliate or assignee thereof); (viii) the reinvestment for restoration purposes of insurance proceeds or condemnation proceeds (either below the threshold constituting a Major Decision or else to the extent such restoration is approved as a Major Decision); and (ix) any other matters otherwise approved by the Partners;

(4)items from the most recently Approved Annual Business Plan with respect to general and administrative expenses.

(c)                Contemporaneously herewith, the Partners have Approved the Annual Business Plan for the Fiscal Year 2022.

(d)               In formulating the Annual Business Plan, to the extent reasonably feasible at the time of preparation thereof, General Partner will develop proposed strategies regarding (i) plans for the leasing, financing, sale and rehabilitation of any Property, including proposed reductions to expenses and other Partnership and Subsidiary costs and expenses and increases in revenues, (ii) terms for any proposed sale or disposition of a Property, or acquisition, directly or indirectly, of additional property, and (iii) the selection of legal counsel, accountants, appraisers and other consultants for the Partnership and the Subsidiaries to efficiently implement the Annual Business Plan.

8.4              Implementation of Annual Business Plan. Notwithstanding anything to the contrary in this Agreement, General Partner shall utilize efforts consistent with the Performance Standard to implement the Approved Annual Business Plan or an update thereof.

8.5              Other Activities; Duties. Except as expressly set forth in this Agreement, neither the Partnership nor any Partner (or any Affiliate of any Partner) shall have any right by virtue of this Agreement either to participate in or to share in any other now existing or future ventures, activities or opportunities or in the income or proceeds derived from such ventures, activities or opportunities of any of the other Partners or their respective Affiliates. Except as otherwise expressly provided in this Agreement, none of the Partners shall have any duties or liabilities to the Partnership or any other Partner (including any fiduciary duties), whether or not such duties or liabilities otherwise arise or exist in law or in equity, and each Partner hereby expressly waives any such duties or liabilities; provided, however, that this sentence shall not eliminate or limit the liability of the Partners (i) for acts or omissions that involve fraud, willful misconduct or gross negligence or (ii) for any transaction not permitted or authorized under or pursuant to this Agreement from which a Partner derived a personal benefit, unless all of the Partners have Approved such transaction in their respective sole and absolute discretion; provided further, however, that the duty of care of each Partner to each other Partner and to the Partnership is to not commit fraud, willful misconduct or gross negligence with respect to the Partnership.

8.6              Limitation on Actions of Partners; Binding Authority. No Partner shall, without the Approval of the other Partners in their respective sole and absolute discretion, take any

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action on behalf of, or in the name of, the Partnership or any Subsidiaries, or enter into any contract, agreement, commitment or obligation binding upon the Partnership or any Subsidiaries, or, in its capacity as a Partner, perform any act in any way relating to the Partnership or any Subsidiaries or the Partnership’s or any Subsidiary’s assets, except in a manner and to the extent consistent with the provisions of this Agreement.

8.7              Foreign Corrupt Practices Act.

(a)                In compliance with the Foreign Corrupt Practices Act, each Partner shall not, and shall ensure that its officers, directors, employees, members, agents and Affiliates acting on its behalf or on the behalf of the Partnership or any Subsidiaries or their respective Affiliates do not, for a corrupt purpose, offer, directly or indirectly, promise to pay, pay, promise to give, give or authorize the paying or giving of anything of value to a Government Official or a Close Relative of a Government Official (or any other Person if such payment or transfer would violate the laws of the country in which such payment or transfer is made or the laws of the United States of America or other applicable Anti-Corruption Laws).

(b)               Each Partner shall not, and shall ensure that its officers, directors, employees, members, agents and Affiliates acting on its behalf or on the behalf of the Partnership or any Subsidiaries or their respective Affiliates do not, make any Facilitating Payments.

(c)                Each Partner shall not, and shall ensure that its officers, directors, employees, members, agents and Affiliates acting on its behalf or on the behalf of the Partnership or any Subsidiaries or their respective Affiliates do not, make any payments or transfers of value that have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business. This Section 8.7(c) shall not, however, prohibit normal and customary business meals and entertainment or the giving of business mementos of nominal value, provided that such activities are reasonable in the circumstances in which they are undertaken and do not violate the laws of the country in which such activities are undertaken, the laws of the United States of America or other applicable Anti-Corruption Laws.

(d)               Each Partner shall immediately notify the other Partners of any request received by such Partner or any of its officers, directors, employees, members, agents or Affiliates, acting on its behalf, to take any action that may constitute a violation of the Foreign Corrupt Practices Act, the laws of the country in which the request was made or that the request involves or other applicable Anti-Corruption Laws.

8.8              Prohibited Persons, Patriot Act and Anti-Money Laundering. Each Partner hereby represents and warrants to each other Partner as of the Effective Date that neither such Partner nor any of its officers, directors, employees, or, to such Partner’s knowledge, representatives or investors, are (i) Prohibited Persons or (ii) organized, operating or resident in any Sanctioned Jurisdiction. Each Partner hereby represents and warrants to each other Partner as of the Effective Date that it is as of the Effective Date, and has been during the five (5) years prior

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to the Effective Date, in compliance with Sanctions and Anti-Money Laundering Laws. General Partner shall use efforts consistent with the Performance Standard to ensure that the Partnership is and remains in compliance with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each Partner covenants that it shall not, so long as the Bank of America Loan is outstanding, directly or indirectly, use any proceeds from the Bank of America Loan (including any distributions from the Partnership) (i) to fund any activities or business of or with a Sanctioned Entity, (ii) in any manner that would be prohibited by Sanctions or would otherwise cause the Partnership or Bank of America, N.A. to be in breach of any Sanctions, or (iii) in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws.

8.9              Proposed Property Acquisitions.

(a)                Pursuit Approval; Exclusivity. From time to time (prior to any removal and replacement of the General Partner pursuant to Section 8.1(c)), until each Partner’s respective Approved Property Capital Commitment has been reduced to $0, any Partner or LRA may identify Target Properties that the proposing party determines, in its sole discretion, are appropriate for the Partnership, as candidates for acquisition, directly or indirectly, by the Partnership and propose the acquisition of such Target Property pursuant to and in accordance with this Section 8.9 (any such proposed Target Property, a “Proposed Property”). Notwithstanding the foregoing, until each Partner’s respective Approved Property Capital Commitment has been reduced to $0, none of LXP GP, LXP LP, LRA or any Affiliate thereof shall pursue an acquisition of any Target Property unless LXP GP or LRA promptly proposes such Target Property to the Partners as a Proposed Property pursuant to, and in accordance with, this Section 8.9. Until each Partner’s respective Approved Property Capital Commitment has been reduced to $0, Investor Partner will endeavor to propose Target Properties to the other Partners pursuant to this Section 8.9 prior to Investor Partner pursuing an acquisition of any such Target Property, but only if Investor Partner is actually aware of, and itself actively engaged in, such proposed acquisition, and in control of the applicable acquisition process (as opposed to being an investor (or a potential investor) in another joint venture under which a third party or an Affiliate of Investor Partner acts as general partner or managing member and will manage and control such process); provided that, in no event shall a failure by Investor Partner or any Affiliate of Investor Partner to propose a Target Property to the other Partners pursuant to this Section 8.9 constitute a breach or default of this Agreement or otherwise give rise to any right or remedy hereunder, and in no event shall any Affiliate of Investor Partner have any obligation to comply with the obligations of Investor Partner under this sentence. If (i) Investor Partner proposes any Target Property to the Partners pursuant to this Section 8.9 or (ii) (A) General Partner or LRA proposes any Target Property to the Partners pursuant to this Section 8.9 and (B) Investor Partner grants its Approval to proceed with the acquisition of such Target Property following receipt of a Proposed Property Overview but subsequently disapproves of such Approved Proposed Property, then, in either such case, neither Investor Partner nor any of its Affiliates shall pursue the acquisition of such Target Property (as an active participant in any such acquisition process or as an investor, to the extent Investor Partner, or its Affiliate, in its role as investor has any consent right with respect to the pursuit of any such target acquisition) until the earlier of (i) one (1) year after the date on which such Target Property was initially proposed to the Partners, or (ii) the date on which the pursuit or acquisition of

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such Target Property has been disapproved by LRA, General Partner or any other LXP Partner. Investor Partner furthermore agrees and covenants that neither Investor Partner nor any of its Affiliates is bound by, nor until Investor Partner’s Approved Property Capital Commitment has been reduced to $0 will it be bound by, any binding obligation to exclusively present Target Properties to any third party that would restrict Investor Partner’s ability to pursue acquisitions of Target Properties through the Partnership as contemplated by this Section 8.9 (other than non-competition obligations with respect to acquisitions that may compete with other investments or interests of Investor Partner and its Affiliates). Prior to entering into any agreement to acquire a Proposed Property on behalf of the Partnership or causing the Partnership (or any Subsidiary) to incur any Pursuit Costs (as defined in Section 8.9(f) below) (the foregoing not implying that any Partner other than General Partner has the authority to so enter into any agreement or incur costs on behalf of the Partnership, unless otherwise Approved by the General Partner), the applicable proposing party shall submit the Proposed Property Overview described in Section 8.9(b) hereof with respect to the Proposed Property to the Partners. The Partners shall have seven (7) days after their receipt of the Proposed Property Overview to Approve or disapprove in writing of the Partnership entering into a purchase and sale agreement, incurring Pursuit Costs (as defined below) and undertaking due diligence for the acquisition of such Proposed Property (any such purchase agreement to be in the name of a Subsidiary which holds no assets other than such purchase agreement and the related Earnest Money and to have such material terms as provided in the Proposed Property Overview or as otherwise Approved by the Partners), and any Partner’s failure to provide its Approval in writing within such seven (7) days shall be deemed a disapproval by such Partner.

(b)               Proposed Property Overview. Subject to the final paragraph of this subsection (b), for each Proposed Property, the General Partner or LRA (as the case may be), or Investor Partner, as applicable, shall deliver to the Partners an overview of such Proposed Property (the “Proposed Property Overview”) describing such Proposed Property, including without limitation, subject to and to the extent in the possession of the proposing party at the time of the proposal, the following items and information:

(1)the draft letter of intent or draft purchase and sale agreement for such Proposed Property;
(2)the size and location thereof and the improvements thereon;
(3)the identity of the tenant(s) or proposed tenant(s) and any lease guarantors or other obligors, and any non-public financial information in the proposing party’s possession regarding the tenant(s), proposed tenant(s) and guarantors or other obligors;
(4)the material lease (or proposed lease) terms, including rent, lease term, tenant options (for purchase, renewal, expansion, etc.);
(5)photographs and site plans;
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(6)the estimated cost to the Partnership, including the estimated purchase price and estimated transaction and due diligence costs, and the estimated amount and material terms of any mortgage and mezzanine indebtedness to be assumed, incurred or taken subject to;
(7)the amount of Earnest Money to be deposited and the timing for such deposit to become non-refundable;
(8)a preliminary cash flow model that includes, without limitation, the projected gross and net internal rate of return, equity multiple and profit to be derived from the proposed investment with respect to the Proposed Property and a summary business plan, to the extent available; provided that any such cash flow model and business plan shall be preliminary and based upon the proposing party’s knowledge and projections at such time;
(9)any other material facts and/or structuring considerations with respect to the acquisition, operation, financing and ownership of such Proposed Property in the possession of the proposing party at such time; and
(10)such other information and documentation as any Partner may reasonably request and is reasonably available to the proposing party, including copies and/or drafts of the purchase and sale agreement, leases, loan documents, financing term sheets and commitments, to the extent that any of the above is then available.

The Partners agree and acknowledge that the Proposed Property Overview and all materials presented in connection therewith will be preliminary materials based on the proposing party’s knowledge at such time and may contain forward-looking statements that contain risks and uncertainties and are inherently uncertain, and the proposing party shall not make or be deemed to have made any representation or warranty as to the accuracy of such projections but shall prepare any such projections in good faith based on the knowledge and information available to such party at such time. Each Partner must rely on its own investigation, due diligence and judgment in approving any Proposed Property. Notwithstanding the foregoing, if the Investor Partner is the proposing Partner, then (i) the Investor Partner shall deliver to the other Partners all items and information in possession of the Investor Partner with respect to the Proposed Property, but Investor Partner shall not be required to prepare any memoranda, models, estimates or other analyses or submit any materials comprising the Proposed Property Overview that were not provided to or previously prepared by Investor Partner and (ii) if requested by the Investor Partner following the Approval by the other Partners of the pursuit of the applicable Proposed Property, the General Partner shall use commercially reasonable efforts to prepare and/or deliver to the Investor Partner and the other Partners the balance of the items and information comprising the Proposed Property Overview.

(c)                Due Diligence Period. Upon receipt of the written Approval of all of the Partners as provided in Section 8.9(a) above of the pursuit by the Partnership of a

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Proposed Property (an “Approved Proposed Property”), the General Partner shall have the authority on behalf of the Partnership (i) to negotiate and execute (subject to the further terms of this Section 8.9 and to the rights of the other Partners set forth in this Section 8.9 to subsequently disapprove of the acquisition of such Approved Proposed Property) a purchase and sale agreement for such Approved Proposed Property (an “Approved Property Purchase Agreement”) and any other documents necessary to have the right to acquire the Approved Proposed Property and (ii) to complete, at the Partnership’s expense, due diligence that the General Partner deems reasonably necessary, including (to the extent not already completed) obtaining an Environmental Assessment, a Physical Inspection Report, a survey, a zoning report and a pro forma title policy with respect to such Approved Proposed Property. Following the Approval of the pursuit of the Approved Proposed Property, the General Partner shall, upon receipt of any such documents, reports and materials, provide (which may be provided by shared access to a Sharefile (provided each Partner confirms by email that it is able to access any such Sharefile to view and download the applicable materials), which shall constitute Notice as of the date added to such Sharefile if added before 5:00 p.m. New York time on a Business Day (and otherwise, on the next Business Day)) to the Limited Partners copies of the Environmental Assessment, the Physical Inspection Report, the title commitment and related title exception documents, the survey, the zoning report and the pro forma title policy, and any other material due diligence and/or debt financing materials (including, without limitation, proposed financing term sheets, draft loan documents, third-party reports, and amendments or assignments of the applicable Approved Property Purchase Agreement), in each case, in the final form presented to the General Partner (and such interim forms as General Partner in its sole discretion determines to be material), and notice of all material changes to any material acquisition terms (including material financing terms) that are different from the Proposed Property Overview or other information previously provided to the Limited Partners, including, without limitation, any failure of the seller of such Approved Proposed Property to satisfy all of its material covenants, obligations and closing conditions under the applicable Approved Property Purchase Agreement (“Material Changes”). General Partner shall have the authority to, and may engage, LRA or another Affiliate of LXP, in its discretion, at reasonable cost to conduct the due diligence and other actions contemplated by this Section 8.9(c) on behalf of the Partnership. No later than five (5) Business Days prior to the expiration of the contingency period in the Approved Property Purchase Agreement, General Partner shall send a Notice of the impending expiration of the contingency period to the Limited Partners and recommending approval (or disapproval) of proceeding with the acquisition of the Approved Proposed Property, and each Partner shall have until no later than two (2) Business Days prior to the expiration of such contingency period to approve or disapprove of proceeding with the acquisition in each Partner’s sole and absolute discretion for any reason or for no reason, and any Partner’s failure to respond in writing within such period shall be deemed a disapproval by such Partner. If a Partner has disapproved (or is deemed to have disapproved) such Approved Proposed Property, then General Partner shall promptly (and in any event prior to the date upon which the Earnest Money becomes non-refundable) (i) terminate the Approved Property Purchase Agreement and use commercially reasonable efforts to cause any Earnest Money to be refunded in full to the Partnership, subject to the terms of the applicable Approved Property Purchase Agreement, or (ii) if the Partner Group not

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including such disapproving Partner elects to pursue the Approved Proposed Property, within one (1) day of such disapproval (or as soon as practical thereafter), assign the Approved Property Purchase Agreement to such Partner Group in exchange for payment from such Partner Group to the Partnership of the Earnest Money and any other Pursuit Costs related to such Approved Proposed Property and a release by such Partner Group of the Partnership and the applicable Subsidiary, if applicable, from all liability relating to the Approved Property Purchase Agreement. The Partnership shall bear all expenses incurred by the General Partner in pursuing the release of any such Earnest Money in accordance with clause (i) of the immediately preceding sentence, and the General Partner shall not be liable to the Partnership or the Partners for the failure of the applicable seller or escrow agent to release such Earnest Money to the Partnership, unless due to General Partner’s failure to timely terminate the Approved Property Purchase Agreement and request a release of such Earnest Money in accordance with the terms of the applicable Approved Property Purchase Agreement, or the gross negligence, willful misconduct or fraud of the General Partner or any Affiliate of the General Partner.

(d)               Acquisition of Approved Properties. After the Partnership has committed Earnest Money on a non-refundable basis in accordance with Section 8.9(c), each Partner shall have three (3) Business Days after receipt of a Notice of any Material Change (including final financing terms and documents, if applicable) in which to approve or disapprove of such change by providing written Notice to the other Partners; provided that, such three (3) Business Day period may be extended by mutual agreement of the Partners if the Material Change is susceptible of cure and the seller (or other applicable party) is pursuing the cure thereof; and further provided that if such Notice of Material Change is delivered within five (5) Business Days of the anticipated closing date of the acquisition of an Approved Proposed Property, then each receiving Partner shall have one (1) Business Day after receipt of such Notice to continue to approve, or to disapprove of the acquisition of such Approved Proposed Property, but in no event shall any Partner have the authority to disapprove of any acquisition of such Approved Proposed Property after the closing. A Partner’s failure to timely deliver such approval or disapproval shall be deemed such Partner’s disapproval of such Material Change and the acquisition of such Approved Proposed Property. If the acquisition of the Approved Proposed Property shall continue to be Approved by each Partner, then the General Partner shall be authorized to close the acquisition of the Approved Proposed Property through one or more Subsidiaries (subject to the right of the Partners to require termination of the Approved Property Purchase Agreement as described below). In addition to its right to disapprove (or be deemed to disapprove) of a Material Change and thereby withdraw its approval of the acquisition of an Approved Proposed Property as provided above, each Partner shall have the right to require the General Partner to terminate the Approved Property Purchase Agreement (or, if such termination is exercised by any Partner not a part of the LXP Partner Group, at the election of an LXP Partner, assign the Approved Property Purchase Agreement to the LXP Partner Group in accordance with Section 8.9(c)) if such Partner (such Partner, the “Rejecting Partner”) (i) determines, in its sole judgment, that any material adverse circumstances or conditions exist or shall have occurred, or there shall have been any material adverse change with respect to, the Approved Proposed Property or its tenants, the operations, business, assets, liabilities or condition (financial or otherwise) of the Partnership or the financial markets resulting from any cause whatsoever

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(including, without limitation, any pandemics, epidemics, shelter in place orders, government imposed travel restrictions or any other governmental order) that could reasonably be expected to materially and adversely affect the value or marketability of the Approved Proposed Property, (ii) delivers notice to the General Partner no later than three (3) Business Days prior to the proposed closing date of the acquisition of the Approved Proposed Property, and (iii) if such decision to terminate is not based upon a Material Change (or mutually agreed by the LXP Partner Group and Investor Partner), then such Rejecting Partner shall reimburse the Partnership (and the General Partner for any actual costs not paid or reimbursed by the Partnership) for all Acquisition Costs incurred as of such date of termination (unless such Approved Proposed Property is assigned to any Partner Group or its designees or assigns in accordance with Section 8.9(e), in which event such assignee shall be responsible for such Acquisition Costs).

(e)                Disapproved Proposed Properties. If any Partner (a “Disapproving Partner”) (x) disapproves (or is deemed to have disapproved) any Proposed Property as provided in Section 8.9(a), (y) disapproves (or is deemed to have disapproved) of the continuation of the approval of the acquisition of an Approved Proposed Property as provided in Section 8.9(c) above, or (z) otherwise withdraws its approval of an Approved Proposed Property as provided in Section 8.9(d) above, then (i) the General Partner shall not cause or permit the Partnership to acquire such Proposed Property or Approved Proposed Property, and (ii) the Partner Group (or their designees or assigns) not including such Disapproving Partner shall have the right to acquire such Proposed Property or Approved Proposed Property for their own account or with or in connection with any other Person. In the event that any Partner Group (or their designees or assigns) desires to proceed with the acquisition of any such Proposed Property or Approved Proposed Property, such Partner Group shall reimburse the Partnership for any Pursuit Costs or other Acquisition Costs (as described in Section 8.9(f) below) incurred by the Partnership (and any such amounts previously funded by the Partners as Capital Contributions shall be reimbursed to the Partners and shall thereafter be deemed not to have been contributed as Capital Contributions nor shall they reduce the Approved Property Capital Commitment of any Partner).

(f)                Acquisition Costs. Except as provided in this Section 8.9(f) and in Sections 8.9(e) and (g) hereof, the Partnership shall be liable for all reasonable, actual, out-of-pocket costs and expenses arising in connection with the identification or evaluation of, the bidding on and the structuring and negotiation of and contracting for the acquisition or attempted acquisition of, the due diligence undertaken in connection with, and any deposits (including Earnest Money) or other reasonable costs accrued in pursuit of, any Approved Proposed Property (or Proposed Property, to the extent such costs are Approved by the Partners), including any reasonable costs incurred in connection with the enforcement of the related Approved Property Purchase Agreement (but excluding any such costs and expenses incurred after a notice of disapproval (or deemed disapproval) is given by any Partner with respect to such Approved Proposed Property, unless such costs or expenses are incurred pursuant to any agreement executed prior to such disapproval) (the “Pursuit Costs”), and the purchase price and other transaction costs reasonably required to acquire the Approved Proposed Property (“Closing Costs”, and collectively with the Pursuit Costs, the “Acquisition Costs”). The Partners acknowledge that Pursuit Costs and Closing Costs

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may exceed the initial estimate provided by the General Partner, and may be increased by certain factors identified during the due diligence period or related to the negotiation of the Approved Property Purchase Agreement, leases, estoppels and subordination, non-disturbance and attornment agreements and other documents and agreements with the tenants at the Approved Proposed Property and/or the financing of the Approved Proposed Property and any documents related thereto. The Partners agree that any costs incurred in accordance with General Partner’s (and its Affiliates’) past practices with respect to due diligence and pursuit of acquisitions of properties similar to the Target Properties shall be deemed to be “reasonable” for purposes of this Section 8.9. The General Partner may call for Additional Capital Contributions to pay for Pursuit Costs from time to time after the Approval of a Proposed Property pursuant to Section 8.9(a), which Additional Capital Contributions shall be due on the date set forth in the Notice requesting such funds, which shall be no less than ten (10) Business Days after the date of such Notice, notwithstanding any longer Contribution Period provided in Section 4.2(a). The General Partner may call for Additional Capital Contributions to pay for estimated Closing Costs (and any remaining unpaid Pursuit Costs) and may also call for payment of the Acquisition Fee (as described in Section 8.9(f) below), which shall be due no later than the later to occur of (x) one (1) Business Day after the date of such notice or (y) two (2) Business Days prior to the estimated closing date of the acquisition, notwithstanding any longer Contribution Period provided in Section 4.2(a). In the event that the acquisition of the Approved Proposed Property does not occur, any such Capital Contributions made for Closing Costs (and any estimated Acquisition Fee) shall be returned to the Partners (or, with respect to the Acquisition Fee, to the Investor Partner) within ten (10) days from the date of termination (or assignment) of the applicable Approved Property Purchase Agreement and shall thereafter be deemed not to have been contributed as Capital Contributions and shall not reduce the Approved Property Capital Commitment of any Partner. On or after the closing of the acquisition of an Approved Proposed Property (upon and following acquisition, an “Approved Property”), the General Partner shall deliver to the Partners a closing statement acknowledging the receipt of and setting forth the application of the Partners’ Capital Contributions and any other funds of the Partnership used to acquire such Approved Property or to pay closing costs (including an estimate of costs not finalized at closing, including legal fees and costs, and actual closing adjustments and prorations made in accordance with the Approved Property Purchase Agreement) associated therewith, and, if applicable, shall (x) call for Additional Capital Contributions from the Partners to pay for any actual Closing Costs (or other Acquisition Costs) in excess of the estimated Closing Costs previously funded, or (y) return to the Partners within ten (10) days after such closing any previously contributed Capital Contributions not used for Closing Costs, which returned amounts shall thereafter be deemed not to have been contributed as Capital Contributions and shall not reduce the Approved Property Capital Commitment of any Partner. All Capital Contributions made with respect to Acquisition Costs shall be deemed to have been made as of the date of the closing of the acquisition of the Approved Property, provided, however, that if an Approved Proposed Property is not acquired, then (subject to Section 8.9(e)) any Capital Contributions made with respect to Pursuit Costs shall be deemed made as of the date of the termination of the Approved Property Purchase Agreement (or any earlier disapproval (or deemed disapproval) by a Partner of an acquisition). Notwithstanding the foregoing, upon the Approval of all of the Partners, the

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General Partner may cause the Partnership to use Partnership funds for some or all of the Acquisition Costs, which expenditures of Acquisition Costs shall be treated as if they had been distributed to the Partners (or in the case of the Acquisition Fee, the Investor Partner) in accordance with Section 5.1 and then contributed as Additional Capital Contributions or contributions for Acquisition Fees, as the case may be.

(g)               Acquisition Fee. In consideration for the services provided by LRA in connection with (i) the acquisition of any Approved Property by the Partnership or any Subsidiary (including any Approved Property contributed in whole or in part by any Affiliate of any LXP Partner or LXP to the Partnership), pursuant to this Section 8.9, or (ii) the acquisition or commencement of construction of any building, or commencement of any expansion of any existing building or other improvements on any Property (as Approved by the Partners as a Major Decision pursuant to Section 8.1(a) (an “Expansion”), the Partnership shall, upon such acquisition or Expansion pursuant to the foregoing clauses (i) or (ii) and pursuant to the terms set forth in Section 8.9(f), pay LRA an acquisition fee (the “Acquisition Fee”) equal to the Initial Value of such acquired Approved Property or Expansion multiplied by: (i) with respect to any off-market transaction of such Approved Property or Expansion, 0.60% or (ii) with respect to any marketed transaction of such Approved Property or if such Approved Property was sourced by Investor Partner (or its Affiliate), 0.40%. The Acquisition Fee shall be borne solely by Investor Partner. Investor Partner shall contribute (or otherwise bear) the amount necessary to pay any such Acquisition Fee to the Partnership upon notice from General Partner that an Acquisition Fee is due pursuant to the terms of Sections 8.9(f) and (g) and such contributed (or otherwise paid) amount shall be paid by the Partnership to LRA pursuant to this Section 8.9(g). No LXP Partner shall be required to contribute capital or otherwise bear any Acquisition Fees.

8.10          CFIUS8.11. Each Partner hereby represents and warrants to each other Partner as of the Effective Date that such Partner, to its knowledge, is not a “foreign person” within the meaning of CFIUS regulations (31 C.F.R. 800.216). Each Partner shall (a) within five (5) days of receipt of the same, notify General Partner of, and provide General Partner with a copy of, any inquiry received from CFIUS or any other Governmental Authority related to any Lease or the Partnership’s direct or indirect acquisition of any Property, (b) make any filing requested by CFIUS related to any Lease and/or the Partnership’s direct or indirect acquisition of any Property, (c) cooperate with, and fully respond to any inquiries received from, CFIUS or any other Governmental Authority related to CFIUS’s review and/or investigation (the “CFIUS Review”) related to any Lease and/or the Partnership’s direct or indirect acquisition of any Property, in each case, within the time permitted by CFIUS or such Governmental Authority, as applicable, and (d) subject to the terms and conditions hereof (and any terms and conditions of the loan documents evidencing the Bank of America Loan), take any mitigation measures requested by CFIUS and/or any Governmental Authority in connection with the CFIUS Review.

Section 9.                Confidentiality. Any information relating to a Partner’s business, operation or finances that is proprietary to, or considered proprietary by, such Partner and any information relating to the Partnership or any Subsidiary and their respective business, operation or finances, regardless of whether in tangible form (plans, writings, drawings, computer software and programs, etc.) or received orally or visually by a Partner (each, a “Receiving Person”) shall be

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referred to herein as “Confidential Information”. All such information received by a Receiving Person shall be presumed to be Confidential Information at the time of delivery to such Receiving Person. Nothing herein shall restrict the disclosure by a specified Partner of information relating to the business, operation or finances of such specified Partner or a Partner that is Affiliated with such specified Partner (and, with respect to such specified Partner, such information shall not constitute Confidential Information subject to this Section 9). All Confidential Information shall be protected by the Receiving Person from disclosure with the same degree of care that the Receiving Person uses to protect its own Confidential Information from disclosure, and in no event less than a commercially reasonable level of care. Without limiting (or limitation by) the foregoing, each Receiving Person agrees (i) not to disclose the Confidential Information to any Person, except to those of its investors, employees or representatives that need to know such Confidential Information in connection with the conduct of the business of the Partnership and/or the Subsidiaries (and only to the extent of such need) and that have agreed to maintain the confidentiality of such Confidential Information and (ii) that neither it nor any of its investors, employees or representatives will use such Confidential Information for any purpose other than in connection with the conduct of the business of the Partnership and the Subsidiaries; provided that such restrictions shall not apply (and such Receiving Person shall not be required to protect such Confidential Information) if such Confidential Information: (x) is or hereafter becomes public, other than by breach of (A) this Agreement by such Receiving Person or a Partner that is Affiliated with such Receiving Person, (B) the Purchase Agreement by such Receiving Person or its Affiliates or (C) the Confidentiality Agreement (as defined in the Purchase Agreement) by such Receiving Person or its Affiliates; (y) was already in the possession of the Receiving Person or its Affiliates prior to any disclosure of the Confidential Information to the Receiving Person by the divulging Partner or its Affiliates; or (z) has been or is hereafter obtained by the Receiving Person from a third-party not bound by any confidentiality obligation with respect to such Confidential Information; provided, further, that nothing herein shall prevent any Partner from disclosing any portion of such Confidential Information (a) to the Partnership and the Subsidiaries and allowing the Partnership and the Subsidiaries to use such Confidential Information in connection with the Partnership’s or the Subsidiaries’ business, (b) pursuant to judicial order or in response to a governmental or regulatory authority inquiry, by subpoena or other legal process, but only to the extent required by such order, inquiry, subpoena or process, and only after reasonable notice to the original divulging Partner, where permitted by law, (c) as necessary or appropriate in connection with or to prevent the audit by a governmental agency of the accounts of a Partner, (d) in order to initiate, defend or otherwise pursue legal proceedings among the Partners regarding this Agreement, (e) as necessary in connection with a Transfer or potential Transfer of an Interest (or of a direct or indirect interest in such Partner) permitted hereunder to a Person that has agreed to maintain the confidentiality of such Confidential Information, (f) to a Partner’s attorneys or accountants or other representatives (including any broker, agent or consultant or other Person preparing an Appraisal) that have a need to know such Confidential Information and have agreed (or are required by applicable ethical standards) to maintain the confidentiality of such Confidential Information, (g) as necessary or appropriate for a Partner or its Affiliates to comply with the Securities Act and applicable state securities laws, (h) as may be required by applicable law or regulation or by obligations pursuant to any listing agreement with any national securities exchange, (i) to the extent that such Partner or its Affiliate is a public company or a REIT making such disclosures consistent with such Partner’s or Affiliate’s past practices that are customary for public companies or REITs, provided that neither Davidson Kempner Capital Management LP nor

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any of its Affiliates shall be named in the disclosures described in this clause (i) without the Approval of Investor Partner, and (j) if such Partner is General Partner, that is related to the business, operations or finances of the Partnership and/or its Subsidiaries, to the extent General Partner deems necessary or appropriate in connection with the management of the Properties. Each Partner shall comply with all restrictions on disclosure of Confidential Information in any Lease or other obligation binding on the Partnership and/or its Subsidiaries. Without limiting the foregoing, each Partner may, from time to time, provide the other Partners notice of its non-public information that constitutes Confidential Information and is subject to this Section 9. Without limiting any of the other terms and provisions of this Agreement, to the extent a Partner (the “Pursuer”) provides another Partner with information relating to a possible investment opportunity then being actively pursued by the Pursuer on behalf of the Partnership, the other Partner receiving such information shall not use such information to pursue such investment opportunity for its own account to the exclusion of the Pursuer or the Partnership so long as the Pursuer is actively pursuing such opportunity on behalf of the Partnership and shall not disclose any Confidential Information to any Person (except as expressly permitted hereunder) or take any other action in connection therewith that is reasonably likely to interfere with the Pursuer or its pursuit of such investment opportunity.

Section 10.            Representations and Warranties; REIT Provisions.

10.1          Representations and Warranties. Each Partner hereby represents and warrants to each other Partner as of the Effective Date that:

(a)                Due Organization. Such Partner has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization and is qualified to do business and in good standing in all jurisdictions where such qualification is necessary to carry on its business as now conducted.

(b)               Due Authorization. Such Partner has the power and authority to enter into this Agreement and to perform its obligations hereunder and thereunder.

(c)                Due Execution and Delivery. This Agreement has been duly authorized, executed and delivered by such Partner, and this Agreement does violate any provision of any agreement or judicial order to which such Partner is a party or to which such Partner is subject.

(d)               Conflicts; Consents. The execution and delivery of this Agreement by such Partner, and the performance by such Partner under this Agreement, do not and will not conflict with or result in a breach of (with or without the passage of time or notice, or both) the terms of any of such Partner’s constituent documents, or any judgment, order or decree of any governmental authority binding on such Partner, and, to such Partner’s knowledge, do not breach or violate any applicable law, rule or regulation of any such governmental authority. The execution, delivery and performance by such Partner under this Agreement will not result in a breach or violation of (with or without the passage of time or notice, or both) the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Partner is subject. All consents of any third parties (including, without

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limitation, creditors and governmental authorities) necessary to such Partner’s execution and delivery of this Agreement and its consummation of the transaction contemplated by this Agreement have been duly obtained prior to the Effective Date.

(e)                Investigation. Such Partner is acquiring its Interest based upon its own investigation, and the exercise by such Partner of its rights and the performance of its obligations under this Agreement will be based upon its own investigation, analysis and expertise. Such Partner is a sophisticated investor possessing an expertise in analyzing the benefits and risks associated with acquiring investments that are similar to the acquisition of its Interest.

(f)                Broker. No broker, agent or other Person acting as such on behalf of such Partner was instrumental in consummating this transaction, and no conversations or prior negotiations were had by such Partner with any broker, agent or other such Person concerning the transaction that is the subject of this Agreement, except for Eastdil Secured, L.L.C.

(g)               Investment Company Act. Neither such Partner nor any of its Affiliates is, nor will the Partnership as a result of such Partner holding an Interest be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended and in effect as of the Effective Date.

(h)               No Plan Assets. Such Partner is not a “benefit plan investor” within the meaning of 29 C.F.R. §2510.3-101(f)(2) nor is such Partner, nor will the Partnership as a result of such Partner holding an Interest be, an employee benefit plan as defined in Section 3(3) of ERISA, nor will the assets of the Partnership be expected, as a result of such Partner holding an Interest, to be deemed “plan assets” (within the meaning of 29 C.F.R. §2510.3-101, as modified by section 3(42) of ERISA).

(i)                 Securities Matters. None of the Interests are registered under the Securities Act or any state securities laws. Such Partner understands that the offering, issuance and sale of the Interests are intended to be exempt from registration under the Securities Act, based, in part, upon the representations, warranties and agreements contained in this Agreement. Such Partner is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

(i)                 Neither the Securities and Exchange Commission nor any state securities commission has approved the Interests or passed upon or endorsed the merits of the offer or sale of the Interests. Such Partner is acquiring the Interests solely for such Partner’s own account for investment and not with a view to resale or distribution thereof in violation of the Securities Act.

(ii)               Such Partner is unaware of, and in no way relying on, any form of general solicitation or general advertising in connection with the offer and sale of the Interests, and no Partner has taken any action that could give rise to any claim by any person for brokerage commissions, finders’ fees (without regard to any finders’ fees payable by the Partnership directly) or the like relating to the

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transactions contemplated hereby, other than Eastdil Secured, L.L.C. (in its capacity as broker arranging for the equity capitalization of the Partnership).

(iii)             Such Partner is not relying on the Partnership or any of its officers, directors, employees, advisors or representatives with regard to the tax and other economic considerations of an investment in the Interests.

(iv)             Such Partner understands that the Interests may not be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws, or an exemption from registration is available. Such Partner agrees that it will not attempt to Transfer all or any portion of the Interests in violation of this Agreement.

(v)               Such Partner has adequate means for providing for its current financial needs and anticipated future needs and possible contingencies and emergencies and has no need for liquidity in the investment in the Interests.

(vi)             Such Partner has significant prior investment experience, including investment in non-listed and non-registered securities. Such Partner is knowledgeable about investment considerations and has a sufficient net worth to sustain a loss of such Partner’s entire investment in the Partnership in the event such a loss should occur. Such Partner’s overall commitment to investments that are not readily marketable is not excessive in view of such Partner’s net worth and financial circumstances and the purchase of the Interests will not cause such commitment to become excessive. The investment in the Interests is suitable for such Partner.

The representations and warranties made by any Partner in the LXP Partner Group are qualified by the Exception Matters under and as defined in the Purchase Agreement (with the term “Agreement” as used therein deemed to include this Agreement).

10.2          REIT Provisions. The Partners acknowledge that (a) LXP Industrial Trust, a Maryland real estate investment trust (“LXP”), an indirect parent of the LXP Partners as of the Effective Date, is qualified and operates, and intends to continue to qualify and operate, as a real estate investment trust (“REIT”) for federal income tax purposes and (b) Investor Partner intends to qualify and operate as a REIT for federal income tax purposes effective as of the Effective Date. Accordingly, the Partners acknowledge that General Partner will use commercially reasonable efforts to cause the Partnership to conduct its business and activities (including the business and activities of any Subsidiary) as if the Partnership were itself a REIT; provided, however, that conducting the Partnership as if it were itself a REIT (a) shall not prevent General Partner from taking any action with respect to the Partnership or any Subsidiary, or refrain from taking any action, as provided in an Approved Annual Business Plan; or (b) shall not require the General Partner to cause the Partnership to make distributions to satisfy the distributions requirements generally applicable to a REIT. General Partner will use commercially reasonable efforts to, and to cause any Subsidiaries to, (i) operate in such a manner such that the Partnership, assuming it were a REIT, would satisfy the income and asset tests applicable to REITs (excluding any distribution requirements), (ii) not take any action, or make any decision, that could otherwise

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reasonably be anticipated to result in (A) LXP failing to qualify as a REIT under the Code solely because of its direct or indirect ownership of the LXP Partners’ Interests or (B) Investor Partner failing to qualify as a REIT under the Code solely because of its ownership of the Interests, and (iii) not dispose of any asset in a transaction that would be treated as a “prohibited transaction” within the meaning of section 857(b)(6)(B)(iii) of the Code. Without limiting any of its other obligations in this Section 10.2, the General Partner shall obtain the Approval of the Partners prior to taking any action that, in the reasonable judgment of General Partner, would result in the Partnership (assuming it were a REIT) failing to qualify as a REIT under the Code, excluding any distribution requirements, but including, without limitation, by failing to satisfy the requirements for REIT status under the Code that pertain to the assets or income of a REIT. If an LXP Partner or an Affiliate of an LXP Partner no longer serves as General Partner, then General Partner shall (and shall cause all of its Affiliates and third-parties performing services on behalf of the Partnership and/or any Subsidiary to) consult with nationally recognized U.S. tax counsel (or another nationally recognized U.S. tax advisor) in complying with the foregoing and obtain an annual certification of compliance.

Section 11.            Sale, Assignment, Transfer or Other Disposition.

11.1          Prohibited Transfers. Except as otherwise provided in this Section 11, in no event shall any Partner, without the Approval of all other Partners in their respective sole and absolute discretion, (i) Transfer, directly or indirectly, its Interest, or (ii) suffer or permit a change of Control of such Partner. Any attempted Transfer of a Partner’s Interest in violation of this Agreement shall be void ab initio.

11.2          Permitted Transfers. Notwithstanding anything in Section 11.1 to the contrary, (i) any Partner may Transfer, directly or indirectly, all or any portion of its Interest at any time and from time to time to its Affiliates, provided that such Transfer does not (a) result in a breach or violation of any Consent Requirement or the transfer and/or due on sale provisions of any documents governing any Loan outstanding at the time of such Transfer, (b) trigger any Sale Right, or (c) jeopardize the treatment of the Partnership as a partnership for U.S. federal income tax purposes, as determined in the reasonable discretion of the General Partner, (ii) any Partner may Transfer a portion of its Interest in connection with the appointment of a replacement General Partner pursuant to Section 8.1(c)(i), provided that such Transfer does not (a) result in a breach or violation of any Consent Requirement or the transfer and/or due on sale provisions of any documents governing any Loan outstanding at the time of such Transfer, (b) trigger any Sale Right, or (c) jeopardize the treatment of the Partnership as a partnership for U.S. federal income tax purposes, as determined in the reasonable discretion of the General Partner, and (iii) nothing in this Agreement shall restrict (a) a Fundamental Transaction or the transfer or issuance of shares (or derivative or convertible securities with such shares as the reference or underlying security) in any Person that holds direct or indirect interests in a Partner and in which Person shares are publicly traded, or a merger or similar transaction involving all or substantially all of the interests of any of such Person or (b) the customary issuance of preferred units by Investor Partner in connection with the election by Investor Partner to qualify as a REIT for U.S. federal income tax purposes and the transfer of any such preferred units after the Effective Date, provided that Davidson Kempner Capital Management LP (or Affiliates thereof or funds Controlled thereby) or a board of directors consisting of individuals appointed by Davidson Kempner Capital

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Management LP (or Affiliates thereof or funds Controlled thereby) continues to Control Investor Partner.

11.3          Admission of Transferee. Notwithstanding anything in this Section 11 to the contrary and except as provided in Section 11.5, no Transfer by a Partner of its Interest shall be permitted unless the potential transferee is admitted as a Partner under this Section 11.3. If a Partner Transfers all or any portion of its Interest, such transferee may become a Partner if (i) such transferee executes and agrees to be bound by this Agreement, including the provisions restricting public trading of such Interest, (ii) the Transferring Partner and/or transferee pays all reasonable legal and other fees and expenses incurred by the Partnership in connection with such Transfer and (iii) the Transferring Partner and transferee execute such documents and deliver such certificates to the Partnership and the remaining Partners as may be required by applicable law and as otherwise reasonably required by General Partner (except in connection with the admission of a Replacement General Partner pursuant to Section 8.1(c)(i), in which case as otherwise reasonably required by the Removing Partner). Notwithstanding anything to the contrary, any Transfer or purported Transfer of any Interest, whether to another Partner or to a third-party, shall be of no effect, and such transferee shall not become a Partner, if:

(a)                the Transfer would require registration of any Interest under, or result in a violation of, any federal or state securities laws;

(b)               as a result of such Transfer, the Partnership would be required to register as an investment company under the Investment Company Act of 1940 or any rules or regulations promulgated thereunder, all as amended and in effect as of the date of determination;

(c)                such Transfer may reasonably be expected to cause the assets of the Partnership to be deemed “plan assets” (within the meaning of 29 C.F.R. §2510.3-101, as modified by section 3(42) of ERISA);

(d)               such Transfer could jeopardize the treatment of the Partnership as a partnership for U.S. federal income tax purposes, as determined in the reasonable discretion of the General Partner; or

(e)                as a result of such Transfer, the Interest held by a Partner on the Effective Date would be held by more than three (3) Partners in the aggregate.

Any Partner may require the provision of a certificate as to the legal nature and composition of a proposed transferee of an Interest of a Partner and from any Partner as to its legal nature and composition and shall be entitled to rely on any such certificate in connection with making determinations under this Section 11.3.

11.4          Withdrawals. Each Partner does hereby covenant and agree that it will not withdraw, resign, retire or disassociate from the Partnership, except as a result of a Transfer of its entire Interest as permitted under the terms of this Agreement, and that it will carry out its duties and responsibilities hereunder until the Partnership is terminated, liquidated and dissolved under Section 12. No Partner shall be entitled to receive any Distribution or otherwise receive the fair

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market value of its Interest in compensation for any purported resignation or withdrawal not in accordance with the terms of this Agreement.

11.5          Sale of Property or Partner’s Interest with Right of First Offer. Notwithstanding anything to the contrary, at any time (and from time to time) after the Lock-Out Date, any Partner may, without the Approval of any other Partner (except as further provided below), and without any restriction or limitation as to the terms of such transaction other than as set forth in this Section 11.5, cause the Partnership to sell (or cause the sale of) any Property or Properties (to the extent such Property is not at such time already subject to a purchase agreement entered into in accordance with the terms and conditions of this Agreement) to any Person that is not an Affiliate of such Partner (each, a “Forced Sale”), provided that, with respect to any Forced Sale that includes an Approved Property, (A) the General Partner determines, in its reasonable discretion, that such sale qualifies for the prohibited transactions safe harbour under Section 857(b)(6)(C) of the Code (the “Safe Harbor”) or (B) the Initiating Partner (as defined below) causes nationally recognized tax counsel with expertise in REIT matters (which the Partners agree may be Dechert LLP) to provide a tax opinion to the Partnership to the effect that such sale will not be treated as a prohibited transaction pursuant to Section 857(b)(6) of the Code. Notwithstanding anything to the contrary, if a Partner has been removed as General Partner in accordance with Section 8.1(c)(i), then neither such Partner nor any other Partner in its Partner Group shall be permitted to initiate a Forced Sale under this Agreement. If a Partner desires to cause a Forced Sale pursuant to this Section 11.5, then such Partner (together with all other Partners in its Partner Group, the “Initiating Partner”) shall first give notice (an “Offer Notice”) to all Partners in the other Partner Group (collectively, the “Non-Initiating Partner”), which Offer Notice shall (i) list the Property (or Properties) subject to such Forced Sale (individually or collectively, as the context requires, the “Subject Property”), (ii) set forth (on a Property-by-Property and aggregate basis) (A) the all-cash purchase price for the Subject Property (the “Sale Price”) and (B) all other material terms of such Forced Sale (including, to the extent applicable, any requirements related to the assumption of any debt or other encumbrances then-affecting the Subject Property), and (iii) if such Forced Sale includes an Approved Property, set forth a reasonable description of the basis on which such proposed sale satisfies the Safe Harbor. Within thirty (30) days after receipt of an Offer Notice (the “Exercise Period”), the Non-Initiating Partner shall have the right to purchase (or for any of them or their designee in accordance herewith, the “ROFO Purchaser” to purchase) all (and not less than all) of the Subject Property (the “ROFO Sale”) from the Partnership (or its applicable Subsidiary) for a price equal to the sum of the Sale Price and otherwise on the terms set forth in the Offer Notice by (x) delivering irrevocable notice of such election to the Initiating Partner (the “ROFO Election”), and (y) simultaneously depositing in escrow with Escrow Agent a non-refundable cash deposit equal to three percent (3%) of the Sale Price payable in connection with such ROFO Sale (such deposit, together with interest accrued thereon, a “ROFO Deposit”), to be applied against the Sale Price at the closing of the ROFO Sale.

(a)                If, following its receipt of an Offer Notice, the Non-Initiating Partner has (x) not properly delivered a ROFO Election and made the ROFO Deposit or (y) affirmatively waived its right to make such ROFO Election, in any case within the Exercise Period, then the Non-Initiating Partner shall be deemed to have elected not to purchase the Subject Property and the Initiating Partner shall be free to on behalf of the Partnership (or its Subsidiaries) proceed to initiate and consummate the Forced Sale at a

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price equal to not less than ninety-five percent (95%) of the Sale Price. The Initiating Partner may cause the Partnership (or its Subsidiaries) to offer the Properties for sale either directly or through investment bankers or real estate brokers selected by the Initiating Partner for a commission and on other terms and conditions that are reasonable and customary as reasonably determined by the Initiating Partner. If the Initiating Partner fails to close such Forced Sale within one (1) year after the expiration of the Exercise Period, then any attempt to consummate such Forced Sale thereafter shall again be subject to the provisions of this Section 11.5.

(b)               If, following its receipt of an Offer Notice, the Non-Initiating Partner has properly delivered a ROFO Election and made the ROFO Deposit within the Exercise Period, the Initiating Partner shall cause the Partnership (and its applicable Subsidiaries) to, and the ROFO Purchaser shall, consummate the ROFO Sale on the terms set forth in the Offer Notice (subject to this clause (b)) and on an “as is” and “where is” basis, and the closing date therefor shall be the date that is thirty (30) days after the date of the ROFO Election. On the closing date therefor, (i) Escrow Agent shall release the ROFO Deposit to the Partnership (or the applicable Subsidiary), and the ROFO Purchaser shall pay, to the Partnership or the applicable Subsidiary, the balance of the Sale Price. Contemporaneously or promptly following the closing (and if the ROFO Sale relates to all of the Properties, as a condition of the assignment of Interests described below), the Partnership shall Distribute the proceeds thereof in the amounts and order of priority set forth in Section 12.3(d) in satisfaction of their respective Interests (but without the establishment of any reserves for contingent liabilities pursuant to Section 12.3(d) and, to the extent the ROFO Purchaser assumes any Loan on the applicable Property or Properties, without regard to such Loan) but, for the avoidance of doubt, after giving effect to the repayment of all Shortfall Loans and Shortfall Loan Return). If the Non-Initiating Partner has properly delivered a ROFO Election and made a ROFO Deposit within the Exercise Period, but thereafter the sale contemplated thereby fails to close within such thirty (30) day period for any reason within the reasonable control of (1) the Non-Initiating Partner (or the ROFO Purchaser) (a “ROFO Default”), then the Non-Initiating Partner shall be in material default under this Section 11.5 and Escrow Agent shall release the ROFO Deposit to the Initiating Partner who shall have the right to retain the ROFO Deposit as liquidated damages, it being agreed that in such instance the actual damages would be difficult, if not impossible, to ascertain, and the Non-Initiating Partner shall forfeit its ROFO Deposit and shall have no further rights under this Section 11.5, including the right to give a ROFO Election or to receive Offer Notices, or (2) the Initiating Partner, then the Initiating Partner shall be in material default under this Section 11.5, the Initiating Partner shall have no further rights under this Section 11.5, including the right to give a ROFO Election or to receive Offer Notices, and the Non-Initiating Partner (or the ROFO Purchaser) shall have the right to either (A) terminate the ROFO Sale, in which case the Escrow Agent shall release the ROFO Deposit to the Non-Initiating Partner or (B) pursue, within thirty (30) days of the expiration of the thirty (30) day period following the date of the ROFO Election, specific performance of such ROFO Sale. Furthermore, if a ROFO Default occurs, then thereafter, the Initiating Partner shall have the right to cause the Forced Sale on any terms and conditions determined by the Initiating Partner without any further obligation under this Section 11.5.

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(c)                At the closing of a ROFO Sale, (i) if the Subject Property is all of the Properties, the Initiating Partner shall deliver a written assignment of all of its (or their) Interests to the ROFO Purchaser, or (ii) if the Subject Property is less than all of the Properties, the Partnership shall deliver to the ROFO Purchaser a written assignment of the Partnership’s direct or indirect one hundred percent (100%) limited liability company membership (or other applicable) interest in the Fee Owners of the Subject Property and, if applicable, the related GP Subsidiaries, which assignments shall be, in each case, free and clear of all legal and equitable claims and all liens and encumbrances (other than liens and encumbrances described in the Offer Notice). The Partnership (and its applicable Subsidiaries) and the ROFO Purchaser shall at or prior to such closing execute an agreement mutually Approved by the Initiating Partner and the ROFO Purchaser under which (x) such Persons shall represent and warrant to each other that each is duly organized, validly existing, has the necessary power and authority to consummate the subject transactions and requires no consents in connection therewith that have not been obtained as of the closing date and (y) if the Subject Property is all of the Properties, the Initiating Partner shall represent and warrant to the ROFO Purchaser that it is the owner of its Interest free and clear of all liens and encumbrances (other than liens and encumbrances described in the Offer Notice). At the closing of any ROFO Sale, the Initiating Partner and the Non-Initiating Partner shall execute and deliver (or cause the Partnership or its applicable Subsidiary to execute and deliver, as applicable) such deeds, bills of sale, instruments of conveyance, assignments and other instruments as may reasonably be required to effectuate the transaction. If any Partner fails or refuses to execute any of such instruments, the other Partners are hereby granted an irrevocable power of attorney, coupled with an interest, which shall be binding on the non-executing Partner as to all third-parties, to execute and deliver on behalf of such non-executing Person all such required instruments. Such power of attorney shall survive and not be affected by the subsequent disability, incapacity, dissolution or termination of the applicable Partner. If the Non-Initiating Partner elects to exercise the ROFO Election and in connection therewith the ROFO Purchaser assumes any Loan on the applicable Property or Properties, then, as a condition to doing so, the Non-Initiating Partner shall cause all applicable Lenders or other obligees under any Credit Support given by the Initiating Partner and any Affiliate of the Initiating Partner to deliver to the Initiating Partner and any Affiliate of the Initiating Partner that executed any Credit Support in favor of such Lender or other obligee a release and discharge of the Initiating Partner and any Affiliate of the Initiating Partner therefrom (it being agreed, however, that such release or discharge shall not be required to cover (x) any gross negligence, willful misconduct or fraud by the Initiating Partner and/or its Affiliates on or after the closing of the ROFO Sale or (y) any events, occurrences, acts or omissions arising or occurring prior to the closing of the ROFO Sale); provided, however, if, despite its commercially reasonable efforts, the Non-Initiating Partner exercising such ROFO Election is unable to obtain (or cause to be obtained) the contemporaneous release and discharge of the Initiating Partner or any of its Affiliates from such Credit Support, then the Non-Initiating Partner shall cause a creditworthy Affiliate of the Non-Initiating Partner Approved by the Initiating Partner and/or its Affiliates (as applicable) to instead indemnify and hold harmless the Initiating Partner and/or its Affiliates (as applicable) from their obligations and liabilities in respect of such Credit Support, pursuant to a written indemnity agreement Approved by the Initiating Partner (provided that, in no event shall

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such indemnity be required to cover obligations and liabilities accruing prior to the closing date or to the extent caused by acts or omissions of the Non-Initiating Partner or its Affiliates that involve fraud, willful misconduct or gross negligence).

(d)               At the closing of any Forced Sale, each Partner shall execute and deliver (or cause the Partnership or its applicable Subsidiary to execute and deliver, as applicable) such deeds, bills of sale, instruments of conveyance, assignments and other instruments as may reasonably be required, to give good and clear title to the assets transferred in such Forced Sale. If any Partner fails or refuses to execute any of such instruments, any other Partners are each hereby granted an irrevocable power of attorney, coupled with an interest, which shall be binding on the non-executing Partner as to all third-parties, to execute and deliver on behalf of the non-executing Person all such required instruments of transfer.

(e)                Notwithstanding any other time frames set forth in this Section 11.5, if any Person (i) exercises any Sale Right or (ii) fails to provide consent in accordance with the Consent Requirement, in any case on or prior to the closing date of the Forced Sale or ROFO Sale, then the Initiating Partner (in the event of a Forced Sale) or the ROFO Purchaser (in the event of a ROFO Sale) may extend the closing for a reasonable period not to exceed ninety (90) days to comply with the terms of the Sale Right or Consent Requirement and in the event that as of the closing date (as so extended) any Property included in the Forced Sale or ROFO Sale cannot be sold pursuant to the Forced Sale or ROFO Sale due to the Sale Right or Consent Requirement, then such Property shall be removed from the ROFO Sale or the Forced Sale, and the terms of such ROFO Sale or Forced Sale shall be commensurately modified and the Sale Price reduced in accordance with the purchase price allocation therefor set forth in the Offer Notice.

(f)                No exercise or notice under this Section 11.5 shall be conditioned upon the purchase or sale of any other interests or property or upon financing or consummation of any other transaction.

(g)               No Forced Sale or ROFO Sale shall permit or require the assumption of any Loan (or otherwise permit or require the buyer to take subject to any Loan) if such Loan is cross-defaulted or cross-collateralized with any other Loan that would continue following the closing thereof or the Partnership, any Subsidiary, or, unless otherwise Approved by the applicable Partner in its sole and absolute discretion, any Partner or any Affiliate of any Partner would in any way have any liability, other than any liability for which such Non-Initiating Partner would not be required to indemnify pursuant to the final proviso of Section 11.5(c), with respect to such Loan (including under any Credit Support) following the closing thereof.

(h)               If a Replacement General Partner has been appointed, then contemporaneously with the closing of a ROFO Sale for which the Subject Property is all of the Properties or at any time thereafter, the Non-Initiating Partner shall have the right to purchase or (on behalf of the Partnership) redeem Replacement General Partner’s Interest for a purchase or redemption price, as applicable, equal to the Purchase/Redemption Price (but without limiting any amount that it would receive as a Distribution hereunder in

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connection with such ROFO Sale if it has a Percentage Interest). If Non-Initiating Partner desires to exercise such right, it must send notice thereof to Replacement General Partner. The closing of such purchase or redemption shall occur on such date as shall be determined by the Non-Initiating Partner (but not earlier than the closing date for the ROFO Sale and with no less than five (5) Business Days’ advance notice. At the closing of such purchase or redemption, the Non-Initiating Partner and Replacement General Partner shall execute and deliver a purchase or redemption agreement in form and substance reasonably required by the Initiating Partner (provided, however, that such agreement shall provide for an “as-is,” “where-is” transfer of Replacement General Partner’s Interest (without lien or encumbrance thereon other than those created by this Agreement) with customary representations and warranties regarding ownership of the Interest free and clear, due authorization and authority, and other customary terms required by the Non-Initiating Partner. Contemporaneously with such purchase or redemption, the Non-Initiating Partner may cause the Partnership and/or any applicable Subsidiary to terminate any management or other agreement with Replacement General Partner, subject to payment of any amounts due thereunder as a result of such termination.

(i)                 If, following its receipt of an Offer Notice, the Non-Initiating Partner has properly delivered a ROFO Election and made the ROFO Deposit within the Exercise Period, the Non-Initiating Partner may, at any time prior to the closing of the ROFO Sale, assign to any Person its right to receive the assignment of part or all of the Initiating Partner’s Interest, and the Initiating Partner shall cooperate in good faith with the Non-Initiating Partner’s (and the ROFO Purchaser’s) efforts to structure the transfer to meet its tax and organizational goals. No such assignment shall relieve the Non-Initiating Partner of its obligations hereunder, and such cooperation shall not include expenditures by or increased risk to the Initiating Partner and shall not delay the closing.

(j)                 In connection with any specific performance remedy available under this Section 11.6, the Partners, for themselves and on behalf of their respective Affiliates, agree that the arbitrator or judge having jurisdiction over the specific performance remedy shall be entitled to order the appropriate Partner or other Person to execute all necessary documents and to further appoint an appropriate Person to be authorized to execute such documents on behalf of the defaulting Partner or other Person.

(k)               If there is more than one Partner in a Partner Group, then such Partners shall act together in all matters arising under this Section 11.5.

11.6          Buy-Sell. Notwithstanding anything to the contrary set forth elsewhere in this Agreement, a Partner (together with the other Partners in such Partner’s Partner Group, the “Offeror”) may deliver a notice (the “Buy-Sell Notice”) to all other Partner(s) in the other Partner Group (collectively, the “Offeree”) in accordance with the below, from and after the earlier to occur of (x) the Lock-Out Date and (y) the closing of a Fundamental Transaction with respect to any Partner that is not in the Offeror’s Partner Group.

(a)                The Buy-Sell Notice shall:

(1)state that the Offeror is proceeding under this Section 11.6;
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(2)state an aggregate all-cash dollar amount for each of the Properties individually and in the aggregate (such aggregate amount, the “Specified Valuation Amount”);
(3)be accompanied by a bank check (the “Buy-Sell Notice Check”) payable to the direct order of Escrow Agent in an amount equal to three percent (3%) of the amount the Offeror would be required to pay to the Offeree under Section 11.6(b)(1).

(b)               The Offeree shall have the option either:

(1)to sell to the Offeror its entire Interest for an amount equal to the amount that the Offeree would be entitled to receive under this Agreement if the Partnership sold all of the Properties on the date of the Buy-Sell Notice to a third-party for the Specified Valuation Amount (without any deduction for brokerage commissions or other closing costs payable in connection with such a sale) and the Partnership immediately paid all of the Partnership’s (and, without duplication, the Partnership’s pro rata share of any Subsidiary’s) liabilities, including the outstanding balance of any Loan (but not including any prepayment or other transaction-based fees), and distributed the net proceeds (as determined above) and any other assets of the Partnership (and, without duplication, the Partnership’s pro rata share of any assets of the Subsidiaries) on hand on such date to the Partners in the amounts and order of priority set forth in Section 12.3 in satisfaction of their respective Interests (but without the establishment of any reserves for contingent liabilities pursuant to Section 12.3 but, for the avoidance of doubt, after giving effect to the repayment of all Shortfall Loans and Shortfall Loan Return); or
(2)to purchase from the Offeror its entire Interest for an amount equal to the amount that the Offeror would be entitled to receive under this Agreement if the Partnership sold all of the Properties on the date of the Buy-Sell Notice to a third-party for the Specified Valuation Amount (without any deduction for brokerage commissions or other closing costs payable in connection with such a sale) and the Partnership immediately paid all of the Partnership’s (and, without duplication, the Partnership’s pro rata share of any Subsidiary’s) liabilities, including the outstanding balance of any Loan (but not including any prepayment or other transaction-based fees), and distributed the net proceeds (as determined above) and any other assets of the Partnership
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(and, without duplication, the Partnership’s pro rata share of any assets of the Subsidiaries) on hand on such date to the Partners in the amounts and order of priority set forth in Section 12.3 in satisfaction of their respective Interests (but without the establishment of any reserves for contingent liabilities pursuant to Section 12.3 but, for the avoidance of doubt, after giving effect to the repayment of all Shortfall Loans and Shortfall Loan Return).

The amount determined under Section 11.6(b)(1) or Section 11.6(b)(2), whichever is applicable, shall be the “Purchase Price”.

(c)                The Offeree shall have ninety (90) days from the date the Offeree receives the Offeror’s Buy-Sell Notice to exercise by notice to the Offeror (the “Offeree Notice”) either of its options under Section 11.6(b), which Offeree Notice, once given, cannot be withdrawn. In the event the Offeree exercises the option described in Section 11.6(b)(1), the Offeree shall deliver the Buy-Sell Notice Check to Escrow Agent, who shall promptly deposit the Buy-Sell Notice Check in its escrow account and shall hold such deposit pursuant to an escrow agreement to be entered into promptly following the Offeree Notice among the Offeror, the Offeree and such Escrow Agent in a form reasonably required by Escrow Agent and reasonably acceptable to Offeror and Offeree. In the event the Offeree exercises the option described in Section 11.6(b)(2), the Offeree Notice shall be accompanied by the return of the Buy-Sell Notice Check and shall be accompanied by a bank check (the “Offeree Notice Check”) of the Offeree payable to the direct order of Escrow Agent in an amount equal to three percent (3%) of the amount the Offeree is required to pay to the Offeror under Section 11.6(b)(2) and the Offeror shall deliver the Offeree Notice Check to Escrow Agent, who shall promptly deposit the Offeree Notice Check in its escrow account and shall hold such deposit pursuant to an escrow agreement to be entered into promptly following the Offeree Notice among the Offeror, the Offeree and such Escrow Agent in a form reasonably required by Escrow Agent and reasonably acceptable to Offeror and Offeree. If the Offeree does not exercise either of its options within said ninety (90) days, the Offeree shall as of the day following the expiration of such period be conclusively deemed to have elected to exercise the option described in Section 11.6(b)(1) (and Offeree shall promptly deliver the Buy-Sell Notice Check as provided above).

(d)               The Partner Group that is the purchaser as determined under Section 11.6(b) (the “Purchaser”) shall by notice thereof to the Partner Group that is the seller as determined under Section 11.6(b) (the “Seller”) fix a closing date (the “Buy-Sell Closing Date”) that is not later than thirty (30) days following the date of the Offeree’s exercise (or deemed exercise) of one of the aforesaid options, which notice shall be delivered within five (5) Business Days after such exercise (or deemed exercise). The closing shall take place on the Buy-Sell Closing Date at a time during regular business hours specified by the Purchaser and given to Seller no less than five (5) Business Days prior to the Closing Date and at the principal office of the Partnership or such other location as may be Approved by the Partners.

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(e)                At the closing on the Buy-Sell Closing Date, the deposit (and all interest accrued thereon) shall be credited against the Purchase Price, and the Purchaser shall pay the balance of the Purchase Price to the Seller (or its designee) and the Seller shall execute and deliver to the Purchaser such deeds, bills of sale, instruments of conveyance, assignments and other instruments as the Purchaser may reasonably require, to give it good and clear title to the Interest of the Seller. In addition, the Seller shall pay any real property or other transfer taxes, if any, incident to such conveyance. All other closing costs shall be borne by the party who customarily bears such costs for real estate transactions in New York, NY.

(f)                Notwithstanding anything to the contrary, if any Sale Right is exercised pursuant to a Lease with respect to a Property that is subject to a Buy-Sell, the Property shall be excluded from the Buy-Sell and the Buy-Sell shall not be affected thereby, except that the Specified Valuation Amount (and, accordingly, the Purchase Price) shall be decreased by the value of such Property as set forth in the Buy-Sell Notice.

(g)               All payments required under this Section 11.6, including the deposit and the required payment on the Buy-Sell Closing Date, shall be made in U.S. dollars in immediately available federal funds and, except as provided above with respect to the deposit, shall be paid through wire transfer to such account as the Escrow Agent shall designate. The Partner Group entitled to keep the deposit under the terms of this Section 11.6 shall also be entitled to any interest that was earned on the deposit.

(h)               Purchaser may, at any time prior to the Buy-Sell Closing Date, assign to any Person its right to receive the assignment of part or all of Seller’s Interest, and Seller shall cooperate in good faith with Purchaser’s efforts to structure the transfer to meet Purchaser’s tax and organizational goals. No such assignment shall relieve Purchaser of its obligations hereunder, and such cooperation shall not include expenditures by or increased risk to Seller and shall not delay the closing.

(i)                 In the event of a dispute as to the calculation of the Purchase Price or the deposit with respect thereto, or any credits or other adjustments under this Section 11.6, the dispute shall be resolved promptly, upon the request of any Partner delivered prior to the Buy-Sell Closing Date, by the Partnership’s auditor, whose decision shall be final and binding on the Partners absent manifest error. The Buy-Sell Closing Date shall be extended for a reasonable time to the extent necessary to permit the Partnership’s auditor to resolve such dispute.

(j)                 Purchaser shall, at or prior to the closing, cause all applicable Lenders or other obligees under any Credit Support given by the Seller or its Affiliates to deliver to the Seller and any Affiliate of the Seller that executed any Credit Support in favor of such Lender or other obligee a release and discharge of the Seller and such Affiliates therefrom (it being agreed, however, that such release or discharge shall not be required to cover (x) any gross negligence, willful misconduct or fraud by Seller and/or its Affiliates on or after the Buy-Sell Closing Date or (y) any events, occurrences, acts or omissions arising or occurring prior to the Buy-Sell Closing Date); provided, however, if, despite its best efforts, the Purchaser is unable to obtain (or cause to be obtained) the

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contemporaneous release and discharge of the Seller or any of its Affiliates from such Credit Support, then the Purchaser shall cause a creditworthy Affiliate of the Purchaser Approved by the Seller and/or its Affiliates (as applicable) to instead indemnify and hold harmless the Seller and/or its Affiliates (as applicable) from their obligations and liabilities in respect of such Credit Support, pursuant to a written indemnity agreement Approved by the Seller (provided that, in no event shall such indemnity be required to cover obligations and liabilities accruing prior to the Buy-Sell Closing Date or to the extent caused by acts or omissions of the Seller or its Affiliates that involve fraud, willful misconduct or gross negligence).

(k)               If the Purchaser fails to complete the purchase of Seller’s Interest on the Buy-Sell Closing Date in accordance with this Section 11.6, the Purchaser shall be in material default hereunder and the Seller (in addition to any other rights it may have hereunder, at law or in equity, including any right to obtain specific performance) shall be entitled to retain the Purchaser’s deposit and all accrued interest thereon (and Escrow Agent shall promptly release the same from escrow for such purpose) and, in addition, the Seller shall have the right (but not the obligation), upon notice given to the Purchaser within thirty (30) days after such default, to purchase the Purchaser’s Interest at ninety percent (90%) of the amount the Seller would be required to pay the Purchaser under Section 11.6(b)(1) (if the Purchaser was the Offeree) or Section 11.6(b)(2) (if the Purchaser was the Offeror) and otherwise on the terms set forth in this Section 11.6. Furthermore, the Purchaser shall not thereafter have any right to give a Buy-Sell Notice hereunder (but shall continue to have the right to respond to a Buy-Sell Notice by giving an Offeree Notice). The Partners agree that damages to Seller in the event of Purchaser’s default would be difficult and impracticable to ascertain and the retention of the deposit and all accrued interest thereon (in combination with Seller’s other rights, including any right to obtain specific performance) is a reasonable estimate of such damages from such default and shall not be considered a penalty.

(l)                 If the Seller fails to complete the sale of Seller’s Interest on the Buy-Sell Closing Date in accordance with this Section 11.6, the Seller shall be in material default hereunder and the Purchaser (in addition to any other rights it may have hereunder, at law or in equity, including any right to obtain specific performance) shall be entitled to retain the Purchaser’s deposit and all accrued interest thereon (and Escrow Agent shall promptly release the same from escrow for such purpose) and, in addition, the Purchaser shall have the right (but not the obligation), upon notice given to the Seller within thirty (30) days after such default, to purchase the Seller’s Interest at ninety percent (90%) of the amount the Purchaser would be required to pay the Seller under Section 11.6(b)(1) (if the Seller was the Offeree) or Section 11.6(b)(2) (if the Seller was the Offeror) and otherwise on the terms set forth in this Section 11.6. Furthermore, the Seller shall not thereafter have any right to give a Buy-Sell Notice hereunder (but shall continue to have the right to respond to a Buy-Sell Notice by giving an Offeree Notice).

(m)             The Partnership shall immediately prior to any closing under this Section 11.6 Distribute to the Partners in accordance with Section 5.1 the amount of all funds of the Partnership on hand (for the avoidance of doubt, including the Partnership’s share of any Subsidiary’s funds) on such date to the extent not already accounted for in

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determining the amount of the Purchase Price or Purchaser shall otherwise pay such amount to Seller on the Buy-Sell Closing Date, and (ii) the Purchase Price shall be (a) decreased by the amount of Distributions made utilizing funds of the Partnership to the extent already accounted for in determining the amount of the Purchase Price and (b) increased by the amount of Capital Contributions and Preferred Contributions made by the Seller, in any case to the extent occurring after the date of the Buy-Sell Notice and on or before the Closing Date.

(n)               In connection with any specific performance remedy available under this Section 11.6, the Partners, for themselves and on behalf of their Affiliates, agree that the arbitrator or judge having jurisdiction over the specific performance remedy shall be entitled to order the appropriate Partner or other Person to execute all necessary documents and to further appoint an appropriate Person to be authorized to execute such documents on behalf of the defaulting Partner or other Person.

(o)               If a Replacement General Partner has been appointed, then contemporaneously with the closing of a Buy-Sell on the Buy-Sell Closing Date or at any time thereafter, the Purchaser shall have the right to purchase or (on behalf of the Partnership) redeem Replacement General Partner’s Interest for a purchase or redemption price, as applicable, equal to the Purchase/Redemption Price (but without limiting any amount that it would receive as a Distribution hereunder in connection with such Buy-Sell if it has a Percentage Interest). If Purchaser desires to exercise such right, it must send notice thereof to Replacement General Partner. The closing of such purchase or redemption shall occur on such date as shall be determined by Purchaser (but not earlier than the Buy-Sell Closing Date and with no less than five (5) Business Days’ advance notice. At the closing of such purchase or redemption, Purchaser and Replacement General Partner shall execute and deliver a purchase or redemption agreement in form and substance reasonably required by Purchaser (provided, however, that such agreement shall provide for an “as-is,” “where-is” transfer of Replacement General Partner’s Interest (without lien or encumbrance thereon other than those created by this Agreement) with customary representations and warranties regarding ownership of the Interest free and clear, due authorization and authority, and other customary terms required by Purchaser. Contemporaneously with such purchase or redemption, Purchaser may cause the Partnership and/or any applicable Subsidiary to terminate any management or other agreement with Replacement General Partner, subject to payment of any amounts due thereunder as a result of such termination.

(p)               If there is more than one Partner in a Partner Group, then such Partners shall act together in all matters arising under this Section 11.6.

11.7          Option Events.

(a)                Notwithstanding anything to the contrary, if upon the delivery of an Option Notice with respect to any Option Event either (i) (x) an Option Notice (a “Prior Notice”) with respect to any other Option Event (a “Priority Event”) has been delivered in accordance with this Agreement less than ninety (90) days prior to the date of any such subsequent Option Notice, (y) the transactions contemplated by such Prior Notice have not

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been consummated or completed and (z) the right to consummate and complete such transactions has not expired or been rescinded or (ii) an action for specific performance has been instituted and is pending with respect to such Priority Event, then the delivery of such Prior Notice or the institution of any such action for specific performance shall supersede and void the delivery of any such subsequent Option Notice with respect to any Option Event other than such Priority Event.

(b)               Any Option Event shall be subject to compliance with any Leases or other agreements affecting the subject Properties (for the avoidance of doubt, including any documents governing any Loan), all Consent Requirements shall be fulfilled prior to the consummation of any such Option Event and the Partner that is the Initiating Partner (in the event of a ROFO Sale), the Initiating Partner (in the event of a Forced Sale) or the Seller (in the event of a Buy-Sell) shall comply with the requirements of the Leases or other agreements affecting the subject Properties or Interests (for the avoidance of doubt, including any documents governing any Loan and including the terms of any Sale Right) that are applicable to such Option Event. Without limiting the generality of the foregoing, if any Sale Right or Consent Requirement is triggered by the delivery of an Option Notice or otherwise by the exercise of an Option Event, then the Partners shall, as applicable, (i) cooperate to comply with the terms of any such Sale Right or (ii) use commercially reasonable efforts to fulfill any such Consent Requirement.

Section 12.            Dissolution.

12.1          Limitations. The Partnership may be dissolved, liquidated and terminated only pursuant to the provisions of this Section 12, and, to the fullest extent permitted by law but subject to the terms, conditions, limitations and restrictions of this Agreement, the Partners do hereby irrevocably waive any and all other rights they may have to cause a dissolution of the Partnership or a sale or partition of any or all of the Partnership’s assets.

12.2          Exclusive Events Requiring Dissolution. The Partnership shall be dissolved only upon the earliest to occur of the following events (a “Dissolution Event”):

(a)                upon notice from any Partner to the other Partners delivered at any time after the date that is ten (10) years after the Effective Date;

(b)               at any time at the election of all of the Partners in writing;

(c)                at any time there are no Partners (unless otherwise continued in accordance with the Act); or

(d)               the entry of a decree of judicial dissolution pursuant to the Act.

12.3          Liquidation. Upon the occurrence of a Dissolution Event, the business of the Partnership shall be continued to the extent necessary to allow an orderly winding up of its affairs, including the liquidation of the assets of the Partnership pursuant to the provisions of this Section 12.3, as promptly as practicable thereafter, and each of the following shall be accomplished:

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(a)                General Partner shall cause to be prepared a statement setting forth the assets and liabilities of the Partnership as of the date of dissolution, a copy of which statement shall be furnished to all of the Partners.

(b)               The Property and other assets of the Partnership shall be liquidated or Distributed in kind under the supervision of General Partner as promptly as possible, but in an orderly, businesslike and commercially reasonable manner.

(c)                Any gain or loss realized by the Partnership upon the sale of its Property and other assets shall be deemed recognized and allocated to the Partners in the manner set forth in Section 6.1. To the extent that an asset is to be Distributed in kind, such asset shall be deemed to have been sold at its fair market value on the date of Distribution, the gain or loss deemed realized upon such deemed sale shall be allocated in accordance with Section 6.1 and the amount of the Distribution shall be considered to be such fair market value of the asset.

(d)               The proceeds of sale and all other assets of the Partnership shall be applied and Distributed as follows and in the following order of priority:

(1)to the satisfaction of the debts and liabilities of the Partnership (contingent or otherwise) and the expenses of liquidation or Distribution (whether by payment or reasonable provision for payment), other than liabilities to Partners or former Partners for Distributions;
(2)the balance, if any, to the Partners in accordance with Section 5.

(e)                Net Income and Net Losses (and, to the extent necessary, individual items of income, gain, loss or deduction) realized by the Partnership in connection with the liquidation of the Partnership shall be allocated among the Partners in a manner such that, taking into account all prior allocations of Net Income and Net Losses of the Partnership and all Distributions made by the Partnership through the date of such liquidation, the Capital Account of each Partner is, as nearly as possible, equal to the amount that such Partner is entitled to receive pursuant to Section 12.3(d)(2).

12.4          Certificate of Cancellation. Upon completion of the dissolution and liquidation of the Partnership as set forth in this Agreement, General Partner shall execute, acknowledge and cause to be filed with the Secretary of State of the State of Delaware a certificate of cancellation of the Partnership. The provisions of this Agreement shall remain in full force and effect during the period of winding up and until the filing of such certificate of cancellation of the Partnership with the Secretary of State of the State of Delaware.

12.5          Continuation of the Partnership. Notwithstanding anything to the contrary, the death, retirement, resignation, expulsion, bankruptcy, dissolution or removal of a Partner shall not in and of itself cause the dissolution of the Partnership, and the Partners are expressly authorized to continue the business of the Partnership in such event, without any further action on the part of the Partners.

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Section 13.            Indemnification.

13.1          Exculpation. No Partner, Affiliate of a Partner or any officer, director, shareholder, partner, employee, representative or agent of any of them (each, a “Covered Person”) shall be liable to the Partnership or to any other Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Partnership and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by or pursuant to this Agreement, except that a Covered Person (or the Partner applicable to such Covered Person) shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence, willful misconduct or fraud or, with respect to a Partner, breach of this Agreement. Except as set forth in the joinders delivered pursuant to Section 13.3(c) of this Agreement, no general or limited partner of any Partner, shareholder, member or other holder of an equity interest in such Partner or manager, officer or director of any of the foregoing shall be personally liable for the performance of any such Partner’s obligations of this Agreement, but the foregoing shall not relieve any partner or member of any Partner from its obligations to such Partner or any obligations under any agreement between the Partnership and any such Person (for the avoidance of doubt, including any Credit Support provided in accordance herewith).

13.2          Indemnification by the Partnership. The Partnership shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and defend each Partner and its Covered Persons from and against any loss, expense, damage or injury suffered or sustained by such Person (including any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) by reason of or arising out of (i) such Person’s activities on behalf of the Partnership or in furtherance of the interests of the Partnership, including the provision of Credit Support, (ii) such Person’s status as a Partner, Affiliates, representative, employee or officer of the Partnership or other applicable Person, or (iii) the Partnership’s assets, Property, business or affairs (including the actions of any officer, director, member or employee of the Partnership or any Subsidiaries), in any case to except to the extent caused, contributed or exacerbated by the fraud, gross negligence or willful misconduct of such Partner or any of its Covered Persons. Reasonable expenses incurred by the indemnified Person in connection with any such proceeding relating to the foregoing matters shall be paid or reimbursed by the Partnership in advance of the final disposition of such proceeding upon receipt by the Partnership of (a) written affirmation by the Person requesting indemnification of its good faith belief that it has met the standard of conduct necessary for indemnification by the Partnership and (b) a written agreement by or on behalf of such Person to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such Person has not met such standard of conduct, which agreement shall be an unlimited general obligation of the indemnified Person but need not be secured. Notwithstanding anything to the contrary, the satisfaction of any indemnification obligation pursuant to this Section 13.2 shall be from and limited to the Partnership and Subsidiary assets (including insurance and any agreements pursuant to which the Partnership, the Subsidiaries and/or the indemnified Person are entitled to indemnification) and no Partner, in such capacity, shall be subject to personal liability in respect of such indemnification obligations.

13.3          Credit Support Indemnification.

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(a)                Credit Support Indemnification. Each Partner (the “Credit Support Indemnitor”) shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and defend the Partnership and each other Partner (the “Credit Support Indemnitee”) to the extent the Credit Support Indemnitee or any Person providing Credit Support on behalf of the Credit Support Indemnitee pays more than its share of any claim on Credit Support provided or arranged by the Credit Support Indemnitee for which the Partnership, the Partners and/or their respective Affiliates are jointly and/or severally liable to the extent the Credit Support Indemnitor or any Person providing Credit Support on behalf of the Credit Support Indemnitor has paid less than its share of such claim (regardless of whether the Credit Support Indemnitor provided any Credit Support). A Partner’s share of such claim shall be equal to such Partner’s Percentage Interest as of the time such claim was made; provided, however, to the extent such claim is caused, contributed to or exacerbated by the fraud, willful misconduct or gross negligence of a Partner or its Covered Person or the breach of this Agreement by such Partner (unless, in any such event, with respect to the securitization of the Bank of America Loan and any Credit Support with respect thereto, General Partner and any Covered Person acted in accordance with the Performance Standard), such Partner’s share shall be one hundred percent (100%). For the avoidance of doubt, no Partner (or the Guarantor applicable to such Partner under the joinders delivered in connection with this Agreement) shall be obligated to indemnify a Credit Support Indemnitee in connection with claims on Credit Support to the extent caused, contributed to or exacerbated by the fraud, willful misconduct or gross negligence of such Credit Support Indemnitee or its Covered Person.

(b)               General Indemnification. Notwithstanding any other provision contained herein, each Partner (the “Indemnifying Party”) shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and defend the Partnership, each of its Subsidiaries and each other Partner and its Covered Persons (each, an “Indemnified Party”) from and against all losses, costs, expenses, damages, claims and liabilities (including reasonable attorneys’ fees) as a result of or arising out of (i) any breach of any obligation of the Indemnifying Party under this Agreement, (ii) any material inaccuracy in or breach of any representation or warranty made by the Indemnifying Party in this Agreement, (iii) any material inaccuracy in or breach of any representation or warranty made about the Indemnifying Party or any of its Covered Persons (as opposed to about the Partnership or any of its Subsidiaries or the Properties) in any agreement to which the Partnership or any Subsidiary is a party (including, for the avoidance of doubt, under any documents governing any Loan) which representation or warranty was made with the knowledge of the Indemnifying Party, but not including the Purchase Agreement (but, for the avoidance of doubt, without limiting the remedies thereunder), and (iv) the fraud, gross negligence or willful misconduct of the Indemnifying Party or its Covered Persons, in each case except to the extent arising out of the fraud, gross negligence or willful misconduct on the part of, or by, such Indemnified Party or its Covered Persons.

(c)                Guarantees. As of the Effective Date, (i) the Partners in the LXP Partner Group have caused their creditworthy Affiliate Approved by Investor Partner (such Affiliate, the “LXP Guarantor”) to guaranty certain obligations of the LXP Partners pursuant to a joinder in the form attached hereto as Exhibit E-1, and (ii) Investor Partner has caused one or more of its creditworthy Affiliates Approved by the LXP Partners (such

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Affiliates, individually or collectively as the context requires, the “DK Guarantor”) to guaranty certain obligations of the DK Partner Group pursuant to a joinder in the form attached hereto as Exhibit E-2. A Partner may from time to time, including in connection with a Transfer permitted hereunder, replace any Guarantor applicable to such Partner that has signed such a joinder with a new guarantor or guarantors Approved by the Partners in the other Partner Group under a form of joinder substantially in the then-current form of joinder applicable to such Partner or such other form as the Partners in the other Partner Group may otherwise Approve, and upon such replacement the replaced Guarantor shall be released from its obligations under its joinder pursuant to a writing in a form Approved by the requesting Partner and the Partners of the other Partner Group. Notwithstanding anything to the contrary, if a replacement guarantor Approved as provided above is comprised of two (2) or more Persons, then such Persons shall provide such joinder on a joint and several basis.

13.4          Survival. The terms of this Section 13 shall survive termination of this Agreement and the withdrawal of, or Transfer of an Interest by, a Partner.

Section 14.            Miscellaneous.

14.1          Notices. Whenever any notice or any other communication is required or permitted to be given under any provision of this Agreement (as, for example, where a Partner is permitted or required to “notify” the other Partner, but subject to the provisions of Section 8.9(c) permitting notification via Sharefile with respect to certain required notices thereunder) (each, a “Notice”), such Notice shall be in writing, signed by or on behalf of the Partner giving the Notice, and shall be deemed to have been given on the earliest to occur of (a) the date of the actual delivery, (b) if mailed, three Business Days after the date mailed by certified or registered mail, return receipt requested, with postage prepaid, (c) if sent with a reputable air or ground courier service, fees prepaid, the date on which such courier represents such Notice will be available for delivery, or (d) if by email, on the day of sending such email, if sent before 5:00 p.m. New York time on a Business Day (and otherwise, on the next Business Day), in each case to the respective address(es) of the Partner to whom such Notice is to be given as set forth below, or at such other address of which such Partner shall have given Notice to the other Partner as provided in this Section 14.1; provided, however, that the primary address for Notices hereunder of a Partner shall at all times be a physical address located in the United States of America. Any Person sending Notice by one of the delivery methods set forth in clauses (a) through (c) of the previous sentence of this Section 14.1 shall also, on the same date as the delivery by such other delivery method, send a copy of such Notice by email. Any such Notice sent by email must also be confirmed within two (2) Business Days by delivering such Notice by one of the other means of delivery set forth in this Section 14.1, unless the receiving Partner actually responds to such Notice (provided, that an automated read receipt or similar automated response shall not constitute response for purposes of the foregoing). Legal counsel for any Partner may give Notice on behalf of such Partner. The Partners intend that the requirements of this Section 14.1 cannot be waived or varied by course of conduct. Any reference herein to the date of receipt, delivery, or giving, or effective date, as the case may be, of any notice or communication shall refer to the date such communication is deemed to have been given under the terms of this Section 14.1. Rejection or other refusal to accept or the inability to deliver because of changed address of which no Notice was given under this Section 14.1 shall be deemed to constitute receipt of a Notice. Notwithstanding anything to the

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contrary, reports, responses to information requests, and other day-to-day correspondence from General Partner may be provided by electronic mail without the requirement of providing copies thereof to legal counsel for a Partner or of confirming such matters through other means of delivery.

If to any LXP Partner:

c/o LXP Industrial Trust
One Penn Plaza, Suite 4015
New York, New York 10119
Attention: Lara Johnson

Email: ljohnson@lxp.com

with copies to:

c/o LXP Industrial Trust
One Penn Plaza, Suite 4015
New York, New York 10119
Attention: Joseph Bonventre, Esq.

Email: legalnotices@lxp.com

Locke Lord LLP
600 Congress Ave., Suite 2200
Austin, Texas 78701
Attention: Steven Quiring

Email: squiring@lockelord.com

If to Investor Partner:

c/o Davidson Kempner Capital Management LP
520 Madison Avenue, 30th Floor
New York, New York 10022
Attention: Josh Morris

Email: jmorris@dkp.com

with copies to:

c/o Davidson Kempner Capital Management LP
520 Madison Avenue, 30th Floor
New York, New York 10022
Attention: Andrew Shore

Email: AShore@dkp.com

Dechert LLP

Three Bryant Park

1095 Avenue of the Americas

New York, New York 10036

Attention: Craig Brown, Esq.

Email: craig.brown@dechert.com

14.2          Governing Law. This Agreement and the rights of the Partners hereunder shall be governed by, and interpreted in accordance with, the laws of the State of Delaware. Each Partner irrevocably submits to the jurisdiction of the New York state courts within New York County and the federal courts sitting in the State of New York and agrees that all matters involving

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this Agreement shall be heard and determined in such courts. Each Partner waives irrevocably the defense of inconvenient forum to the maintenance of such action or proceeding.

14.3          Successors. This Agreement shall be binding upon, and inure to the benefit of, the Partners and their respective successors and permitted assigns. Except as otherwise provided herein, any Partner who Transfers its Interest as permitted by the terms of this Agreement shall have no further liability or obligation hereunder, except with respect to claims arising prior to such Transfer.

14.4          Interpretation. Wherever in this Agreement the context requires, references to the masculine shall be deemed to include the feminine and the neuter and vice-versa, and references to the singular shall be deemed to include the plural and vice versa. Unless otherwise specified, whenever in this Agreement, including its Exhibits, reference is made to any Recital, Article, Section, Exhibit, Schedule or defined term, the reference shall be deemed to refer to the Recital, Article, Section, Exhibit, Schedule or defined term of this Agreement. Any reference to a Recital, an Article or a Section includes all subsections and subparagraphs of that Recital, Article or Section. Section and other headings, the table of contents and the names of defined terms are for the purpose of convenience of reference only and are not intended to, nor shall they, modify or be used to interpret the provisions of this Agreement. Except as otherwise explicitly provided herein, the use in this Agreement of the words “including”, “such as” or words of similar import when accompanying any general term, statement or matter shall not be construed to limit such term, statement or matter to such specific terms, statements or matters. The term “Dollars” (whether or not capitalized) and the symbol “$” mean United States Dollars. In the event of a conflict between the Recitals and the remaining provisions of this Agreement, the remaining provisions shall prevail.

14.5          Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable in any respect, then the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and the Partners shall use their respective commercially reasonable efforts to amend or substitute such invalid, illegal or unenforceable provision with enforceable and valid provisions that would produce as nearly as possible the rights and obligations previously intended by the Partners without renegotiation of any material terms and conditions stipulated herein.

14.6          Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which together shall constitute one and the same instrument. This Agreement shall become effective when the Partners have duly executed and delivered signature pages of this Agreement to each other. Delivery of this Agreement may be effectuated by hand delivery, mail, overnight courier or electronic communication (including by PDF sent by email, facsimile or similar means of electronic communication). Any signatures (including electronic signatures) delivered by electronic communication shall have the same legal effect as physically delivered original signatures.

14.7          Entire Agreement. This Agreement and the other written agreements described herein among the Partners entered into as of the Effective Date constitute the entire agreement among the Partners relating to the subject matter hereof. In the event of any conflict

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between this Agreement and such other written agreements, the terms and provisions of this Agreement shall govern and control.

14.8          Amendment. The only way to amend or otherwise modify this Agreement is for the Partners to sign and deliver a written instrument in their sole and absolute discretion that expresses the intent to amend or otherwise modify this Agreement.

14.9          Further Assurances. Subject to the other terms and conditions of this Agreement, each Partner agrees to execute and deliver any and all additional instruments and documents and do any and all acts and things as may be reasonably necessary or expedient to effectuate more fully this Agreement or any provisions hereof or to carry on the business contemplated hereunder.

14.10      Time. Time is of the essence with respect to each provision of this Agreement in which time is a factor. References in this Agreement to days shall be to calendar days, unless otherwise specified; provided, that if the last day of any period to give notice, reply to a notice, meet a deadline or to undertake any other action occurs on a day that is not a Business Day, then the last day for giving the notice, replying to the notice, meeting the deadline or undertake the action shall be the next succeeding Business Day, or if such requirement is to give notice before a certain date, then the last day shall be the preceding Business Day.

14.11      No Third-Party Rights. The provisions of this Agreement are for the exclusive benefit of the Partners (and, as set forth herein, the Covered Persons), and no other Person (including any creditor of the Partnership, any Partner or their respective Affiliates) shall have any right or claim against any Partner by reason of those provisions or be entitled to enforce any of those provisions against any Partner.

14.12      Incorporation by Reference. Every Exhibit attached to this Agreement is incorporated in this Agreement by reference.

14.13      Limitation on Liability. Except as set forth in Section 13, the Partners shall not be bound by, or be personally liable for, by reason of being a Partner, a judgment, decree or order of a court or in any other manner, for the expenses, liabilities or obligations of the Partnership, and the liability of each Partner shall be limited solely to the amount of its Capital Contributions as provided under Section 4. Except as set forth in Section 13.3(b), any claim against any Partner (the “Partner in Question”) that may arise under this Agreement shall be made only against, and shall be limited to, such Partner in Question’s Interest, the proceeds of the sale by the Partner in Question of such Interest or the undivided interest in the assets of the Partnership Distributed to the Partner in Question pursuant to Section 12.3(d). Except as set forth in Section 13.3(b), any right to proceed against (i) any other assets of the Partner in Question or (ii) any agent, officer, director, member, partner, shareholder or employee of the Partner in Question or the assets of any such Person, as a result of such a claim against the Partner in Question arising under this Agreement or otherwise, is hereby irrevocably and unconditionally waived.

14.14      Attorneys’ Fees. In the event any Partner brings legal action for a breach of or to enforce this Agreement, the substantially prevailing Partner shall be entitled to reasonable attorneys’ fees, expenses and court costs, including those relating to any appeal.

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14.15      Remedies Cumulative. The rights and remedies given in this Agreement and by law to a Partner shall be deemed cumulative, and the exercise of one of such remedies shall not operate to bar the exercise of any other rights and remedies reserved to a Partner under the provisions of this Agreement or given to a Partner by law.

14.16      No Waiver. One or more waivers of the breach of any provision of this Agreement by any Partner shall not be construed as a waiver of a subsequent breach of the same or any other provision, nor shall any delay or omission by a Partner to seek a remedy for any breach of this Agreement or to exercise the rights accruing to a Partner by reason of such breach be deemed a waiver by a Partner of its remedies and rights with respect to such breach.

14.17      Limitation on Use of Names. Notwithstanding anything to the contrary, each Partner as to itself agrees that neither it nor any of its Affiliates, agents or representatives is granted a license to use nor shall use the name of the other Partners under any circumstances whatsoever, provided that such names may be used in furtherance of the business of the Partnership but only as and to the extent Approved by such other Partners in their respective sole and absolute discretion or as otherwise permitted in Section 9.

14.18      Publicly Traded Partnership Provision. Each Partner hereby severally covenants and agrees with the other Partners for the benefit of such Partners, that (i) it is not currently making a market in Interests and will not in the future make such a market and (ii) it will not Transfer its Interest on an established securities market, a secondary market or an over-the-counter market or the substantial equivalent thereof within the meaning of section 7704 of the Code and the Regulations, rulings and other pronouncements of the U.S. Internal Revenue Service or the Department of the Treasury thereunder.

14.19      Press Releases. No Partner shall (and each Partner shall cause its Affiliates not to) issue any press releases in connection with the formation of the Partnership that names a Partner, its Affiliates, or the direct or indirect shareholders, partners, members, officers or directors of any of them or the transactions contemplated by this Agreement, except (and notwithstanding Section 9) with the Approval of such Partner in its sole and absolute discretion.

14.20      No Construction Against Drafter. This Agreement has been negotiated and prepared by Investor Partner and its attorneys and, should any provision of this Agreement require judicial interpretation, the court interpreting or construing such provision shall not apply the rule of construction that a document is to be construed more strictly against one party.

14.21      Good Faith Negotiations. If a Partner fails to Approve a matter for which the Approval by such Partner is required or permitted hereunder within the period required therefor (or, if no period is specified, within ten (10) Business Days following request therefor), then any Partner may give the other Partner notice thereof (a “Negotiation Notice”) and the Partners shall attempt to resolve such matter through good faith negotiations within fifteen (15) days following delivery of such Negotiation Notice (as such period may be extended from time-to-time with the Approval of the Partners in their respective sole discretion, the “Negotiation Period”). Representatives of the Partners with decision-making authority shall meet in-person at the New York office of Investor Partner (or at another mutually Approved location) at least once during the Negotiation Period.

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14.22      Approvals. No Partner shall (and each Partner shall cause each of its Affiliates not to) unreasonably withhold, condition or delay its Approval of any act, omission or matter that is subject to such Approval pursuant to the terms of this Agreement, except as otherwise expressly provided herein.

14.23      Binding Agreement. Notwithstanding any other provision of this Agreement, the Partners agree that this Agreement constitutes a legal, valid and binding agreement of the Partner, and is enforceable against the Partners in accordance with its terms.

Section 15.            Insurance. During the Term, General Partner, on behalf of the Partnership, shall procure and maintain insurance (including, without limitation, environmental insurance) as is reasonably determined to be appropriate by General Partner, naming the Partnership, General Partner and each other Partner as insureds (or additional insureds) thereunder. Without limiting the foregoing, within five (5) Business Days after the Effective Date, the General Partner shall (a) cause the Partnership to be designated as a “Named Insured” under the Premises Pollution Liability Portfolio Insurance Policy issued to LXP by Illinois Union Insurance Company pursuant to an endorsement to such insurance policy materially consistent with the draft endorsement attached hereto as Exhibit F and (b) deliver to Investor Partner an executed copy of such endorsement.

Section 16.            Title.

16.1          Title Policies. The Partners acknowledge that in connection with the purchase of the equity interests in the Fee Owners of the Portfolio Properties and the GP Subsidiaries under the Purchase Agreement, LXP, Lepercq Corporate Income Fund L.P. (“LCIF”) and Net Lease Strategic Assets Fund L.P., a Delaware limited partnership (“NLSAF”), provided an Owner’s Affidavit and Non-Imputation Affidavit (the “Owner’s Affidavit”) to First American Title Insurance Company (the “Title Company”). In addition, pursuant to a Non-Imputation-Additional Insured Endorsement (ALTA 15.1), the Partnership and the Investor Partner were named as additional insureds under the title policies obtained by the Fee Owners (the “Owner’s Title Policies”). Furthermore, title policies were obtained by the Lender in connection with the Bank of America Loan (the “Lender’s Title Policies”).

16.2          Partnership and Partner Claims Under Owner’s Title Policies. No Partner shall make (or cause the Partnership or any Subsidiary to make or permit its Affiliates to make) any claim against the Title Company under any Owner’s Title Policy to the extent that such claim could reasonably be expected to result in a claim being made by the Title Company against LXP and/or LCIF under the Owner’s Affidavit, including as a result of or arising out of any right of first refusal or right of first offer under any of the Leases, in any case without the Approval of the Partners in the LXP Partner Group in their respective sole and absolute discretion; provided, however, that the foregoing shall not prohibit Investor Partner from making a claim against the Title Company under any Owner’s Title Policy with respect to (i) mechanics’ liens on any Property, but only to the extent that such claim does not constitute an Exception Matter under and as defined in the Purchase Agreement (a “ML Claim”) or (ii) any other lien or exception to title at any Property of which LXP had knowledge and intentionally withheld such knowledge from Investor Partner prior to the Effective Date (an “Intentional Withholding Claim”); provided that, in no event shall LXP be deemed to have intentionally withheld its knowledge if LXP provided

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(or caused to be provided) any written documents or other materials to Investor Partner and its Affiliates prior to the Effective Date which disclosed, described or created such lien or exception.

16.3          Recoveries under Owner’s Title Policies. Any amount paid to the Partnership, any Subsidiary, any Partner or any Affiliate of a Partner under any Owner’s Title Policy (other than amounts in respect of Intentional Withholding Claims) shall be solely for the account of the Partnership and, to the extent paid to a Partner or an Affiliate of a Partner, such Partner shall promptly on receipt remit such payment the Partnership.

16.4          Indemnification. The Partnership shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and defend each Partner in the LXP Partner Group and their respective Covered Persons, including LXP, LCIF and NLSAF, from and against any loss, expense, damage or injury suffered or sustained by such Person (including any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) by reason of or arising out of any claim under the Owner’s Affidavit, except to the extent arising as a direct result of (i) with respect to a permitted claim by the Partnership, any Subsidiary or Partner under any Owner’s Title Policy, an ML Claim or an Intentional Withholding Claim, or (ii) with respect to a claim made under the Lender’s Title Policies, the fraud, gross negligence or willful misconduct of any Partner in the LXP Partner Group or any of their respective Covered Persons. Reasonable expenses incurred by the indemnified Person in connection with any such proceeding relating to the foregoing matters shall be paid or reimbursed by the Partnership in advance of the final disposition of such proceeding upon receipt by the Partnership of (a) written affirmation by the Person requesting indemnification of its good faith belief that it has met the standard of conduct necessary for indemnification by the Partnership and (b) a written agreement by or on behalf of such Person to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such Person has not met such standard of conduct, which agreement shall be an unlimited general obligation of the indemnified Person but need not be secured. Notwithstanding anything to the contrary, the satisfaction of any indemnification obligation pursuant to this Section 16.4 shall be from and limited to the Partnership and Subsidiary assets (including insurance and any agreements pursuant to which the Partnership, the Subsidiaries and/or the indemnified Person are entitled to indemnification) and no Partner, in such capacity, shall be subject to personal liability in respect of such indemnification obligations.

16.5          Survival and Third Party Beneficiaries. The terms of this Section 16 shall survive termination of this Agreement and the withdrawal of, or Transfer of an Interest by, a Partner. LXP, LCIF and NLSAF are intended third party beneficiaries of this Section 16.

[Signatures on Next Page]

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IN WITNESS WHEREOF, this Agreement is executed by the Partners as of the Effective Date.

  INVESTOR PARTNER:
   
  LX JV Investor II LLC,
  a Delaware limited liability company
         
  By: Madave Management LLC, its Manager
         
    By: /s/ Morgan P. Blackwell
      Name: Morgan P. Blackwell  
      Title: Manager
   
  LXP LP:
   
  LXP MFG C L.P.,
  a Delaware limited partnership
         
  By: LXP MFG C GP LLC,
    a Delaware limited liability company,
    its general partner
         
  By: /s/ Joseph Bonventre
  Name: Joseph Bonventre
  Title: Vice President
         
  LXP GP:
         
  LXPDK II GP LLC,
  a Delaware limited liability company
         
  By: LXP Manager Corp.,
    a Delaware corporation,
    its manager
         
  By: /s/ Joseph Bonventre
  Name:  Joseph Bonventre
  Title: Vice President

 

 


  
  

EXHIBIT A

 

Properties

901 East Bingen Point Way

900 Industrial Blvd.

Bingen

Crossville

WA

TN

10590 Hamilton Ave. (tax bill for one parcel cites Northwest Dr.) Cincinnati OH
1000 Business Blvd. Dry Ridge KY
2880 Kenny Biggs Rd. (tax bill for one parcel cites Starlite Dr.) Lumberton NC
50 Tyger River Dr. Duncan SC
590 Ecology Ln. Chester SC
301 Bill Bryan Ln. Hopkinsville KY
4010 Airpark Dr. Owensboro KY
750 North Black Branch Rd. Elizabethtown KY
730 North Black Branch Rd. Elizabethtown KY
120 Southeast Pkwy. Franklin TN
13863 Industrial Rd. Houston TX
7007 F.M. 362 Rd. / 7007 Wilson Rd. Brookshire TX
904 Industrial Rd. / 902 Dobbins St. Marshall MI
43955 Plymouth Oaks Blvd. Plymouth MI
318 Pappy Dunn Blvd. Anniston AL
113 Wells St. North Berwick ME
4801 North Park Dr. Opelika AL
1020 W. Airport Rd. / 1020-1080 W. Airport Rd. Romeoville IL
26700 Bunert Rd. Warren MI

5670 Nicco Way

(f/k/a 5625 N. Sloan Ln.)

North Las Vegas

NV

 A-1 
  

EXHIBIT B

 

Major Decisions

(i)                 the acquisition by purchase, exchange or otherwise of any material asset (including any Proposed Property) after the Effective Date, except to the extent provided for in the Approved Annual Business Plan or required by the applicable Lease;

(ii)               the construction, alteration, improvement, repair, rehabilitation, razing, rebuilding or replacement of any building or other improvements or the making of any capital improvements, replacements, repairs, alterations or changes in, to or on any asset, or any part thereof, except to the extent provided for in the Approved Annual Business Plan or required by the applicable Lease; provided that repairs of an Emergency nature may be undertaken without prior approval of the Partners provided General Partner notifies each Partner in writing thereof within two (2) Business Days following the commencement of such Emergency repairs;

(iii)             the reinvestment for restoration purposes of (a) insurance proceeds in excess of Five Hundred Thousand Dollars ($500,000) received by the Partnership or Subsidiary(ies) in connection with the damage or destruction of any asset (except to the extent required by the applicable policies, Leases or documents governing any Loan) or (b) condemnation proceeds in excess of Five Hundred Thousand Dollars ($500,000) received by the Partnership or Subsidiary(ies) in connection with the taking or settlement in lieu of a threatened taking of all or any portion of any asset (except to the extent required by Leases or documents governing any Loan); provided that (x) if the determination is made not to reinvest any such insurance or condemnation proceeds, then so much thereof as may be necessary will be applied to the razing or other disposition of the remaining improvements as may be required by law or by a reasonably prudent property manager and the balance of such insurance or condemnation proceeds will be Distributed in accordance with Section 5 and (y) any distribution of such insurance or condemnation proceeds will be a Distribution of capital proceeds;

(iv)             the commencement of any case, proceeding or other action seeking protection for the Partnership or Subsidiary(ies) as debtor under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors; any consent to the entry of an order for relief in or institution of any case, proceeding or other action brought by any third-party against the Partnership or Subsidiary(ies) as a debtor under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors; the filing of an answer in any involuntary case or proceeding described in the previous clause admitting the material allegations of the petition therefor or otherwise failing to contest any such involuntary case or proceeding; the seeking of or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Partnership or Subsidiary(ies) or for a substantial portion of its assets; any assignment for the benefit of the creditors of the Partnership or Subsidiary(ies); or the admission in writing that the Partnership or Subsidiary(ies) is unable to pay its debts as they mature or that the Partnership or Subsidiary(ies) is not paying its debts as they become due;

(v)               the extension of the statute of limitations for assessing or computing any tax liability against the Partnership or the amount of any Partnership tax item or

 B-1 
  

EXHIBIT B

 

the settlement of any dispute with respect to any income, or any other matter, or tax that would require payment in excess of $250,000;

(vi)             (a) a merger or recapitalization of the Partnership or any of the Subsidiary(ies) or (b) a sale or other disposition, including a disposition by lease, of any or all of the assets of the Partnership or Subsidiary(ies), in any case except in accordance with the provisions of this Agreement or as required by a Lease or Approved Annual Business Plan;

(vii)           the financing or refinancing of, or the increasing of any mortgage or mezzanine indebtedness encumbering any asset, or any portion thereof or any interest or estate therein, whether recourse or non-recourse to the Partnership or Subsidiary(ies), or the incurrence of indebtedness secured by any asset, or any portion thereof or any interest or estate therein, or the incurrence of any other secured or unsecured borrowings or other indebtedness by the Partnership or Subsidiary(ies) (other than trade payables incurred in the ordinary course of business and permitted to be incurred without the consent of any Lender pursuant to the terms of the documents governing any Loan), or repayment of such items, including determination of the terms and conditions thereof, and any amendments, modifications, supplements or other changes to such terms and conditions or otherwise with respect to anything in this clause (vii) except as contemplated in the Approved Annual Business Plan;

(viii)         the approval of the Annual Budget, including any line item, and any amendment to an Approved Annual Budget;

(ix)             the incurring of any cost or expense for any Fiscal Year, other than a Permitted Expense or Acquisition Costs incurred in accordance with Section 8.9;

(x)               the entering into of any transaction or agreement with or for the benefit of, or the employment or engagement of, any Affiliate of a Partner, but not including any such transaction or agreement (1) with an Affiliate of any Partner as property manager for any Property, so long as (a) the fees and reimbursements to be paid to such Affiliate are reasonable and customary and the terms and provisions of the related agreement are otherwise in accordance with Section 8.2(a) hereof and (b) the applicable Fee Owner shall have the right to terminate such agreement and replace such property manager upon the occurrence of a For Cause Event with respect to such Partner, or (2) to the extent expressly set forth in this Agreement;

(xi)             except as required by Lenders under any documents governing any Loan, as contemplated by the Approved Annual Budget or as may be permitted pursuant to Section 8.9, the establishment of a reserve for working capital, capital expenditures or to pay other costs and expenses incident to ownership of the assets of the Partnership or Subsidiary(ies) and for such other purposes of the Partnership or Subsidiary(ies) in excess of an aggregate of (A) One Hundred Thousand Dollars ($100,000) per Property or (B) Five Hundred Thousand Dollars ($500,000) in the aggregate;

(xii)           the initiation of legal proceedings or arbitration by the Partnership or Subsidiary(ies), the confession of judgment or the settlement of any litigation against the Partnership or Subsidiary(ies) involving an uninsured claim in excess of (A) One Hundred Thousand Dollars ($100,000) per claim or (B) Five Hundred Thousand Dollars

 B-2 
  

EXHIBIT B

 

($500,000) in the aggregate; provided that the initiation of such legal proceedings or arbitration (x) in connection with any matter of an Emergency nature, or (y) for the collection of rent due under any Lease, will not be a Major Decision;

(xiii)         with respect to any lease of any asset of the Partnership or Subsidiary(ies), or part thereof or interest therein (including ground leases pursuant to which the Partnership or a Subsidiary is a lessor or lessee), the entering into, amending, extending, renewing or terminating thereof, in each case not already approved as part of the Approved Annual Business Plan, except for ministerial amendments or amendments documenting the exercise of any unilateral right of the tenant thereunder or the exercise of any unilateral right of the tenant or third party ground lessor under such Lease; provided that, in the event the General Partner has not exercised any individual option to extend or renew the term of the Essex Ground Lease by the date that is ten (10) days prior to the last day on which the applicable Subsidiary is entitled to exercise such option pursuant to the terms and conditions of the Essex Ground Lease, then Investor Partner may exercise any such option on behalf of the Partnership and such Subsidiary without any notice to, or any approval of, the General Partner or any LXP Partner and the General Partner hereby expressly authorizes Investor Partner to take such action unilaterally;

(xiv)         the admission of a new partner or member to the Partnership or any Subsidiary or acquisition by an existing Partner of an additional interest in the Partnership, except in any case with respect to the Partnership for the exercise of the procedures set forth in Section 8.1(c)(i), Section 11.5 or Section 11.6;

(xv)           except in connection with items set forth in the Approved Annual Business Plan or items constituting a Permitted Expense, the entry into any agreement by the Partnership or Subsidiary(ies) involving more than One Hundred Thousand Dollars ($100,000) of consideration or having a term in excess of one (1) year and in all cases any property management agreement (other than a property management agreement with an Affiliate of LXP or a property management agreement in place prior to closing) or brokerage agreement;

(xvi)         the winding up or dissolution of the Partnership or Subsidiary(ies), other than as set forth in this Agreement;

(xvii)       selection or termination of auditors (consent not to be unreasonably withheld, conditioned or delayed) for an audit under Section 7.1 in the event that LXP’s then-current public accounting firm auditor is not a nationally recognized independent public accounting firm registered with the Public Company Accounting Oversight Board;

(xviii)     making any loans to third-parties in excess of Two Hundred Fifty Thousand Dollars ($250,000) (excluding, in all cases, tenant improvement allowances and any other lease incentive pursuant to Leases entered into or assumed by the Partnership or any Subsidiary in accordance with this Agreement);

(xix)         agreeing to any forbearance, deed or other assignment or conveyance in lieu of foreclosure or any similar transaction; and

 B-3 
  

EXHIBIT B

 

(xx)           taking any action that would require any Partner or one or more of its Affiliates to guaranty any obligation of the Partnership or its Subsidiaries or provide any other Credit Support in any case other than as required pursuant to this Agreement.

Notwithstanding anything to the contrary, General Partner will be authorized to execute non-binding letters of intent (which may include customary binding provisions such as confidentiality or other items that do not in and of themselves constitute a Major Decision) with respect to property and operational actions that constitute Major Decisions.

 B-4 
  

EXHIBIT C

 

Reports

(a)                Quarterly Reports. Within forty-five (45) days of the end of each of the first three quarters of each Fiscal Year, General Partner shall cause each Partner to be furnished with the following items, computed as of the last day of the applicable period, calculated for such period and for the Fiscal Year to date:

(1)               (A) an unaudited financial statement for the Partnership for such quarter and for the Fiscal Year to Date, prepared in accordance with generally accepted accounting principles in the United States, consistently applied, consisting of a balance sheet, a statement of cash flows, a statement of operations and a statement of changes in the Partners’ Capital Accounts, (B) a narrative summary of material changes in the financial condition of the Partnership, (C) a report of accounts receivable aging and allowance for doubtful accounts (if applicable), (D) Loan covenant calculations (if applicable), (E) Bank reconciliations for all accounts and accompanying account statements (“Reconciliation Statements”), and (F) calculations in sufficient detail to verify the accuracy of all fees and other amounts paid or payable to General Partner and/or its Affiliates; and

(2)               commencing with the quarter ending March 31, 2022, a report with respect to each Property, consisting of (A) a rent roll (provided that the rent rolls for all Properties may be delivered as a single document, so long as such rent roll categorizes the tenants listed thereunder by Property), (B) a narrative summary of any material changes to property operation, physical condition, capital expenditures, leasing and occupancy (including occupancy rate, new vacancies, prospective tenants, instances of lease non-compliance, material tenant communication and other relevant commentary), in each case to the extent known by General Partner, (C) a report regarding payment by tenants of taxes, to the extent tenants are required to make such payments pursuant to the applicable Leases, (D) a report regarding the status of the certificates of insurance for all insurance required to be maintained by tenants pursuant to the Leases, (E) tenant financial statements (to the extent required under the applicable Leases and within the possession or reasonable control of the applicable Fee Owners), (F) reports required to be and actually delivered by tenants under the Leases (to the extent within the possession of the applicable Fee Owners) and (D) a statement for the quarter and year-to-date showing each variance from the budget line items in the Approved Annual Budget exceeding Twenty Thousand Dollars ($20,000).

(b)               Annual Reports. General Partner shall cause each Partner to be furnished with the following items computed as of the last day of the Fiscal Year:

(1)               within forty-five (45) days of the end of each Fiscal Year, unaudited financial statements of the Partnership for such Fiscal Year, prepared in accordance with generally accepted accounting principles in the United States, consistently applied (consisting of (i) a balance sheet as of the end of such Fiscal Year, (ii) a statement of changes in the Partners’ Capital Accounts, (iii) a statement of profit and loss for such Fiscal Year, showing Net Operating Income for such Fiscal Year, and (iv) a statement of cash flows);

 C-1 
  

EXHIBIT C

 

(2)               within seventy-five (75) days of the end of each Fiscal Year, the report required under Section (a) above; and

(3)               within one hundred twenty (120) days of the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2022, an audited financial statement of the Partnership for such Fiscal Year, prepared in accordance with generally accepted accounting principles in the United States, consistently applied (consisting of (i) a balance sheet as of the end of such Fiscal Year, (ii) a statement of changes in the Partners’ Capital Accounts, (iii) a statement of profit and loss for such Fiscal Year, and (iv) related note disclosure), together with an auditor’s report of an accounting firm selected by General Partner in accordance with Section 7.2(b).

(c)                Additional Reports. General Partner shall cause each Partner to be (A) provided “view only” access to services and reports procured by General Partner or its Affiliates to track tenant taxes and (B) furnished with such other customary reports, statements and information regarding the Partnership and any Property as any Partner may reasonably request from time to time.

 C-2 
  

EXHIBIT D

 

Credit Support as of the Effective Date

1.Guaranty Agreement, dated on or about the Effective Date, by LXP in favor of Bank of America, N.A.
2.Environmental Indemnity Agreement, dated on or about the Effective Date, by the Fee Owners (other than Lex Warren L.P.) and LXP in favor of Bank of America, N.A.
3.Loan Guaranty Agreement, dated as of May 2, 2018, by LCIF to and for the benefit of Brighthouse Life Insurance Company.
4.Unsecured Indemnity Agreement, dated as of May 2, 2018, by Lex Warren L.P. and LCIF in favor of Brighthouse Life Insurance Company.
 D-1 
  

EXHIBIT E-1

 

Form of LXP Guarantor Joinder

JOINDER BY LXP INDUSTRIAL TRUST

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, LXP Industrial Trust, a Maryland corporation (“LXP Guarantor”), hereby absolutely, unconditionally and irrevocably guarantees to the DK Partner Group (as defined in the Agreement (as defined below)), and each of them, that all indemnification, defense and hold harmless obligations of the LXP Partners (as defined in the Agreement) under the Limited Partnership Agreement of NNN MFG Cold JV, L.P., dated as of December 29, 2021, as the same may be amended from time to time in accordance with the terms thereof (such agreement, the “Agreement”) will be timely satisfied. In addition, LXP Guarantor shall fully and promptly pay upon written demand of DK Partner Group, or any of them, all reasonable, out-of-pocket, third-party costs and expenses, including reasonable fees and out-of-pocket expenses of attorneys and expert witnesses, incurred by DK Partner Group as a prevailing party in enforcing its rights under this Joinder. Capitalized terms used in this Joinder and not otherwise defined herein shall have the same meanings as set forth in the Agreement. LXP Guarantor represents that LXP Guarantor will derive substantial benefits from the entry by the DK Partner Group into the Agreement and the transactions contemplated thereby and acknowledges that LXP Guarantor’s execution of this Joinder is a material inducement and condition to the DK Partner Group’s execution of the Agreement. LXP Guarantor shall not have the right to assign any of its rights or obligations under this Joinder without the consent of the DK Partner Group. LXP Guarantor agrees to at all times maintain a Liquidity of at least Twenty-Five Million Dollars ($25,000,000) and a Net Worth of at least One Hundred Fifty Million Dollars ($150,000,000).

This Joinder and LXP Guarantor’s obligations hereunder are a continuing and irrevocable obligation of LXP Guarantor and shall remain in full force and effect until the dissolution of the Partnership in accordance with the Agreement and satisfaction in full of any then outstanding obligations hereunder. LXP Guarantor’s guaranty and liability under this Joinder are absolute and unconditional and shall not be affected, released, terminated, discharged or impaired, in whole or in part, by any or all of the following: (i) any lack of genuineness, regularity, validity, legality or enforceability, or the voidability of, the Agreement; (ii) the failure of the Partnership, any Subsidiary, any Partner or any Affiliate of any Partner to exercise or to exhaust any right or remedy or take any action against any Person or any collateral or other security available to it; (iii) any amendment or modification of the terms of the Agreement; (iv) any failure or delay of the Partnership, any Subsidiary, any Partner or any Affiliate of any Partner to exercise, or any lack of diligence in exercising, any right or remedy with respect to the Agreement; (v) any dealings or transactions between the Partnership and/or any of the Partners or any of their Affiliates relating to the Agreement, whether or not LXP Guarantor shall be a party to or cognizant of the same; (vi) the failure to give LXP Guarantor notice of any breach; and/or (vii) any other circumstance that might constitute a legal or equitable discharge or defense available to the Partnership, the LXP Partners or any of their respective Affiliates, whether similar or dissimilar to the foregoing, other than the defense of (a) payment and performance, or (b) the claim against the LXP Partners is not due and owing under the terms of the Agreement or that the LXP Partners have performed. LXP Guarantor expressly waives the following: (a) notice of acceptance of the Agreement; (b) any requirement of promptness, diligence, presentment, protest, notice of dishonor, notice of demand and notice of acceptance; (c) the right to trial by jury in any action or proceeding of any kind

 E-1-1 
  

EXHIBIT E-1

 

arising on, under, out of, or by reason of or relating, in any way, to its obligations under this Joinder, or the interpretation, breach or enforcement of such obligations; and (d) all rights of subrogation and any other claims that it may now or hereafter acquire against the LXP Partners or any insider that arise from the existence, payment, performance or enforcement of LXP Guarantor’s obligations under this Joinder until such time as LXP Guarantor’s obligations under this Joinder are performed and paid in full (or this Joinder is terminated). LXP Guarantor’s guaranty under this Joinder is a present guaranty of payment and performance and not of collection. Notwithstanding anything to the contrary contained herein, LXP Guarantor’s liability shall extend to all amounts and performance of all of its obligations under this Joinder notwithstanding the fact that the Agreement becomes unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding.

LXP Guarantor hereby represents, warrants and certifies as of the Effective Date to the DK Partner Group as follows: (i) the execution, delivery and performance under this Joinder by LXP Guarantor will not violate any provision of any law, regulation, order or decree of any governmental authority, bureau or agency or of any court binding on LXP Guarantor, or of any contract, undertaking or agreement to which LXP Guarantor is a party or that is binding on LXP Guarantor, or of any contract, undertaking or agreement to which LXP Guarantor is a party or that is binding upon or any of its property or assets, and (ii) the Agreement, with respect to this Joinder, constitutes a legal, valid and binding obligation of LXP Guarantor, enforceable against LXP Guarantor in accordance with its terms, subject as to enforcement of remedies to any applicable bankruptcy, reorganization, moratorium or other laws affecting the enforcement of creditors rights generally and doctrines of equity affecting the availability of specific enforcement as a remedy.

Within ninety (90) days after the end of each calendar year, LXP Guarantor shall provide to the DK Partner Group a certificate in form reasonably satisfactory to Investor Partner, containing representations confirming that LXP Guarantor satisfies the Net Worth and Liquidity requirements under this Joinder; provided, however, that no such certification shall be required if audited financial statements of LXP Guarantor prepared by a nationally recognized independent public accounting firm registered with the Public Company Accounting Oversight Board in accordance with generally accepted accounting principles in the United States, consistently applied, demonstrating such Net Worth and Liquidity Requirements are filed with the Securities and Exchange Commission or are generally available on LXP Guarantor’s website.

Any payments required to be made by LXP Guarantor pursuant to this Joinder shall be made within five (5) Business Days after written demand by DK Partner Group, or any of them. If it is finally determined pursuant to the Agreement that the LXP Partner Group had no liability with respect to any amounts actually paid by LXP Guarantor hereunder, DK Partner Group shall reimburse LXP Guarantor for all such amounts.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ]

 E-1-2 
  

EXHIBIT E-1

 

IN WITNESS WHEREOF, LXP Guarantor has executed this Joinder as of the Effective Date.

LXP GUARANTOR:

[•],
a [•]

By:___________________
Name: ___________________
Title: ___________________

 

 E-1-3 
  

EXHIBIT E-2

 

Form of DK Guarantor Joinder

JOINDER BY DK GUARANTOR

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of Davidson Kempner Long-Term Distressed Opportunities Fund V LP, a Delaware limited partnership, and DK LDOI V Aggregate Holdco LP, a Delaware limited partnership (individually or collectively, as the context requires, “DK Guarantor”), hereby absolutely, unconditionally and irrevocably jointly and severally guarantees to the LXP Partner Group (as defined in the Agreement (as defined below)), and each of them, that all indemnification, defense and hold harmless obligations of the DK Partner Group (as defined in the Agreement) under the Limited Partnership Agreement of NNN MFG Cold JV, L.P., dated as of December 29, 2021, as the same may be amended from time to time in accordance with the terms thereof (such agreement, the “Agreement”) will be timely satisfied. In addition, DK Guarantor shall fully and promptly pay, upon written demand of LXP Partner Group, or any of them, all reasonable, out-of-pocket, third-party costs and expenses, including reasonable fees and out-of-pocket expenses of attorneys and expert witnesses, incurred by LXP Partner Group as a prevailing party in enforcing its rights under this Joinder. Capitalized terms used in this Joinder and not otherwise defined herein shall have the same meanings as set forth in the Agreement. DK Guarantor represents that DK Guarantor will derive substantial benefits from the entry by the LXP Partner Group into the Agreement and the transactions contemplated thereby and acknowledges that DK Guarantor’s execution of this Joinder is a material inducement and condition to the LXP Partner Group’s execution of the Agreement. DK Guarantor shall not have the right to assign any of its rights or obligations under this Joinder without the consent of the LXP Partner Group. DK Guarantor agrees to at all times maintain an aggregate Liquidity of at least Twenty-Five Million Dollars ($25,000,000) and an aggregate Net Worth of at least One Hundred Fifty Million Dollars ($150,000,000).

This Joinder and DK Guarantor’s obligations hereunder are a continuing and irrevocable obligation of each DK Guarantor and shall remain in full force and effect until the dissolution of the Partnership in accordance with the Agreement and satisfaction in full of any then outstanding obligations hereunder. Each DK Guarantor’s guaranty and liability under this Joinder are absolute and unconditional and shall not be affected, released, terminated, discharged or impaired, in whole or in part, by any or all of the following: (i) any lack of genuineness, regularity, validity, legality or enforceability, or the voidability of, the Agreement; (ii) the failure of the Partnership, any Subsidiary, any Partner or any Affiliate of any Partner to exercise or to exhaust any right or remedy or take any action against any Person or any collateral or other security available to it; (iii) any amendment or modification of the terms of the Agreement; (iv) any failure or delay of the Partnership, any Subsidiary, any Partner or any Affiliate of any Partner to exercise, or any lack of diligence in exercising, any right or remedy with respect to the Agreement; (v) any dealings or transactions between the Partnership and/or any of the Partners or any of their Affiliates relating to the Agreement, whether or not DK Guarantor shall be a party to or cognizant of the same; (vi) the failure to give DK Guarantor notice of any breach; and/or (vii) any other circumstance that might constitute a legal or equitable discharge or defense available to the Partnership, the DK Partner Group or any of their respective Affiliates, whether similar or dissimilar to the foregoing, other than the defense of (a) payment and performance, or (b) the claim against the DK Partner Group is not due and owing under the terms of the Agreement or that the DK Partner Group has

 E-2-1 
  

EXHIBIT E-2

 

performed. Each DK Guarantor expressly waives the following: (a) notice of acceptance of the Agreement; (b) any requirement of promptness, diligence, presentment, protest, notice of dishonor, notice of demand and notice of acceptance; (c) the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any way, to its obligations under this Joinder, or the interpretation, breach or enforcement of such obligations; and (d) all rights of subrogation and any other claims that it may now or hereafter acquire against the DK Partner Group or any insider that arise from the existence, payment, performance or enforcement of DK Guarantor’s obligations under this Joinder until such time as DK Guarantor’s obligations under this Joinder are performed and paid in full (or this Joinder is terminated). DK Guarantor’s guaranty under this Joinder is a present guaranty of payment and performance and not of collection. Notwithstanding anything to the contrary contained herein, DK Guarantor’s liability shall extend to all amounts and performance of all of its obligations under this Joinder notwithstanding the fact that the Agreement becomes unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding.

Each DK Guarantor hereby represents, warrants and certifies as of the Effective Date to the LXP Partner Group as follows: (i) the execution, delivery and performance under this Joinder by DK Guarantor will not violate any provision of any law, regulation, order or decree of any governmental authority, bureau or agency or of any court binding on DK Guarantor, or of any contract, undertaking or agreement to which DK Guarantor is a party or that is binding on DK Guarantor, or of any contract, undertaking or agreement to which DK Guarantor is a party or that is binding upon or any of its property or assets, and (ii) the Agreement, with respect to this Joinder, constitutes a legal, valid and binding obligation of DK Guarantor, enforceable against DK Guarantor in accordance with its terms, subject as to enforcement of remedies to any applicable bankruptcy, reorganization, moratorium or other laws affecting the enforcement of creditors rights generally and doctrines of equity affecting the availability of specific enforcement as a remedy.

Within ninety (90) days after the end of each calendar year, Davidson Kempner Capital Management LP (“DKCM”) shall provide to the LXP Partner Group a certificate in form reasonably satisfactory to LXP GP, containing representations confirming that the DK Guarantors satisfy, in the aggregate, the Net Worth and Liquidity requirements under this Joinder.

Any payments required to be made by a DK Guarantor pursuant to this Joinder shall be made within five (5) Business Days after written demand by the LXP Partner Group, or any of them. If it is finally determined pursuant to the Agreement that the DK Partner Group had no liability with respect to any amounts actually paid by a DK Guarantor hereunder, LXP Partner Group shall reimburse DK Guarantor for all such amounts.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 E-2-2 
  

EXHIBIT E-2

 

IN WITNESS WHEREOF, each DK Guarantor has executed this Joinder as of the Effective Date.

DK GUARANTOR:

[•],
a [•]

By:___________________
Name: ___________________
Title: ___________________

 E-2-3 
  

EXHIBIT F

 

Draft of Environmental Insurance Policy Endorsement

[Omitted]

 F-1 

EX-99.1 4 exh99-1.htm PRESENTATION ENTITLED "LXP INDUSTRIAL TRUST - $550 MILLION RECAPITALIZATION OF SPECIAL PURPOSE INDUSTRIAL PORTFOLIO"

Exhibit 99.1

$550 Million Recapitalization of Special Purpose Industrial Portfolio January 3, 2022

  
  

LXP INDUSTRIAL TRUST In the following presentation the term “pro forma” represents the adjustment to information at September 30 , 2021 to reflect : – The recapitalization of 22 special purpose industrial assets to a new joint venture – The reclassification of four assets – two assets to Warehouse/Distribution from Light Manufacturing ; one asset from Cold Storage to Other ; and one asset from Heavy Manufacturing to Other The recapitalization closed on December 29 , 2021 . Please refer to our Quarterly Supplemental Information Third Quarter 2021 for a list of defined terms used in this presentation . T his presentation contains certain forward - looking statements within the meaning of Section 27 A of the Securities Act of 1933 , as amended, and Section 21 E of the Securities Exchange Act of 1934 , as amended, which involve known and unknown risks, uncertainties or other factors which may cause actual results, performance or achievements of L XP Industrial Trust (“LXP”) to be materially different from the results, performance, or other expectations implied by these forward - looking statements . These factors include, but are not limited to, those factors and risks detailed in LXP ’s filings with the Securities and Exchange Commission . Except as required by law, LXP undertakes no obligation to ( 1 ) publicly release the results of any revisions to those forward - looking statements which may be made to reflect events or circumstances after the occurrence of unanticipated events or ( 2 ) update or supplement forward - looking statements that become untrue because of subsequent events . Accordingly, there is no assurance that LXP ’s expectations will be realized . Disclosure

  
  

LXP INDUSTRIAL TRUST 1 LXP Industrial Trust: a focused portfolio of high quality, single - tenant warehouse/distribution facilities As of 9/30/21 1 Warehouse/Distribution Cold Storage Pro Forma 9/30/21 102 warehouse/distribution facilities well - located in key logistics markets throughout the Sun Belt and Midwest Predominately single - tenant, Class A facilities Square Footage: 48.8mm sf 22 single - tenant, net - leased, industrial assets used for manufacturing, assembly, cold storage, R&D, laboratory or other specialized uses Square Footage: 6.7mm sf LXP Industrial Trust Special Purpose Industrial JV Light Manufacturing Heavy Manufacturing 81% 5% 6% 8% 1. Percent of Base Rent for consolidated industrial properties owned as of 9/30/2021. Consolidated Industrial Portfolio

  
  

LXP INDUSTRIAL TRUST 2 Recapitalization Transaction Summary Transaction Ownership Financing • On December 29, 2021, LXP Industrial Trust ("LXP") recapitalized a 22 - property special purpose industrial portfolio consisting of primarily manufacturing assets with a gross valuation of $550 million through a sale to a newly formed institutional joint venture (the “Joint Venture”) with an affiliate of Davidson Kempner Capital Management LP • Culmination of a broad, competitive marketing process commenced in May 2021 • GAAP and Cash capitalization rates of 7.4% and 7.2% 1 • LXP receives approximately $487mm in estimated net proceeds • Net proceeds expected to be used to satisfy credit line borrowings and fund the acquisition and development of warehouse/distribution assets in target markets • The Joint Venture obtained a $381 million (76% LTV) non - recourse mortgage loan secured by 21 assets • Interest rate spread of 245 bps over the one - month Term Secured Overnight Financing Rate (SOFR) and a term of 2 years with three 1 - year extension options • One property transfers with an existing $26 million mortgage • The Joint Venture is 80% owned by an affiliate of Davidson Kempner Capital Management LP with LXP retaining a 20% equity interest • Additional $250 million pro rata equity commitment from partners for future acquisitions of single - tenant, special purpose industrial properties outside of LXP’s core warehouse/distribution focus. • LXP is entitled to earn acquisition, asset management, property management and leasing fees and to participate in a promoted - interest incentive 1. Capitalization rates based on 3Q 2021 NOI annualized.

  
  

LXP INDUSTRIAL TRUST 3 Transaction Benefits to LXP Increases financial capacity for growth and reinvestment in warehouse/distribution assets on - balance sheet Generates fee income to enhance return on equity – acquisition, asset management, property management and leasing fees – Additional upside for LXP through 20% retained interest and promoted - interest incentive Adds committed capital source to provide specialized industrial real estate financing solutions to existing LXP tenants and merchant builder relationships Significantly improves portfolio quality with a warehouse/distribution focus – Increases warehouse/distribution exposure to 93% of gross book value on a pro forma basis Capitalizes on the underlying macro trend of de - globalization leading to increased supply chain redundancies and re - shoring of means of production

  
  

LXP INDUSTRIAL TRUST Capitalized JV Value (Purchase Price/Venture Costs) $ 550 Venture Costs/Reserves 11 Existing Mortgage Debt (26) New Joint Venture Mortgage Debt (381) Joint Venture Equity $ 154 LXP Interest (20%) 1 $ 31 Investor Partner Interest (80%) $ 123 4 Joint Venture Capitalization/Sources & Uses Gross Recap Proceeds $ 550 Assumed Debt (26) Transaction Costs (6) Joint Venture Investment (31) T o t al – LXP Net Cash Proceeds $ 487 Credit Line Payment $ 340 Excess for Reinvestment 147 T o t al – LXP Uses of Cash $ 487 Joint Venture Capitalization LXP Sources & Uses of Cash Leverage Impact Debt / Gross Assets 32.6% 31.9% Secured Debt / Gross Assets 2.5% 1.8% Unencumbered NOI % 91.5% 92.7% Net Debt / Adjusted EBITDA 5.4x 4.3x Joint Venture Structure Amount ($ in millions) LXP Net Cash Proceeds Amount ($ in millions) LXP Uses of Cash Amount ($ in millions) Impact on Credit Ratios Pro Forma 9/30/21 As of 9/30/21 1. Excludes any potential promoted interest.

  
  

LXP INDUSTRIAL TRUST 5 Significantly Improved Portfolio Quality with a Warehouse/Distribution Focus 1. Portfolio breakdown by Gross Book Value. 74% YE 2015 1 Pro Forma 9/30/21 1 YE 2018 1 Warehouse/Distribution : ~16% Manufacturing, Cold Storage, Office & Other: ~84% Warehouse/Distribution : ~48% Manufacturing, Cold Storage, Office & Other: ~52% Warehouse/Distribution : ~93% Office & Other: ~7% Warehouse & Distribution Cold Storage Heavy Manufacturing Light Manufacturing Office & Other

  
  

LXP INDUSTRIAL TRUST 6 Highlights of LXP’s Pro Forma Industrial Portfolio Amazon 8.4 % Nissan 6.3 % Kellogg 4.8 % Undisclosed 3 3.5 % Watco 3.4 % FedEx 2.8 % Wal - Mart 2.8 % Undisclosed 3 2.8 % Unis 2.3 % Mars Wrigley 2.3 % Top 10 Tenants 48.8mm square feet 102 properties 99.0% leased 2 6.7 yrs WALT 2.6% average annual escalation 1 9.4 yrs average property age Memphis, TN 9.3% Dallas/Ft. Worth, TX 7.0 % Greenville/Spartanburg, SC 7.0 % Houston, TX 6.3 % Phoenix, AZ 6.3 % Atlanta, GA 5.7 % Cincinnati/Dayton, OH 5.1 % Nashville, TN 4.3 % Chicago, IL 4.3 % Savannah, GA 3.2 % Top 10 Markets Note: The statistics presented reflect the pro forma consolidated industrial portfolio. 1. For single - tenant properties with escalators. 2. For Stabilized Portfolio. 3. Lease restricts certain disclosures. % Base Rent % Base Rent

  
  

LXP INDUSTRIAL TRUST 7 Selected Properties of LXP’s Industrial Portfolio High Quality Portfolio of Warehouse & Distribution Facilities Phoenix AZ 160K Ball $6.14 2.25% Indianapolis IN Continental Tire Dallas/Ft. Worth TX Schluter Memphis TN McCormick Greenville/ Spartanburg SC BMW Market Tenant SF Rent PSF Annual Escalator 1 2.1% $3.34 742K 501K $4.47 2.5% 408K $4.89 2.0% 616K $4.04 1.4% Note: Selected properties are representative of the pro forma consolidated industrial portfolio. 1. All escalators are annual, other than Ball, which is every two years at 4.5%.

  
  

LXP INDUSTRIAL TRUST 8 LXP Offers a Highly Attractive Investment Opportunity Platform primed for growth with a focused portfolio, development pipeline and improved balance sheet and cost of capital 3 Leading portfolio of primarily single - tenant warehouse/distribution facilities in key logistics markets 1 Compelling sector tailwinds driving exceptional demand, occupancy and rent growth 2 Best - in - class management team with a track record of decisive value creation 4 Recently refreshed and independent Board of Trustees 5 Top - ranked ESG program aligned with established frameworks 6

  
  

LXP INDUSTRIAL TRUST . Appendix

  
  

LXP INDUSTRIAL TRUST Joint Venture Property Summary General Portfolio Description Financial Profile (in millions) # of Properties 22 Square Feet (SF) 6,719,210 WAVG Lease Term (Cash Basis – Years) 8 Portfolio % Leased 100% GAAP Rental Revenue (YTD 9/30/2021) $30.5 NOI (YTD 9/30/2021) – GAAP $30.4 NOI (YTD 9/30/2021) – Cash $29.5 9

  
  

LXP INDUSTRIAL TRUST 10 Joint Venture Property List 318 Pappy Dunn Blvd. Anniston AL Anniston/Oxford, AL 276,782 2029 4801 North Park Dr. Opelika AL Columbus, GA 165,493 2042 1020 W. Airport Rd. Romeoville IL Chicago, IL 188,166 2031 301 Bill Bryan Blvd. Hopkinsville KY Nashville, TN 424,904 2025 730 North Black Branch Rd. Elizabethtown KY Elizabethtown/Fort Knox, KY 167,770 2025 750 North Black Branch Rd. Elizabethtown KY Elizabethtown/Fort Knox, KY 539,592 2025 4010 Airpark Dr. Owensboro KY Owensboro, KY 211,598 2025 10000 Business Blvd. Dry Ridge KY Cincinnati/Dayton, OH 336,350 2031 113 Wells St. North Berwick ME Portland/South Portland, ME 993,685 2024 26700 Bunert Rd. Warren MI Detroit, MI 260,243 2032 43955 Plymouth Oaks Blvd. Plymouth MI Detroit, MI 311,612 2024 904 Industrial Rd. Marshall MI West Michigan 246,508 2028 2880 Kenny Biggs Rd. Lumberton NC Lumberton, NC 423,280 2026 5670 Nicco Way North Las Vegas NV Las Vegas, NV 180,235 2034 10590 Hamilton Ave. Cincinnati OH Cincinnati/Dayton, OH 264,598 2027 590 Ecology Ln. Chester SC Charlotte, NC 420,597 2025 50 Tyger River Dr. Duncan SC Greenville/Spartanburg, SC 221,833 2027 120 Southeast Pkwy. Dr. Franklin TN Nashville, TN 289,330 2023 900 Industrial Blvd. Crossville TN Crossville, TN 222,200 2033 13863 Industrial Rd. Houston TX Houston, TX 187,800 2035 7007 F.M. 362 Rd. Brookshire TX Houston, TX 262,095 2035 901 East Bingen Point Way Bingen WA Bingen, WA 124,539 2024 Market Square Footage Lease Expiration State City Address

  
EX-99.2 5 exh99-2.htm PRESS RELEASE ISSUED JANUARY 3, 2022

Exhibit 99.2

 

 

   
   
  TRADED: NYSE: LXP

ONE PENN PLAZA, SUITE 4015

NEW YORK, NY 10119-4015

 

FOR IMMEDIATE RELEASE

LXP INDUSTRIAL TRUST LAUNCHES JOINT VENTURE

$550 Million Recapitalization of Special Purpose Industrial Portfolio

Focuses LXP as a Pure-Play Single-Tenant Warehouse and Distribution REIT

 

New York, NY – January 3, 2022 – LXP Industrial Trust (“LXP”) (NYSE:LXP), a real estate investment trust focused on single-tenant industrial real estate investments, today announced that it recapitalized a 22-property special purpose industrial portfolio consisting primarily of manufacturing assets through a sale to a new joint venture with an affiliate of Davidson Kempner Capital Management LP. The portfolio’s total gross valuation of $550 million represents GAAP and Cash capitalization rates of 7.4% and 7.2%, respectively. LXP will retain a 20% interest in the new joint venture.

 

The recapitalization reflects LXP’s single-tenant warehouse and distribution focus, with 93% of gross book value (pro forma at September 30, 2021) invested in warehouse and distribution facilities, up from approximately 16% at year-end 2015. The transaction positions LXP to further advance its strategy by:

Providing LXP with approximately $487 million of estimated net proceeds to satisfy credit line borrowings and fund warehouse/distribution investments;
Generating recurring fee income to enhance return on equity; and
Adding a committed capital source to provide specialized industrial real estate financing options to existing LXP tenants and merchant builder relationships.

The following summarizes LXP’s consolidated industrial portfolio, as of September 30, 2021 on a pro forma basis:

102 warehouse/distribution assets
48.8 million square feet
6.7-year weighted-average lease term
2.6% average annual escalations
99.0% stabilized portfolio leased
57.3% investment-grade tenant/guarantor/sponsorship
9.4-year average property age
 
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T. Wilson Eglin, Chairman and Chief Executive Officer of LXP, commented, “We believe this recapitalization will unlock significant value by focusing LXP as a pure-play, single-tenant industrial REIT that develops and acquires warehouse and distribution facilities primarily leased to a single tenant, while the new joint venture builds on our institutional fund management capabilities. We are confident that LXP is well positioned to capitalize on substantial growth opportunities and benefit from strong market fundamentals and robust tenant demand as we continue to leverage our presence in our target markets and best-in-class asset management platform. We remain focused on evaluating and executing on opportunities to maximize shareholder value.

The new joint venture obtained a $381 million non-recourse mortgage loan secured by 21 assets, with a term of two years and three one-year extension options, at one-month Term Secured Overnight Financing Rate (SOFR) plus 245 basis points. In addition, the new joint venture assumed approximately $26 million of non-recourse financing secured by the Warren, Michigan asset.

The new joint venture includes a $250 million additional equity commitment on a pro rata basis for future acquisitions of single-tenant special purpose industrial properties outside of LXP’s core warehouse/distribution focus. LXP is entitled to earn acquisition, asset management and leasing and fees and a promoted-interest incentive.

Eastdil Secured acted as exclusive financial advisor on the recapitalization.

A presentation with supplemental information on the transaction is available at www.lxp.com within the Investors section.

About LXP Industrial Trust

LXP Industrial Trust (NYSE: LXP) is a publicly traded real estate investment trust (REIT) focused on single-tenant warehouse and distribution investments across the United States. LXP seeks to expand its portfolio through acquisitions, development projects, and build-to-suit and sale/leaseback transactions For more information or to follow LXP on social media, visit www.lxp.com.

 

Contact:

Investor or Media Inquiries for LXP Industrial Trust:

Heather Gentry, Senior Vice President of Investor Relations

Phone: (212) 692-7200 E-mail: hgentry@lxp.com

 

The term “pro forma” in this press release represents the adjustment to information at September 30, 2021 to reflect the recapitalization of 22 special purpose industrial assets to a new joint venture and the reclassification of four assets – two assets to warehouse/distribution from light manufacturing; one asset from cold storage to Other and one asset from heavy manufacturing to Other.

 

GAAP and Cash capitalization rates based on 3Q 2021 NOI annualized. See LXP’s Quarterly Supplemental Information Third Quarter 2021 for definitions of Non-GAAP measures.

 

This release contains certain forward-looking statements which involve known and unknown risks, uncertainties or other factors not under LXP's control which may cause actual results, performance or achievements of LXP to be materially different from the results, performance, or other expectations implied by these forward-looking statements. Factors that could cause or contribute

 
 Page 3 of 3

to such differences include, but are not limited to, those discussed under the headings “Management's Discussion and Analysis of Financial Condition and Results of Operations” and “Risk Factors” in LXP's periodic reports filed with the Securities and Exchange Commission. Copies of the periodic reports LXP files with the Securities and Exchange Commission are available on LXP's website at www.lxp.com. Forward-looking statements, which are based on certain assumptions and describe LXP's future plans, strategies and expectations, are generally identifiable by use of the words “believes,” “expects,” “intends,” “anticipates,” “estimates,” “projects”, “may,” “plans,” “predicts,” “will,” “will likely result,” “is optimistic,” “goal,” “objective” or similar expressions. Except as required by law, LXP undertakes no obligation to publicly release the results of any revisions to those forward-looking statements which may be made to reflect events or circumstances after the occurrence of unanticipated events. Accordingly, there is no assurance that LXP's expectations will be realized.

 

 

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