EXHIBIT 10.45

    


    EXECUTION
COPY

    


    AMENDMENT NO. 1 TO THE
CONTRIBUTION AGREEMENT

     

    THIS AMENDMENT NO. 1 TO THE
CONTRIBUTION AGREEMENT, made this 13th day of
May, 2010 (this “Amendment”), is made
by and among Simon Property Group, Inc., a Delaware corporation (“Parent REIT”), Simon
Property Group, L.P., a Delaware limited partnership (“Parent OP”), Marco
Capital Acquisition, LLC, a Delaware limited liability company and a wholly
owned subsidiary of Parent OP (“Parent Sub,” and
together with Parent REIT and Parent OP, the “Parent Parties”),
Lightstone Prime, LLC, a Delaware limited liability company (“Lightstone Prime”)
(solely in its capacity as the Representative), and Prime Outlets Acquisition
Company LLC, a Delaware limited liability company (the “Company”).

     

    WITNESSETH:

     

    WHEREAS, the parties hereto
and certain of their affiliates have entered into that certain Contribution
Agreement, dated as of December 8, 2009 (as amended from time to time, the
“Contribution
Agreement”);

     

    WHEREAS, concurrently with the
execution of this Amendment, the Parent Parties, Lightstone Real Property
Ventures Limited Liability Company, a New Jersey limited liability company
(“LRPV”), PR
Lightstone Manager, LLC, a Delaware limited liability company (“PR Manager”) and PR
Barceloneta, LLC, a New Jersey limited liability company (“Barceloneta”), have
entered into that certain Contribution Agreement, dated as of the date hereof
(the “Barceloneta
Contribution Agreement”), which provides for, among other things, the
contribution by LRPV and PR Manager on the date hereof of membership interests
in Barceloneta to Parent Sub;

     

    WHEREAS, in accordance with
Section 9.3 of
the Contribution Agreement, which provides that, among other things, the
Contribution Agreement may be amended or modified by a written agreement
executed and delivered by duly authorized officers of Parent REIT, Parent OP,
Parent Sub, the Company and the Representative, the parties hereto desire to
enter into this Amendment to amend the Contribution Agreement to reflect the
transactions contemplated by the Barceloneta Contribution Agreement;
and

     

    WHEREAS, pursuant to Section 11.1 of
the Contribution Agreement, the Representative is authorized to execute this
Amendment on behalf of the Contributors, which Amendment will thereupon be
binding upon the Contributors.

     

    NOW, THEREFORE, in
consideration of the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:

     

    1.           Definitions.

     

    (a)          The
following definitions in Section 1.1 of
the Contribution Agreement are hereby amended and restated in their entirety to
read as set forth below:

     

    “2008 Audited Financial
Statements” means the audited combined consolidated balance sheet of the
Group Companies (including the St. Augustine Land) as of December 31, 2008
and the related audited combined consolidated statements of income and cash
flows for the fiscal year ended December 31, 2008.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    “Budget” means the
operating budget of the Group Companies for the year-ended December 31,
2010 (or, in respect of any period prior to January 1, 2010, the operating
budget of the Group Companies for the year ended December 31, 2009), in
each case as set forth in Schedule 1.1(B).

     

    “Contributors” means
Lightstone Holdings, Lightstone Prime, BRM, LVP OP and Pro-DFJV.

     

    “DL Parties” means
Lightstone Holdings, Lightstone Prime and BRM.

     

    “DL Tax Matters
Agreement” means a Tax Matters Agreement to be entered into at or before
the Closing in the form attached as Exhibit F hereto
among Parent REIT, Parent OP, New Company, the Company, Lightstone Holdings,
Lightstone Prime, BRM and David Lichtenstein, with final schedules and exhibits
to be agreed upon in good faith by the parties thereto.

     

    “Employee” means each current (including those on
layoff, disability or leave of absence, whether paid or unpaid), former, or
retired employee, officer, consultant, independent contractor providing
individual services, agent or director of a Group Company or Prime Manager,
excluding any Transferred Employees, as that term is defined in the Barceloneta
Contribution Agreement.

     

    “Enterprise Value”
means two billion, one hundred eighty seven million dollars ($2,187,000,000)
(calculated using the Enterprise Value in the original Contribution Agreement of
$2,325,000,000 and subtracting the Enterprise Value of $138,000,000 pursuant to
the Barceloneta Contribution Agreement).

     

    “Escrow Agent” means
JP Morgan Chase Bank N.A.

     

    “Group Companies”
means, collectively, the Company, Ewell, Mill Run, St. Augustine, and each of
their respective Subsidiaries.

     

    “LVP Tax Matters
Agreement” means a Tax Matters Agreement to be entered into at or before
the Closing in the form attached as Exhibit G hereto
among Parent REIT, Parent OP, New Company, the Company and LVP REIT, LVP OP,
Pro-DFJV and, solely for purposes of Section 14
thereof, Lightstone Prime, Lightstone Holdings, BRM and David Lichtenstein, with
final schedules and exhibits to be agreed upon in good faith by the parties
thereto.

     

    “Member Indemnitee”
has the meaning set forth in Section 10.2(d).

     

    “New Company” means
Marco LP Units, LLC, a Delaware limited liability company.

     

    “New Company Manager”
means LP Units Manager, LLC, a Delaware limited liability company.

     

    
      
         


      

      
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    “New Company
Agreement” means the amended and restated limited liability company agreement of New
Company, in the form attached as Exhibit E
hereto, pursuant to which New Company will hold the Parent OP Common Units to be
issued to (i) Lightstone Holdings, Lightstone Prime, BRM, LVP OP and
Pro-DFJV hereunder, (ii) LRPV and PR Manager under the Barceloneta
Contribution Agreement and (iii) the Escrow Account hereunder.

     

    “Other Group
Companies” means Ewell, Mill Run and St. Augustine.

     

    “Severance, Employment and
Shut-Down Costs” means any out-of-pocket costs or expenses (including
reasonable legal expenses) reasonably incurred, or otherwise required to be paid
by Parent REIT, Parent OP or any of their Affiliates (including any Group
Company at or after the Closing), relating to or arising out of
(i) shutting down any corporate-level offices of the Group Companies (which
do not include, for the avoidance of doubt, any property-level offices),
including costs incurred by a Group Company in order to terminate the leases set
forth on Schedule 1.1(E)
and (ii) any liability or obligation, whether arising before or after the
Closing Date, relating to or arising out of (A) any Employee Benefit Plan
or Employee Agreement, (B) any employee benefit, welfare or pension or
other employment obligation, whether or not scheduled, of any Group Company or
applicable to any Employee that arises or is accrued on or prior to the Closing,
(C) the termination of an Employee at or prior to the Closing (including
any change in control and/or severance payments) other than liabilities under
WARN as described in the exception in Section 6.10(f)
and (D) any legal action taken against Parent REIT, Parent OP or any of
their Affiliates (including any Group Company), by any Employee described in the
preceding clause (C); provided, however,
that (x) claims arising out of any claim of employment discrimination
relating to events prior to the Closing (other than arising out of or relating
to the termination of any Employee as contemplated by Section 6.10)
shall not be included in the calculation of Severance Employment and Shut-Down
Costs and (y) any costs or expenses included in the definition of
Barceloneta Severance, Employment and Shut-Down Costs (as defined in the
Barceloneta Contribution Agreement) which are also included in this definition
of Severance, Employment and Shut-Down Costs shall not be included in the
calculation of Barceloneta Severance, Employment and Shut-Down
Costs.

     

    “Special Distribution
Amount” means an amount in cash equal to the result of (i) eighty
percent (80%) of the Estimated Aggregate Consideration Value decreased by
(ii) ten percent (10%) of the Barceloneta Estimated Aggregate Consideration
Value (or, if finally determined prior to Closing pursuant to
Section 2.3(b) of the Barceloneta Contribution Agreement, the Barceloneta
Final Aggregate Consideration Value).

     

    “Survival Period Termination
Date” has the meaning set forth in Section 10.2(f).

     

    
      
         


      

      
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    “Termination Date”
means October 31, 2010, provided, that
(i) if prior to the Termination Date unresolved Known Claims shall have
been submitted to the Claim Arbitrator in accordance with Section 2.3(f)
and the Claim Arbitrator shall not have determined the aggregate value of such
unresolved Known Claims in accordance with Section 2.3(f)(iii) prior
to October 31, 2010, the Termination Date shall be extended until the fifth
(5th) Business Day after the value of all unresolved Known Claims submitted to
the Claim Arbitrator prior to October 31, 2010 shall have been determined
by the Claim Arbitrator in accordance with Section 2.3(f)(iii) and
(ii) if, as of October 31, 2010 (A) all of the conditions to
closing set forth in Article 8 (other than any conditions that by their
terms are to be satisfied at the Closing) have been satisfied (or validly waived
by the Person entitled to waive such condition), (B) the Parent Parties
have complied at all times on and prior to such date in all material respects
with their obligations in Section 6.5 and (C) the funds necessary to
satisfy all of Parent OP’s and Parent Sub’s obligations under this Agreement
shall not be available to Parent OP out of the Financing, then Parent OP may, in
its sole discretion, upon written notice to the Representative on
October 31, 2010, elect to change the Termination Date to December 31,
2010.  For the avoidance of any doubt, upon such election, the
“Maturity Date” under that certain Second Amended, Restated and Consolidated
Loan Agreement, dated as of July 16, 2009, as amended by Amendment No. 1
dated as of May 13, 2010, by and among Lightstone Holdings LLC, LSG-ESH
LLC, David Lichtenstein and Parent OP shall be deemed to be December 31,
2010.

     

    “Transaction
Documents” means this Agreement, Amendment No. 1, the New Company
Agreement, the LP Purchase Agreement, the Tax Matters Agreements, the Escrow
Agreement, the GPT Sale Agreement and the Mill Run Letter
Agreement.

     

    “Working Capital Escrow
Amount” means four million, seven hundred three thousand and two hundred
twenty six dollars ($4,703,226) (equal to the product of (i) $5,000,000 and
(ii) $2,187,000,000 ($2,325,000,000 - $138,000,000) divided by
$2,325,000,000).

     

    (b)          Section 1.1 of
the Contribution Agreement is hereby amended by adding the following defined
terms:

     

    “Amendment No. 1”
means the Amendment No. 1 to this Agreement, dated as of May 13, 2010, by
and among the Parent Parties, Lightstone Prime and the Company.

     

    “Barceloneta Actual
Adjustment” has the meaning ascribed to the defined term “Actual
Adjustment” in the Barceloneta Contribution Agreement.

     

    “Barceloneta Aggregate
Consideration Value” has the meaning ascribed to the defined term
“Aggregate Consideration Value” in the Barceloneta Contribution
Agreement.

     

    “Barceloneta Aggregate Unit
Value” has the meaning ascribed to the defined term “Aggregate Unit
Value” in the Barceloneta Contribution Agreement.

     

    “Barceloneta Contribution
Agreement” means that certain Contribution Agreement, dated as of
May 13, 2010, by and among the Parent Parties, LRPV, PR Manager and
Barceloneta.

     

    “Barceloneta Closing”
has the meaning ascribed to the defined term “Closing” in the Barceloneta
Contribution Agreement.

     

    “Barceloneta Closing
Date” has the meaning ascribed to the defined term “Closing Date” in the
Barceloneta Contribution Agreement.

     

    “Barceloneta
Contributors” means LRPV and PR Manager.

     

    
      
         


      

      
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    “Barceloneta Escrow
Agreement” means that certain Escrow Agreement, dated as of May 13,
2010, by and among the Parent Parties, LRPV and the Escrow Agent.

     

    “Barceloneta Estimated
Aggregate Consideration Value” has the meaning ascribed to the defined
term “Estimated Aggregate Consideration Value” in the Barceloneta Contribution
Agreement.

     

    “Barceloneta Final Aggregate
Consideration Value” has the meaning ascribed to the defined term “Final
Aggregate Consideration Value” in the Barceloneta Contribution
Agreement.

     

    “Barceloneta Material Adverse
Effect” has the meaning ascribed to the defined term “Company Material
Adverse Effect” in the Barceloneta Contribution Agreement.

     

    “Barceloneta Member
Indemnitee” has the meaning set forth in Section 10.2(e).

     

    “Barceloneta Non-Excluded
Representation” has the meaning ascribed to the defined term
“Non-Excluded Representation” in the Barceloneta Contribution
Agreement.

     

    “Barceloneta Parent Closing
Price” has the meaning ascribed to the defined term “Parent Closing
Price” in the Barceloneta Contribution Agreement.

     

    “Barceloneta
Representative” means LRPV.

     

    “Barceloneta Required
Consents” has the meaning ascribed to the defined term “Required
Consents” in the Barceloneta Contribution Agreement.

     

    “Barceloneta
Schedules” has the meaning ascribed to the defined term “Company
Schedules” in the Barceloneta Contribution Agreement.

     

    “Barceloneta Survival Period
Termination Date” has the meaning set forth in Section 10.2(f).

     

    “Barceloneta Tax Matters
Agreement” has the meaning ascribed to the defined term “Tax Matters
Agreement” in the Barceloneta Contribution Agreement.

     

    “Escrow Unit Payment
Percentage Interest” means, with respect to any Contributor, the
percentage interest set forth opposite such Contributor’s name on Annex G (as such
Annex G
may be updated from time to time prior to Closing, with notice to the Parent
Parties, by the Representative).

     

    “Final Aggregate
Consideration Value” means the Aggregate Consideration Value as finally
determined pursuant to Section 2.3(d).

     

    (c)          The
definition “NOI
Waiver” in Section 1.1 of
the Contribution Agreement is hereby deleted in its entirety:

     

    
      
         


      

      
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    (d)          All
capitalized terms used in this Amendment but not otherwise defined in this
Amendment shall have the meanings set forth in the Contribution
Agreement.

     

    2.           Amendment to the first
WHEREAS clause.  The first WHEREAS clause of the Contribution
Agreement shall be amended and restated in its entirety to read as
follows:

     

    “WHEREAS, Lightstone Holdings,
Pro-DFJV, LVP OP and BRM own the membership interests in Ewell and Mill Run, in
each case as set forth opposite their respective names on Annex A (such
membership interests, the “Other Group Companies
Contributed Interests”);”

     

    3.           Amendment to
Section 2.1.  Section 2.1 of
the Contribution Agreement shall be amended and restated in its entirety to read
as follows:

     

    “Upon the
terms and subject to the conditions set forth in this Agreement, at the Closing,
(a) each of Lightstone Holdings, Pro-DFJV, LVP OP and BRM shall contribute,
convey and transfer to Parent Sub all of such Contributor’s right, title and
interest in and to the Other Group Companies Contributed Interests (the “Other Group Companies
Contributions”) and (b) each of Lightstone Prime, LVP OP and
Pro-DFJV shall contribute, convey and transfer to Parent Sub all of such
Person’s right, title and interest in and to the Company Contributed Interests
(the “Company
Contributions,” and together with the Other Group Companies
Contributions, the “Contributions”).”

     

    4.           Amendment to
Section 2.3(a).  Section 2.3(a) of the Contribution
Agreement shall be amended and restated in its entirety to read as
follows:

     

    “Intentionally
Omitted.”

     

    5.           Amendment to
Section 2.3(c).  Section 2.3(c)
of the Contribution Agreement shall be amended and restated in its entirety to
read as follows:

     

    “At the
Closing, subject to Section 2.4 and
Section 2.6,
Parent OP shall:

     

    (i)           issue
in the name of the Escrow Agent, for deposit on behalf of the Contributors into
the Escrow Account pursuant to the Escrow Agreement, a number of Parent OP
Common Units (the “Escrow Units”) equal
to the quotient of (a) an amount equal to (x) ten percent (10%) of the
Estimated Aggregate Consideration Value plus (y) ten
percent (10%) of the Barceloneta Estimated Aggregate Consideration Value (or, if
finally determined at such time pursuant to Section 2.3(b) of the
Barceloneta Contribution Agreement, the Barceloneta Final Aggregate
Consideration Value) divided by
(b) the Parent Closing Price; and

     

    (ii)           issue
to the Contributors, pro rata in accordance with each such Contributor’s
Applicable Percentage Interest, a number of Parent OP Common Units equal to the
quotient of (a) an amount equal to ten percent (10%) of the Estimated
Aggregate Consideration Value divided by
(b) the Parent Closing Price.”

     

    
      
         


      

      
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    6.           Amendment to
Section 2.3.  Section 2.3 of
the Contribution Agreement shall be amended by adding the following new Section 2.3(g):

     

    “(g)         Barceloneta
Adjustment

     

    If the
Barceloneta Aggregate Consideration Value has not been finally determined prior
to the Closing in accordance with Section 2.3(b) of the Barceloneta
Contribution Agreement, then, notwithstanding the provisions of
Section 2.3(c)(ii) of the Barceloneta Contribution Agreement, if the
Barceloneta Actual Adjustment is a negative amount, within three
(3) Business Days after the date on which the Barceloneta Aggregate
Consideration Value is finally determined in accordance with Section 2.3(b)
of the Barceloneta Contribution Agreement, the Barceloneta Representative shall,
on behalf of the Barceloneta Contributors, pay to Parent OP an amount in cash
equal to the absolute value of such negative amount.  If this
Agreement is terminated and the Closing is not effected, the Barceloneta Final
Aggregate Consideration Value shall be determined, and any Barceloneta Actual
Adjustment shall be determined and paid, in accordance with Section 2.3 of
the Barceloneta Contribution Agreement.”

     

    7.           Amendment to
Section 2.5.  Section 2.5 of
the Contribution Agreement shall be amended by adding the following new Section 2.5(c):

     

    “(c)         On
the Closing Date, pursuant to the terms of the Barceloneta Contribution
Agreement, the Barceloneta Representative and Parent OP shall deliver joint
written instructions instructing the Barceloneta Escrow Agent (i) if the
Barceloneta Final Aggregate Consideration Value has been finally determined in
accordance with Section 2.3(b) of the Barceloneta Contribution Agreement
prior to the Closing and the Barceloneta Actual Adjustment is a negative amount,
to deliver (A) from the Barceloneta Escrow Account to Parent OP an amount
of cash equal to (x) the absolute value of the Barceloneta Actual
Adjustment minus (y) the
aggregate amount of all distributions on the Parent OP Units (which were issued
to the New Company pursuant to the Barceloneta Contribution Agreement) that have
been withheld by Parent OP pursuant to Section 2.3(c)(ii) of the
Barceloneta Contribution Agreement, if any, in full satisfaction of the
obligations of the Barceloneta Contributors to forgo cash distributions pursuant
to Section 2.3(c)(ii) of the Barceloneta Contribution Agreement and
(B) from the Barceloneta Escrow Account to the Barceloneta Representative
for further distribution to the Barceloneta Contributors, all of the remaining
cash in the Barceloneta Escrow Account after making the distribution described
in clause (A) above or (ii) if the Barceloneta Final Aggregate
Consideration Value has not been finally determined in accordance with
Section 2.3(b) of the Barceloneta Contribution Agreement or if the
Barceloneta Actual Adjustment is a positive amount, to deliver from the
Barceloneta Escrow Account to the Barceloneta Representative for further
distribution to the Barceloneta Contributors all of the cash in the Barceloneta
Escrow Account.  If this Agreement is terminated and the Closing does
not occur, the Barceloneta Final Aggregate Consideration Value shall be
determined, and any Barceloneta Actual Adjustment shall be determined and paid,
in accordance with Section 2.3 of the Barceloneta Contribution
Agreement.”

     

    
      
         


      

      
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    8.           Amendment to
Section 3.21.  The following paragraph is added at the end
of Section 3.21 of
the Contribution Agreement:

     

    “Except
as set forth in Section 3.22,
notwithstanding anything to the contrary in this Agreement, the Company makes no
representations or warranties, express or implied, with respect to Barceloneta,
any of Barceloneta’s businesses, assets or liabilities, the Barceloneta
Contribution Agreement or the transactions contemplated thereby, to Parent REIT,
Parent OP or Parent Sub and hereby disclaims all liability and responsibility
for any such representation or warranty made, communicated, or furnished to
Parent REIT, Parent OP or Parent Sub.  The Company hereby acknowledges
and agrees that, except as set forth in Section 5.13,
(i) Parent REIT, Parent OP and Parent Sub make no representations or
warranties with respect to Barceloneta, any of Barceloneta’s businesses, assets
or liabilities, the Barceloneta Contribution Agreement or the transactions
contemplated thereby and (ii) no representation, warranty or covenant of
the Parent Parties in this Agreement shall be deemed breached as a result of the
execution and delivery of the Barceloneta Contribution Agreement or the
consummation of the transactions contemplated thereby.”

     

    9.           New
Section 3.22.  The following new Section 3.22 is
added to the Contribution Agreement:

     

    “The Company hereby represents and
warrants to Parent OP that the entry into Amendment No. 1 and the Barceloneta Contribution
Agreement does not
and will not, except
as set forth in the Company Schedules or the Barceloneta Schedules, and
assuming the receipt of the Required Consents and the Barceloneta Required
Consents and repayment of the Floating Rate Debt at Closing,  (i) result in a violation or breach of, or
cause acceleration, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration), or require any notice or consent under any of the terms,
conditions or provisions of any Contract to which any Group Company is a party
or by which it or any of their respective properties is bound or affected,
(ii) conflict with or
violate any Law or Order applicable to any Group Company or any of their
respective properties or
assets or (iii) except
as expressly contemplated by this Agreement and the other Transaction
Documents or the
Barceloneta Contribution Agreement, result in the creation of any Lien
upon any of the assets of any Group Company, the Company Membership Interests or
any membership or other equity interest of any Group Company; provided, that no
representation or warranty is being made in this Section 3.22
with respect to any antitrust or competition Laws (or any Orders or Contracts
related thereto) that may be applicable to the Contemplated
Transactions.”

     

    10.         Amendment to
Section 4.7.  The following is added at the end of Section 4.7 of
the Contribution Agreement:

     

    “Such
Contributor hereby acknowledges and agrees that, except as set forth in Section 5.13,
(i) none of Parent REIT, Parent OP or Parent Sub makes any representations
or warranties with respect to Barceloneta, any of Barceloneta’s businesses,
assets or liabilities, the Barceloneta Contribution Agreement or the
transactions contemplated thereby and (ii) no representation, warranty or
covenant of the Parent Parties in this Agreement shall be deemed breached as a
result of the execution and delivery of the Barceloneta Contribution Agreement
or the consummation of the transactions contemplated thereby.”

     

    
      
         


      

      
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    11.         Amendment to
Section 4.8.  The following is added at the end of Section 4.8 of
the Contribution Agreement:

     

    “Except
as set forth in Section 4.9,
notwithstanding anything to the contrary in this Agreement, the Contributors
make no representations or warranties, express or implied, with respect to
Barceloneta, any of Barceloneta’s businesses, assets or liabilities, the
Barceloneta Contribution Agreement or the transactions contemplated thereby, to
Parent REIT, Parent OP or Parent Sub and hereby disclaim all liability and
responsibility for any such representation or warranty made, communicated, or
furnished to Parent REIT, Parent OP or Parent Sub.”

     

    12.         New
Section 4.9.  The following new Section 4.9 is
added to the Contribution Agreement:

     

    “Each
Contributor hereby, severally, and not jointly or jointly and severally,
represents and warrants to Parent OP that the entry into Amendment No. 1 and the Barceloneta Contribution
Agreement does not
and will not (i) conflict with or result in any breach of
any provision of such Contributor’s Governing Documents, (ii) result in a violation or breach of, or
cause acceleration, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation of any material agreement to which such Contributor is
a party, or (iii) violate any Law or Order applicable to
such Contributor, except in the case of clauses (ii) and (iii) above, for violations which would not
prevent or materially impair or delay the ability of such Contributor to perform
its respective obligations under this Agreement and provided, that no
representation or warranty is being made in this Section 4.9 with
respect to any antitrust or competition Laws (or any Orders or Contracts related
thereto) that may be applicable to the Contemplated Transactions.”

     

    13.         Amendment to
Section 5.11.  The following is added at the end of Section 5.11 of
the Contribution Agreement:

     

    “Except
as set forth in Section 3.22,
each of Parent REIT, Parent OP and Parent Sub hereby acknowledges and agrees
that, (i) neither the Company nor any of the Contributors makes any
representations or warranties, express or implied, with respect to Barceloneta,
any of Barceloneta’s businesses, assets or liabilities, the Barceloneta
Contribution Agreement or the transactions contemplated thereby and (ii) no
representation, warranty or covenant of the Company or any Contributor in this
Agreement shall be deemed breached as a result of the execution and delivery of
the Barceloneta Contribution Agreement or the consummation of the transactions
contemplated thereby.  In furtherance of the foregoing, to the extent
any representation, warranty or covenant of the Company (including in Section 3.4(a)
and Section 3.4(b))
or any Contributor in any Transaction Document may apply to or otherwise
include, by reference to a schedule or otherwise, any information or obligation
regarding Barceloneta, or any of Barceloneta’s businesses, assets or
liabilities, such representation, warranty or covenant shall be deemed modified
to exclude any application thereof to Barceloneta, or any of Barceloneta’s
businesses, assets or liabilities, and such representation, warranty or
covenant, as so modified, shall not be deemed breached to the extent such
exclusion of Barceloneta, or any of Barceloneta’s businesses, assets or
liabilities, would otherwise result in a breach thereof.”

     

    
      
         


      

      
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    14.         Amendment to
Section 5.12.  The following sentence is added at the end
of Section 5.12 of
the Contribution Agreement:

     

    “Except
as set forth in Section 5.13,
notwithstanding anything to the contrary in this Agreement, none of Parent REIT,
Parent OP or Parent Sub makes any representations or warranties with respect to
Barceloneta, any of its businesses, assets or liabilities, the Barceloneta
Contribution Agreement or the transactions contemplated thereby, to the Company
or any of the Contributors and Parent REIT, Parent OP or Parent Sub hereby
disclaim all liability and responsibility for any such representation or
warranty made, communicated, or furnished to the Company or any of the
Contributors.”

     

    15.         New
Section 5.13.  The following new Section 5.13 is
added to the Contribution Agreement:

     

    “Parent
REIT, Parent OP and Parent Sub hereby jointly and severally represent and
warrant to the Company and the Contributors that the entry into Amendment No. 1 and the Barceloneta Contribution
Agreement does not and will
not (i) conflict with or result in any breach of
any provision of such Person’s Governing Documents, (ii) result in a violation or breach of, or
cause acceleration, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation of any material agreement to which such Person is a party, or (iii) violate any Law or Order applicable to
such Person, except in the
case of clauses (ii) and (iii) above, for violations which would not
prevent or materially impair or delay the ability of such Person to perform its respective obligations
under this Agreement
and provided,
that no representation or warranty is being made with respect to any antitrust
or competition Laws (or any Orders or Contracts related thereto) that may be
applicable to the Contemplated Transactions.”

     

    16.         Amendment to
Section 8.2(d).  Clause (d) of Section 8.2 of
the Contribution Agreement shall be amended and restated to read as
follows:

     

    “
(d)        Intentionally
Omitted.”

     

    
      
         


      

      
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    17.         Amendment to
Section 8.2(e).  Clauses (vi), (vii) and (viii) of Section 8.2(e)
of the Contribution Agreement shall be amended and restated, respectively, to
read as follows:

     

    “(vi)        the
New Company Agreement, duly executed by each Contributor, LRPV and PR
Manager;

     

    (vii)         the
DL Tax Matters Agreement, duly executed by each of Lightstone Holdings,
Lightstone Prime, BRM, David Lichtenstein and the Company; and

     

    (viii)        the
LVP Tax Matters Agreement, duly executed by each of LVP REIT, LVP OP, Pro-DFJV,
the Company and, solely for purposes of Section 14
thereof, Lightstone Prime, Lightstone Holdings, BRM and David
Lichtenstein.”

     

    18.         Amendment to
Section 8.3.  Clauses (d) and (e) of Section 8.3 of
the Contribution Agreement shall be amended and restated, respectively, to read
as follows:

     

    “(d)         Intentionally
Omitted.

     

    (e)           Intentionally
Omitted.”

     

    19.         Amendment to
Article 10.  Article 10 of the Contribution
Agreement shall be amended
and restated to read as
follows:

     

    “ARTICLE
10

     

    SURVIVAL;
INDEMNIFICATION

     

    Section 10.1        Survival

     

    Subject to the provisions of this
Article 10, (a) the representations and
warranties in this Agreement and in any certificate delivered pursuant hereto
shall survive until 5:00 p.m. New York City time on the date that is the
18-month anniversary of the Closing Date; provided, that
(i) to the extent any claim for indemnification with respect to a breach of
any representation or warranty in this Agreement has been made in accordance
with Section 10.3
hereof prior to such time, then, solely to the extent of such claim, the
representations and warranties relevant thereto shall be deemed to survive until
the final resolution thereof and (ii) notwithstanding anything to the
contrary contained in this Agreement, the representations and warranties in
(x) Section 4.2
(Authority), Section 4.4
(Title) and Section 5.2
(Authority) shall survive indefinitely and (y) Section 3.4(a)(i) and,
to the extent related to the 2008 Unaudited Financial Statements, Section 3.4(b)
shall not survive the Closing and no claims for indemnification may be made in
respect thereof, (b) the representations and warranties in the Barceloneta
Contribution Agreement shall survive until 5:00 p.m. New York City time on
the date that is the eighteen (18)-month anniversary of the Barceloneta Closing
Date; provided,
that (i) to the extent any claim for indemnification with respect to a
breach of any representation or warranty in the Barceloneta Contribution
Agreement has been made in accordance with Section 10.3
hereof prior to such time, then, solely to the extent of such claim, the
representations and warranties relevant thereto shall be deemed to survive until
the final resolution thereof and (ii) notwithstanding anything to the
contrary contained in this Agreement, the representations and warranties in
Section 4.2 (Authority) of the Barceloneta Contribution Agreement,
Section 4.4 (Title) of the Barceloneta Contribution Agreement and
Section 5.2 (Authority) of the Barceloneta Contribution Agreement shall
survive indefinitely, (c) the covenants and agreements of the parties in
this Agreement to be performed prior to the Closing shall not survive the
Closing; provided, that the
expiration of such covenants and agreements shall not limit the right to any
Indemnified Party to seek or obtain indemnification with respect to any breach
thereof pursuant to this Article 10 and
(d) all covenants and agreements in this Agreement and the Barceloneta
Contribution Agreement to be performed at or after the Closing or the
Barceloneta Closing, as the case may be, shall survive the Closing or the
Barceloneta Closing, as the case may be, in accordance with their respective
terms or, if no term is specified, indefinitely.

     

    
      
         


      

      
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    Section 10.2      
 Indemnification

     

    (a)          Subject
to the provisions of this Article 10 and
the Escrow Agreement, from and after the Closing, Parent REIT, Parent OP and
Parent OP’s Subsidiaries (including the Group Companies after the Closing) (each
a “Parent
Indemnitee”) shall be entitled, in accordance with the provisions of this
Article 10
and the Escrow Agreement, to receive proceeds from the Escrow Account as
indemnification in respect of any damages, losses, liabilities, costs, expenses
or obligations of any kind (including, without limitation, reasonable attorneys’
fees and costs of investigation) (each a “Loss” and,
collectively, “Losses”) suffered or
paid, directly or indirectly, as a result of, in connection with, or arising out
of or relating to (i) any breach of any representation or warranty in Article 3 (other
than Section 3.4(a)(i) and,
to the extent related to the 2008 Unaudited Financial Statements, Section 3.4(b))
or in any certificate delivered by
or on behalf of the Company pursuant hereto (without regard to any
Company Material Adverse Effect or materiality qualifications contained in any
Non-Excluded Representation and without regard to any knowledge qualifications),
(ii) any breach of any covenant or agreement contained herein to be
performed by the Company (including any failure of a Group Company to take or
refrain from taking any action contemplated hereby) prior to the Closing (other
than Section 6.11 and
Section 6.13),
(iii) the amount of any Severance, Employment and Shut-Down Costs incurred
by Parent REIT, Parent OP, Parent Sub or any of their Affiliates (including any
Group Company after the Closing) which are not paid prior to Closing or taken
into account in connection with the calculation of the Estimated Aggregate
Consideration Value and/or the Final Aggregate Consideration Value, (iv)(A) any
claims against a Group Company by any member or other equity holder of any Group
Company prior to the Closing arising from and relating to the Contemplated
Transactions or the management, operation or conduct of the Group Companies at
or prior to the Closing (collectively, “Minority Claims”) or
(B) in the event the transactions contemplated by the LP Purchase Agreement
shall not have been fully consummated in accordance with their terms at the
Closing (other than as a result of a breach of such Agreement by the Parent
Parties) (1) any out-of-pocket, costs or expenses (including reasonable
attorneys fees) incurred by the Parent Parties to enforce the LP Purchase
Agreement or to defend any claims made by the selling parties under the LP
Purchase Agreement and (2) any additional amounts paid by the Parent
Parties in excess of the purchase price specified in the LP Purchase Agreement
(excluding, for the avoidance of doubt, any amendments thereto after the
Closing) for the applicable securities not acquired at the Closing (including
pursuant to any judgment or settlement); provided, that the
additional costs or expenses incurred by the Parent Parties to acquire such
securities shall be subject to the consent of the Representative (such consent
not to be unreasonably withheld, conditioned or delayed), (v) the amount of
any Pre-Signing Allowances and Commissions incurred by Parent REIT, Parent OP,
Parent Sub or any of their Affiliates (including any Group Company after the
Closing) which are not taken into account in connection with the calculation of
the Estimated Aggregate Consideration Value and/or the Final Aggregate
Consideration Value, (vi) any breach of any representation or warranty in
Article 3 of the Barceloneta Contribution Agreement (without regard to any
Barceloneta Material Adverse Effect or materiality qualifications contained in
any Barceloneta Non-Excluded Representation and without regard to any knowledge
qualifications), (vii) the amount of any Barceloneta Severance, Employment
and Shut-Down Costs incurred by Parent REIT, Parent OP, Parent Sub or any of
their Affiliates (including Barceloneta after the Barceloneta Closing) which are
not paid prior to the Barceloneta Closing or taken into account in connection
with the calculation of the Barceloneta Estimated Aggregate Consideration Value
and/or the Barceloneta Final Aggregate Consideration Value and (viii) the
amount of any Barceloneta Pre-December 8 Allowances and Commissions
incurred by Parent REIT, Parent OP, Parent Sub or any of their Affiliates
(including Barceloneta after the Barceloneta Closing) which are not taken into
account in connection with the calculation of the Barceloneta Estimated
Aggregate Consideration Value and/or the Barceloneta Final Aggregate
Consideration Value.  For the avoidance of any doubt, no Contributor,
Barceloneta Contributor or LVP REIT shall assert any objection to the
satisfaction of the indemnification obligations hereunder out of the Escrow
Account solely by reason of that Person not having made any representation,
warranty, covenant or agreement with respect to the matter giving rise to the
Loss, to the extent another such Party, the Company or Barceloneta shall have
made a representation, warranty, covenant or agreement with respect thereto in
this Agreement or in the Barceloneta Contribution Agreement.

     

    
      
         


      

      
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    (b)          Subject
to the provisions of this Article 10, from
and after Closing, each Contributor and LVP REIT shall severally, and not
jointly or jointly and severally, indemnify, defend and hold harmless, the
Parent Indemnitees from and against any Losses suffered or paid, directly or
indirectly, as a result of, in connection with, or arising out of or related to
(i) any breach of any representation or warranty of such Contributor in
Article 4
or, in the case of LVP REIT, Section 4.3(b),
as of the Closing Date, as though such representation and warranty was made on
the Closing Date, (ii) any breach of any covenant or agreement contained
herein to be performed by such Contributor or, in the case of LVP REIT, Section 6.13,
prior to the Closing and (iii) any breach of any covenant or agreement
contained herein to be performed by such Contributor or, in the case of LVP
REIT, Section 6.16 or
Section 7.2(b),
at or after the Closing.

     

    
      
         


      

      
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    (c)          Subject
to the provisions of this Article 10, from
and after Closing, each Barceloneta Contributor shall severally, and not jointly
or jointly and severally, indemnify, defend and hold harmless, the Parent
Indemnitees from and against any Losses suffered or paid, directly or
indirectly, as a result of, in connection with, or arising out of or related to
(i) any breach of any representation or warranty of such Contributor in
Article 4 of the Barceloneta Contribution Agreement and (ii) any
breach of any covenant or agreement contained in the Barceloneta Contribution
Agreement to be performed by such Barceloneta Contributor at or after the
Barceloneta Closing.

     

    (d)          Subject
to the provisions of this Article 10, from
and after Closing, each of Parent REIT, Parent OP and Parent Sub shall jointly
and severally indemnify, defend and hold harmless, the Contributors and each of
their respective Affiliates (other than the Group Companies), predecessors,
successors and assigns, and each of their respective officers, directors,
employees, members, partners, shareholders, managers, agents and representatives
(each a “Member
Indemnitee”) from and against any Losses suffered or paid, directly or
indirectly, as a result of, in connection with, or arising out of or related to
(i) any breach of any representation or warranty of Parent REIT, Parent OP
or Parent Sub in Article 5
(without regard to any Parent Material Adverse Effect or materiality
qualifications contained in any Non-Excluded Representation) or in any certificate delivered by or on behalf
of Parent REIT, Parent OP or Parent Sub pursuant hereto, (ii) any
breach of any covenant or agreement contained herein to be performed by Parent
REIT, Parent OP or Parent Sub prior to the Closing and (iii) any breach of
any covenant or agreement contained herein to be performed by Parent REIT,
Parent OP or Parent Sub at or after the Closing.

     

    (e)          Subject
to the provisions of this Article 10, from
and after Closing, each of Parent REIT, Parent OP and Parent Sub shall jointly
and severally indemnify, defend and hold harmless, the Barceloneta Contributors
and each of their respective Affiliates (other than Barceloneta), predecessors,
successors and assigns, and each of their respective officers, directors,
employees, members, partners, shareholders, managers, agents and representatives
(each a “Barceloneta
Member Indemnitee”) from and against any Losses suffered or paid,
directly or indirectly, as a result of, in connection with, or arising out of or
related to (i) any breach of any representation or warranty of Parent REIT,
Parent OP or Parent Sub in Article 5 of the
Barceloneta Contribution Agreement (without regard to any Parent Material
Adverse Effect or materiality qualifications contained in any Barceloneta
Non-Excluded Representation) or in any certificate delivered by or on behalf
of Parent REIT, Parent OP or Parent Sub pursuant thereto and (ii) any breach
of any covenant or agreement contained in the Barceloneta Contribution Agreement
to be performed by Parent REIT, Parent OP or Parent Sub at or after the
Barceloneta Closing.

     

    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    (f)           Subject
to the provisions of this Article 10, the
ability of any Parent Indemnitee to receive proceeds from the Escrow Account
pursuant to Section 10.2(a)(i),
Section 10.2(a)(ii),
Section 10.2(a)(iii),
Section 10.2(a)(iv) or
Section 10.2(a)(v) or
indemnification pursuant to
Section 10.2(b)(i) or
Section 10.2(b)(ii) and
the ability of any Member
Indemnitee to receive
indemnification pursuant to Section 10.2(d)(i) or
Section 10.2(d)(ii) shall
survive the Closing and shall terminate on the date that is the eighteen (18)
month anniversary of the Closing Date (the “Survival Period Termination
Date”), in each case except to the extent such Parent Indemnitee or
Member Indemnitee, as applicable, shall have made, prior to the Survival Period Termination
Date, a claim in accordance
with the terms of this Article 10,
in which case such claim, if then
unresolved, shall not be extinguished at the Survival Period Termination Date
and shall survive the Survival Period Termination Date until finally resolved in
accordance with the provisions of this Article 10 and, if applicable, the Escrow
Agreement; provided, that the right of a Parent
Indemnitee to receive indemnification pursuant to
Section 10.2(b)(i) or
Section 10.2(b)(ii) with respect to a breach of the
representations and warranties in Section 4.2 (Authority) and Section 4.4 (Title) shall survive indefinitely and
the right of a Member Indemnitee to receive indemnification pursuant to
Section 10.2(d)(i) with respect to a breach of the
representations and warranties in Section 5.2 (Authority) shall survive
indefinitely.  Subject to the provisions of this Article 10, the
ability of any Parent Indemnitee to receive proceeds from the Escrow Account
pursuant to Section 10.2(a)(vi),
Section 10.2(a)(vii) or
Section 10.2(a)(viii) or
indemnification pursuant to
Section 10.2(c)(i) and
the ability of any Barceloneta Member Indemnitee to receive indemnification pursuant to
Section 10.2(e)(i) shall
survive the Closing and shall terminate on the date that is the eighteen
(18)-month anniversary of the Barceloneta Closing Date (the “Barceloneta Survival Period
Termination Date”), in each case except to the extent such Parent
Indemnitee or Barceloneta Member Indemnitee, as applicable, shall have made,
prior to the Barceloneta
Survival Period Termination
Date, a claim in accordance
with the terms of this Article 10,
in which case such claim, if then
unresolved, shall not be extinguished at the Barceloneta Survival Period Termination Date and
shall survive the Barceloneta Survival Period Termination Date until
finally resolved in accordance with the provisions of this Article 10 and, if applicable, the Escrow
Agreement; provided, that the right of a Parent
Indemnitee to receive indemnification pursuant to
Section 10.2(c)(i) with respect to a breach of the
representations and warranties in Section 4.2 (Authority) of the Barceloneta Contribution
Agreement and Section 4.4 (Title) of the Barceloneta Contribution
Agreement shall survive
indefinitely and the right of a Barceloneta Member Indemnitee to receive indemnification pursuant to
Section 10.2(e)(i) with respect to a breach of the
representations and warranties in Section 5.2 (Authority) of the Barceloneta Contribution
Agreement shall survive
indefinitely.  The right of a Parent Indemnitee to receive indemnification pursuant to
Section 10.2(b)(iii) or
Section 10.2(c)(ii),
a Member Indemnitee to receive indemnification pursuant to
Section 10.2(d)(iii) or
a Barceloneta Member Indemnitee to receive indemnification pursuant to
Section 10.2(e)(ii) shall survive
indefinitely.

     

    Section 10.3        Indemnification
Procedures

     

    (a)           If
a claim, action, suit or proceeding by a Person who is not a party hereto or an
Affiliate thereof (a “Third Party Claim”)
is made against any Person entitled to indemnification pursuant to Section 10.2
hereof (an “Indemnified Party”),
and if such Indemnified Party intends to seek indemnity with respect thereto
under this Article 10, or
if any Indemnified Party otherwise determines that it wishes to seek
indemnification pursuant to Section 10.2
hereof, such Indemnified Party shall, in the case of a Member Indemnitee or
Barceloneta Member Indemnitee, promptly notify Parent REIT and Parent OP and, in
the case of a Parent Indemnitee, promptly notify the Representative (such
notified party, the “Responsible Party”)
of such claims; provided, that the
failure to so notify shall not relieve the Responsible Party of its obligations
hereunder, except to the extent that the Responsible Party is actually
prejudiced thereby.  Such notice shall, to the extent reasonably
practicable, identify the basis under which indemnification is sought pursuant
to Section 10.2
and, if applicable, enclose true and correct copies of any written document
furnished to the Indemnified Party by the Person that instituted the Third Party
Claim.

     

    
      
         


      

      
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    (b)           Parent
REIT or Parent OP shall have thirty (30) days after receiving notice from any
Indemnified Party of any Third Party Claim which seeks solely cash damages (and
does not include any request for specific performance, or injunctive or other
equitable relief) (a “Parent Assumable
Claim”) to assume the conduct and control, through counsel reasonably
acceptable to the Representative at the expense of Parent REIT or Parent OP, of
the settlement or defense of such Third Party Claim, and the Indemnified Party
shall cooperate with the Responsible Party in connection
therewith.  Parent REIT or Parent OP shall permit the Indemnified
Party to participate in such settlement or defense through counsel chosen by
such Indemnified Party (the fees and expenses of such counsel shall be borne by
such Indemnified Party and shall not be indemnified hereunder as a
Loss).  So long as Parent REIT or Parent OP is reasonably contesting
(or causing any of its Subsidiaries to reasonably contest) any such Third Party
Claim in good faith, the Indemnified Party shall not pay or settle any such
Third Party Claim without the consent of Parent REIT or Parent OP (which consent
shall not be unreasonably withheld or delayed).  Notwithstanding the
foregoing, Parent REIT and Parent OP shall not, except with the consent of the
Indemnified Party (which consent shall not be unreasonably withheld or delayed)
enter into any settlement that does not include as an unconditional term thereof
the giving by the Person(s) asserting such Third Party Claim to all Indemnified
Parties an unconditional release from all liability with respect to such claim
or consent to entry of any judgment.  If Parent REIT does not elect to
undertake the defense of such Third Party Claim, the Indemnified Party shall
have the right to contest the Third Party Claim without waiving its right to
indemnity therefor pursuant to this Agreement; provided, that the
Indemnified Party shall not settle any such Third Party Claim or consent to any
judgment without the prior written consent of Parent REIT or Parent OP (which
consent shall not be unreasonably withheld or delayed).

     

    (c)           In
the event that Parent REIT or Parent OP receives notice from any Indemnified
Party of a Third Party Claim that is not a Parent Assumable Claim, Parent REIT
or Parent OP shall have the right to participate in the settlement or defense
thereof through counsel chosen by Parent REIT or Parent OP (the fees and
expenses of such counsel shall be borne by Parent REIT or Parent OP and shall
not be indemnified hereunder as a Loss) and the Indemnified Party shall not
settle any such Third Party Claim or consent to any judgment without the consent
of Parent REIT or Parent OP (not to be unreasonably withheld or
delayed).

     

    
      
         


      

      
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    (d)           The
Representative shall have thirty (30) days after receiving notice from any
Indemnified Party of any Third Party Claim which seeks solely cash damages (and
does not include any request for specific performance, or injunctive or other
equitable relief) and the maximum liability in respect of such Third Party Claim
and all other pending unresolved indemnity claims pursuant to Section 10.2(a)
does not exceed the value of the Escrow Cash and Escrow Units then held in the
Escrow Account (valued at the Parent Closing Price (a “Representative Assumable
Claim”) to assume the conduct and control, through counsel reasonably
acceptable to Parent REIT and Parent OP at the expense of the Representative
(not to be paid out of or reimbursed from the Escrow Account) of the settlement
or defense of such Third Party Claim, and the Indemnified Party shall cooperate
with the Representative in connection therewith.  The Representative
shall permit the Indemnified Party to participate in such settlement or defense
through counsel chosen by such Indemnified Party (the fees and expenses of such
counsel shall be borne by such Indemnified Party and shall not be indemnified
hereunder as a Loss).  So long as the Representative is reasonably
contesting (or causing any of its Subsidiaries to reasonably contest) any such
Third Party Claim in good faith, the Indemnified Party shall not pay or settle
any such Third Party Claim without the consent of the Representative (not to be
unreasonably withheld or delayed).  Notwithstanding the foregoing, the
Representative shall not, except with the consent of Parent REIT and Parent OP
enter into any settlement that does not include as an unconditional term thereof
the giving by the Person(s) asserting such Third Party Claim to all Indemnified
Parties an unconditional release from all liability with respect to such claim
or consent to entry of any judgment.  If the Representative does not
elect to undertake the defense of such Third Party Claim, the Parent Indemnitees
shall have the right to contest the Third Party Claim without waiving their
right to indemnity therefor pursuant to this Agreement.

     

    (e)           In
the event the Representative receives notice from any Indemnified Party of a
Third Party Claim that is not a Representative Assumable Claim, the
Representative shall have the right to participate in the settlement or defense
thereof through counsel chosen by the Representative (the fees and expenses of
such counsel shall be borne by the Representative and shall not be payable out
of the Escrow Account) and Parent Indemnitee shall not settle any such Third
Party Claim or consent to any judgment without the consent of the Representative
(not to be unreasonably withheld or delayed).

     

    (f)   
        Notwithstanding anything in this
Agreement or the Escrow Agreement to the contrary, no Parent Indemnitee shall
directly or indirectly settle, compromise or consent to any judgment of any
Third Party Claim for which such Parent Indemnitee may be entitled to seek
indemnification hereunder, regardless of whether it is a Representative
Assumable Claim or whether the Representative has received notice thereof or
elected to exercise or waive its rights to assume the conduct and control of the
settlement or defense thereof, without the prior written consent of the
Representative (not to be unreasonably withheld or delayed), and in the event of
any such settlement, compromise or consent to judgment without the prior written
consent of the Representative, the Parent Indemnitees and their respective
Affiliates shall have no further rights (and shall be deemed to have irrevocably
waived any such rights) to indemnification hereunder, whether from the Escrow
Account or otherwise.

     

    (g)           Notwithstanding
anything in this Agreement or the Escrow Agreement to the contrary, the
Representative shall not directly or indirectly settle, compromise or consent to
any judgment of any Third Party Claim for which the Member Indemnitee or the
Barceloneta Member Indemnitee, as applicable, may be entitled to seek
indemnification hereunder, regardless of whether the Parent Indemnitees have
received notice thereof or elected to exercise or waive their rights to assume
the conduct and control of the settlement or defense thereof, without the prior
written consent of the Parent REIT or Parent OP (not to be unreasonably withheld
or delayed), and in the event of any such settlement, compromise or consent to
judgment without the prior written consent of Parent REIT or Parent OP, the
Member Indemnitees and the Barceloneta Member Indemnitees, as applicable, and
their respective Affiliates shall have no further rights (and shall be deemed to
have irrevocably waived any such rights) to indemnification
hereunder.

     

    
      
         


      

      
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    (h)           The
parties hereto shall reasonably cooperate in the defense or prosecution of any
Third Party Claim in respect of which indemnity may be sought hereunder and
shall furnish such records, information and testimony, and attend such
conferences, discovery proceedings, hearings, trials and appeals, as may be
reasonably requested in connection therewith.

     

    Section 10.4        Limitations on
Indemnification Obligations

     

    The
rights to indemnification pursuant to the provisions of Section 10.2 are
subject to the following limitations:

     

    (a)           the
amount of any and all Losses recoverable pursuant to Section 10.2(a),
Section 10.2(b),
Section 10.2(c),
Section 10.2(d)
and Section 10.2(e)
shall be determined net of any amounts recovered by the Parent Indemnitees or
their Affiliates, the Member Indemnitees or their Affiliates, or the Barceloneta
Member Indemnitees or their Affiliates, as applicable, under insurance policies
or other collateral sources (such as contractual indemnities of any Person which
are contained outside of this Agreement), including the Tax Matters Agreements
and the Barceloneta Tax Matters Agreement (in each case, to the extent
includable in indemnifiable Losses), with respect to such Losses;

     

    (b)           the
Parent Indemnitees shall not be entitled to recover in respect of any individual
claim pursuant to Section 10.2(a)(i),
Section 10.2(a)(ii),
Section 10.2(a)(iv)(A),
Section 10.2(a)(vi),
Section 10.2(b)(i),
Section 10.2(b)(ii) or
Section 10.2(c)(i) unless
the aggregate Losses relating to or arising out of such claim (together with any
related claims or other claims which arise from a substantially similar course
of conduct or facts) equal or exceed $50,000; provided, that this
Section 10.4(b)
shall not apply to any claim for indemnification pursuant to (w) Section 10.2(a)(i) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 3.2
(Capitalization of the Group Companies), Section 3.3
(Authority) or Section 3.15
(Brokers), (x) Section 10.2(b)(i) to
the extent such claim is based upon a breach of a representation and warranty
set forth in Section 4.2
(Authority), Section 4.4
(Title) or Section 4.6
(Brokers), (y) Section 10.2(a)(vi) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 3.2 (Capitalization of the Company) of the
Barceloneta Contribution Agreement, Section 3.3 (Authority) of the
Barceloneta Contribution Agreement or Section 3.15 (Brokers) of the
Barceloneta Contribution Agreement or (z) Section 10.2(c)(i) to
the extent such claim is based upon a breach of a representation and warranty
set forth in Section 4.2 (Authority) of the Barceloneta Contribution
Agreement, Section 4.4 (Title) of the Barceloneta Contribution Agreement or
Section 4.6 (Brokers) of the Barceloneta Contribution
Agreement.

     

    
      
         


      

      
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    (c)           the
Member Indemnitees shall not be entitled to recover in respect of any individual
claim pursuant to Section 10.2(d)(i) or
Section 10.2(d)(ii) unless
the aggregate Losses relating to or arising out of such claim (together with any
related claims or other claims which arise from a substantially similar course
of conduct or facts) equal or exceed an amount equal to $50,000; provided, that this
Section 10.4(c)
shall not apply to any claim for indemnification pursuant to Section 10.2(d)(i) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 5.2
(Authority), Section 5.6
(Brokers) or Section 5.10
(New Company);

     

    (d)           the
Barceloneta Member Indemnitees shall not be entitled to recover in respect of
any individual claim pursuant to Section 10.2(e)(i) unless
the aggregate Losses relating to or arising out of such claim (together with any
related claims or other claims which arise from a substantially similar course
of conduct or facts) equal or exceed an amount equal to $50,000; provided, that this
Section 10.4(d)
shall not apply to any claim for indemnification pursuant to Section 10.2(e)(i) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 5.2 (Authority) of the Barceloneta
Contribution Agreement, Section 5.6 (Brokers) of the Barceloneta
Contribution Agreement or Section 5.10 (New Company) of the Barceloneta
Contribution Agreement;

     

    (e)           the
Parent Indemnitees shall not be entitled to recover Losses pursuant to Section 10.2(a)(i),
Section 10.2(a)(ii),
Section 10.2(a)(iv)(A),
or Section 10.2(a)(vi) until
the aggregate amount which the Parent Indemnitees would recover under such
sections (as limited by the provisions of Section 10.4(a),
Section 10.4(b)
and Section 12.15 of
this Agreement and Section 12.15 of the Barceloneta Contribution Agreement)
exceeds $5,000,000 (the “Threshold”), in which
case, the Parent Indemnitees shall only be entitled to recover Losses in excess
of the Threshold; provided, that the
Threshold shall not apply to any claim for indemnification pursuant to
(x) Section 10.2(a)(i) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 3.2
(Capitalization of the Group Companies) or Section 3.3
(Authority) or (y) Section 10.2(a)(vi) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 3.2 (Capitalization of the Company) of the
Barceloneta Contribution Agreement or Section 3.3 (Authority) of the
Barceloneta Contribution Agreement;

     

    (f)  
         the Member Indemnitees and
the Barceloneta Member Indemnitees shall not be entitled to recover Losses
pursuant to Section 10.2(d)(i),
Section 10.2(d)(ii) or
Section 10.2(e)(i) until
the aggregate amount which the Member Indemnitees and Barceloneta Member
Indemnitees would recover under Section 10.2(d)(i),
Section 10.2(d)(ii) and
Section 10.2(e)(i) (as
limited by the provisions of Section 10.4(a),
Section 10.4(d)
and Section 12.15 of
this Agreement and Section 12.15 of the Barceloneta Contribution Agreement)
exceeds the Threshold, in which case, the Member Indemnitees and Barceloneta
Member Indemnitees shall only be entitled to recover Losses in excess of the
Threshold; provided, that the
Threshold shall not apply to any claim (x) for indemnification pursuant to
Section 10.2(d)(i) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 5.2
(Authority), Section 5.6
(Brokers) or Section 5.10
(New Company) or (y) for indemnification pursuant to Section 10.2(e)(i) to
the extent such claim is based upon a breach of the representations and
warranties set forth in Section 5.2 (Authority) of the Barceloneta
Contribution Agreement, Section 5.6 (Brokers) of the Barceloneta
Contribution Agreement or Section 5.10 (New Company) of the Barceloneta
Contribution Agreement;

     

    
      
         


      

      
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    (g)           except
with respect to any claims resulting from the failure to complete the Financing
pursuant to the terms of this Agreement (including as a result of any waiver by
the Contributors of Section 8.3(c),
the aggregate liability of Parent REIT, Parent OP and Parent Sub pursuant to
Section 10.2(d)(i) and
Section 10.2(d)(ii) shall
not exceed the Aggregate Unit Value and the Member Indemnitees, collectively,
shall not be entitled to recover Losses pursuant to Section 10.2(d)(i) and
Section 10.2(d)(ii) in
excess of the Aggregate Unit Value;

     

    (h)           the
aggregate liability of Parent REIT, Parent OP and Parent Sub pursuant to Section 10.2(e)(i) shall
not exceed the Barceloneta Aggregate Unit Value and the Barceloneta Member
Indemnitees, collectively, shall not be entitled to recover Losses pursuant to
Section 10.2(e)(i))
in excess of the Barceloneta Aggregate Unit Value;

     

    (i) 
          the aggregate
liability of any Contributor or LVP REIT pursuant to Section 10.2(b)(i) and
Section 10.2(b)(ii) shall
not exceed the aggregate consideration actually received by such Person pursuant
to Article 2
(valued, in the case of Parent OP Common Units, at the Parent Closing Price)
less the amount of Escrow Cash and Escrow Units allocated to such Person and not
distributed thereto and the Parent Indemnitees, collectively, shall not be
entitled to recover Losses pursuant to Section 10.2(a),
Section 10.2(b)(i) and
Section 10.2(b)(ii) in
excess of the Aggregate Consideration Value less the amount of Escrow Cash and
Escrow Units allocated to such Person;

     

    (j)  
         the aggregate liability of
any Barceloneta Contributor pursuant to Section 10.2(c)(i) shall
not exceed the aggregate consideration actually received by such Person pursuant
to Article 2 of the
Barceloneta Contribution Agreement (valued, in the case of Parent OP Common
Units, at the Barceloneta Parent Closing Price) and the Parent Indemnitees,
collectively, shall not be entitled to recover Losses pursuant to Section 10.2(a)
and Section 10.2(c)(i) in
excess of the Barceloneta Aggregate Consideration Value;

     

    
      
         


      

      
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    (k)    
       (x) the Escrow Units and Escrow Cash
in the Escrow Account at any given time shall be the sole source of recovery
with respect to Losses indemnifiable pursuant to Section 10.2(a),
and in no event shall the Parent Indemnitees be entitled to recover more than
the amount of Escrow Cash and Escrow Units available in the Escrow Account
pursuant to Section 10.2(a);
(y) in the event any facts, conditions, conduct or claims, or series of
related or substantially similar facts, conditions, conduct or claims, result in
Losses pursuant to which the Parent Indemnitees are entitled to indemnification
pursuant to Section 10.2(a)
and Section 10.2(b)
or Section 10.2(c),
the Parent Indemnitees shall only be entitled to recover for such Losses
pursuant to Section 10.2(a)
and shall have no rights to indemnification pursuant to Section 10.2(b)
or Section 10.2(c)
other than (A) in the case of a breach of Section 3.2
(Capitalization of the Group Companies) and Section 4.4
(Title), in which case the Parent Indemnitees shall only be entitled to recover
directly from the applicable Contributor with respect to the dual claim (it
being understood that this shall not create a limit on claims relating to
breaches of provisions in Section 3.2 that
are not also contained in Section 4.4) and
(B) in the case of a breach of Section 3.2 (Capitalization of the
Company) of the Barceloneta Contribution Agreement and Section 4.4 (Title)
of the Barceloneta Contribution Agreement, in which case the Parent Indemnitees
shall only be entitled to recover directly from the applicable Barceloneta
Contributor with respect to the dual claim (it being understood that this shall
not create a limit on claims relating to breaches of provisions in
Section 3.2 of the Barceloneta Contribution Agreement that are not also
contained in Section 4.4 of the Barceloneta Contribution Agreement); and
(z) in the event any facts, conditions, conduct or claims, or series of
related or substantially similar facts, conditions, conduct or claims, result in
Losses pursuant to which the Parent Indemnitees are entitled to indemnification
pursuant to Section 10.2(a)(i) and
Section 10.2(a)(vi),
the Parent Indemnitees shall only be entitled to recover for such Losses
pursuant to Section 10.2(a)(vi) and
shall have no rights to indemnification pursuant to Section 10.2(a)(i);

     

    (l)  
         Notwithstanding anything
contained herein to the contrary, after the Closing, on the date that the Escrow
Cash and the Escrow Units are reduced to zero, the Parent Indemnitees shall have
no further rights to indemnification under Section 10.2(a).  In
any case where a Parent Indemnitee recovers, under insurance policies or from
other collateral sources, any amount in respect of a matter for which such
Parent Indemnitee was indemnified pursuant to Section 10.2(a),
Section 10.2(b)
or Section 10.2(c),
such Parent Indemnitee shall promptly pay over to the Representative (for
further distribution to the Contributors or Barceloneta Contributors, as
applicable) the amount so recovered (after deducting therefrom the full amount
of the expenses incurred by such Parent Indemnitee in procuring such recovery),
but not in excess of the sum of (i) any
amount previously so paid to or on behalf of such Parent Indemnitee in respect
of such matter and (ii) any amount expended by the Representative in
pursuing or defending any claim arising out of such matter;

     

    (m)          Following
the Closing, the Parent Indemnitees, the Member Indemnitees and the Barceloneta
Member Indemnitees shall take commercially reasonable steps to mitigate any
Losses with respect to which indemnification may be requested under this Article 10 and
the costs associated with such mitigation shall be included in the Losses with
respect to which indemnification may be requested under this Article 10;
and

     

    (n)           In
no event shall (x) a Parent Indemnitee be entitled to recover Losses
pursuant to Section 10.2(b)(i) in
respect of a breach of the representations and warranties in Article 3
hereof or (y) a Parent Indemnitee be entitled to recover Losses pursuant to
Section 10.2(c)(i) in
respect of a breach of the representations and warranties in Article 3 of
the Barceloneta Contribution Agreement.

     

    
      
         


      

      
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    Section 10.5        The
Representative

     

    The
parties hereto acknowledge and agree that the Representative may perform certain
administrative functions in connection with the consummation of the Contemplated
Transactions.  Accordingly, the parties hereto acknowledge and agree
that the Representative (in its capacity as Representative) shall have no
liability to, and shall not be liable for any Losses of, any Member Indemnitee,
Barceloneta Member Indemnitee or Parent Indemnitee in connection with any
obligations of the Representative under this Agreement or the Escrow Agreement
or otherwise in respect of this Agreement or the Contemplated
Transactions.

     

    Section 10.6        Exclusive
Remedy

     

    Notwithstanding
anything contained in this Agreement to the contrary, except for any claim by
the Parent Parties against a Contributor for the Fraud of such Contributor or
any claim by the Parent Parties against a Barceloneta Contributor for the Fraud
of such Barceloneta Contributor, from and after Closing, indemnification
pursuant to the provisions of this Article 10 shall
be the sole and exclusive remedy of any party hereto and each of its respective
Affiliates (including, in the case of the Parent Parties after the Closing, the
Group Companies and Barceloneta) for any misrepresentation or any breach of any
representation, warranty, covenant or other provision or agreement contained in
this Agreement, the Barceloneta Contribution Agreement, in any certificate
delivered pursuant hereto, thereto or otherwise (including, without limitation,
with respect to any matters arising under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any other environmental matters) and for any and all other claims arising
under, out of or related to this Agreement, the negotiation or execution hereof,
or the Contemplated Transactions, and no party hereto or any of its respective
Affiliates (including, in the case of the Parent Parties after the Closing, the
Group Companies and Barceloneta) shall have any other entitlement, remedy or
recourse, at law or in equity, whether in contract, tort or otherwise, it being
agreed that all of such other remedies, entitlements and recourse (other than
with respect to any claim by the Parent Parties against a Contributor for the
Fraud of such Contributor or any claim by the Parent Parties against a
Barceloneta Contributor for the Fraud of such Barceloneta Contributor) are
expressly waived and released by the parties hereto, on behalf of themselves and
their respective Affiliates (including, in the case of the Parent Parties after
the Closing, the Group Companies and Barceloneta), to the fullest extent
permitted by Law; provided, in each
case, that (x) disputes as to financial matters referred to in Section 2.3(d)
shall be resolved solely in accordance with Section 2.3(d)
and (y) disputes as to financial matters referred to in Section 2.3(b)
of the Barceloneta Contribution Agreement shall be resolved solely in accordance
with Section 2.3(b) of the Barceloneta Contribution Agreement.

     

    Section 10.7        Manner of Payment;
Escrow

     

    (a)           The
Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and
shall administer the Escrow Units and Escrow Cash and release Escrow Units and
Escrow Cash in accordance with the terms and subject to the conditions set forth
herein and in the Escrow Agreement.

     


    
      
         


      

      
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    (b)           Subject
to the terms and conditions of this Agreement and, if applicable, the Escrow
Agreement, (i) any indemnification of the Parent Indemnitees pursuant to
Section 10.2(a)
shall, except as otherwise provided herein, be effected by the Escrow Agent’s
delivery to such Parent Indemnitees (subject to Section 10.7(e))
of an amount of Escrow Cash and/or Escrow Units (rounded to the nearest whole
Escrow Unit and valued at the Parent Closing Price (with no issuance of
fractional Escrow Units)) that are, together, equal in value to the amount of
such Parent Indemnitees’ indemnification pursuant to Section 10.2(a)
with the composition of Escrow Cash and Escrow Units being determined by the
Representative, within five (5) Business Days after the final determination
thereof, (ii) any indemnification of the Parent Indemnitees pursuant to
Section 10.2(b)
or Section 10.2(c)
shall be effected by wire transfer of immediately available funds from the
applicable Persons to an account designated in writing by the applicable Parent
Indemnitees, as the case may be, within five (5) Business Days after the final
determination thereof and (iii) any indemnification of the Member
Indemnitees pursuant to Section 10.2(d)
or the Barceloneta Member Indemnities pursuant to Section 10.2(e)
shall be effected by wire transfer of immediately available funds from the
applicable Persons to an account designated in writing by the applicable Member
Indemnitees or Barceloneta Member Indemnities, as the case may be, within five
(5) Business Days after the final determination thereof.

     

    (c)           Any
Escrow Units and Escrow Cash remaining in the Escrow Account as of the Survival
Period Termination Date (minus the maximum aggregate amount (valuing any Escrow
Units at their Parent Closing Price) which shall be retained in Escrow Units
and/or Escrow Cash in the proportion requested by the Representative, if any, of
claims asserted in accordance with this Article 10 by
the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a)
that are not fully resolved as of the Survival Period Termination Date) shall be
released to the Representative on the Survival Period Termination Date and the
Representative and Parent OP shall deliver joint written instructions
instructing the Escrow Agent to deliver such Escrow Units from the Escrow
Account to the Representative for further distribution to the
Contributors.  To the extent that, as a result of resolution of
pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow
Account (valued at the Parent Closing Price) exceeds, at any time following the
Survival Period Termination Date, the aggregate amount of claims then
outstanding by the Parent Indemnitees against the Escrow Account pursuant to
Section 10.2(a),
such excess Escrow Units and/or Escrow Cash (at the Representative’s election)
shall be promptly released to the Representative for further distribution to the
Contributors.

     

    (d)           During
the period in which the Escrow Units and Escrow Cash are retained in the Escrow
Account, the Escrow Units and Escrow Cash will be held for the benefit of the
applicable Contributors (and the applicable Contributors shall be entitled to
vote and to receive, and the Escrow Agent shall promptly deliver to the
Representative for further distribution to the Contributors, all cash dividends
and cash distributions on such Escrow Units and all interest on such Escrow
Cash, which dividends and interest shall be income of the applicable
Contributors for Tax purposes), except to the extent it has been finally
determined that any Parent Indemnitee is entitled to recover such Escrow Units
in respect of indemnification claims pursuant to this Article 10.  Any
distributions on such Escrow Units made in the form of Parent OP Common Units
will be deemed to have been contributed by the Escrow Agent, on behalf of each
applicable Contributor, to New Company in exchange for an equal number of New
Company Common Units to be issued in the name of such Contributor.

     

    
      
         


      

      
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    (e)           The
Representative and Parent OP shall deliver joint written instructions to the
Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units
and Escrow Cash from the Escrow Account expressly provided for herein and the
Escrow Agreement.  In the event the Escrow Agent is required to
deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to this
Agreement or the Escrow Agreement,  such Escrow Cash shall be
allocated by the Escrow Agent among the Escrow Cash of the Contributors in
proportion to their respective Applicable Percentage Interest as set forth on
Annex D
and such Escrow Units shall be allocated by the Escrow Agent among the Escrow
Units of the Contributors in proportion to their respective Escrow Unit Payment
Percentage Interest as set forth on Annex G.

     

    (f)    
       The parties hereto agree that for Tax
purposes: (i) the Contributors shall be treated as the owners of the Escrow
Units and Escrow Cash, (ii) the initial amount distributed to the
Contributors in consideration of the Contributions shall include the Escrow
Units and Escrow Cash and (iii) the return to Parent Indemnitees of Escrow
Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall
be treated as a reduction to the amount distributed to the Contributors in
consideration of the Contributions.”

     

    20.          Amendments
to Company Schedules.  The Company
Schedules are hereby amended as set forth in Exhibit A hereto.

     

    21.          Amendments
to Exhibits and
Annexes.

     

    (a)          Exhibit E (Form
of Limited Liability Company Operating Agreement) of the Contribution Agreement
is hereby amended and restated in its entirety as set forth in Exhibit B
hereto.

     

    (b)          Annex A (Other
Group Companies Contributed Interests) of the Contribution Agreement is hereby
amended and restated in its entirety as set forth in Exhibit C
hereto.

     

    (c)          Annex D
(Applicable Percentage Interest) of the Contribution Agreement is hereby amended
and restated in its entirety as set forth in Exhibit D
hereto.

     

    (f)           Annex G (Escrow
Unit Payment Percentage Interest) is hereby attached to the Contribution
Agreement, which Annex G is set forth in Exhibit E
hereto.

     

    22.          No Other
Amendments.  Except as otherwise
expressly amended or modified hereby, all of the terms and conditions of the
Contribution Agreement shall continue in full force and effect.  Each
reference to “hereof”, “hereunder”, “herein” and “hereby” and each similar
reference in the Contribution Agreement shall refer to the
Contribution Agreement as
amended hereby.

     

    
      
         


      

      
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    23.          Entire
Agreement;
Assignment.

     

    (a)           This Amendment, the Contribution Agreement,
the Barceloneta Contribution Agreement and the other Transaction Documents
contain the entire agreement of the parties hereto respecting the subject matter
hereof and supersede all prior agreements among the parties hereto respecting
the same.  The parties hereto have voluntarily agreed to define their
rights, liabilities and obligations respecting the subject matter hereof
exclusively in contract pursuant to the express terms and provisions of this
Amendment, the Contribution
Agreement, the Barceloneta Contribution
Agreement and the other
Transaction Documents and the parties hereto expressly disclaim that they are
owed any duties or are entitled to any remedies not expressly set forth in this
Amendment, the Contribution
Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents.  Furthermore, the parties hereto each hereby
acknowledges that this Amendment embodies the justifiable expectations
of sophisticated parties derived from arm’s-length negotiations; all parties to
this Amendment specifically acknowledge that no party
has any special relationship with another party that would justify any
expectation beyond that of ordinary parties in an arm’s-length
transaction.  The sole and exclusive remedies for any breach of the
terms and provisions of this Amendment, the Contribution
Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents (including any representations and warranties set forth
herein, the Contribution
Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents, made in connection herewith, the Contribution
Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents or as an inducement to enter into this Amendment, the Contribution Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents) or any claim or cause of action otherwise arising out of
or related to the Contemplated Transactions shall be those remedies available at
law or in equity for breach of contract only (as such contractual remedies have
been further limited or excluded pursuant to the express terms of the Contribution Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents); and each party hereto hereby agrees that no party hereto
shall have any remedies or cause of action (whether in contract or in tort) for
any statements, communications, disclosures, failures to disclose,
representations or warranties not set forth in this Amendment, the Contribution Agreement, the Barceloneta Contribution
Agreement or the other
Transaction Documents.  Notwithstanding the foregoing, claims by
any Parent Party against any Contributor, to the extent arising from the Fraud
of such Contributor, shall not be prohibited by this Section 23.

     

    (b)          This Amendment may not be assigned by any party
(whether by operation of law or otherwise) without the prior written consent of
Parent REIT, Parent OP, the Company and the Representative.  Any
attempted assignment of this Amendment not in accordance with the terms of
this Section 23 shall be void; provided, however, that so long as such assignment would not
prevent or materially impair or delay the Closing of the Contemplated
Transactions, Parent REIT, Parent OP or Parent Sub may assign this Amendment and any of their rights under this Amendment to one or more Affiliates of
Parent REIT, Parent OP or
Parent Sub; provided, that any such assignment shall not
relieve Parent REIT, Parent OP or Parent Sub of any of their obligations
hereunder.

     

    
      
         


      

      
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    24.          Governing
Law.  This Amendment, and all claims or causes of action
(whether in contract or tort) that may be based upon, arise out of or relate to
this Amendment, or the negotiation, execution or
performance of this Amendment (including any claim or cause of action
based upon, arising out of or related to any representation or warranty made in
or in connection with this Amendment or as an inducement to enter into this
Amendment), shall be governed by the internal
laws of the State of Delaware as applicable to agreements made and to be
performed entirely within the State of Delaware, without regard to conflict of
law principles or rules.

     

    25.          Fees and
Expenses.  Except as otherwise expressly set forth
in this Amendment, the
Contribution Agreement or
Annex E thereof, whether or not the Closing is
consummated, all fees and expenses incurred in connection with this Amendment, the Contribution
Agreement and the
Contemplated Transactions, including, without limitation, the fees and
disbursements of counsel, financial advisors and accountants, shall be paid by
the party incurring such fees or expenses.

     

    26.          Construction;
Interpretation.  The term “this Amendment” means this Amendment together with all schedules, exhibits and annexes hereto,
as the same may from time to time be amended, modified, supplemented or restated
in accordance with the terms hereof.  The headings contained in this
Amendment are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Amendment.  No party, nor its
respective counsel, shall be deemed the drafter of this Amendment for purposes of construing the
provisions hereof, and all provisions of this Amendment shall be construed according to their
fair meaning and not strictly for or against any party hereto.  Unless
otherwise indicated to the contrary herein by the context or use thereof:
(i) the words, “herein”, “hereto”, “hereof” and words of similar import
refer to this Amendment as a whole, including, without
limitation, the Schedules, exhibits and annexes, and not to any particular
section, subsection, paragraph, subparagraph or clause contained in this
Amendment; (ii) masculine gender shall also include the
feminine and neutral genders, and vice versa; and (iii) words importing the singular shall also
include the plural, and vice versa.

     

    27.          Exhibits,
Annexes and Schedules.  All exhibits, annexes and Schedules, or
documents expressly incorporated into this Amendment, are hereby incorporated into this
Amendment and are hereby made a part hereof as if
set out in full in this Amendment.  The specification of any
dollar amount in this Amendment or the inclusion of any specific item
in any Schedule is not intended to imply that such
amounts, or higher or lower amounts or the items so included or other items, are
or are not material, and no party shall use the fact of the setting of such
amounts or the inclusion of any such item in any dispute or controversy as to
whether any obligation, items or matter not described herein or included in a
Schedule is or is not material for purposes of
this Amendment.

     

    28.          Severability.  If any term or other provision of this
Amendment is invalid, illegal or unenforceable,
all other provisions of this Amendment shall remain in full force and effect
so long as the economic or legal substance of the Contemplated Transactions
(as amended hereby)
is not affected in any
manner materially adverse to any party.

     

    29.          Counterparts.  This Amendment may
be executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same
agreement.  Delivery of an executed counterpart of a signature page to
this Amendment by facsimile or scanned pages shall be effective as delivery of a
manually executed counterpart to this Amendment.

     

    
      
         


      

      
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    30.          Waiver of
Jury Trial.  Each party hereto hereby waives, to the
fullest extent permitted by law, any right to trial by jury of any claim,
demand, action, or cause of action (i) arising under this Amendment or (ii) in any way connected with or related or
incidental to the dealings of the parties in respect of this Amendment or any of the transactions related
hereto, in each case, whether now existing or hereafter arising, and whether in
contract, tort, equity, or otherwise.  Each party hereto hereby
further agrees and consents that any such claim, demand, action, or cause of
action shall be decided by court trial without a jury and that the parties
hereto may file a copy of this Amendment with any court as written evidence of
the consent of the parties hereto to the waiver of their right to trial by
jury.

     

    31.          Jurisdiction
and Venue.  Each of the parties hereto (i) submits to the exclusive jurisdiction of
any state or federal court sitting in Delaware, in any action or proceeding
(whether in contract or tort) arising out of or relating to this Amendment, or the negotiation, execution or
performance of this Amendment (including any claim or cause of action
based upon, arising out of or related to any representation or warranty made in
or in connection with this Amendment or as an inducement to enter into this
Amendment), (ii) agrees that all such claims in respect
of such action or proceeding shall be heard and determined in any such court and
(iii) agrees not to bring any such action or
proceeding in any other court.  Each of the parties hereto waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety or other security that might be required of
any other parties hereto with respect thereto.  Each of the parties
hereto agrees that service of summons and complaint or any other process that
might be served in any action or proceeding may be made on such party by sending
or delivering a copy of the process to the party to be served at the address of
the party and in the manner provided for the giving of notices in Section 12.2 of the Contribution
Agreement.  Nothing in this
Section 31, however, shall affect the right of any
party hereto to serve legal process in any other manner permitted by
Law.  Each party hereto agrees that a final, non-appealable judgment
in any action or proceeding so brought shall be conclusive and may be enforced
by suit on the judgment or in any other manner provided by
Law.

     

    [Remainder
of page intentionally left blank.]

     

    
      
         


      

      
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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed on the date first written above.

     

    
      
        
          
            
              
                
                  
                    	
                            SIMON
      PROPERTY GROUP, INC.

                          
	 
      	 
      
	
                            By:

                          	
                             /s/ Andrew Juster

                          
	 
      	
                            Name:
      Andrew Juster

                            Title:
      Executive Vice President – Treasurer

                          
	 
      
	
                            SIMON
      PROPERTY GROUP, L.P.

                          
	
                            By: 

                          	
                            Simon Property Group, Inc. a Delaware corporation

                          
	 
      	
                            its
      General Partner

                          
	 	 
	
                            By:

                          	
                             /s/ Andrew Juster

                          
	 
      	
                            Name:
      Andrew Juster

                            Title:
      Executive Vice President - Treasurer

                          
	 
      
	
                            MARCO
      CAPITAL ACQUISITION, LLC

                          
	 
      	 
      
	
                            By:

                          	
                             /s/ Andrew Juster

                          
	 
      	
                            Name:
      Andrew Juster

                            Title:
      Executive Vice President - Treasurer

                          
	 
      
	
                            PRIME
      OUTLETS ACQUISITION COMPANY LLC

                          
	 
      	 
      
	
                            By:

                          	
                             /s/ David
  Lichtenstein

                          
	 
      	
                            Name:
      David Lichtenstein

                            Title:
      Authorized Signatory

                          
	 	 
	
                            LIGHTSTONE
      PRIME, LLC

                            Solely
      in its capacity as the Representative

                          
	 
      	 
      
	
                            By:

                          	
                             /s/ David
  Lichtenstein

                          
	 
      	
                            Name:
      David Lichtenstein

                            Title:
      Authorized
Signatory

                          


                  

                

              

            

          

        

      

    

    


    Signature
Page to Amendment No.1 to the Contribution Agreement

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Exhibit A

     

    
      
         


      

      
        A-1

        
          

        

      

      
         


      

    


    Exhibit B

     

    Form of
Limited Liability Company Operating Agreement

     

    
      
         


      

      
        B-1

        
          

        

      

      
         


      

    


    FORM OF LIMITED LIABILITY COMPANY
OPERATING AGREEMENT

     

    THIS
LIMITED LIABILITY COMPANY OPERATING AGREEMENT of Marco LP Units, LLC, a Delaware
limited liability company (the “Company”), is made,
entered into and effective as of [l] [l], 2009 (this “Agreement”), by and
among LP Units Manager, LLC, a Delaware limited liability company (the “Manager”) and wholly
owned subsidiary of Simon Property Group, L.P. (“Parent OP”) and the
Persons whose names appear on the signature pages of this Agreement as members
of the Company (each, a “Member”, and,
collectively, the “Members”).

     

    WHEREAS,
the Company was formed as a limited liability company pursuant to the Delaware
Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended
(the “Act”) by
the filing of the Certificate of Formation of the Company (the “Certificate”) with
the Secretary of State of the State of Delaware on December 4, 2009;
and

     

    WHEREAS,
the Company was formed under the laws of the State of Delaware in connection
with the closing of the transactions contemplated by the Contribution Agreement
for the sole purpose of holding, owning, managing and disposing of the Parent OP
Units issued pursuant to the terms of the Contribution Agreement which are being
contributed to the Company, subject to the terms and conditions of this
Agreement;

     

    WHEREAS,
the parties hereto desire to provide for the respective rights, obligations and
interests of the Members and the Manager to each other and to the Company and
the terms and conditions on which the Company will conduct business in this
Agreement; and

     

    WHEREAS,
this Agreement shall apply to and govern the management and operation of the
Company from the date hereof and shall bind each and every present and future
Manager and Member of the Company.

     

    NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:

     

    ARTICLE
1

    DEFINITIONS AND RULES OF
CONSTRUCTION

     

    1.1.         Certain
Definitions.  Unless otherwise indicated, capitalized terms
used in this Agreement and not otherwise defined herein shall have the
respective meanings ascribed thereto in Annex A hereto,
which is hereby incorporated into this Agreement as if set forth in full herein,
notwithstanding any contrary or inconsistent definition contained in the
Act.

     

    1.2.         Other
Terms.  Other terms may be defined elsewhere in the text of
this Agreement and, unless otherwise indicated, shall have such meaning
throughout this Agreement.

     

    
      
         


      

      
        B-2

        
          

        

      

      
         


      

    


    1.3.          Construction;
Interpretation.  The term “this Agreement” means this Limited
Liability Company Operating Agreement together with all Schedules and
exhibits hereto, as the same may from time to time be amended, modified,
supplemented or restated in accordance with the terms hereof.  The
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this
Agreement.  Unless otherwise indicated to the contrary herein by the
context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and
words of similar import refer to this Agreement as a whole, including, without
limitation, the Schedules and exhibits, and not to any particular section,
subsection, paragraph, subparagraph or clause contained in this Agreement,
(b) masculine gender shall also include the feminine and neutral genders,
and vice versa, (c) words importing the singular shall also include the
plural, and vice versa and (d) the word “contributed” includes anything
that is contributed directly by a Person or anything that is contributed on
behalf of, or for the benefit of, such person or is otherwise deemed to have
been contributed by such Person pursuant to the Contribution Agreement or any
other agreement.

     

    ARTICLE
2

    ORGANIZATION OF THE
COMPANY

     

    2.1.          Formation.  The
Members hereby acknowledge the formation of the Company as a limited liability
company pursuant to the Act by virtue of the filing of the Certificate with the
Secretary of State of the State of Delaware.

     

    2.2.          Term.  The
Company commenced on the date of the filing of the Certificate with the
Secretary of State of the State of Delaware.  The Company shall
continue until dissolved pursuant to the provisions hereof.

     

    2.3.          Name.  The
business of the Company shall be conducted under the name “Marco LP Units, LLC”;
provided, that such
name shall be subject to change, from time to time, by the Members holding a
majority of the outstanding Company Units and with the written consent of the
Manager, which consent shall not be unreasonably withheld or
delayed.

     

    2.4.          Principal Place of
Business.  The principal place of business of the Company shall
be at 225 West Washington Street, Indianapolis, Indiana 46204 or such other
place as the Manager shall determine.  The Company may maintain such
other office or offices for the transaction of business at such other locations
as the Manager may deem advisable.

     

    2.5.          Registered Office and
Registered Agent.  The street address of the initial registered
office of the Company shall be Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801 and the Company’s registered agent at such address
shall be The Corporation Trust Company.  The Manager may hereafter
change the registered agent and registered office and, if necessary, the Company
shall amend the Certificate in accordance with the applicable requirements of
the Act to reflect such change.

     

    2.6.          Purpose.  The
sole purpose of the Company is to hold the Parent OP Units in accordance with
the terms and conditions of this Agreement and to otherwise comply with its
obligations under this Agreement; provided, that the Company shall not, and the
Manager shall cause the Company not to, without the consent of the Members
holding a majority of the outstanding Company Units, sell, transfer, dispose of,
hypothecate, convey, exchange or encumber, directly or indirectly, the Parent OP
Units other than pursuant to Article 6 or
Article 10
hereof.

     

    
      
         


      

      
        B-3

        
          

        

      

      
         


      

    

    


    2.7.          Single Purpose
Limitations.  Notwithstanding any provision hereof or of any
other document governing the formation, management or operation of the Company
to the contrary, except to the extent expressly permitted hereunder, the Company
shall not, and the Manager shall not cause or permit the Company to, in each
case without the consent of the Members holding a majority of the outstanding
Company Units:

     

    (a)           incur
or assume any Liability;

     

    (b)           pledge
any of its assets for the benefit of any other Person;

     

    (c)           consolidate
or merge with or into any other Person, convert into any other type of Person or
convey or transfer any of its properties or assets;

     

    (d)           to
the fullest extent permitted by Law, be dissolved, liquidated or terminated;
or

     

    (e)           agree
or otherwise commit to take any of the foregoing actions.

     

    2.8.          Limitations on the Company’s
Activities.  This Section 2.8 is
being adopted in order to comply with certain provisions required in order to
qualify the Company as a “special purpose” entity.

     

    (a)           The
Manager shall cause the Company to do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises, and the Manager also shall cause the Company
to:

     

    (i)           at
all times hold itself out to the public as a legal entity separate from the
Manager, the Members and any other Person;

     

    (ii)          file
its own tax returns, if any, as may be required under applicable Law, and pay
any taxes so required to be paid under applicable Law;

     

    (iii)         not
commingle its assets with assets of any other Person;

     

    (iv)         conduct
its business in its own name and strictly comply with all organizational
formalities to maintain its separate existence;

     

    (v)          maintain
an arm’s length relationship with any Affiliate upon terms that are commercially
reasonable and that are no less favorable to the Company than could be obtained
in a comparable arm’s length transaction with an unrelated Person;

     

    (vi)         not
hold out its credit or assets as being available to satisfy the obligations of
others, or Guarantee or otherwise obligate itself with respect to the Debts of
any other Person;

     

    (vii)        except
as contemplated hereby, not make any loans or advances to any other Person;
provided that it may invest its funds in interest bearing accounts held by any
bank that is not its Affiliate;

     

    
      
         


      

      
        B-4

        
          

        

      

      
         


      

    

    


    (viii)       observe
all limited liability company formalities;

     

    (ix)          correct
any known misunderstanding regarding its separate identity; and

     

    (x)           maintain
adequate capital in light of its contemplated business purpose, transactions and
liabilities, if any.

     

    (b)           The
failure of the Company, or the Manager on behalf of the Company, to comply with
any of the foregoing covenants or any other covenants contained in this
Agreement shall not affect the status of the Company as a separate legal entity
or the limited liability of the Members.

     

    (c)           Unless
approved in writing by the Members holding a majority of the Company Units, the
Manager also shall not cause or permit the Company to:

     

    (i)           Guarantee
any obligation of any Person, including, without limitation, any Affiliate of
the Company;

     

    (ii)          except
to the extent expressly permitted hereunder, enter into any transaction with any
Affiliate of the Company;

     

    (iii)         engage
in any business unrelated to the purpose stated in Section 2.6;

     

    (iv)         have
any assets other than the Parent OP Units and those related to the purpose
stated in Section 2.6;

     

    (v)         except
to the extent expressly permitted hereunder, incur, create or assume any
Debt;

     

    (vi)         make
or permit to remain outstanding any loan or advance to, or own or acquire any
stock or securities of, any Person other than the Parent OP Units and
Securities, if any, issuable in respect thereof;

     

    (vii)      
 except to the extent expressly permitted hereunder, execute or enter into
any contract or agreement, whether oral or written (other this
Agreement);

     

    (viii)       hire
any employee or adopt, enter into or agree to comply with any other agreement
regarding the employment of any Person;

     

    (ix)          commence,
settle or compromise any Action;

     

    (x)           issue
any units or other securities of the Company other than pursuant to Section 5.1(d);

     

    (xi)          enter
into any joint venture or partnership or other similar agreement or
arrangement;

     

    
      
         


      

      
        B-5

        
          

        

      

      
         


      

    

    


    (xii)         form,
acquire or hold any Subsidiary; or

     

    (xiii)        except
to the extent expressly permitted hereunder, agree or otherwise commit to take
any of the foregoing actions.

     

    ARTICLE
3

    MEMBERS

     

    3.1.         Names.  The
name and business or residence address of each Member of the Company are as set
forth on Schedule I
hereto, which shall be amended or otherwise modified by the Manager to the
extent required.

     

    3.2.         Action.  Any
action permitted or required by applicable Law or this Agreement to be taken at
a meeting of the Members may be taken without a meeting if a consent in writing,
setting forth the action to be taken, is signed by the Members necessary to
approve any action at a meeting if one were called.  Such consent
shall have the same force and effect as a vote at a meeting and may be stated as
such in any document or instrument filed with the Secretary of State of
Delaware, and the execution of such consent shall constitute attendance or
presence in person at a meeting of the Members.

     

    3.3.         Limited Power and Duties of
the Members.  The Members shall have no power to participate in
the management of the Company except as expressly authorized by this Agreement
or as expressly required by the Act.  Unless expressly and duly
authorized in writing to do so by the Manager, no Member, in its capacity as
such, shall have any power or authority to bind or act on behalf of the Company
in any way, to pledge the Company’s credit or to render the Company liable for
any purpose.

     

    ARTICLE
4

    MANAGEMENT AND OPERATIONS OF
THE COMPANY.

     

    4.1.         Management of the Company’s
Affairs.

     

    (a)           The
management of the Company shall be vested exclusively in LP Units Manager, LLC,
which is hereby appointed as the Manager effective as of the date
hereof.  Subject to the terms and conditions of this Agreement, the
Manager shall have full and exclusive power and discretion to, and shall, manage
the business and affairs of the Company only in accordance with this
Agreement.  The Manager shall not resign, may not assign or delegate
its responsibilities to any other Person, and shall serve as such until such
time, if any, as the Manager is otherwise removed and replaced or the Company is
dissolved in accordance with the terms of this Agreement.  The Manager
shall devote such time to the affairs of the Company as is reasonably necessary
to manage the Company as set forth in this Agreement.  Nothing in this
Section 4.1
eliminates, limits or otherwise modifies any of the express terms of this
Agreement or any liability, obligation or covenant of any Person
hereunder.

     

    (b)           The
Manager shall have no authority to take or authorize the taking of any action in
contravention of any express term of this Agreement.

     

    
      
         


      

      
        B-6

        
          

        

      

      
         


      

    


    


    (c)           No
Member or Members shall have any power or authority to remove the Manager for
any reason.

     

    (d)           No
Person dealing with the Company or the Manager shall be required to determine,
and any such Person may conclusively assume and rely upon, the authority of the
Manager to execute any instrument or make any undertaking on behalf of the
Company.  No Person dealing with the Company or the Manager shall be
required to determine any facts or circumstances bearing upon the existence of
such authority.  Without limitation of the foregoing, any Person
dealing with the Company or the Manager is entitled to rely upon a certificate
signed by the Manager as to:

     

    (i)           the
identity of the Members;

     

    (ii)          the
existence or non-existence of any fact or facts that constitute a condition
precedent to acts by the Manager or are in any other manner germane to the
affairs of the Company;

     

    (iii)         the
identity of Persons who are authorized to execute and deliver any instrument or
document of or on behalf of the Company; or

     

    (iv)         any
act or failure to act by the Company or any other matter whatsoever involving
the Company or the Members.

     

    4.2.         Payment of
Expenses.  The Manager shall, on behalf of the Company, pay for
any and all costs, fees and expenses incurred or payable by the Company,
including, without limitation, (i) any administrative expenses, including,
without limitation, fees of accountants, auditors and attorneys, incurred by the
Company and (ii) any franchise or similar taxes payable to the Secretary of
State of the State of Delaware in order to maintain the good standing of the
Company in the State of Delaware.

     

    4.3.         Entry into Tax Matters
Agreements.  Notwithstanding any other provision of this
Agreement to the contrary, the Company is authorized to enter into the DL Tax
Matters Agreement and the LVP Tax Matters Agreement and to perform all of the
Company’s obligations, and to exercise all of the Company’s rights, pursuant to
the DL Tax Matters Agreement and the LVP Tax Matters Agreement.

     

    ARTICLE
5

    COMPANY UNITS; CAPITAL
CONTRIBUTIONS

     

    5.1.         Capital
Structure.

     

    (a)           The
Company is authorized to issue equity interests in the Company designated as
“Company Units,” which shall constitute limited liability company interests
under the Act (the “Company
Units”).  As of the date hereof, the Company has no outstanding
Company Units.  Pursuant to the terms of the Contribution Agreement,
at the Closing the Company shall issue Company Units and Schedule I
hereto shall be revised to reflect such issuance.  The Company Units
will have the powers, preferences, rights, qualifications, limitations and
restrictions as set forth herein.  Each Company Unit is intended to
represent the same rights, powers, and obligations of the Parent OP Unit that
will be deemed to be contributed by a Member to the Company (which will be set
forth on Schedule I
hereto), with the intention that the capital structure will represent, to the
maximum extent possible, the same right to receive allocations of income, gain,
loss, deduction and credit (for purposes of determining both Capital Accounts
and for U.S. federal income tax purposes) and distributions that a Member would
possess if the Member directly owned the Parent OP Units to be contributed to
the Company.

     

    
      
         


      

      
        B-7

        
          

        

      

      
         


      

    

    


    (b)           The
name of each Member and the number of Company Units held by each such Member as
well as the Parent OP Units to be held by the Company for the benefit of such
Member will be set forth on Schedule I
hereto, as such schedule may be amended from time to time to reflect, among
other things the admission of new Members, additional issuances of Company Units
to the Members and transfers of Company Units.

     

    (c)           The
Company Units will not be certificated and will be represented solely by
book-entry.  The Manager shall maintain a list of the holders of
Company Units and the Parent OP Units to be contributed by such Member in the
same manner as the Parent OP maintains a list of the holders of Parent OP
Units.  The Manager shall maintain this list in a manner that shall
separately track and identify the Company Units of a Member as corresponding to
the Parent OP Units to be contributed by such Member.

     

    (d)           In
the event of any change in the outstanding number of Parent OP Units by reason
of any share dividend, split, reverse split, recapitalization, merger,
consolidation or combination by the Parent OP, the number of Company Units to be
held by each Member shall be proportionately adjusted such that, to the extent
possible, one Company Unit remains the equivalent of one Parent OP Unit without
dilution or accretion.

     

    5.2.         Capital
Contributions.

     

    (a)           Except
as otherwise expressly provided in this Agreement or the Act, no Manager or
Member shall be obligated to make any contribution of capital to the Company or
have any liability for the debts and obligations of the Company.  This
Section 5.2 is
in furtherance of, and not in limitation of, Section 18-303(a) of the
Act.

     

    5.3.         Capital
Accounts.

     

    (a)           A
separate account (each a “Capital Account”)
shall be established and maintained for each Member, in accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv), which shall be increased by
(i) the amount of any cash contributed to the Company by such Member
(ii) the fair market value of any property contributed to the Company by
such Member (as determined by in good faith by the Manager) and (iii) the
amount of any income, gain or credit allocated to such Member pursuant to Article 7, and
decreased by (i) the amount of any loss or deduction allocated to such
Member pursuant to Article 7,
(ii) the amount of any cash distributed to such Member and (iii) the
fair market value of any asset distributed in kind to such Member (as determined
by in good faith by the Manager) including any Parent REIT
Shares.  The Manager’s determination of such Capital Accounts shall be
binding upon all parties.  The Manager shall have authority to choose
from all available tax accounting methodologies.

     

    
      
         


      

      
        B-8

        
          

        

      

      
         


      

    

    


    (b)           The
Capital Accounts of the Members as of the date of this Agreement are set forth
in Schedule I
hereto which will be amended upon the Closing to reflect the contribution of the
Parent OP Units pursuant to the Contribution Agreement.

     

    (c)           Withdrawal of
Contributions.  No Member shall be entitled to withdraw any
cash or property or other sums from its Capital Account or to receive any
distributions from the Company except as expressly provided in this
Agreement.  Except as set forth in Article 6, no
Member shall have the right to demand to receive any cash or assets for its
Company Units or the Parent OP Units contributed by such Member.

     

    (d)           No
Interest.  No member shall be entitled to interest on any cash
or property or other sums from its Capital Account and no such interest shall be
accrued.

     

    5.4.         Voting
Rights.

     

    (a)           Except
as otherwise expressly provided in this Agreement or the Act, the Company Units
shall not have any voting rights.

     

    (b)           With
respect to any matter put to a vote of holders of Parent OP Units or as to which
the consent of the holders of Parent OP Units is sought, the Manager shall vote
or provide its consent with respect to all of the Parent OP Units held by the
Company in accordance with the vote or consent of a majority of the Parent OP
Units not held by the Parent OP General Partner or by the Company voting or
providing consent with respect to such matter; provided; however, that any amendments
to the Parent OP Agreement requiring the consent of each holder of Parent OP
Units shall not be consented to by the Manager unless the Member holding the
Company Units consents with respect to the Parent OP Units it would have the
right to receive from the Company upon the exercise of the Conversion Right, as
defined in Section 6.1(a)
below.

     

    ARTICLE
6

    CONVERSION OF COMPANY
UNITS

     

    6.1.         Conversion at the Option of
the Members.

     

    (a)           Each
of the Members is hereby granted the right (the “Conversion Right”) to
exchange all or any portion of such Member’s Company Units for the Parent OP
Units that such Member contributed to the Company at any time or from time to
time, on the terms and subject to the conditions and restrictions contained in
this Section 6.1.  The
Conversion Right may be exercised by a Member (a “Converting Member”)
by delivery to the Manager of both (i) a notice in the form of Annex B hereto
(a “Company Unit
Exercise Notice”), which notice shall specify the whole number of such
Member’s Company Units that are to be exchanged by such Converting Member (the
“Converted
Units” and (ii) a signed Notice of Conversion in the form attached
to the Parent OP Agreement (a copy of which is attached to Annex B for the
convenience of the Converting Member) pursuant to which the Converting Member
elects to convert the Parent OP Units received in respect of the Converted Units
into cash or Parent REIT Shares, as selected by Parent REIT pursuant to Article XI of
the Parent OP Agreement.  Once delivered, the Company Unit Exercise
Notice and such Notice of Conversion shall be irrevocable.

     

    
      
         


      

      
        B-9

        
          

        

      

      
         


      

    

    


    (b)           Promptly
after receipt of a Company Unit Exercise Notice, the Manager shall effect, on
behalf of the Converting Member, the conversion of each Parent OP Unit that such
Member contributed to the Company and has elected to convert pursuant to Section 6.1(a)
such that each Converting Member shall receive all or a portion of the Parent OP
Units (and any securities issued by Parent OP in respect of such Parent OP
Units) such Member contributed to the Company.  Upon receipt of the
Parent OP Units pursuant to the preceding sentence of this Section 6.1(b),
each Converting Member shall be obligated pursuant to the Notice of Conversion
described in Section 6.1(a)(ii) to
immediately exercise its rights pursuant to Article XI of
the Parent OP Agreement to convert all of its Parent OP Units into Parent REIT
Shares or cash (as selected by Parent REIT pursuant to Article XI of
the Parent OP Agreement).

     

    (c)           The
closing of the exchange of the Converted Units and the conversion of the
underlying Parent OP Units, which such Member contributed to the Company, shall
be held at a location and on a date agreed to by the Manager and the Converting
Members, which date shall be no later than the date specified for closing by
such Converting Member in the Company Unit Exercise Notice.

     

    (d)           At
the closing of the exchange of the Converted Units and the conversion of the
underlying Parent OP Units, the transfer of Parent OP Units, which such Member
contributed to the Company, to the Converting Member shall be accompanied by
proper instruments of transfer and assignment and by the delivery of
representations and warranties of (A) the Converting Member with respect to
its due authority to sell all of the right, title and interest in and to such
Converted Units to the Company and with respect to the ownership by such
Converting Member of such Converted Units, free and clear of all Liens, and
(B) the Company with respect to its due authority to acquire such Converted
Units.

     

    6.2.         Redemption at the Option of
the Company.

     

    (a)           At
any time, or from time to time, following the date hereof, the Company shall
have the right (the “Redemption Right”) to
redeem all, but not less than all, of the outstanding Company Units held by the
Members in exchange for the Parent OP Units held by the Company which were
contributed by such Members (and any securities issued by Parent OP with respect
to such Parent OP Units) on the terms and subject to the conditions and
restrictions contained in this Section 6.2.  The
Redemption Right may be exercised by the Company upon delivery by the Manager to
the Members of a notice in the form of Annex C hereto
(a “Redemption
Notice”), which notice shall state that all of such Member’s Company
Units are to be redeemed by the Company in exchange for such Parent OP Units
(the “Redeemed
Units”).

     

    (b)           Promptly
after mailing a Redemption Notice, the Manager shall effect the exchange of the
Redeemed Units held by the applicable Member for the Parent OP Units held by the
Company which were contributed by such Member (and any securities issued by
Parent OP with respect to such Parent OP Units) (the “Redemption
Consideration”).

     

    (c)           The
closing of the redemption of the Redeemed Units shall be held at a location and
on a date selected by the Manager, which date (the “Redemption Settlement
Date”) shall between ten (10) and thirty (30) days after the date of the
Redemption Notice.

     

    
      
         


      

      
        B-10

        
          

        

      

      
         


      

    

    


    (d)           At
the closing of the redemption of the Redeemed Units, payment of the Redemption
Consideration shall be accompanied by proper instruments of transfer and
assignment and by the delivery of representations and warranties of
(A) each of the Members with respect to its due authority to sell all of
the right, title and interest in and to such Member’s Redeemed Units to the
Company and with respect to the ownership by such Member of such Redeemed Units,
free and clear of all Liens, and (B) the Company with respect to its due
authority to acquire such Redeemed Units for the Redemption
Consideration.

     

    ARTICLE
7

    DISTRIBUTIONS AND
ALLOCATIONS

     

    7.1.         Allocations of Profits and
Losses.  Each Member shall be allocated each item of income,
gain, loss, deduction or credit allocated by Parent OP with respect to the
Parent OP Units that such Member contributed to the Company, as if such Member
continued to directly own such Parent OP Units.  The Manager shall
allocate any item of income, gain, loss, deduction or credit of the Company not
attributable to the Parent OP Units pro rata in accordance with the number of
Parent OP Units contributed by each Member.

     

    7.2.         Distributions
Generally.  Except as set forth in Article 6 and
Section 7.3,
distributions from the Company to the Members shall be made at such times as the
Manager shall determine.

     

    7.3.         Required
Distributions.  Subject to Section 7.4,
except as set forth in Article 6,
(i) all cash dividends and other cash distributions received by the Company
with respect to the Parent OP Units contributed by a Member; (ii) all
dividends and distributions of securities issued by any Person other than Parent
OP received by the Company with respect to the Parent OP Units contributed by a
Member; and (iii) all dividends and distributions of securities issued by
the Parent OP that are not Parent OP Units (as such term is defined in the
Contribution Agreement), in each case, shall be promptly, and in any event
within two Business Days of receipt of such dividend or distribution,
distributed to the Member that contributed such Parent OP Units as if such
Member continued to directly own such Parent OP Units.  For the
avoidance of doubt, any Parent OP Units shall be received by the Company in
compliance with Section 5.1(d).

     

    7.4.         Withholding.  Each
Member hereby authorizes the Company to withhold or pay on behalf of or with
respect to such Member any amount of federal, state, local or foreign taxes that
the Manager determines the Company is required to withhold or pay with respect
to any amount distributable or allocable to such Member pursuant to this
Agreement, including, without limitation, any taxes required to be withheld or
paid by the Company pursuant to Code Sections 1441, 1442, 1445, or
1446.  Any amount paid by the Company on behalf of or with respect to
a Member will be deemed to have been actually distributed to such Member and
paid by such Member to the applicable taxing authority. Nothing in this Section 7.4
shall create any obligation on the Manager to advance funds to the Company or to
borrow funds from third parties in order to make payments on account of any
liability of the Company under a withholding tax act; provided, however, the Manager may
borrow funds for such purpose notwithstanding the limitations imposed on the
Manger by Section 3.8.  If
the Manager borrows funds from third parties in order to make payments to a
taxing authority under this Section 7.4, the
Member on whose behalf such taxes are paid will be required to reimburse the
Manager for any and all interest payments made on such amount, which shall be
repaid through withholding of subsequent distributions to such
Member.

     

    
      
         


      

      
        B-11

        
          

        

      

      
         


      

    

    


    7.5.         Tax Matters
Member.  The Company hereby designates the Manager as the tax
matters partner of the Company as provided in the Treasury Regulations pursuant
to Section 6231 of the Code (the “Tax Matters
Member”).  The Manager shall pay all expenses incurred by it in
connection with service as Tax Matters Member.  The Manager shall have
all rights permitted to be granted to a tax matters partner.  Each
Member shall, if necessary, execute any power of attorney to the Manager in its
capacity as Tax Matters Member to fulfill its obligations with respect to tax
matters on behalf of the Company.  The Manager shall at all times keep
the Members reasonably informed of the commencement and progress of any audit or
other proceeding with respect to Taxes and shall permit any Member, at its own
expense, to participate in such proceeding.

     

    ARTICLE
8

    ACCOUNTING AND
TAXATION

     

    8.1.         Fiscal
Year.  The Company shall keep appropriate books and records and
the fiscal year of the Company shall commence on January 1 and end on
December 31.

     

    8.2.         Maintenance of Books and
Records.  At all times during the continuance of the Company,
the Manager shall keep or cause to be kept, at the principal place of business
of the Company referred to in Section 2.4,
full and complete books of account.  The books of account shall be
maintained in a manner that provides sufficient assurance that:

     

    (a)           transactions
of the Company are executed in accordance with the general or specific
authorization of the Manager consistent with the provisions of this Agreement;
and

     

    (b)           transactions
of the Company are recorded in such form and manner as will permit preparation
of federal, state and local income and franchise tax returns and information
returns in accordance with this Agreement and as required by Law, permit
preparation of the Company’s financial statements in accordance with GAAP and as
otherwise set forth herein and the provisions of the reports required to be
provided hereunder, and maintain accountability for the Company’s
assets.

     

    8.3.         Form
W-9.  Each Member shall deliver to the Company at or prior to
the Closing, a completed and executed Form W-8 or IRS Form W-9, as applicable,
with respect to such Member. Notwithstanding anything to the contrary herein, in
the event a Member has not executed and delivered to the Company the required
IRS Form W-8 or IRS Form W-9, as applicable, Parent OP, pursuant to the
Contribution Agreement, and the Company shall withhold taxes in any amount
necessary to comply with applicable Law.

     

    8.4.         Partnership
Status.  The Members intend that the Company shall be treated
as a partnership for U.S. federal income, state and local income tax purposes to
the extent such treatment is available, and agree to take such actions as may be
necessary to receive and maintain such treatment and refrain from taking any
actions inconsistent thereof.

     

    
      
         


      

      
        B-12

        
          

        

      

      
         


      

    

    


    8.5.         Records
Retention.  The Manager shall, upon reasonable advance notice
and during normal business hours, make available to the Members for review and
copying, at the Manager’s expense, all books and records of the Company and
shall retain such books and records of a period of 3 years following the
dissolution of the Company pursuant to Article 10 of
this Agreement.

     

    ARTICLE
9

    TRANSFER OF COMPANY
UNITS/ADMISSION OF NEW MEMBERS

     

    9.1.         Transfers.  No
Member may directly or indirectly, Transfer all or any portion of its Company
Units or any of its rights or interests under this Agreement to any Person
without the consent of the Manager, which consent may be withheld or granted
subject to such conditions as may be determined by the Manager in its sole
discretion.

     

    (a)           Notwithstanding
the foregoing, but subject to the provisions of Section 9.2
hereof, any Member may at any time, without the consent of the Manager,
(i) Transfer all or a portion of its Company Units to an Affiliate of such
Member, or (ii) other than LVP OP and Pro-DFJV, Pledge some or all of its
Company Units to any Institutional Lender.  Any Transfer to an
Affiliate pursuant to clause (i) and any Transfer to a pledgee of Company
Units pursuant to clause (ii) may be made without the consent of the
Manager but, except as provided in subsequent provisions of this Section 9.1,
such transferee or such pledgee shall hold the Company Units so transferred to
it (and shall be admitted to the Company as a Member) subject to all the
restrictions set forth in this Section 9.1.  It
is a condition to any Transfer otherwise permitted under any provision of this
Section 9.1 that
the transferee assumes by operation of law or express agreement all of the
obligations of the transferor Member under this Agreement with respect to such
transferred Company Units, as the case may be, arising after the effective date
of the Transfer and no such Transfer (other than pursuant to a statutory merger
or consolidation wherein all obligations and liabilities of the transferor
Member are assumed by a successor corporation by operation of law) shall relieve
the transferor Member of its obligations under this Agreement prior to the
effective date of such Transfer.  Upon any such Transfer or Pledge
permitted under this Section 9.1, the
transferee or, upon foreclosure on the Company Units, as the case may be, each
Institutional Lender which is the pledgee shall be admitted as a Member and
shall succeed to all of the rights of the transferor Member under this Agreement
in the place and stead of such transferor Member.  Any transferee,
whether or not admitted as a Member, shall take subject to the obligations of
the transferor hereunder.  No transferee pursuant to a Transfer which
is not expressly permitted under this Section 9.1 or
is not consented to by the Manager, whether by a voluntary Transfer, by
operation of law or otherwise, shall have any rights hereunder, other than the
right to receive such portion of the distributions and allocations of profits
and losses made by the Company as are allocable to the Company Units, as the
case may be, so transferred.

     

    
      
         


      

      
        B-13

        
          

        

      

      
         


      

    


    9.2.         Restrictions on
Transfer.  In addition to any other restrictions on Transfer
herein contained, in no event may any Transfer or assignment of a Company Unit
by any Member be made (i) to any Person which lacks the legal right, power
or capacity to own a Company Unit; (ii) in violation of applicable Law;
(iii) if such Transfer would immediately or with the passage of time cause
the Parent OP General Partner to fail to comply with the REIT Requirements (as
defined in the Parent OP Agreement), such determination to be made assuming that
the Parent OP General Partner does comply with the REIT Requirements immediately
prior to the proposed Transfer; (iv) if such Transfer would cause the
Company to become, with respect to any employee benefit plan subject to Title I
of ERISA, a “party-in-interest” (as defined in Section 3(14) of ERISA) or a
“disqualified person” (as defined in Section 4975(e) of the Code);
(v) if such Transfer would, in the opinion of counsel to the Company, cause
any portion of the underlying assets of the Company to constitute assets of any
employee benefit plan pursuant to Department of Labor Regulations
Section 2510.3-101; (vi) if such Transfer would result in a deemed
distribution to any Member attributable to a failure to meet the requirements of
Regulations Section l.752-2(d)(l), unless such Member consents thereto,
(vii) if such Transfer would cause any lender to the Company to hold in
excess of ten (10) percent of the Company Units that would, pursuant to the
regulations under Section 752 of the Code or any successor provision, cause
a loan by such a lender to constitute “Partner Nonrecourse Debt”, (viii) if
such Transfer, other than to an Affiliate, is of Company Units the value of
which would have been less than $20,000 when issued, (ix) if such Transfer
would, in the opinion of counsel to the Company, cause the Company to cease to
be classified as a partnership for U.S. federal income tax purposes or
(x) if such Transfer is effectuated through an “established securities
market” or a “secondary market (or the substantial equivalent thereof)” within
the meaning of Section 7704(b) of the Code.  Notwithstanding
anything to the contrary in this Agreement, the issuance, sale, transfer or
other disposition (whether by merger, consolidation or otherwise) of equity
securities of LVP REIT or LVP OP shall not be a “Transfer” for purposes of this
Agreement and shall not be subject to any restrictions hereunder.

     

    9.3.         Effect of Transfer Not in
Accordance with Agreement.  Any Transfer of any direct or
indirect interest in the Company in violation of this Article 9 shall
be null and void ab
initio, and of no force and effect.

     

    ARTICLE
10

    DISSOLUTION AND WINDING-UP
OF THE COMPANY

     

    10.1.       Dissolution.  A
dissolution of the Company shall take place upon the first to occur of the
following:

     

    (a)           the
determination of the Manager to dissolve the Company at any time after there are
no outstanding Company Units;

     

    (b)           the
entry of a decree of judicial dissolution pursuant to Section 18-802 of the
Act; or

     

    (c)           without
limitation of clause (a) above, a Dissolution Event or an Insolvency Event
occurs with respect to the Manager or a Person that Controls
Manager.

     

    10.2.       Winding-Up
Procedures.  If a dissolution of the Company pursuant to Section 10.1
occurs, subject to the Company’s compliance with its obligation under the other
terms and conditions of this Agreement, the Manager shall proceed as promptly as
practicable to wind up the affairs of the Company in an orderly and businesslike
manner.  A final accounting shall be made by the
Manager.  As part of the winding up of the affairs of the Company, the
following steps will be taken:

     

    
      
         


      

      
        B-14

        
          

        

      

      
         


      

    

    


    (a)           The
assets of the Company, other than the Parent OP Units and any Required
Distributions, shall be sold except to the extent that some or all of the assets
of the Company are retained by the Company for distribution to the Members as
hereinafter provided.

     

    (b)           The
Company shall comply with Section 18-804(b) of the Act.

     

    (c)           Distributions
of the assets of the Company after a dissolution of the Company shall be
conducted as follows:

     

    (i)           first,
to creditors and Members who are creditors, to the extent otherwise permitted by
Law, in satisfaction of liabilities of the Company (whether by payment or the
making of reasonable provision for payment thereof) other than liabilities for
which reasonable provision for payment has been made and liabilities for
distributions to the Members under Section 18-601 of the Act;

     

    (ii)          next,
to the Members in satisfaction of liabilities (if any) for distributions under
Section 18-601 of the Act; and

     

    (iii)         finally,
to the Members in proportion to their respective Percentage Interests, provided
that, to the maximum extent possible, the Company shall distribute to each
Member the Parent OP Units contributed to the Company by such
Member.

     

    ARTICLE
11

    WITHDRAWAL

     

    11.1.       Withdrawal.  No
Member shall have the right to withdraw from the Company except with the consent
of the Manager and upon such terms and conditions as may be specifically agreed
upon between the Manager and the withdrawing Member.

     

    ARTICLE
12

    LIABILITY;
EXCULPATION

     

    12.1.       Liability of
Manager.

     

    (a)           The
Manager may rely, and shall be protected in acting or refraining from acting,
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties.

     

    (b)           The
Manager may consult with legal counsel, accountants, appraisers, management
consultants, investment bankers and other consultants and advisers selected by
it, and any act taken or omitted to be taken in reliance upon the opinion of
such Persons as to matters that the Manager reasonably believes to be within
such Person’s professional or expert competence shall be conclusively presumed
to have been done or omitted in good faith and in accordance with such
opinion.

     

    (c)           The
Manager shall not be liable to the Company or any Member for any loss, damage or
claim (or any expenses or costs associated therewith) incurred by reason of any
act or omission performed or omitted to be performed by the Manager other than
as a result of the Manager’s gross negligence or willful
misconduct.

     

    
      
         


      

      
        B-15

        
          

        

      

      
         


      

    

    


    (d)           The
Manager’s obligations to the Company and to the Members are limited to the
express obligations described in this Agreement.

     

    (e)           The
Members acknowledge and agree that the relationship of the Manager to the
Company and the Members is, to the maximum extent permissible under the Act,
contractual in nature and not fiduciary.  Accordingly, pursuant to
Section 18-1101 of the Act, the Members agree that to the maximum extent
permissible under the Act, the Manager shall not have any fiduciary or any other
similar duties or obligations to any Member or any other Person by virtue of the
Manager’s actions in its capacity as such (or, if complete elimination of such
duties and obligations is deemed to be not permissible under the Act, then such
duties and obligations shall be reduced to the maximum extent
permissible).

     

    (f)  
         The provisions of this
Section 12.1 are
for the benefit of the Manager.  This Section 12.1 may
be amended, modified or repealed in the manner set forth in Section 14.6 of
this Agreement, but any amendment, modification or repeal of this Section 12.1 or
any provision hereof (including as a result of any amendment, modification or
repeal of the Act) shall (unless the Manager shall expressly have consented to
such amendment, modification or repeal) be prospective only and shall (unless
the Manager shall expressly have consented to such amendment, modification or
repeal) not in any way affect the limitations on liability under this Section 12.1 as
in effect immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in whole or in
part, prior to such amendment, modification or repeal, regardless of when such
claims may be asserted.

     

    (g)           The
limitations and exculpation afforded by each provision of this Section 12.1 are
cumulative and not exclusive. Nothing in this Section 12.1 is
intended, or shall be deemed, to permit conduct that would otherwise conduct
that, even disregarding the terms hereof otherwise would be actionable by the
Company or the Members.

     

    12.2.       Liability of the
Members.  Except as otherwise required in the Act, the debts,
obligations, and liabilities of the Company, whether arising in contract, tort
or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Members shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a Member or
participating in the management of the Company.  The failure of the
Company to observe any formalities or requirements relating to the exercise of
its powers or management of its business or affairs under the Act or this
Agreement shall not be grounds for imposing personal liability on the Members
for liabilities of the Company.

     

    ARTICLE
13

    COVENANTS

     

    13.1.       No Individual
Authority.  Accept as otherwise expressly provided in this
Agreement, no Member shall have any authority to act for, or undertake or assume
any obligations or responsibility on behalf of the Company.

     

    
      
         


      

      
        B-16

        
          

        

      

      
         


      

    

    


    13.2.       Separateness.  The
Company shall take all necessary actions to hold itself as an entity separate
and distinct from any other person or entity (including Affiliates), including,
without limitation, by: maintaining books, records and bank accounts separate
and distinct from the books, records and bank accounts of any other person or
entity; not commingling any of its assets or liability with the assets or
liabilities of any other person or entity; paying its own liabilities and
expenses only out of its own funds; not guaranteeing the indebtedness of any
other person or entity; holding its assets in it own name; not pledging its
assets for the benefit of any other person or entity; using its own letterhead
and checks; causing its representatives, employees or agents to hold themselves
out to third parties as representatives, employees or agents of the Company; not
assuming the obligations of its Affiliates; and not holding out its credit as
being available to satisfy the obligations of any other person or
entity.

     

    13.3.       Indemnification.  Each
Member agrees to indemnify and hold harmless the other Members against all
claims, demands, losses, damages, liabilities, lawsuits and other proceedings,
judgments, awards, costs and expenses (including reasonable attorneys’ fees,
disbursements and court costs) to the extent the same arise directly or
indirectly from any material inaccuracy in or material breach of any covenant,
representation or warranty, as applicable, of such Member made pursuant to this
Agreement.

     

    13.4.       Specific
Performance.  Each of the Members and the Manager shall be
entitled to an injunction or injunctions, without the necessity of posting bond,
to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, in addition to any other remedy to which such
party is entitled at law or in equity.  In furtherance thereof, each
Member and the Manager waives (and agrees not to assert) (i) any defense in
any action for specific performance that a remedy at law would be adequate, and
(ii) any requirement under any Law to post a bond or other security as a
prerequisite to obtaining equitable relief.

     

    ARTICLE
14

    MISCELLANEOUS

     

    14.1.       Investment
Representations.

     

    (a)           Each
Member acknowledges that it (i) has been given full and complete access to
the Company and the Manager in connection with this Agreement and the
transactions contemplated hereby, (ii) has had the opportunity to review
all documents relevant to its decision to enter into this Agreement, and
(iii) has had the opportunity to ask questions of the Company and the
Manager concerning its investment in the Company and the transactions
contemplated hereby.

     

    (b)           Each
Member acknowledges that it understands that the Company Units to be acquired by
it hereunder will not be registered under the Securities Act in reliance upon
the exemption afforded by Section 4(2) thereof for transactions by an
issuer not involving any public offering, and will not be registered or
qualified under any applicable state securities laws.  Each Member
represents that (i) it is acquiring such Company Units for investment only
and without any view toward distribution thereof, and it will not sell or
otherwise dispose of such Company Units except in accordance with the terms
hereof and in compliance with the registration requirements or exemption
provisions of any applicable state securities laws, (ii) its economic
circumstances are such that it is able to bear all risks of the investment in
the Company Units for an indefinite period of time including the risk of a
complete loss of its investment in the Company Units and (iii) it has
knowledge and experience in financial and business matters sufficient to
evaluate the risks of investment in the Company Units.  Each Member
further acknowledges and represents that it has made its own independent
investigation of the Company and the business conducted and proposed to be
conducted by the Company, and that any information relating thereto furnished to
the Member was supplied by or on behalf of the Company.

     

    
      
         


      

      
        B-17

        
          

        

      

      
         


      

    

    


    14.2.       Entire
Agreement.  This Agreement, together with the Annexes and
Schedules hereto (and any other agreements expressly contemplated hereby or
thereby), constitutes the entire agreement and understanding, and supersedes all
other prior agreements and understandings, both written and oral, between Member
or its Affiliates or any of them and the Company with respect to the subject
matter hereof.

     

    14.3.       Governing Law;
Jurisdiction.  THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.  In
the event of a direct conflict between the provisions of this Agreement and any
mandatory, non-waivable provision of the Act, such provision of the Act shall
control to the extent necessary to eliminate such direct
conflict.  Nothing in this Agreement shall require any unlawful action
or inaction by any Person.

     

    14.4.       Third Party
Beneficiaries.  Subject to Section 12.1,
(i) this Agreement is for the benefit solely of, and shall inure solely to
the benefit of, the Members, the Manager and the Company and (ii) this
Agreement is not enforceable by any Person (including any creditor of the
Company or of the Members) other than the Members, the Manager and the
Company.

     

    14.5.       Expenses.  Except
as may otherwise be expressly provided herein, the Manager and the Members shall
pay their own expenses (including legal, accounting investment banker, broker or
finders fees) incident to the negotiation and execution of this Agreement and
the performance of its obligations hereunder.

     

    14.6.       Waivers and
Amendments.  This Agreement may only be amended or modified
(including by merger, consolidation or otherwise), and the terms hereof may only
be waived, upon the prior written approval of the Manager and the Members
holding a majority of the outstanding Company Units; provided that,
(a) to the extent any such amendment (or series of amendments)
disproportionately affects in any materially adverse manner the rights of any
Member relative to the rights of any other Member (taking into account the
rights and obligations of such Member prior to giving effect to such amendment),
then such amendment shall not be effective against such Member without the prior
written consent of such Member and (b) prior to the issuance of Company
Units, no amendment, modification or waiver shall be made without the prior
written approval of the Manager and the Representative (as defined in the
Contribution Agreement).  Except where a specific period for action or
inaction is provided herein, no failure on the part of the Manager or a Member
to exercise, and no delay on the part of the Manager or a Member in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any waiver on the part of the Manager or a Member of any such right, power
or privilege, or any single or partial exercise of any such right, power or
privilege, preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.

     

    
      
         


      

      
        B-18

        
          

        

      

      
         


      

    

    


    14.7.       Notices.  All
notices, requests, demands, and other communications required or permitted to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be given by certified or registered mail, postage
prepaid, or, delivered by hand or by nationally recognized air courier service,
directed to the address of such Person set forth below:

     

    if to the Company or the Manager,
to:

     

    Marco LP Units, LLC

    225 West Washington
Street

    Indianapolis, Indiana
46204

    
      	  	
              Attention:

            	
              James
      M. Barkley

            


    

    
      	  	
              Facsimile:

            	
              317.685.7377

            


    

     

    with a copy (which copy shall not
constitute notice) to:

     

    Fried, Frank, Harris, Shriver and
Jacobson LLP

    One New York
Plaza

    New York, New York
10004

    Tel: 212.859.8980

    
      	  	
              Attention:

            	
              Peter
      S. Golden

            


    

    John E. Sorkin

    
      	  	
              Facsimile:

            	
              212.859.4000

            


    

     

    if to any Member, to such Member at the
address set forth on Schedule I hereto:

     

    with a copy (which copy shall not
constitute notice) to:

     

    Paul, Weiss, Rifkind, Wharton &
Garrison LLP

    1285 Avenue of the
Americas

    New York, New York
10019-6064

    
      	  	
              Attention:

            	
              Jeffrey
      D. Marell

            


    

    Robert
B. Schumer

    
      	  	
              Facsimile:

            	
              212.757.3990

            


    

     

    Any such notice shall become effective
when received (or receipt is refused) by the addressee, provided that any notice
or communication that is received (or refused) other than during regular
business hours of the recipient shall be deemed to have been given at the
opening of business on the next business day of the recipient.  From
time to time, any Person may designate a new address for purposes of notice
hereunder by notice to such effect to the other Persons identified
above.

     

    
      
         


      

      
        B-19

        
          

        

      

      
         


      

    

    


    14.8.       Counterparts; Facsimile
Signatures.

     

    (a)           This
Agreement may be executed in any number of counterparts, each of which shall be
an original and all of which shall together constitute one and the same
instrument.  It shall not be necessary for any counterpart to bear the
signature of all parties hereto.

     

    (b)           This
Agreement and any amendments hereto, to the extent signed and delivered by
facsimile or other electronic means, shall be treated in all manner and respects
as an original agreement and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in
person.  No signatory to this Agreement shall raise the use of a
facsimile machine or other electronic means to deliver a signature or the fact
that any signature or agreement was transmitted or communicated through the use
of a facsimile machine or other electronic means as a defense to the formation
or enforceability of a contract and each such Person forever waives any such
defense.

     

    14.9.       Successors and
Assigns.  Except as otherwise specifically provided in this
Agreement, this Agreement shall be binding upon and inure to the benefit of
Members and the Company and their respective Successors and
Assignees.

     

    14.10.     Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall be ineffective, but such ineffectiveness shall be limited as
follows: (i) if such provision is prohibited or unenforceable in such
jurisdiction only as to a particular Person or Persons and/or under any
particular circumstance or circumstances, such provision shall be ineffective,
but only in such jurisdiction and only with respect to such particular Person or
Persons and/or under such particular circumstance or circumstances, as the case
may be; (ii) without limitation of clause (i), such provision shall in any
event be ineffective only as to such jurisdiction and only to the extent of such
prohibition or unenforceability, and such prohibition or unenforceability in
such jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction; and (iii) without limitation of clauses (i) or
(ii), such ineffectiveness shall not invalidate any of the remaining provisions
of this Agreement.  Without limitation of the preceding sentence, it
is the intent of the parties to this Agreement that in the event that in any
court proceeding, such court determines that any provision of this Agreement is
prohibited or unenforceable in any jurisdiction (because of the duration or
scope (geographic or otherwise) of such provision, or for any other reason) such
court shall have the power to, and shall, (x) modify such provision
(including without limitation, to the extent applicable, by limiting the
duration or scope of such provision and/or the Persons against whom, and/or the
circumstances under which, such provision shall be effective in such
jurisdiction) for purposes of such proceeding to the minimum extent necessary so
that such provision, as so modified, may then be enforced in such proceeding and
(y) enforce such provision, as so modified pursuant to clause (x), in such
proceeding.  Nothing in this Section 14.10 is
intended to, or shall, limit (1) the ability of any party to this Agreement
to appeal any court ruling or the effect of any favorable ruling on appeal or
(2) the intended effect of Section 14.4.

     

    
      
         


      

      
        B-20

        
          

        

      

      
         


      

    


    14.11.     Submission to Jurisdiction;
Waivers.  Each of the Company, the Manager and each of the
Members hereby irrevocably and unconditionally:

     

    (a)           (i) agrees
that any suit, action or proceeding against it or any of its Affiliates arising
out of or relating to or in connection with this Agreement shall be instituted
solely in the Chancery Court of the State of Delaware; provided that if (and only
after) such courts determine that they lack subject matter jurisdiction over any
such legal action, suit or proceeding, such legal action, suit or proceeding
shall be brought in the Federal courts of the United States located in the State
of Delaware, (ii) consents and submits, for itself and its property, to the
jurisdiction of such courts for the purpose of any such suit, action or
proceeding instituted against it, and (iii) agrees that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
Law;

     

    (b)          agrees
that service of all writs, process and summonses in any suit, action or
proceeding pursuant to Section 14.11(a)
may be effected by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at its address for notices pursuant to Section 14.7
(with copies to such other Persons as specified therein), such service to become
effective thirty (30) days after such mailing, provided that nothing contained
in this Section 14.11(b)
shall affect the right of any party to serve process in any other manner
permitted by Law;

     

    (c)           (i) waives
any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement brought
in any court specified in Section 14.11(a),
(ii) waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum, and (iii) agrees
not to plead or claim either of the foregoing; and

     

    (d)           WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.

     

    14.12.     Termination of
Agreement.  If the Contribution Agreement is terminated in
accordance with its terms, this Agreement shall be deemed terminated and of no
further force or effect without any liability to any Member or the
Manager.

     

    [Signature Pages
Follow]

    
      
         


      

      
        B-21

        
          

        

      

      
         


      

    

     

    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.

     

    
      
        	 
      	
                MANAGER:

              	 
      
	 
      	 
      	 
      
	 
      	
                LP
      UNITS MANAGER, LLC

              	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                    Name:

              	 
      
	 
      	
                    Title:

              	 
      


      

    


    
      
         


      

      
        B-22

        
          

        

      

      
         


      

    

     

    IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the date
first above written, and by such execution, the undersigned acknowledges that it
has fully reviewed this Agreement.

     

    
      
        	 
      	
                MEMBERS:

              
	 
      	 
      
	 
      	
                LIGHTSTONE
      VALUE PLUS REIT, L.P.

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              
	 
      	 
      
	 
      	
                PRO-DFJV
      HOLDINGS LLC

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              
	 
      	 
      
	 
      	
                LIGHTSTONE
      HOLDINGS, LLC

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              
	 
      	 
      
	 
      	
                LIGHTSTONE
      PRIME, LLC

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              


      

    


    
      
         


      

      
        B-23

        
          

        

      

      
         


      

    

    


    
      
        	 
      	
                BRM,
      LLC

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              
	 
      	 
      
	 
      	
                LIGHTSTONE
      REAL PROPERTY

                VENTURES
      LIMITED LIABILITY

                COMPANY

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              
	 
      	 
      
	 
      	
                PR
      LIGHTSTONE MANAGER, LLC

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              


      

    

     

    
      
         


      

      
        B-24

        
          

        

      

      
         


      

    


    ANNEX A

     

    Certain Definitions

     

    As used in the Agreement, the following
terms have the following meanings (terms defined in the singular to include the
plural and vice versa and references in this Annex A to sections constitute references to
sections of the Agreement unless otherwise expressly
indicated):

     

    “Accountants” shall mean the independent certified
public accountants of the Company.

     

    “Act” shall have the meaning set forth in
the recitals.

     

    “Action” means any claim, action, suit,
proceeding, arbitration, mediation, audit, inquiry, or other investigation by or
before any Governmental Authority.

     

    “Affiliate” shall mean, with respect to any
specified Person, (i) any other Person directly or indirectly controlling
or controlled by or under common control with such specified Person,
(ii) any Person owning or controlling ten percent (10%) or more of the
outstanding voting securities, voting equity interests, or beneficial interests
of the Person specified, (iii) any officer, director, general partner,
managing member, trustee, employee or promoter of the Person specified or any
Immediate Family Member of such officer, director, general partner, managing
member, trustee, employee or promoter, (iv) any corporation, partnership,
limited liability company or trust for which any Person referred to in clause
(ii) or (iii) acts in that capacity, or (v) any Person who is an
officer, director, general partner, managing member, trustee or holder of ten
percent (10%) or more of the outstanding voting securities, voting equity
interests or beneficial interests of any Person described in clauses
(i) through (iv).

     

    “Agreement” shall have the meaning set forth in
the preamble.

     

    “Business
Day” means a day, other
than a Saturday or Sunday, on which commercial banks in New York City and
Indianapolis, Indiana are open for the general transaction of
business.

     

    “Capital
Account” shall have the
meaning set forth in Section 5.3(a).

     

    “Certificate” shall have the meaning set forth in
the recitals.

     

    “Closing” shall mean the closing of the
transactions contemplated by the Contribution Agreement.

     

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

     

    “Company
Units” shall have the
meaning set forth in Section 5.1.

     

    “Company” shall have the meaning set forth in
the preamble.

     

    “Company Unit
Exercise Notice” shall have
the meaning set forth in Section 6.1(a).

     

    
      
         


      

      
        B-A-1

        
          

        

      

      
         


      

    


    “Contribution
Agreement” shall mean that
certain Contribution Agreement, dated as of December 8, 2009, by and among
Parent REIT, Parent OP, Marco Capital Acquisition,
LLC, a Delaware limited
liability company and a wholly owned subsidiary of Parent OP, Lightstone Value Plus REIT, L.P., a
Delaware limited partnership, Pro-DFJV Holdings LLC, a Delaware
limited liability company, Lightstone Holdings, LLC, a Delaware limited
liability company, Lightstone Prime, LLC, a Delaware limited liability company,
BRM, LLC, a New Jersey limited liability company, Barceloneta Holding Company, a
New Jersey limited liability company, Prime Outlets Acquisition Company LLC, a
Delaware limited liability company, and Lightstone Value Plus Real Estate
Investment Trust, Inc., a
Maryland corporation.

     

    “control” (including the phrases “controlled by”
and “under common control with”) when used with respect to any specified Person
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities or interests, by contract or
otherwise.

     

    “Conversion
Right” shall have the
meaning set forth in Section 6.1(a).

     

    “Converted
Units” shall have the
meaning set forth in Section 6.1(a).

     

    “Converting
Member” shall have the
meaning set forth in Section 6.1(a).

     

    “Debt” of any Person shall mean (i) all
indebtedness of such Person for borrowed money, (ii) all obligations of
such Person for the deferred purchase price of property or services (excluding
trade payables arising in the ordinary course of business), (iii) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (iv) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (v) all obligations of such Person as lessee
under leases that have been or should be, in accordance with GAAP, recorded as
capital leases, or (vi) all indebtedness or obligations of others of the
kinds referred to in clauses (i) through (v) above in respect of which
such Person has entered into or issued any Guarantee.

     

    “Dissolution
Event” shall mean, with
respect to any specified Person, (i) in the case of a specified Person that
is a partnership or limited partnership or a limited liability company, the
dissolution and commencement of winding up of such partnership, limited
partnership or limited liability company, and (ii) in the case of a
specified Person that is a corporation, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its
charter and the expiration of 90 days after the date of notice to the
corporation of revocation without a reinstatement of its charter.  For
the avoidance of doubt, it is understood and agreed that a statutory conversion
of a Person into another form of Person does not constitute a “Dissolution
Event.”

     

    “DL Tax
Matters Agreement” shall
have the meaning ascribed to such term in the Contribution
Agreement.

     

    “GAAP” shall mean United States generally
accepted accounting principles as in effect from time to
time.

     

    
      
         


      

      
        B-A-2

        
          

        

      

      
         


      

    

    


    “Governmental
Authority” shall mean any
United States or non-United States national, federal, state, local, municipal or
provincial or international government or any political subdivision of any
governmental, regulatory or administrative authority, agency or commission, or
judicial or arbitral body.

     

    “Guarantee” shall mean, with respect to any
particular indebtedness or other obligation, (i) any direct or indirect
guarantee thereof by a Person other than the obligor with respect to such
indebtedness or other obligation or any transaction or arrangement intended to
have the effect of directly or indirectly guaranteeing such indebtedness or
other obligation, including without limitation any agreement by a Person other
than the obligor with respect to such indebtedness or other obligation
(A) to pay or purchase such indebtedness or other obligation or to advance
or supply funds for the payment or purchase of such indebtedness or other
obligation, (B) to purchase, sell or lease (as lessee or lessor) property
of, to purchase or sell services from or to, to supply funds to or in any other
manner invest in, the obligor with respect to such indebtedness or other
obligation (including any agreement to pay for property or services of the
obligor irrespective of whether such property is received or such services are
rendered), primarily for the purpose of enabling the obligor to make payment of
such indebtedness or other obligation or to assure the holder or other obligee
of such indebtedness or other obligation against loss, or (C) otherwise to
assure the obligee of such indebtedness or other obligation against loss with
respect thereto, or (ii) any grant (or agreement in favor of the obligee of
such indebtedness or other obligation to grant such obligee, under any
circumstances) by a Person other than the obligor with respect to such
indebtedness or other obligation of a security interest in, or other lien on,
any property or other interest of such Person, whether or not such other Person
has not assumed or become liable for the payment of such indebtedness or other
obligation.

     

    “Immediate
Family Member” shall mean,
with respect to any individual, his or her spouse, parents, parents-in-law,
grandparents, descendants, nephews, nieces, brothers, sisters, brothers-in-law,
sisters-in-law, children (whether natural or adopted), children-in-law,
stepchildren, grandchildren and grandchildren-in-law.

     

    “Insolvency
Event” shall mean, with
respect to any specified Person, the occurrence of any of the following
events:

     

    (1)           the specified Person makes an assignment
for the benefit of creditors;

     

    (2)           the specified Person files a voluntary
petition for relief in any Insolvency Proceeding;

     

    (3)           the specified Person is adjudged
bankrupt or insolvent or there is entered against the specified Person an order
for relief in any Insolvency Proceeding;

     

    (4)           the specified Person files a petition or
answer seeking for the specified Person any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
statute, law, or regulation;

     

    (5)           the specified Person seeks, consents to,
or acquiesces in the appointment of a trustee, receiver or liquidator of the
specified Person or of all or any substantial part of the specified Person’s
properties;

     

    
      
         


      

      
        B-A-3

        
          

        

      

      
         


      

    

    


    (6)           the specified Person files an answer or
other pleading admitting or failing to contest the material allegations of a
petition filed against the specified Person in any proceeding described in
clauses (1) through (5);

     

    (7)           the specified Person becomes unable to
pay its obligations as they become due, or the sum of such specified Person’s
debts is greater than all of such Person’s property, at a fair valuation;
or

     

    (8)           within 90 days of any proceeding against
the specified Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any Law if the
proceeding has not been dismissed, or within 90 days after the appointment of a
trustee, receiver or liquidator for the specified Person or all or any
substantial part of the specified Person’s properties without the specified
Person’s agreement or acquiescence, which appointment is not vacated or stayed,
or if the appointment is stayed, for 90 days after the expiration of the stay if
the appointment is not vacated.

     

    “Insolvency
Proceeding” shall mean any
proceeding under Title 11 of the United States Code (11 U.S.C. §§101, et
seq.) or any proceeding under the statues, laws or regulations of any
jurisdiction involving any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief.

     

    “Institutional
Lender” shall mean a commercial bank or trust
company, a savings and loan association or an insurance
company.

     

    “Law” means any statute, law, ordinance,
code, regulation, rule, or other requirement of any Governmental
Authority.

     

    “Lien” shall mean any liens, security
interests, mortgages, deeds of trust, charges, claims, encumbrances,
restrictions, pledges, options, rights of first offer or first refusal and any
other rights or interests of others of any kind or nature, actual or contingent,
or other similar encumbrances of any nature whatsoever.

     

    “Liabilities” shall mean any Debt, liability, obligation of any kind
or nature (whether accrued or fixed, absolute or contingent or matured or
unmatured), loss, damage, cost or expense, including reasonable
attorneys’ fees and expenses and disbursements,
including those arising under any Law, Action or Order and those arising under
any contract.

     

    “Lightstone
REIT” shall mean Lightstone
Value Plus REIT, L.P.

     

    “LVP
OP” shall mean Lightstone Value Plus REIT,
L.P., a Delaware limited
partnership.

     

    “LVP OP Tax
Matters Agreement” shall
have the meaning ascribed to such term in the Contribution
Agreement.

     

    “Manager” shall have the meaning set forth in
the preamble.

     

    “Member” shall have the meaning set forth in
the preamble.  For the avoidance of any doubt, the Manager shall not
be deemed a “Member” for any purpose under this Agreement.

     

    
      
         


      

      
        B-A-4

        
          

        

      

      
         


      

    

    


    “Order” means any decision, judgment, order,
writ, injunction, decree, award or determination of any Governmental
Authority.

     

    “Parent
OP” means Simon Property
Group, L.P., a Delaware limited partnership.

     

    “Parent OP
Agreement” means the Eighth
Amended and Restated Limited Partnership Agreement of the Parent OP, as amended,
modified, supplemented or restated from time to time.

     

    “Parent OP
General Partner” means
Simon Property Group, Inc., a Delaware corporation.

     

    “Parent OP
Units” shall mean
(i) the interests in the Parent OP contributed to the Company pursuant to
the Contribution Agreement which entitle the Company to allocations and
distributions from Parent OP, and the rights of management, consent, approval,
or participation, if any, as provided in the Parent OP Agreement and
(ii) any interests in Parent OP issued in respect of a dividend or
distribution on (i).

     

    “Parent
REIT” means Simon Property
Group, Inc., a Delaware corporation.

     

    “Parent REIT
Shares” means the shares of
Common Stock, par value $0.0001 per share, of the Parent
REIT.

     

    “Percentage
Interest” means, in the
case of any Member, such Member’s portion of all outstanding Company Units,
expressed as a percentage, and adjusted from time to time in accordance with
this Agreement.

     

    “Person” shall mean any individual,
corporation, partnership (general or limited), limited liability company,
limited liability partnership, firm, joint venture, association, joint-stock
company, trust, estate, unincorporated organization, governmental or regulatory
body or other entity.

     

    “Pledge” shall mean granting of a Lien on
any Company
Unit.

     

    “Pro-DFJV” shall mean Pro-DFJV Holdings LLC, a Delaware limited liability
company.

     

    “Redeemed
Units” shall have the
meaning set forth in Section 6.2(a).

     

    “Redemption
Consideration” shall have
the meaning set forth in Section 6.2(b).

     

    “Redemption
Notice” shall have the
meaning set forth in Section 6.2(a).

     

    “Redemption
Right” shall have the
meaning set forth in Section 6.2(a).

     

    “Redemption
Settlement Date” shall have
the meaning set forth in Section 6.2(c).

     

    “Required
Distribution” shall mean
any such securities, dividends or distributions described in subsection (i),
(ii) or (iii) of Section 7.3.

     

    “Securities
Act” means the United
States Securities Act of 1933, as amended.

     

    
      
         


      

      
        B-A-5

        
          

        

      

      
         


      

    

    


    “Subsidiary” shall mean, with respect to any
specified Person, each of (i) any other Person not less than a majority of
the overall economic equity in which is owned, directly or indirectly through
one of more intermediaries, by such specified Person, and (ii) without
limitation of clause (i), any other Person who or which, directly or indirectly
through one or more intermediaries, is Controlled by such specified Person (it
being understood with respect to each of clauses (i) and (ii) that a
pledge for collateral security purposes of an equity interest in a Person shall
not be deemed to affect the ownership of such equity interest by the pledgor or
the Control of such Person so long as such pledgor continues to be entitled, in
all material respects, to all the voting power and all the income with respect
to such equity interest).

     

    “Successor” shall mean, with respect to a Member,
any future Member which is a direct or indirect transferee of the Company Units
of such Member.

     

    “Tax Matters
Member” shall have the
meaning set forth in Section 7.5

     

    “Transfer” means any direct or indirect sale,
assignment, alienation, gift, exchange, conveyance, transfer, pledge,
encumbrance, hypothecation, granting of a security interest or other disposition
or attempted disposition whatsoever, whether voluntary or involuntary of a
Member’s Company Units.

     

    “Treasury
Regulations” shall mean the
regulations promulgated by the United States Department of the Treasury pursuant
to and in respect of provisions of the Internal revenue Code of 1986, as
amended, and all references to sections of the Treasury Regulations shall
include any corresponding provision or provisions of succeeding, substitute,
proposed or final Treasury Regulations.

     

    “$” shall mean lawful currency of the
United States of America.

     

    
      
         


      

      
        B-A-6

        
          

        

      

      
         


      

    


    ANNEX B

     

    Company Unit Exercise
Notice

     

    _________,
20___            

    Marco LP Units, LLC

    225 West Washington
Street

    Indianapolis, Indiana
46204

    Attn:  
     James M. Barkley

     

    Re:          Marco
LP Units, LLC Conversion Notice

     

    Reference
is hereby made to that certain Limited Liability Company Operating Agreement of
Marco LP Units, LLC (the “Company”), dated as
of December [l], 2009 (the “Agreement”).  All
capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Agreement.

     

    This
letter constitutes a “Company Unit Exercise Notice” pursuant to Section 6.1(a)
of the Agreement.  The
undersigned Member hereby elects to exchange ______ of its Company Units
for the same number of Parent OP Units (and any securities issued by Parent OP
in respect of such Parent OP Units to the extent previously retained by the
Company) that such Member contributed to the Company, pursuant to the Contribution Agreement (the
“Conversion”).  The
Member acknowledges that upon the Conversion, the Member shall be obligated to
immediately exercise its right, pursuant to Article XI of the Parent OP
Agreement, to convert Parent OP Units into Parent REIT Shares or cash, at the
Parent REIT’s election.  The effective date of the Conversion shall be
the date hereof, and once delivered this Company Unit Exercise Notice shall be
irrevocable.

     

    
      
        
          	 
      	
                  Sincerely,

                	 
      
	 
      	 
      	 
      
	 
      	
                  [MEMBER]

                	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	 
      	 
      
	 
      	 
      	 
      
	 
      	
                     Name:

                	 
      
	 
      	
                     Title:

                	 
      


        

      

    

    Acknowledged
and Agreed:

     

    MARCO LP UNITS, LLC

     

    
      
        	
                By:

              	 
      	 
      
	
                     Name:

              	 
      
	
                     Title:

              	 
      


      

    


    
      
         


      

      
        B-B-1

        
          

        

      

      
         


      

    


    EXHIBIT F
– FORM OF EXERCISE OF NOTICE

    FORM OF
EXERCISE NOTICE

     

    [Limited
Partner], as of [date of exercise], hereby irrevocably (except as set forth in
the Agreement referred to below) elects, pursuant to the rights granted to it in
Section 11.1 of the Agreement of Limited Partnership of Simon Property
Group, L.P. (the “Agreement”) to convert of its Partnership units (as such term
is defined in the Agreement) into shares of common stock of Simon Property
Group, Inc. or cash, as selected by Simon Property
Group, Inc.

    


    
      
        	 
      	
                Limited
      Partner:

              
	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                (Printed
      Name)

              


      

    

     

    
      
         


      

      
        B-B-2

        
          

        

      

      
         


      

    


    ANNEX C

     

    Redemption Notice

     

    _________,
20__            

    [MEMBER]

    ________________

    ________________

    ________________

    Attn:   
    ________________

     

    Re:          Marco
LP Units, LLC Redemption Notice

     

    Reference
is hereby made to that certain Limited Liability Company Operating Agreement of
Marco LP Units, LLC (the “Company”), dated as
of December [l], 2009 (the “Agreement”).  All
capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Agreement.

     

    This
letter constitutes a “Redemption Notice” pursuant to Section 6.2(a)
of the Agreement.  The
Company hereby elects to redeem all of your Company Units in exchange for
the Parent OP Units held by the Company, which you contributed to the Company
(and any securities issued by Parent OP in respect of such Parent OP Units, to
the extent previously retained by the Company), pursuant to the Contribution Agreement (the
“Redemption”).  The
Company acknowledges that upon the Redemption, the Manager shall effect the
exchange of the Company Units for Parent OP Units, pursuant to Section 6.2 of
the Agreement.

     

    
      
        
          	 
      	
                  Sincerely,

                	 
      
	 
      	 
      	 
      
	 
      	
                  LP
      UNITS MANAGER, LLC

                	 
      
	 
      	 
      	 
      
	 
      	
                  By:

                	 
      	 
      
	 
      	
                       Name:

                	 
      
	 
      	
                       Title:

                	 
      


        

      

    

    Acknowledged
and Agreed:

    


    [MEMBER]

    


    
      
        	
                By:

              	 
      	 
      
	
                     Name:

              	 
      
	
                     Title:

              	 
      


      

    

     

    
      
         


      

      
        B-C-1

        
          

        

      

      
         


      

    


    SCHEDULE
I

     

    Members

     

    
      	
              Name and Address

            	 
      	
              Common

              Units

            	 
      	
              Parent OP Units

            	 
      	
              Property With

              Respect to Which

              the Parent Units

              Have Been Issued

            	 
      	
              Capital

              Account

              Balance as of

              [l], 2010

            
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                

            	 
      	
                

            	 
      	
                

            	 
      	
                

            	 
      


    

     

    
      
         


      

      
        B-I-1

        
          

        

      

      
         


      

    


    Exhibit C

     

    “Annex A

     

    
      
        	
                Owner

              	 
      	
                Percentage Owned in the 

                Other Group Companies

              
	 
      	 
      	 
      
	
                Lightstone
      Holdings

              	 
      	
                84.015%
      interest in Ewell

              
	 
      	 
      	 
      
	
                Pro-DFJV

              	 
      	
                14.26%
      interest in Mill Run

              
	 
      	 
      	 
      
	
                BRM

              	 
      	
                55.199%
      interest in Mill Run

              
	 
      	 
      	 
      
	
                LVP
      OP

              	
                  

              	
                22.54%
      interest in Mill Run”

              


      

    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Exhibit D

     

    “Annex D

     

    
      
        
          
            
              	
                      Contributors

                    	 	
                      Applicable Percentage Interest

                    	 
	 
      	 	 	 
	
                      Lightstone
      Holdings

                    	 	 	1.361	%
	
                      Pro-DFJV

                    	 	 	15.301	%
	
                      BRM

                    	 	 	16.888	%
	
                      LVP
      OP

                    	 	 	24.791	%
	
                      Lightstone
      Prime

                    	 	 	41.659	%
	
                      TOTAL

                    	 	 	100	%”


            

          

        

      

    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    Exhibit E

     

    “Annex G

     

    
      
        
          
            	
                    Contributors

                  	 	
                    Escrow Unit Payment 

                    Percentage Interest

                  	 
	
                    Lightstone
      Holdings

                  	 	 	1.413	%
	
                    Pro-DFJV

                  	 	 	13.879	%
	
                    BRM

                  	 	 	17.533	%
	
                    LVP
      OP

                  	 	 	22.487	%
	
                    Lightstone
      Prime

                  	 	 	44.688	%
	
                    TOTAL

                  	 	 	100	%”