EXECUTION COPY - nakedcapitalism.net

1 EXECUTION copy SIL VERPEAK LEGACY PENSION PARTNERS III, (A DELAWARE LIMITED PARTNERSHIP) TENTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP Dated as of January 24, 2011 The limited partnership interests (the "Interests") of Silverpeak Legacy Pension Partners III, have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), the securities laws of any state or any other applicable or securities laws, in each case in reliance upon exemptions from the registration requirements of the Securities Act and such laws. The Interests may be acquired for investment only, and neither the Interests nor any part thereof may be offered for sale, pledged, hypothecated, sold, assigned or transferred at any time except in compliance with (i) the Securities Act, any applicable state securities laws and any other applicable securities laws, (ii) the terms and conditions of this Agreement and (iii) the terms and conditions of the Subscription Agreement and the investment representations for the Interests.

2 The Interests will not be transferred of record except in compliance with such laws, this Agreement, the Subscription Agreement and the investment representations. Therefore, purchasers of the Interests will be required to bear the risk of their investment for an indefinite period of time. To Investors: In addition to the foregoing, be advised that the interests have not been registered under the Securities Act and may not be offered or sold in the United States or to Persons (other than distributors) unless the Interests are registered under the Securities Act or an exemption from the registration requirements of the Securities Act is available.

3 Hedging transactions (within the meaning of Regulation S under the Securities Act) involving the Interests may not be conducted unless in compliance with the Securities Act. DOC#: USL6437916V8 ARTICLE I Definitions .. 3 ARTICLE II General Provisions .. 19 Continuation of the Partnership .. 19 Name .. 19 Organizational Certificates and Other Filings .. 19 Purpose and Powers .. 19 Principal Place of Business .. 23 Registered Office and Registered .. 23 Term ' 23 Fiscal Year .. 23 Withdrawal oflnitial Limited partner .. 23 ARTICLE III Capital Contributions, Capital Accounts and Allocations.

4 23 Capital Contributions .. 23 Capital Accounts .. 31 Allocations to the Partners .. 33 Negative Capital Accounts; General partner Clawback .. 37 Limited partner Giveback .. 38 ARTICLE IV Distributions .. 40 Withdrawal of Capital .. 40 Cash Distributions .. 40 Distributions of Income from Permitted Temporary Investments and Other Income .. 43 Distributions in Kind .. 43 Tax Advances, Certain Tax Filings and Distributions .. 45 Final Distribution .. 47 General Distribution Provisions .. 48 Restricted Distributions .. 49 Unacceptable Investors .. 49 ARTICLE V Investment Criteria .. 49 Investment Criteria .. 49 Leverage Limitation.

5 50 Subscription Facility .. 50 ERISA Matters .. 51 ARTICLE VI Management.. 53 Relationship Among the General partner , the Investment Advisor and the Limited Partners .. 53 Liability of the Limited Partners .. 55 Investment Company Act; Advisers .. 55 DOC#: US!:6437916V8 TABLE OF CONTENTS Qualification .. 55 Delegation of Powers .. 55 Liability of the General partner .. 57 Indemnification .. 58 Organization of New Funds; Parallel Funds; Co-Investment Opportunities; Exclusivity; Alternative Investment Vehicle .. 60 Investor Advisory Committee .. 66 General partner as Limited partner .. 69 Meetings of the Partners.

6 69 Ownership .. 71 Confidentiality oflnformation .. 71 Business with Affiliates .. 72 Transfers oflnvestment Platforms .. 73 Limitations on the General partner .. 73 Key Group Event .. 7 4 UBIT .. 75 Code Section 83 Safe Harbor Election .. 75 ARTICLE VII Expenses and Management Fees .. 75 Administrative Expenses and Operating Expenses .. 7 5 Organizational Expenses .. 77 Management Fee .. 78 Disposition Fee .. 79 Breakup Fees .. 79 7 .6 Allocation of Expenses .. 79 ARTICLE VIII Books and Records and Reports to Partners .. 80 Records and Accounting .. 80 Audit and Report .. 81 Withholding .. 82 ARTICLE IX Transfers, Withdrawals and Default.

7 82 Transfer, Withdrawal or Removal of the General partner .. 82 Removal of the Investment Advisor .. 89 9 .3 Certain Restrictions on Transfers .. 90 Assignments by Limited Partners; Right of First Refusal .. 91 Substitute Limited Partners .. 93 Losses .. 94 Assignee's Rights .. 94 Defaulting partner .. 95 Further Actions .. 98 Admissions and Withdrawals Generally .. 98 11 Doc#: US1:6437916v8 TABLE OF CONTENTS 9 .11 Obligations of a Prior General partner .. 98 ARTICLE X Term and Dissolution of the Partnership .. 99 Term .. 99 Winding-Up .. 100 Final Distribution .. 101 Escrow Account .. 101 ARTICLE XI Miscellaneous.

8 102 Waiver of Partition .. 102 Power of Attorney .. 102 Amendments .. 102 Interest .. 104 Entire Agreement .. 104 Severability .. 104 Notices .. 105 GovemingLaw .. 105 Successors and Assigns .. 105 No Third-Party Beneficiaries .. 105 Counterparts .. 105 Headings; Gender; Time Periods; etc .. 105 Delivery of Certificate, etc .. 106 Further Assurances .. 106 Fund Experts .. 106 Jurisdiction; Venue; Waiver of Jury .. 106 Use of LBREP Marks .. 107 ANNEXES AND SCHEDULES Annex A AnnexB Annex C Doc#: US 1:64379 J 6v8 Partners' Capital Commitments and Business Addresses Investor Acknowledgment Form of Investment Advisory Agreement 111 TENTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF SILVERPEAK LEGACY PENSION PARTNERS III, (A Delaware Limited Partnership) This TENTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") of Silverpeak Legacy Pension Partners III, , a Delaware limited partnership (the "Partnership"), is made as of the 24th day of January, 2011 (the "Effective Date")

9 , by and among Lehman Brothers Real Estate Associates III, , a Delaware limited partnership, as general partner (the "General partner "), Silverpeak Real Estate Partners ., a Delaware limited partnership, as investment advisor (the "Investment Advisor"), and the parties whose names and business addresses are listed from time to time as limited partners on Annex A hereto, as limited partners. WHEREAS, the Partnership was originally formed under the name of Lehman Brothers Real Estate Pension Partners III, , pursuant to an Agreement of Limited Partnership of the Partnership, dated as of June 25, 2007, between the General partner and the Initial Limited partner (as defined below) (the "Initial Agreement"), and a Certificate of Limited Partnership of the Partnership, dated as of June 25, 2007, which was executed by the General partner and filed in the office of the Secretary of State of the State of Delaware on June 25, 2007.

10 WHEREAS, in connection with a Subsequent Closing (as defined below) held on November 30, 2007, the Initial Agreement was amended and restated by the parties thereto to permit the admission of the parties listed on Annex A thereto as limited partners and to make other modifications (the "Amended and Restated Agreement"); WHEREAS, in connection with a Subsequent Closing held on December 28, 2007, the Amended and Restated Agreement was amended and restated by the parties thereto to permit the admission of the parties listed on Annex A thereto as limited partners and to make other modifications (the "Second Amended and Restated Agreement"); WHEREAS, in connection with a Subsequent Closing held on March 5, 2008, the Second Amended and Restated Agreement was amended and restated by the parties thereto to permit the admission of the parties listed on Annex A thereto as limited partners and to make other modifications (the "Third Amended and Restated Agreement").