Unassociated Document


    AGREEMENT
OF LIMITED PARTNERSHIP

     

     

    OF

     

     

    EMPIRE
AMERICAN REALTY OPERATING PARTNERSHIP, LP

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      TABLE
OF CONTENTS

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            	 	 	
                                                                                    Page

                                                                                  
	 	 	 
	
                                                                                    ARTICLE
      1 DEFINED TERMS

                                                                                  	 	

                                                                                    1

                                                                                  
	 	 	 
	
                                                                                    ARTICLE
      2 ORGANIZATIONAL MATTERS

                                                                                  	 	

                                                                                    13

                                                                                  
	
                                                                                    2.1

                                                                                  	 	
                                                                                    Formation

                                                                                  	 	
                                                                                    13

                                                                                  
	
                                                                                    2.2

                                                                                  	 	
                                                                                    Name

                                                                                  	 	
                                                                                    14

                                                                                  
	
                                                                                    2.3

                                                                                  	 	
                                                                                    Registered
      Office and Agent; Principal Office

                                                                                  	 	
                                                                                    14

                                                                                  
	
                                                                                    2.4

                                                                                  	 	
                                                                                    Power
      of Attorney

                                                                                  	 	
                                                                                    14

                                                                                  
	
                                                                                    2.5

                                                                                  	 	
                                                                                    Term

                                                                                  	 	
                                                                                    16

                                                                                  
	 	 	 	 	 
	
                                                                                    ARTICLE
      3 PURPOSE

                                                                                  	 	

                                                                                    16

                                                                                  
	
                                                                                    3.1

                                                                                  	 	
                                                                                    Purpose
      and Business

                                                                                  	 	
                                                                                    16

                                                                                  
	
                                                                                    3.2

                                                                                  	 	
                                                                                    Powers

                                                                                  	 	
                                                                                    16

                                                                                  
	 	 	 	 	 
	
                                                                                    ARTICLE
      4 CAPITAL CONTRIBUTIONS

                                                                                  	 	

                                                                                    17

                                                                                  
	
                                                                                    4.1

                                                                                  	 	
                                                                                    Capital
      Contributions of the Partners

                                                                                  	 	
                                                                                    17

                                                                                  
	
                                                                                    4.2

                                                                                  	 	
                                                                                    Additional
      Funds; Restrictions on the General Partner

                                                                                  	 	
                                                                                    18

                                                                                  
	
                                                                                    4.3

                                                                                  	 	
                                                                                    Issuance
      of Additional Partnership Interests; Admission of Additional Limited
      Partners

                                                                                  	 	
                                                                                    19

                                                                                  
	
                                                                                    4.4

                                                                                  	 	
                                                                                    Contribution
      of Proceeds of Issuance of REIT Stock

                                                                                  	 	
                                                                                    20

                                                                                  
	
                                                                                    4.5

                                                                                  	 	
                                                                                    Repurchase
      of REIT Stock; Shares-In-Trust

                                                                                  	 	
                                                                                    20

                                                                                  
	
                                                                                    4.6

                                                                                  	 	
                                                                                    No
      Third-Party Beneficiary

                                                                                  	 	
                                                                                    21

                                                                                  
	
                                                                                    4.7

                                                                                  	 	
                                                                                    No
      Interest; No Return

                                                                                  	 	
                                                                                    21

                                                                                  
	
                                                                                    4.8

                                                                                  	 	
                                                                                    No
      Preemptive Rights.

                                                                                  	 	
                                                                                    21

                                                                                  
	 	 	 	 	 
	
                                                                                    ARTICLE
      5 DISTRIBUTIONS

                                                                                  	 	

                                                                                    22

                                                                                  
	
                                                                                    5.1

                                                                                  	 	
                                                                                    Distributions

                                                                                  	 	
                                                                                    22

                                                                                  
	
                                                                                    5.2

                                                                                  	 	
                                                                                    Qualification
      as a REIT

                                                                                  	 	
                                                                                    22

                                                                                  
	
                                                                                    5.3

                                                                                  	 	
                                                                                    Withholding

                                                                                  	 	
                                                                                    23

                                                                                  
	
                                                                                    5.4

                                                                                  	 	
                                                                                    Additional
      Partnership Interests

                                                                                  	 	
                                                                                    23

                                                                                  
	 	 	 	 	 
	
                                                                                    ARTICLE
      6 ALLOCATIONS

                                                                                  	 	

                                                                                    23

                                                                                  
	
                                                                                    6.1

                                                                                  	 	
                                                                                    Allocations

                                                                                  	 	
                                                                                    23

                                                                                  
	
                                                                                    6.2

                                                                                  	 	
                                                                                    Revisions
      to Allocations to Reflect Issuance of Partnership
Interests

                                                                                  	 	
                                                                                    23

                                                                                  
	 	 	 	 	 
	
                                                                                    ARTICLE
      7 MANAGEMENT AND OPERATIONS OF BUSINESS

                                                                                  	 	

                                                                                    23

                                                                                  
	
                                                                                    7.1

                                                                                  	 	
                                                                                    Management

                                                                                  	 	
                                                                                    23

                                                                                  
	
                                                                                    7.2

                                                                                  	 	
                                                                                    Certificate
      of Limited Partnership

                                                                                  	 	
                                                                                    28

                                                                                  
	
                                                                                    7.3

                                                                                  	 	
                                                                                    Reimbursement
      of the General Partner

                                                                                  	 	
                                                                                    28

                                                                                  
	
                                                                                    7.4

                                                                                  	 	
                                                                                    Outside
      Activities of the General Partner

                                                                                  	 	
                                                                                    29

                                                                                  
	
                                                                                    7.5

                                                                                  	 	
                                                                                    Contracts
      with Affiliates

                                                                                  	 	
                                                                                    30

                                                                                  
	
                                                                                    7.6

                                                                                  	 	
                                                                                    Indemnification

                                                                                  	 	
                                                                                    31

                                                                                  
	
                                                                                    7.7

                                                                                  	 	
                                                                                    Liability
      of the General Partner

                                                                                  	 	
                                                                                    33

                                                                                  
	
                                                                                    7.8

                                                                                  	 	
                                                                                    Other
      Matters Concerning the General Partner

                                                                                  	 	
                                                                                    34

                                                                                  
	
                                                                                    7.9

                                                                                  	 	
                                                                                    Title
      to Partnership Assets

                                                                                  	 	
                                                                                    35

                                                                                  


                                                                             

                                                                            
                                                                              
                                                                                
                                                                                

                                                                              

                                                                              
                                                                                i

                                                                                
                                                                                  

                                                                                

                                                                              

                                                                              
                                                                                
                                                                                

                                                                              

                                                                            

                                                                             

                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          
                                                                                                            
                                                                                                              
                                                                                                                
                                                                                                                  
                                                                                                                    
                                                                                                                      
                                                                                                                        
                                                                                                                          
                                                                                                                            	
                                                                                                                                    7.10

                                                                                                                                  	 	
                                                                                                                                    Reliance
      by Third Parties

                                                                                                                                  	 	
                                                                                                                                    35

                                                                                                                                  
	
                                                                                                                                    7.11

                                                                                                                                  	 	
                                                                                                                                    Loans
      By Third Parties

                                                                                                                                  	 	
                                                                                                                                    36

                                                                                                                                  
	 	 	 	 	 
	
                                                                                                                                    ARTICLE
      8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

                                                                                                                                  	 	

                                                                                                                                    36

                                                                                                                                  
	
                                                                                                                                    8.1

                                                                                                                                  	 	
                                                                                                                                    Limitation
      of Liability

                                                                                                                                  	 	
                                                                                                                                    36

                                                                                                                                  
	
                                                                                                                                    8.2

                                                                                                                                  	 	
                                                                                                                                    Management
      of Business

                                                                                                                                  	 	
                                                                                                                                    36

                                                                                                                                  
	
                                                                                                                                    8.3

                                                                                                                                  	 	
                                                                                                                                    Outside
      Activities of Limited Partners

                                                                                                                                  	 	
                                                                                                                                    36

                                                                                                                                  
	
                                                                                                                                    8.4

                                                                                                                                  	 	
                                                                                                                                    Return
      of Capital

                                                                                                                                  	 	
                                                                                                                                    37

                                                                                                                                  
	
                                                                                                                                    8.5

                                                                                                                                  	 	
                                                                                                                                    Rights
      of Limited Partners Relating to the Partnership

                                                                                                                                  	 	
                                                                                                                                    37

                                                                                                                                  
	
                                                                                                                                    8.6

                                                                                                                                  	 	
                                                                                                                                    Exchange
      Rights Agreements

                                                                                                                                  	 	
                                                                                                                                    38

                                                                                                                                  
	 	 	 	 	 
	
                                                                                                                                    ARTICLE
      9 BOOKS, RECORDS, ACCOUNTING AND REPORTS

                                                                                                                                  	 	

                                                                                                                                    38

                                                                                                                                  
	
                                                                                                                                    9.1

                                                                                                                                  	 	
                                                                                                                                    Records
      and Accounting

                                                                                                                                  	 	
                                                                                                                                    38

                                                                                                                                  
	
                                                                                                                                    9.2

                                                                                                                                  	 	
                                                                                                                                    Fiscal
      Year

                                                                                                                                  	 	
                                                                                                                                    38

                                                                                                                                  
	
                                                                                                                                    9.3

                                                                                                                                  	 	
                                                                                                                                    Reports

                                                                                                                                  	 	
                                                                                                                                    38

                                                                                                                                  
	 	 	 	 	 
	
                                                                                                                                    ARTICLE
      10 TAX MATTERS

                                                                                                                                  	 	

                                                                                                                                    39

                                                                                                                                  
	
                                                                                                                                    10.1

                                                                                                                                  	 	
                                                                                                                                    Preparation
      of Tax Returns

                                                                                                                                  	 	
                                                                                                                                    39

                                                                                                                                  
	
                                                                                                                                    10.2

                                                                                                                                  	 	
                                                                                                                                    Tax
      Elections

                                                                                                                                  	 	
                                                                                                                                    39

                                                                                                                                  
	
                                                                                                                                    10.3

                                                                                                                                  	 	
                                                                                                                                    Tax
      Matters Partner

                                                                                                                                  	 	
                                                                                                                                    40

                                                                                                                                  
	
                                                                                                                                    10.4

                                                                                                                                  	 	
                                                                                                                                    Organizational
      Expenses

                                                                                                                                  	 	
                                                                                                                                    41

                                                                                                                                  
	
                                                                                                                                    10.5

                                                                                                                                  	 	
                                                                                                                                    Withholding

                                                                                                                                  	 	
                                                                                                                                    41

                                                                                                                                  
	 	 	 	 	 
	
                                                                                                                                    ARTICLE
      11 TRANSFERS AND WITHDRAWALS

                                                                                                                                  	 	

                                                                                                                                    42

                                                                                                                                  
	
                                                                                                                                    11.1

                                                                                                                                  	 	
                                                                                                                                    Transfer

                                                                                                                                  	 	
                                                                                                                                    42

                                                                                                                                  
	
                                                                                                                                    11.2

                                                                                                                                  	 	
                                                                                                                                    Transfer
      of the General Partner’s General Partner Interest

                                                                                                                                  	 	
                                                                                                                                    43

                                                                                                                                  
	
                                                                                                                                    11.3

                                                                                                                                  	 	
                                                                                                                                    Limited
      Partners’ Rights to Transfer

                                                                                                                                  	 	
                                                                                                                                    45

                                                                                                                                  
	
                                                                                                                                    11.4

                                                                                                                                  	 	
                                                                                                                                    Substituted
      Limited Partners

                                                                                                                                  	 	
                                                                                                                                    46

                                                                                                                                  
	
                                                                                                                                    11.5

                                                                                                                                  	 	
                                                                                                                                    Assignees

                                                                                                                                  	 	
                                                                                                                                    47

                                                                                                                                  
	
                                                                                                                                    11.6

                                                                                                                                  	 	
                                                                                                                                    General
      Provisions

                                                                                                                                  	 	
                                                                                                                                    47

                                                                                                                                  
	 	 	 	 	 
	
                                                                                                                                    ARTICLE
      12 ADMISSION OF PARTNERS

                                                                                                                                  	 	
                                                                                                                                    49

                                                                                                                                  
	
                                                                                                                                    12.1

                                                                                                                                  	 	
                                                                                                                                    Admission
      of Successor General Partner

                                                                                                                                  	 	
                                                                                                                                    49

                                                                                                                                  
	
                                                                                                                                    12.2

                                                                                                                                  	 	
                                                                                                                                    Admission
      of Additional Limited Partners

                                                                                                                                  	 	
                                                                                                                                    50

                                                                                                                                  
	
                                                                                                                                    12.3

                                                                                                                                  	 	
                                                                                                                                    Amendment
      of Agreement and Certificate of Limited Partnership

                                                                                                                                  	 	
                                                                                                                                    51

                                                                                                                                  
	 	 	 	 	 
	
                                                                                                                                    ARTICLE
      13 DISSOLUTION, LIQUIDATION AND TERMINATION

                                                                                                                                  	 	
                                                                                                                                    51

                                                                                                                                  
	
                                                                                                                                    13.1

                                                                                                                                  	 	
                                                                                                                                    Dissolution

                                                                                                                                  	 	
                                                                                                                                    51

                                                                                                                                  
	
                                                                                                                                    13.2

                                                                                                                                  	 	
                                                                                                                                    Winding
      Up

                                                                                                                                  	 	
                                                                                                                                    52

                                                                                                                                  
	
                                                                                                                                    13.3

                                                                                                                                  	 	
                                                                                                                                    No
      Obligation to Contribute Deficit

                                                                                                                                  	 	
                                                                                                                                    54

                                                                                                                                  
	
                                                                                                                                    13.4

                                                                                                                                  	 	
                                                                                                                                    Rights
      of Limited Partners

                                                                                                                                  	 	
                                                                                                                                    54

                                                                                                                                  
	
                                                                                                                                    13.5

                                                                                                                                  	 	
                                                                                                                                    Notice
      of Dissolution

                                                                                                                                  	 	
                                                                                                                                    54

                                                                                                                                  
	
                                                                                                                                    13.6

                                                                                                                                  	 	
                                                                                                                                    Termination
      of Partnership and Cancellation of Certificate of Limited
      Partnership

                                                                                                                                  	 	
                                                                                                                                    54

                                                                                                                                  
	
                                                                                                                                    13.7

                                                                                                                                  	 	
                                                                                                                                    Reasonable
      Time for Winding-Up

                                                                                                                                  	 	
                                                                                                                                    55

                                                                                                                                  
	
                                                                                                                                    13.8

                                                                                                                                  	 	
                                                                                                                                    Waiver
      of Partition

                                                                                                                                  	 	
                                                                                                                                    55

                                                                                                                                  


                                                                                                                          

                                                                                                                        

                                                                                                                      

                                                                                                                    

                                                                                                                  

                                                                                                                

                                                                                                              

                                                                                                            

                                                                                                          

                                                                                                        

                                                                                                      

                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        ii

        
          

        

      

      
        
        

      

    

     

    
      	
              ARTICLE
      14 AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS

            	 	

              55

            
	
              14.1

            	 	
              Amendments

            	 	
              55

            
	
              14.2

            	 	
              Meetings
      of the Partners

            	 	
              56

            
	 	 	 	 	 
	
              ARTICLE
      15 GENERAL PROVISIONS

            	 	
              57

            
	
              15.1

            	 	
              Addresses
      and Notice

            	 	
              57

            
	
              15.2

            	 	
              Titles
      and Captions

            	 	
              57

            
	
              15.3

            	 	
              Pronouns
      and Plurals

            	 	
              58

            
	
              15.4

            	 	
              Further
      Action

            	 	
              58

            
	
              15.5

            	 	
              Binding
      Effect

            	 	
              58

            
	
              15.6

            	 	
              Creditors

            	 	
              58

            
	
              15.7

            	 	
              Waiver

            	 	
              58

            
	
              15.8

            	 	
              Counterparts

            	 	
              58

            
	
              15.9

            	 	
              Applicable
      Law

            	 	
              58

            
	
              15.10

            	 	
              Invalidity
      of Provisions

            	 	
              58

            
	
              15.11

            	 	
              Entire
      Agreement

            	 	
              59

            
	
              15.12

            	 	
              Merger

            	 	
              59

            
	
              15.13

            	 	
              No
      Rights as Stockholders

            	 	
              59

            


    

     

    EXHIBITS

     

    Exhibit
A    –    Partners’ Contributions and Partnership
Interests

    Exhibit
B    –    Allocations

    Exhibit
C    –    Exchange Rights Agreement for
Partnership Units

    Exhibit
D    –    Certificate of Limited
Partnership

     

    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

     

    AGREEMENT
OF LIMITED PARTNERSHIP

    OF

    EMPIRE
AMERICAN REALTY OPERATING PARTNERSHIP, LP

     

    THIS
AGREEMENT OF LIMITED PARTNERSHIP OF EMPIRE AMERICAN REALTY OPERATING
PARTNERSHIP, LP (this “Agreement”), dated as
of October 15, 2009, is entered into by and among EMPIRE AMERICAN REALTY TRUST,
INC., a Maryland corporation, as general partner (the “General Partner”),
and EMPIRE AMERICAN ADVISORS, LLC, a Delaware limited liability company, as
Limited Partner (the “Initial Limited
Partner”), and the Limited Partners party hereto from time to
time.

     

    WHEREAS,
the General Partner formed Empire American Realty Operating Partnership, LP (the
“Partnership”)
as a limited partnership on March 27, 2009 pursuant to the Revised Uniform
Limited Partnership Act of the State of Delaware and filed a certificate of
limited partnership with the Secretary of State of the State of
Delaware;

     

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

     

    ARTICLE
1

    DEFINED
TERMS

     

    The
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, applied to the terms used in this
Agreement.

     

    “Act”
means the Delaware Revised Uniform Limited Partnership Act, as amended from time
to time, and any successor to such statute.

     

    “Additional
Limited Partner” means a Person that has executed and delivered an
additional limited partner signature page in the form attached hereto, has been
admitted to the Partnership as a Limited Partner pursuant to Section 4.3 hereof
and that is shown as such on the books and records of the
Partnership.

     

    “Adjusted
Capital Account Deficit” means with respect to any Partner, the negative
balance, if any, in such Partner’s Capital Account as of the end of any relevant
fiscal year, determined after giving effect to the following
adjustments:

     

    (a)           credit
to such Capital Account any portion of such negative balance which such Partner
(i) is treated as obligated to restore to the Partnership pursuant to the
provisions of Section 1.704-1(b)(2)(ii)(c) of the Regulations, or (ii) is deemed
to be obligated to restore to the Partnership pursuant to the penultimate
sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations;
and

     

    (b)           debit
to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4),
(5) and (6) of the Regulations.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Advisory
Agreement” means the Advisory Agreement among the Partnership and the
General Partner, as advisees, and the Initial Limited Partner, as
advisor.

     

    “Affiliate”
means,

     

    (a)           with
respect to any individual Person, any member of the Immediate Family of such
Person or a trust established for the benefit of such member, or

     

    (b)           with
respect to any Entity, any Person which, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, any such Entity. For purposes of this definition, “control,” when used
with respect to a any Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.

     

    “Agreement”
means this Agreement of Limited Partnership, as originally executed and as
amended, modified, supplemented or restated from time to time, as the context
requires.

     

    “Articles
of Incorporation” means the General Partner’s Articles of Incorporation,
filed with the Maryland State Department of Assessments and Taxation, or other
organizational document governing the General Partner, as amended, modified,
supplemented or restated from time to time.

     

    “Assignee”
means a Person to whom one or more Partnership Units have been transferred in a
manner permitted under this Agreement, but who has not become a Substituted
Limited Partner, and who has the rights set forth in Section 11.5.

     

    “Associate
Limited Partner” means Empire American ALP, LLC, a Delaware limited
liability company, as the holder of the 15% interest in distributions described
in Section 5.1(b)(ii)(A).

     

    “Available
Cash” means, with respect to the applicable period of measurement (i.e.,
any period beginning on the first day of the fiscal year, quarter or other
period commencing immediately after the last day of the fiscal year, quarter or
other applicable period for purposes of the prior calculation of Available Cash
for or with respect to which a distribution has been made, and ending on the
last day of the fiscal year, quarter or other applicable period immediately
preceding the date of the calculation), the excess, if any, as of such date,
of

     

    (a)           the
gross cash receipts of the Partnership for such period from all sources
whatsoever, including, without limitation, the following:

     

    (i)           all
rents, revenues, income and proceeds derived by the Partnership from its
operations, including, without limitation, distributions received by the
Partnership from any Entity in which the Partnership has an
interest;

     

    (ii)          all
proceeds and revenues received by the Partnership on account of any sales of any
Partnership property or as a refinancing of or payment of principal, interest,
costs, fees, penalties or otherwise on account of any borrowings or loans made
by the Partnership or financings or refinancings of any property of the
Partnership;

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (iii)         the
amount of any insurance proceeds and condemnation awards received by the
Partnership;

     

    (iv)         all
capital contributions and loans received by the Partnership from its
Partners;

     

    (v)          all
cash amounts previously reserved by the Partnership, to the extent such amounts
are no longer needed for the specific purposes for which such amounts were
reserved; and

     

    (vi)         the
proceeds of liquidation of the Partnership’s property in accordance with this
Agreement;

     

    over

     

    (b)           the
sum of the following:

     

    (i)           all
operating costs and expenses, including taxes and other expenses of the
properties directly and indirectly held by the Partnership and capital
expenditures made during such period (without deduction, however, for any
capital expenditures, charges for Depreciation or other expenses not paid in
cash or expenditures from reserves described in (viii) below);

     

    (ii)          all
costs and expenses expended or paid during such period in connection with the
sale or other disposition, or financing or refinancing, of the property directly
or indirectly held by the Partnership or the recovery of insurance or
condemnation proceeds;

     

    (iii)         all
fees provided for under this Agreement;

     

    (iv)         all
debt service, including principal and interest, paid during such period on all
indebtedness (including under any line of credit) of the
Partnership;

     

    (v)          all
capital contributions, advances, reimbursements, loans or similar payments made
to any Person in which the Partnership has an interest;

     

    (vi)         all
loans made by the Partnership in accordance with the terms of this
Agreement;

     

    (vii)        all
reimbursements to the General Partner or its Affiliates during such period;
and

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (viii)       the
amount of any new reserve or increase in reserves established during such period
which the General Partner determines is necessary or appropriate in its sole and
absolute discretion.

     

    Notwithstanding
the foregoing, Available Cash shall not include any cash received or reductions
in reserves, or take into account any disbursements made or reserves
established, after commencement of the dissolution and liquidation of the
Partnership.

     

    “Business
Combination” has the meaning set forth in Section
7.1(a)(iii)(C).

     

    “Capital
Account” means with respect to any Partner, the Capital Account
maintained for such Partner in accordance with the following
provisions:

     

    (a)           to
each Partner’s Capital Account there shall be credited

     

    (i)           such
Partner’s Capital Contributions;

     

    (ii)          such
Partner’s distributive share of Net Income and any items in the nature of income
or gain which are specially allocated to such Partner pursuant to Paragraphs 1
and 2 of Exhibit B and

     

    (iii)         the
amount of any Partnership liabilities assumed by such Partner or which are
secured by any asset distributed to such Partner;

     

    (b)           to
each Partner’s Capital Account there shall be debited

     

    (i)           the
amount of cash and the Gross Asset Value of any property distributed to such
Partner pursuant to any provision of this Agreement,

     

    (ii)          such
Partner’s distributive share of Net Losses and any items in the nature of
expenses or losses which are specially allocated to such Partner pursuant to
Paragraphs 1 and 2 of Exhibit B and

     

    (iii)         the
amount of any liabilities of such Partner assumed by the Partnership or which
are secured by any asset contributed by such Partner to the Partnership;
and

     

    (c)           in
the event all or a portion of a Partnership Interest is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
Partnership Interest.

     

    The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Sections 1.704-1(b)
and 1.704-2 of the Regulations, and shall be interpreted and applied in a manner
consistent with such Regulations. In the event the General Partner shall
reasonably determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed assets or which are assumed by the Partnership, the
General Partner or any Limited Partner) are computed in order to comply with
such Regulations, the General Partner may make such modification; provided that
it would not cause the amounts distributable to any Partner pursuant to Article
13 hereof upon the dissolution of the Partnership to vary from the amount
contemplated as set forth in Section 2(g) of Exhibit B.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    “Capital
Contribution” means, with respect to any Partner, any cash, cash
equivalents or the Gross Asset Value of property which such Partner contributes
or is deemed to contribute to the Partnership pursuant to Article 4
hereof.

     

    “Capital
Proceeds” means Available Cash attributable to any Capital
Transaction.

     

    “Capital
Transaction” means any sale, or other disposition (other than a deemed
disposition pursuant to Section 708(b)(1)(B) and the regulations thereunder) of
all or substantially all of the assets and properties of the Partnership or a
related series of transactions that, taken together, result in the sale or other
disposition of all or substantially all of the assets and properties of the
Partnership.

     

    “Cash
Available for Distribution” means the Available Cash other than Available
Cash attributable to a Capital Transaction.

     

    “Certificate”
means the Certificate of Limited Partnership relating to the Partnership to be
filed in the form of Exhibit D hereto as soon as practicable after the date
hereof in the office of the Delaware Secretary of State, as amended from time to
time in accordance with the terms hereof and the Act.

     

    “Code”
means the Internal Revenue Code of 1986, as amended and in effect from time to
time, as interpreted by the applicable regulations thereunder. Any reference
herein to a specific section or sections of the Code shall be deemed to include
a reference to any corresponding provision of future law.

     

    “Common
Stock” means a share of the common stock of the General Partner, $.01 par
value. Common Stock may be issued in one or more classes or series in accordance
with the terms of the Articles of Incorporation. If there is more than one class
or series of Common Stock, the term “Common Stock” shall, as the context
requires, be deemed to refer to the class or series of Common Stock that
correspond to the class or series of Partnership Interests for which the
reference to Common Stock is made.

     

    “Common
Stock Amount” has the meaning set forth in the Exchange Rights
Agreements.

     

    “Consent”
means the consent or approval of a proposed action by a Partner given in
accordance with Section 14.2 hereof.

     

    “Consent
of the Limited Partners” means the Consent of Limited Partners (excluding
for this purpose any Partnership Interests held by the General Partner, any
other Person of which they own or control more than fifty percent (50%) of the
voting interests and any Person directly or indirectly owning or controlling
more than fifty percent (50%) of the outstanding voting interests of the General
Partner) holding Percentage Interests that are greater than fifty percent (50%)
of the aggregate Percentage Interest of all Limited Partners who are not
excluded for the purposes hereof.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    “Contributed
Property” means each property, partnership interest, contract right or
other asset, in such form as may be permitted by the Act, contributed or deemed
contributed to the Partnership by any Partner, including any interest in any
successor partnership occurring as a result of a termination of the Partnership
pursuant to Section 708 of Code.

     

    “Cumulative
Non-Compound Return” means the percentage resulting from
dividing:  (i) the total amount of dividends and distributions
paid by the General Partner to the Stockholders or the total amount of
distributions made by the Partnership to the Limited Partners, in each case
reduced by distributions from the sale or refinancing of properties, from the
Effective Date until the Distribution Date, by (ii) the product
of (a) the weighted average Net Investment for such period (calculated on a
daily basis), and (b) the number of years (including the fractions thereof)
elapsed from the Effective Date until the Distribution Date (based on a year of
365 days).

     

    “Debt”
means, as to any Person, as of any date of determination, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of property
or services; (b) all amounts owed by such Person to banks or other Persons
in respect of reimbursement obligations under letters of credit, surety bonds
and other similar instruments guaranteeing payment or other performance of
obligations by such Person; (c) all indebtedness for borrowed money or for the
deferred purchase price of property or services secured by any lien on any
property owned by such Person, to the extent attributable to such Person’s
interest in such property, even though such Person has not assumed or become
liable for the payment thereof; and (d) obligations of such Person incurred in
connection with entering into a lease which, in accordance with generally
accepted accounting principles, should be capitalized.

     

    “Depreciation”
means, with respect to any asset of the Partnership for any fiscal year or other
period, the depreciation, depletion, amortization or other cost recovery
deduction, as the case may be, allowed or allowable for federal income tax
purposes in respect of such asset for such fiscal year or other period;
provided, however, that except as otherwise provided in Section 1.704-2 of the
Regulations, if there is a difference between the Gross Asset Value (including
the Gross Asset Value, as increased pursuant to paragraph (d) of the definition
of Gross Asset Value) and the adjusted tax basis of such asset at the beginning
of such fiscal year or other period, Depreciation for such asset shall be an
amount that bears the same ratio to the beginning Gross Asset Value of such
asset as the federal income tax depreciation, depletion, amortization or other
cost recovery deduction for such fiscal year or other period bears to the
beginning adjusted tax basis of such asset; provided, further, that if the
federal income tax depreciation, depletion, amortization or other cost recovery
deduction for such asset for such fiscal year or other period is zero,
Depreciation of such asset shall be determined with reference to the beginning
Gross Asset Value of such asset using any reasonable method selected by the
General Partner.

     

    “Distribution
Date” has the meaning set forth in Section 5.1(a).

     

    “Effective
Date” means the date of first closing of the offering pursuant to the
Registration Statement on Form S-11.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    “Entity”
means any general partnership, limited partnership, corporation, joint venture,
trust, business trust, real estate investment trust, limited liability company,
limited liability partnership, cooperative or association.

     

    “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time (or any corresponding provisions of succeeding laws).

     

    “Exchange
Factor” has the meaning set forth in the Exchange Rights
Agreements.

     

    “Exchange
Right” has the meaning set forth in the Exchange Rights
Agreements.

     

    “Exchange
Rights Agreements” has the meaning set forth in Section 8.6.

     

    “First
Level Return” means a Cumulative Non-Compounded Return of 7% per year on
the Net Investment of the Limited Partners and the Stockholders.

     

    “General
Partner” means Empire American Realty Trust, Inc., a Maryland
corporation, and any successor as general partner of the
Partnership.

     

    “General
Partner Interest” means a Partnership Interest held by the General
Partner, in its capacity as general partner. A General Partner Interest may be
expressed as a number of Partnership Units.

     

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

     

    (a)           the
initial Gross Asset Value of any asset contributed by a Partner to the
Partnership shall be the gross fair market value of such asset, without
reduction for liabilities, as determined by the contributing Partner and the
Partnership on the date of contribution thereof;

     

    (b)           if
the General Partner determines that an adjustment is necessary or appropriate to
reflect the relative economic interests of the Partners, the Gross Asset Values
of all Partnership assets shall be adjusted in accordance with Sections
1.704-1(b)(2)(iv)(f) and (g) of the Regulations to equal their respective gross
fair market values, without reduction for liabilities, as reasonably determined
by the General Partner, as of the following times:

     

    (i)           a
Capital Contribution (other than a de minimis Capital
Contribution) to the Partnership by a new or existing Partner as consideration
for a Partnership Interest; or

     

    (ii)          the
distribution by the Partnership to a Partner of more than a de minimis amount of
Partnership assets as consideration for the repurchase of a Partnership
Interest; or

     

    (iii)         the
liquidation of the Partnership within the meaning of Section
1.704-1(b)(2)(ii)(g) of the Regulations;

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    (c)           the
Gross Asset Values of Partnership assets distributed to any Partner shall be the
gross fair market values of such assets (taking Section 7701(g) of the Code into
account) without reduction for liabilities, as determined by the General Partner
as of the date of distribution; and

     

    (d)           the
Gross Asset Values of Partnership assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such assets pursuant to
Sections 734(b) or 743(b) of the Code, but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to
Section 1.704-1(b)(2)(iv)(m) of the Regulations (as set forth in Exhibit B);
provided, however, that Gross Asset Values shall not be adjusted pursuant to
this paragraph (d) to the extent that the General Partner determines that an
adjustment pursuant to paragraph (b) above is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment
pursuant to this paragraph (d).

     

    At all
times, Gross Asset Values shall be adjusted by any Depreciation taken into
account with respect to the Partnership’s assets for purposes of computing Net
Income and Net Loss.

     

    “Incapacity”
or “Incapacitated”
means,

     

    (a)           as
to any individual who is a Partner, death, total physical disability or entry by
a court of competent jurisdiction adjudicating him incompetent to manage his
person or his estate;

     

    (b)           as
to any corporation which is a Partner, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its
charter;

     

    (c)           as
to any partnership which is a Partner, the dissolution and commencement of
winding up of the partnership;

     

    (d)           as
to any limited liability company which is a Partner, the dissolution and
commencement of winding up of the limited liability company;

     

    (e)           as
to any estate which is a Partner, the distribution by the fiduciary of the
estate’s entire interest in the Partnership;

     

    (f)           
as to any trustee of a trust which is a Partner, the termination of the trust
(but not the substitution of a new trustee); or

     

    (g)           as
to any Partner, the bankruptcy of such Partner, which shall be deemed to have
occurred when

     

    (i)           the
Partner commences a voluntary proceeding seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect;

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    (ii)          the
Partner is adjudged as bankrupt or insolvent, or a final and nonappealable order
for relief under any bankruptcy, insolvency or similar law now or hereafter in
effect has been entered against the Partner;

     

    (iii)         the
Partner executes and delivers a general assignment for the benefit of the
Partner’s creditors;

     

    (iv)         the
Partner files an answer or other pleading admitting or failing to contest the
material allegations of a petition filed against the Partner in any proceeding
of the nature described in clause (ii) above;

     

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

     

    (vi)         any
proceeding seeking liquidation, reorganization or other relief of or against
such Partner under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within one hundred twenty (120) days
after the commencement thereof;

     

    (vii)        the
appointment without the Partner’s consent or acquiescence of a trustee, receiver
or liquidator has not been vacated or stayed within ninety (90) days of such
appointment; or

     

    (viii)       an
appointment referred to in clause (vii) which has been stayed is not vacated
within ninety (90) days after the expiration of any such stay.

     

    “Indemnitee”
means

     

    (a)           any
Person made a party to a proceeding by reason of its status as

     

    (i)           the
General Partner,

     

    (ii)          a
Limited Partner,

     

    (iii)         an
investment advisor to the General Partner,

     

    (iv)         a
trustee, director or officer of the Partnership, the General Partner, or the
investment advisor to the General Partner, or

     

    (v)          a
director, trustee, member or officer of any other Entity, each Person serving in
such capacity at the request of the Partnership or the General Partner,
or

     

    (vi)         his
or its liabilities, pursuant to a loan guarantee or otherwise, for any
indebtedness of the Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness which the Partnership or any Subsidiary of
the Partnership has assumed or taken assets subject to); and

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    (b)           such
other Persons (including Affiliates of the General Partner, a Limited Partner or
the Partnership) as the General Partner may designate from time to time (whether
before or after the event giving rise to potential liability), in its sole and
absolute discretion.

     

    “Initial
Limited Partner” means the Empire American Advisors, LLC.

     

    “IRS”
shall mean the Internal Revenue Service of the United States.

     

    “Lien”
means any lien, security interest, mortgage, deed of trust, charge, claim,
encumbrance, pledge, option, right of first offer or first refusal and any other
right or interest of others of any kind or nature, actual or contingent, or
other similar encumbrance of any nature whatsoever.

     

    “Limited
Partner” means, prior to the admission of the first Additional Limited
Partner to the Partnership, the Initial Limited Partner, and thereafter any
Person named as a Limited Partner in Exhibit A, as such Exhibit may be amended
from time to time, upon the execution and delivery by such Person of an
additional limited partner signature page, or any Substituted Limited Partner or
Additional Limited Partner, in such Person’s capacity as a Limited Partner of
the Partnership.

     

    “Limited
Partner Interest” means a Partnership Interest of a Limited Partner in
the Partnership representing a fractional part of the Partnership Interests of
all Partners and includes any and all benefits to which the holder of such a
Partnership Interest may be entitled, as provided in this Agreement, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement. A Limited Partner Interest may be expressed as a number of
Partnership Units.

     

    “Liquidating
Event” has the meaning set forth in Section 13.1 hereof.

     

    “Liquidator”
has the meaning set forth in Section 13.2 hereof.

     

    “Net
Income” or “Net
Loss” means, for each fiscal year or other applicable period, an amount
equal to the Partnership’s taxable income or loss for such year or period as
determined for federal income tax purposes by the General Partner, determined in
accordance with Section 703(a) of the Code (for this purpose, all items of
income, gain, loss or deduction required to be stated separately pursuant to
Section 703(a) of the Code shall be included in taxable income or loss),
adjusted as follows:

     

    (a)           by
including as an item of gross income any tax-exempt income received by the
Partnership and not otherwise taken into account in computing Net Income or Net
Loss;

     

    (b)           by
treating as a deductible expense any expenditure of the Partnership described in
Section 705(a)(2)(B) of the Code (or which is treated as a Section 705(a)(2)(B)
expenditure pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations) and not
otherwise taken into account in computing Net Income or Net Loss, including
amounts paid or incurred to organize the Partnership (unless an election is made
pursuant to Section 709(b) of the Code) or to promote the sale of interests in
the Partnership and by treating deductions for any losses incurred in connection
with the sale or exchange of Partnership property disallowed pursuant to Section
267(a)(1) or 707(b) of the Code as expenditures described in Section
705(a)(2)(B) of the Code;

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    (c)           by
taking into account Depreciation in lieu of depreciation, depletion,
amortization and other cost recovery deductions taken into account in computing
taxable income or loss;

     

    (d)           by
computing gain or loss resulting from any disposition of Partnership property
with respect to which gain or loss is recognized for federal income tax purposes
by reference to the Gross Asset Value of such property rather than its adjusted
tax basis;

     

    (e)           in
the event of an adjustment of the Gross Asset Value of any Partnership asset
which requires that the Capital Accounts of the Partnership be adjusted pursuant
to Sections 1.704-1(b)(2)(iv)(e), (f) and (g) of the Regulations, by taking into
account the amount of such adjustment as if such adjustment represented
additional Net Income or Net Loss pursuant to Exhibit B; and

     

    (f)           by
not taking into account in computing Net Income or Net Loss items separately
allocated to the Partners pursuant to Paragraphs 1 and 2 of Exhibit
B.

     

    “Net
Investment” means (i) as it relates to the Stockholders, the original
issue price paid by such stockholders for the purchase of Common Stock; and (ii)
as it relates to the Limited Partners the total amount of Capital Contributions;
in each case reduced by distributions from the sale or refinancing of
properties.

     

    “Nonrecourse
Deductions” has the meaning set forth in Sections 1.704-2(b)(1) and
1.704-2(c) of the Regulations.

     

    “Nonrecourse
Liabilities” has the meaning set forth in Section 1.704-2(b)(3) of the
Regulations.

     

    “Partner”
means the General Partner or a Limited Partner, and “Partners” means the General
Partner and the Limited Partners collectively.

     

    “Partner
Minimum Gain” means an amount, with respect to each Partner Nonrecourse
Debt, equal to the Partnership Minimum Gain that would result if such Partner
Nonrecourse Debt were treated as a Nonrecourse Liability, determined in
accordance with Regulations Section 1.704-2(i)(3).

     

    “Partner
Nonrecourse Debt” has the meaning set forth in Regulations Section
1.704-2(b)(4).

     

    “Partner
Nonrecourse Deductions” has the meaning set forth in Regulations Section
1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with respect to
a Partner Nonrecourse
Debt for a Partnership taxable year shall be determined in accordance with the
rules of Regulations Section 1.704-2(i)(2).

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    “Partnership”
means the limited partnership formed under the Act and pursuant to this
Agreement, and any successor thereto.

     

    “Partnership
Interest” means an ownership interest in the Partnership representing a
Capital Contribution by either a Limited Partner or the General Partner and
includes any and all benefits to which the holder of such a Partnership Interest
may be entitled as provided in this Agreement, together with all obligations of
such Person to comply with the terms and provisions of this Agreement. A
Partnership Interest may be expressed as a number of Partnership
Units.

     

    “Partnership
Minimum Gain” has the meaning set forth in Regulations Section
1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as any net
increase or decrease in a Partnership Minimum Gain, for a Partnership taxable
year shall be determined in accordance with the rules of Regulations Section
1.704-2(d).

     

    “Partnership
Record Date” means the record date established by the General Partner for
a distribution pursuant to Section 5.1(a) hereof, which record date shall be the
same as the record date established by the General Partner for a distribution to
its stockholders of some or all of its portion of such
distribution.

     

    “Partnership
Unit” means a fractional, undivided share of the Partnership Interests of
all Partners issued pursuant to Sections 4.1, 4.2 and 4.3 and includes any
classes or series of Partnership Units established after the date hereof. The
number of Partnership Units outstanding and the Percentage Interests in the
Partnership represented by such Partnership Units are set forth in Exhibit A, as
such Exhibit may be amended from time to time. The ownership of Partnership
Units shall be evidenced by such form of certificate for Partnership Units as
the General Partner adopts from time to time unless the General Partner
determines that the Partnership Units shall be uncertificated
securities.

     

    “Partnership
Year” means the fiscal year of the Partnership, as set forth in Section
9.2 hereof.

     

    “Percentage
Interest” means, as to a Partner, the fractional part of the Partnership
Interests owned by such Partner and expressed as a percentage as specified in
Exhibit A, as such Exhibit may be amended from time to time.

     

    “Permitted
Partners” has the meaning set forth in subparagraph 1(b) of Exhibit
B.

     

    “Permitted
Transferee” means any person to whom Partnership Units are Transferred in
accordance with Section 11.3 of this Agreement.

     

    “Person”
means an individual or Entity.

     

    “Precontribution
Gain” has the meaning set forth in subparagraph 3(c) of Exhibit
B.

     

    “Quarter”
means each of the three-month periods ending on March 31, June 30, September 30
and December 31.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    “Registration
Statement” means the Registration Statement on Form S-11 to be filed by
the General Partner with the Securities and Exchange Commission, and any
amendments at any time made thereto.

     

    “Regulations”
means the final, temporary or proposed Income Tax Regulations promulgated under
the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).

     

    “REIT”
means a real estate investment trust as defined in Section 856 of the
Code.

     

    “REIT
Requirements” has the meaning set forth in Section 5.2.

     

    “REIT
Stock” has the meaning set forth in the Exchange Rights
Agreement.

     

    “REIT
Stock Amount” has the meaning set forth in the Exchange Rights
Agreement.

     

    “Restricted
Partner” has the meaning set forth in Section 1(b) of Exhibit
B.

     

    “Stockholder”
means a holder of Common Stock.

     

    “Subsidiary”
means, with respect to any Person, any corporation, partnership, limited
liability company or other entity of which a majority of

     

    (a)           the
voting power of the voting equity securities; and/or

     

    (b)           the
outstanding equity interests (whether or not voting), is owned, directly or
indirectly, by such Person.

     

    “Substituted
Limited Partner” means a Person who is admitted as a Limited Partner to
the Partnership pursuant to Section 11.4 hereof.

     

    “Tax
Items” has the meaning set forth in Exhibit B.

     

    “Transfer”
as a noun, means any sale, assignment, conveyance, pledge, hypothecation, gift,
encumbrance or other transfer, and as a verb, means to sell, assign, convey,
pledge, hypothecate, give, encumber or otherwise transfer.

     

    Certain
additional terms and phrases have the meanings set forth in Exhibit
B.

     

    ARTICLE
2

    ORGANIZATIONAL
MATTERS

     

    
      	
              2.1

            	
              Formation

            


    

     

    The
General Partner has formed the Partnership by filing the Certificate on March
27, 2009 in the office of the Delaware Secretary of State.  The
Partnership is a limited partnership organized pursuant to the provision of the
Act and upon the terms and conditions set forth in this
Agreement.  Except as expressly provided herein to the contrary, the
rights and obligations of the Partners and the administration and termination of
the Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
              2.2

            	
              Name

            


    

     

    The name
of the Partnership is Empire American Realty Operating Partnership,
LP.  The Partnership’s business may be conducted under any other name
or names deemed advisable by the General Partner, including the name of the
General Partner or any Affiliate thereof. The words “Limited Partnership,” “LP,”
“Ltd.” or similar words or letters shall be included in the Partnership’s name
where necessary for the purposes of complying with the laws of any jurisdiction
that so requires. The General Partner in its sole and absolute discretion may
change the name of the Partnership and shall notify the Limited Partners of such
change in the next regular communication to the Limited Partners.

     

    
      	
              2.3

            	
              Registered Office and
      Agent; Principal Office

            


    

     

    The
address of the registered office of the Partnership in the State of Delaware and
the name and address of the registered agent for service of process on the
Partnership in the State of Delaware is the Corporation Service Company, 2711
Centerville Road Suite 400, Wilmington, Delaware 19808. The principal office of
the Partnership shall be 25 Philips Parkway, Motvale, New Jersey 07645, or such
other place as the General Partner may from time to time designate by notice to
the Limited Partners. The Partnership may maintain offices at such other place
or places within or outside the State of Delaware as the General Partner deems
advisable.

     

    
      	
              2.4

            	
              Power of
      Attorney

            


    

     

    (a)           Each
Limited Partner and each Assignee who accepts Partnership Units (or any rights,
benefits or privileges associated therewith) is deemed to irrevocably constitute
and appoint the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to:

     

    (i)           execute,
swear to, acknowledge, deliver, file and record in the appropriate public
offices

     

    (A)           all
certificates, documents and other instruments (including, without limitation,
this Agreement and the Certificate and all amendments or restatements thereof)
that the General Partner or the Liquidator deems appropriate or necessary to
form, qualify or continue the existence or qualification of the Partnership as a
limited partnership (or a partnership in which the Limited Partners have limited
liability) in the State of Delaware and in all other jurisdictions in which the
Partnership may or plans to conduct business or own property, including, without
limitation, any documents necessary or advisable to convey any Contributed
Property to the Partnership;

     

    (B)           all
instruments that the General Partner or any Liquidator deems appropriate or
necessary to reflect any amendment, change, modification or restatement of this
Agreement in accordance with its terms;

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    (C)           all
conveyances and other instruments or documents that the General Partner or any
Liquidator deems appropriate or necessary to reflect the dissolution and
liquidation of the Partnership pursuant to the terms of this Agreement,
including, without limitation, a certificate of cancellation;

     

    (D)           all
instruments relating to the admission, withdrawal, removal or substitution of
any Partner pursuant to, or other events described in, Article 11, 12 or 13
hereof or the Capital Contribution of any Partner;

     

    (E)           all
certificates, documents and other instruments relating to the determination of
the rights, preferences and privileges of Partnership Interest; and

     

    (F)           amendments
to this Agreement as provided in Article 14 hereof; and

     

    (ii)           execute,
swear to, seal, acknowledge and file all ballots, consents, approvals, waivers,
certificates and other instruments appropriate or necessary, in the sole and
absolute discretion of the General Partner or any Liquidator, to make, evidence,
give, confirm or ratify any vote, consent, approval, agreement or other action
which is made or given by the Partners hereunder or is consistent with the terms
of this Agreement or appropriate or necessary, in the sole discretion of the
General Partner or any Liquidator, to effectuate the terms or intent of this
Agreement.

     

    Nothing
contained herein shall be construed as authorizing the General Partner or any
Liquidator to amend this Agreement except in accordance with Article 14 hereof
or as may be otherwise expressly provided for in this Agreement.

     

    (b)                     The
foregoing power of attorney is hereby declared to be irrevocable and a power
coupled with an interest, in recognition of the fact that each of the Partners
will be relying upon the power of the General Partner and any Liquidator to act
as contemplated by this Agreement in any filing or other action by it on behalf
of the Partnership, and it shall survive and not be affected by the subsequent
Incapacity of any Limited Partner or Assignee and the Transfer of all or any
portion of such Limited Partner’s or Assignee’s Partnership Units and shall
extend to such Limited Partner’s or Assignee’s heirs, successors, assigns and
personal representatives.

     

    (ii)           Each
such Limited Partner or Assignee hereby agrees to be bound by any representation
made by the General Partner or any Liquidator, acting in good faith pursuant to
such power of attorney, and each such Limited Partner or Assignee hereby waives
any and all defenses which may be available to contest, negate or disaffirm the
action of the General Partner or any Liquidator, taken in good faith under such
power of attorney.

     

    (iii)           Each
Limited Partner or Assignee shall execute and deliver to the General Partner or
the Liquidator, within fifteen (15) days after receipt of the General Partner’s
or Liquidator’s request therefore, such further designation, powers of attorney
and other instruments as the General Partner or the Liquidator, as the case may
be, deems necessary to effectuate this Agreement and the purposes of the
Partnership.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    
      	
              2.5

            	
              Term

            


    

     

    The term
of the Partnership shall commence on the date hereof and shall continue until
December 31, 2099, unless the Partnership is dissolved sooner pursuant to the
provisions of Article 13 or as otherwise provided by law.

     

    ARTICLE
3

    PURPOSE

     

    
      	
              3.1

            	
              Purpose and
      Business

            


    

     

    (a)           The
purpose and nature of the business to be conducted by the Partnership is to
conduct any business that may be lawfully conducted by a limited partnership
organized pursuant to the Act including, without limitation, to engage in the
following activities:

     

    (i)           to
acquire, hold, own, develop, construct, improve, maintain, operate, sell, lease,
transfer, encumber, convey, exchange, and otherwise dispose of or deal with the
properties described in the prospectus contained in the Registration
Statement;

     

    (ii)          to
acquire, hold, own, develop, construct, improve, maintain, operate, sell, lease,
transfer, encumber, convey, exchange, and otherwise dispose of or deal with real
and personal property of all kinds;

     

    (iii)         to
enter into any partnership, joint venture, corporation, limited liability
company, trust or other similar arrangement to engage in any of the
foregoing;

     

    (iv)         to
undertake such other activities as may be necessary, advisable, desirable or
convenient to the business of the Partnership; and

     

    (v)          to
engage in such other ancillary activities as shall be necessary or desirable to
effectuate the foregoing purposes;

     

    provided,
however, that such business shall be limited to and conducted in such a manner
as to permit the General Partner at all times to be classified as a REIT, unless
the General Partner determines not to qualify as a REIT or ceases to qualify as
a REIT for any reason not related to the business conducted by the
Partnership.

     

    (b)           The
Partnership shall have all powers necessary or desirable to accomplish the
purposes enumerated.

     

    
      	
              3.2

            	
              Powers

            


    

     

    (a)           The
Partnership is empowered to do any and all acts and things necessary,
appropriate, proper, advisable, incidental to or convenient for the furtherance
and accomplishment of the purposes and business described herein and for the
protection and benefit of the Partnership including, without limitation, full
power and authority to enter into, perform, and carry out contracts of any kind,
to borrow money and to issue evidences of indebtedness, whether or not secured
by mortgage, trust deed, pledge or other Lien, and, directly or indirectly, to
acquire, own, improve, develop and construct real property, and lease, sell,
transfer and dispose of real property; provided, that the Partnership shall not
take, or refrain from taking, any action which, in the judgment of the General
Partner, in its sole and absolute discretion,

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    (i)           could
adversely affect the ability of the General Partner to continue to qualify as a
REIT, unless the General Partner otherwise ceases to qualify as a
REIT;

     

    (ii)          could
subject the General Partner to any additional taxes under Section 857 or Section
4981 of the Code; or

     

    (iii)         could
violate any law or regulation of any governmental body or agency having
jurisdiction over the General Partner or its securities, unless such action (or
inaction) shall have been specifically consented to by the General Partner in
writing.

     

    (b)           The
General Partner also is empowered to do any and all acts and things necessary,
appropriate or advisable to ensure that the Partnership will not be classified
as a “publicly traded partnership” for the purposes of Section 7704 of the Code,
including but not limited to imposing restrictions on exchanges of Partnership
Units.

     

    ARTICLE
4

    CAPITAL
CONTRIBUTIONS

     

    
      	
              4.1

            	
              Capital Contributions
      of the Partners

            


    

     

    (a)           The
General Partner and Initial Limited Partner have made the Capital Contributions
as set forth in Exhibit A to this Agreement.

     

    (b)           To
the extent the Partnership acquires any property by the merger of any other
Person into the Partnership or the contribution of assets by any other Person,
Persons who receive Partnership Interests in exchange for their interests in the
Person merging into or contributing assets to the Partnership shall become
Partners and shall be deemed to have made Capital Contributions as provided in
the applicable merger agreement or contribution agreement and as set forth in
Exhibit A, as amended to reflect such deemed Capital Contributions.

     

    (c)           Each
Partner shall own Partnership Units in the amounts set forth for such Partner in
Exhibit A and shall have a Percentage Interest in the Partnership as set forth
in Exhibit A, which Percentage Interest shall be adjusted in Exhibit A from time
to time by the General Partner to the extent necessary to reflect accurately
exchanges, additional Capital Contributions, the issuance of additional
Partnership Units or similar events having an effect on any Partner’s Percentage
Interest.

     

    (d)           The
number of Partnership Units held by the General Partner, in its capacity as
general partner, shall be deemed to be the General Partner
Interest.

     

    (e)           Except
as provided in Sections 4.2 and 10.5, the Partners shall have no obligation to
make any additional Capital Contributions or provide any additional funding to
the Partnership (whether in the form of loans, repayments of loans or otherwise)
and no Partner shall have any obligation to restore any deficit that may exist
in its Capital Account, either upon a liquidation of the Partnership or
otherwise.

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    
      	
              4.2

            	
              Additional Funds;
      Restrictions on the General
Partner

            


    

     

    (a)                     The
sums of money required to finance the business and affairs of the Partnership
shall be derived from the initial Capital Contributions made to the Partnership
by the Partners as set forth in Section 4.1 and from funds generated from the
operation and business of the Partnership, including, without limitation, rents
and distributions directly or indirectly received by the Partnership from any
Subsidiary.

     

    (ii)           In
the event additional financing is needed from sources other than as set forth in
Section 4.2(a)(i) for any reason, the General Partner may, in its sole and
absolute discretion, in such amounts and at such times as it solely shall
determine to be necessary or appropriate,

     

    (A)           cause
the Partnership to issue additional Partnership Interests and admit additional
Limited Partners to the Partnership in accordance with Section 4.3;

     

    (B)           make
additional Capital Contributions to the Partnership (subject to the provisions
of Section 4.2(b));

     

    (C)           cause
the Partnership to borrow money, enter into loan arrangements, issue debt
securities, obtain letters of credit or otherwise borrow money on a secured or
unsecured basis;

     

    (D)           make
a loan or loans to the Partnership (subject to Section 4.2(b)); or

     

    (E)           sell
any assets or properties directly or indirectly owned by the
Partnership.

     

    (iii)           In
no event shall any Limited Partners be required to make any additional Capital
Contributions or any loan to, or otherwise provide any financial accommodation
for the benefit of, the Partnership.

     

    (b)           The
General Partner shall not issue any debt securities, any preferred stock or any
common stock (including additional REIT Stock (other than (i) as payment of the
REIT Stock Amount or (ii) in connection with the conversion or exchange of
securities of the General Partner solely in conversion or exchange for other
securities of the General Partner)) or rights, options, warrants or convertible
or exchangeable securities containing the right to subscribe for or purchase any
of the foregoing (collectively, “Securities”), other
than to all holders of REIT Stock, unless the General Partner shall

     

    (i)           in
the case of debt securities, lend to the Partnership the proceeds of or
consideration received for such Securities on the same terms and conditions,
including interest rate and repayment schedule, as shall be applicable with
respect to or incurred in connection with the issuance of such Securities and
the proceeds of, or consideration received from, any subsequent exercise,
exchange or conversion thereof (if applicable);

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    (ii)           in
the case of equity Securities senior or junior to the REIT Stock as to dividends
and distributions on liquidation, contribute to the Partnership the proceeds of
or consideration (including any property or other non-cash assets) received for
such Securities and the proceeds of, or consideration received from, any
subsequent exercise, exchange or conversion thereof (if applicable), and receive
from the Partnership, interests in the Partnership in consideration therefore
with the same terms and conditions, including dividend, dividend priority and
liquidation preference, as are applicable to such Securities; and

     

    (iii)           in
the case of REIT Stock or other equity Securities on a parity with the REIT
Stock as to dividends and distributions on liquidation, (including, without
limitation, REIT Stock or other Securities granted as a stock award to directors
and officers of the General Partner or directors, officers or employees of its
Affiliates in consideration for services or future services, and REIT Stock
issued a pursuant to a dividend reinvestment plan or issued to enable the
General Partner make distributions to satisfy the REIT Requirements), contribute
to the Partnership the proceeds of or consideration (including any property or
other non-cash assets, including services) received for such Securities and the
proceeds of, or consideration received from, any subsequent exercise, exchange
or conversion thereof (if applicable), and receive from the Partnership a number
of additional Partnership Units in consideration therefore equal to the product
of

     

    (A)           the
number of shares of REIT Stock or other equity Securities issued by the General
Partner, multiplied by

     

    (B)           a
fraction the numerator of which is one and the denominator of which is the
Exchange Factor in effect on the date of such contribution.

     

    
      	
              4.3

            	
              Issuance of Additional
      Partnership Interests; Admission of Additional Limited
      Partners

            


    

     

    (a)           In
addition to any Partnership Interests issuable by the Partnership pursuant to
Section 4.2, the General Partner is authorized to cause the Partnership to issue
additional Partnership Interests (or options therefore) in the form of
Partnership Units or other Partnership Interests in one or more series or
classes, or in one or more series of any such class senior, on a parity with, or
junior to the Partnership Units to any Persons at any time or from time to time,
on such terms and conditions, as the General Partner shall establish in each
case in its sole and absolute discretion subject to Delaware law, including,
without limitation, (i) the allocations of items of Partnership income, gain,
loss, deduction and credit to each class or series of Partnership Interests,
(ii) the right of each class or series of Partnership Interests to share in
Partnership distributions, and (iii) the rights of each class or series of
Partnership Interest upon dissolution and liquidation of the Partnership; provided, that, no such
Partnership Interests shall be issued to the General Partner unless either (a)
the Partnership Interests are issued in connection with the grant, award, or
issuance of REIT Stock or other equity interests in the General Partner having
designations, preferences and other rights such that the economic interests
attributable to such REIT Stock or other equity interests are substantially
similar to the designations, preferences and other rights (except voting rights)
of the Partnership Interests issued to the General Partner in accordance with
this Section 4.3(a) or (b) the additional Partnership Interests are issued to
all Partners holding Partnership Interests in the same class in proportion to
their respective Percentage Interests in such class, without any approval being
required from any Limited Partner or any other Person; and provided, however,
that

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    (i)           such
issuance does not cause the Partnership to become, with respect to any employee
benefit plan subject to Title I of ERISA or Section 4975 of the Code, 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); and

     

    (ii)          such
issuance would not cause any portion of the assets of the Partnership to
constitute assets of any employee benefit plan pursuant to Section 2510.3-101 of
the regulations of the United States Department of Labor.

     

    (b)           Subject
to the limitations set forth in Section 4.3(a), the General Partner may take
such steps as it, in its sole and absolute discretion, deems necessary or
appropriate to admit any Person as a Limited Partner of the Partnership or to
issue any Partnership Interests, including, without limitation, amending the
Certificate, Exhibit A or any other provision of this Agreement.

     

    
      	
              4.4

            	
              Contribution of
      Proceeds of Issuance of REIT
Stock

            


    

     

    In
connection with any offering, grant, award, or issuance of REIT Stock or
securities, rights, options, warrants or convertible or exchangeable securities
pursuant to Section 4.2, the General Partner shall make aggregate Capital
Contributions to the Partnership of the proceeds raised in connection with such
offering, grant, award, or issuance, including any property issued to the
General Partner pursuant to a merger or contribution agreement in exchange for
Common Stock; provided, however, that if the proceeds actually received by the
General Partner are less than the gross proceeds of such offering, grant, award,
or issuance as a result of any underwriter’s discount, commission, or fee or
other expenses paid or incurred in connection with such offering, grant, award,
or issuance, then the General Partner shall be deemed to have made a Capital
Contribution to the Partnership in the amount of the gross proceeds of such
issuance and the Partnership shall be deemed simultaneously to have paid
pursuant to Section 7.3(c) for the amount of such underwriter’s discount or
other expenses.

     

    
      	
              4.5

            	
              Repurchase of REIT
      Stock; Shares-In-Trust

            


    

     

    (a)           In
the event that the General Partner shall elect to purchase from its stockholders
REIT Stock for the purpose of delivering such REIT Stock to satisfy an
obligation under any distribution reinvestment program adopted by the General
Partner, any employee stock purchase plan adopted by the General Partner, or any
other obligation or arrangement undertaken by the General Partner in the future,
the purchase price paid by the General Partner for such REIT Stock and any other
expenses incurred by the General Partner in connection with such purchase shall
be considered expenses of the Partnership and shall be reimbursed to the General
Partner, subject to the condition that:

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    (i)           if
such REIT Stock subsequently is to be sold by the General Partner, the General
Partner shall pay to the Partnership any proceeds received by the General
Partner from the sale of such REIT Stock (provided that an exchange of REIT
Stock for Partnership Units pursuant to the applicable Exchange Rights Agreement
would not be considered a sale for such purposes); and

     

    (ii)           if
such REIT Stock is not re-transferred by the General Partner within 30 days
after the purchase thereof, the General Partner shall cause the Partnership to
cancel a number of Partnership Units held by the General Partner (as applicable)
equal to the product of

     

    (x)           the
number of shares of such REIT Stock, multiplied by

     

    (y)          a
fraction, the numerator of which is one and the denominator of which is the
Exchange Factor in effect on the date of such cancellation.

     

    (b)           In
the event the General Partner purchases Shares-in-Trust (as from time to time
defined in the Articles of Incorporation, as may be amended from time to time),
the Partnership will purchase from the General Partner a number of Partnership
Units equal to the product of

     

    (i)           the
number of Shares-in-Trust purchased by the General Partner, multiplied
by

     

    (ii)          a
fraction, the numerator of which is one and the denominator of which is the
Exchange Factor in effect on the date of such purchase.

     

    
      	
              4.6

            	
              No Third-Party
      Beneficiary

            


    

     

    No
creditor or other third party having dealings with the Partnership shall have
the right to enforce the right or obligations of any Partner to make Capital
Contributions or loans or to pursue any other right or remedy hereunder or at
law or in equity, it being understood and agreed that the provisions of this
Agreement shall be solely for the benefit of, and may be enforced solely by, the
parties hereto and their respective successors and assigns.

     

    
      	
              4.7

            	
              No Interest; No
      Return

            


    

     

    (a)           No
Partner shall be entitled to interest on its Capital Contribution or on such
Partner’s Capital Account.

     

    (b)           Except
as provided herein or by law, no Partner shall have any right to demand or
receive the return of its Capital Contribution from the
Partnership.

     

    
      	
              4.8

            	
              No Preemptive
      Rights.

            


    

     

    Subject
to any preemptive rights that may be granted pursuant to Section 4.3 hereof, no
Person shall have any preemptive or other similar right with respect
to

     

    (a)           additional
Capital Contributions or loans to the Partnership; or

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    (b)           issuance
or sale of any Partnership Units or other Partnership Interests.

     

    ARTICLE
5

    DISTRIBUTIONS

     

    
      	
              5.1

            	
              Distributions

            


    

     

    (a)           Cash Available for
Distribution.  Subject to the provisions of Sections 5.3, 5.4
and 12.2(c), the General Partner shall cause the Partnership to distribute, at
such times as the General Partner shall determine (each a “Distribution Date”),
an amount of Cash Available for Distribution, determined by the General Partner
in its sole discretion to the Limited Partners and the General Partner, as of
the applicable Partnership Record Date, in accordance with each such Partner’s
respective Percentage Interest.  In no event may any Partner receive a
distribution pursuant to this Section 5.1(a) with respect to a Partnership Unit
if such Partner is entitled to receive a distribution with respect to REIT Stock
for which such a Partnership Unit has been exchanged.

     

    (b)           Capital
Proceeds.  Subject to the provisions of Sections 5.3, 5.4 and
12.2(c), Net Capital Proceeds shall be distributed as follows:

     

    (i)           First,
100% to the General Partner and Limited Partners in accordance with each such
Partner’s respective Percentage Interest until, in the
aggregate, the Limited Partners receive distributions from the Partnership and
the Stockholders receive dividends from the General Partner in an amount equal
to the sum of (i) the Net Investment and (ii) any cumulative shortfall in the
Limited Partners’ and the Stockholders’ receipt of the First Level Return
pursuant to Sections 5.1(a) and 5.1(b); and

     

    (ii)          Thereafter,
(A) 15% to the Associate Limited Partner, and (B) 85% to the General Partner and
Limited Partners in accordance with each such Partner’s respective Percentage
Interest.

     

    
      	
              5.2

            	
              Qualification as a
      REIT

            


    

     

    The
General Partner shall use its best efforts to cause the Partnership to
distribute sufficient amounts under this Article 5 to enable the General Partner
to pay dividends to the Stockholders that will enable the General Partner
to

     

    (a)           satisfy
the requirements for qualification as a REIT under the Code and Regulations
(“REIT
Requirements”), and

     

    (b)           avoid
any federal income or excise tax liability;

     

    provided, however, the General Partner
shall not be bound to comply with this covenant to the extent such distributions
would

     

    (x)           violate
applicable Delaware law or

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    (y)          contravene
the terms of any notes, mortgages or other types of debt obligations to which
the Partnership may be subject in conjunction with borrowed funds.

     

    
      	
              5.3

            	
              Withholding

            


    

     

    With
respect to any withholding tax or other similar tax liability or obligation to
which the Partnership may be subject as a result of any act or status of any
Partner or to which the Partnership becomes subject with respect to any
Partnership Unit, the Partnership shall have the right to withhold amounts
distributable pursuant to this Article V to such Partner or with respect to such
Partnership Units, to the extent of the amount of such withholding tax or other
similar tax liability or obligation pursuant to the provisions contained in
Section 10.5.

     

    
      	
              5.4

            	
              Additional Partnership
      Interests

            


    

     

    If the
Partnership issues Partnership Interests in accordance with Section 4.2 or 4.3,
the distribution priorities set forth in Section 5.1 shall be amended, as
necessary, to reflect the distribution priority of such Partnership Interests
and corresponding amendments shall be made to the provisions of Exhibit
B.

     

    ARTICLE
6

    ALLOCATIONS

     

    
      	
              6.1

            	
              Allocations

            


    

     

    The Net
Income, Net Loss and other Partnership items shall be allocated pursuant to the
provisions of Exhibit B.

     

    
      	
              6.2

            	
              Revisions to
      Allocations to Reflect Issuance of Partnership
      Interests

            


    

     

    If the
Partnership issues Partnership Interests to the General Partner or any
additional Limited Partner pursuant to Article IV, the General Partner shall
make such revisions to this Article 6 and Exhibit B as it deems necessary to
reflect the terms of the issuance of such Partnership Interests, including
making preferential allocations to classes of Partnership Interests that are
entitled thereto. Such revisions shall not require the consent or approval of
any other Partner.

     

    ARTICLE
7

    MANAGEMENT
AND OPERATIONS OF BUSINESS

     

    
      	
              7.1

            	
              Management

            


    

     

    (a)                      Except
as otherwise expressly provided in this Agreement, full, complete and exclusive
discretion to manage and control the business and affairs of the Partnership are
and shall be vested in the General Partner, and no Limited Partner shall have
any right to participate in or exercise control or management power over the
business and affairs of the Partnership.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    (ii)           The
General Partner may not be removed by the Limited Partners with or without
cause.

     

    (iii)          In
addition to the powers now or hereafter granted a general partner of a limited
partnership under applicable law or which are granted to the General Partner
under any other provision of this Agreement, the General Partner, subject to
Section 7.11, shall have full power and authority to do all things deemed
necessary or desirable by it to conduct the business of the Partnership, to
exercise all powers set forth in Section 3.2 hereof and to effectuate the
purposes set forth in Section 3.1 hereof, including, without
limitation:

     

    (A)                      the
making of any expenditures, the lending or borrowing of money, including,
without limitation, making prepayments on loans and borrowing money to permit
the Partnership to make distributions to its Partners in such amounts as will
permit the General Partner (so long as the General Partner qualifies as a REIT)
to avoid the payment of any federal income tax (including, for this purpose, any
excise tax pursuant to Section 4981 of the Code) and to make distributions to
its stockholders in amounts sufficient to permit the General Partner to maintain
REIT status,

     

    (2)           the
assumption or guarantee of, or other contracting for, indebtedness and other
liabilities,

     

    (3)           the
issuance of evidence of indebtedness (including the securing of the same by
deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s
assets) and

     

    (4)           the
incurring of any obligations it deems necessary for the conduct of the
activities of the Partnership, including the payment of all expenses associated
with the General Partner;

     

    (B)           the
making of tax, regulatory and other filings, or rendering of periodic or other
reports to governmental or other agencies having jurisdiction over the business
or assets of the Partnership or the General Partner;

     

    (C)           the
acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or
exchange of all or substantially all of the assets of the Partnership (including
the exercise or grant of any conversion, option, privilege, or subscription
right or other right available in connection with any assets at any time held by
the Partnership) or the merger, consolidation or other combination (each a
“Business
Combination”) of the Partnership with or into another Entity on such
terms as the General Partner deems proper, provided that the General Partner
shall be required to send to each Limited Partner a notice of such proposed
Business Combination no less than 15 days prior to the record date for the vote
of the General Partner’s stockholders on such Business Combination, if
any;

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    (D)           the
use of the assets of the Partnership (including, without limitation, cash on
hand) for any purpose consistent with the terms of this Agreement and on any
terms it sees fit, including, without limitation,

     

    (1)           the
financing of the conduct of the operations of the General Partner, the
Partnership or any of the Partnership’s Subsidiaries,

     

    (2)           the
lending of funds to other Persons (including, without limitation, the
Subsidiaries of the Partnership and/or the General Partner) and the repayment of
obligations of the Partnership and its Subsidiaries and any other Person in
which it has an equity investment, and

     

    (3)           the
making of capital contributions to its Subsidiaries;

     

    (E)           the
expansion, development, construction, leasing, repair, alteration, demolition or
improvement of any property in which the Partnership or any Subsidiary of the
Partnership owns an interest;

     

    (F)           the
negotiation, execution, and performance of any contracts, conveyances or other
instruments that the General Partner considers useful or necessary to the
conduct of the Partnership’s operations or the implementation of the General
Partner’s powers under this Agreement, including contracting with contractors,
developers, consultants, accountants, legal counsel, other professional advisors
and other agents and the payment of their expenses and compensation out of the
Partnership’s assets;

     

    (G)          the
distribution of Partnership cash or other Partnership assets in accordance with
this Agreement;

     

    (H)          holding,
managing, investing and reinvesting cash and other assets of the
Partnership;

     

    (I)           the
collection and receipt of revenues and income of the Partnership;

     

    (J)           the
establishment of one or more divisions of the Partnership, the selection and
dismissal of employees of the Partnership (including, without limitation,
employees having titles such as “president,” “vice president,” “secretary” and
“treasurer” of the Partnership), and agents, outside attorneys, accountants,
consultants and contractors of the Partnership, and the determination of their
compensation and other terms of employment or engagement;

     

    (K)          the
maintenance of such insurance for the benefit of the Partnership and the
Partners and directors and officers thereof as it deems necessary or
appropriate;

     

    (L)          
the formation of, or acquisition of an interest (including non-voting interests
in entities controlled by Affiliates of the Partnership or third parties) in,
and the contribution of property to, any further Entities or other relationships
that it deems desirable, including, without limitation, the acquisition of
interests in, and the contributions of funds or property to, or making of loans
to, its Subsidiaries and any other Person from time to time, or the incurrence
of indebtedness on behalf of such Persons or the guarantee of the obligations of
such Persons; provided that, as long as the General Partner has determined to
elect to qualify as a REIT or to continue to qualify as a REIT, the Partnership
may not engage in any such formation, acquisition or contribution that would
cause the General Partner to fail to qualify as a REIT;

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    (M)         the
control of any matters affecting the rights and obligations of the Partnership,
including

     

    (1)           the
settlement, compromise, submission to arbitration or any other form of dispute
resolution, or abandonment of, any claim, cause of action, liability, debt or
damages, due or owing to or from the Partnership,

     

    (2)           the
commencement or defense of suits, legal proceedings, administrative proceedings,
arbitration or other forms of dispute resolution, and

     

    (3)           the
representation of the Partnership in all suits or legal proceedings,
administrative proceedings, arbitrations or other forms of dispute resolution,
the incurring of legal expenses, and the indemnification of any Person against
liabilities and contingencies to the extent permitted by law;

     

    (N)           the
undertaking of any action in connection with the Partnership’s direct or
indirect investment in its Subsidiaries or any other Person (including, without
limitation, the contribution or loan of funds by the Partnership to such
Persons);

     

    (O)           the
determination of the fair market value of any Partnership property distributed
in kind using such reasonable method of valuation as the General Partner, in its
sole discretion, may adopt;

     

    (P)           the
exercise, directly or indirectly, through any attorney-in-fact acting under a
general or limited power of attorney, of any right, including the right to vote,
appurtenant to any asset or investment held by the Partnership;

     

    (Q)           the
exercise of any of the powers of the General Partner enumerated in this
Agreement on behalf of or in connection with any Subsidiary of the Partnership
or any other Person in which the Partnership has a direct or indirect interest,
or jointly with any such Subsidiary or other Person;

     

    (R)           the
exercise of any of the powers of the General Partner enumerated in this
Agreement on behalf of any Person in which the Partnership does not have an
interest pursuant to contractual or other arrangements with such
Person;

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    (S)           the
making, execution and delivery of any and all deeds, leases, notes, mortgages,
deeds of trust, security agreements, conveyances, contracts, guarantees,
warranties, indemnities, waivers, releases or legal instruments or agreements in
writing necessary or appropriate, in the judgment of the General Partner, for
the accomplishment of any of the foregoing;

     

    (T)           the
issuance of additional Partnership Units in connection with Capital
Contributions by Additional Limited Partners and additional Capital
Contributions by Partners pursuant to Article 4 hereof;

     

    (U)           the
opening of bank accounts on behalf of, and in the name of, the Partnership and
its Subsidiaries; and

     

    (V)           the
amendment and restatement of Exhibit A to reflect accurately at all times the
Capital Contributions and Percentage Interests of the Partners as the same are
adjusted from time to time to the extent necessary to reflect redemptions,
Capital Contributions, the issuance of Partnership Units, the admission of any
Additional Limited Partner or any Substituted Limited Partner or otherwise,
which amendment and restatement, notwithstanding anything in this Agreement to
the contrary, shall not be deemed an amendment of this Agreement, as long as the
matter or event being reflected in Exhibit A otherwise is authorized by this
Agreement.

     

    (b)                     Each
of the Limited Partners agree that the General Partner is authorized to execute,
deliver and perform the above-mentioned agreements and transactions on behalf of
the Partnership without any further act, approval or vote of the Partners,
notwithstanding any other provision of this Agreement to the fullest extent
permitted under the Act or other applicable law, rule or
regulation.

     

    (ii)           The
execution, delivery or performance by the General Partner or the Partnership of
any agreement authorized or permitted under this Agreement shall not constitute
a breach by the General Partner of any duty that the General Partner may owe the
Partnership or the Limited Partners or any other Persons under this Agreement or
of any duty stated or implied by law or equity.

     

    (c)           At
all times from and after the date hereof, the General Partner at the expense of
the Partnership, may or may not, cause the Partnership to obtain and
maintain

     

    (i)           casualty,
liability and other insurance on the properties of the Partnership;

     

    (ii)          liability
insurance for the Indemnitees hereunder; and

     

    (iii)         such
other insurance as the General Partner, in its sole and absolute discretion,
determines to be appropriate and reasonable.

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

    (d)           At
all times from and after the date hereof, the General Partner may cause the
Partnership to establish and maintain at any and all times working capital
accounts and other cash or similar balances in such amount as the General
Partner, in its sole and absolute discretion, deems appropriate and reasonable
from time to time.

     

    (e)                     In
exercising its authority under this Agreement, the General Partner may, but
shall be under no obligation to, take into account the tax consequences to any
Partner (including the General Partner) of any action taken (or not taken) by
it. The General Partner and the Partnership shall not have liability to any
Limited Partner for monetary damages or otherwise for losses sustained,
liabilities incurred or benefits not delivered by such Limited Partner in
connection with such decisions, provided that the General Partner has acted in
good faith pursuant to its authority under this Agreement. The Limited Partners
expressly acknowledge that the General Partner is acting on behalf of the
Partnership, the General Partner, and the General Partner’s stockholders,
collectively.

     

    (ii)           The
General Partner and the Partnership shall not have liability to the any Limited
Partner under any circumstances as a result of an income tax liability incurred
by such Limited Partner as a result of an action (or inaction) by the General
Partner taken pursuant to its authority under and in accordance with this
Agreement.

     

    
      	
              7.2

            	
              Certificate of Limited
      Partnership

            


    

     

    (a)           The
General Partner has previously filed the Certificate with the Secretary of State
of Delaware as required by the Act.

     

    (b)                     The
General Partner shall use all reasonable efforts to cause to be filed such other
certificates or documents as may be reasonable and necessary or appropriate for
the formation, continuation, qualification and operation of a limited
partnership (or a partnership in which the limited partners have limited
liability) in the State of Delaware and any other state, or the District of
Columbia, in which the Partnership may elect to do business or own
property.

     

    (ii)           To
the extent that such action is determined by the General Partner to be
reasonable and necessary or appropriate, the General Partner shall file
amendments to and restatements of the Certificate and do all of the things to
maintain the Partnership as a limited partnership (or a partnership in which the
limited partners have limited liability) under the laws of the State of Delaware
and each other state, or the District of Columbia, in which the Partnership may
elect to do business or own property.

     

    (iii)           Subject
to the terms of Section 8.5(a)(iv) hereof, the General Partner shall not be
required, before or after filing, to deliver or mail a copy of the Certificate
or any amendment thereto to any Limited Partner.

     

    
      	
              7.3

            	
              Reimbursement of the
      General Partner

            


    

     

    (a)           Except
as provided in this Section 7.3 and elsewhere in this Agreement (including the
provisions of Articles 5 and 6 regarding distributions, payments, and
allocations to which it may be entitled), the General Partner shall not be
compensated for its services as general partner of the Partnership.

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    (b)                     The
Partnership shall be responsible for and shall pay all expenses relating to the
Partnership’s organization, the ownership of its assets and its operations. The
General Partner shall be reimbursed on a monthly basis, or such other basis as
it may determine in its sole and absolute discretion, for all expenses that it
incurs on behalf of the Partnership relating to the ownership and operation of
the Partnership’s assets, or for the benefit of the Partnership, including all
expenses associated with compliance by the General Partner and the Initial
Limited Partner with laws, rules and regulations promulgated by any regulatory
body, expenses related to the operations of the General Partner and to the
management and administration of any Subsidiaries of the General Partner or the
Partnership or Affiliates of the Partnership, such as auditing expenses and
filing fees and any and all salaries, compensation and expenses of officers and
employees of the General Partner, but excluding any portion of expenses
reasonably attributable to assets not owned by or for the benefit of, or to
operations not for the benefit of, the Partnership or Affiliates of the
Partnership; provided, that the amount of any such reimbursement shall be
reduced by any interest earned by the General Partner with respect to bank
accounts or other instruments or accounts held by it in its name.

     

    (ii)           Such
reimbursement shall be in addition to any reimbursement made as a result of
indemnification pursuant to Section 7.6 hereof.

     

    (iii)          The
General Partner shall determine in good faith the amount of expenses incurred by
it related to the ownership and operation of, or for the benefit of, the
Partnership. If certain expenses are incurred for the benefit of the Partnership
and other entities (including the General Partner), such expenses will be
allocated to the Partnership and such other entities in such a manner as the
General Partner in its reasonable discretion deems fair and reasonable. All
payments and reimbursements hereunder shall be characterized for federal income
tax purposes as expenses of the Partnership incurred on its behalf, and not as
expenses of the General Partner.

     

    (c)                     Expenses
incurred by the General Partner relating to the organization or reorganization
of the Partnership and the General Partner the issuance of Common Stock in
connection with the Consolidation and any issuance of additional Partnership
Interests, REIT Stock or rights, options, warrants, or convertible or
exchangeable securities pursuant to Section 4.2 hereof and all costs and
expenses associated with the preparation and filing of any periodic reports by
the General Partner under federal, state or local laws or regulations
(including, without limitation, all costs, expenses, damages, and other payments
resulting from or arising in connection with litigation related to any of the
foregoing) are primarily obligations of the Partnership.

     

    (ii)          
To the extent the General Partner pays or incurs such expenses, the General
Partner shall be reimbursed for such expenses.

     

    
      	
              7.4

            	
              Outside Activities of
      the General Partner

            


    

     

    (a)           Without
the Consent of the Limited Partners, the General Partner shall not directly or
indirectly enter into or conduct any business other than in connection with the
ownership, acquisition, and disposition of Partnership Interests and the
management of its business and the business of the Partnership, and such
activities as are incidental thereto.

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    (b)           The
General Partner and any Affiliates of the General Partner may acquire Limited
Partner Interests and shall be entitled to exercise all rights of a Limited
Partner relating to such Limited Partner Interests.

     

    
      	
              7.5

            	
              Contracts with
      Affiliates

            


    

     

    (a)                     The
Partnership may lend or contribute funds or other assets to its Subsidiaries or
other Persons in which it has an equity investment and such Subsidiaries and
Persons may borrow funds from the Partnership, on terms and conditions
established in the sole and absolute discretion of the General
Partner.

     

    (ii)           The
foregoing authority shall not create any right or benefit in favor of any
Subsidiary or any other Person.

     

    (b)           Except
as provided in Section 7.4, the Partnership may Transfer assets to Entities in
which it is or thereby becomes a participant upon such terms and subject to such
conditions consistent with this Agreement and applicable law as the General
Partner, in its sole and absolute discretion, may determine.

     

    (c)           Except
as expressly permitted by this Agreement, neither the General Partner nor any of
its Affiliates shall sell, Transfer or convey any property to, or purchase any
property from, the Partnership, directly or indirectly, except pursuant to
transactions that are determined by the General Partner in good faith to be fair
and reasonable.

     

    (d)           The
General Partner, in its sole and absolute discretion and without the approval
the Limited Partners, may propose and adopt, on behalf of the Partnership,
employee benefit plans, stock option plans, and similar plans funded by the
Partnership for the benefit of employees of the Partnership, the General
Partner, any Subsidiaries of the Partnership or any Affiliate of any of them in
respect of services performed, directly or indirectly, for the benefit of the
Partnership, the General Partner, any Subsidiaries of the Partnership or any
Affiliate of any of them.

     

    (e)           The
General Partner is expressly authorized to enter into, in the name and on behalf
of the Partnership, a “right of first opportunity” or “right of first offer”
arrangement, non-competition agreements and other conflict avoidance agreements
with various Affiliates of the Partnership and the General Partner, on such
terms as the General Partner, in its sole and absolute discretion, believes are
advisable.

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

     

    
      	
              7.6

            	
              Indemnification

            


    

     

    (a)                     To
the fullest extent permitted by Delaware law, the Partnership shall indemnify
each Indemnitee from and against any and all losses, claims, damages,
liabilities, joint or several, expenses (including, without limitation,
reasonable attorneys’ fees and other legal fees and expenses), judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative
(collectively, “Claims”), that relate
to the operations of the Partnership or the General Partner as set forth in this
Agreement, in which such Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, so long as (x) the course of conduct which
gave rise to the Claim was taken, in the reasonable determination of the
Indemnitee made in good faith, in the best interests of the Partnership or the
General Partner, (y) such Claim was not the result of negligence or misconduct
by the Indemnitee and (z) such indemnification is not satisfied or recoverable
from the assets of the stockholders of the General Partner. Notwithstanding the
foregoing, no Indemnitee shall be indemnified for any Claim arising from or out
of an alleged violation of federal or state securities laws unless (x) there has
been a successful adjudication on the merits of each count involving alleged
securities law violations as to such Indemnitee, (y) such allegations have been
dismissed with prejudice on the merits by a court of competent jurisdiction as
to such Indemnitee, or (z) a court of competent jurisdiction approves a
settlement of such allegations against such Indemnitee and finds that
indemnification of the settlement and the related costs should be made, and the
court considering the request for indemnification has been advised of the
position of the Securities and Exchange Commission and of the published position
of any state securities regulatory authority in which the REIT Stock was offered
or sold as to indemnification for violations of securities law.

     

    (ii)           Without
limitation, the foregoing indemnity shall extend to any liability of any
Indemnitee, pursuant to a loan guaranty (except a guaranty by a limited partner
of nonrecourse indebtedness of the Partnership or as otherwise provided in any
such loan guaranty), contractual obligation for any indebtedness or other
obligation or otherwise for any indebtedness of the Partnership or any
Subsidiary of the Partnership (including, without limitation, any indebtedness
which the Partnership or any Subsidiary of the Partnership has assumed or taken
subject to), and the General Partner is hereby authorized and empowered, on
behalf of the Partnership, to enter into one or more indemnity agreements
consistent with the provisions of this Section 7.6 in favor of any Indemnitee
having or potentially having liability for any such indebtedness.

     

    (iii)           Any
indemnification pursuant to this Section 7.6 shall be made only out of the
assets of the Partnership, and neither the General Partner nor any Limited
Partner shall have any obligation to contribute to the capital of the
Partnership, or otherwise provide funds, to enable the Partnership to fund its
obligations under this Section 7.6.

     

    (b)           Reasonable
expenses incurred by an Indemnitee who is a party to a proceeding shall be paid
or reimbursed by the Partnership in advance of the final disposition of any and
all claims, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative made or threatened against an Indemnitee upon
receipt by the Partnership of (i) a written affirmation by the Indemnitee of the
Indemnitee’s good faith belief that the standard of conduct necessary for
indemnification by the Partnership as authorized in this Section 7.6 has been
met; and (ii) a written undertaking by or on behalf of the Indemnitee to repay
the amount if it shall ultimately be determined that the standard of conduct has
not been met.

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

     

    (c)           The
indemnification provided by this Section 7.6 shall be in addition to any other
rights to which an Indemnitee or any other Person may be entitled under any
agreement, pursuant to any vote of the Partners, as a matter of law or
otherwise, and shall continue as to an Indemnitee who has ceased to serve in
such capacity unless otherwise provided in a written agreement pursuant to which
such Indemnities are indemnified.

     

    (d)           The
Partnership may, but shall not be obligated to, purchase and maintain insurance,
on behalf of the Indemnities and such other Persons as the General Partner shall
determine, against any liability that may be asserted against or expenses that
may be incurred by such Person in connection with the Partnership’s activities,
regardless of whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this
Agreement.

     

    (e)           For
purposes of this Section 7.6, the Partnership shall be deemed to have requested
an Indemnitee to serve as fiduciary of an employee benefit plan whenever the
performance by such Indemnitee of its duties to the Partnership also imposes
duties on, or otherwise involves services by, such Indemnitee to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute fines within the meaning of this Section 7.6; and actions taken
or omitted by the Indemnitee with respect to an employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the
Partnership.

     

    (f)           In
no event may an Indemnitee subject any of the Partners (other than the General
Partner) to personal liability by reason of the indemnification provisions set
forth in this Agreement.

     

    (g)           An
Indemnitee shall not be denied indemnification in whole or in part under this
Section 7.6 because the Indemnitee had an interest in the transaction with
respect to which the indemnification applies if the transaction was otherwise
permitted by the terms of this Agreement.

     

    (h)                     The
provisions of this Section 7.6 are for the benefit of the Indemnitees, their
heirs, successors, assigns and administrators and shall not be deemed to create
any rights for the benefit of any other Persons.

     

    (ii)           Any
amendment, modification or repeal of this Section 7.6 or any provision hereof
shall be prospective only and shall not in any way affect the Partnership’s
liability to any Indemnitee under this Section 7.6, 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 arise or
be asserted.

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    (i)           If
and to the extent any payments to the General Partner pursuant to this Section
7.6 constitute gross income to the General Partner (as opposed to the repayment
of advances made on behalf of the Partnership), such amounts shall constitute
guaranteed payments within the meaning of Section 707(c) of the Code, shall be
treated consistently therewith by the Partnership and all Partners, and shall
not be treated as distributions for purposes of computing the Partners’ Capital
Accounts.

     

    (j)           Notwithstanding
anything to the contrary in this Agreement, the General Partner shall not be
entitled to indemnification hereunder for any loss, claim, damage, liability or
expense for which the General Partner is obligated to indemnify the Partnership
under any other agreement between the General Partner and the
Partnership.

     

    
      	
              7.7

            	
              Liability of the
      General Partner

            


    

     

    (a)           Notwithstanding
anything to the contrary set forth in this Agreement, neither the General
Partner nor the investment advisor of the General Partner, nor any of their
respective officers and directors, shall be liable for monetary damages to the
Partnership, any Partners or any Assignees for losses sustained or liabilities
incurred as a result of errors in judgment or mistakes of fact or law or of any
act or omission unless the General Partner or its investment advisor, as the
case may be, acted in bad faith and the act or omission was material to the
matter giving rise to the loss, liability or benefit not derived.

     

    (b)                     The
Limited Partners expressly acknowledge that the General Partner (and its
investment advisor) is acting on behalf of the Partnership and the shareholders
of the General Partner collectively, that the General Partner (and its
investment advisor), subject to the provisions of Section 7.1(e) hereof, is
under no obligation to consider the separate interest of the Limited Partners
(including, without limitation, the tax consequences to the Limited Partners or
Assignees) in deciding whether to cause the Partnership to take (or decline to
take) any actions, and that the General Partner (and its investment advisor)
shall not be liable for monetary damages for losses sustained, liabilities
incurred, or benefits not derived by Limited Partners in connection with such
decisions; provided that the General Partner (and its investment advisor) has
acted in good faith.

     

    (ii)           With
respect to any indebtedness of the Partnership which any Limited Partner may
have guaranteed, the General Partner (and its investment advisor) shall have no
duty to keep such indebtedness outstanding.

     

    (c)                   Subject
to its obligations and duties as General Partner set forth in Section 7.1(a)
hereof, the General Partner may exercise any of the powers granted to it by this
Agreement and perform any of the duties imposed upon it hereunder either
directly or by or through its agent, including its investment
advisor.

     

    (ii)           The
General Partner shall not be responsible for any misconduct or negligence on the
part of any such agent appointed by the General Partner in good
faith.

     

    (d)           The
Limited Partners expressly acknowledge that in the event of any conflict in the
fiduciary duties owed by the General Partner to its stockholders and by the
General Partner, in its capacity as a general partner of the Partnership, to the
Limited Partners, the General Partner may act in the best interests of the
General Partner’s stockholders without violating its fiduciary duties to the
Limited Partners, and that the General Partner shall not be liable for monetary
damages for losses sustained, liabilities incurred, or benefits not derived by
the Limited Partners in connection with any such violation.

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

    (e)           Any
amendment, modification or repeal of this Section 7.7 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the
General Partner’s and its officers’ and directors’ liability to the Partnership
and the Limited Partners under this Section 7.7 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 arise or be
asserted.

     

    
      	
              7.8

            	
              Other Matters
      Concerning the General
Partner

            


    

     

    (a)           The
General Partner 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 believed by it in good faith to be genuine and to have been signed or
presented by the proper party or parties.

     

    (b)           The
General Partner may consult with legal counsel, accountants, appraisers,
management consultants, investment bankers, architects, engineers, environmental
consultants 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 which such General Partner 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
General Partner shall have the right, in respect of any of its powers or
obligations hereunder, to act through any of its duly authorized officers and
duly appointed attorneys-in-fact.

     

    (ii)           Each
such attorney shall, to the extent provided by the General Partner in the power
of attorney, have full power and authority to do and perform each and every act
and duty which is permitted or required to be done by the General Partner
hereunder.

     

    (d)           Notwithstanding
any other provisions of this Agreement or the Act, any action of the General
Partner on behalf of the Partnership or any decision of the General Partner to
refrain from acting on behalf of the Partnership, undertaken in the good faith
belief that such action or omission is necessary or advisable in
order

     

    (i)           to
protect the ability of the General Partner to continue to qualify as a REIT;
or

     

    (ii)          to
avoid the General Partner incurring any taxes under Section 857 or Section 4981
of the Code,

     

    is
expressly authorized under this Agreement and is deemed approved by all of the
Limited Partners.

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    
      	
              7.9

            	
              Title to Partnership
      Assets

            


    

     

    (a)           Title
to Partnership assets, whether real, personal or mixed and whether tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and no
Partner, individually or collectively, shall have any ownership interest in such
Partnership assets or any portion thereof.

     

    (b)                     Title
to any or all of the Partnership assets may be held in the name of the
Partnership, the General Partner or one or more nominees, as the General Partner
may determine, including Affiliates of the General Partner.

     

    (ii)           The
General Partner hereby declares and warrants that any Partnership asset for
which legal title is held in the name of the General Partner or any nominee or
Affiliate of the General Partner shall be held by the General Partner for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided,
that the General Partner shall use its best efforts to cause beneficial and
record title to such assets to be vested in the Partnership as soon as
reasonably practicable.

     

    (iii)           All
Partnership assets shall be recorded as the property of the Partnership in its
books and records, irrespective of the name in which legal title to such
Partnership assets is held.

     

    
      	
              7.10

            	
              Reliance by Third
      Parties

            


    

     

    (a)           Notwithstanding
anything to the contrary in this Agreement, any Person dealing with the
Partnership shall be entitled to assume that the General Partner has full power
and authority, without consent or approval of any other Partner or Person, to
encumber, sell or otherwise use in any manner any and all assets of the
Partnership and to enter into any contracts on behalf of the Partnership, and
take any and all actions on behalf of the Partnership, and such Person shall be
entitled to deal with the General Partner as if the General Partner were the
Partnership’s sole party in interest, both legally and
beneficially.

     

    (b)           Each
Limited Partner hereby waives any and all defenses or other remedies which may
be available against such Person to contest, negate or disaffirm any action of
the General Partner in connection with any such dealing.

     

    (c)           In
no event shall any Person dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this Agreement have
been complied with or to inquire into the necessity or expediency of any act or
action of the General Partner or its representatives.

     

    (d)           Each
and every certificate, document or other instrument executed on behalf of the
Partnership by the General Partner or its representatives shall be conclusive
evidence in favor of any and every Person relying thereon or claiming thereunder
that

     

    (i)           at
the time of the execution and delivery of such certificate, document or
instrument, this Agreement was in full force and effect;

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

     

    (ii)           the
Person executing and delivering such certificate, document or instrument was
duly authorized and empowered to do so for and on behalf of the Partnership;
and

     

    (iii)          such
certificate, document or instrument was duly executed and delivered in
accordance with the terms and provisions of this Agreement and is binding upon
the Partnership.

     

    
      	
              7.11

            	
              Loans By Third
      Parties

            


    

     

    The
Partnership may incur Debt, or enter into similar credit, guarantee, financing
or refinancing arrangements for any purpose (including, without limitation, in
connection with any acquisition of property) with any Person upon such terms as
the General Partner determines appropriate.

     

    ARTICLE
8

    RIGHTS
AND OBLIGATIONS OF LIMITED PARTNERS

     

    
      	
              8.1

            	
              Limitation of
      Liability

            


    

     

    No
Limited Partner shall have any liability under this Agreement except as
expressly provided in this Agreement, including Section 10.5 hereof, or under
the Act.

     

    
      	
              8.2

            	
              Management of
      Business

            


    

     

    (a)           No
Limited Partner or Assignee (other than the General Partner, any of its
Affiliates or any officer, director, employee, agent or trustee of the General
Partner, the Partnership or any of their Affiliates, in their capacity as such)
shall take part in the operation, management or control (within the meaning of
the Act) of the Partnership’s business, transact any business in the
Partnership’s name or have the power to sign documents for or otherwise bind the
Partnership.

     

    (b)           The
transaction of any such business by the General Partner, any of its Affiliates
or any officer, director, employee, partner, agent or trustee of the General
Partner, the Partnership or any of their Affiliates, in their capacity as such,
shall not affect, impair or eliminate the limitations on the liability of the
Limited Partners or Assignees under this Agreement.

     

    
      	
              8.3

            	
              Outside Activities of
      Limited Partners

            


    

     

    (a)           Subject
to any agreements entered into pursuant to Section 7.5 hereof and any other
agreements entered into by a Limited Partner or its Affiliates with the
Partnership or any of its Subsidiaries, and any Limited Partner and any officer,
director, employee, agent, trustee, Affiliate or shareholder of any Limited
Partner shall be entitled to and may have business interests and engage in
business activities in addition to those relating to the Partnership, including
business interests and activities that are in direct competition with the
Partnership or that are enhanced by the activities of the
Partnership.

     

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

     

    (b)           Neither
the Partnership nor any Partners shall have any rights by virtue of this
Agreement in any business ventures of any Limited Partner or
Assignee.

     

    (c)           No
Limited Partner nor any other Person shall have any rights by virtue of this
Agreement or the Partnership relationship established hereby in any business
ventures of any other Person and such Person shall have no obligation pursuant
to this Agreement to offer any interest in any such business ventures to the
Partnership, any Limited Partner or any such other Person, even if such
opportunity is of a character which, if presented to the Partnership, any
Limited Partner or such other Person, could be taken by such
Person.

     

    
      	
              8.4

            	
              Return of
      Capital

            


    

     

    (a)           Except
pursuant to the Exchange Rights Agreements, no Limited Partner shall be entitled
to the withdrawal or return of its Capital Contribution, except to the extent of
distributions made pursuant to this Agreement or upon termination of the
Partnership as provided herein.

     

    (b)           Except
as provided in Articles 5 and 13 hereof, no Limited Partner or Assignee shall
have priority over any other Limited Partner or Assignee, either as to the
return of Capital Contributions or as to profits, losses or
distributions.

     

    
      	
              8.5

            	
              Rights of Limited
      Partners Relating to the
Partnership

            


    

     

    (a)           In
addition to the other rights provided by this Agreement or by the Act, and
except as limited by Section 8.5(b) hereof, each Limited Partner shall have the
right, for a purpose reasonably related to such Limited Partner’s interest as a
limited partner in the Partnership, upon written demand with a statement of the
purpose of such demand and at such Limited Partner’s own expense (including such
reasonable copying and administrative charges as the General Partner may
establish from time to time):

     

    (i)           to
obtain a copy of the most recent annual and quarterly reports filed with the
Securities and Exchange Commission by the General Partner pursuant to the
Securities Exchange Act of 1934;

     

    (ii)          to
obtain a copy of the Partnership’s federal, state and local income tax returns
for each Partnership Year;

     

    (b)           Notwithstanding
any other provision of this Section 8.5, the General Partner may keep
confidential from the Limited Partners, for such period of time as the General
Partner determines in its sole and absolute discretion to be reasonable, any
information that

     

    (i)           the
General Partner reasonably believes to be in the nature of trade secrets or
other information, the disclosure of which the General Partner in good faith
believes is not in the best interests of the Partnership or could damage the
Partnership or its business; or

     

    (ii)          the
Partnership is required by law or by agreements with an unaffiliated third party
to keep confidential.

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

     

    
      	
              8.6

            	
              Exchange Rights
      Agreements

            


    

     

    (a)           The
Limited Partners have been granted the right, but not the obligation, to
exchange all or a portion of their Partnership Units for cash or, at the option
of the General Partner, for shares of REIT Stock on the terms and subject to the
conditions and restrictions contained in certain Exchange Rights Agreements
between the General Partners and the Limited Partners (as amended from time to
time, the “Exchange
Rights Agreements”). The form of Exchange Rights Agreement governing the
exchange of Partnership Units shall be substantially in the form attached hereto
as Exhibit C, with such changes as may be agreed to by the General
Partner.

     

    (b)           The
Limited Partners and all successors, assignees and transferees (whether by
operation of law, including by merger or consolidation, dissolution or
liquidation of an entity that is a Limited Partner, or otherwise) shall be bound
by the provisions of the Exchange Rights Agreement to which they are
parties.

     

    ARTICLE
9

    BOOKS,
RECORDS, ACCOUNTING AND REPORTS

     

    
      	
              9.1

            	
              Records and
      Accounting

            


    

     

    (a)           The
General Partner shall keep or cause to be kept at the principal office of the
Partnership those records and documents required to be maintained by the Act and
other books and records deemed by the General Partner to be appropriate with
respect to the Partnership’s business, including, without limitation, all books
and records necessary for the General Partner to comply with applicable REIT
Requirements and to provide to the Limited Partners any information, lists and
copies of documents required to be provided pursuant to Sections 8.5(a) and 9.3
hereof.

     

    (b)           Any
records maintained by or on behalf of the Partnership in the regular course of
its business may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, micrographics or any other information storage device, provided
that the records so maintained are convertible into clearly legible written form
within a reasonable period of time.

     

    (c)           The
books of the Partnership shall be maintained, for financial and tax reporting
purposes, on an accrual basis in accordance with generally accepted accounting
principles, or such other basis as the General Partner determines to be
necessary or appropriate.

     

    
      	
              9.2

            	
              Fiscal
      Year

            


    

     

    The
fiscal year of the Partnership shall be the calendar year.

     

    
      	
              9.3

            	
              Reports

            


    

     

    (a)           As
soon as practicable, but in no event later than the date on which the General
Partner mails its annual report to its stockholders, the General Partner shall
cause to be mailed to each Limited Partner as of the close of the Partnership
Year, an annual report containing financial statements of the Partnership, or of
the General Partner, if such statements are prepared on a consolidated basis
with the Partnership, for such Partnership Year, presented in accordance with
the standards of the Public Accounting Oversight Board (United States), such
statements to be audited by a nationally recognized firm of independent public
accountants selected by the General Partner in its sole discretion.

     

    
      
        
        

      

      
        38

        
          

        

      

      
        
        

      

    

     

    (b)           If
and to the extent that the General Partner mails quarterly reports to its
stockholders, then as soon as practicable, but in no event later than the date
such reports are mailed, the General Partner shall cause to be mailed to each
Limited Partner a report containing unaudited financial statements as of the
last day of the calendar quarter of the Partnership, or of the General Partner,
if such statements are prepared on a consolidated basis with the Partnership,
and such other information as may be required by applicable law or regulation,
or as the General Partner determines to be appropriate.

     

    (c)           Notwithstanding
the foregoing, the General Partner may deliver to the Limited Partners each of
the reports described above, as well as any other communications that it may
provide hereunder, by E-mail or by any other electronic means.

     

    ARTICLE
10

    TAX
MATTERS

     

    
      	
              10.1

            	
              Preparation of Tax
      Returns

            


    

     

    The
General Partner shall arrange for the preparation and timely filing of all
returns of Partnership income, gains, deductions, losses and other items
required of the Partnership for federal and state income tax purposes and shall
use all reasonable efforts to furnish, within ninety (90) days of the close of
each taxable year, the tax information reasonably required by the Limited
Partners for federal and state income tax reporting purposes.

     

    
      	
              10.2

            	
              Tax
      Elections

            


    

     

    (a)           Except
as otherwise provided herein, the General Partner shall, in its sole and
absolute discretion, determine whether to make any available election pursuant
to the Code.

     

    (b)           The
General Partner shall elect a permissible method (which need not be the same
method for each item or property) of eliminating the disparity between the book
value and the tax basis for each item of property contributed to the Partnership
or to a Subsidiary of the Partnership pursuant to the regulations promulgated
under the provisions of Section 704(c) of the Code.

     

    (c)           The
General Partner shall have the right to seek to revoke any tax election it
makes, including, without limitation, the election under Section 754 of the
Code, upon the General Partner’s determination, in its sole and absolute
discretion, that such revocation is in the best interests of the
Partners.

     

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    

     

    
      	
              10.3

            	
              Tax Matters
      Partner

            


    

     

    (a)                     The
General Partner shall be the “tax matters partner” of the Partnership for
federal income tax purposes.

     

    (ii)           Pursuant
to Section 6230(e) of the Code, upon receipt of notice from the Internal Revenue
Service of the beginning of an administrative proceeding with respect to the
Partnership, the tax matters partner shall furnish the Internal Revenue Service
with the name, address, taxpayer identification number, and profit interest of
each of the Limited Partners and the Assignees; provided, that such information
is provided to the Partnership by the Limited Partners and the
Assignees.

     

    (iii)          The
tax matters partner is authorized, but not required:

     

    (A)           to
enter into any settlement with the Internal Revenue Service with respect to any
administrative or judicial proceedings for the adjustment of Partnership items
required to be taken into account by a Partner for income tax purposes (such
administrative proceedings being referred to as a “tax audit” and such judicial
proceedings being referred to as “judicial review”), and in the settlement
agreement the tax matters partner may expressly state that such agreement shall
bind all Partners, except that such settlement agreement shall not bind any
Partner

     

    (1)           who
(within the time prescribed pursuant to the Code and Regulations) files a
statement with the Internal Revenue Service providing that the tax matters
partner shall not have the authority to enter into a settlement agreement on
behalf of such Partner; or

     

    (2)           who
is a “notice partner” (as defined in Section 6231(a)(8) of the Code) or a member
of a “notice group” (as defined in Section 6223(b)(2) of the Code);

     

    (B)           in
the event that a notice of a final administrative adjustment at the Partnership
level of any item required to be taken into account by a Partner for tax
purposes (a “final adjustment”) is mailed to the tax matters partner, to seek
judicial review of such final adjustment, including the filing of a petition for
readjustment with the Tax Court or the filing of a complaint for refund with the
United States Claims Court or the District Court of the United States for the
district in which the Partnership’s principal place of business is
located;

     

    (C)           to
intervene in any action brought by any other Partner for judicial review of a
final adjustment;

     

    (D)           to
file a request for an administrative adjustment with the Internal Revenue
Service and, if any part of such request is not allowed by the Internal Revenue
Service, to file an appropriate pleading (petition or complaint) for judicial
review with respect to such request;

     

    
      
        
        

      

      
        40

        
          

        

      

      
        
        

      

    

     

    (E)           to enter
into an agreement with the Internal Revenue Service to extend the period for
assessing any tax which is attributable to any item required to be taken account
of by a Partner for tax purposes, or an item affected by such item;
and

     

    (F)           to
take any other action on behalf of the Partners or the Partnership in connection
with any tax audit or judicial review proceeding to the extent permitted by
applicable law or regulations.

     

    The
taking of any action and the incurring of any expense by the tax matters partner
in connection with any such proceeding, except to the extent required by law, is
a matter in the sole and absolute discretion of the tax matters partner and the
provisions relating to indemnification of the General Partner set forth in
Section 7.6 of this Agreement shall be fully applicable to the tax matters
partner in its capacity as such.

     

    (b)                      The
tax matters partner shall receive no compensation for its services.

     

    (ii)           All
third party costs and expenses incurred by the tax matters partner in performing
its duties as such (including legal and accounting fees and expenses) shall be
borne by the Partnership.

     

    (iii)          Nothing
herein shall be construed to restrict the Partnership from engaging an
accounting firm to assist the tax matters partner in discharging its duties
hereunder, so long as the compensation paid by the Partnership for such services
is reasonable.

     

    
      	
              10.4

            	
              Organizational
      Expenses

            


    

     

    The
Partnership shall elect to deduct expenses, if any, incurred by it in organizing
the Partnership ratably over a one hundred eighty (180) month period as provided
in Section 709 of the Code.

     

    
      	
              10.5

            	
              Withholding

            


    

     

    (a)           Each
Limited Partner hereby authorizes the Partnership to withhold from, or pay on
behalf of or with respect to, such Limited Partner any amount of federal, state,
local, or foreign taxes that the General Partner determines that the Partnership
is required to withhold or pay with respect to any amount distributable or
allocable to such Limited Partner pursuant to this Agreement, including, without
limitation, any taxes required to be withheld or paid by the Partnership
pursuant to Sections 1441, 1442, 1445, or 1446 of the Code.

     

    (b)                     Any
amount paid on behalf of or with respect to a Limited Partner shall constitute a
loan by the Partnership to such Limited Partner, which loan shall be repaid by
such Limited Partner as the case may be within fifteen (15) days after notice
from the General Partner that such payment must be made unless

     

    (A)           the
Partnership withholds such payment from a distribution which would otherwise be
made to the Limited Partner; or

     

    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

     

    (B)           the
General Partner determines, in its sole and absolute discretion, that such
payment may be satisfied out of the available funds of the Partnership which
would, but for such payment, be distributed to the Limited Partner.

     

    (ii)           Any
amounts withheld pursuant to the foregoing clauses (i)(A) or (B) shall be
treated as having been distributed to the Limited Partner.

     

    (c)                     Each
Limited Partner hereby unconditionally and irrevocably grants to the Partnership
a security interest in such Limited Partner’s Partnership Interest, as the case
may be, to secure such Limited Partner’s obligation to pay to the Partnership
any amounts required to be paid pursuant to this Section 10.5.

     

    (ii)                     In
the event that a Limited Partner fails to pay when due any amounts owed to the
Partnership pursuant to this Section 10.5, the General Partner may, in its sole
and absolute discretion, elect to make the payment to the Partnership on behalf
of such defaulting Limited Partner, and in such event shall be deemed to have
loaned such amount to such defaulting Limited Partner and shall succeed to all
rights and remedies of the Partnership as against such defaulting Limited
Partner.

     

    (B)        Without
limitation, in such event, the General Partner shall have the right to receive
distributions that would otherwise be distributable to such defaulting Limited
Partner until such time as such loan, together with all interest thereon, has
been paid in full, and any such distributions so received by the General Partner
shall be treated as having been distributed to the defaulting Limited Partner
and immediately paid by the defaulting Limited Partner to the General Partner in
repayment of such loan.

     

    (iii)           Any
amount payable by a Limited Partner hereunder shall bear interest at the highest
base or prime rate of interest published from time to time by The Wall Street
Journal, plus four (4) percentage points, but in no event higher than the
maximum lawful rate of interest on such obligation, such interest to accrue from
the date such amount is due (i.e., fifteen (15) days after demand) until such
amount is paid in full.

     

    (iv)           Each
Limited Partner shall take such actions as the Partnership or the General
Partner shall request in order to perfect or enforce the security interest
created hereunder.

     

    ARTICLE
11

    TRANSFERS
AND WITHDRAWALS

     

    
      	
              11.1

            	
              Transfer

            


    

     

    (a)                     The
term “Transfer,” when used in this Article 11 with respect to a Partnership
Interest or a Partnership Unit, shall be deemed to refer to a transaction by
which the General Partner purports to assign all or any part of its General
Partner Interest to another Person, or a Limited Partner purports to assign all
or any part of its Limited Partner Interest to another Person, and includes a
sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange
or any other disposition by law or otherwise.

     

    
      
        
        

      

      
        42

        
          

        

      

      
        
        

      

    

     

    (ii)          The
term “Transfer” when used in this Article 11 does not include any exchange of
Partnership Units for cash or REIT Stock pursuant to the Exchange Rights
Agreement.

     

    (b)                     No
Partnership Interest shall be Transferred, in whole or in part, except in
accordance with the terms and conditions set forth in this Article
11.

     

    (ii)          Any
Transfer or purported Transfer of a Partnership Interest not made in accordance
with this Article 11 shall be null and void.

     

    
      	
              11.2

            	
              Transfer of the
      General Partner’s General Partner
  Interest

            


    

     

    (a)           The
General Partner may not Transfer any of its General Partner Interest or withdraw
as General Partner, or Transfer any of its Limited Partner Interest,
except

     

    (i)           if
holders of at least two-thirds of the Limited Partner Interests consent to such
Transfer or withdrawal;

     

    (ii)          if
such Transfer is to an entity which is wholly owned by the General Partner and
is a Qualified REIT Subsidiary as defined in Section 856(i) of the Code;
or

     

    (iii)         in
connection with a transaction described in Section 11.2(c) or 11.2(d) (as
applicable)

     

    (b)           In
the event the General Partner withdraws as general partner of the Partnership in
accordance with Section 11.2(a), the General Partner’s General Partner Interest
shall immediately be converted into a Limited Partner Interest.

     

    (c)           Except
as otherwise provided in Section 11.2(d), the General Partner shall not engage
in any merger, consolidation or other combination of the General Partner with or
into another Person (other than a merger in which the General Partner is the
surviving entity) or sale of all or substantially all of its assets, or any
reclassification, or any recapitalization of outstanding REIT Stock (other than
a change in par value, or from par value to no par value, or as a result of a
subdivision or combination of REIT Stock) (a “Transaction”),
unless

     

    (i)           in
connection with the Transaction all Limited Partners will either receive, or
will have the right to elect to receive, for each Partnership Unit an amount of
cash, securities, or other property equal to the product of the Exchange Factor
and the amount of cash, securities or other property or value paid in the
Transaction to or received by a holder of one share of REIT Stock corresponding
to such Partnership Unit in consideration of one share of REIT Stock at any time
during the period from and after the date on which the Transaction is
consummated; provided that if, in connection with the Transaction, a purchase,
tender or exchange offer (“Offer”) shall have
been made to and accepted by the holders of more than 50% of the outstanding
REIT Stock, each holder of Partnership Units shall be given the option to
exchange its Partnership Units for the amount of cash, securities, or other
property which a Limited Partner would have received had it

     

    
      
        
        

      

      
        43

        
          

        

      

      
        
        

      

    

     

    (A)           exercised
its Exchange Right and

     

    (B)           sold,
tendered or exchanged pursuant to the Offer the REIT Stock received upon
exercise of the Exchange Right immediately prior to the expiration of the
Offer.

     

    The
foregoing is not intended to, and does not, affect the ability of (i) a
stockholder of the General Partner to sell its stock in the General Partner or
(ii) the General Partner to perform its obligations (under agreement or
otherwise) to such stockholders (including the fulfillment of any obligations
with respect to registering the sale of stock under applicable securities
laws).

     

    (d)                     Notwithstanding
Section 11.2(c), the General Partner may merge into or consolidate with another
entity if immediately after such merger or consolidation

     

    (A)           substantially
all of the assets of the successor or surviving entity (the “Surviving General
Partner”), other than Partnership Units held by the General Partner, are
contributed to the Partnership as a Capital Contribution in exchange for
Partnership Units with a fair market value equal to the value of the assets so
contributed as determined by the Surviving General Partner in good faith
and

     

    (B)           the
Surviving General Partner expressly agrees to assume all obligations of the
General Partner hereunder.

     

    (ii)                      Upon
such contribution and assumption, the Surviving General Partner shall have the
right and duty to amend this Agreement and the Exchange Rights Agreement as set
forth in this Section 11.2(d).

     

    (B)                      The
Surviving General Partner shall in good faith arrive at a new method for the
calculation of the Exchange Factor for a Partnership Unit after any such merger
or consolidation so as to approximate the existing method for such calculation
as closely as reasonably possible.

     

    (2)           Such
calculation shall take into account, among other things, the kind and amount of
securities, cash and other property that was receivable upon such merger or
consolidation by a holder of REIT Stock or options, warrants or other rights
relating thereto, and which a holder of Partnership Units could have acquired
had such Partnership Units been redeemed for REIT Stock immediately prior to
such merger or consolidation.

     

    (C)           Such
amendment to this Agreement shall provide for adjustment to such method of
calculation, which shall be as nearly equivalent as may be practicable to the
adjustments provided for with respect to the Exchange Factor.

     

    
      
        
        

      

      
        44

        
          

        

      

      
        
        

      

    

     

    (iii)         The
above provisions of this Section 11.2(d) shall similarly apply to successive
mergers or consolidations permitted hereunder.

     

    
      	
              11.3

            	
              Limited Partners’
      Rights to Transfer

            


    

     

    (a)           Subject
to the provisions of Sections 11.3(c), 11.3(d), 11.3(e), 11.4 and 11.6, a
Limited Partner may, without the consent of the General Partner, Transfer all or
any portion of its Limited Partner Interest, or any of such Limited Partner’s
economic right as a Limited Partner. In order to effect such transfer, the
Limited Partner must deliver to the General Partner a duly executed copy of the
instrument making such transfer and such instrument must evidence the written
acceptance by the assignee of all of the terms and conditions of this Agreement
and represent that such assignment was made in accordance with all applicable
laws and regulations.

     

    (b)                     If
a Limited Partner is Incapacitated, the executor, administrator, trustee,
committee, guardian, conservator or receiver of such Limited Partner’s estate
shall have all of the rights of a Limited Partner, but not more rights than
those enjoyed by other Limited Partners, for the purpose of settling or managing
the estate and such power as the Incapacitated Limited Partner possessed to
Transfer all or any part of his or its interest in the Partnership.

     

    (ii)           The
Incapacity of a Limited Partner, in and of itself, shall not dissolve or
terminate the Partnership.

     

    (c)           The
General Partner may prohibit any Transfer by a Limited Partner of its
Partnership Units if it reasonably believes (based on the advice of counsel)
such Transfer would require filing of a registration statement under the
Securities Act of 1933, as amended, or would otherwise violate any federal or
state securities laws or regulations applicable to the Partnership or the
Partnership Units.

     

    (d)           No
Transfer by a Limited Partner of its Partnership Units may be made to any Person
if

     

    (i)           it
would adversely affect the ability of the General Partner to continue to qualify
as a REIT or would subject the General Partner to any additional taxes under
Section 857 or Section 4981 of the Code;

     

    (ii)          it
would result in the Partnership being treated as an association taxable as a
corporation for federal income tax purposes;

     

    (iii)         such
Transfer would cause the Partnership 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(c) of the Code);

     

    (iv)         such
Transfer would, in the opinion of legal counsel for the Partnership, cause any
portion of the assets of the Partnership to constitute assets of any employee
benefit plan pursuant to Department of Labor Regulations Section
2510.2-101;

     

    
      
        
        

      

      
        45

        
          

        

      

      
        
        

      

    

     

    (v)          such
Transfer would subject the Partnership to regulation under the Investment
Company Act of 1940, the Investment Advisors Act of 1940 or the Employee
Retirement Income Security Act of 1974, each as amended;

     

    (vi)         without
the consent of the General Partner, which consent may be withheld in its sole
and absolute discretion, such Transfer is a sale or exchange, and such sale or
exchange would, when aggregated with all other sales and exchanges during the
12-month period ending on the date of the proposed Transfer, result in 50% or
more of the interests in Partnership capital and profits being sold or exchanged
during such 12-month period; or

     

    (vii)        such
Transfer is effectuated through an “established securities market” or a
“secondary market (or the substantial equivalent thereof)” within the meaning of
Section 7704 of the Code.

     

    (e)           No
transfer of any Partnership Units may be made to a lender to the Partnership or
any Person who is related (within the meaning of Regulations Section 1.752-4(b))
to any lender to the Partnership whose loan constitutes a nonrecourse liability
(within the meaning of Regulations Section 1.752-1(a)(2)), without the consent
of the General Partner, which may be withheld in its sole and absolute
discretion, provided that as a condition to such consent the lender will be
required to enter into an arrangement with the Partnership and the General
Partner to exchange for the Cash Amount (as such term is defined in the Exchange
Rights Agreement) any Partnership Units in which a security interest is held
simultaneously with the time at which such lender would be deemed to be a
partner in the Partnership for purposes of allocating liabilities to such lender
under Section 752 of the Code.

     

    (f)           Any
Transfer in contravention of any of the provisions of this Section 11.3 shall be
void and ineffectual and shall not be binding upon, or recognized by, the
Partnership.

     

    
      	
              11.4

            	
              Substituted Limited
      Partners

            


    

     

    (a)            No
Limited Partner shall have the right to substitute a Permitted Transferee for a
Limited Partner in its place.

     

    (ii)          The
General Partner shall, however, have the right to consent to the admission of a
Permitted Transferee of the Partnership Interest of a Limited Partner pursuant
to this Section 11.4 as a Substituted Limited Partner, which consent may be
given or withheld by the General Partner in its sole and absolute
discretion.

     

    (iii)         The
General Partner’s failure or refusal to permit such transferee to become a
Substituted Limited Partner shall not give rise to any cause of action against
the Partnership or any Partner.

     

    (b)           A
transferee who has been admitted as a Substituted Limited Partner in accordance
with this Article 11 shall have all the rights and powers and be subject to all
the restrictions and liabilities of a Limited Partner under this
Agreement.

     

    
      
        
        

      

      
        46

        
          

        

      

      
        
        

      

    

     

    (c)            No
Permitted Transferee will be admitted as a Substituted Limited Partner, unless
such transferee has furnished to the General Partner evidence of acceptance in
form satisfactory to the General Partner of all of the terms and conditions of
this Agreement and, as it relates to the Substituted Limited Partners, the
Exchange Rights Agreement, including, without limitation, the power of attorney
granted in Section 2.4 hereof.

     

    (ii)           Upon
the admission of a Substituted Limited Partner, the General Partner shall amend
Exhibit A to reflect the name, address, number of Partnership Units, and
Percentage Interest of such Substituted Limited Partner, and to eliminate or
adjust, if necessary, the name, address and interest of the predecessor of such
Substituted Limited Partner.

     

    
      	
              11.5

            	
              Assignees

            


    

     

    (a)           If
the General Partner, in its sole and absolute discretion, does not consent to
the admission of any transferee as a Substituted Limited Partner, as described
in Section 11.4(a), such transferee shall be considered an Assignee for purposes
of this Agreement.

     

    (b)           An
Assignee shall be deemed to have had assigned to it, and shall be entitled to
receive distributions from the Partnership and the share of Net Income, Net
Losses and any other items of gain, loss, deduction or credit of the Partnership
attributable to the Partnership Units assigned to such transferee, but shall not
be deemed to be a holder of Partnership Units for any other purpose under this
Agreement, and shall not be entitled to vote such Partnership Units in any
matter presented to the Limited Partners, for a vote (such Partnership Units
being deemed to have been voted on such matter in the same proportion as all
other Partnership Units held by Limited Partners are voted).

     

    (c)           In
the event any such transferee desires to make a further assignment of any such
Partnership Units, such transferee shall be subject to all of the provisions of
this Article 11 to the same extent and in the same manner as any Limited Partner
desiring to make an assignment of Partnership Units.

     

    
      	
              11.6

            	
              General
      Provisions

            


    

     

    (a)           No
Limited Partner may withdraw from the Partnership other than as a result of a
permitted Transfer of all of such Limited Partner’s Partnership Units in
accordance with this Article 11 or, as it relates to the Limited Partners,
pursuant to exchange of all of its Partnership Units pursuant to the applicable
Exchange Rights Agreement.

     

    (b)                     Any
Limited Partner which shall Transfer all of its Partnership Units in a Transfer
permitted pursuant to this Article 11 shall cease to be a Limited Partner upon
the admission of all Assignees of such Partnership Units as Substituted Limited
Partners.

     

    (ii)           Similarly,
any Limited Partner which shall Transfer all of its partnership Units pursuant
to an exchange of all of its Partnership Units pursuant to an Exchange Rights
Agreement shall cease to be a Limited Partner.

     

    
      
        
        

      

      
        47

        
          

        

      

      
        
        

      

    

     

    (c)           Other
than pursuant to the Exchange Rights Agreement or with the consent of the
General Partner, transfers pursuant to this Article 11 may only be made as of
the first day of a fiscal quarter of the Partnership.

     

    (d)                     If
any Partnership Interest is transferred or assigned during the Partnership’s
fiscal year in compliance with the provisions of this Article 11 or exchanged
pursuant to the applicable Exchange Rights Agreement on any day other than the
first day of a Partnership Year, then Net Income, Net Losses, each item thereof
and all other items attributable to such interest for such Partnership Year
shall be divided and allocated between the transferor Partner and the transferee
Partner by taking into account their varying interests during the Partnership
Year in accordance with Section 706(d) of the Code, using the interim closing of
the books method.

     

    (ii)           Solely
for purposes of making such allocations, each of such items for the calendar
month in which the Transfer or assignment occurs shall be allocated to the
transferee Partner, and none of such items for the calendar month in which an
exchange occurs shall be allocated to the exchanging Partner, provided, however,
that the General Partner may adopt such other conventions relating to
allocations in connection with transfers, assignments, or exchanges as it
determines are necessary or appropriate.

     

    (iii)           All
distributions pursuant to Section 5.1(a) attributable to Partnership Units, with
respect to which the Partnership Record Date is before the date of such
Transfer, assignment, or exchange of such Partnership Units, shall be made to
the transferor Partner or the exchanging Partner, as the case may be, and in the
case of a Transfer or assignment other than an exchange, all distributions
pursuant to Section 5.1(a) thereafter attributable to such Partnership Units
shall be made to the transferee Partner.

     

    (e)           In
addition to any other restrictions on transfer herein contained, including
without limitation the provisions of this Article 11, in no event may any
Transfer or assignment of a Partnership Interest by any Partner (including
pursuant to Section 8.6) be made without the express consent of the General
Partner, in its sole and absolute discretion, (i) to any person or entity who
lacks the legal right, power or capacity to own a Partnership Interest; (ii) in
violation of applicable law; (iii) of any component portion of a Partnership
Interest, such as the Capital Account, or rights to distributions, separate and
apart from all other components of a Partnership Interest; (iv) if in the
opinion of legal counsel to the Partnership such transfer would cause a
termination of the Partnership for federal or state income tax purposes (except
as a result of the exchange for REIT Stock of all Partnership Units held by all
Limited Partners or pursuant to a transaction expressly permitted under Section
7.11 or Section 11.2); (v) if in the opinion of counsel to the Partnership,
there would be a significant risk that such transfer would cause the Partnership
to cease to be classified as a partnership for federal income tax purposes
(except as a result of the exchange for REIT Stock of all Partnership Units held
by all Limited Partners or pursuant to a transaction expressly permitted under
Section 7.11 or Section 11.2); (vi) if such transfer requires the registration
of such Partnership Interest pursuant to any applicable federal or state
securities laws; (vii) 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 of the Code or such transfer causes
the Partnership to become a “publicly traded partnership,” as such term is
defined in Section 469(k)(2) or Section 7704(b) of the Code (provided that this
clause (vii) shall not be the basis for limiting or restricting in any manner
the exercise of the Exchange Right under Section 8.6 unless, and only to the
extent that, outside tax counsel provides to the General Partner an opinion to
the effect that, in the absence of such limitation or restriction, there is a
significant risk that the Partnership will be treated as a “publicly traded
partnership” and, by reason thereof, taxable as a corporation); (viii) such
transfer could adversely affect the ability of the General Partner to remain
qualified as a REIT; or (ix) if in the opinion of legal counsel of the
transferring Partner (which opinion and counsel are reasonably satisfactory to
the Partnership), or legal counsel of the Partnership, such transfer would
adversely affect the ability of the General Partner to continue to qualify as a
REIT or subject the General Partner to any additional taxes under Section 857 or
Section 4981 of the Code, in the event that the General Partner has elected to
be qualified as a REIT.

     

    
      
        
        

      

      
        48

        
          

        

      

      
        
        

      

    

     

    (f)           The
General Partner shall monitor the transfers of interests in the Partnership to
determine (i) if such interests are being traded on an “established securities
market” or a “secondary market” (or the substantial equivalent thereof) within
the meaning of Section 7704 of the Code; and (ii) whether additional transfers
of interests would result in the Partnership being unable to qualify for at
least one of the “safe harbors” set forth in Regulations Section 1.7704-1 (or
such other guidance subsequently published by the IRS setting forth safe harbors
under which interests will not be treated as “readily tradable on a secondary
market (or the substantial equivalent thereof)” within the meaning of Section
7704 of the Code) (the “Safe Harbors”). The General Partner shall take all steps
reasonably necessary or appropriate to prevent any trading of interests or any
recognition by the Partnership of transfers made on such markets and, except as
otherwise provided herein, to insure that at least one of the Safe Harbors is
met; provided, however, that the foregoing shall not authorize the General
Partner to limit or restrict in any manner the right of any holder of a
Partnership Unit to exercise the Exchange Right in accordance with the terms of
the applicable Exchange Rights Agreement unless, and only to the extent that,
outside tax counsel provides to the General Partner an opinion to the effect
that, in the absence of such limitation or restriction, there is a significant
risk that the Partnership will be treated as a “publicly traded partnership”
and, by reason thereof, taxable as a corporation.

     

    ARTICLE
12

    ADMISSION
OF PARTNERS

     

    
      	
              12.1

            	
              Admission of Successor
      General Partner

            


    

     

    (a)                     A
successor to all of the General Partner Interest pursuant to Section 11 hereof
who is proposed to be admitted as a successor General Partner shall be admitted
to the Partnership as the General Partner, effective immediately following such
transfer and the admission of such successor General Partner as a general
partner of the Partnership upon the satisfaction of the terms and conditions set
forth in Section 12.1(b).

     

    
      
        
        

      

      
        49

        
          

        

      

      
        
        

      

    

     

    (ii)           Any
such transferee shall carry on the business of the Partnership without
dissolution.

     

    (b)           A
Person shall be admitted as a substitute or successor General Partner of the
Partnership only if the following terms and conditions are
satisfied:

     

    (i)           the
Person to be admitted as a substitute or additional General Partner shall have
accepted and agreed to be bound by all the terms and provisions of this
Agreement by executing a counterpart thereof and such other documents or
instruments as may be required or appropriate in order to effect the admission
of such Person as a General Partner;

     

    (ii)           if
the Person to be admitted as a substitute or additional General Partner is a
corporation or a partnership it shall have provided the Partnership with
evidence satisfactory to counsel for the Partnership of such Person’s authority
to become a General Partner and to be bound by the terms and provisions of this
Agreement; and

     

    (iii)           counsel
for the Partnership shall have rendered an opinion (relying on such opinions
from other counsel as may be necessary) that the admission of the person to be
admitted as a substitute or additional General Partner is in conformity with the
Act, that none of the actions taken in connection with the admission of such
Person as a substitute or additional General Partner will cause

     

    (A)           the
Partnership to be classified other than as a partnership for federal income tax
purposes, or

     

    (B)           the
loss of any Limited Partner’s limited liability.

     

    (c)           In
the case of such admission on any day other than the first day of a Partnership
Year, all items attributable to the General Partner Interest for such
Partnership Year shall be allocated between the transferring General Partner and
such successor as provided in Section 11.6(d) hereof.

     

    
      	
              12.2

            	
              Admission of
      Additional Limited Partners

            


    

     

    (a)           A
Person who makes a Capital Contribution to the Partnership in accordance with
this Agreement shall be admitted to the Partnership as an Additional Limited
Partner only upon furnishing to the General Partner

     

    (i)           evidence
of acceptance in form satisfactory to the General Partner of all of the terms
and conditions of this Agreement and the applicable Exchange Rights Agreement,
including, without limitation, the power of attorney granted in Section 2.4
hereof, and

     

    (ii)           such
other documents or instruments as may be required in the discretion of the
General Partner in order to effect such Person’s admission as an Additional
Limited Partner.

     

    (b)           Notwithstanding
anything to the contrary in this Section 12.2, no Person shall be admitted as an
Additional Limited Partner without the consent of the General Partner, which
consent may be given or withheld in the General Partner’s sole and absolute
discretion.

     

    
      
        
        

      

      
        50

        
          

        

      

      
        
        

      

    

     

    (ii)           The
admission of any Person as an Additional Limited Partner shall become effective
on the date upon which the name of such Person is recorded on the books and
records of the Partnership, following the consent of the General Partner to such
admission.

     

    (c)                     If
any Additional Limited Partner is admitted to the Partnership on any day other
than the first day of a Partnership Year, then Net Income, Net Losses, each item
thereof and all other items allocable among Partners and Assignees for such
Partnership Year shall be allocated among such Additional Limited Partner and
all other Partners and Assignees by taking into account their varying interests
during the Partnership Year in accordance with Section 706(d) of the Code, using
the interim closing of the books method.

     

    (ii)                      Solely
for purposes of making such allocations, each of such items for the calendar
month in which an admission of any Additional Limited Partner occurs shall be
allocated among all of the Partners and Assignees, including such Additional
Limited Partner.

     

    (B)           distributions
pursuant to Section 5.1(a) with respect to which the Partnership Record Date is
before the date of such admission shall be made solely to Partners and
Assignees, other than the Additional Limited Partner, and all distributions
pursuant to Section 5.1(a) thereafter shall be made to all of the Partners and
Assignees, including such Additional Limited Partner.

     

    (d)           Upon
the admission of the first Additional Limited Partner to the Partnership, the
Initial Limited Partner’s original interest in the Partnership shall
automatically, and without further action on the part of the Initial Limited
Partner or the Partnership, be withdrawn.

     

    
      	
              12.3

            	
              Amendment of Agreement
      and Certificate of Limited
Partnership

            


    

     

    For the
admission to the Partnership of any Partner, the General Partner shall take all
steps necessary and appropriate under the Act to amend the records of the
Partnership and, if necessary, to prepare as soon as practical an amendment of
this Agreement (including an amendment of Exhibit A) and, if required by law,
shall prepare and file an amendment to the Certificate and may for this purpose
exercise the power of attorney granted pursuant to Section 2.4
hereof.

     

    ARTICLE
13

    DISSOLUTION,
LIQUIDATION AND TERMINATION

     

    
      	
              13.1

            	
              Dissolution

            


    

     

    (a)           The
Partnership shall not be dissolved by the admission of Substituted Limited
Partners, Additional Limited Partners or by the admission of a successor General
Partner in accordance with the terms of this Agreement. Upon the withdrawal of
the General Partner, any successor General Partner shall continue the business
of the Partnership.

     

    
      
        
        

      

      
        51

        
          

        

      

      
        
        

      

    

     

    (b)           The
Partnership shall dissolve, and its affairs shall be wound up, only upon the
first to occur of any of the following (“Liquidating
Events”):

     

    (i)           the
expiration of its term as provided in Section 2.5 hereof;

     

    (ii)          an
event of withdrawal of the General Partner, as defined in the Act (other than an
event of bankruptcy), unless, within ninety (90) days after such event of
withdrawal, a “majority in interest” (as defined below) of the remaining
Partners Consent in writing to continue the business of the Partnership and to
the appointment, effective as of the date of withdrawal, of a successor General
Partner;

     

    (iii)         an
election to dissolve the Partnership made by the General Partner, with the
Consent of the Limited Partners holding at least a majority of the Percentage
Interest of the Limited Partners (including Limited Partner Interests held by
the General Partner);

     

    (iv)         entry
of a decree of judicial dissolution of the Partnership pursuant to the
provisions of the Act;

     

    (v)          a
Capital Transaction;

     

    (vi)         a
final and non-appealable judgment is entered by a court of competent
jurisdiction ruling that the General Partner is bankrupt or insolvent, or a
final and non-appealable order for relief is entered by a court with appropriate
jurisdiction against the General Partner, in each case under any federal or
state bankruptcy or insolvency laws as now or hereafter in effect, unless prior
to the entry of such order or judgment and a “majority in interest” (as defined
below) of the remaining Partners Consent in writing to continue the business of
the Partnership and to the appointment, effective as of a date prior to the date
of such order or judgment, of a substitute General Partner.

     

    As used
herein, a “majority in interest” shall refer to Partners (excluding the General
Partner) who hold more than fifty percent (50%) of the outstanding Percentage
Interests not held by the General Partner.

     

    
      	
              13.2

            	
              Winding
      Up

            


    

     

    (a)                        Upon
the occurrence of a Liquidating Event, the Partnership shall continue solely for
the purposes of winding up its affairs in an orderly manner, liquidating its
assets, and satisfying the claims of its creditors and Partners.

     

    (ii)          No
Partner shall take any action that is inconsistent with, or not necessary to or
appropriate for, the winding up of the Partnership’s business and
affairs.

     

    (iii)         The
General Partner, or, in the event there is no remaining General Partner, any
Person elected unanimously by the Limited Partners holding at least a “majority
in interest” (the General Partner or such other Person being referred to herein
as the “Liquidator”), shall be responsible for overseeing the winding up and
dissolution of the Partnership and shall take full account of the Partnership’s
liabilities and property and the Partnership property shall be liquidated as
promptly as is consistent with obtaining the fair value thereof, and the
proceeds therefrom (which may, to the extent determined by the General Partner,
include shares of common stock or other securities of the General Partner) shall
be applied and distributed in the following order:

     

    
      
        
        

      

      
        52

        
          

        

      

      
        
        

      

    

     

    (A)           First,
to the payment and discharge of all of the Partnership’s debts and liabilities
to creditors other than the Partners;

     

    (B)           Second,
to the payment and discharge of all of the Partnership’s debts and liabilities
to the General Partner;

     

    (C)           Third,
to the payment and discharge of all of the Partnership’s debts and liabilities
to the other Partners; and

     

    (D)           the
balance, if any, shall be distributed to all Partners with positive Capital
Accounts.

     

    (iv)           The
General Partner shall not receive any additional compensation for any services
performed pursuant to this Article 13.

     

    (v)           Any
distributions pursuant to this Section 13.2(a) shall be made by the end of the
Partnership’s taxable year in which the liquidation occurs (or, if later, within
90 days after the date of the liquidation).

     

    (b)                        Notwithstanding
the provisions of Section 13.2(a) hereof which require liquidation of the assets
of the Partnership, but subject to the order of priorities set forth therein, if
prior to or upon dissolution of the Partnership the Liquidator determines that
an immediate sale of part or all of the Partnership’s assets would be
impractical or would cause undue loss to the Partners, the Liquidator may, in
its sole and absolute discretion, defer for a reasonable time the liquidation of
any asset except those necessary to satisfy liabilities of the Partnership
(including to those Partners as creditors) or distribute to the Partners, in
lieu of cash, as tenants in common and in accordance with the provisions of
Section 13.2(a) hereof, undivided interests in such Partnership assets as the
Liquidator deems not suitable for liquidation.

     

    (ii)          Any
such distributions in kind shall be made only if, in the good faith judgment of
the Liquidator, such distributions in kind are in the best interests of the
Partners, and shall be subject to such conditions relating to the disposition
and management of such properties as the Liquidator deems reasonable and
equitable and to any agreements governing the operation of such properties at
such time.

     

    (iii)         The
Liquidator shall determine the fair market value of any property distributed in
kind using such reasonable method of valuation as it may adopt.

     

    (c)           In
the discretion of the Liquidator, a pro rata portion of the distributions that
would otherwise be made to the General Partner and Limited Partners pursuant to
this Article 13 may be:

     

    (A)           distributed
to a trust established for the benefit of the General Partner and Limited
Partners for the purposes of liquidating Partnership assets, collecting amounts
owed to the Partnership, and paying any contingent or unforeseen liabilities or
obligations of the Partnership or the General Partner arising out of or in
connection with the Partnership; the assets of any such trust shall be
distributed to the General Partner and Limited Partners from time to time, in
the reasonable discretion of the Liquidator, in the same proportions as the
amount distributed to such trust by the Partnership would otherwise have been
distributed to the General Partner and Limited Partners pursuant to this
Agreement; or

     

    
      
        
        

      

      
        53

        
          

        

      

      
        
        

      

    

     

    (B)           withheld
or escrowed to provide a reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the unrealized portion of any
installment obligations owed to the Partnership, provided that such withheld or
escrowed amounts shall be distributed to the General Partner and Limited
Partners in the manner and order of priority set forth in Section 13.2(a), as
soon as practicable.

     

    
      	
              13.3

            	
              No Obligation to
      Contribute Deficit

            


    

     

    If any
Partner has a deficit balance in his Capital Account (after giving effect to all
contributions, distributions and allocations for all taxable years, including
the year during which such liquidation occurs), such Partner shall have no
obligation to make any contribution to the capital of the Partnership with
respect to such deficit, and such deficit shall not be considered a debt owed to
the Partnership or to any other Person for any purpose whatsoever.

     

    
      	
              13.4

            	
              Rights of Limited
      Partners

            


    

     

    (a)           Except
as otherwise provided in this Agreement, each Limited Partner shall look solely
to the assets of the Partnership for the return of its Capital Contributions and
shall have no right or power to demand or receive property other than cash from
the Partnership.

     

    (b)           Except
as otherwise provided in this Agreement, no Limited Partner shall have priority
over any other Partner as to the return of its Capital Contributions,
distributions, or allocations.

     

    
      	
              13.5

            	
              Notice of
      Dissolution

            


    

     

    In the
event a Liquidating Event occurs or an event occurs that would, but for the
provisions of an election or objection by one or more Partners pursuant to
Section 13.1, result in a dissolution of the Partnership, the General Partner
shall, within thirty (30) days thereafter, provide written notice thereof to
each of the Partners.

     

    
      	
              13.6

            	
              Termination of
      Partnership and Cancellation of Certificate of Limited
      Partnership

            


    

     

    Upon the
completion of the liquidation of the Partnership’s assets, as provided in
Section 13.2 hereof, the Partnership shall be terminated, a certificate of
cancellation shall be filed, and all qualifications of the Partnership as a
foreign limited partnership in jurisdictions other than the state of Delaware
shall be canceled and such other actions as may be necessary to terminate the
Partnership shall be taken.

     

    
      
        
        

      

      
        54

        
          

        

      

      
        
        

      

    

     

    
      	
              13.7

            	
              Reasonable Time for
      Winding-Up

            


    

     

    A
reasonable time shall be allowed for the orderly winding-up of the business and
affairs of the Partnership and the liquidation of its assets pursuant to Section
13.2 hereof in order to minimize any losses otherwise attendant upon such
winding-up, and the provisions of this Agreement shall remain in effect among
the Partners during the period of liquidation.

     

    
      	
              13.8

            	
              Waiver of
      Partition

            


    

     

    Each
Partner hereby waives any right to partition of the Partnership
property.

     

    ARTICLE
14

    AMENDMENT
OF PARTNERSHIP AGREEMENT; MEETINGS

     

    
      	
              14.1

            	
              Amendments

            


    

     

    (a)                      The
General Partner shall have the power, without the consent of the Limited
Partners, to amend this Agreement except as set forth in Section 14.1(b)
hereof.

     

    (ii)           The
General Partner shall provide notice to the Limited Partners when any action
under this Section 14.1(a) is taken in the next regular communication to the
Limited Partners.

     

    (b)           Notwithstanding
Section 14.1(a) hereof, this Agreement shall not be amended with respect
to

     

    (i)           any
Partner adversely affected without the Consent of such Partner adversely
affected if such amendment would:

     

    (A)           convert
a Limited Partner’s interest in the Partnership into a General Partner
Interest;

     

    (B)           modify
the limited liability of a Limited Partner in a manner adverse to such Limited
Partner; or

     

    (C)           amend
this Section 14.1(b)(i).

     

    (ii)           any
Limited Partner adversely affected without the Consent of Limited Partners
holding more than fifty percent (50%) of the outstanding Percentage Interests of
the Limited Partners adversely affected if such amendment would:

     

    (A)           alter
or change Exchange Rights;

     

    (B)           create
an obligation to make Capital Contributions not contemplated in this
Agreement;

     

    
      
        
        

      

      
        55

        
          

        

      

      
        
        

      

    

     

    (C)           alter
or change the terms of this Agreement or the Exchange Rights Agreement regarding
the rights of the limited partners with respect to Business
Combinations;

     

    (D)           alter
or change the distribution and liquidation rights provided in Section 5 and 13
hereto, except as otherwise permitted under this Agreement; or

     

    (E)           amend
this Section 14.1(b)(ii).

     

    Section
14.1(b)(i) does not require unanimous consent of all Partners adversely affected
unless the amendment is to be effective against all Partners adversely
affected.

     

    
      	
              14.2

            	
              Meetings of the
      Partners

            


    

     

    (a)                      Meetings
of the Partners may be called by the General Partner and shall be called upon
the receipt by the General Partner of a written request by Limited Partners
holding 25 percent or more of the Partnership Interests.

     

    (ii)           The
request shall state the nature of the business to be transacted.

     

    (iii)          Notice
of any such meeting shall be given to all Partners not less than seven (7) days
nor more than thirty (30) days prior to the date of such meeting.

     

    (iv)          Partners
may vote in person or by proxy at such meeting.

     

    (v)           Whenever
the vote or Consent of the Limited Partners is permitted or required under this
Agreement, such vote or Consent may be given at a meeting of the Partners or may
be given in accordance with the procedure prescribed in Section 14.1(a)
hereof.

     

    (vi)         
Except as otherwise expressly provided in this Agreement, the Consent of holders
of a majority of the Percentage Interests held by Partners (including the
General Partner) shall control.

     

    (b)                      Subject
to Section 14.2(a)(vi), any action required or permitted to be taken at a
meeting of the Partners may be taken without a meeting if a written consent
setting forth the action so taken is signed by a majority of the Percentage
Interests of the Partners (or such other percentage as is expressly required by
this Agreement).

     

    (ii)           Such
consent may be in one instrument or in several instruments, and shall have the
same force and effect as a vote of a majority of the Percentage Interests of the
Partners (or such other percentage as is expressly required by this
Agreement).

     

    (iii)          Such
consent shall be filed with the General Partner.

     

    (iv)         An
action so taken shall be deemed to have been taken at a meeting held on the
effective date of the consent as certified by the General Partner.

     

    
      
        
        

      

      
        56

        
          

        

      

      
        
        

      

    

     

    (c)                     
    Each Limited Partner may authorize any Person or Persons
to act for him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting.

     

    (ii)          Every
proxy must be signed by the Partner or an attorney-in-fact and a copy thereof
delivered to the Partnership.

     

    (iii)         No
proxy shall be valid after the expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy.

     

    (iv)         Every
proxy shall be revocable at the pleasure of the Partner executing it, such
revocation to be effective upon the General Partner’s receipt of written notice
of such revocation from the Partner executing such proxy.

     

    (d)                    
     Each meeting of the Partners shall be conducted by the
General Partner or such other Person as the General Partner may appoint pursuant
to such rules for the conduct of the meeting as the General Partner or such
other Person deems appropriate.

     

    (ii)          Meetings
of Partners may be conducted in the same manner as meetings of the stockholders
of the General Partner and may be held at the same time, and as part of,
meetings of the stockholders of the General Partner.

     

    ARTICLE
15

    GENERAL
PROVISIONS

     

    
      	
              15.1

            	
              Addresses and
      Notice

            


    

     

    Any
notice, demand, request or report required or permitted to be given or made to a
Partner or Assignee under this Agreement shall be in writing and shall be deemed
given or made when delivered in person or five days after being sent by first
class United States mail or by overnight delivery or via facsimile to the
Partner or Assignee at the address set forth in Exhibit A or such other address
of which the Partner shall notify the General Partner in writing.
Notwithstanding the foregoing, the General Partner may elect to deliver any such
notice, demand, request or report by E-mail or by any other electronic means, in
which case such communication shall be deemed given or made one day after being
sent.

     

    
      	
              15.2

            	
              Titles and
      Captions

            


    

     

    All
article or section titles or captions in this Agreement are for convenience of
reference only, shall not be deemed part of this Agreement and shall in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to “Articles” and
“Sections” are to Articles and Sections of this Agreement.

     

    
      
        
        

      

      
        57

        
          

        

      

      
        
        

      

    

     

    
      	
              15.3

            	
              Pronouns and
      Plurals

            


    

     

    Whenever
the context may require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.

     

    
      	
              15.4

            	
              Further
      Action

            


    

     

    The
parties shall execute and deliver all documents, provide all information and
take or refrain from taking action as may be necessary or appropriate to achieve
the purposes of this Agreement.

     

    
      	
              15.5

            	
              Binding
      Effect

            


    

     

    This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their heirs, executors, administrators, successors, legal representatives
and permitted assigns.

     

    
      	
              15.6

            	
              Creditors

            


    

     

    Other
than as expressly set forth herein with respect to the Indemnities, none of the
provisions of this Agreement shall be for the benefit of, or shall be
enforceable by, any creditor of the Partnership.

     

    
      	
              15.7

            	
              Waiver

            


    

     

    No
failure by any party to insist upon the strict performance of any covenant,
duty, agreement or condition of this Agreement or to exercise any right or
remedy consequent upon a breach thereof shall constitute waiver of any such
breach or any other covenant, duty, agreement or condition.

     

    
      	
              15.8

            	
              Counterparts

            


    

     

    This
Agreement may be executed in counterparts, all of which together shall
constitute one agreement binding on all of the parties hereto, notwithstanding
that all such parties are not signatories to the original or the same
counterpart. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto.

     

    
      	
              15.9

            	
              Applicable
      Law

            


    

     

    This
Agreement shall be construed and enforced in accordance with and governed by the
laws of the State of Delaware, without regard to the principles of conflicts of
laws thereof.

     

    
      	
              15.10

            	
              Invalidity of
      Provisions

            


    

     

    If any
provision of this Agreement is or becomes invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.

     

    
      
        
        

      

      
        58

        
          

        

      

      
        
        

      

    

     

    
      	
              15.11

            	
              Entire
      Agreement

            


    

     

    This
Agreement contains the entire understanding and agreement among the Partners
with respect to the subject matter hereof and supersedes any other prior written
or oral understandings or agreements among them with respect
thereto.

     

    
      	
              15.12

            	
              Merger

            


    

     

    Subject
to Section 4.2 herein, the Partnership may merge with, or consolidate into, any
Person or Entity in accordance with Section 17-211 of the Act.

     

    
      	
              15.13

            	
              No Rights as
      Stockholders

            


    

     

    Nothing
contained in this Agreement shall be construed as conferring upon the holders of
the Partnership Units any rights whatsoever as stockholders of the General
Partner, including, without limitation, any right to receive dividends or other
distributions made to shareholders or to vote or to consent or receive notice as
shareholders in respect to any meeting or shareholders for the election of
directors of the General Partner or any other matter.

     

    [SIGNATURE
PAGE FOLLOWS]

     

    
      
        
        

      

      
        59

        
          

        

      

      
        
        

      

    

     

    Signature
Page to Agreement of Limited Partnership of Empire American Realty Operating


    Partnership,
LP, by and among the undersigned and the other parties thereto.

     

    GENERAL
PARTNER:


     

    EMPIRE
AMERICAN REALTY TRUST, INC.

    


     

    By:  ________________________________

    Name:  Ezra
Beyman

    Title:  Chief Executive
Officer

     

    LIMITED
PARTNER:


     

    EMPIRE
AMERICAN ADVISORS, LLC

     

     

    By:  _________________________________

    Name:  Ezra
Beyman

    Title:  Chief Executive
Officer

     

    ASSOCIATE
LIMITED PARTNER:


     

    EMPIRE
AMERICAN ALP, LLC


     

    By: EAH
Holdings, LLC, its sole member

     

    By:  Empire
American Holdings, LLC, its sole member

    


              By:  EAH
MN Inc., its managing member

    


                   By:  ________________________

    Name:  Ezra
Beyman

    Title:  President

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Corporate/Limited
Liability Company Additional Limited Partner Signature Page to Agreement


    of
Limited Partnership of Empire American Realty Operating Partnership, LP, by and
among the 

    undersigned
and the other parties thereto.

     

    
      	
              Dated:  ____________
      __, 20___

            	
              [Name
      of Corporation/LLC]

               

               

              By:
      _____________________________

              Name:

              Title:

            
	 
      	 
      


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Individual
Additional Limited Partner Signature Page to Agreement of Limited Partnership of


    Empire
American Realty Operating Partnership, LP, by and among the undersigned and the


    other
parties thereto.

     

    
      	
              Dated:  ____________
      __, 20___

            	 
      
	 
      	 
      
	 
      	
              ______________________________________

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Partnership
Limited Partner Signature Page to Agreement of Limited Partnership of Empire


    American
Realty Operating Partnership, LP, by and among the undersigned and the other


    parties
thereto.

     

    
      	
              Dated:  ____________
      __, 20___

            	
              [Name
      of LP]

               

               

              By:
      _________________________________

              Name:

              Title:

            
	 
      	 
      


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
A

     

    Partners’
Contributions and Partnership Interests

     

    
      
        
          
            
              	
                      Name and Address of Partner

                    	
                      Type of Interest

                    	
                      Capital 

                      Contribution

                    	
                      Number
      of 

                      Partnership Units

                    	
                      Percentage
      

                      Interest

                    
	
                      Empire
      American Realty Trust, Inc.

                       

                      25
      Philips Parkway

                      Montvale,
      New Jersey 07645

                    	
                      General
      Partnership Interest

                    	
                      $200,000

                    	
                      20,000

                    	
                      99.01%

                    
	
                      Empire
      American Advisors, LLC

                       

                      25
      Philips Parkway

                      Montvale,
      New Jersey 07645

                    	
                      Limited
      Partnership Interest

                    	
                      $2,000

                    	
                      200

                    	
                      0.99%

                    
	
                      Empire
      American ALP, LLC

                       

                      25
      Philips Parkway

                      Montvale,
      New Jersey 07645

                    	
                      Subordinated
      15% interest in distributions described in Section
      5.1(b)(ii)(A)

                    	
                      None

                    	
                      Not
      applicable

                    	
                      Not
      applicable

                    


            

          

        

      

    

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    Exhibit
B

     

    Allocations

     

    1.           Allocation of Net Income and
Net Loss. Except as otherwise provided in this Agreement, Net Income, Net
Loss and, to the extent necessary, individual items of income, gain, loss or
deduction, of the Partnership shall be allocated among the Partners in a manner
such that the Capital Account of each Partner, immediately after making such
allocation, is, as nearly as possible, equal proportionately to (i) the
distributions that would be made to such Partner pursuant to Section 5.1(b) if
the Partnership were dissolved, its affairs wound up and its assets sold for
cash equal to their Gross Asset Value, all Partnership liabilities were
satisfied (limited with respect to each nonrecourse liability to the Gross Asset
Value of the assets securing such liability), and the net assets of the
Partnership were distributed in accordance with Section 5.1(b) to the Partners
immediately after making such allocation, minus (ii) such Partner’s share of
Partnership minimum gain (within the meaning of Regulation Section 1.704-2(d))
and Partner nonrecourse debt minimum gain (within the meaning of Regulation
Section 1.704-2(i)(5)), computed immediately prior to the hypothetical sale of
assets.

     

    2.           Special Allocations.
Notwithstanding any provisions of paragraph 1 of this Exhibit B, the following
special allocations shall be made.

     

    (a)           Minimum Gain Chargeback
(Nonrecourse Liabilities). Except as otherwise provided in Section
1.704-2(f) of the Regulations, if there is a net decrease in Partnership Minimum
Gain for any Partnership fiscal year, each Partner shall be specially allocated
items of Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to such Partner’s share of the net decrease
in Partnership Minimum Gain to the extent required by Regulations Section
1.704-2(f). The items to be so allocated shall be determined in accordance with
Sections 1.704-2(f) and (i) of the Regulations. This subparagraph 2(a) is
intended to comply with the minimum gain chargeback requirement in said section
of the Regulations and shall be interpreted consistently therewith. Allocations
pursuant to this subparagraph 2(a) shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant hereto.

     

    (b)           Partner Minimum Gain
Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the
Regulations, if there is a net decrease in Partner Minimum Gain attributable to
a Partner Nonrecourse Debt during any fiscal year, each Partner who has a share
of the Partner Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be
specially allocated items of Partnership income and gain for such year (and, if
necessary, subsequent years) in an amount equal to that Partner’s share of the
net decrease in the Partner Minimum Gain attributable to such Partner
Nonrecourse Debt to the extent and in the manner required by Section 1.704-2(i)
of the Regulations. The items to be so allocated shall be determined in
accordance with Sections 1.704-2(i)(4) and (j)(2) of the Regulations. This
subparagraph 2(b) is intended to comply with the minimum gain chargeback
requirement with respect to Partner Nonrecourse Debt contained in said section
of the Regulations and shall be interpreted consistently therewith. Allocations
pursuant to this subparagraph 2(b) shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant hereto.

     

    
      
        
        

      

      
        B-1

        
          

        

      

      
        
        

      

    

     

    (c)           Qualified Income
Offset. In the event a Partner unexpectedly receives any adjustments,
allocations or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), (5)
or (6) of the Regulations, and such Partner has an Adjusted Capital Account
Deficit, items of Partnership income (including gross income) and gain shall be
specially allocated to such Partner in an amount and manner sufficient to
eliminate the Adjusted Capital Account Deficit as quickly as possible as
required by the Regulations. This subparagraph 2(c) is intended to constitute a
“qualified income offset” under Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.

     

    (d)           Other Chargeback of
Impermissible Negative Capital Account. To the extent any Partner has an
Adjusted Capital Account Deficit at the end of any Partnership fiscal year, each
such Partner shall be specially allocated items of Partnership income (including
gross income) and gain in the amount of such excess as quickly as possible,
provided that an allocation pursuant to this paragraph 2(d) shall be made if and
only to the extent that such Partner would have an Adjusted Capital Account
Deficit after all other allocations provided for in this Exhibit B have been
tentatively made as if this paragraph 2(d) were not in the
Agreement.

     

    (e)           Nonrecourse
Deductions. Nonrecourse Deductions for any fiscal year or other
applicable period shall be allocated to the Partners in accordance with their
respective Percentage Interests.

     

    (f)           Partner Nonrecourse
Deductions. Partner Nonrecourse Deductions for any fiscal year or other
applicable period with respect to a Partner Nonrecourse Debt shall be specially
allocated to the Partner that bears the economic risk of loss for such Partner
Nonrecourse Debt (as determined under Sections 1.704-2(b)(4) and 1.704-2(i)(1)
of the Regulations).

     

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

     

    (h)           Gross Income
Allocation. There shall be specially allocated to the General Partner an
amount of Partnership income and gain during each Partnership Year or portion
thereof, before any other allocations are made hereunder, which is equal to the
excess, if any, of the cumulative distributions of cash made to the General
Partner under Section 7.3(b) hereof over the cumulative allocations of
Partnership income and gain to the General Partner pursuant to this Section 2(h)
of this Exhibit B.

     

    3.           Tax
Allocations.

     

    (a)           Items of Income or
Loss. Except as is otherwise provided in this Exhibit B, an allocation of
Partnership Net Income or Net Loss to a Partner shall be treated as an
allocation to such Partner of the same share of each item of income, gain, loss,
deduction and item of tax-exempt income or Section 705(a)(2)(B) expenditure (or
item treated as such expenditure pursuant to Regulations Section
1.704-1(b)(2)(iv)(i)) (“Tax Items”) that is taken into account in computing Net
Income or Net Loss.

     

    
      
        
        

      

      
        B-2

        
          

        

      

      
        
        

      

    

     

    (b)           Section 1245/1250
Recapture. If any portion of gain from the sale of Partnership assets is
treated as gain which is ordinary income by virtue of the application of Code
Sections 1245 or 1250 (“Affected Gain”), then such Affected Gain shall be
allocated among the Partners in the same proportion that the depreciation and
amortization deductions giving rise to the Affected Gain were allocated. This
subparagraph 3(b) shall not alter the amount of Net Income (or items thereof)
allocated among the Partners, but merely the character of such Net Income (or
items thereof). For purposes hereof, in order to determine the proportionate
allocations of depreciation and amortization deductions for each fiscal year or
other applicable period, such deductions shall be deemed allocated on the same
basis as Net Income and Net Loss for such respective period.

     

    (c)           Precontribution Gain,
Revaluations. With respect to any Contributed Property, the Partnership
shall use any permissible method contained in the Regulations promulgated under
Section 704(c) of the Code selected by the General Partner, in its sole
discretion, to take into account any variation between the adjusted basis of
such asset and the fair market value of such asset as of the time of the
contribution (“Precontribution Gain”). Each Partner hereby agrees to report
income, gain, loss and deduction on such Partner’s federal income tax return in
a manner consistent with the method used by the Partnership. If any asset has a
Gross Asset Value which is different from the Partnership’s adjusted basis for
such asset for federal income tax purposes because the Partnership has revalued
such asset pursuant to Regulations Section 1.704-1(b)(2)(iv)(f), the allocations
of Tax Items shall be made in accordance with the principles of Section 704(c)
of the Code and the Regulations and the methods of allocation promulgated
thereunder. The intent of this subparagraph 3(c) is that each Partner who
contributed to the capital of the Partnership a Contributed Property will bear,
through reduced allocations of depreciation, increased allocations of gain or
other items, the tax detriments associated with any Precontribution Gain. This
subparagraph 3(c) is to be interpreted consistently with such
intent.

     

    (d)           Excess Nonrecourse Liability
Safe Harbor. Pursuant to Regulations Section 1.752-3(a)(3), solely for
purposes of determining each Partner’s proportionate share of the “excess
nonrecourse liabilities” of the Partnership (as defined in Regulations Section
1.752-3(a)(3)), the Partners’ respective interests in Partnership profits shall
be determined under any permissible method reasonably determined by the General
Partner; provided, however, that each Partner who has contributed an asset to
the Partnership shall be allocated, to the extent possible, a share of “excess
nonrecourse liabilities” of the Partnership which results in such Partner being
allocated nonrecourse liabilities in an amount which is at least equal to the
amount of income pursuant to Section 704(c) of the Code and the Regulations
promulgated thereunder (the “Liability Shortfall”). In the event there is an
insufficient amount of nonrecourse liabilities to allocate to each Partner an
amount of nonrecourse liabilities equal to the Liability Shortfall, then an
amount of nonrecourse liabilities in proportion to, and to the extent of, the
Liability Shortfall shall be allocated to each Partner.

     

    (e)           References to
Regulations. Any reference in this Exhibit B or the Agreement to a
provision of proposed and/or temporary Regulations shall, in the event such
provision is modified or renumbered, be deemed to refer to the successor
provision as so modified or renumbered, but only to the extent such successor
provision applies to the Partnership under the effective date rules applicable
to such successor provision.)

     

    
      
        
        

      

      
        B-3

        
          

        

      

      
        
        

      

    

     

    (f)           Successor Partners.
For purposes of this Exhibit B, a transferee of a Partnership Interest shall be
deemed to have been allocated the Net Income, Net Loss and other items of
Partnership income, gain, loss, deduction and credit allocable to the
transferred Partnership Interest that previously have been allocated to the
transferor Partner pursuant to this Agreement.

     

    
      
        
        

      

      
        B-4

        
          

        

      

      
        
        

      

    

    


    Exhibit
C


     

    EXCHANGE
RIGHTS AGREEMENT

     

    THIS
EXCHANGE RIGHTS AGREEMENT (this “Agreement”),
dated as of ______, 20__, is entered into by and among Empire American Realty
Trust, Inc., a Maryland corporation (the “Company”),
Empire American Realty Operating Partnership, LP, a Delaware limited partnership
(the “Operating
Partnership”), and the Persons whose names are set forth on Exhibit A
attached hereto (as it may be amended from time to time).

     

    RECITALS:

     

    
      	
               
      

            	
              (c)

            	
              The
      Company, together with certain other limited partners, has formed the
      Operating Partnership pursuant to the Agreement of Limited Partnership of
      the Operating Partnership dated October 15, 2009 (as such agreement may be
      amended or amended and restated from time to time, the “Partnership
      Agreement”).

            


    

     

    
      	
               
      

            	
              (d)

            	
              Pursuant
      to the Partnership Agreement, the Limited Partners (as defined below)
      directly or indirectly hold units of limited partnership interest (“Partnership
      Units”) in the Operating
Partnership.

            


    

     

    
      	
               
      

            	
              (e)

            	
              The
      Operating Partnership has agreed to provide the Limited Partners with
      certain direct or indirect rights to exchange their Partnership Units for
      cash or, at the election of the Company, for shares of the Company’s
      common stock, $0.01 par value per share (the “REIT
      Stock”).

            


    

     

    Accordingly,
the parties hereto do hereby agree as follows:

     

    ARTICLE
I

    DEFINED
TERMS

     

    The
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, applied to the terms used in this
Agreement.

     

    “Assignee” means a Person to whom one
or more Partnership Units have been transferred in a manner permitted under the
Partnership Agreement, but who has not become a substituted Limited Partner in
accordance therewith.

     

    “Business
Day” means any
day except a Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required by law to close.

     

    “Cash
Amount” means an
amount of cash per Partnership Unit equal to the Value on the Valuation Date of
the REIT Stock Amount.

     

    “Exchange
Factor” means
1.0, provided, that in the event that the Company (i) declares or pays a
dividend on its outstanding REIT Stock in REIT Stock or makes a distribution to
all holders of its outstanding REIT Stock in REIT Stock; (ii) subdivides its
outstanding REIT Stock; or (iii) combines its outstanding REIT Stock into a
smaller number of shares of REIT Stock, the Exchange Factor shall be adjusted by
multiplying the Exchange Factor by a fraction, the numerator of which shall be
the number of shares of REIT Stock issued and outstanding on the record date for
such dividend, contribution, subdivision or combination (assuming for such
purpose that such dividend, distribution, subdivision or combination has
occurred as of such time), and the denominator of which shall be the actual
number of shares of REIT Stock (determined without the above assumption) issued
and outstanding on the record date for such dividend, distribution, subdivision
or combination. Any adjustment to the Exchange Factor shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.

     

    
      
        
        

      

      
        C-1

        
          

        

      

      
        
        

      

    

     

    “Exchanging
Partner” has the
meaning set forth in Section 2.1 hereof.

     

    “Exchange
Right” has the
meaning set forth in Section 2.1 hereof.

     

    “Lien” means any lien, security
interest, mortgage, deed of trust, charge, claim, encumbrance, pledge, option,
right of first offer or first refusal and any other right or interest of others
of any kind or nature, actual or contingent, or other similar encumbrance of any
nature whatsoever.

     

    “Limited
Partner” means
any Person, other than the Company, named as a Limited Partner on Exhibit A, as
such Exhibit may be amended from time to time.

     

    “Notice of
Exchange” means
the Notice of Exchange substantially in the form of Exhibit B to this
Agreement.

     

    “Offering” means the offering of the
Company’s common stock, par value $.01 per share, pursuant to a registration
statement on Form S-11 filed with the Securities and Exchange
Commission.

     

    “Person” shall mean an individual,
partnership, corporation, limited liability company, trust, estate, or
unincorporated organization, or other entity, or a government or agency or
political subdivision thereof.

     

    “REIT Stock
Amount” means
that number of shares of REIT Stock equal to the product of the number of
Partnership Units offered for exchange by an Exchanging Partner, multiplied by
the Exchange Factor as of the Valuation Date, provided, that in the event the
Company or the Operating Partnership issues to all holders of REIT Stock rights,
options, warrants or convertible or exchangeable securities entitling the
stockholders to subscribe for or purchase REIT Stock, or any other securities or
property (collectively, the “rights”), then the REIT Stock Amount shall also
include such rights that a holder of that number of shares of REIT Stock would
be entitled to receive.

     

    “SEC” means the Securities and
Exchange Commission.

     

    “Specified
Exchange Date”
means the tenth (10th) Business Day after receipt by the Operating Partnership
and the Company of a Notice of Exchange; provided, however, that if the
Operating Partnership has more than 99 partners, as determined in accordance
with the provisions of Treasury Regulation Section 1.7704-1(h), then the
Specified Exchange Date shall mean the thirty-first (31st) calendar day after
receipt by the Operating Partnership and the Company of a Notice of
Exchange.

     

    
      
        
        

      

      
        C-2

        
          

        

      

      
        
        

      

    

     

    “Valuation
Date” means the
date of receipt by the Operating Partnership and the Company of a Notice of
Exchange or, if such date is not a Business Day, the first Business Day
thereafter.

     

    “Value” means, with respect to
shares of REIT Stock, the average of the daily market price for the five (5)
consecutive trading days immediately preceding the Valuation Date. The market
price for each such trading day shall be:

     

    (i)           if
the REIT Stock are listed or admitted to trading on the New York Stock Exchange
(the “NYSE”) or
any other national securities exchange, the closing price on such day, or if no
such sale takes place on such day, the average of the closing bid and asked
prices on such day; or

     

    (ii)           if
the REIT Stock are not listed or admitted to trading on the NYSE or any other
national securities exchange, the last reported sale price on such day;
or

     

    (iii)           if
no sale takes place on such day, the average of the closing bid and asked prices
on such day, as reported by a reliable quotation source designated by the
Company or if the REIT Stock is not then traded on any market, as determined in
good faith by the Company’s Independent Directors (as defined by the Company’s
charter).

     

    In the
event the REIT Stock Amount includes rights that a holder of REIT Stock would be
entitled to receive, then the Value of such rights shall be determined by the
independent directors of the Company acting in good faith on the basis of such
quotations and other information as they consider, in their reasonable judgment,
appropriate.

     

    ARTICLE
II

    EXCHANGE
RIGHT

     

    2.1           Exchange Right.
(a)  (a)           Subject
to Sections 2.2, 2.3, 2.4 and 2.5 hereof, and subject to any limitations under
applicable law, the Operating Partnership hereby grants to each Limited Partner
and each Limited Partner hereby accepts the right (the “Exchange
Right”), exercisable (i) on or after the date that is one (1) year after
the closing of the Offering or (ii) upon the liquidation of the Operating
Partnership or the sale of all or substantially all of the assets of the
Operating Partnership, to exchange on a Specified Exchange Date all or a portion
of the Partnership Units held by such Limited Partner at an exchange price equal
to and in the form of the Cash Amount.

     

    (b)           The
Exchange Right shall be exercised pursuant to a Notice of Exchange delivered to
the Operating Partnership, with a copy delivered to the Company, by the Limited
Partner who is exercising the Exchange Right (the “Exchanging
Partner”); provided, however, that the Company, on behalf of the
Operating Partnership, may elect, after a Notice of Exchange is delivered, to
satisfy the Exchange Right which is the subject of such notice in accordance
with Section 2.2.

     

    
      
        
        

      

      
        C-3

        
          

        

      

      
        
        

      

    

     

    (c)           A
Limited Partner may exercise the Exchange Right from time to time with respect
to part or all of the Partnership Units that it owns, as selected by the Limited
Partner, provided that, except as provided in the Agreement, a Limited Partner
may not exercise the Exchange Right for less than one thousand (1,000)
Partnership Units unless such Limited Partner then holds less than one thousand
(1,000) Partnership Units, in which event the Limited Partner must exercise the
Exchange Right for all of the Partnership Units held by such Limited
Partner.

     

    (d)           An
Exchanging Partner shall have no right with respect to any Partnership Units so
exchanged to receive any distributions paid after the Specified Exchange Date
with respect to such Partnership Units.

     

    (e)           Any
Assignee of a Limited Partner may exercise the rights of such Limited Partner
pursuant to this Article 2, and such Limited Partner shall be deemed to have
assigned such rights to such Assignee and shall be bound by the exercise of such
rights by such Assignee.

     

    (f)           In
connection with any exercise of such rights by an Assignee on behalf of a
Limited Partner, the Cash Amount or the REIT Stock Amount, as the case may be,
shall be satisfied by the Operating Partnership or the Company, as the case may
be, directly to such Assignee and not to such Limited Partner.

     

    2.2           Option of Company to
Exchange for REIT Stock. (a)  (a)           Notwithstanding
the provisions of Section 2.1, the Company may, on behalf of the Operating
Partnership, in its sole and absolute discretion (subject to the limitations on
ownership and transfer of REIT Stock set forth in the Company’s charter), elect
to assume directly and satisfy an Exchanging Partner’s Exchange Right by
exchanging REIT Stock and rights equal to the REIT Stock Amount on the Specified
Exchange Date for the Partnership Units offered for exchange by the Exchanging
Partner, whereupon the Company shall acquire the Partnership Units offered for
exchange by the Exchanging Partner and shall be treated for all purposes of the
Partnership Agreement as the owner of such Partnership Units. Unless the
Company, in its sole and absolute discretion, shall exercise its right to assume
directly and satisfy the Exchange Right, the Company shall not have any
obligation to the Exchanging Partner or to the Operating Partnership with
respect to the Exchanging Partner’s exercise of the Exchange Right. If the
Company shall exercise its right to satisfy the Exchange Right in the manner
described in the first sentence of this Section 2.2 and shall fully perform its
obligations in connection therewith, the Operating Partnership shall have no
right or obligation to pay any amount to the Exchanging Partner with respect to
such Exchanging Partner’s exercise of the Exchange Right, and each of the
Exchanging Partner, the Operating Partnership and the Company shall, for federal
income tax purposes, treat the transaction between the Company and the
Exchanging Partner as a sale of the Exchanging Partner’s Partnership Units to
the Company. Nothing contained in this Section 2.2 shall imply any right of the
Company to require any Limited Partner to exercise the Exchange Right afforded
to such Limited Partner pursuant to Section 2.1.

     

    (b)           In
the event the Company shall elect to satisfy, on behalf of the Operating
Partnership, an Exchanging Partner’s Exchange Right by exchanging REIT Stock for
the Partnership Units offered for exchange,

     

    
      
        
        

      

      
        C-4

        
          

        

      

      
        
        

      

    

     

    (i)           the
Company hereby agrees so to notify the Exchanging Partner within five (5)
Business Days after the receipt by the Company of such Notice of
Exchange,

     

    (ii)           each
Exchanging Partner hereby agrees to execute such documents and instruments as
the Company may reasonably require in connection with the issuance of REIT Stock
upon exercise of the Exchange Right, and

     

    (iii)           the
Company hereby agrees to deliver stock certificates representing fully paid and
nonassessable shares of REIT Stock.

     

    2.3           Prohibition of Exchange for
REIT Stock. Notwithstanding anything herein to the contrary, the Company
shall not be entitled to satisfy an Exchanging Partner’s Exchange Right pursuant
to Section 2.2 if the delivery of REIT Stock to such Limited Partner by the
Company pursuant to Section 2.2 (regardless of the Operating Partnership’s
obligations to the Limited Partner under Section 2.1)

     

    (a)           would
be prohibited under the Articles of Incorporation of the Company,

     

    (b)           if
the Company has elected REIT status, would otherwise jeopardize the REIT status
of the Company, or

     

    (c)           would
cause the acquisition of the REIT Stock by the Limited Partner to be
“integrated” with any other distribution of REIT Stock by the Company for
purposes of complying with the registration provisions of the Securities
Act.

     

    2.4           Payment Date. Any
Cash Amount to be paid to an Exchanging Partner shall be paid on the Specified
Exchange Date; provided, however, that the Operating Partnership may elect to
cause the Specified Exchange Date to be delayed for up to an additional 180 days
to the extent required for the Company to cause additional REIT Shares to be
issued to provide financing to be used to make such payment of the Cash Amount
by the Operating Partnership.

     

    2.5           Expiration of Exchange
Right. The Exchange Right shall expire with respect to any Partnership
Units for which an Exchange Notice has not been delivered to the Operating
Partnership and the Company on or before December 31, 2040.

     

    2.6           Effect of Exchange.
(a)  (a)           Any
exchange of Partnership Units pursuant to this Article 2 shall be deemed to have
occurred as of the Specified Exchange Date for all purposes, including without
limitation the payment of distributions or dividends in respect of Partnership
Units or REIT Stock, as applicable.

     

    (b)           Any
Partnership Units acquired by the Company pursuant to an exercise by any Limited
Partner of an Exchange Right shall be deemed to be acquired by and reallocated
or reissued to the Company.

     

    (c)           The
Company, as general partner of the Operating Partnership, shall amend the
Partnership Agreement to reflect each such exchange and reallocation or
reissuance of Partnership Units and each corresponding recalculation of the
Partnership Units of the Limited Partners.

     

    
      
        
        

      

      
        C-5

        
          

        

      

      
        
        

      

    

     

    ARTICLE
III

    OTHER
PROVISIONS

     

    3.1           Covenants of the
Company. (a)  (a)           At
all times during the pendency of the Exchange Right, the Company shall reserve
for issuance such number of shares of REIT Stock as may be necessary to enable
the Company to issue such shares in full payment of the REIT Stock Amount in
regard to all Partnership Units held by Limited Partners which are from time to
time outstanding.

     

    (b)           During
the pendency of the Exchange Right, the Company shall deliver to Limited
Partners in a timely manner all reports filed by the Company with the SEC to the
extent the Company also transmits such reports to its stockholders and all other
communications transmitted from time to time by the Company to its stockholders
generally.

     

    (c)           The
Company shall notify each Limited Partner, upon request, of the then current
Exchange Factor and such notice will include a reasonable explanation of the
Exchange Factor calculation to be applied at such time.

     

    3.2           Fractional Shares.
(a)  (a)           No
fractional shares of REIT Stock shall be issued upon exchange of Partnership
Units.

     

    (b)           The
number of full shares of REIT Stock which shall be issuable upon exchange of
Partnership Units (or the cash equivalent amount thereof if the Cash Amount is
paid) shall be computed on the basis of the aggregate amount of Partnership
Units so surrendered.

     

    (c)           Instead
of any fractional shares of REIT Stock which would otherwise be issuable upon
exchange of any Partnership Units, the Operating Partnership shall pay a cash
adjustment in respect of such fraction in an amount equal to the Cash Amount of
a Partnership Unit multiplied by such fraction.

     

    3.3           Investment Representations
and Warranties. By delivering to the Company a Notice of Exchange, each
Exchanging Partner will be deemed to represent and warrant to the Company and
the Operating Partnership that such Exchanging Partner is aware of the Company’s
option to exchange such Exchanging Partner’s Partnership Units for REIT Stock
pursuant to Section 2.2 hereof and that:

     

    (a)           (i) 
(i)        such
Exchanging Partner has received and reviewed

     

    (A)           a
copy of the prospectus contained in the Registration Statement on Form S-11
filed by the Company in connection with the Offering, any prospectus contained
in any Registration Statement subsequently filed by the Company, and any
supplement or amendment thereto (each, a “Prospectus”),
and

     

    
      
        
        

      

      
        C-6

        
          

        

      

      
        
        

      

    

     

    (B)           if
the Company is filing reports under the Securities Exchange Act of 1934, as
amended, copies of all reports and other filings (the “SEC
Reports”), including Annual Reports on Form 10-K, Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K, made by the Company with the SEC
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder,

     

    and
understands the risks of, and other considerations relating to, an investment in
REIT Stock.

     

    (ii)           Such
Exchanging Partner, by reason of its business and financial experience, together
with the business and financial experience of those persons, if any, retained by
it to represent or advise it with respect to its investment in REIT
Stock,

     

    (A)           has
such knowledge, sophistication and experience in financial and business matters
and in making investment decisions of this type that it is capable of evaluating
the merits and risks of and of making an informed investment decision with
respect to an investment in REIT Stock,

     

    (B)           is
capable of protecting its own interest or has engaged representatives or
advisors to assist it in protecting its interests and

     

    (C)           is
capable of bearing the economic risk of such investment.

     

    (iii)           (A)

     

    (A)           Such
Exchanging Partner is an “accredited investor” as defined in Rule 501 of the
regulations promulgated under the Securities Act.

     

    (B)           If
such Exchanging Partner has retained or retains a person to represent or advise
it with respect to its investment in REIT Stock, such Exchanging Partner will
advise the Company of such retention and, at the Company’s request, such
Exchanging Partner shall, prior to or at delivery of the REIT Stock
hereunder,

     

    (I)           acknowledge
in writing such representation and

     

    (II)           cause
such representative or advisor to deliver a certificate to the Company
containing such representations as may be reasonably requested by the
Company.

     

    (b)           (i) 
(i)   
   Such Exchanging Partner understands that an investment in the
Company involves substantial risks.

     

    (ii)          
 Such Exchanging Partner has been given the opportunity to make a thorough
investigation of the activities of the Company and has been furnished with
materials relating to the Company and its activities, including, without
limitation, each Prospectus and the SEC Reports.

     

    
      
        
        

      

      
        C-7

        
          

        

      

      
        
        

      

    

     

    (iii)           Such
Exchanging Partner has relied and is making its investment decision based upon
the Prospectus/Consent Solicitation Statement relating to the Consolidation and
any subsequent Prospectus, the SEC Reports and other written information
provided to the Exchanging Partner by or on behalf of the Company and, as
applicable, such Exchanging Partner’s position as a director or executive
officer of the Company.

     

    (c)           (i) 
(i)       The
REIT Stock to be issued to such Exchanging Partner hereunder will be acquired by
such Exchanging Partner for its own account, for investment only and not with a
view to, or with any intention of, a distribution or resale thereof, in whole or
in part, or the grant of any participation therein.

     

    (ii)           Such
Exchanging Partner was not formed for the specific purpose of acquiring an
interest in the Company.

     

    (d)           (i)

     

    (i)           Such
Exchanging Partner acknowledges that

     

    (A)           the
shares of REIT Stock to be issued to such Exchanging Partner hereunder have not
been registered under the Securities Act or state securities laws by reason of a
specific exemption or exemptions from registration under the Securities Act and
applicable state securities laws and, the certificates representing such shares
of REIT Stock will bear a legend to such effect,

     

    (B)           the
Company’s and the Operating Partnership’s reliance on such exemptions is
predicated in part on the accuracy and completeness of the representations and
warranties of such Exchanging Partner contained herein,

     

    (C)           the
REIT Stock to be issued to such Exchanging Partner hereunder may not be resold
or otherwise distributed unless registered under the Securities Act and
applicable state securities laws, or unless an exemption from registration is
available,

     

    (D)           there
may be no market for unregistered shares of REIT Stock, and

     

    (E)           the
Company has no obligation or intention to register such REIT Stock under the
Securities Act or any state securities laws or to take any action that would
make available any exemption from the registration requirements of such laws,
except as provided in the Registration Rights Agreement entered into by the
Company and the Exchanging Partner (the “Registration
Rights Agreement”).

     

    (ii)           Such
Exchanging Partner acknowledges that because of the restrictions on transfer or
assignment of such REIT Stock to be issued hereunder, such Exchanging Partner
may have to bear the economic risk of its investment in REIT Stock issued
hereunder for an indefinite period of time, although the holder of any such REIT
Stock will be afforded certain rights to have such REIT Stock registered under
the Securities Act and applicable state securities laws pursuant to the
Registration Rights Agreement.

     

    
      
        
        

      

      
        C-8

        
          

        

      

      
        
        

      

    

     

    (e)           The
address set forth under such Exchanging Partner’s name in the Notice of Exchange
is the address of the Exchanging Partner’s principal place of business or, if a
natural person, the address of the Exchanging Partner’s residence, and such
Exchanging Partner has no present intention of becoming a resident of any
country, state or jurisdiction other than the country and state in which such
principal place of business or residence is situated.

     

    ARTICLE
IV

    GENERAL
PROVISIONS

     

    4.1           Addresses and Notice.
Any notice, demand, request or report required or permitted to be given or made
to the Operating Partnership, the Company, a Limited Partner or Assignee, as the
case may be, under this Agreement shall be in writing and shall be deemed given
or made when delivered in person or when sent by first class United States mail
or by other similarly reliable means of written communication to the Operating
Partnership, the Company, a Limited Partner or Assignee, as the case may be, at
the address listed on the records of the Operating Partnership.

     

    4.2           Titles and Captions.
All article or section titles or captions in this Agreement are for convenience
only. They shall not be deemed part of this Agreement and in no way define,
limit, extend or describe the scope or intent of any provisions hereof. Except
as specifically provided otherwise, references to “Articles” and “Sections” are
to Articles and Sections of this Agreement.

     

    4.3           Pronouns and Plurals.
Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice
versa.

     

    4.4           Further Action and
Additional Restrictions. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this
Agreement.

     

    4.5           Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors, legal
representatives and permitted assigns.

     

    4.6           Waiver. No failure by
any party to insist upon the strict performance of any covenant, duty, agreement
or condition of this Agreement or to exercise any right or remedy consequent
upon a breach thereof shall constitute waiver of any such breach or any other
covenant, duty, agreement or condition.

     

    4.7           Counterparts. This
Agreement may be executed in counterparts, all of which together shall
constitute one agreement binding on all of the parties hereto, notwithstanding
that all such parties are not signatories to the original or the same
counterpart. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto.

     

    
      
        
        

      

      
        C-9

        
          

        

      

      
        
        

      

    

     

    4.8           Applicable Law. This
Agreement shall be construed and enforced in accordance with and governed by the
laws of the State of Delaware, without regard to the principles of conflicts of
law thereof.

     

    4.9           Invalidity of
Provisions. If any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.

     

    4.10           Entire Agreement.
This Agreement contains the entire understanding and agreement among the Limited
Partners, the Operating Partnership and the Company with respect to the subject
matter hereof and supersedes any other prior written or oral understandings or
agreements among them with respect thereto.

     

    4.11           Amendment. This
Agreement may be amended from time to time with the consent of the Company by a
vote of the Limited Partners in the same manner as the Partnership Agreement (in
accordance with Section 14.1(a) thereof) may be amended as provided therein,
provided, however, that
the Company shall vote its limited partnership interests in proportion to the
votes of the other Limited Partners.

     

    
      
        
        

      

      
        C-10

        
          

        

      

      
        
        

      

    

    


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

     

    THE
COMPANY:

     

    EMPIRE
AMERICAN REALTY TRUST, INC.

     

    By:  ____________________________________

     
Name:

     
Title:

     

     

    OPERATING
PARTNERSHIP:

     

    EMPIRE
AMERICAN REALTY
OPERATING PARTNERSHIP, LP

     

    BY: EMPIRE
AMERICAN REALTY TRUST, INC., its general partner

     

    
      By:
_________________________________

      Name:

      Title:

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit A
- Exchange Rights Agreement

     

    Name and Address of Limited
Partner

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Exhibit B
– Exchange Rights Agreement

     

    Notice of
Exchange

     

    The
undersigned Limited Partner hereby irrevocably (i) exchanges ___________
Partnership Units in Empire American Realty Operating Partnership, LP, in
accordance with the terms of the Exchange Rights Agreement, dated as of _______,
20__ (the “Exchange Rights
Agreement”), and
the Exchange Right referred to therein; (ii) surrenders such Partnership Units
and all right, title and interest therein; and (iii) directs that the Cash
Amount or REIT Stock Amount (as determined by the Company) deliverable upon
exercise of the Exchange Right be delivered to the address specified below, and
if REIT Stock is to be delivered, such REIT Stock will be registered or placed
in the name(s) and at the address(es) specified below.  Capitalized
terms used but not defined herein shall have the meaning ascribed to such terms
in the Exchange Rights Agreement.

     

    The
undersigned hereby represents, warrants, and certifies that the undersigned (a)
has marketable and unencumbered title to such Partnership Units, free and clear,
other than any encumbrance arising pursuant to the Partnership Agreement, of the
rights or interests of any other person or entity; (b) has the full right,
power, and authority to exchange and surrender such Partnership Units as
provided herein; and (c) has obtained the consent or approval of all persons or
entities, if any, (other than consent or approval that may be required of the
Company or the Operating Partnership) having the right to consent or approve
such exchange and surrender on the part of the undersigned.

     

    The
undersigned hereby makes the representations and warranties contained in Section
3.3 of the Exchange Rights Agreement as if such representations and warranties
had been set forth in full in this Notice of Exchange.

     

    Dated:______________________                                ____________________________________

    Name of Limited Partner (Please
Print)

     

    Signature
guaranteed by:

    _____________________________________

    (Signature
of Limited Partner)

     

    _____________________________

     

    _____________________________________

    (Street
Address)

     

    _____________________________________

    (City)
(State)                                    (Zip
Code)

     

    If REIT
Stock is to be issued, issue to:

     

    Name:________________________________

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
D

     

    Certificate
of Limited Partnership