EX-10.5 AMENDED AND RESTATED AGREEMENT




Exhibit 10.5



AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP




OF




COLE REIT III OPERATING PARTNERSHIP, LP




May 6, 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINED TERMS	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II PARTNERSHIP FORMATION AND IDENTIFICATION	 	 	9	 
	 
	 	 	 	 	 	 
	2.1
	 	Formation	 	 	9	 
	2.2
	 	Name, Office and Registered Agent	 	 	9	 
	2.3
	 	Partners	 	 	9	 
	2.4
	 	Term and Dissolution	 	 	9	 
	2.5
	 	Filing of Certificate and Perfection of Limited Partnership	 	 	10	 
	2.6
	 	Certificates Describing Partnership Units	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE III BUSINESS OF THE PARTNERSHIP	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE IV CAPITAL CONTRIBUTIONS AND ACCOUNTS	 	 	10	 
	 
	 	 	 	 	 	 
	4.1
	 	Capital Contributions	 	 	10	 
	4.2
	 	Additional Capital Contributions and Issuances of Additional Partnership Interests	 	 	11	 
	4.3
	 	Additional Funding	 	 	12	 
	4.4
	 	Capital Accounts	 	 	13	 
	4.5
	 	Percentage Interests	 	 	13	 
	4.6
	 	No Interest on Contributions	 	 	13	 
	4.7
	 	Return of Capital Contributions	 	 	13	 
	4.8
	 	No Third-Party Beneficiary	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE V PROFIT AND LOSS; DISTRIBUTIONS	 	 	14	 
	 
	 	 	 	 	 	 
	5.1
	 	Allocation of Profit and Loss	 	 	14	 
	5.2
	 	Distributions of Cash	 	 	15	 
	5.3
	 	REIT Distribution Requirements	 	 	17	 
	5.4
	 	No Right to Distributions in Kind	 	 	17	 
	5.5
	 	Limitations on Return of Capital Contributions	 	 	17	 
	5.6
	 	Distributions Upon Liquidation	 	 	17	 
	5.7
	 	Substantial Economic Effect	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE VI RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER	 	 	18	 
	 
	 	 	 	 	 	 
	6.1
	 	Management of the Partnership	 	 	18	 
	6.2
	 	Delegation of Authority	 	 	20	 
	6.3
	 	Indemnification and Exculpation of Indemnitees	 	 	20	 






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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	6.4
	 	Liability of the General Partner	 	 	22	 
	6.5
	 	Reimbursement of General Partner	 	 	23	 
	6.6
	 	Outside Activities	 	 	24	 
	6.7
	 	Employment or Retention of Affiliates	 	 	24	 
	6.8
	 	Title to Partnership Assets	 	 	24	 
	6.9
	 	Miscellaneous	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE VII CHANGES IN GENERAL PARTNER	 	 	25	 
	 
	 	 	 	 	 	 
	7.1
	 	Transfer of the General Partner’s Partnership Interest	 	 	25	 
	7.2
	 	Admission of a Substitute or Additional General Partner	 	 	26	 
	7.3
	 	Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner	 	 	27	 
	7.4
	 	Removal of a General Partner	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE VIII RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS	 	 	28	 
	 
	 	 	 	 	 	 
	8.1
	 	Management of the Partnership	 	 	28	 
	8.2
	 	Power of Attorney	 	 	28	 
	8.3
	 	Limitation on Liability of Limited Partners	 	 	28	 
	8.4
	 	Ownership by Limited Partner of Corporate General Partner or Affiliate	 	 	29	 
	8.5
	 	Exchange Right	 	 	29	 
	8.6
	 	Call Right	 	 	30	 
	8.7
	 	Duties and Conflicts	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE IX TRANSFERS OF LIMITED PARTNERSHIP INTERESTS	 	 	32	 
	 
	 	 	 	 	 	 
	9.1
	 	Purchase for Investment	 	 	32	 
	9.2
	 	Restrictions on Transfer of Limited Partnership Interests	 	 	32	 
	9.3
	 	Admission of Substitute Limited Partner	 	 	33	 
	9.4
	 	Rights of Assignees of Partnership Interests	 	 	34	 
	9.5
	 	Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner	 	 	34	 
	9.6
	 	Joint Ownership of Interests	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE X BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS	 	 	35	 
	 
	 	 	 	 	 	 
	10.1
	 	Books and Records	 	 	35	 
	10.2
	 	Custody of Partnership Funds; Bank Accounts	 	 	35	 
	10.3
	 	Fiscal and Taxable Year	 	 	35	 
	10.4
	 	Annual Tax Information and Report	 	 	36	 
	10.5
	 	Tax Matters Partner; Tax Elections; Special Basis Adjustments	 	 	36	 
	10.6
	 	Reports to Limited Partners	 	 	36	 






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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE XI AMENDMENT OF AGREEMENT; MEETINGS	 	 	37	 
	 
	 	 	 	 	 	 
	11.1
	 	Amendment	 	 	37	 
	11.2
	 	Meetings of Partners	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE XII MERGER, EXCHANGE OR CONVERSION	 	 	39	 
	 
	 	 	 	 	 	 
	12.1
	 	Merger, Exchange or Conversion of Partnership	 	 	39	 
	12.2
	 	Approval of Plan of Merger, Exchange or Conversion	 	 	39	 
	12.3
	 	Rights of Dissenting Limited Partners	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE XIII GENERAL PROVISIONS	 	 	42	 
	 
	 	 	 	 	 	 
	13.1
	 	Notices	 	 	42	 
	13.2
	 	Survival of Rights	 	 	42	 
	13.3
	 	Additional Documents	 	 	42	 
	13.4
	 	Severability	 	 	42	 
	13.5
	 	Entire Agreement	 	 	42	 
	13.6
	 	Pronouns and Plurals	 	 	42	 
	13.7
	 	Headings	 	 	42	 
	13.8
	 	Counterparts	 	 	42	 
	13.9
	 	Governing  Law	 	 	42	 
	13.10
	 	Arbitration	 	 	42	 
	13.11
	 	Vote of Affiliated Limited Partners	 	 	43	 
	13.12
	 	Acknowledgement as to Exculpation and Indemnification	 	 	43	 
	 
	 	 	 	 	 	 
	INDEX OF EXHIBITS	 	 	 	 







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AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP




OF




COLE REIT III OPERATING PARTNERSHIP, LP




     This
Agreement of Limited Partnership is entered into effective as of the 6th day of May,
2008, by and among Cole Credit Property Trust III, Inc., a Maryland corporation, Cole REIT
Advisors III, LLC, a Delaware limited liability company (the “Original Limited Partner”), and the
Limited Partner(s) set forth or which may, in the future, be set forth on Exhibit A hereto,
as amended from time to time, with respect to Cole REIT III Operating Partnership, LP, a limited partnership
formed under the laws of the State of Delaware (the “Partnership”), pursuant to a Certificate of
Limited Partnership filed with the Office of the Secretary of State of the State of Delaware
effective as of the date hereof.



RECITALS




     WHEREAS, the parties desire to enter into this Agreement in order to set forth the terms and
conditions under which the Partnership will be operated as well as the rights, obligations, and
limitations of the General Partner and the Limited Partners with respect to each other and the
Partnership as a whole;



     NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants between the parties
to this Agreement, and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the parties agree as follows:



AGREEMENT




ARTICLE I

DEFINED TERMS




     The following defined terms used in this Agreement shall have the meanings specified below:


“Act” means the Delaware Revised Uniform Limited Partnership Act, as it may be amended from time to
time.



“Additional Funds” has the meaning set forth in Section 4.3 hereof.



“Additional Limited Partner” means a Person admitted to the Partnership as a Limited Partner
pursuant to Section 4.2 hereof and who is shown as such on the books and records of the
Partnership.



“Additional Securities” has the meaning set forth in Section 4.2(b) hereof.



“Administrative Expenses” means (i) all administrative and operating costs and expenses incurred by
the Partnership, (ii) those administrative costs and expenses of the General Partner, including any
salaries or other payments to directors, officers or employees of the General Partner, and any
accounting and legal expenses of the General Partner, which expenses, the Partners have agreed, are
expenses of the Partnership and not the General Partner, and (iii) to the extent not included in
clause (ii) above, REIT Expenses; provided, however, that Administrative Expenses shall not include
any administrative costs and expenses incurred by the General Partner that are attributable to
Properties or partnership interests in a Subsidiary Partnership that are owned by the General
Partner directly.




 









 







“Advisor” or “Advisors” means the Person or Persons, if any, appointed, employed or contracted with
by the General Partner pursuant to its Articles of Incorporation and responsible for directing or
performing the day-to-day business affairs of the General Partner, including any Person to whom the
Advisor subcontracts all or substantially all of such functions.



“Affiliate” or “Affiliated” means, with respect to any Person, (i) any Person directly or
indirectly owning, controlling or holding, with the power to vote, 10% or more of the outstanding
voting securities of such other Person; (ii) any Person 10% or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held, with the power to vote, by such
other Person; (iii) any Person directly or indirectly controlling, controlled by or under common
control with such other Person; (iv) any executive officer, director, trustee or general partner of
such other Person; and (v) any legal entity for which such Person acts as an executive officer,
director, trustee or general partner.



“Agreed Value” means (i) the fair market value of a Partner’s non-cash Capital Contribution as of
the date of contribution as agreed to by such Partner and the General Partner as of the date of
contribution as set forth on Exhibit A hereto, as it may be amended from time to time, or
(ii) in the case of any contribution or distribution of property other than cash not set forth on
Exhibit A, the fair market value of such property as determined by the General Partner at
the time such property is contributed or distributed, reduced by liabilities either assumed by the
Partnership or Partner upon such contribution or distribution or to which such property is subject
when the property is contributed or distributed.



“Agreement” means this Agreement of Limited Partnership, as it may be amended or restated from time
to time.



“Articles of Incorporation” means the Articles of Incorporation of the General Partner filed with
the Maryland State Department of Assessments and Taxation, as amended or restated from time to
time.



“Call Notice” means a Call Notice, as defined in Section 8.6(a) hereof and substantially in the
form of Exhibit C hereto.



“Call Right” has the meaning provided in Section 8.6(a) hereof.



“Capital Account” has the meaning provided in Section 4.4 hereof.



“Capital Contribution” means the total amount of cash, cash equivalents, and the Agreed Value of
any Property or other asset contributed or agreed to be contributed, as the context requires, to
the Partnership by each Partner pursuant to the terms of the Agreement. Any reference to the
Capital Contribution of a Partner shall include the Capital Contribution made by a predecessor
holder of the Partnership Interest of such Partner.



“Cash Amount” means an amount of cash equal to the Value of the REIT Shares Amount on the date of
receipt by the General Partner of an Exchange Notice.



“Certificate” means the Partnership’s Certificate of Limited Partnership, as originally filed with
the Delaware Secretary of State and as amended from time to time.



“Code” means the Internal Revenue Code of 1986, as amended, and as hereafter amended from time to
time. Reference to any particular provision of the Code shall mean that provision in the Code at
the date hereof and any successor provision of the Code.



“Cole Credit Property Trust III” means Cole Credit Property Trust III, Inc., a Maryland corporation.




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“Commission” means the U.S. Securities and Exchange Commission.



“Competent Independent Expert” shall mean a Person with no material current or prior business or
personal relationship with the General Partner or the Partnership who is engaged to a substantial
extent in the business of rendering opinions regarding the value of the assets of the type held by
the Partnership and who is qualified to perform such work. Membership in a nationally recognized
appraisal society such as the American Institute of Real Estate Appraisers or the Society of Real
Estate Appraisers shall be conclusive evidence of such qualification.



“Conversion Factor” means 1.0, provided, that in the event that the General Partner (i) declares or
pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all
holders of its outstanding REIT Shares in REIT Shares, (ii) subdivides its outstanding REIT Shares,
or (iii) combines its outstanding REIT Shares into a smaller number of REIT Shares, the Conversion
Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the numerator of which
shall be the number of REIT Shares issued and outstanding on the record date for such dividend,
distribution, subdivision or combination (assuming for such purposes that such dividend,
distribution, subdivision or combination has occurred as of such time), and the denominator of
which shall be the actual number of REIT Shares (determined without the above assumption) issued
and outstanding on such date, and provided further, that in the event that an entity other than an
Affiliate of the General Partner shall become General Partner pursuant to any merger, consolidation
or combination of the General Partner with or into another entity (the “Successor Entity”), the
Conversion Factor shall be adjusted by multiplying the Conversion Factor by the number of shares of
the Successor Entity into which one REIT Share is converted pursuant to such merger, consolidation
or combination, determined as of the date of such merger, consolidation or combination. Any
adjustment to the Conversion Factor shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event; provided, however, that if the
General Partner receives an Exchange Notice after the record date, but prior to the effective date
of such dividend, distribution, subdivision or combination, the Conversion Factor shall be
determined as if the General Partner had received the Exchange Notice immediately prior to the
record date for such dividend, distribution, subdivision or combination.



“Dissenting Limited Partner” has the meaning provided in Section 12.3(a) hereof.



“Event of Bankruptcy” as to any Person means (i) the filing of a petition for relief as to such
Person as debtor or bankrupt under the Bankruptcy Code of 1978 or similar provision of law of any
jurisdiction (except if such petition is contested by such Person and has been dismissed within 90
days); (ii) the insolvency or bankruptcy of such Person as finally determined by a court
proceeding; (iii) the filing by such Person of a petition or application to accomplish the same or
for the appointment of a receiver or a trustee for such Person or a substantial part of his assets;
and (iv) the commencement of any proceedings relating to such Person as a debtor under any other
reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction,
whether now in existence or hereinafter in effect, either by such Person or by another, provided,
that if such proceeding is commenced by another, such Person indicates his approval of such
proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person
and has not been finally dismissed within 90 days.



“Exchange Amount” means either the Cash Amount or the REIT Shares Amount, as selected by the
General Partner in its sole and absolute discretion pursuant to Section 8.5(b) hereof.



“Exchange Notice” means a Notice of Exercise of Exchange Right, substantially in the form of
Exhibit B hereto.



“Exchange Right” has the meaning provided in Section 8.5(a) hereof.




3









 







“Exchanging Partner” has the meaning provided in Section 8.5(a) hereof.



“General
Partner” means Cole Credit Property Trust III, and any Person who becomes a substitute or
additional General Partner as provided herein, and any successors thereto.



“General Partnership Interest” means a Partnership Interest held by the General Partner that is a
general partnership interest.



“GP Capital” means the aggregate of Capital Contributions of cash made by the General Partner in
accordance with Sections 4.1 and 4.2 hereof.



“GP Minimum Return” means such amount as may be necessary or required to allow the General Partner
to meet its distribution requirement for qualification as a REIT as set forth in Section 857 of the
Code and to avoid any federal income or excise tax liability imposed by the Code.



“Holding Period” means, with respect to Partnership Units acquired by Additional Limited Partners
hereunder, the period commencing on the date of issuance of such Units through and including the
fourth anniversary of such date of acquisition.



“Indemnitee” means (i) any Person made a party to a proceeding by reason of its status as the
General Partner or a director, officer or employee of the General Partner or the Partnership, and
(ii) such other Persons (including Affiliates of the General Partner or the Partnership) as the
General Partner may designate from time to time, in its sole and absolute discretion.



“Joint Venture” means any joint venture or partnership arrangement in which the Partnership is a
co-venturer or general partner established to acquire or hold Properties, Mortgages or other
investments of the General Partner.



“Limited Partner” means the Original Limited Partner, any Person named as a Limited Partner on
Exhibit A attached hereto, and any Person who becomes a Substitute or Additional Limited
Partner in such person’s capacity as a Limited Partner in the Partnership.



“Limited Partnership Interest” means the ownership interest of a Limited Partner in the Partnership
at any particular time, including the right of such Limited Partner to any and all benefits to
which such Limited Partner may be entitled as provided in this Agreement and in the Act, together
with the obligations of such Limited Partner to comply with all the provisions of this Agreement
and of such Act.



“Liquidating Event” has the meaning set forth in Section 2.4 hereof.



“Loss” has the meaning provided in Section 5.1(f) hereof.



“LP Capital” means the aggregate of Capital Contributions in cash or cash equivalents and the
Agreed Value of any non-cash contributions to the Partnership made by a Limited Partner in
accordance with Sections 4.1 and 4.2.



“LP Return” means, with regard to any Limited Partner, an amount equal to the aggregate cash
dividends that would have been payable to such Limited Partner with respect to the applicable
fiscal period if such Limited Partner had owned REIT Shares equal in number to the product of
Partnership Units owned by such Limited Partner during such fiscal period multiplied by the
Conversion Factor then in effect.




4









 







“Mortgage” means, in connection with mortgage financing provided, invested in or purchased by the
Partnership, any note, deed of trust, security interest or other evidence of indebtedness or
obligations, which is secured or collateralized by real property owned by the borrower under such
note, deed of trust, security interest or other evidence of indebtedness or obligations.



“Net Capital Proceeds” means the net cash proceeds received by the Partnership in connection with
(i) any Sale, (ii) any borrowing or refinancing of borrowing(s) by the Partnership, (iii) any
condemnation or deeding in lieu of condemnation of all or a portion of any Property, (iv) any
collection in respect of property, hazard, or casualty insurance (but not business interruption
insurance) or any damage award; or (v) any other transaction the proceeds of which, in accordance
with generally accepted accounting principles, are considered to be capital in nature, in each
case, after deduction of (a) all costs and expenses incurred by the Partnership with regard to such
transactions (including, without limitation, any repayment of any indebtedness required to be
repaid as a result of such transaction or which the General Partner elects to pay out of the
proceeds of such transaction, together with accrued interest and premium, if any, thereon and any
sales commissions or other costs or expenses due and payable to any Person in connection therewith,
including to a Partner or its Affiliates), and (b) all amounts expended by the Partnership for the
acquisition of additional Properties, Mortgages or other investments or for capital repairs or
improvements to any Property with such cash proceeds.



“New Allocations” has the meaning set forth in Section 5.7.



“Offer” has the meaning set forth in Section 7.1(c)(ii).



“Offering” means the initial offer and sale by the General Partner of REIT Shares to the public.



“Original Limited Partner” has the meaning set forth in the preamble.



“Partner” means any General Partner or Limited Partner.



“Partner Nonrecourse Debt Minimum Gain” has the meaning set forth in Regulations Section
1.704-2(i). A Partner’s share of Partner Nonrecourse Debt Minimum Gain shall be determined in
accordance with Regulations Section 1.704-2(i)(5).



“Partnership” has the meaning set forth in the preamble.



“Partnership Interest” means an ownership interest in the Partnership held 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.



“Partnership Minimum Gain” has the meaning set forth in Regulations Section 1.704-2(b)(2). In
accordance with Regulations Section 1.704-2(d), the amount of Partnership Minimum Gain is
determined by first computing, for each Partnership nonrecourse liability, any gain the Partnership
would realize if it disposed of the property subject to that liability for no consideration other
than full satisfaction of the liability, and then aggregating the separately computed gains. A
Partner’s share of Partnership Minimum Gain shall be determined in accordance with Regulations
Section 1.704-2(g)(1).



“Partnership Record Date” means the record date established by the General Partner for the
distribution of cash pursuant to Section 5.2, which record date shall be the same as the record
date established by the General Partner for a distribution to its stockholders.




5









 







“Partnership Unit” means a fractional, undivided share of the Partnership Interests of all Partners
issued hereunder. The number of Partnership Units held by the General Partner will, as of any
relevant date, equal the difference between (a) the product of the number of shares of the General
Partner issued since the formation of the General Partner through such relevant date (adjusted to
reflect any subdivisions or combinations of shares of the General Partner through such relevant
date), multiplied by the inverse of the Conversion Factor as of such relevant date (i.e., one (1)
divided by the Conversion Factor as of such relevant date), and (b) the sum of (i) the number of
Partnership Units of the General Partner deemed purchased or redeemed pursuant to Section 6.9 since
the inception of the Partnership through such relevant date and (ii) all Partnership Units held by
the Original Limited Partner. It is acknowledged that if the Partnership makes a distribution of
Partnership Units or subdivides or combines the outstanding Partnership Units in order to give
equivalent effect to a dividend or distribution of the General Partner’s shares or a subdivision or
combination of the General Partner’s shares, then the Partnership Units held by the General Partner
will not be entitled to any such distribution of Partnership Units or affected by any such
subdivision or combination of Partnership Units because the number of the General Partner’s
Partnership Units will have already been adjusted by virtue of the dividend or distribution of the
General Partner’s shares or the subdivision or combination of the General Partner’s shares.



“Percentage Interest” means the percentage ownership interest in the Partnership of each Partner,
as determined by dividing the number of Partnership Units owned by a Partner by the aggregate
number of Partnership Units owned by all Partners.



“Person” means any individual, partnership, corporation, joint venture, limited liability company,
trust or other entity.



“Profit” has the meaning provided in Section 5.1(f).



“Property” means any real property in which the Partnership holds an ownership interest, either
directly or pursuant to the Partnership’s ownership of an interest in a subsidiary that owns an
interest in any such real property.



“Prospectus” means the final prospectus delivered to purchasers of REIT Shares in the Offering.



“Regulations” means the Federal Income Tax Regulations, including temporary or proposed
regulations, issued under the Code, as amended and as hereafter amended from time to time.
Reference to any particular provision of the Regulations shall mean that provision of the
Regulations on the date of this Agreement and any successor provision of the Regulations.



“REIT” means a real estate investment trust under Sections 856 through 860 of the Code.



“REIT Expenses” means (i) costs and expenses relating to the formation and continuity of existence
and operation of the General Partner and any Subsidiaries thereof (which Subsidiaries shall, for
purposes of this Agreement, be included within the definition of General Partner), including taxes,
fees and assessments associated therewith, any and all costs, expenses or fees payable to any
director, officer, or employee of the General Partner, (ii) costs and expenses relating to (A) any
registration and public offering of securities by the General Partner, the net proceeds of which
were used to make a contribution to the Partnership, and (B) all statements and reports incidental
thereto, including, without limitation, underwriting discounts and selling commissions applicable
to any such offering of securities, and any costs and expenses associated with any claims made by
any holders of such securities or any underwriters or placement agents thereof, (iii) costs and
expenses associated with any repurchase of any securities by the General Partner, (iv) costs and
expenses associated with the preparation and filing, of any periodic or other reports and
communications by the General Partner under federal, state or local laws or regulations, including
filings with the Commission, (v) costs and


6









 






expenses associated with compliance by the General Partner with laws, rules and regulations
promulgated by any regulatory body, including the Commission and any securities exchange, (vi)
costs and expenses associated with any section 401(k) plan, incentive plan, bonus plan or other
plan providing for compensation for the employees of the General Partner, (vii) costs and expenses
incurred by the General Partner relating to any issuance or redemption of Partnership Interests or
REIT Shares, and (viii) all other operating or administrative costs of the General Partner incurred
in the ordinary course of its business on behalf of or in connection with the Partnership.



“REIT Share” means a share of common stock in the General Partner (or Successor Entity, as the case
may be).



“REIT Shares Amount” means a number of REIT Shares equal to the product of the number of
Partnership Units offered for exchange by an Exchanging Partner, multiplied by the Conversion
Factor as adjusted to and including the Specified Exchange Date; provided that in the event the
General Partner issues to all holders of REIT Shares rights, options, warrants or convertible or
exchangeable securities entitling the stockholders to subscribe for or purchase REIT Shares, or any
other securities or property (collectively, the “Rights”), and the rights have not expired at the
Specified Exchange Date, then the REIT Shares Amount shall also include the rights issuable to a
holder of the REIT Shares on the record date fixed for purposes of determining the holders of REIT
Shares entitled to Rights.



“Sale” means any transaction or series of transactions whereby (i) the Partnership directly or
indirectly (except as described in other subsections of this definitions) sells, grants, transfers,
conveys or relinquishes its ownership of any Property or portion thereof, including the lease of
any Property consisting of a building only, and including any event with respect to any Property
which gives rise to a significant amount of insurance proceeds or condemnation awards; (ii) the
Partnership directly or indirectly (except as described in other subsections of this definition)
sells, grants, transfers, conveys or relinquishes its ownership of all or substantially all the
interest of the Partnership in any Joint Venture in which it is a co-venturer or partner; (iii) any
Joint Venture directly or indirectly (except as described in other subsections of this definition)
in which the Partnership as a co-venturer or partner sells, grants, transfers, conveys or
relinquishes its ownership of any Property or portion thereof, including any event with respect to
any Property which gives rise to insurance claims or condemnation awards; (iv) the Partnership
directly or indirectly (except as described in other subsections of this definition) sells, grants,
conveys or relinquishes its interest in any Mortgage or portion thereof (including with respect to
any Mortgage, all payments thereunder or in satisfaction thereof other than regularly scheduled
interest payments) of amounts owed pursuant to such Mortgage and any event with respect to a
Mortgage which gives rise to a significant amount of insurance proceeds or similar awards, or (v)
the Partnership directly or indirectly (except as described in other subsections of this
definition) sells, grants, transfers, conveys or relinquishes its ownership of any other asset
(other than investments in bank accounts, money market funds or other current assets) not
previously described in this definition or any portion thereof.



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



“Service” means the Internal Revenue Service.



“Specified Exchange Date” means the first business day of the month first occurring after the
expiration of 60 business days from the date of receipt by the General Partner of the Exchange
Notice.



“Sponsor” means any Person which (i) is directly or indirectly instrumental in organizing, wholly
or in part, Cole Credit Property Trust III, (ii) will manage or participate in the management of Cole
Credit Property Trust III, and any Affiliate of any such Person, other than a Person whose only
relationship with Cole Credit Property Trust III is that of an independent property manager and whose
only compensation is as such, (iii) takes the initiative, directly or indirectly, in founding or
organizing Cole Credit Property Trust III, either alone or in conjunction with


7









 






one or more other Persons, (iv) receives a material participation in Cole Credit Property Trust III in
connection with the founding or organizing of the business of Cole Credit Property Trust III, in
consideration of services or property, or both services and property, (v) has a substantial number
of relationships and contacts with Cole Credit Property Trust III, (vi) possesses significant rights to
control Properties, (vii) receives fees for providing services to Cole Credit Property Trust III which
are paid on a basis that is not customary in the industry, or (viii) provides goods or services to
Cole Credit Property Trust III on a basis which was not negotiated at
arm’s-length with Cole Credit Property Trust III.



“Subsidiary” means, with respect to any Person, any corporation or other entity of which a majority
of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is
owned, directly or indirectly, by such Person.



“Subsidiary Partnership” means any partnership, limited liability company or other entity taxed as
a partnership for federal income tax purposes in which interests are owned by the General Partner
or by a wholly-owned Subsidiary or Subsidiaries of the General Partner.



“Substitute Limited Partner” means any Person admitted to the Partnership as a Limited Partner
pursuant to Section 9.3.



“Successor Entity” has the meaning provided in the definition of “Conversion Factor” contained
herein.



“Survivor” has the meaning set forth in Section 7.1(d).



“Transaction” has the meaning set forth in Section 7.1(c).



“Transfer” has the meaning set forth in Section 9.2(a).



“Transfer
Restriction Date” means the effective date upon which Cole
REIT Advisors III, LLC, a
Delaware limited liability company, shall cease acting as the advisor to the General Partner under
the terms of an advisory agreement entered into between Cole REIT
Advisors III, LLC and the General
Partner.



“Unpaid Return” means any accrued LP Return or GP Minimum Return less all amounts distributed by
the Partnership to a Limited Partner or the General Partner in reduction thereof.



“Value” means, with respect to any security, the average of the daily market price of such security
for the ten consecutive trading days immediately preceding the date as of which such Value is to be
determined. The market price for each such trading day shall be: (i) if the security is listed or
admitted to trading on any securities exchange, the sale price, regular way, on such day, or if no
such sale takes place on such day, the average of the closing bid and asked prices, regular way, on
such day; (ii) if the security is not listed or admitted to trading on any securities exchange, the
last reported sale price on such day or, 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 General Partner; or (iii) if the security is not listed or admitted to trading on any
securities exchange and no such last reported sale price or closing bid and asked prices are
available, the average of the reported high bid and low asked prices on such day, as reported by a
reliable quotation source designated by the General Partner, or if there shall be no bid and asked
prices on such day, the average of the high bid and low asked prices, as so reported, on the most
recent day (not more than ten days prior to the date in question) for which prices have been so
reported; provided, that if there are no bid and asked prices reported during the ten days prior to
the date in question, the value of the security shall be determined by the General Partner acting
in good faith on the basis of such quotations and other information as it considers, in its
reasonable judgment, appropriate. In the event the security includes any additional rights, then
the value of


8









 





such rights shall be determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment, appropriate.




ARTICLE II

PARTNERSHIP FORMATION AND IDENTIFICATION




     2.1 Formation. The Partnership is a limited partnership formed pursuant to the Act and
upon the terms and conditions set forth in this Agreement.



     2.2
Name, Office and Registered Agent. The name of the
Partnership is “Cole REIT III Operating
Partnership, LP.” The principal place of business of the Partnership shall be 2555 East Camelback
Road, Suite 400, Phoenix, Arizona 85016. The General Partner may at any time change the location
of such office, provided the General Partner gives notice to the Partners of any such change. The
name and address of the Partnership’s registered agent is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The sole duty of the
registered agent as such is to forward to the Partnership any notice that is served on it as
registered agent.



     2.3 Partners.



          (a) The
general partner of the Partnership is Cole Credit Trust III, Inc., a Maryland
corporation. Its principal place of business is the same as that of the Partnership.




          (b) The limited partners are those Persons identified as Limited Partners (including the
Original Limited Partner) on Exhibit A hereto, as it may be amended from time to time.




     2.4 Term and Dissolution.



          (a) The Partnership shall have perpetual duration, except that the Partnership shall be
dissolved earlier upon the first to occur of any of the following events (“Liquidating Events”):





          (i) the occurrence of an Event of Bankruptcy as to a General Partner or the
dissolution, death, removal or withdrawal of a General Partner unless the business of the
Partnership is continued pursuant to Section 7.3(b), provided, that if a General Partner is
on the date of such occurrence a partnership, the dissolution of such General Partner as a
result of the dissolution, death, withdrawal, removal or Event of Bankruptcy of a partner in
such partnership shall not be an event of dissolution of the Partnership if the business of
such General Partner is continued by the remaining partner or partners thereof, either alone
or with additional partners, and such General Partner and such partners comply with any
other applicable requirements of this Agreement;




          (ii) the passage of 90 days after the sale or other disposition of all or substantially
all of the assets of the Partnership (provided, that if the Partnership receives an
installment obligation as consideration for such sale or other disposition, the Partnership
shall continue, unless sooner dissolved under the provisions of this Agreement, until such
time as such obligation is paid in full);




          (iii) the exchange of all Limited Partnership Interests (other than any of such
interests held by the General Partner or Affiliates of the General Partner); or




          (iv) the election by the General Partner that the Partnership should be dissolved.



9









 





          (b) Upon dissolution of the Partnership (unless the business of the Partnership is continued
pursuant to Section 7.3(b)), the General Partner (or its trustee, receiver, successor or legal
representative) shall amend or cancel the Certificate and liquidate the Partnership’s assets and
apply and distribute the proceeds thereof in accordance with Section 5.6. Notwithstanding the
foregoing, the liquidating General Partner may either (i) defer liquidation of, or withhold from
distribution for a reasonable time, any assets of the Partnership (including those necessary to
satisfy the Partnership’s debts and obligations), or (ii) distribute the assets to the Partners in
kind.




     2.5 Filing of Certificate and Perfection of Limited Partnership. The General Partner
shall execute, acknowledge, record and file, at the expense of the Partnership, the Certificate and
any and all amendments thereto and all requisite fictitious name statements and notices in such
places and jurisdictions as may be necessary to cause the Partnership to be treated as a limited
partnership under, and otherwise to comply with, the laws of each state or other jurisdiction in
which the Partnership conducts business.



     2.6 Certificates Describing Partnership Units. At the request of a Limited Partner, the
General Partner may, at its option and in its discretion, issue a certificate summarizing the terms
of such Limited Partner’s interest in the Partnership, including the number of Partnership Units
owned as of the date of such certificate. If issued, any such certificates (a) shall be in form
and substance as approved by the General Partner, (b) shall not be negotiable, and (c) shall bear a
legend substantially similar to the following:




“This certificate is not negotiable. The Partnership Units
represented by this certificate are governed by and transferable
only in accordance with the provisions of the Agreement of Limited
Partnership of Cole REIT III Operating Partnership, LP, as amended from time
to time.”



ARTICLE III

BUSINESS OF THE PARTNERSHIP




     The purpose and nature of the business to be conducted by the Partnership is (a) to conduct
any business that may be lawfully conducted by a limited partnership organized pursuant to the Act,
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 qualify as a REIT, unless the General Partner otherwise
ceases to qualify as a REIT, (b) to enter into any partnership, joint venture or other similar
arrangement to engage in any of the foregoing or the ownership of interests in any entity engaged
in any of the foregoing, and (c) to do anything necessary or incidental to the foregoing. In
connection with the foregoing, and without limiting the General Partner’s right in its sole and
absolute discretion to cease qualifying as a REIT, the Partners acknowledge that the General
Partner’s current status as a REIT and the avoidance of income and excise taxes on the General
Partner inures to the benefit of all the Partners and not solely to the General Partner.
Notwithstanding the foregoing, the Limited Partners agree that the General Partner may terminate
its status as a REIT under the Code at any time to the full extent permitted under its Articles of
Incorporation. The General Partner shall also be empowered to do any and all acts and things
necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded
partnership” for purposes of Section 7704 of the Code.



ARTICLE IV

CAPITAL CONTRIBUTIONS AND ACCOUNTS




     4.1 Capital Contributions. The General Partner and the Original Limited Partner have made
Capital Contributions to the Partnership in exchange for the Partnership Units set forth opposite
their names on Exhibit A. At such time as Additional Limited Partners are admitted to the
Partnership, each shall make Capital Contributions as set forth opposite their names on Exhibit
A, as it may be amended from time to time.



10









 




Exhibit A shall be deemed automatically amended upon, and the General Partner may,
without the approval of any other Partner, attach an amended Exhibit A to this Agreement to
reflect: (a) the issuance of Partnership Units issued to Additional Limited Partners or to any
existing Limited Partner pursuant to Section 4.2, (b) any Partnership Units purchased or redeemed
pursuant to Section 6.9, (c) any redemption or purchase of Partnership Units by the Partnership or
the General Partner by reason of the exercise by a Limited Partner of the Exchange Right and (d)
any purchase by the General Partner (or any of its Affiliates) of Partnership Units pursuant to the
Call Right.




     4.2 Additional Capital Contributions and Issuances of Additional Partnership Interests. 



     Except as provided in this Section 4.2 or in Section 4.3, the Partners shall have no right or
obligation to make any additional Capital Contributions or loans to the Partnership. The General
Partner may contribute additional capital to the Partnership, from time to time, and receive
additional Partnership Units in respect thereof in the manner contemplated by this Section 4.2.



          (a) Issuances of Additional Partnership Interests.





          (i) General. The General Partner is hereby authorized to cause the Partnership
to issue additional Partnership Interests in the form of Partnership Units for any
Partnership purpose, at any time or from time to time, to the Partners (including the
General Partner) or to other Persons for such consideration and on such terms and conditions
as shall be established by the General Partner in its sole and absolute discretion, all
without the approval of any Limited Partners. Any additional Partnership Interests issued
thereby may be issued in one or more classes, or one or more series of any of such classes,
with such designations, preferences and relative participating, optional or other special
rights, powers and duties, including rights, powers and duties senior to Limited Partnership
Interests, all as shall be determined by the General Partner in its sole and absolute
discretion and without the approval of any Limited Partner, subject to Delaware law,
including, without limitation, (A) the allocations of items of Partnership income, gain,
loss, deduction and credit to each such class or series of Partnership Interests; (B) the
right of each such class or series of Partnership Interests to share in Partnership
distributions; and (C) the rights of each such class or series of Partnership Interests upon
dissolution and liquidation of the Partnership; provided, however, that no additional
Partnership Interests shall be issued to the General Partner or the Original Limited Partner
unless:




          (1) the additional Partnership Interests are issued in connection with an
issuance of REIT Shares or other interests in the General Partner, which shares or
interests have designations, preferences and other rights such that the economic
interests are substantially similar to the designations, preferences and other
rights of the additional Partnership Interests issued to the General Partner by the
Partnership in accordance with this Section 4.2, and the General Partner, on its own
or with the Original Limited Partner, shall make a Capital Contribution to the
Partnership in an amount equal to the aggregate proceeds raised in connection with
the issuance of such shares of stock of or other interests in the General Partner;




          (2) the additional Partnership Interests are issued in exchange for property or
other assets owned by the General Partner or Original Limited Partner with a fair
market value, as determined by the General Partner, in good faith, equal to the
value of the Partnership Interests; or




          (3) the additional Partnership Interests are issued to all Partners in
proportion to their respective Percentage Interests.



11









 






          (ii) Issuance of Additional Securities. The General Partner shall not issue
any additional REIT Shares (other than REIT Shares issued in connection with an exchange
made pursuant to Section 8.5) or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase REIT Shares (collectively,
“Additional Securities”) other than to all holders of REIT Shares, unless (A) the General
Partner shall cause the Partnership to issue to the General Partner (or to the General
Partner and the Original Limited Partner), as the General Partner may designate, Partnership
Interests or rights, options, warrants or convertible or exchangeable securities of the
Partnership having designations, preferences and other rights such that the economic
interests are substantially similar to those of the Additional Securities, and (B) the
General Partner (or the General Partner and the Original Limited Partner) contributes the
proceeds from the issuance of such Additional Securities and from any exercise of rights
contained in such Additional Securities, directly and through the General Partner (or the
General Partner and the Original Limited Partner), to the Partnership; provided, however,
that the General Partner is allowed to issue Additional Securities in connection with an
acquisition of a Property or other asset to be held directly by the General Partner.
Without limiting the foregoing, the General Partner is expressly authorized to issue
Additional Securities for less than fair market value, and to cause the Partnership to issue
to the General Partner (or to the General Partner and the Original Limited Partner)
corresponding Partnership Interests, so long as (1) the General Partner concludes in good
faith that such issuance is in the best interests of the General Partner and the
Partnership, including without limitation, the issuance of REIT Shares and corresponding
Partnership Units pursuant to an employee share purchase plan providing for employee
purchases of REIT Shares at a discount from fair market value or employee stock options that
have an exercise price that is less than the fair market value of the REIT Shares, either at
the time of issuance or at the time of exercise, and (2) the General Partner contributes
directly or directly and through the Original Limited Partnership all proceeds from such
issuance to the Partnership.



          (b) Certain Deemed Contributions of Proceeds of Issuance of REIT Shares. In
connection with any and all issuances of REIT Shares, the General Partner shall make directly or
directly and through the Original Limited Partner Capital Contributions to the Partnership of the
proceeds from such issuances, provided, that if the proceeds actually received and contributed by
the General Partner are less than the gross proceeds of such issuance as a result of any
underwriter’s discount or other fees or expenses paid or incurred in connection with such issuance,
then the General Partner (or the General Partner together with the Original Limited Partner, as
applicable) shall be deemed to have made Capital Contributions to the Partnership in the aggregate
amount of the gross proceeds of such issuance and the Partnership shall be deemed simultaneously to
have paid such offering expenses in accordance with Section 6.5 and in connection with the required
issuance of additional Partnership Units for such Capital Contributions pursuant to Section 4.2(a).




          (c) Original Limited Partner Deemed Contributions. In the event the Original Limited
Partner elects to defer any distribution of cash hereunder to be made to it pursuant to Section
5.2(a), then such amount shall be deemed to be an additional contribution of capital to the
Partnership by the Original Limited Partner, which shall be added to the Original Limited Partner’s
Capital Contribution to the Partnership and the Original Limited Partner’s Capital Account as
established and maintained under Section 4.4.




     4.3 Additional Funding. If the General Partner determines that it is in the best
interests of the Partnership to provide for additional Partnership funds (“Additional Funds”) for
any Partnership purpose, the General Partner may (a) cause the Partnership to obtain such funds
from outside borrowings, or (b) elect to have the General Partner or any of its Affiliates provide
such Additional Funds to the Partnership through loans or otherwise.



12









 





     4.4 Capital Accounts. A separate capital account (a “Capital Account”) shall be
established and maintained for each Partner in accordance with Regulations Section
1.704-1(b)(2)(iv). If (a) a new or existing Partner acquires an additional Partnership Interest in
exchange for more than a de minimis Capital Contribution, (b) the Partnership distributes to a
Partner more than a de minimis amount of Partnership property as consideration for the redemption
of a Partnership Interest, or (c) the Partnership is liquidated within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g), the General Partner shall revalue the property of the Partnership to
its fair market value (as determined by the General Partner, in its sole and absolute discretion,
and taking into account Section 7701(g) of the Code) in accordance with Regulations Section 1.704-
l(b)(2)(iv)(f). When the Partnership’s property is revalued by the General Partner, the Capital
Accounts of the Partners shall be adjusted in accordance with Regulations Sections
1.704-1(b)(2)(iv)(f) and (g), which generally require such Capital Accounts to be adjusted to
reflect the manner in which the unrealized gain or loss inherent in such property (that has not
been reflected in the Capital Accounts previously) would be allocated among the Partners pursuant
to Section 5.1 if there were a taxable disposition of such property for its fair market value (as
determined by the General Partner, in its sole and absolute discretion, and taking into account
Section 7701(g) of the Code) on the date of the revaluation.



     4.5 Percentage Interests. If the number of outstanding Partnership Units increases or
decreases during a taxable year, each Partner’s Percentage Interest shall be adjusted by the
General Partner effective as of the date of each such increase or decrease to a percentage equal to
the number of Partnership Units held by such Partner divided by the aggregate number of Partnership
Units outstanding after giving effect to such increase or decrease. In such event, the General
Partner shall revalue the property of the Partnership and the Capital Account for each Partner
shall be adjusted as set forth in Section 4.4. If the Partners’ Percentage Interests are adjusted
pursuant to this Section 4.5, the Profit and Loss for the taxable year in which the adjustment
occurs shall be prorated between the part of the year ending on the day when the Partnership’s
property is revalued by the General Partner and the part of the year beginning on the following day
and, as so divided, shall be allocated to the Partners based on their Percentage Interests before
adjustment, and their adjusted Percentage Interests, respectively, either (a) as if the taxable
year had ended on the date of the adjustment or (b) based on the number of days in each part. The
General Partner, in its sole and absolute discretion, shall determine which method shall be used to
allocate Profit and Loss for the taxable year in which an adjustment occurs, as may be required or
permitted under Section 706 of the Code.



     4.6 No Interest on Contributions. No Partner shall be entitled to interest on its Capital
Contribution.



     4.7 Return of Capital Contributions. No Partner shall be entitled to withdraw any part of
its Capital Contribution or its Capital Account or to receive any distribution from the
Partnership, except as specifically provided in this Agreement. Except as otherwise provided
herein, there shall be no obligation to return to any Partner or withdrawn Partner any part of such
Partner’s Capital Contribution for so long as the Partnership continues in existence.



     4.8 No Third-Party Beneficiary. No creditor or other third party having dealings with the
Partnership shall have the right to enforce the right or obligation 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.
None of the rights or obligations of the Partners herein set forth to make Capital Contributions or
loans to the Partnership shall be deemed an asset of the Partnership for any purpose by any
creditor or other third party, nor may such rights or obligations be sold, transferred or assigned
by the Partnership or pledged or encumbered by the Partnership to secure any debt or other
obligation of the Partnership or of any of the Partners. In addition, it is the intent of the
parties hereto that no distribution to any Limited Partner shall be deemed a return of money or
other property in violation of the Act. However, if any court of competent jurisdiction holds
that, notwithstanding the provisions of this



13









 







Agreement, any Limited Partner is obligated to return such money or property, such obligation
shall be the obligation of such Limited Partner and not of the General Partner. Without limiting
the generality of the foregoing, a deficit Capital Account of a Partner shall not be deemed to be a
liability of such Partner nor an asset or property of the Partnership.



ARTICLE V

PROFIT AND LOSS; DISTRIBUTIONS




     5.1 Allocation of Profit and Loss.



          (a) After giving effect to the special allocations set forth in Sections 5.1(b), (c) and (d),
Profit for each fiscal year of the Partnership shall be allocated as follows: (i) first to the
Partners, pro rata, in amounts equal to the amount of cash distributed to the Partners pursuant to
Section 5.2(a) with respect to such fiscal year; (ii) second, to the extent the amount of Profit
for such fiscal year exceeds the amount of cash distributed to the Partners pursuant to Section
5.2(a), such excess shall be allocated to the General Partner and the Limited Partners in amounts
and in proportion to the cumulative Loss allocated to the General Partner pursuant to clause (y) of
this Section 5.1(a) and the cumulative Loss allocated to the Limited Partners pursuant to clause
(x) of this Section 5.1(a), respectively; and (iii) finally, the balance, if any, of Profit shall
be allocated to the Partners in accordance with and in proportion to their respective Percentage
Interests. Notwithstanding the foregoing, however, it is the intent of the Partners that
allocations of Profit to the Limited Partners be such that the amount of Profit allocated to each
Limited Partner be equal to the amount of income that would have been allocated to such Limited
Partner with respect to the applicable fiscal period if such Limited Partner had owned REIT Shares
equal in number to the number of Partnership Units owned by such Limited Partner during such fiscal
period, and if, for any reason, the foregoing allocations of Profit result in any material
variation from this concept, Profit shall be allocated to each Limited Partner in an amount equal
to the aggregate amount of income that would have been allocated to such Limited Partner with
respect to the applicable fiscal period if such Limited Partner had owned REIT Shares equal in
number to the number of Partnership Units owned by such Limited Partner during such fiscal period.
After giving effect to the special allocations set forth in Sections 5.1(b), (c) and (d), Loss for
a fiscal year of the Partnership shall be allocated as follows: (w) first, to the Partners, pro
rata, in accordance with and in proportion to their respective Partnership Interests, until the
cumulative Loss allocated to each Partner under this clause (w) equals the cumulative Profit
allocated to each Partner under clause (ii) of this Section 5.1(a); (x) second, to the Limited
Partners in an amount equal to each such Limited Partner’s Capital Account balance prior to the
allocation made under this clause (x); (y) third, to the General Partner in an amount equal to the
General Partner’s Capital Account balance prior to the allocation made under this clause (y); and
(z) fourth, to the General Partner to the extent that any further allocation of Loss to Limited
Partners would result in any such Limited Partners having a deficit balance in their Capital
Accounts.




          (b) Notwithstanding any provision to the contrary herein, (i) any expense of the Partnership
that is a “nonrecourse deduction” within the meaning of Regulations Section 1.704-2(b)(1) shall be
allocated in accordance with the Partners’ respective Percentage Interests, (ii) any expense of the
Partnership that is a “partner nonrecourse deduction” within the meaning of Regulations Section
1.704-2(i)(2) shall be allocated to the Partner that bears the “economic risk of loss” of such
deduction in accordance with Regulations Section 1.704-2(i)(1), (iii) if there is a net decrease in
Partnership Minimum Gain within the meaning of Regulations Section 1.704-2(f)(1) for any
Partnership taxable year, then, subject to the exceptions set forth in Regulations Section
1.704-2(f)(2), (3), (4) and (5), items of gain and income shall be allocated among the Partners in
accordance with Regulations Section 1.704-2(f) and the ordering rules contained in Regulations
Section 1.704-2(j), and (iv) if there is a net decrease in Partner nonrecourse debt minimum gain
within the meaning of Regulations Section 1.704-2(i)(4) for any Partnership taxable year, then,
subject to the exceptions set forth in Regulations Section 1.704-2(g), items of gain and income
shall be allocated among the Partners, in accordance with Regulations Section 1.704-2(i)(4) and the
ordering rules contained in



14









 






Regulations Section 1.704-2(j). A Partner’s “interest in partnership profits” for purposes of
determining its share of the nonrecourse liabilities of the Partnership within the meaning of
Regulations Section 1.752- 3(a)(3) shall be such Partner’s Percentage Interest.




          (c) If a Partner receives in any taxable year an adjustment, allocation, or distribution
described in subparagraphs (4), (5), or (6) of Regulations Section 1.704-1(b)(2)(ii)(d) that causes
or increases a deficit balance in such Partner’s Capital Account that exceeds the sum of such
Partner’s shares of Partnership Minimum Gain and Partner nonrecourse debt minimum gain, as
determined in accordance with Regulations Sections 1.704-2(g) and 1.704-2(i), such Partner shall be
allocated specially for such taxable year (and, if necessary, later taxable years) items of income
and gain in an amount and manner sufficient to eliminate such deficit Capital Account balance as
quickly as possible as provided in Regulations Section 1.704-1(b)(2)(ii)(d). After the occurrence
of an allocation of income or gain to a Partner in accordance with this Section 5.1(c), to the
extent permitted by Regulations Section 1.704-1(b), items of expense or loss shall be allocated to
such Partner in an amount necessary to offset the income or gain previously allocated to such
Partner under this Section 5.1(c).




          (d) Loss shall not be allocated to a Limited Partner to the extent that such allocation would
cause a deficit in such Partner’s Capital Account (after reduction to reflect the items described
in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) to exceed the sum of such Partner’s
shares of Partnership Minimum Gain and Partner nonrecourse debt minimum gain. Any Loss in excess
of that limitation shall be allocated to the General Partner. After the occurrence of an
allocation of Loss to the General Partner in accordance with this Section 5.1(d), to the extent
permitted by Regulations Section 1.704-1(b), Profit shall be allocated to the General Partner in an
amount necessary to offset the Loss previously allocated to the General Partner under this Section
5.1(d).




          (e) If a Partner transfers any part or all of its Partnership Interest, the distributive
shares of the various items of Profit and Loss allocable among the Partners during such fiscal year
of the Partnership shall be allocated between the transferor and the transferee Partner either (i)
as if the Partnership’s fiscal year had ended on the date of the transfer, or (ii) based on the
number of days of such fiscal year that each was a Partner without regard to the results of
Partnership activities in the respective portions of such fiscal year in which the transferor and
the transferee were Partners. The General Partner, in its sole and absolute discretion, shall
determine which method shall be used to allocate the distributive shares of the various items of
Profit and Loss between the transferor and the transferee Partner.




          (f) “Profit” and “Loss” and any items of income, gain, expense, or loss referred to in this
Agreement shall be determined in accordance with federal income tax accounting principles, as
modified by Regulations Section 1.704-(b)(2)(iv), except that Profit and Loss shall not include
items of income, gain and expense that are specially allocated pursuant to Sections 5.1(b), 5.1(c),
or 5.1(d). All allocations of income, Profit, gain, Loss, and expense (and all items contained
therein) for federal income tax purposes shall be identical to all allocations of such items set
forth in this Section 5.1, except as otherwise required by Section 704(c) of the Code and
Regulations Section 1.704-1(b)(4). The General Partner shall have the authority, in its sole and
absolute discretion and without the need for consent from any Partner, to elect the method or
methods to be used by the Partnership for allocating items of income, gain, expense and deductions
as required by Section 704(c) of the Code, including election of a method that may result in one or
more Partners receiving or being allocated a disproportionately larger share of items of
Partnership income, gain, expense or deduction, and any such election shall be binding on all
Partners.




     5.2 Distributions of Cash.



          (a) The Partnership shall distribute cash on a quarterly (or, at the election of the General
Partner, more frequent) basis, in an amount determined by the General Partner in its sole and
absolute



15









 






discretion, to the Partners who are Partners on the Partnership Record Date with respect to
such quarter (or other distribution period) in the following manner: (i) first, to the General
Partner in an amount equal to the GP Minimum Return with respect to the fiscal year of the General
Partner; (ii) second, to the Limited Partners pro rata among them in proportion to the their
respective Unpaid Return, if any, owing to each such Limited Partners with respect to prior fiscal
years, in an amount equal to their respective Unpaid Return for such prior fiscal years owing to
each such Limited Partner; (iii) third, after the establishment of reasonable cash reserves to meet
REIT Expenses and other obligations of the Partnership, as determined in the sole and absolute
discretion of the General Partner, to the General Partner and the Limited Partners in such
aggregate amount as may be determined by the General Partner in its sole and absolute discretion to
be allocated among the General Partner and the Limited Partners such that each Limited Partner will
receive an amount equal to its LP Return for such fiscal year; and (iv) finally, to the Partners in
accordance with and in proportion to their respective Percentage Interests; provided, however, that
if a new or existing Partner acquires an additional Partnership Interest in exchange for a Capital
Contribution on any date other than a Partnership Record Date, the cash distribution attributable
to such additional Partnership Interest relating to the Partnership Record Date next following the
issuance of such additional Partnership Interest shall be reduced to the proportion thereof which
equals (i) the number of days that such additional Partnership Interest is held by such Partner
divided by (ii) the number of days between such Partnership Record Date and the immediately
preceding Partnership Record Date. Notwithstanding the foregoing, however, the Original Limited
Partner may, in its sole and absolute discretion, elect to defer any distribution to be made to it,
in which case the amount so deferred shall be deemed to be an additional Capital Contribution made
on behalf of the Original Limited Partner under Section 4.2(c), to be distributed to the Original
Limited Partner upon liquidation of the Partnership under Section 5.6, or at such time as the
Original Limited Partner may otherwise be allowed to withdraw from the Partnership after the
Transfer Restriction Date.




          (b) Notwithstanding any other provision of this Agreement, the General Partner is authorized
to take any action that it determines to be necessary or appropriate to cause the Partnership to
comply with any withholding requirements established under the Code or any other federal, state or
local law including, without limitation, the requirements of Sections 1441, 1442, 1445 and 1446 of
the Code. To the extent that the Partnership is required to withhold and pay over to any taxing
authority any amount resulting from the allocation or distribution of income to a Partner or its
assignee (including by reason of Section 1446 of the Code), either (i) if the actual amount to be
distributed to the Partner or assignee equals or exceeds the amount required to be withheld by the
Partnership, the amount withheld shall be treated as a distribution of cash in the amount of such
withholding to such Partner or assignee, or (ii) if the actual amount to be distributed to the
Partner or assignee is less than the amount required to be withheld by the Partnership, the amount
required to be withheld shall be treated as a loan (a “Partnership Loan”) from the Partnership to
the Partner or assignee on the day the Partnership pays over such amount to a taxing authority. A
Partnership Loan shall be repaid through withholding by the Partnership with respect to subsequent
distributions to the applicable Partner or assignee. In the event that a Limited Partner (a
“Defaulting Limited Partner”) fails to pay any amount owed to the Partnership with respect to the
Partnership Loan within 15 days after demand for payment thereof is made by the Partnership on the
Limited Partner, the General Partner, in its sole and absolute discretion, may elect to make the
payment to the Partnership on behalf of such Defaulting Limited Partner. In such event, on the
date of payment, the General Partner shall be deemed to have extended a loan (a “General Partner
Loan”) to the Defaulting Limited Partner in the amount of the payment made by the General Partner
and shall succeed to all rights and remedies of the Partnership against the Defaulting Limited
Partner as to that amount. Without limitation, the General Partner shall have the right to receive
any distributions that otherwise would be made by the Partnership to the Defaulting Limited Partner
until such time as the General Partner Loan has been paid in full, and any such distributions so
received by the General Partner shall be treated as having been received by the Defaulting Limited
Partner and immediately paid to the General Partner. Any amounts treated as a Partnership Loan or
a General Partner Loan pursuant to this Section 5.2(b) shall bear interest at the lesser of (A) the
base rate on corporate loans at large United States money center commercial banks, as published
from time to time in The Wall Street Journal, or (B) the



16









 






maximum lawful rate of interest on such obligation, such interest to accrue from the date the
Partnership or the General Partner, as applicable, is deemed to extend the loan until such loan is
repaid in full.




          (c) To the extent not utilized for expenses of the Partnership or for investment in additional
Properties, the General Partner may, in its discretion, cause the Partnership to distribute Net
Capital Proceeds in such amount as shall be determined by the General Partner in its discretion in
accordance with the provisions of Section 5.2(a).




          (d) In no event may a Partner receive a distribution of cash with respect to a Partnership
Unit if such Partner is entitled to receive a cash dividend as the holder of record of a REIT Share
for which all or part of such Partnership Unit has been or will be exchanged, and the Unpaid Return
with respect to such Partnership Unit shall be deemed to be reduced by the amount of any such cash
dividend.




     5.3 REIT Distribution Requirements. The General Partner shall use its reasonable efforts
to cause the Partnership to distribute amounts sufficient to enable the General Partner to pay
stockholder dividends that will allow the General Partner to (a) meet its distribution requirement
for qualification as a REIT as set forth in Section 857 of the Code and (b) avoid any federal
income or excise tax liability imposed by the Code.



     5.4 No Right to Distributions in Kind. No Partner shall be entitled to demand property
other than cash in connection with any distributions by the Partnership.



     5.5 Limitations on Return of Capital Contributions. Notwithstanding any of the provisions
of this Article V, no Partner shall have the right to receive and the General Partner shall not
have the right to make a distribution that includes a return of all or part of a Partner’s Capital
Contributions, unless after giving effect to the return of a Capital Contribution, the sum of all
Partnership liabilities, other than the liabilities to a Partner for the return of its Capital
Contribution, does not exceed the fair market value of the Partnership’s assets.



     5.6 Distributions Upon Liquidation. Upon liquidation of the Partnership, after payment
of, or adequate provision for, debts and obligations of the Partnership, including any Partner
loans, any remaining assets of the Partnership shall be distributed to all Partners with positive
Capital Accounts in accordance with their respective positive Capital Account balances. For
purposes of the preceding sentence, the Capital Account of each Partner shall be determined after
all adjustments made in accordance with Sections 5.1 and 5.2 resulting from Partnership operations
and from all sales and dispositions of all or any part of the Partnership’s assets have been made.
To the extent deemed advisable by the General Partner, appropriate arrangements (including the use
of a liquidating trust) may be made to assure that adequate funds are available to pay any
contingent debts or obligations.



     5.7 Substantial Economic Effect. It is the intent of the Partners that the allocations of
Profit and Loss under this Agreement have substantial economic effect (or be consistent with the
Partners’ interests in the Partnership in the case of the allocation of losses attributable to
nonrecourse debt) within the meaning of Section 704(b) of the Code as interpreted by the
Regulations promulgated pursuant thereto. Article V and other relevant provisions of this
Agreement shall be interpreted in a manner consistent with such intent. If, for any reason, the
General Partner deems it necessary in order to comply with the Code, the General Partner may, and
hereby is, authorized and directed to allocate income, gain, loss, deduction or credit (or items
thereof) arising in any year differently than as provided for in this Article if, and to the
extent, (i) that allocating income, gain, loss, deduction or credit (or item thereof) would cause
the determinations and allocations of each Partner’s distributive share of income, gain, loss,
deduction or credit (or item thereof) not to be permitted by the Code and any Regulations
promulgated thereunder, or (ii) such allocation would be inconsistent with a Partner’s interest in
the Partnership taking into consideration all facts and circumstances.



17









 




Any allocation made pursuant to this Section shall be deemed to be a complete substitute for
any allocation otherwise provided for in this Agreement, and no further amendment of this Agreement
or approval by any Partner shall be required to effectuate such allocation. In making any such
allocations (“New Allocations”) under this Section, the General Partner is authorized to act in
reliance upon advice of counsel to the Partnership or the Partnership’s regular certified public
accountants that, in their opinion, after examining the relevant provisions of the Code and any
current or future proposed or final Regulations thereunder, the New Allocations are necessary in
order to ensure that, in either the then-current year or in any preceding year, each Partner’s
distributive share of income, gain, loss, deduction or credit (or items thereof) are determined and
allocated in accordance with the Code and the Partner’s interests in the Partnership. New
Allocations made by the General Partner in reliance upon the advice of counsel and accountants as
described above shall be deemed to be made in the best interests of the Partnership and all of the
Partners consistent with the duties of the General Partner hereunder and any such New Allocations
shall not give rise to any claim or cause of action by any Partner against the Partnership or the
General Partner.




ARTICLE VI

RIGHTS, OBLIGATIONS AND

POWERS OF THE GENERAL PARTNER




     6.1 Management of the Partnership.



          (a) Except as otherwise expressly provided in this Agreement, the General Partner shall have
full, complete and exclusive discretion to manage and control the business of the Partnership for
the purposes herein stated, and shall make all decisions affecting the business and assets of the
Partnership. Subject to the restrictions specifically contained in this Agreement, the powers and
obligations, as the context requires, of the General Partner shall include, without limitation, the
authority to take the following actions on behalf of the Partnership:





          (i) to acquire, purchase, own, operate, lease and dispose of any real property and any
other property or assets including, but not limited to notes, Mortgages, partnership or
joint venture interests or securities, that the General Partner determines are necessary or
appropriate or in the best interests of the business of the Partnership;




          (ii) to construct buildings and make other improvements on the Properties owned or
leased by the Partnership;




          (iii) to authorize, issue, sell, redeem or otherwise purchase any Partnership Interests
or any securities (including secured and unsecured debt obligations of the Partnership, debt
obligations of the Partnership convertible into any class or series of Partnership
Interests, or options, rights, warrants or appreciation rights relating to any Partnership
Interests) of the Partnership;




          (iv) to borrow or lend money for the Partnership, issue or receive evidences of
indebtedness in connection therewith, refinance, increase the amount of, modify, amend or
chance the terms of, or extend the time for the payment of, any such indebtedness, and
secure such indebtedness by mortgage, deed of trust, pledge or other lien on the
Partnership’s assets;




          (v) to pay, either directly or by reimbursement, for all operating costs and general
administrative expenses of the Partnership to third parties or to the General Partner or its
Affiliates as set forth in this Agreement;




          (vi) to guarantee or become a co-maker of indebtedness of the General Partner or any
Subsidiary thereof, refinance, increase the amount of, modify, amend or change the terms of,
or



18









 







extend the time for the payment of, any such guarantee or indebtedness, and secure such
guarantee or indebtedness by mortgage, deed of trust, pledge or other lien on the
Partnership’s assets;




          (vii) to use assets of the Partnership (including, without limitation, cash on hand)
for any purpose consistent with this Agreement, including, without limitation, payment,
either directly or by reimbursement, of all operating costs and general administrative
expenses of the General Partner, the Partnership or any Subsidiary of either, to third
parties or to the General Partner as set forth in this Agreement;




          (viii) to lease all or any portion of any of the Partnership’s assets, whether or not
the terms of such leases extend beyond the termination date of the Partnership and whether
or not any portion of the Partnership’s assets so leased are to be occupied by the lessee,
or, in turn, subleased in whole or in part to others, for such consideration and on such
terms as the General Partner may determine;




          (ix) to prosecute, defend, arbitrate, or compromise any and all claims or liabilities
in favor of or against the Partnership, on such terms and in such manner as the General
Partner may reasonably determine, and similarly, to prosecute, settle or defend litigation
with respect to the Partners, the Partnership, or the Partnership’s assets;




          (x) to file applications, communicate, and otherwise deal with any and all governmental
agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any
other aspect of the Partnership business;




          (xi) to make or revoke any election permitted or required of the Partnership by any
taxing authority;




          (xii) to maintain such insurance coverage for public liability, fire and casualty, and
any and all other insurance for the protection of the Partnership, for the conservation of
Partnership assets, or for any other purpose convenient or beneficial to the Partnership, in
such amounts and such types, as it shall determine from time to time;




          (xiii) to determine whether or not to apply any insurance proceeds for any Property to
the restoration of such Property or to distribute the same;




          (xiv) to establish one or more divisions of the Partnership, to hire and dismiss
employees of the Partnership or any division of the Partnership, and to retain legal
counsel, accountants, consultants, real estate brokers, and such other persons, as the
General Partner may deem necessary or appropriate in connection with the Partnership
business and to pay such persons remuneration as the General Partner may deem reasonable and
proper;




          (xv) to retain other services of any kind or nature in connection with Partnership
business and to pay such remuneration as the General Partner may deem reasonable and proper
for same;




          (xvi) to negotiate and conclude agreements on behalf of the Partnership with respect to
any of the rights, powers and authority conferred upon the General Partner;




          (xvii) to maintain accurate accounting records and to file promptly all federal, state
and local income tax returns on behalf of the Partnership;



19









 







          (xviii) to distribute Partnership cash or other Partnership assets in accordance with
this Agreement;




          (xix) to form or acquire an interest in, and contribute property to, any further
limited or general partnerships, joint ventures, limited liability companies or other
entities or relationships that it deems desirable (including, without limitation, the
acquisition of interests in, and the contributions of property to, its Subsidiaries and any
other Person in which it has an equity interest from time to time);




          (xx) to establish Partnership reserves for working capital, capital expenditures,
contingent liabilities, or any other valid Partnership purpose;




          (xxi) to merge, consolidate or combine the Partnership with or into another Person;




          (xxii) to do any and all acts and things necessary or prudent to ensure that the
Partnership will not be classified as a “publicly traded partnership” for purposes of
Section 7704 of the Code; and




          (xxiii) to take such other action, execute, acknowledge, swear to or deliver such other
documents and instruments, and perform any and all other acts that the General Partner deems
necessary or appropriate for the formation, continuation and conduct of the business and
affairs of the Partnership (including, without limitation, all actions consistent with
allowing the General Partner at all times to qualify as a REIT unless the General Partner
voluntarily terminates its REIT status) and to possess and enjoy all of the rights and
powers of a general partner as provided by the Act.



          (b) Except as otherwise provided herein, to the extent the duties of the General Partner
require expenditures of funds to be paid to third parties, the General Partner shall not have any
obligations hereunder except to apply Partnership funds to the extent that Partnership funds are
reasonably available to it for the performance of such duties, and nothing herein contained shall
be deemed to authorize or require the General Partner, in its capacity as such, to expend its
individual funds for payment to third parties or to undertake any individual liability or
obligation on behalf of the Partnership.




          (c) Any actions taken by the General Partner pursuant to its authority under this Agreement on
behalf of the Partnership regarding the approval of any transaction between the Partnership and the
Sponsor, Advisor, a member of the Board of Directors of Cole Credit
Property Trust III or any Affiliate
thereof, shall require a finding by a majority of the members of the Board of Directors of Cole
Credit
Property Trust III that such actions are fair and reasonable to Cole Credit
Property Trust III and the
Partnership on terms and conditions not less favorable to Cole Credit
Property Trust III or the
Partnership, as applicable, than those available from unaffiliated third parties.




     6.2 Delegation of Authority. The General Partner may delegate any or all of its powers,
rights and obligations hereunder, and may appoint, employ, contract or otherwise deal with any
Person (including without limitation officers or other agents of the Partnership or the General
Partner appointed by the General Partner) for the transaction of the business of the Partnership,
which Person may, under supervision of the General Partner, perform any acts or services for the
Partnership as the General Partner may approve.



     6.3 Indemnification and Exculpation of Indemnitees.



          (a) The Partnership shall indemnify an Indemnitee from and against any and all losses, claims,
damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses),



20









 






judgments, fines, settlements, and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the
operations of the Partnership as set forth in this Agreement in which any Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, as a result of acting on behalf
of or performing services for the Partnership, only if it is determined that (i) the Indemnitee
acted in good faith and (ii) that the Indemnitee reasonably believed that the act or omission was
in the Partnership’s best interests, or if the act or omission was outside the Indemnitee’s
official capacity as a general partner of the Partnership, that the act or omission was at least
not opposed to the Partnership’s best interests. Notwithstanding the foregoing, each Indemnitee
shall be liable, responsible and accountable, and the Partnership shall not be liable to an
Indemnitee, other than for reasonable expenses actually incurred by the Indemnitee with respect to
a proceeding in which (i) the Indemnitee is found liable on the basis that the Indemnitee
improperly received personal benefit, whether or not the benefit resulted from an action taken in
the Indemnitee’s official capacity, or (ii) the Indemnitee is found liable to the Partnership or
the Limited Partners. The Partnership shall not indemnify or hold harmless the Indemnitee if the
loss or liability was the result of negligence or misconduct by the Indemnitee. The termination of
any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee
did not meet the requisite standard of conduct set forth in this Section 6.3(a). The termination
of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of
an order of probation prior to judgment, does not alone determine that the Indemnitee acted in a
manner contrary to that specified in this Section 6.3(a). Any indemnification pursuant to this
Section 6.3 shall be made only out of the assets of the Partnership.




          (b) Notwithstanding anything to the contrary contained in the provisions of subsection (a) of
this Section, the Partnership shall not provide indemnification for any loss, liability or expense
arising from or out of an alleged violation of federal or state securities laws by an Indemnitee
unless one or more of the following conditions are met: (i) there has been a successful
adjudication on the merits of each count involving alleged securities law violations as to the
particular Indemnitee, (ii) such claims have been dismissed with prejudice on the merits by a court
of competent jurisdiction as to the particular Indemnitee, or (iii) a court of competent
jurisdiction approves a settlement of the claims against a particular 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 SEC and of the published
position of any state securities regulatory authority in which securities of the Partnership were
offered or sold as to indemnification for violations of securities laws.




          (c) The Partnership shall pay or reimburse reasonable legal expenses and other costs incurred
by an Indemnitee in advance of final disposition of a proceeding if all of the following are
satisfied: (i) the proceeding relates to acts or omissions with respect to the performance of
duties for services on behalf of the Partnership, (ii) the Indemnitee provides the Partnership with
written affirmation of the Indemnitee’s good faith belief that the Indemnitee has met the standard
of conduct necessary for indemnification by the Partnership as authorized in this Section 6.3,
(iii) the legal proceeding was initiated by a third party who is not a stockholder of the General
Partner or, if by a stockholder of the General Partner acting in his or her capacity as such, a
court of competent jurisdiction approves such advancement, and (iv) the Indemnitee provides the
Partnership with a written agreement to repay the amount paid or reimbursed by the Partnership,
together with the applicable legal rate of interest thereon, if it is ultimately determined that
the Indemnitee did not comply with the requisite standard of conduct and is not entitled to
indemnification.




          (d) The Indemnification provided by this Section 6.3 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.




          (e) The Partnership may purchase and maintain insurance or establish other arrangements,
including without limitation trust arrangements and letters of credit on behalf of or to secure



21









 






indemnification obligations owed to the Indemnitees 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.




          (f) For purposes of this Section 6.3, (i) the Partnership shall be deemed to have requested an
Indemnitee to serve as a fiduciary of an employee benefit plan whenever the performance by the
Indemnitee of its duties to the Partnership also imposes duties on the Indemnitee, or otherwise
involves services by the Indemnitee to the plan or participants or beneficiaries of the plan; (ii)
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 6.3; and (iii) 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.




          (g) In no event may an Indemnitee subject the Limited Partners to personal liability by reason
of the indemnification provisions set forth in this Agreement.




          (h) An Indemnitee shall not be denied indemnification in whole or in part under this Section
6.3 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.




          (i) The provisions of this Section 6.3 are for the benefit of the Indemnitees, their heirs,
successors, assigns and administrators and shall not be deemed to create any rights in or be for
the benefit of any other Persons.




     6.4 Liability of the General Partner.



          (a) Notwithstanding anything to the contrary set forth in this Agreement, the General Partner
shall not be liable for monetary damages to the Partnership or any Partners for losses sustained or
liabilities incurred as a result of errors in judgment or any act or omission if the General
Partner acted in good faith. The General Partner shall not be in breach of any duty that the
General Partner may owe to the Limited Partners or the Partnership or any other Persons under this
Agreement or of any duty stated or implied by law or equity, provided, the General Partner, acting
in good faith, abides by the terms of this Agreement. In addition, to the extent the General
Partner or any officer, director, employee, agent or stockholder of the General Partner performs
its duties in accordance with the standards provided by the Act, as it may be amended from time to
time, or under any successor statute thereto, such Person or Persons shall have no liability by
reason of being or having been the General Partner, or by reason of being an officer, director,
employee, agent or stockholder of the General Partner. To the maximum extent that the Act and the
general laws of the State of Delaware, in effect from time to time, permit limitation of the
liability of general partners of a limited partnership, the General Partner and its officers,
directors, employees, agents and stockholders shall not be liable to the Partnership or to any
Partner for money damages except to the extent that (i) the General Partner or its officers,
directors, employees, agents or stockholders actually received an improper benefit or profit in
money, property or services, in which case the liability shall not exceed the amount of the benefit
or profit in money, property or services actually received; or (ii) a judgment or other final
adjudication adverse to the General Partner or one or more of its officers, directors, employees,
agents or stockholders is entered in a proceeding based on a finding in the proceeding that the
action or failure to act of the General Partner or one or more of its officers, directors,
employees, agents or stockholders was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. Neither the amendment nor repeal of
this Section 6.4(a), nor the adoption or amendment of any other provision of this Agreement
inconsistent with this Section 6.4(a), shall apply to or affect in any respect the applicability of
the



22









 






preceding sentence with respect to any act or failure to act which occurred prior to such
amendment, repeal or adoption. In the absence of any Delaware statute limiting the liability of
the General Partner or its directors or officers for money damages in a suit by or on behalf of the
Partnership or by any Partner, the General Partner and the officers, directors, employees, agents
and stockholders of the General Partner shall not be liable to the Partnership or to any Partner
for money damages except to the extent that (i) the General Partner or one or more of its officers,
directors, employees, agents or stockholders actually received an improper benefit or profit in
money, property or services, in which case the liability shall not exceed the amount of the benefit
or profit in money, property or services actually received; or (ii) a judgment or other final
adjudication adverse to the General Partner or one or more of its officers, directors, employees,
agents or stockholders is entered in a proceeding based on a finding in the proceeding that the
action of the General Partner or one or more of its officers, directors, employees or stockholders
action or failure to act was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding.




          (b) The Limited Partners expressly acknowledge that the General Partner is acting on behalf of
the Partnership, itself and its stockholders collectively, that the General Partner is under no
obligation to consider the separate interests of the Limited Partners (including, without
limitation, the tax consequences to Limited Partners or the tax consequences of some, but not all,
of the Limited Partners) in deciding whether to cause the Partnership to take (or decline to take)
any actions. In the event of a conflict between the interests of its stockholders on the one hand
and the Limited Partners on the other, the General Partner shall endeavor in good faith to resolve
the conflict in a manner not adverse to either its stockholders or the Limited Partners; provided,
however, that for so long as the General Partner directly owns a controlling interest in the
Partnership, any such conflict that the General Partner, in its sole and absolute discretion,
determines cannot be resolved in a manner not adverse to either its stockholders or the Limited
Partners shall be resolved in favor of its stockholders. The General Partner 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 has acted in good
faith.




          (c) Subject to its obligations and duties as General Partner set forth in Section 6.1, the
General Partner may exercise any of the powers granted to it under this Agreement and perform any
of the duties imposed upon it hereunder either directly or by or through its agents. The General
Partner shall not be responsible for any misconduct or negligence on the part of any such agent
appointed by it in good faith.




          (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 to (i) protect the ability of the General Partner to
continue to qualify as a REIT or (ii) prevent the General Partner from incurring any taxes under
Section 857, Section 4981, or any other provision of the Code, is expressly authorized under this
Agreement and is deemed approved by all of the Limited Partners.




          (e) Any amendment, modification or repeal of this Section 6.4 or any provision shall be
prospective only and shall not in any way affect the limitations on the General Partner’s liability
to the Partnership and the Limited Partners under this Section 6.4 as in effect immediately prior
to such amendment, modification or repeal with respect to matters occurring, in whole or in part,
prior to such amendment, modification or repeal, regardless of when claims relating to such matters
may arise or be asserted.




     6.5 Reimbursement of General Partner.



          (a) Except as provided in this Section 6.5 and elsewhere in this Agreement (including the
provisions of Articles V and VI 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.




23









 








          (b) The General Partner shall be reimbursed on a monthly basis, or such other basis as the
General Partner may determine in its sole and absolute discretion, for all REIT Expenses and
Administrative Expenses.




     6.6 Outside Activities. Subject to the Articles of Incorporation and any agreements
entered into by the General Partner or its Affiliates with the Partnership or a Subsidiary, or any
officer, director, employee, agent, trustee, Affiliate or stockholder of the General Partner, the
General 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 substantially similar or identical to those of the Partnership. Neither the Partnership
nor any of the Limited Partners shall have any rights by virtue of this Agreement in any such
business ventures, interests or activities. None of the Limited Partners or any other Person shall
have any rights by virtue of this Agreement or the partnership relationship established hereby in
any such business ventures, interests or activities, and the General Partner shall have no
obligation pursuant to this Agreement to offer any interest in any such business ventures,
interests and activities to the Partnership or any Limited Partner, even if such opportunity is of
a character which. if presented to the Partnership or any Limited Partner, could be taken by such
Person.



     6.7 Employment or Retention of Affiliates.



          (a) Any Affiliate of the General Partner may be employed or retained by the Partnership and
may otherwise deal with the Partnership (whether as an advisor, buyer, lessor, lessee, manager,
property management agent, asset manager, furnisher of goods or services, broker, agent, lender or
otherwise) and may receive from the Partnership any compensation, price, or other payment therefor
which the General Partner determines to be fair and reasonable.




          (b) The Partnership may lend or contribute to its Subsidiaries or other Persons in which it
has an equity investment, and such Persons may borrow funds from the Partnership, on terms and
conditions established in the sole and absolute discretion of the General Partner. The foregoing
authority shall not create any right or benefit in favor of any Subsidiary or any other Person.




          (c) The Partnership may transfer assets to joint ventures, limited liability companies, other
partnerships, corporations or other business entities in which it is or thereby becomes a
participant upon such terms and subject to such conditions as the General Partner deems to be
consistent with this Agreement and applicable law.




          (d) 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 on terms that are
fair and reasonable to the Partnership.




     6.8 Title to Partnership Assets. 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; provided, that 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. The General Partner hereby declares
and warrants that any Partnership assets 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 such Person 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 legal title to such assets to be vested in
the Partnership as soon as reasonably practicable. All Partnership assets shall be recorded as the



24









 







property of the Partnership in its books and records, irrespective of the name in which legal
title to such Partnership assets is held.



     6.9 Miscellaneous. In the event the General Partner redeems any REIT Shares, then the
General Partner shall cause the Partnership to purchase from the General Partner or the Original
Limited Partner a number of Partnership Units determined by, and based upon, the application of the
Conversion Factor on the same terms upon which the General Partner redeemed such REIT Shares.
Moreover, if the General Partner makes a cash tender offer or other offer to acquire REIT Shares,
then the General Partner shall cause the Partnership to make a corresponding offer to the General
Partner or the Original Limited Partner to acquire an equal number of Partnership Units held by the
General Partner. In the event any REIT Shares are redeemed by the General Partner pursuant to such
offer, the Partnership shall redeem an equivalent number of the General Partner’s or the Original
Limited Partner’s Partnership Units for an equivalent purchase price based on the application of
the Conversion Factor.



ARTICLE VII

CHANGES IN GENERAL PARTNER




     7.1 Transfer of the General Partner’s Partnership Interest.



          (a) The General Partner shall not transfer all or any portion of its General Partnership
Interest or withdraw as General Partner except as provided in or in connection with a transaction
contemplated by Sections 7.1(c), 7.1(d) or 7.1(e).




          (b) The General Partner agrees that the Percentage Interest for it will at all times, be in
the aggregate, at least 0.1%.




          (c) Except as otherwise provided in Section 7.1(d) or (e), the General Partner shall not
engage in any merger, consolidation or other combination with or into another Person or sale of all
or substantially all of its assets (other than in connection with a change in the General Partner’s
state of incorporation or organizational form), which, in any such case, results in a change of
control of the General Partner (a “Transaction”), unless:





          (i) the consent of Limited Partners holding more than 50% of the Percentage Interests
of the Limited Partners is obtained; or




          (ii) as a result of such Transaction all Limited Partners are granted the right to
receive for each Partnership Unit an amount of cash, securities, or other property equal to
the product of the Conversion Factor and the greatest amount of cash, securities or other
property paid in the Transaction to a holder of one REIT Share in consideration of the
transfer of one REIT Share; 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 Shares, each holder of Partnership Units
shall be given the option to exchange its Partnership Units for the greatest amount of cash,
securities, or other property which a Limited Partner would have received had it (A)
exercised its Exchange Right and (B) sold, tendered or exchanged pursuant to the Offer the
REIT Shares received upon exercise of the Exchange Right immediately prior to the expiration
of the Offer; or




          (iii) the General Partner is the surviving entity in the Transaction and either (A) the
holders of REIT Shares do not receive cash, securities, or other property in the Transaction
or (B) all Limited Partners (other than the General Partner or any Subsidiary) receive an
amount of cash, securities, or other property (expressed as an amount per REIT Share) that
is no less than the product



25









 







of the Conversion Factor and the greatest amount of cash, securities, or other property
(expressed as an amount per REIT Share) received in the Transaction by any holder of REIT
Shares.



          (d) Notwithstanding Section 7.1(c), the General Partner may merge with or into or consolidate
with another entity if immediately after such merger or consolidation (i) substantially all of the
assets of the successor or surviving entity (the “Survivor”), other than Partnership Units held by
the General Partner, are contributed, directly or indirectly, 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 Survivor in good faith and (ii) the Survivor expressly
agrees to assume all obligations of the General Partner, as appropriate, hereunder. Upon such
contribution and assumption, the Survivor shall have the right and duty to amend this Agreement as
set forth in this Section 7.1(d). The Survivor shall in good faith arrive at a new method for the
calculation of the Cash Amount, the REIT Shares Amount and the Conversion 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. 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 Shares or options, warrants or other rights
relating thereto, and which a holder of Partnership Units could have acquired had such Partnership
Units been exchanged immediately prior to such merger or consolidation. Such amendment to this
Agreement shall provide for adjustments to such method of calculation, which shall be as nearly
equivalent as may be practicable to the adjustments provided for herein with respect to the
Conversion Factor. The Survivor also shall in good faith modify the definition of REIT Shares and
make such amendments to Section 8.5 so as to approximate the existing rights and obligations set
forth in Section 8.5 as closely as reasonably possible. The above provisions of this Section
7.1(d) shall similarly apply to successive mergers or consolidations permitted hereunder.




     In respect of any transaction described in the preceding paragraph, the General Partner is
required to use its commercially reasonable efforts to structure such transaction to avoid causing
the Limited Partners to recognize a gain for federal income tax purposes by virtue of the
occurrence of or their participation in such transaction, provided, such efforts are consistent
with the exercise of the Board of Directors’ fiduciary duties to the stockholders of the General
Partner under applicable law.



          (e) Notwithstanding Section 7.1(c),





          (i) a General Partner may transfer all or any portion of its General Partnership
Interest to (A) a wholly-owned Subsidiary of such General Partner or (B) the owner of all of
the ownership interests of such General Partner, and following a transfer of all of its
General Partnership Interest, may withdraw as General Partner; and




          (ii) the General Partner may engage in a transaction not required by law or by the
rules of any national securities exchange on which the REIT Shares are listed to be
submitted to the vote of the holders of the REIT Shares.



     7.2 Admission of a Substitute or Additional General Partner. A Person shall be admitted
as a substitute or additional General Partner of the Partnership only if the following terms and
conditions are satisfied:



          (a) 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 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, a certificate evidencing the admission of
such Person as a General Partner shall have been filed for recordation and all other actions
required by Section 2.5 in connection with such admission shall have been performed;




26









 








          (b) 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




          (c) counsel for the Partnership shall have rendered an opinion (relying on such opinions from
other counsel in the state or any other jurisdiction 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,
and that none of the actions taken in connection with the admission of such Person as a substitute
or additional General Partner will cause (i) the Partnership to be classified other than as a
partnership for federal income tax purposes, or (ii) the loss of any Limited Partner’s limited
liability.




     7.3 Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner.



          (a) Upon the occurrence of an Event of Bankruptcy as to a General Partner (and its removal
pursuant to Section 7.4(a)) or the death, withdrawal, removal or dissolution of a General Partner
(except that, if a General Partner is, on the date of such occurrence a partnership, the
withdrawal, death, dissolution, Event of Bankruptcy as to, or removal of a partner in, such
partnership shall be deemed not to be a dissolution of such General Partner if the business of such
General Partner is continued by the remaining partner or partners thereof), the Partnership shall
be dissolved and terminated unless the Partnership is continued pursuant to Section 7.3(b). The
merger of the General Partner with or into any entity that is admitted as a substitute or successor
General Partner pursuant to Section 7.2 shall not be deemed to be the withdrawal, dissolution or
removal of the General Partner.




          (b) Following the occurrence of an Event of Bankruptcy as to a General Partner (and its
removal pursuant to Section 7.4(a)) or the death, withdrawal, removal or dissolution of a General
Partner (except that, if a General Partner is, on the date of such occurrence a partnership, the
withdrawal, death, dissolution, Event of Bankruptcy as to, or removal of a partner in, such
partnership shall be deemed not to be a dissolution of such General Partner if the business of such
General Partner is continued by the remaining partner or partners thereof), the Limited Partners,
within 90 days after such occurrence, may elect to continue the business of the Partnership for the
balance of the term specified in Section 2.4 by selecting, subject to Section 7.2 and any other
provisions of this Agreement, a substitute General Partner by consent of a majority in interest of
the Limited Partners. If the Limited Partners elect to continue the business of the Partnership
and admit a substitute General Partner, the relationship with the Partners and of any Person who
has acquired an interest of a Partner in the Partnership shall be governed by this Agreement.




     7.4 Removal of a General Partner.



          (a) Upon the occurrence of an Event of Bankruptcy as to, or the dissolution of, a General
Partner, such General Partner shall be deemed to be removed automatically; provided, however, that
if a General Partner is on the date of such occurrence a partnership, the withdrawal, death,
dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be deemed
not to be a dissolution of the General Partner if the business of such General Partner is continued
by the remaining partner or partners thereof. The Limited Partners may not remove the General
Partner, with or without cause.




          (b) If a General Partner has been removed pursuant to this Section 7.4 and the Partnership is
continued pursuant to Section 7.3, such General Partner shall promptly transfer and assign its
General Partnership Interest to the substitute General Partner approved by a majority in interest
of the Limited Partners in accordance with Section 7.3(b) and otherwise admitted to the Partnership
in accordance with Section 7.2. At the time of assignment, the removed General Partner shall be
entitled to receive from the substitute General Partner the fair market value of the General
Partnership Interest of such removed General



27









 






Partner as reduced by any damages caused to the Partnership by such General Partner’s removal.
Such fair market value shall be determined by an appraiser mutually agreed upon by the General
Partner and Limited Partners holding more than 50% of the Percentage Interests of the Limited
Partners within 10 days following the removal of the General Partner. In the event that the
parties are unable to agree upon an appraiser, the removed General Partner and Limited Partners
holding more than 50% of the Percentage Interests of the Limited Partners shall each select an
appraiser. Each such appraiser shall complete an appraisal of the fair market value of the removed
General Partner’s General Partnership Interest within 30 days of the General Partner’s removal, and
the fair market value of the removed General Partner’s General Partnership Interest shall be the
average of the two appraisals; provided, however, that if the higher appraisal exceeds the lower
appraisal by more than 20% of the amount of the lower appraisal, the two appraisers, no later than
40 days after the removal of the General Partner, shall select a third appraiser who shall complete
an appraisal of the fair market value of the removed General Partner’s General Partnership Interest
no later than 60 days after the removal of the General Partner. In such case, the fair market
value of the removed General Partner’s General Partnership Interest shall be the average of the two
appraisals closest in value.




          (c) The General Partnership Interest of a removed General Partner, during the time after
removal until the date of transfer under Section 7.4(b), shall be converted to that of a special
Limited Partner; provided, however, such removed General Partner shall not have any rights to
participate in the management and affairs of the Partnership, and shall not be entitled to any
portion of the income, expense, Profit, gain or Loss allocations or cash distributions allocable or
payable, as the case may be, to the Limited Partners. Instead, such removed General Partner shall
receive and be entitled only to retain distributions or allocations of such items that it would
have been entitled to receive in its capacity as General Partner, until the transfer is effective
pursuant to Section 7.4(b).




          (d) All Partners shall have given and hereby do give such consents, shall take such actions
and shall execute such documents as shall be legally necessary and sufficient to effect all the
foregoing provisions of this Section 7.4.




ARTICLE VIII

RIGHTS AND OBLIGATIONS

OF THE LIMITED PARTNERS




     8.1 Management of the Partnership. The Limited Partners shall not participate in the
management or control of Partnership business nor shall they transact any business for or on behalf
of the Partnership, nor shall they have the power to sign for or bind the Partnership, such powers
being vested solely and exclusively in the General Partner.



     8.2 Power of Attorney. Each Limited Partner hereby irrevocably appoints the General
Partner its true and lawful attorney-in-fact, who may act for each Limited Partner and in its name,
place and stead, and for its use and benefit, sign, acknowledge, swear to, deliver, file or record,
at the appropriate public offices, any and all documents, certificates, and instruments as may be
deemed necessary or desirable by the General Partner to carry out fully the provisions of this
Agreement and the Act in accordance with their terms, which power of attorney is coupled with an
interest and shall survive the death, dissolution or legal incapacity of the Limited Partner, or
the transfer by the Limited Partner of any part or all of its Partnership Interest.



     8.3 Limitation on Liability of Limited Partners. No Limited Partner shall be liable for
any debts, liabilities, contracts or obligations of the Partnership. A Limited Partner shall be
liable to the Partnership only to make payments of its Capital Contribution, if any, as and when
due hereunder. After its Capital Contribution is fully paid, no Limited Partner shall, except as
otherwise required by the Act, be required to make any further Capital Contributions or other
payments or lend any funds to the Partnership.



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     8.4 Ownership by Limited Partner of Corporate General Partner or Affiliate. No Limited
Partner shall at any time, either directly or indirectly, own any stock or other interest in the
General Partner or in any Affiliate thereof, if such ownership by itself or in conjunction with
other stock or other interests owned by other Limited Partners would, in the opinion of counsel for
the Partnership, jeopardize the classification of the Partnership as a partnership for federal
income tax purposes. The General Partner shall be entitled to make such reasonable inquiry of the
Limited Partners as is required to establish compliance by the Limited Partners with the provisions
of this Section 8.4.



     8.5 Exchange Right.



          (a) Subject to Sections 8.5(b), 8.5(c), 8.5(d) and 8.5(e), and subject to the potential
modification of any rights or obligations provided for herein by agreement(s) between the
Partnership and any one or more Limited Partners with respect to Partnership Units held by them,
each Limited Partner shall have the right (the “Exchange Right”) to require the Partnership to
redeem 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 to be paid by the
Partnership; provided, that such Partnership Units shall have been outstanding for at least one
year. The Exchange Right shall be exercised pursuant to the delivery of an Exchange Notice to the
Partnership (with a copy to the General Partner) by the Limited Partner who is exercising the
Exchange Right (the “Exchanging Partner”); provided, however, that the Partnership shall not be
obligated to satisfy such Exchange Right if the General Partner elects to purchase the Partnership
Units subject to the Exchange Notice pursuant to Section 8.5(b); and provided further, that no
Limited Partner may deliver more than two Exchange Notices during each calendar year. A Limited
Partner may not exercise the Exchange Right for less than 1,000 Partnership Units or, if such
Limited Partner holds less than 1,000 Partnership Units, all of the Partnership Units held by such
Partner. The Exchanging Partner shall have no right, with respect to any Partnership Units so
exchanged, to receive any distribution paid with respect to such Partnership Units if the record
date for such distribution is on or after the Specified Exchange Date.




          (b) Notwithstanding the provisions of Section 8.5(a), a Limited Partner that exercises the
Exchange Right shall be deemed to have also offered to sell the Partnership Units described in the
Exchange Notice to the General Partner, and the General Partner may, in its sole and absolute
discretion, elect to purchase directly and acquire such Partnership Units by paying to the
Exchanging Partner either the Cash Amount or the REIT Shares Amount, as elected by the General
Partner (in its sole and absolute discretion), on the Specified Exchange Date, whereupon the
General Partner shall acquire the Partnership Units offered for exchange by the Exchanging Partner
and shall be treated for all purposes of this Agreement as the owner of such Partnership Units. If
the General Partner shall elect to exercise its right to purchase Partnership Units under this
Section 8.5(b) with respect to an Exchange Notice, it shall so notify the Exchanging Partner within
five business days after the receipt by the General Partner of such Exchange Notice. Unless the
General Partner (in its sole and absolute discretion) shall exercise its right to purchase
Partnership Units from the Exchanging Partner pursuant to this Section 8.5(b), the General Partner
shall have no obligation to the Exchanging Partner or the Partnership with respect to the
Exchanging Partner’s exercise of an Exchange Right. In the event the General Partner shall
exercise its right to purchase Partnership Units with respect to the exercise of an Exchange Right
in the manner described in the first sentence of this Section 8.5(b), the Partnership shall have no
obligation to pay any amount to the Exchanging Partner with respect to such Exchanging Partner’s
exercise of such Exchange Right, and each of the Exchanging Partner and the General Partner shall
treat the transaction between the General Partner and the Exchanging Partner for federal income tax
purposes as a sale of the Exchanging Partner’s Partnership Units to the General Partner. Each
Exchanging Partner agrees to execute such documents as the General Partner may reasonably require
in connection with the issuance of REIT Shares to such Exchanging Partner upon exercise of its
Exchange Right.




          (c) Notwithstanding the provisions of Sections 8.5(a) and 8.5(b), a Limited Partner shall not
be entitled to exercise the Exchange Right if the delivery of REIT Shares to such Partner on the
Specified



29









 






Exchange Date by the General Partner pursuant to Section 8.5(b) (regardless of whether or not
the General Partner would in fact exercise its rights under Section 8.5(b)) would (i) result in
such Partner or any other person owning, directly or indirectly, REIT Shares in excess of the
ownership limitations described in the Articles of Incorporation and calculated in accordance
therewith, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without
reference to any rules of attribution), except as provided in the Articles of Incorporation, (iii)
result in the General Partner being “closely held” within the meaning of Section 856(h) of the
Code, (iv) cause the General Partner to own, directly or constructively, 10% or more of the
ownership interests in a tenant of the General Partner’s, the Partnership’s, or a Subsidiary
Partnership’s real property within the meaning of Section 856(d)(2)(B) of the Code, or (v) cause
the acquisition of REIT Shares by such Partner to be “integrated” with any other distribution of
REIT Shares for purposes of complying with the registration provisions of the Securities Act. The
General Partner, in its sole and absolute discretion, may waive any of the restrictions on exchange
set forth in this Section 8.5(c); provided, however, that in the event any such restriction is
waived, the Exchanging Partner shall be paid the Cash Amount.




          (d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.5 shall be
paid on the Specified Exchange Date; provided, however, that the General Partner may elect to cause
the Specified Exchange Date to be delayed for up to 180 days to the extent required for the General
Partner to cause additional REIT Shares to be issued to provide financing to be used to make such
payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its
best efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to
occur as quickly as reasonably possible.




          (e) Notwithstanding any other provision of this Agreement, the General Partner shall place
appropriate restrictions on the ability of the Limited Partners to exercise their Exchange Rights
as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded
partnership” under Section 7704 of the Code. If and when the General Partner determines that
imposing such restrictions is necessary, the General Partner shall give prompt written notice
thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall be accompanied
by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such
counsel, restrictions are necessary in order to avoid the Partnership being treated as a “publicly
traded partnership” under Section 7704 of the Code.




     8.6 Call Right.



          (a) Subject to Section 8.6(c) below, and subject to the modification of any rights or
obligations provided for herein by agreement(s) between the General Partner and any one or more
Limited Partners with respect to the Partnership Units held by them, at any time after the
expiration of the Holding Period for the Partnership Units in question, the General Partner shall
have the right (the “Call Right”) to purchase all of the Partnership Units held by a Limited
Partner at a price equal to the Cash Amount; provided, however, that the General Partner may, in
its sole and absolute discretion, elect to purchase such Partnership Units by paying to the Partner
in question the REIT Shares Amount in lieu of the Cash Amount. The Call Right shall be exercised
pursuant to a Call Notice delivered by the General Partner to any such Limited Partner. The
General Partner may not exercise the Call Right for less than the entire interest of a Limited
Partner in the Partnership. A Limited Partner receiving the Call Notice described above shall have
no rights with respect to any interest in the Partnership other than the right to receive payment
for its interest in the Partnership in cash or REIT Shares in accordance with this Section 8.6. An
assignee of a Limited Partner shall be bound by and subject to the Call Right of the General
Partner pursuant to this Section 8.6. In connection with any exercise of such Call Right by the
General Partner with respect to an assignee, the Cash Amount (or REIT Shares Amount) shall be paid
by the General Partner directly to such assignee and not to the Limited Partner from which such
assignee acquired its Partnership Units. The General Partner shall be unable to exercise the Call
Right and the Call Right shall lapse upon the occurrence of a Liquidating Event unless and until
the Partners shall continue the business of the Partnership under Section 7.3.




30









 








          (b)





          (i) Within 30 days after the delivery of the Call Notice by the General Partner to a
Limited Partner under this Section 8.6, the General Partner (subject to the limitations set
forth in Section 8.6(c)) shall transfer and deliver the Cash Amount (or the REIT Shares
Amount) to such Limited Partner or, as applicable, its assignee, whereupon the General
Partner (or its designee) shall acquire the Partnership Units of such Limited Partner or, as
applicable, its assignee, and shall be treated for all purposes of this Agreement as the
owner of such Partnership Units (and as a Limited Partner with respect to such Partnership
Units).




          (ii) In the event that the General Partner elects to pay such Limited Partner in the
form of the REIT Shares Amount and such REIT Shares Amount is not a whole number of REIT
Shares, the Limited Partner shall be paid (A) the number of REIT Shares which equals the
nearest whole number less than such amount plus (B) an amount of cash which the General
Partner determines, in its reasonable discretion, to represent the fair value of the
remaining fractional REIT Share which would otherwise be payable to the Limited Partner.




          (iii) Each Limited Partner agrees to deliver to the General Partner the Partnership
Unit certificate(s) representing its Limited Partnership Interest and to execute such
documents as the General Partner may reasonably require in connection with the issuance of
REIT Shares upon exercise of the Call Right (including without limitation an assignment of
Partnership Units pursuant to the terms of which such Limited Partner (A) represents,
warrants and certifies that it has marketable and unencumbered title to its Partnership
Units, free and clear of the rights of or interest of any other person or entity, that it
has the full right, power and authority to transfer and surrender its Partnership Units, and
that it has obtained the consent or approval of all persons or entities, if any, having the
right to consent to or approve of such transfer and surrender, and (B) agrees to indemnify
and hold the General Partner harmless from and against any and all liabilities, charges,
costs and expenses relating to such Limited Partner’s Partnership Units which are subject to
the Call Right or the exercise of the Call Right).



          (c) Notwithstanding the provisions of Sections 8.6(a) and 8.6(b) above, the General Partner
shall not be entitled to exercise the Call Right if (i) a Liquidating Event has occurred with
regard to the Partnership and the Partnership has not been continued under Section 7.3; or (ii) the
delivery of REIT Shares to the Limited Partner (A) would be prohibited under the Articles of
Incorporation, (B) 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, or (C) would be prohibited under applicable federal or state securities laws or
regulations.




          (d) Each Limited Partner covenants and agrees with the General Partner that all Partnership
Units delivered in connection with the Call Right shall be delivered to the General Partner free
and clear of all liens and encumbrances and, notwithstanding anything contained herein to the
contrary, the General Partner shall not be under any obligation to acquire a Limited Partner’s
Partnership Units (i) to the extent that any such Partnership Units are subject to any such liens
or encumbrances or (ii) in the event that the Limited Partner shall fail to give the General
Partner adequate assurances that such Partnership Units are not subject to any such liens or
encumbrances or shall fail to agree to fully indemnify the General Partner from any such liens or
encumbrances as well as the liabilities, charges, costs and expenses referenced in the last section
of Section 8.6(b)(iii). Each Limited Partner further agrees that, in the event any state or local
transfer tax is payable as a result of the transfer of its Partnership Units to the General
Partner, such Limited Partner shall assume and pay such transfer tax.




31









 








     8.7 Duties and Conflicts. The General Partner recognizes that the Limited Partners and
their Affiliates have or may have other business interests, activities and investments, some of
which may be in conflict or competition with the business of the Partnership, and that such Persons
are entitled to carry on such other business interests, activities and investments. The Limited
Partners and their Affiliates may engage in or possess an interest in any other business or venture
of any kind, independently or with others, on their own behalf or on behalf of other entities with
which they are affiliated or associated, and such Persons may engage in any activities, whether or
not competitive with the Partnership, without any obligation to offer any interest in such
activities to the Partnership or to any Partner. Neither the Partnership nor any Partner shall
have any right, by virtue of this Agreement, in or to such activities, or the income or profits
derived therefrom, and the pursuit of such activities, even if competitive with the business of the
Partnership, and such activities shall not be deemed wrongful or improper.



ARTICLE IX

TRANSFERS OF LIMITED PARTNERSHIP INTERESTS




     9.1 Purchase for Investment.



          (a) Each Limited Partner hereby represents and warrants to the General Partner and to the
Partnership that the acquisition of its Partnership Interest is made as a principal for its account
for investment purposes only and not with a view to the resale or distribution of such Partnership
Interest.




          (b) Each Limited Partner agrees that it will not sell, assign or otherwise transfer its
Partnership Interest or any fraction thereof, whether voluntarily or by operation of law or at
judicial sale or otherwise, to any Person who does not make the representations and warranties to
the General Partner set forth in Section 9.1(a) above.




     9.2 Restrictions on Transfer of Limited Partnership Interests.



          (a) Subject to the provisions of Sections 9.2(b), 9.2(c) and 9.2(d), no Limited Partner may
offer, sell, assign, hypothecate, pledge or otherwise transfer all or any portion of its Limited
Partnership Interest, or any of such Limited Partner’s economic rights as a Limited Partner,
whether voluntarily or by operation of law or at judicial sale or otherwise (collectively, a
“Transfer”), without the consent of the General Partner, which consent may be granted or withheld
in its sole and absolute discretion. Any such purported transfer undertaken without such consent
shall be considered to be null and void ab initio and shall not be given effect. The Original
Limited Partner acknowledges that the General Partner has agreed not to grant its consent with
respect to any Transfer by the Original Limited Partner prior to the Transfer Restriction Date;
provided, that the Original Limited Partner shall not be prohibited from a Transfer of its
Partnership Interest pursuant to the exercise of its right to exchange its Partnership Interest for
REIT Shares pursuant to Section 8.5 above, in which case the Original Limited Partner acknowledges
that the General Partner has also agreed not to grant its consent with respect to any Transfer of
said REIT Shares prior to the Transfer Restriction Date. The General Partner may require, as a
condition of any Transfer to which it consents, that the transferor assume all costs incurred by
the Partnership in connection therewith.




          (b) No Limited Partner may withdraw from the Partnership other than as a result of: (i) a
permitted Transfer (i.e., a Transfer consented to as contemplated by paragraph (a) above or
paragraph (c) below or a Transfer made pursuant to Section 9.5 below) of all of its Partnership
Units pursuant to this Article IX pursuant to an exchange of all of its Partnership Units pursuant
to Section 8.5 above; or (iii) a Transfer made pursuant to the sale of all its Partnership Units
pursuant to Section 8.6 above. Upon the permitted Transfer or redemption of all of a Limited
Partner’s Partnership Units, such Limited Partner shall cease to be a Limited Partner.




32









 








          (c) Subject to Sections 9.2(d), 9.2(e) and 9.2(f), a Limited Partner may Transfer, with the
consent of the General Partner, all or a portion of its Partnership Units to (i) a parent or
parent’s spouse, natural or adopted descendants, a spouse of any such descendant, a brother or
sister, or a trust created by such Limited Partner for the benefit of such Limited Partner and/or
any such person(s), for which trust such Limited Partner or any such person(s) is a trustee, (ii) a
corporation controlled by a Person or Persons named in (i) above, or (iii) if the Limited Partner
is an entity, its beneficial owners.




          (d) No Limited Partner may effect a Transfer of its Limited Partnership Interest, in whole or
in part, if, in the opinion of legal counsel for the Partnership, such proposed Transfer would
require the registration of the Limited Partnership Interest under the Securities Act, or would
otherwise violate any applicable federal or state securities or blue sky law (including investment
suitability standards).




          (e) No Transfer by a Limited Partner of its Partnership Units, in whole or in part, may be
made to any Person if (i) in the opinion of legal counsel for the Partnership, the transfer would
result in the Partnership’s being treated as an association taxable as a corporation (other than a
qualified REIT subsidiary within the meaning of Section 856(i) of the Code), (ii) in the opinion of
legal counsel for the Partnership, it 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, or (iii) 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.




          (f) 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 or
redeem for the Cash Amount 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.




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




          (h) Prior to the consummation of any Transfer under this Article IX, the transferor and/or the
transferee shall deliver to the General Partner such opinions, certificates and other documents as
the General Partner shall request in connection with such Transfer.




     9.3 Admission of Substitute Limited Partner.



          (a) Subject to the other provisions of this Article IX, an assignee of a Limited Partnership
Interest (which shall be understood to include any purchaser, transferee, donee or other recipient
of any disposition of such Limited Partnership Interest) shall be deemed admitted as a Limited
Partner only with the consent of the General Partner and upon the satisfactory completion of the
following:





          (i) the assignee shall have accepted and agreed to be bound by the terms and provisions
of this Agreement by executing a counterpart or an amendment thereof, including a revised
Exhibit A, and such other documents or instruments as the General Partner may
require in order to effect the admission of such Person as a Limited Partner;



33









 






          (ii) to the extent required, an amended Certificate evidencing the admission of such
Person as a Limited Partner shall have been signed, acknowledged and filed for record in
accordance with the Act;




          (iii) the assignee shall have delivered a letter containing the representation set
forth in Section 9.1(a) and the agreement set forth in Section 9.1(b);




          (iv) if the assignee is a corporation, partnership or trust, the assignee shall have
provided the General Partner with evidence satisfactory to counsel for the Partnership of
the assignee’s authority to become a Limited Partner under the terms and provisions of this
Agreement;




          (v) the assignee shall have executed a power of attorney containing the terms and
provisions set forth in Section 8.2;




          (vi) the assignee shall have paid all legal fees and other expenses of the Partnership
and the General Partner and filing and publication costs in connection with its substitution
as a Limited Partner; and




          (vii) the assignee shall have obtained the prior written consent of the General Partner
to its admission as a Substitute Limited Partner, which consent may be given or denied in
the exercise of the General Partner’s sole and absolute discretion.



          (b) For the purpose of allocating Profit and Loss and distributing cash received by the
Partnership, a Substitute Limited Partner shall be treated as having become, and appearing in the
records of the Partnership as, a Partner upon the filing of the Certificate described in Section
9.3(a)(ii) or, if no such filing is required, the later of the date specified in the transfer
documents or the date on which the General Partner has received all necessary instruments of
transfer and substitution.




          (c) The General Partner shall cooperate with the Person seeking to become a Substitute Limited
Partner by preparing the documentation required by this Section 9.3 and making all official filings
and publications. The Partnership shall take all such action as promptly as practicable after the
satisfaction of the conditions in this Article IX to the admission of such Person as a Limited
Partner of the Partnership.




     9.4 Rights of Assignees of Partnership Interests.



          (a) Subject to the provisions of Sections 9.1 and 9.2, except as required by operation of law,
the Partnership shall not be obligated for any purposes whatsoever to recognize the assignment by
any Limited Partner of its Partnership Interest until the Partnership has received notice thereof.




          (b) Any Person who is the assignee of all or any portion of a Limited Partner’s Limited
Partnership Interest, but who does not become a Substitute Limited Partner and desires to make a
further assignment of such Limited Partnership Interest, shall be subject to all the provisions of
this Article IX to the same extent and in the same manner as any Limited Partner desiring to make
an assignment of its Limited Partnership Interest.




     9.5
Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner. The
occurrence of an Event of Bankruptcy as to a Limited Partner, the death of a Limited Partner or a
final adjudication that a Limited Partner is incompetent (which term shall include, but not be
limited to, insanity) shall not cause the termination or dissolution of the Partnership, and the
business of the Partnership shall continue if an order for relief in a bankruptcy proceeding is
entered against a Limited Partner, the trustee or receiver of his estate or, if he dies, his
executor, administrator or trustee, or, if he is finally adjudicated



34









 







incompetent, his committee, guardian or conservator, and any such Person shall have the rights
of such Limited Partner for the purpose of settling or managing his estate property and such power
as the bankrupt, deceased or incompetent Limited Partner possessed to assign all or any part of his
Partnership Interest and to join with the assignee in satisfying conditions precedent to the
admission of the assignee as a Substitute Limited Partner.



     9.6
Joint Ownership of Interests. A Partnership Interest may be acquired by two
individuals as joint tenants with right of survivorship, provided, that such individuals either are
married or are related and share the same personal residence. The written consent or vote of both
owners of any such jointly-held Partnership Interest shall be required to constitute the action of
the owners of such Partnership Interest; provided, however, that the written consent of only one
joint owner will be required if the Partnership has been provided with evidence satisfactory to the
counsel for the Partnership that the actions of a single joint owner can bind both owners under the
applicable laws of the state of residence of such joint owners. Upon the death of one owner of a
Partnership Interest held in a joint tenancy with a right of survivorship, the Partnership Interest
shall become owned solely by the survivor as a Limited Partner and not as an assignee. The
Partnership need not recognize the death of one of the owners of a jointly held Partnership
Interest until it shall have received notice of such death. Upon notice to the General Partner
from either owner, the General Partner shall cause the Partnership Interest to be divided into two
equal Partnership Interests, which shall thereafter be owned separately by each of the former joint
owners.



ARTICLE X

BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS




     10.1 Books and Records. At all times during the continuance of the Partnership, the
Partners shall keep or cause to be kept at the Partnership’s specified office true and complete
books of account maintained in accordance with generally accepted accounting principles, including
(a) a current list of the full name and last-known business address of each Partner; (b) a copy of
the Certificate and all certificates of amendment thereto; (c) copies of the Partnership’s federal,
state and local income tax returns and reports; (d) copies of the Agreement and any financial
statements of the Partnership for the three most recent years; and (e) all documents and
information required under the Act. Any Partner or its duly authorized representative, and any
stockholder of the General Partner, upon paying the costs of collection, duplication and mailing,
shall be entitled to inspect or copy such records during ordinary business hours.



     10.2 Custody of Partnership Funds; Bank Accounts.



          (a) All funds of the Partnership not otherwise invested shall be deposited in one or more
accounts maintained in such banking or brokerage institutions as the General Partner shall
determine, and withdrawals shall be made only on such signature or signatures as the General
Partner may, from time to time, determine.




          (b) All deposits and other funds not needed in the operation of the business of the
Partnership may be invested by the General Partner in investment grade instruments (or investment
companies whose portfolio consists primarily thereof, government obligations, certificates of
deposit, bankers’ acceptances and municipal notes and bonds. The funds of the Partnership shall
not be commingled with the funds of any other Person except for such commingling as may necessarily
result from an investment in those investment companies permitted by this Section 10.2(b).




     10.3 Fiscal and Taxable Year. The fiscal and taxable year of the Partnership shall be the
calendar year.



35









 





     10.4 Annual Tax Information and Report. The General Partner will use its best efforts to
supply within 75 days after the end of each fiscal year of the Partnership to each person who was a
Limited Partner at any time during such year the tax information necessary to file such Limited
Partner’s individual tax returns as shall be reasonably required by law, and in all events the
General Partner shall furnish such information within the time required by applicable law.



     10.5 Tax Matters Partner; Tax Elections; Special Basis Adjustments.



          (a) The General Partner shall be the Tax Matters Partner of the Partnership within the meaning
of Section 6231(a)(7) of the Code. As Tax Matters Partner, the General Partner shall have the
right and obligation to take all actions authorized and required, respectively, by the Code for the
Tax Matters Partner. The General Partner shall have the right to retain professional assistance in
respect of any audit of the Partnership by the Service and all out-of-pocket expenses and fees
incurred by the General Partner on behalf of the Partnership as Tax Matters Partner shall
constitute Partnership expenses. In the event the General Partner receives notice of a final
Partnership adjustment under Section 6223(a)(2) of the Code, the General Partner shall either (i)
file a court petition for judicial review of such final adjustment within the period provided under
Section 6226(a) of the Code, a copy of which petition shall be mailed to all Limited Partners on
the date such petition is filed, or (ii) mail a written notice to all Limited Partners, within such
period, that describes the General Partner’s reasons for determining not to file such a petition.




          (b) All elections required or permitted to be made by the Partnership under the Code or any
applicable state or local tax law shall be made by the General Partner in its sole and absolute
discretion.




          (c) In the event of a transfer of all or any part of the Partnership Interest of any Partner,
the Partnership, at the option and in the sole and absolute discretion of the General Partner, may
elect pursuant to Section 754 of the Code to adjust the basis of the Properties. Notwithstanding
anything contained in Article V of this Agreement, any adjustments made pursuant to Section 754
shall affect only the successor-in-interest to the transferring Partner and in no event shall be
taken into account in establishing, maintaining or computing Capital Accounts for the other
Partners for any purpose under this Agreement. Each Partner will furnish the Partnership with all
information necessary to give effect to such election.




     10.6 Reports to Limited Partners.



          (a) As soon as practicable after the close of each fiscal quarter (other than the last quarter
of the fiscal year), the General Partner shall cause to be mailed to each Limited Partner a
quarterly report containing financial statements of the Partnership, or of the General Partner if
such statements are prepared solely on a consolidated basis with the General Partner, for such
fiscal quarter presented in accordance with generally accepted accounting principles. As soon as
practicable after the close of each fiscal year, the General Partner shall cause to be mailed to
each Limited Partner an annual report containing financial statements of the Partnership, or of the
General Partner if such statements are prepared solely on a consolidated basis with the General
Partner, for such fiscal year, presented in accordance with generally accepted accounting
principles. The annual financial statements shall be audited by accountants selected by the
General Partner.




          (b) Any Partner shall further have the right to a private audit of the books and records of
the Partnership, provided such audit is made for Partnership purposes and at the expense of the
Partner desiring it, and it is made during normal business hours.




36









 








ARTICLE XI

AMENDMENT OF AGREEMENT; MEETINGS




     11.1 Amendment. The General Partner’s consent shall be required for any amendment to this
Agreement. The General Partner, without the consent of the Limited Partners, may amend this
Agreement in any respect; provided, however, that the following amendments shall require the
consent of Limited Partners holding more than 50% of the Percentage Interests of the Limited
Partners:



          (a) any amendment affecting the operation of the Conversion Factor or the Exchange Right
(except as provided in Sections 8.5(d) or 7.1(d)) in a manner adverse to the Limited Partners;




          (b) any amendment that would adversely affect the rights of the Limited Partners to receive
the distributions payable to them hereunder, other than with respect to the issuance of additional
Partnership Units pursuant to Section 4.2;




          (c) any amendment that would alter the Partnership’s allocations of Profit and Loss to the
Limited Partners, other than with respect to the issuance of additional Partnership Units pursuant
to Section 4.2; or




          (d) any amendment that would impose on the Limited Partners any obligation to make additional
Capital Contributions to the Partnership.




     The foregoing notwithstanding, the approval of any amendment to this Agreement that shall be
part of a plan of merger, plan of exchange or plan of conversion involving the Partnership or the
Partnership Interests shall be governed by Article XII. Notwithstanding anything to the contrary
contained in this Agreement, the Partners acknowledge that this Agreement shall be deemed to be
automatically amended and the General Partner is authorized to amend this Agreement to the extent
provided in Section 4.1 hereof.



     11.2 Meetings of Partners.



          (a) The Partners may but shall not be required to hold any annual, periodic or other formal
meetings. Meetings of the Partners may be called by the General Partner or by any Limited Partner
or Limited Partners holding at least 10% of the Partnership Units in the Partnership.




          (b) The Partner or Partners calling the meeting may designate any place within the State of
Delaware as the place of meeting for any meeting of the Partners; and Partners holding at least a
majority of the Partnership Units in the Partnership may designate any place outside the State of
Delaware as the place of meeting for any meeting of the Partners. If no designation is made, or if
a special meeting is called, the place of meeting shall be the principal place of business of the
Partnership.




          (c) Except as provided in Section 11.2(d), written notice stating the place, day and hour of
the meeting and the purpose or purposes for which the meeting is called shall be delivered not less
than ten (10) nor more than ninety (90) days before the date of the meeting, either personally or
by mail, by or at the direction of the Partner or Partners calling the meeting, to each Partner
entitled to vote at such meeting and to each Partner not entitled to vote who is entitled to notice
of the meeting.




          (d) Anything in this Agreement to the contrary notwithstanding, with respect to any meeting of
the Partners, any Partner who in person or by proxy shall have waived in writing notice of the
meeting, either before or after such meeting, or who shall attend the meeting in person or by
proxy, shall be deemed to have waived notice of such meeting unless such Partner attends for the
express purpose of



37









 






objecting, at the beginning of the meeting, and does so object to the transaction of any
business because the meeting is not lawfully called or convened.




          (e) If all of the Partners shall meet at any time and place, either within or outside of the
State of Delaware, in person or by proxy, and consent to the holding of a meeting at such time and
place, such meeting shall be valid without call or notice, and at such meeting lawful action may be
taken.




          (f) For the purpose of determining Partners entitled to notice of or to vote at any meeting of
Partners or any adjournment thereof, the date on which notice of the meeting is mailed shall be the
record date. When a determination of Partners entitled to vote at any meeting of Partners has been
made as provided in this Section, such determination shall apply to any adjournment thereof.




          (g) Partners holding at least a majority of the Partnership Units entitled to vote at a
meeting, represented in person or by proxy, shall constitute a quorum at any meeting of Partners.
In the absence of a quorum at any such meeting, Partners holding at least a majority of Partnership
Units so represented may adjourn the meeting to another time and place. Any business that might
have been transacted at the original meeting may be transacted at any adjourned meeting at which a
quorum is present. No notice of an adjourned meeting need be given if the time and place are
announced at the meeting at which the adjournment is taken unless the adjournment is for more than
120 days. The Partners present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal during such meeting of that number Partnership Units
whose absence would cause less than a quorum to be present.




          (h) If a quorum is present, the affirmative vote of Partners holding a majority of the
Partnership Units entitled to vote, present in person or represented by proxy, shall be binding on
all Partners, unless the vote of a greater or lesser proportion or number of Partnership Units or
Partners is otherwise required by applicable law or by this Agreement. Unless otherwise expressly
provided herein or required under applicable law, Partners who have an interest (economic or
otherwise) in the outcome of any particular matter upon which the Partners’ vote or consent is
required may vote or consent upon any such matter and their Partnership Units, vote or consent, as
the case may be, shall be counted in the determination of whether the requisite matter was approved
by the Partners.




          (i) At all meetings of Partners, a Partner may vote in person or by proxy executed in writing
by the Partner or by the Partner’s duly authorized attorney-in-fact. Such proxy shall be filed with
the General Partner before or at the time of the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the proxy.




          (j) Action required or permitted to be taken at a meeting of Partners may be taken without a
meeting if the action is evidenced by one or more written consents or approvals describing the
action taken and signed by sufficient Partners or Partners holding sufficient Partnership Units, as
the case may be, to approve such action had such action been properly voted on at a duly called
meeting of the Partners. Action taken under this Section 11.2(j) is effective when the requisite
Partners or Partners with the requisite Partnership Units, as the case may be, have signed the
consent or approval, unless the consent specifies a different effective date.




38









 








ARTICLE XII

MERGER, EXCHANGE OR CONVERSION




     12.1 Merger, Exchange or Conversion of Partnership.



          (a) The Partnership may (i) adopt a plan of merger and may merge with or into one or more
domestic or foreign limited partnerships or other entities with the resulting entity being one or
more surviving entities, (ii) adopt a plan of exchange by which a domestic or foreign limited
partnership or other entity is to acquire all of the outstanding Partnership Interests in exchange
for cash, securities or other property of the acquiring domestic or foreign limited partnership or
other entity or (iii) adopt a plan of conversion and convert to a foreign limited partnership or
other entity. Any such plan of merger, plan of exchange, or plan of conversion shall otherwise
comply with the requirements of this Agreement and the Act.




          (b) Any merger pursuant to a plan of merger described in Section 12.1(a)(i) shall be
conditioned upon the merger being permitted by the laws under which each other entity that is a
party to the merger is incorporated or organized or by the constituent documents of such other
entity that are not inconsistent with such laws. Any exchange pursuant to a plan of exchange
described in Section 12.1(a)(ii) shall be conditioned upon the issuance of shares or other
interests of the acquiring foreign limited partnership or other entity being permitted by the laws
under which such foreign limited partnership or other entity is incorporated or organized or is not
inconsistent with such laws. Any conversion pursuant to a plan of conversion described in Section
12.1(a)(iii) shall be conditioned upon such conversion being permitted by, or not inconsistent
with, the laws of the jurisdiction in which the converted entity is to be incorporated, formed or
organized and the incorporation, formation or organization of the converted entity is effected in
compliance with such laws.




          (c) The Partnership may adopt a plan of merger, plan of exchange or plan of conversion if the
General Partner acts upon and the Limited Partners (if required by Section 12.2 below) approve the
plan of merger, plan of exchange or plan of conversion in the manner prescribed in Section 12.2
below.




     12.2 Approval of Plan of Merger, Exchange or Conversion.



          (a) Except as provided by Section 12.2(g) below, after acting on a plan of merger, plan of
exchange or plan of conversion in the manner prescribed by Section 12.2(b)(i), the General Partner
shall submit the plan of merger, plan of exchange or plan of conversion for approval by the Limited
Partners.




          (b) Except as provided by Section 12.2(f) below, for a plan of merger, plan of exchange or
plan of conversion to be approved:





          (i) the General Partner shall adopt a resolution recommending that the plan of merger,
plan of exchange or plan of conversion be approved by the Limited Partners, unless the
General Partner determines that for any reason it should not make that recommendation, in
which case the General Partner shall adopt a resolution directing that the plan of merger,
plan of exchange or plan of conversion be submitted to the Limited Partners for approval
without recommendation; and




          (ii) the Limited Partners entitled to vote on the plan of merger, plan of exchange or
plan of conversion must approve the plan as set forth in Section 12.2(e).



          (c) The General Partner may condition its submission to the Limited Partners of a plan of
merger, plan of exchange or plan of conversion, and the effectiveness of such plan, on any basis,
including without limitation that a specified percentage of the Percentage Interests of the Limited
Partners in excess of a



39









 






majority of the Percentage Interests of the Limited Partners be required for the approval of
the plan of merger, plan of exchange or plan of conversion.




          (d) The General Partner shall notify each Limited Partner, whether or not entitled to vote, of
the meeting of the Limited Partners at which the plan of merger, plan of exchange or plan of
conversion is to be submitted for approval in accordance with this Section 12.2 and applicable law.
The notice shall be given at least twenty (20) days before the meeting and shall state that the
purpose, or one of the purposes, of the meeting is to consider the plan of merger, plan of exchange
or plan of conversion and shall contain or be accompanied by a copy or summary of the plan. Any
such approval may be by written consent of the requisite Limited Partners as would be required to
approve the plan at any meeting where all the Limited Partners are present.




          (e) Unless the General Partner (acting pursuant to Section 12.2(c)) requires a greater vote,
the vote of the Limited Partners required for approval of a plan of merger, plan of exchange or
plan of conversion shall be the affirmative vote of the holders of more than 50% of the Percentage
Interests of the Limited Partners entitled to vote thereon.




          (f) Unless applicable law otherwise requires (in which case the approval of the Limited
Partners shall continue to be required and the foregoing provisions of this Section 12.2 shall
continue to apply), (1) approval by the Limited Partners on a plan of exchange shall not be
required, and the foregoing provisions of this Section 12.2 do not apply, if the Partnership is the
acquiring entity in the plan of exchange, and (2) approval by the Limited Partners on a plan of
merger or a plan of conversion shall not be required and the foregoing provisions of this Section
12.2 do not apply, if:





          (i) a limited partnership is the sole surviving or resulting entity;




          (ii) the partnership agreement of the surviving or resulting limited partnership will
not materially differ from this Agreement before the merger or conversion in any manner
other than as to applicable law or other insignificant conforming differences;




          (iii) Limited Partners who held Limited Partnership Interests immediately before the
effective date of the merger or conversion will hold interests in the surviving or resulting
entity in the same proportions, immediately after the effective date of the merger or
conversion; and




          (iv) the General Partner adopts a resolution approving the plan of merger or plan of
conversion.



          (g) After a plan of merger, plan of exchange or plan of conversion is approved, and at any
time before the merger, exchange or conversion has become effective, the plan of merger, plan of
exchange or plan of conversion may be abandoned (subject to any contractual rights by any of the
entities that are a party thereto), without action by the Limited Partners, in accordance with the
procedures set forth in the plan of merger, plan of exchange or plan of conversion or, if no such
procedures are set forth in the plan, in the manner determined by the General Partner.




     12.3 Rights of Dissenting Limited Partners.



          (a) In the absence of fraud in the transaction, the remedy provided by this Section 12.3 to a
Limited Partner voting against any merger, exchange or conversion or objecting to a merger,
exchange or conversion approved by the written consent of Limited Partners (a “Dissenting Limited
Partner”) is the exclusive remedy for the recovery of the value of his Limited Partnership
interests or money damages with respect to the transaction. If the existing, surviving, or new
corporation or limited partnership (foreign or



40









 






domestic) or other entity, as the case may be, complies with the requirements of this Section
12.3, any Dissenting Limited Partner who fails to comply with the requirements of this Section 12.3
shall not be entitled to bring suit for the recovery of the value of his Limited Partnership
interests or money damages with respect to the transaction. A “Dissenting Limited Partner” in
respect of any merger, exchange or conversion shall expressly exclude any Limited Partner who votes
in favor of the related plan of merger, plan of exchange or plan of conversion or who abstains or
fails to timely vote therefor. In the event of a plan of merger, plan of exchange or plan of
conversion approved by written consent, a “Dissenting Limited Partner” in respect of any related
merger, exchange or conversion shall expressly exclude Limited Partners who provide such written
consent and Limited Partners who fail to object to the merger, exchange or conversion and demands
payment for such Limited Partner’s Limited Partnership Interest in writing to the General Partner
within twenty (20) days after notice to the Limited Partners of the receipt by the Partnership of
written consents sufficient to approve such merger, exchange or conversion. All such Limited
Partners who are not included within the definition of Dissenting Limited Partner in respect of any
merger, exchange or conversion shall participate in the merger, exchange or conversion according to
the approved plan of merger, plan of exchange or plan of conversion.




          (b) Any Dissenting Limited Partner who has opted for payment for his Limited Partnership
interests shall not thereafter be entitled to vote or exercise any other rights of a Limited
Partner except the right to receive payment for his Limited Partnership interests and the right to
maintain an appropriate action to obtain relief on the ground that the transaction would be or was
fraudulent. Limited Partnership Interests of Dissenting Limited Partners for which payment has
been made shall not thereafter be considered outstanding for the purposes of any subsequent vote of
the Limited Partners.




          (c) Within twenty (20) days after a Dissenting Limited Partner votes against any plan of
merger, plan of exchange or plan of conversion which is approved by a vote of the Limited Partners,
or in connection with a Limited Partner’s objection to any plan of merger, plan of exchange or plan
of conversion approved by the written consent of the Limited Partners, the Dissenting Limited
Partner may demand by written notice to the General Partner that payment for his Limited
Partnership Interest be made. Upon receipt of such a payment demand, the General Partner shall (i)
make a notation on the records of the Partnership that such demand has been made and (ii) within a
reasonable period of time after the later of the receipt of a payment demand or the consummation of
the merger, exchange or conversion, cause the Partnership to pay to the Dissenting Limited Partner
the fair value of such Dissenting Limited Partner’s Partnership Interest without interest. The
fair value of a Dissenting Limited Partner’s Partnership Interest shall be an amount equal to the
Dissenting Limited Partner’s pro rata share (as would be determined under Section 5.6 if the
Partnership were liquidating) of the appraised value of the net assets of the Partnership based on
an appraisal of all assets of the Partnership from a Competent Independent Expert. The assets of
the Partnership shall be appraised on a consistent basis. The appraisal shall be based on an
evaluation of all relevant information and shall include the current value of the Partnership’s
assets as of the date immediately prior to the proposed merger, exchange or conversion. The
appraisal shall assume an orderly liquidation of the Partnership’s assets over a twelve (12) month
period, shall consider other balance sheet items, and shall be net of the assumed cost of sale.
The terms of the engagement of the appraiser shall clearly state that the engagement is for the
benefit of the Partnership and its Limited Partners. A summary of the independent appraisal,
including all material assumptions underlying the appraisal, shall be provided to Dissenting
Limited Partners in connection with the payment of the fair value of their Limited Partnership
Interests.




          (d) If a Dissenting Limited Partner shall fail to make a payment demand within the period
provided in Section 12.3(c) or, in respect of a plan of merger, plan of exchange or plan of
conversion approved by written consent of the Limited Partners, shall fail to provide notice of
dissent within the period set forth in Section 12.3(a), such Dissenting Limited Partner and all
persons claiming under him shall be conclusively presumed to have approved and ratified the merger,
conversion or exchange and shall be bound thereby, the right of such Dissenting Limited Partner to
be paid the fair value of his Limited Partnership



41









 






Interest shall cease, and his status as a Limited Partner shall be restored without prejudice
to any proceedings which may have been taken during the interim, and such Dissenting Limited
Partner shall be entitled to receive any distributions made to Limited Partners in the interim.




ARTICLE XIII

GENERAL PROVISIONS




     13.1 Notices. All communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or upon deposit in the
United States mail, registered, postage prepaid return receipt requested, to the Partners at the
addresses set forth in Exhibit A attached hereto; provided, however, that any Partner may
specify a different address by notifying the General Partner in writing of such different address.
Notices to the Partnership shall be delivered at or mailed to its specified office.



     13.2 Survival of Rights. Subject to the provisions limiting transfers, this Agreement
shall be binding upon and inure to the benefit of the Partners and the Partnership and their
respective legal representatives, successors, transferees and assigns.



     13.3 Additional Documents. Each Partner agrees to perform all further acts and execute,
swear to, acknowledge and deliver all further documents that may be reasonable, necessary,
appropriate or desirable to carry out the provisions of this Agreement or the Act.



     13.4 Severability. If any provision of this Agreement shall be declared illegal, invalid,
or unenforceable in any jurisdiction, then such provision shall be deemed to be severable from this
Agreement (to the extent permitted by law) and in any event such illegality, invalidity or
unenforceability shall not affect the remainder.



     13.5 Entire Agreement. This Agreement and exhibits attached hereto constitute the entire
Agreement of the Partners and supersede all prior written agreements and prior and contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof, except
as otherwise set forth herein.



     13.6 Pronouns and Plurals. When the context in which words are used in the Agreement
indicates that such is the intent, words in the singular number shall include the plural and the
masculine gender shall include the neuter or female gender as the context may require.



     13.7 Headings. The Article and Section headings in this Agreement are for convenience only
and shall not be used in construing the scope of this Agreement or any particular Article or
Section.



     13.8 Counterparts. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original copy and all of which together shall constitute one and the same
instrument binding on all parties hereto, notwithstanding that all parties shall not have signed
the same counterpart.



     13.9 Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware; provided, however, that any cause of action for violation of
federal or state securities law shall not be governed by this Section 13.9.



     13.10 Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
all claims, disputes and controversies between the parties hereto (including, without limitation,
any claims, disputes and controversies between the Partnership and any one or more of the Partners
and between or among any Partners) arising out of or in connection with this Agreement or the
Partnership created hereby, or



42









 







any act or failure to act by the General Partner or any other Partner hereunder, shall be
resolved by binding arbitration in Phoenix, Arizona by the American Arbitration Association (the
“AAA”), in accordance with this Section 13.10. Any arbitration called for by this Section 13.10
shall be conducted in accordance with the following procedures:



          (a) The Partnership or any Partner (the “Requesting Party”) may demand arbitration pursuant to
this Section 13.10 at any time by giving written notice of such demand (the “Demand Notice”) to all
other Partners and (if the Requesting Party is not the Partnership) to the Partnership which Demand
Notice shall describe in reasonable detail the nature of the claim, dispute or controversy.




          (b) Within 15 days after the giving of a Demand Notice or such additional time as required by
the AAA, the AAA shall select and designate in writing three reputable, disinterested individuals
willing to act as an arbitrator of the claim, dispute or controversy in question.




          (c) The presentations of the parties hereto in the arbitration proceeding shall be commenced
and completed within sixty (60) days after the selection of the arbitration panel pursuant to
subsection B above, and the arbitration panel shall render its decision (and specify in reasonable
detail its reasons therefor) in writing within thirty (30) days after the completion of such
presentations. Any decision concurred in by any two (2) of the arbitrators shall constitute the
decision of the arbitration panel, and unanimity shall not be required.




          (d) The arbitration panel shall include in its decision a direction that all of the attorneys’
fees and costs of any party or parties and the costs of such arbitration be paid by the losing
party or parties in the arbitration. On the application of a party before or after the initial
decision of the arbitration panel, and proof of its attorneys’ fees and costs, the arbitration
panel shall order the other party to make any payments directed pursuant to the preceding sentence.




     Any decision rendered by the arbitration panel in accordance herewith shall be final and
binding on the parties hereto, and judgment thereon may be entered by any state or federal court of
competent jurisdiction. Arbitration shall be the exclusive method available for resolution of
claims, disputes and controversies arising between and among the parties relating to this Agreement
and the conduct of the parties hereto in relation to Partnership matters, and the Partnership and
its Partners stipulate that the provisions of this Agreement shall be a complete defense to any
suit, action or proceeding in any court or before any administrative or arbitration tribunal with
respect to any such claim, controversy or dispute. The provisions of this Section 13.10 shall
survive the dissolution of the Partnership.



     Nothing contained herein shall be deemed to give the arbitrators any authority, power or right
to alter, change, amend, modify, add to, or subtract from any of the provisions of this Agreement.



     13.11 Vote of Affiliated Limited Partners. Notwithstanding any provision to the contrary
set forth in this Agreement, in each instance in which the consent, approval or vote of Limited
Partners is required hereunder, any Partnership Interest held as a Limited Partner by any Affiliate
of the Sponsor shall not be included for purposes of calculating whether the requisite approval of
Partners is obtained unless, as of the date of determination, there are no Limited Partners
entitled to vote or consent who are not Affiliates of the Sponsor.



     13.12
Acknowledgement as to Exculpation and Indemnification. THE PARTIES HERETO ACKNOWLEDGE
AND AGREE THAT THIS AGREEMENT CONTAINS EXCULPATION AND INDEMNIFICATION IN RESPECT OF THE ACTIONS OR
OMISSIONS OF THE GENERAL PARTNER AND DIRECTORS, OFFICERS AND AFFILIATES OF THE GENERAL PARTNER BY
THE



43









 







PARTNERSHIP EVEN IF SUCH ACTIONS OR OMISSIONS CONSTITUTE NEGLIGENCE OF SUCH PERSONS.



[SIGNATURES COMMENCE ON FOLLOWING PAGE]





44









 








     IN WITNESS WHEREOF, the parties hereto have hereunder affixed their signatures to this
Amended and Restated Agreement of Limited Partnership effective as of the date first above written.



	 	 	 	 	 
	GENERAL PARTNER:



COLE CREDIT PROPERTY TRUST III, INC.

 	 	 
	By:  	/s/  Christopher H. Cole	 	 
	 	Title:  President and Chief Executive Officer 	 	 
	 	 	 	 
	 
	ORIGINAL LIMITED PARTNER:


COLE REIT ADVISORS III, LLC

 	 	 
	By:  	/s/  Christopher H. Cole	 	 
	 	Title: 	 	 	 
	 	 	 	 



 









 






	 	 	 	 	 




     INDEX OF EXHIBITS



EXHIBIT A — Partners, Capital Contributions and Partnership Units




EXHIBIT B — Notice of Exercise of Exchange Right




EXHIBIT C — Call Notice




 









 





EXHIBIT A




PARTNERS, CAPITAL CONTRIBUTIONS AND PARTNERSHIP UNITS




As of
May 6, 2008




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Agreed Value	 	 
	 	 	Cash	 	of Property	 	Partnership
	Partners	 	Contribution	 	Contribution	 	Units
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	General Partner:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cole Credit
Property Trust III, Inc. 

2555 East Camelback Road, Suite 400

Phoenix, Arizona 85016
	 	$	900.00	 	 	 	N/A	 	 	9,000 Units
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Original Limited Partner:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cole REIT
Advisors III, LLC 

2555 East Camelback Road, Suite 400

Phoenix, Arizona 85016
	 	$	0.90	 	 	 	N/A	 	 	9 Units






 









 






EXHIBIT B




NOTICE OF EXERCISE OF EXCHANGE RIGHT




     In
accordance with the Agreement of Limited Partnership of Cole REIT III Operating Partnership, LP, as
amended (the “Agreement”), the undersigned hereby
irrevocably (i) presents for exchange
                   
Partnership Units in Cole REIT III Operating Partnership, LP in accordance with the terms of the 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 Shares Amount (as
defined in the Agreement) as determined by the General Partner deliverable upon exercise of the
Exchange Right be delivered to the address specified below, and if REIT Shares (as defined in the
Agreement) are to be delivered, such REIT Shares be registered or placed in the name(s) and at the
address(es) specified below.



	 	 	 	 	 	 	 
	Dated:

	 	 	 	 
	 	 
	 
	 	 	 	(Signature of Limited Partner) 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	(Printed Name of Limited Partner)	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Mailing Address and Phone No.:	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	(___) ___-________________________________	 	 






Signature Guaranteed by:                                                             




If REIT Shares are to be issued, issue to:




Name:                                         




Mailing Address and Phone No.:




          
                                                            

          
                                                            

          
                                                            

          
                                                            

          (___)                     -                             



Social security or other tax identification number:                                                             




 









 








EXHIBIT C




CALL NOTICE




     In
accordance with the Amended and Restated Agreement of Limited
Partnership of Cole REIT III Operating Partnership, LP, as
amended (the “Agreement”), the undersigned hereby irrevocably exercises its Call Right (as defined
in the Agreement) with regard to all of the Partnership Units owned by                                          in
Cole REIT III Operating Partnership, LP. The undersigned shall pay the [Cash Amount/REIT Shares Amount] to
                                         at the notice address of provided in the Agreement upon receipt of (i) the
duly executed Partnership Unit Certificate of                                          transferring all right, title and
interest in Partnership Units to the undersigned, (ii) if REIT Shares are to be delivered,
instructions as to the name, address and taxpayer identification number of the person to whom such
REIT Shares will be registered or placed, and (iii) the representation, warranty and certification
of that                                          (a) has marketable and unencumbered title to such Partnership Units,
free and clear of the rights of or interests of any other person or entity; (b) has the full right,
power and authority to transfer and surrender such Partnership Units as provided herein; and (c)
has obtained the consent or approval of all persons or entities, if any, having the right to
consent to or approve of such transfer and surrender.



	 	 	 	 	 
	 	COLE CREDIT PROPERTY TRUST III, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: