exv10w2






EXHIBIT 10.2




AGREEMENT OF LIMITED PARTNERSHIP



OF



GRUBB & ELLIS HEALTHCARE REIT II HOLDINGS, LP




     THIS AGREEMENT OF LIMITED PARTNERSHIP OF GRUBB & ELLIS HEALTHCARE REIT II HOLDINGS, LP (this
“Agreement”), dated as of January 9, 2009, is entered into by and among Grubb & Ellis
Healthcare REIT II, Inc., a Maryland corporation, as general partner (the “General
Partner”), and those Persons who have executed this Agreement or a counterpart hereof, or who
become parties hereto pursuant to the terms of this Agreement.



W I T N E S S E T H




     WHEREAS, the General Partner and the Initial Limited Partner formed Grubb & Ellis Healthcare
REIT II Holdings, LP (the “Partnership”) as a limited partnership pursuant to the Act by
filing a certificate of limited partnership with the Secretary of State of the State of Delaware on
January 9, 2009; and



     WHEREAS, this Agreement shall constitute the “partnership agreement” (within the meaning of
the Act) of the Partnership, and shall be binding upon all Persons now or at any time hereafter who
are Partners;



     NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this
Agreement, and of other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:



ARTICLE 1

DEFINED TERMS




     Capitalized terms used in this Agreement (including exhibits, schedules and amendments) shall
have the meanings set forth below or in the Section of this Agreement referred to below, except as
otherwise expressly indicated or limited by the context in which they appear in this Agreement. All
terms defined in this Agreement in the singular have the same meanings when used in the plural and
vice versa. Accounting terms used but not otherwise defined shall have the meanings given to them
under GAAP.



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



     1.2 “Additional Limited Partner” means a Person that has executed and delivered an additional
limited partner signature page in the form required by the General Partner and has been admitted to
the Partnership as a Limited Partner pursuant to Section 12.2.



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



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














 







to restore to the Partnership pursuant to the penultimate sentences of Treasury Regulations
Sections 1.704-2(g)(1) and 1.704-2(i)(5); and




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




     This definition of Adjusted Capital Account Deficit is intended to comply with the provisions
of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.



     1.4 “Advisor” means Grubb & Ellis Healthcare REIT II Advisor, LLC, the advisor to the
Partnership and the General Partner pursuant to the Advisory Agreement.



     1.5 “Advisory Agreement” means that certain Advisory Agreement by and among the Advisor, the
Partnership and the General Partner, as may be in effect from time to
time.



     1.6 “Advisor Participation in Sales Proceeds” has the meaning set forth in Section 5.1(c).



     1.7 “Affiliate” means with respect to any Person, (i) any Person directly or indirectly
owning, controlling or holding, with the power to vote, ten percent or more of the outstanding
voting securities of such other Person; (ii) any Person ten percent 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.



     1.8 “Agreement” means this Agreement of Limited Partnership of Grubb & Ellis Healthcare REIT
II Holdings, LP, as originally executed and as it may be amended, modified, supplemented or
restated from time to time, as the context requires.



     1.9 “Appraised Value” means the value of the Partnership Assets as determined by an appraisal
made by an Independent Appraiser.



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



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



     1.12 “Available Operating Cash” means the cash flows derived by the Partnership from the
operation of the Partnership’s business (other than any Net Sales Proceeds or Capital
Contributions) before any deduction for depreciation or amortization and after deduction of:



          (a) all operating costs and expenses including taxes;








-2-









 










          (b) all payments of principal, interest and other charges in respect of any Partnership
indebtedness;




          (c) all expenditures for capital improvements to the Partnership assets or property; and




          (d) all reserves, whether for working capital, debt repayment, new portfolio investments or
otherwise (including for the redemption of Partnership Units) that are established by the General
Partner in the exercise of its sole and absolute discretion.




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



     1.14 “Capital Account” has the meaning set forth in Section 4.8.



     1.15 “Capital Contribution” means, with respect to any Partner, any cash, cash equivalents or
the fair market value of Contributed Property that such Partner contributes or is deemed to
contribute to the Partnership pursuant to Article 4.



     1.16 “Carrying Value” means (a) with respect to a Contributed Property, the fair market value
of such Contributed Property at the time such property is contributed, as determined by the General
Partner and agreed to by the contributing partner, without reduction for any liabilities either
assumed by the Partnership upon such contribution or to which such property was subject when
contributed, reduced (but not below zero) by all Depreciation with respect to such property charged
to the Partners’ Capital Accounts, and (b) with respect to any other Partnership Asset, the
adjusted basis of such Partnership Asset for Federal income tax purposes, all as of the time of
determination; except that the Carrying Values of all assets may, at the discretion of the general
Partner, be adjusted to equal their respective fair market values (as determined by the General
Partner), in accordance with the rules set forth in Treasury Regulations Section
1.704-1(b)(2)(iv)(f), as provided for in Section 4.8.



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



     1.18 “Certificate” means the Certificate of Limited Partnership of the Partnership, filed on
January 9, 2009, as amended, restated, supplemented or otherwise modified from time to time as
herein provided in accordance with the Act.



     1.19 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any
subsequent Federal law of similar import, and, to the extent applicable, any Treasury Regulations
promulgated thereunder.



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



-3-









 





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



     1.22 “Consent of the Outside Limited Partners” means the Consent of the Outside Limited
Partners holding a number of Partnership Units greater than fifty percent (50%) of the aggregate
Partnership Units held by all Outside Limited Partners.



     1.23 “Contributed Property” means each property or other asset (but excluding cash and cash
equivalents), in such form as may be contributed by a Partner to the Partnership as permitted by
the Act.



     1.24 “Deferred Payment Election” has the meaning set forth in Section 5.1(e).



     1.25 “Deferred Termination Amount” has the meaning set forth in Section 5.1(e).



     1.26 “Depreciation” means, for each Fiscal Year, an amount equal to the depreciation,
amortization or other cost recovery deduction allowable with respect to an asset for such year or
other period for Federal income tax purposes; provided, that if the Carrying Value of an asset
differs from its adjusted basis for Federal income tax purposes at the beginning of any such year
or other period, Depreciation shall be determined in the manner described in Treasury Regulations
Section 1.704-1(b)(2)(iv)(g)(3) or 1.704-3(d)(2), whichever is applicable, and if such asset has a
zero adjusted tax basis, Depreciation shall be an amount determined under any reasonable method
selected by the General Partner.



     1.27 “Effective Date” means the date of first closing of the offering of Common Stock pursuant
to the Registration Statement.



     1.28 “8% Return” means, with respect to the General Partner, an amount calculated like simple
interest at the rate of eight percent (8%) per annum calculated on the varying daily balances of
Invested Capital of the General Partner during the period to which the 8% Return relates, and
determined on the basis of a 360-day year/30-day month, cumulative for the period for which such 8%
Return is being determined.



     1.29 “8% Return Account” means, with respect to the General Partner, as of any relevant date,
an amount equal to the excess of (i) the 8% Return that has accrued with respect to the Invested
Capital of the General Partner through such date, over (ii) the sum of (A) the cumulative
distributions of Available Operating Cash and Net Sales Proceeds made to the General Partner prior
to such relevant date pursuant to Section 5.1 hereof, and (B) the cumulative amounts paid to the
General Partner in redemption of its Partnership Units pursuant to Section 8.6(g) as of such date,
other than such distributions and payments that are applied to reduce the Unrecovered Contribution
Account of the General Partner. All amounts distributed and paid to the General Partner pursuant to
Sections 5.1 and 8.6(g) shall first be applied to reduce the Unrecovered Contribution Account of
the General Partner until the balance of such Unrecovered Contribution Account equals zero ($0),
and then shall be applied to reduce the 8% Return Account of the General Partner.



     1.30 “Entity” means any general partnership, limited liability company, proprietorship,
corporation, joint venture, joint-stock company, limited partnership, limited liability
partnership, business trust, firm, trust, estate, governmental entity, cooperative, association or
other foreign or domestic enterprise.



-4-









 





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



     1.32 “Fiscal Year” means the fiscal year of the Partnership and shall be the same as its
taxable year, which shall be the calendar year unless otherwise determined by the General Partner
in accordance with the Code.



     1.33 “GAAP” means accounting principles generally accepted in the United States of America, as
in effect from time to time.



     1.34 “General Partner” means Grubb & Ellis Healthcare REIT II, Inc., a Maryland corporation,
and any successor as general partner of the Partnership.



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



     1.36 “Incapacity” or “Incapacitated” means:



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




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




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




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




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




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




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



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



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



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



-5-









 




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



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



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



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



     1.37 “Included Assets” means the Partnership Assets owned by the Partnership as of the date of
the Termination Event plus any Partnership Assets acquired after the date of the Termination Event
for which the Advisor was entitled to receive an Acquisition Fee (as defined in the Advisory
Agreement) pursuant to Section 8(a) of the Advisory Agreement for services rendered; provided,
however, no assets shall be counted twice.



     1.38 “Indemnitee” means



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




               (i) the General Partner,



               (ii) a Limited Partner,



               (iii) the Advisor,



               (iv) a director, trustee, manager, member or officer of the Partnership, the General Partner
or the Advisor, or



               (v) a director, trustee, manager, member or officer of any other Entity, serving in such
capacity at the request of the Partnership, the General Partner or the Advisor, acting on behalf of
the Partnership or the General Partner, or



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




     1.39 “Independent Appraiser” means an appraiser of real estate with no material current or
prior business or personal relationship with the Advisor, the Partnership, the General Partner or
the directors of the General Partner, that, in the determination of the General Partner, is
qualified to appraise real estate by virtue of being engaged to a substantial extent in the
business of rendering opinions regarding the value of assets of the type held by the Partnership.





			





-6-









 









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.




     1.40 “Initial Limited Partner” means Grubb & Ellis Healthcare REIT II Advisor, LLC.



     1.41 “Invested Capital” means, with respect to the General Partner, as of any relevant date,
an amount equal to the excess of (i) the aggregate amount of cash contributed or deemed contributed
by the General Partner to the Partnership from the gross proceeds of the issuance by the General
Partner of REIT Stock or other equity Securities pursuant to Article 4 hereof, over (ii) the
cumulative amounts paid to the General Partner in redemption of its Partnership Units pursuant to
Section 8.6(g) as of such date.



     1.42 “Joint Venture” means those joint venture or partnership arrangements in which the
Partnership or any of its subsidiaries is a co-venturer or general partner established to acquire
or hold assets.



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



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



     1.45 “Limited Partner Interest” means a Partnership Interest of a Limited Partner in the
Partnership. A Limited Partner Interest may be expressed as a number of Partnership Units.



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



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



     1.48 “Listed Market Price” means, with respect to a share of REIT Stock for a specified
trading day, 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 on the national securities
exchange on which the REIT Stock is listed for trading.



     1.49 “Listing Amount” has the meaning set forth in Section 5.1(d).



     1.50 “Listing Event” means the listing of the REIT Stock on (i) the New York Stock Exchange,
the American Stock Exchange, or the Global National Market and the Global Select Market of the
Nasdaq Stock Market (or any successor to such entities) or (ii) a national securities exchange (or
tier or segment thereof) that has listing standards that the Securities and Exchange Commission has
determined by rule are substantially similar to the listing standards applicable to securities
described in Section 18(b)(1)(A) of the Securities Act.



-7-









 





     1.51 “Listing Date” means the date on which a Listing Event occurs.



     1.52 “Losses” has the meaning set forth in Section 6.2(f).



     1.53 “Market Value” means the market value of the REIT Stock as of the date of a Listing
Event, which shall be equal to the product of (a) the number of shares of REIT Stock issued and
outstanding at the time of the Listing Event, multiplied by (b) the average Listed Market Price of
a share of REIT Stock for the 30 trading days beginning on the 180th day after the Listing Date.



     1.54 “Merger” means the merger of the Partnership with another Entity where the stockholders
of the General Partner receive in exchange for their shares of REIT Stock shares of a company that
are traded on a national securities exchange.



     1.55 “Mortgage” means in connection with mortgage financing provided, invested in,
participated in or purchased by the Partnership, all of the notes, deeds of trust, security
interests or other evidences of indebtedness or obligations, which are secured or collateralized by
Real Property owned by the borrowers under such notes, deeds of trust, security interests or other
evidences of indebtedness or obligations.



     1.56 “NASAA Guidelines” means the North American Securities Administrators Association, Inc.
Statement of Policy Regarding Real Estate Investment Trusts.



     1.57 “Net Assets” means the total assets of the Partnership (other than intangibles) at cost,
before deducting depreciation, reserves for bad debts or other non-cash reserves, less total
liabilities, calculated quarterly by the Partnership on a basis consistently applied.



     1.58 “Net Sales Proceeds” means in the case of a transaction described in clause
(i)(A) of the definition of Sale, the proceeds of any such transaction less the amount of selling
expenses incurred by or on behalf of the Partnership, including all real estate commissions,
closing costs and legal fees and expenses. In the case of a transaction described in clause (i)(B)
of the definition of Sale, Net Sales Proceeds means the proceeds of any such transaction less the
amount of selling expenses incurred by or on behalf of the Partnership, including any legal fees
and expenses and other selling expenses incurred in connection with such transaction. In the case
of a transaction described in clause (i)(C) of the definition of Sale, Net Sales Proceeds means the
proceeds of any such transaction actually distributed to the Partnership from the Joint Venture
less the amount of any selling expenses, including legal fees and expenses incurred by or on behalf
of the Partnership (other than those paid by the Joint Venture). In the case of a transaction or
series of transactions described in clause (i)(D) of the definition of Sale, Net Sales Proceeds
means the proceeds of any such transaction (including the aggregate of all payments under a
Mortgage on or in satisfaction thereof other than regularly scheduled interest payments) less the
amount of selling expenses incurred by or on behalf of the Partnership, including all commissions,
closing costs and legal fees and expenses. In the case of a transaction described in clause (i)(E)
of the definition of Sale, Net Sales Proceeds means the proceeds of any such transaction less the
amount of selling expenses incurred by or on behalf of the Partnership, including any legal fees
and expenses and other selling expenses incurred in connection with such transaction. In the case
of a transaction described in clause (ii) of the definition of Sale, Net Sales Proceeds means the
proceeds of such transaction or series of transactions less all amounts generated thereby which are
reinvested in one or more Partnership Assets within 180 days thereafter and less the amount of any
real estate commissions, closing costs, and legal fees and expenses and other selling expenses
incurred by or allocated to the Partnership in connection with



-8-









 







such transaction or series of transactions. Net Sales Proceeds shall also include any amounts
that the General Partner determines, in its discretion, to be economically equivalent to the
proceeds of a Sale. Net Sales Proceeds shall not include (i) any reserves established by the
General Partner, in its sole discretion and; (ii) the receipt by the Partnership of Capital
Contributions.



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



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



     1.61 “Notice of Redemption Request” means a notice of redemption request substantially in the
form of Exhibit B attached hereto.



     1.62 “Other Liquidity Event” means a Liquidating Event, a liquidation, sale of all or
substantially all of the assets of the Partnership or a Merger.



     1.63 “Outside Limited Partners” means the Limited Partners, excluding the Initial Limited
Partner and any Limited Partner that is an Affiliate of the General Partner or the Initial Limited
Partner.



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



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



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



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



     1.68 “Partnership” means Grubb & Ellis Healthcare REIT II Holdings, LP, and any successor
thereto.



     1.69 “Partnership Asset” means the interest of the Partnership in any Entity or security
(whether in corporate securities, equity, debt or hybrid securities, partnership or joint venture
interests, other contractual rights or otherwise), or any other Real Estate Assets or other assets
owned, directly or indirectly, by the Partnership, as determined by the General Partner.



     1.70 “Partnership Interest” means the entire ownership interest of a Partner in the
Partnership at any particular time which represents a Capital Contribution by such Partner and
which includes the right of such Partner to any and all benefits to which such Partner may be
entitled as provided in this Agreement, together with the obligations of such Partner to comply
with all terms and provisions of this Agreement. A Partnership Interest may be expressed as a
number of Partnership Units.



-9-









 





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



     1.72 “Partnership Record Date” means the record date established by the General Partner for
the distribution by the Partnership of Available Operating Cash, Net Sales Proceeds or other
Partnership Assets pursuant to Section 5.1 hereof, which record date shall be the same as the
record date established by the General Partner for a distribution to its stockholders of some or
all of its portion of such distribution by the Partnership.



     1.73 “Partnership Unit” means a unit of Partnership Interest with the rights, powers and
duties set forth herein, designated as such on Exhibit A and expressed in the number set
forth on Exhibit A, as such exhibit may be amended from time to time.



     1.74 “Percentage Interest” means, as to each Partner, the percentage determined by dividing
the total number of Partnership Units owned by such Partner by the aggregate number of Partnership
Units then issued and outstanding, as set forth on Exhibit A, as such exhibit may be
amended from time to time.



     1.75 “Permitted Transferee” means, with respect to a Person, (a) any Affiliate of such Person,
(b) the spouse of such Person or any ancestor, descendent or sibling of such Person or of the
spouse of such Person, or (c) any trust for the benefit of such Person or any other person
described in clause (b) of this Section 1.75.



     1.76 “Person” means any individual or Entity, and the heirs, executors, administrators, legal
representatives, successors and assigns of such individual or Entity where the context so permits.



     1.77 “Profits” has the meaning set forth in Section 6.2(f).



     1.78 “Prohibited Transferee” means any Person who is:



          (a) a “designated national,” “specially designated national,” “specially designated
terrorist,” “specially designated global terrorist,” “foreign terrorist organization,” or “blocked
person” within the definitions set forth in the Foreign Assets Control Regulations of the United
States Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended;




          (b) acting on behalf of, or owned or controlled by, any government against whom the United
States maintains economic sanctions or embargoes under the Regulations of the United States
Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended, including, but not limited to,
the “Government of Sudan,” the “Government of Iran,” the “Government of Cuba or any Cuban
national”; or




          (c) subject to restrictions imposed by the following statutes or Regulations and Executive
Orders issued thereunder: the Trading with the Enemy Act, 50 U.S.C. app. Sections 1 et. seq., the
Iraq Sanctions Act, Pub. L. 101-513, Title V, Sections 586 to 586J, 104 Stat. 2047, the National
Emergencies Act, 50 U.S.C. Sections 1601 et. seq., the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. 104-132, 110 Stat. 1214-1319, the International Emergency Economic Powers Act,
50 U.S.C. Sections 1701 et seq., the United Nations



-10-









 






Participation Act, 22 U.S.C. Section 287c, the International Security and Development
Cooperation Act, 22 U.S.C. Section 2349aa-9, the Nuclear Proliferation Prevention Act of 1994, Pub.
L. 103-236, 108 Stat. 507, the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. Sections 1901
et. seq., the Iran and Libya Sanctions Act of 1996, Pub. L. 104-172, 110 Stat. 1541, the Cuban
Democracy Act, 22 U.S.C. Sections 6001 et seq., the Cuban Liberty and Democratic Solidarity Act, 22
U.S.C. Sections 6021-91, and the Foreign Operations, Export Financing and Related Programs
Appropriations Act, 1997, Pub. L. 104-208, 110 Stat. 3009-172, or any other law of similar import
as to any non-U.S. country, person or entity, as each such Act or law has been or may be amended,
adjusted, modified, or reviewed from time to time.



     1.79 “Property” or “Properties” means, as the context requires, any, or all, respectively, of
the Real Property acquired by the Partnership, directly or indirectly through joint venture
arrangements or other partnership or investment interests.



     1.80 “Real Estate Assets” means unimproved and improved real property, real estate-related
assets and any direct or indirect interest therein (including, without limitation, fee or leasehold
interests, options, leases, partnership and joint venture interests, equity and debt securities of
entities that own real estate, first or second mortgages on real property, mezzanine loans secured
by junior liens on real property, preferred equity interests secured by a property owner’s interest
in real property and other contractual rights in real estate).



     1.81 “Real Property” means land, rights in land (including leasehold interests), and any
buildings, structures, improvements, furnishings, fixtures and equipment located on or used in
connection with land and rights or interests in land.



     1.82 “Redeeming Partner” has the meaning set forth in Section 8.6.



     1.83 “Redemption Amount” means either the Cash Amount or the REIT Stock Amount, as determined
by the General Partner in its sole and absolute discretion.



     1.84 “Redemption Right” has the meaning set forth in Section 8.6.



     1.85 “Registration Statement” means the Registration Statement on Form S-11 filed by the
General Partner with the Securities and Exchange Commission on
March 19, 2009, and any
amendments thereto made at any time.



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



     1.87 “REIT Notice” has the meaning set forth in Section 8.6(g).



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



     1.89 “REIT Stock” means the Common Stock and all other shares of capital stock of the General
Partner.



     1.90 “REIT Stock Amount” means a number of shares of REIT Stock equal to the number of
Partnership Units offered for redemption by a Redeeming Partner; provided that in the event that
the General Partner issues to all holders of REIT Stock rights, options, warrants, or





-11-









 









convertible or exchangeable securities entitling stockholders of the General Partner to
acquire REIT Stock, or any other securities or property (collectively, the “rights”), then the REIT
Stock Amount shall also include such rights that a holder of that number of shares of REIT Stock
would be entitled to receive.




     1.91 “Sale” means (i) any transaction or series of transactions whereby: (A) the Partnership
directly or indirectly (except as described in other subsections of this definition) 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; (B)
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 of the interest of the Partnership in any Joint Venture in which it is a
co-venturer or partner; (C) 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; (D)
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
which gives rise to a significant amount of insurance proceeds or similar awards; or (E) 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 Partnership Asset not
previously described in this definition or any portion thereof, but (ii) not including any
transaction or series of transactions specified in clause (i) (A) through (E) above in which the
proceeds of such transaction or series of transactions are reinvested by the Partnership in one or
more Partnership Assets within 180 days thereafter, and not including the receipt by the
Partnership of Capital Contributions.



     1.92 “Securities” has the meaning set forth in Section 4.3(a).



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



     1.94 “Separate Asset Value” has the meaning set forth in Section 5.1(e).



     1.95 “Specified Redemption Date” means the tenth (10th) Business Day after receipt by the
General Partner of a Notice of Redemption Request (or, in the case of the General Partner
exercising the Redemption Right, after the date of the General Partner’s receipt of a REIT Notice).



     1.96 “Stock Incentive Plans” means, collectively, any and all plans adopted from time to time
by the General Partner pursuant to which REIT Stock is issued, or options to acquire REIT Stock are
granted, to employees or directors of the General Partner, employees of the Partnership or
employees of their respective Affiliates in consideration for services or future services.



     1.97 “Subsidiary” means, with respect to any Person, any Entity of which a majority of the
voting power or the voting equity securities, and/or the outstanding equity interests (whether or
not voting), is owned, directly or indirectly, by such Person.



-12-









 





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



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



     1.100 “Termination Amount” has the meaning set forth in Section 5.1(e).



     1.101 “Termination Event” means the expiration of the Advisory Agreement or any termination of
the Advisor as advisor to the Partnership and the General Partner under the terms of the Advisory
Agreement, other than any termination of the Advisory Agreement due to the occurrence of a Listing
Event.



     1.102 “Termination Note” has the meaning set forth in Section 5.1(e).



     1.103 “Transfer” means to give, sell, assign, pledge, hypothecate, devise, bequeath, or
otherwise dispose of, transfer, or permit to be transferred, during life or at death. The word
“Transfer,” when used as a noun, shall mean any Transfer transaction.



     1.104 “Treasury Regulations” means the Federal income tax regulations, including any temporary
or proposed regulations, promulgated under the Code, as such Treasury Regulations may be amended
from time to time (it being understood that all references herein to specific sections of the
Treasury Regulations shall be deemed also to refer to any corresponding provisions of succeeding
Treasury Regulations).



     1.105 “Unrecovered Contribution Account” means, with respect to the General Partner, as of any
relevant date, the excess of (i) the aggregate amount of cash contributed or deemed contributed by
the General Partner to the Partnership pursuant to the provisions of Article 4 as of such date,
over (ii) the sum of (A) the cumulative distributions of Available Operating Cash and Net Sales
Proceeds made to the General Partner prior to such relevant date pursuant to Section 5.1 hereof,
and (B) the cumulative amounts paid to the General Partner in redemption of its Partnership Units
pursuant to Section 8.6(g) as of such date. All amounts distributed and paid to the General Partner
pursuant to Sections 5.1 and 8.6(g) shall first be applied to reduce the Unrecovered Contribution
Account of the General Partner until the balance of such Unrecovered Contribution Account equals
zero ($0), and then shall be applied to reduce the 8% Return Account of the General Partner.



     1.106 “Valuation Date” means the date of receipt by the General Partner of a Notice of
Redemption Request (or, in the case of the General Partner exercising the Redemption Right, the
date of the General Partner’s receipt of a REIT Notice) or, if such date is not a Business Day, the
first Business Day thereafter.



     1.107 “Value” means, with respect to a share of REIT Stock, (a) if REIT Stock is traded on a
national securities exchange or otherwise traded over-the-counter, the average of the daily Market
Price (as defined below) for shares of REIT Stock for the ten (10) consecutive trading days
immediately preceding the Valuation Date, or (b) if REIT Stock is not traded in a manner described
in clause (a), the value of a share of REIT Stock as determined by the General Partner acting in
good faith on the basis of such quotations and other information as it considers,



-13-









 




in its reasonable judgment, appropriate. The “Market Price” for each such trading day shall be
(i) 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 (ii) if 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 (iii) 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 (10) days prior to the date in question) for which prices
have been so reported. In the event the REIT Stock Amount includes rights that a holder of REIT
Stock would be entitled to receive, then the Value of such rights shall be determined by the
General Partner acting in good faith on the basis of such quotations and other information as it
considers, in its reasonable judgment, appropriate.




ARTICLE 2

ORGANIZATIONAL MATTERS




     2.1 Formation. The Partnership is a limited partnership organized pursuant to the provisions
of the Act and upon the terms and conditions set forth in this Agreement. Except as expressly
provided herein to the contrary, the rights and obligations of the Partners and the administration
and termination of the Partnership shall be governed by the Act.



     2.2 Name. The name of the Partnership is Grubb & Ellis Healthcare REIT II Holdings, LP. The
Partnership’s business may be conducted under such name or under any other name or names deemed
advisable by the General Partner, including the name of the General Partner or any Affiliate
thereof. The words “Limited Partnership,” “LP,” “Ltd.” or similar words or letters shall be
included in the Partnership’s name where necessary for the purposes of complying with the laws of
any jurisdiction that so requires. The General Partner, acting in its sole and absolute discretion
without the Consent of any Limited Partner, may change the name of the Partnership. The General
Partner shall notify the Limited Partners of any such name change in the next regular communication
to the Limited Partners. Upon termination of the Partnership or the termination, resignation or
withdrawal of the Initial Limited Partner as the Advisor, all of the Partnership’s right, title and
interest in and to the use of the name “Grubb & Ellis Healthcare REIT II Holdings, LP” and any
variation thereof, shall become the property of the Initial Limited Partner, and if requested to do
so by the Initial Limited Partner, the Partnership shall change the name of the Partnership to
exclude the term “Grubb & Ellis.” Neither the Partnership nor any Limited Partner other than the
Initial Limited Partner shall have any right or interest in and to the use of any such name or
mark.



     2.3 Registered Office and Agent. The address of the registered office of the Partnership in
the State of Delaware shall be c/o The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Suite 400, Wilmington, New Castle County, DE 19801, or such other place as may be
designated from time to time by the General Partner. The name of the registered agent for service
of process on the Partnership in the State of Delaware at such address shall be The Corporation
Trust Company, or such other Person as may be designated from time to time by the General Partner.



-14-









 





     2.4 Principal Place of Business. The principal office of the Partnership shall be 1551 North
Tustin Avenue, Suite 200, Santa Ana, CA 92705, or such other place as the General Partner may from
time to time designate by notice to the Limited Partners. The Partnership may maintain offices at
such other place or places within or outside the State of Delaware as the General Partner deems
advisable.



     2.5 Term and Termination. The term of the Partnership shall commence on the date hereof and
shall continue until December 31, 2039, unless the Partnership is dissolved sooner pursuant to the
provisions of Article 13 or as otherwise provided by law.



     2.6 Power of Attorney.



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




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



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



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



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



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



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



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



-15-









 





                    (G) all other instruments that may be required by law to be filed on behalf of or relating to
the Partnership and that are not inconsistent with this Agreement; and



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




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




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




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




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




          (e) Any Person dealing with the Partnership may conclusively presume and rely upon the fact
that any instrument referred to in this Section 2.6, executed by the General Partner or the
Liquidator acting as attorney-in-fact, is authorized by and binding on the Partnership, without
further inquiry.




     2.7 Effectiveness of this Agreement. This Agreement shall govern the operations of the
Partnership and the rights and restrictions applicable to the Partners, to the extent permitted by
law. Pursuant to Section 17-101(12) of the Act, all Persons who become holders of Partnership
Interests shall be bound by the provisions of this Agreement. The execution by a Person of this
Agreement and acceptance thereof by the General Partner in accordance with the terms of this
Agreement or the receipt of Partnership Interests by a Person as a successor or assign of an
existing Partner and the consent of the General Partner to the admission of such Person as a
Substituted Limited Partner in accordance with the terms of this Agreement shall be deemed to
constitute a request that the records of the Partnership reflect such admission, and shall



-16-









 




be deemed to be a sufficient act to comply with the requirements of Section 17-101(12) of the
Act and to so cause that Person to become a Partner as of the date of acceptance of its Capital
Contribution by the Partnership and to bind that Person to the terms and conditions of this
Agreement (and to entitle that Person to the rights of a Partner hereunder).




ARTICLE 3

PURPOSE AND POWERS




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



          (a) to acquire, hold, own, develop, construct, improve, maintain, operate, sell, lease,
transfer, encumber, convey, exchange and otherwise dispose of or deal with Real Estate Assets;




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




          (c) acquire own, hold for investment and ultimately dispose of general and limited partner
interests, and stock, warrants, options or other equity and debt interests in Entities, and
exercise all rights and powers granted to the owner of any such interests;




          (d) make any type of investment and engage in any other lawful act or activity for which
limited partnerships may be formed under the Act, and by such statement all lawful acts and
activities shall be within the purposes of the Partnership;




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




          (f) to engage in such other ancillary activities as shall be necessary or desirable to
effectuate the foregoing purposes; provided, however, that such business shall be limited to and
conducted in such a manner as to permit the General Partner at all times to be classified as a
REIT, unless the General Partner determines not to qualify as a REIT or ceases to qualify as a REIT
for reasons other than the conduct of the business of the Partnership.




     3.2 Powers.



          (a) The Partnership is empowered to do any and all acts and things necessary, appropriate,
proper, advisable, incidental to or convenient for the furtherance and accomplishment of the
purposes and business described in Section 3.1 and for the protection and benefit of the
Partnership including, without limitation, full power and authority to enter into, perform, and
carry out contracts of any kind, to borrow money and to issue evidences of indebtedness, whether or
not secured by mortgage, trust deed, pledge or other Lien, and, directly or indirectly, to acquire,
hold, own, develop, construct, improve, maintain and operate Real Estate Assets, and to sell,
lease, transfer, encumber, convey, exchange and otherwise dispose of Real Estate Assets.




-17-









 








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




ARTICLE 4

CAPITAL CONTRIBUTIONS; PARTNERSHIP UNITS;

ADDITIONAL FUNDS




     4.1 Capital Contributions of the Partners.



          (a) Initial Capital Contributions. The General Partner and the Initial Limited Partner
have made or shall make the Capital Contributions as set forth on
Exhibit A to this Agreement in exchange for the number of Partnership Units set forth
opposite their names on Exhibit A. At such time as Additional Limited Partners are admitted
to the Partnership, each such Additional Limited Partner shall make Capital Contributions in the
amount set forth opposite such Limited Partner’s name on Exhibit A, as it shall be amended
at the time of such contribution.




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




          (c) Partnership Units. Each Partner shall own Partnership Units in the amounts set
forth for such Partner in Exhibit A and shall have a Percentage Interest in the Partnership
as set forth in Exhibit A, which Percentage Interest shall be adjusted in Exhibit A
from time to time by the General Partner to the extent necessary to reflect accurately redemptions,
additional Capital Contributions, the issuance of additional Partnership Units or similar events
having an effect on the number of Partnership Units held by, and the Percentage Interest of, any
Partner. Each Partnership Unit shall entitle the holder thereof to one vote on all matters on which
the Partners (or any portion of the Partners) are entitled to vote under this Agreement.




          (d) No Additional Capital Contributions. Except as provided in Sections 4.3(a) and
10.5, the Partners shall have no obligation to make any additional Capital Contributions or provide
any additional funding to the Partnership (whether in the form of loans or otherwise) and no
Partner shall have any obligation to restore any deficit that may exist in its Capital Account,
either upon a liquidation of the Partnership or otherwise.




     4.2 Issuance of Additional Partnership Interests.



          (a) The General Partner is authorized to cause the Partnership to issue additional Partnership
Interests (or options or warrants to acquire Partnership Interests) in the form of Partnership
Units or other Partnership Interests in one or more series or classes to any Persons at any time or
from time to time, on such terms and conditions as the General Partner shall establish in each case
in its sole and absolute discretion subject to Delaware law, including, without limitation, (i) the
allocations of items of Partnership income, gain, loss, deduction and credit to each class or
series of Partnership Interests, (ii) the right of each class or series of



-18-









 






Partnership Interests to share in Partnership distributions, and (iii) the rights of each
class or series of Partnership Interest upon dissolution and liquidation of the Partnership;
provided, that, no such Partnership Interests shall be issued to the General Partner unless either
(A) the Partnership Interests are issued pursuant to Section 4.3, or (B) the additional Partnership
Interests are issued to all Partners holding Partnership Interests in the same class in proportion
to their respective Percentage Interests in such class.




          (b) Subject to the limitations set forth in Sections 4.2(a) and 4.3(a), the General Partner
may take such steps as it, in its sole and absolute discretion, deems necessary or appropriate to
admit any Person as a Limited Partner of the Partnership in accordance with Section 12.2 or to
issue any Partnership Interests, including, without limitation, amending the Certificate,
Exhibit A or any other provision of this Agreement.




          (c) Without limiting the foregoing, the General Partner is expressly authorized to cause the
Partnership to issue Partnership Interests (or options to acquire Partnership Interests) for less
than fair market value, so long as the General Partner concludes in good faith that such issuance
is in the interest of the Partnership and the Partners (for example, and not by way of limitation,
the issuance of Partnership Units in connection with a Stock Incentive Plan providing for employee
purchases of REIT Stock and corresponding Partnership Units at a discount from fair market value or
employee options that have an exercise price that is less than the fair market value of the REIT
Stock and corresponding Partnership Units covered by the option, either at the time of issuance or
at the time of exercise).




     4.3 Issuance of Securities by the General Partner



          (a) General. The General Partner shall not issue any debt securities, preferred stock,
Common Stock, any other class of REIT Stock or rights, options, warrants or other securities
convertible into or exchangeable for preferred stock, Common Stock or any other class of REIT Stock
(collectively, “Securities”), other than (1) as payment of the REIT Stock Amount in
connection with a redemption of Partnership Units pursuant to Section 8.6, (2) upon the conversion,
exchange or exercise of other outstanding securities of the General Partner in accordance with the
terms of such securities, or (3) to all holders of REIT Stock on a pro rata basis, unless
the General Partner shall:




               (i) in the case of REIT Stock or other equity Securities other than Securities described in
clause (ii) below, (A) contribute to the Partnership the proceeds of or consideration (including
any property or other non-cash assets) received upon the issuance of such Securities, and (B)
receive from the Partnership in consideration for such contributions Partnership Interests with the
same terms and conditions, including dividend, dividend priority and liquidation preference, as are
applicable to such Securities (including, for purposes of clarification, Partnership Units in the
case of any issuance of Common Stock by the General Partner);



               (ii) in the case of options, warrants or other rights to purchase REIT Stock, or other equity
securities convertible into or exchangeable for REIT Stock, (A) contribute to the Partnership the
proceeds of or consideration (including any property or other non-cash assets) received upon the
issuance of such equity Securities, and (B) receive from the Partnership in consideration for such
contributions a number of options, warrants or other rights to purchase Partnership Interests equal
to the number of such Securities issued by the General Partner, with equivalent rights, preferences
and limitations to the terms of such equity Securities; and



-19-









 





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



          (b) Splits. The Partnership shall (i) make a distribution in Partnership Units, (ii)
subdivide its outstanding Partnership Units, or (iii) combine its outstanding Partnership Units
into a smaller number of Partnership Units, in the event the General Partner takes an analogous
action with respect to the Common Stock. The intent of the previous sentence is that one
Partnership Unit remains the economic equivalent of one share of Common Stock without dilution. If
the General Partner determines that it is necessary or desirable to make any filings under the Act
or otherwise in order to reference the existence of such action, the General Partner may cause such
filings to be made, which filings might take the form of amendments to the Certificate; provided,
however, that, unless specifically required by this Agreement or the Act after giving effect to the
terms of this Agreement, no approval or consent of any Partners shall be required in connection
with the making of any such filing.




          (c) Treatment of Proceeds. If the proceeds actually received by the General Partner in
connection with an issuance of Securities by the General Partner are less than the gross proceeds
of such offering, grant, award or issuance as a result of any underwriter’s discounts, commissions
or other fees or expenses paid or incurred in connection with such offering, grant, award or
issuance, then the General Partner shall be deemed to have made a Capital Contribution to the
Partnership in the amount of the gross proceeds of such offering, grant, award or issuance and the
Partnership shall be deemed simultaneously to have paid pursuant to Section 7.3(c) for the amount
of such expenses.




     4.4 Additional Funds.



          (a) The sums of money required to finance the business and affairs of the Partnership shall be
derived from the initial Capital Contributions made to the Partnership by the Partners as set forth
in Section 4.1 and from funds generated from the operation and business of the Partnership.




          (b) In the event additional financing is needed from sources other than as set forth in
Section 4.4(a) for any reason, the General Partner may, in its sole and absolute discretion, in
such amounts and at such times as it solely shall determine to be necessary or appropriate:




               (i) cause the Partnership to issue additional Partnership Interests and admit additional
Limited Partners to the Partnership in accordance with Section 4.2;



               (ii) make additional Capital Contributions to the Partnership (subject to the provisions of
Section 4.3(a));



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



               (iv) make a loan or loans to the Partnership (subject to Section 4.3(a)); or




-20-











 





               (v) cause the Partnership to sell any assets or properties directly or indirectly owned by the
Partnership.



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



     4.6 No Interest. No Partner shall be entitled to interest on any Capital Contribution or on
such Partner’s Capital Account.



     4.7 No Preemptive Rights. Subject to any preemptive rights that may be granted in connection
with the issuance of Partnership Interests under Section 4.3(a), no Person shall have any
preemptive or other similar right with respect to any:



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



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



     4.8 Capital Accounts. The Partnership shall establish and maintain throughout the life of the
Partnership for each Partner a separate “Capital Account” in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv). If (i) a new or existing Partner acquires an additional
Partnership Interest in exchange for more than a de minimis Capital Contribution, (ii) the
Partnership distributes to a Partner more than a de minimis amount of Partnership property as
consideration for a Partnership Interest, (iii) the Partnership is liquidated within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(g), or (iv) at such other times as the General
Partner may determine so long as such adjustment is made under generally accepted industry
accounting practices within the meaning of Treasury Regulations Section 1.704-1(b)(2)(iv)(f)(5),
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 1.704-1(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 Treasury 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.



ARTICLE 5

DISTRIBUTIONS




     5.1 Distributions.



          (a) General. Subject to the provisions of Sections 5.3, 5.4, 8.6(b), 11.6(d) and 13.2,
the General Partner shall cause the Partnership to distribute to the Partners as of the applicable
Partnership Record Date, at such times as the General Partner shall determine,



-21-









 







amounts of Available Operating Cash and Net Sales Proceeds in the manner set forth in this
Section 5.1.



          (b) Available Operating Cash. Available Operating Cash shall be distributed to the
Partners as determined by the General Partner in its sole and absolute discretion in accordance
with their respective Percentage Interests as of the applicable Partnership Record Date.



          (c) Net Sales Proceeds. Net Sales Proceeds shall be distributed to the Partners as
determined by the General Partner in its sole and absolute discretion in accordance with their
respective Percentage Interests as of the applicable Partnership Record Date until the Unrecovered
Contribution Account and 8% Return Account of the General Partner have been reduced to zero ($0).
Thereafter, 15% of any Net Sales Proceeds shall be distributed to the Advisor (in its capacity as
Partner) (such distributions, the “Advisor Participation in Sales Proceeds”), and 85% of
such Net Sales Proceeds shall be distributed to the Partners as determined by the General Partner
in its sole and absolute discretion in accordance with their respective Percentage Interests as of
the applicable Partnership Record Date.



          (d) Distribution to Advisor Upon Listing.



               (i) Upon a Listing Event, the Advisor shall no longer be entitled to any distributions of the
Advisor Participation in Sales Proceeds under Section 5.1(c). If the Advisor has not been
terminated under the Advisory Agreement as of the Listing Date, the Advisor (in its capacity as
Partner) shall receive a distribution (“Listing Amount”), which shall be paid within five
(5) Business Days of the determination of the Market Value, in an amount equal to 15% of the
amount, if any, by which (A) the Market Value plus the cumulative distributions made to the General
Partner from the inception of the Partnership through the Listing Date exceeds (B) the sum of (1)
the Invested Capital of the General Partner as of the Listing Date, and (2) the 8% Return that has
accrued with respect to the Invested Capital of the General Partner from the inception of the
Partnership through the Listing Date.



               (ii) The Listing Amount shall be paid, as determined by the General Partner’s board of
directors, including a majority of the independent directors, either in the form of cash or REIT
Stock with a Market Value equal to the Listing Amount. The Advisor agrees to execute such documents
as the General Partner may reasonably require in connection with the issuance of REIT Stock if the
Listing Amount is paid in the form of REIT Stock as provided herein.



          (e) Distribution to Advisor Upon Termination.



               (i) Upon a Termination Event, the Advisor shall no longer be entitled to any distributions of
the Advisor Participation in Sales Proceeds under Section 5.1(c). If a Listing Event has not
occurred as of the date of a Termination Event, then the Advisor (in its capacity as Partner) shall
receive a distribution (the “Termination Amount”), which shall be paid within five (5)
Business Days of the date of such Termination Event, in an amount equal to 15% of the amount, if
any, by which (A) the Appraised Value of all of the Partnership Assets as of the date of the
Termination Event, less any indebtedness secured by such assets, plus the cumulative distributions
made to the General Partner from the inception of the Partnership through the date of the
Termination Event, exceeds (B) the sum of (1) the Invested Capital of the General Partner as of
such date, and (2) the 8% Return that has accrued with respect to the Invested Capital of the
General Partner from the inception of the Partnership through the date of the Termination Event;



-22-









 




provided, however, that upon a Termination Event the Advisor, in its sole discretion, may
elect, within five (5) Business Days of the date of such Termination Event, to forego a
distribution of the Termination Amount upon such Termination Event and instead elect (“Deferred
Payment Election”) to receive a deferred termination amount (the “Deferred Termination
Amount”), which, notwithstanding any other provisions herein to the contrary, shall exclude any
new Partnership Assets acquired and/or owned by the General Partner (either directly or through
third parties) after such Termination Event, other than the Included Assets (the “Separate
Asset Value”). The Deferred Termination Amount, if any, shall be paid within five (5) Business
Days of the first to occur of (x) a Listing Event or (y) an Other Liquidity Event, in an amount
equal to:





          (A) if in connection with a Listing Event, 15% of the amount, if any, by which (I) the
Appraised Value as of the Listing Date of the Included Assets, less any indebtedness
secured by such assets as of the Listing Date, plus the cumulative distributions made to
the General Partner and to any Limited Partners (other than the Initial Limited Partner)
with respect to Partnership Units issued in connection with the acquisition of the Included
Assets from the inception of the Partnership through the Listing Date, exceeds (II) the sum
of (1) the Invested Capital of the General Partner as of the Listing Date (excluding
Invested Capital relating to the Separate Asset Value), (2) the capital value of any
Partnership Units issued in connection with the acquisition of the Included Assets to the
Limited Partners (other than the Initial Limited Partner) as valued by the General Partner
as of the date of such issuance, and (3) the 8% Return that has accrued with respect to
such Invested Capital of the General Partner and that has accrued to any Limited Partners
(other than the Initial Limited Partner) with respect to Partnership Units issued in
connection with the acquisition of the Included Assets for the period from the inception of
the Partnership through the Listing Date; or




          (B) if in connection with an Other Liquidity Event (except in connection with a
Merger, which is addressed in Paragraph (C) below), after the Unrecovered Contribution
Account and 8% Return Account of the General Partner and similar accounts of each Limited
Partner (other than the Initial Limited Partner), in each case as of the date of the Other
Liquidity Event, have been reduced to zero ($0), 15% of any Net Sales Proceeds received
from the Sale of Included Assets shall be distributed to the Advisor (in its capacity as
Partner), and 85% of such Net Sales Proceeds shall be distributed to the Partners as
determined by the General Partner in its sole and absolute discretion in accordance with
their respective Percentage Interests as of the applicable Partnership Record Date; or




          (C) if in connection with an Other Liquidity Event involving a Merger, 15% of the
amount, if any, by which (I) the Appraised Value as of the Merger of the Included Assets,
less any indebtedness secured by such assets as of the date of the Merger, plus the
cumulative distributions made to the General Partner and to any Limited Partners (other
than the Initial Limited Partner) with respect to Partnership Units issued in connection
with the acquisition of the Included Assets from the inception of the Partnership through
the date of the Merger, exceeds (II) the sum of (1) the Invested Capital of the General
Partner as of the date of the Merger (excluding Invested Capital relating to the Separate
Asset Value), (2) the capital value of any Partnership Units issued in connection with the
acquisition of the Included Assets to the Limited Partners (other than the Initial Limited
Partner) as valued by the General Partner as of the date of such issuance, and (3) the 8%
Return that has accrued with respect to such Invested Capital of the General Partner and
that has accrued to any Limited Partners (other than the Initial Limited Partner) with
respect to Partnership Units issued in connection with the



-23-









 







acquisition of the Included Assets for the period from the inception of the
Partnership through the date of the Merger;


Provided further that if the Advisor makes a Deferred Payment Election, the Advisor shall not be
entitled to receive any other amounts under Sections 5.1(c) or (d) following the date of such
election.



Notwithstanding any other provisions herein to the contrary, the Advisor acknowledges and agrees
that: (i) the Advisor has not received and the General Partner has not provided any assurance or
representation of any kind relating to the Deferred Termination Amount; (ii) the Advisor does not
have any expectation of any minimum level of the Deferred Termination Amount; (iii) the Advisor
shall not have any rights or interests of any kind with respect to the Separate Asset Value; (iv)
neither the General Partner nor any director, officer, shareholder, partner, member, employee,
trustee, representative or agent of the General Partner shall have any liability or responsibility
to the Advisor for any act or omission performed or failed to be performed by it, or for any
losses, claims, costs, damages, or liabilities arising from any such act or omission relating to
the acquisition, management, operation, or disposition of the Partnership Assets; (v) the General
Partner shall have full power, authority, discretion and control with respect to the Partnership
Assets; (vi) the Deferred Termination Amount, if any, is and shall be deemed to be a contingent
interest; (vii) nothing herein shall in any way limit or restrict the General Partner’s rights to
pursue a follow-on offering; and (viii) any rights of the Advisor to the Deferred Termination
Amount, if any, are personal to the Advisor and, notwithstanding any other provisions herein to the
contrary, may not be assigned by the Advisor except to an Affiliate or successor entity. Nothing
herein shall limit the Advisor’s (or its Affiliates’) rights to pursue and engage in other
offerings in the same or other asset class(es), subject to the Advisory Agreement. The foregoing
provisions are of material importance to the General Partner. The Advisor acknowledges and agrees
that the General Partner has agreed to payment of the Deferred Termination Amount (subject to the
provisions herein), if any, in reliance of the Advisor’s agreement to the foregoing provisions.




               (ii) Any Termination Amount or Deferred Termination Amount, if any and as applicable, shall be
paid, as determined by the General Partner’s board of directors, including a majority of the
independent directors, either in the form of cash or the issuance to the Advisor of an
interest-bearing promissory note (the “Termination Note”) in an amount equal to the
Termination Amount or the Deferred Termination Amount, as applicable; provided, however, in
connection with a Merger, the General Partner shall have the right, at its sole discretion, to pay
the Deferred Termination Amount, if any, in the form of REIT Stock prior to such Merger or in the
form of the stock of the surviving company traded on a national securities exchange, in connection
with such Merger. Interest on the Termination Note will accrue beginning on the date that the
Termination Amount or Deferred Termination Amount, as applicable, would otherwise be due and
payable, at a rate deemed fair and reasonable by the General Partner. In the event the Termination
Amount or the Deferred Termination Amount, as applicable, is paid in the form of the Termination
Note, the Partnership shall repay the Termination Note using Net Sales Proceeds prior to making any
distributions under Section 5.1(c) until the Termination Note is paid in full, including all
accrued but unpaid interest. If the Termination Note has not been paid in full within five (5)
years after the date of the issuance of the Termination Note, then the General Partner (as
determined by the General Partner’s board of directors, including a majority of the independent
directors) shall purchase the Termination Note from the Advisor in exchange for either cash or REIT
Stock with a Value equal to the aggregate amount outstanding under the Termination Note, including
principal and accrued but unpaid interest. The Advisor agrees to execute such



-24-









 







documents as the General Partner may reasonably require in connection with the issuance of
REIT Stock if the Termination Note is purchased with REIT Stock as provided herein.



     5.2 Qualification as a REIT. The General Partner shall take such action as it deems necessary
or advisable to cause the Partnership to distribute sufficient amounts under this Article 5 to
enable the General Partner to pay stockholder dividends that will enable the General Partner to (a)
satisfy the requirements for qualification as a REIT under the Code and the Treasury Regulations
(the “REIT Requirements”), and (b) avoid any Federal income or excise tax liability;
provided, however, the General Partner shall not be bound to comply with this covenant to the
extent such distributions would violate applicable Delaware law.



     5.3 Withholding. With respect to any withholding tax or other similar tax liability or
obligation to which the Partnership may be subject as a result of any act by or status of any
Partner or to which the Partnership becomes subject with respect to any Partnership Interest, the
Partnership shall have the right to withhold amounts of Available Operating Cash or Net Sales
Proceeds or other Partnership Assets distributable to such Partner or with respect to such
Partnership Interests, to the extent of the amount of such withholding tax or other similar tax
liability or obligation pursuant to the provisions contained in Section 10.5.



     5.4 Additional Partnership Interests. If the Partnership issues Partnership Interests in
accordance with Section 4.2 or 4.3, the distribution priorities set forth in Section 5.1 shall be
amended, as necessary, to reflect any distribution priority of such Partnership Interests and
corresponding amendments shall be made to the provisions of Article 6. 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, such Partner shall not be entitled to any distributions with
respect to such additional Partnership Interest until the first Partnership Record Date following
the date of such issuance.



ARTICLE 6

ALLOCATIONS




     6.1 Allocation of Profits and Net Losses.



          (a) General. Except as otherwise provided in this Article 6 and in Section 11.6(c),
and after making any special allocations under Section 6.2, Profits and Losses for each Fiscal Year
shall be allocated among the Partners in accordance with their respective Percentage Interests as
of the end of such Fiscal Year, subject to any rights of holders of Partnership Interests other
than Partnership Units.




          (b) Adjustment. If the amount of Losses for any Fiscal Year that otherwise would be
allocated to a Partner under Section 6.1(a) or this Section 6.1(b) would cause or increase an
Adjusted Capital Account Deficit of such Partner as of the last day of such Fiscal Year (after all
other allocations have been made pursuant to this Article 6), then such Partner shall be allocated
that amount of Losses which does not cause or increase such Adjusted Capital Account Deficit, and
the remainder of such Losses that would have been allocated to such Partner shall be allocated to
the other Partners in proportion to their Percentage Interests.




          (c) Special Allocation with Respect to Sales. Profits (and items thereof) and Losses
(and items thereof) for each Fiscal Year or other applicable period from Sales shall be allocated
among the Partners such that the ending Capital Account of each Partner, immediately after giving
effect to the allocations under this Article 6, is, as nearly as possible, equal to the



-25-









 







amount of the hypothetical distribution that such Partner would receive if the Partnership
were liquidated on the last day of such period and all assets of the Partnership, including cash,
were sold for cash equal to their Carrying Value, all liabilities of the Partnership were satisfied
with cash according to their terms (limited with respect to each nonrecourse liability to the
Carrying Value of the assets securing such liability), and Net Sales Proceeds (after satisfaction
of such liabilities) were distributed in full pursuant to Section 5.1(c). For purposes of the
preceding allocations only, a Partner holding more than one class or series of Partnership
Interests or units shall be deemed to be a separate Partner with respect to each such class, series
or units.



     6.2 Special Allocations. Notwithstanding any provisions of Section 6.1, the following special
allocations shall be made in the following order of priority:



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



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



          (c) Qualified Income Offset. In the event a Partner unexpectedly receives any
adjustment, allocation or distribution described in Treasury Regulation Sections 1.704
1(b)(2)(ii)(d)(4), (5) and (6) that causes or increases an Adjusted Capital Account Deficit, gross
items of income and gain shall be specially allocated to such Partner so as to eliminate such
Adjusted Capital Account Deficit as quickly as possible. This subparagraph is intended to
constitute a “qualified income offset” under Section 1.704-1(b)(2)(ii)(d) of the Treasury
Regulations and shall be interpreted consistently therewith.



          (d) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year shall be
allocated to the Partners in accordance with their respective Percentage Interests.



-26-









 





          (e) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any Fiscal Year
with respect to a Partner Nonrecourse Debt shall be specially allocated to the Partners that bear
the economic risk of loss for such Partner Nonrecourse Debt (as determined under Treasury
Regulations Sections 1.704-2(b)(4) and 1.704-2(i)(1).



          (f) Definition of “Profits” and “Losses”. “Profits” and “Losses” and
any item 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 Treasury Regulations
Section 1.704-1(b)(2)(iv), except that Profit and Loss shall not include items of income, gain and
expense that are specially allocated pursuant to Sections 6.1(b), 6.2(a), 6.2(b), 6.2(c), 6.2(d),
and 6.2(e). All allocations of Profit and Loss (and all items contained therein) for federal
income tax purposes shall be identical to all allocations of such items set forth in Section 6.1
and this Section 6.2, 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 to elect the method to be used
by the Partnership for allocating items of income, gain, and expense as required by Section 704(c)
of the Code including a method that may result in a Partner receiving a disproportionately larger
share of the Partnership tax depreciation deductions, and such election shall be binding on all
Partners.



          (g) Curative Allocations. The allocations set forth in Section 6.1(b) and Sections
6.2(a) through (e) hereof (the “Regulatory Allocations”) are intended to comply with
certain requirements of the Treasury Regulations. It is the intent of the Partners that, to the
extent possible all Regulatory Allocations that are made be offset either with other Regulatory
Allocations or with special allocations pursuant to this Section 6.2(g). Therefore, notwithstanding
any other provision of this Article 6 (other than the Regulatory Allocations), the General Partner
shall make such offsetting special allocations in whatever manner it determines appropriate so
that, after such offsetting allocations are made, each Partner’s Capital Account balance is, to the
extent possible, equal to the Capital Account balance such Partner would have had if the Regulatory
Allocations were not part of the Agreement and all Partnership items were allocated pursuant to
Sections 6.1(a) and 6.1(c). In exercising its discretion under this Section 6.2(g), the General
Partner shall take into account future Regulatory Allocations under Sections 6.2(a) and 6.2(b)
that, although not yet made, are likely to offset other Regulatory Allocations previously made
under Sections 6.2(d) and 6.2(e).



          (h) Changes in Interest. If during any Fiscal Year there is a change in any Partner’s
Percentage Interest, then for purposes of determining the Profits, Losses, or any other items
allocable to such Partner for such Fiscal Year, Profits, Losses, and any such other items shall be
determined on a daily, monthly, or other basis, as determined by the General Partner using any
permissible method under Code Section 706 and the Treasury Regulations thereunder.



     6.3 Revisions to Allocations to Reflect Issuance of Partnership Interests. If the Partnership
issues Partnership Interests to the General Partner or any additional Limited Partner pursuant to
Article 4, the General Partner shall make any such revisions to this Article 6 as it deems
necessary to reflect the terms of the issuance of such Partnership Interests, including making
preferential allocations to classes of Partnership Interests that are entitled thereto. Such
revisions shall not require the consent or approval of any other Partner.



-27-









 





ARTICLE 7

MANAGEMENT AND OPERATIONS OF BUSINESS




     7.1 Management.



          (a) Management By the General Partner. Except as otherwise expressly provided in this
Agreement, full, complete and exclusive discretion to manage and control the business and affairs
of the Partnership are and shall be vested in the General Partner, and no Limited Partner other
than the Advisor shall have any right to participate in or exercise control or management power
over the business and affairs of the Partnership. The General Partner may not be removed by the
Limited Partners.




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




               (i) (A) the making of any expenditures, the lending or borrowing of money (including, without
limitation, making prepayments on loans and borrowing money to permit the Partnership to make
distributions to its Partners in such amounts as will permit the General Partner (so long as the
General Partner qualifies as a REIT) to (1) avoid the payment of any Federal income or excise tax
(including any excise tax pursuant to Section 4981 of the Code) and (2) make distributions to its
stockholders in amounts sufficient to permit the General Partner to maintain REIT status), (B) the
assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (C) the
issuance of any evidence of indebtedness (including the securing of the same by deed, mortgage,
deed of trust or other lien or encumbrance on the Partnership’s assets), and (D) the incurring of
any obligations it deems necessary for the conduct of the activities of the Partnership, including
the payment of all expenses associated with the General Partner;



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



               (iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange
of any assets, including Real Estate Assets, of the Partnership (including the exercise or grant of
any conversion, option, privilege, or subscription right or other right available in connection
with any assets at any time held by the Partnership) or the merger or other combination of the
Partnership with or into another entity on such terms as the General Partner deems proper;



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



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



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



-28-









 





                    (C) the making of capital contributions to the Partnership’s Subsidiaries;



               (v) the development, expansion, construction, management, operation, leasing, repair,
alteration, demolition or improvement of any real property in which the Partnership or any
Subsidiary of the Partnership owns a direct or indirect interest;



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



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



               (viii) the holding, management, investment and reinvestment of cash and other assets of the
Partnership;



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



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



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



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



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



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



                    (C) the representation of the Partnership in all suits or legal proceedings, administrative
proceedings, arbitrations or other forms of dispute resolution, the



-29-









 







incurring of legal expenses, and the indemnification of any Person against liabilities and
contingencies to the extent permitted by law;



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



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



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



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



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



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



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



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



     (c) Advisor. The General Partner has engaged the Advisor to serve as the advisor to
the Partnership and the General Partner pursuant to the terms and conditions of the Advisory
Agreement. In consideration for the services to be provided to the Partnership and the General
Partner, the Advisor will receive the fees described in the Advisory Agreement. In addition, the
Advisor (in its capacity as a Partner) is entitled to receive distributions of the Advisor
Participation in Sales Proceeds under Section 5.1(c) hereof, and distributions upon a Listing Event
under Section 5.1(d) hereof or upon a Termination Event under Section 5.1(e) hereof.
Notwithstanding any other provisions in this Agreement to the contrary, upon a Termination



-30-









 




Event, the Advisor shall not have any rights, powers, authorities or interests of any kind
relating to the management, control, or operation of the Partnership or the Partnership Assets.




     (d) Insurance. At all times from and after the date hereof, the General Partner may
cause the Partnership to obtain and maintain:



          (i) casualty, liability and other insurance on the Real Estate Assets of the Partnership;




          (ii) liability insurance for the Indemnitees hereunder; and




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




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



     7.2 Certificate of Limited Partnership. The General Partner has previously filed the
Certificate with the Secretary of State of Delaware as required by the Act. The General Partner
shall use all reasonable efforts to cause to be filed such other certificates or documents as may
be reasonable and necessary or appropriate for the formation, continuation, qualification and
operation of a limited partnership (or a partnership in which the limited partners have limited
liability) in the State of Delaware and any other state, or the District of Columbia, in which the
Partnership may elect to do business or own property. To the extent that such action is determined
by the General Partner to be reasonable and necessary or appropriate, the General Partner shall
file amendments to and restatements of the Certificate and do all of the things to maintain the
Partnership as a limited partnership (or a partnership in which the limited partners have limited
liability) under the laws of the State of Delaware and each other state, or the District of
Columbia, in which the Partnership may elect to do business or own property. Subject to the terms
of Section 8.5(a)(iv) hereof, the General Partner shall not be required, before or after filing, to
deliver or mail a copy of the Certificate or any amendment thereto to any Limited Partner.



     7.3 Reimbursement of the General Partner.



          (a) No Compensation. Except as provided in this Section 7.3 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding distributions, payments, and
allocations to which it may be entitled), the General Partner shall not be compensated for its
services as general partner of the Partnership.




          (b) Responsibility for Partnership Expenses. The Partnership shall be responsible for
and shall pay all expenses relating to the Partnership’s organization and the ownership and
operation of the Partnership Assets. The General Partner shall be reimbursed on a monthly basis, or
such other basis as it may determine in its sole and absolute discretion, for all expenses that it
incurs on behalf of the Partnership relating to the ownership and operation of the Partnership
Assets, or for the benefit of the Partnership; provided, that the amount of any such reimbursement
shall be reduced by any interest earned by the General Partner with respect to bank accounts or
other instruments or accounts held by it on behalf of the Partnership. Such reimbursement shall be
in addition to any reimbursement made as a result of indemnification pursuant to Section 7.6
hereof.




-31-









 








          (c) Responsibility for General Partner Expenses. The General Partner shall also be
reimbursed for (i) all expenses related to the operations of the General Partner and to the
management and administration of any Subsidiaries of the General Partner or the Partnership or
Affiliates of the Partnership, such as auditing expenses and filing fees and any and all salaries,
compensation and expenses of officers and employees of the General Partner, and (ii) all expenses
the General Partner incurs relating to the organization and/or reorganization of the Partnership
and the General Partner, the public offering of REIT Stock by the General Partner, and any other
offering, grant, award or issuance of REIT Stock or additional Partnership Interests pursuant to
Section 4.2 or 4.3, including all expenses associated with compliance by the General Partner and
the Initial Limited Partner with laws, rules and regulations promulgated by any regulatory body.




          (d) Business of the General Partner. The Limited Partners acknowledge that the sole
business of the General Partner is the ownership of direct or indirect interests in, and the direct
or indirect operation of, the Partnership, and that all of the expenses of the General Partner are
incurred for the benefit of the Partnership.




          (e) Characterization of Reimbursements. All payments and reimbursements hereunder
shall be characterized for Federal income tax purposes as expenses of the Partnership incurred on
its behalf, and not as expenses of the General Partner.




     7.4 Acquisition of Limited Partner Interests by the General Partner. The General Partner and
any Affiliates of the General Partner may acquire Limited Partner Interests and shall be entitled
to exercise all rights of a Limited Partner relating to such Limited Partner Interests.



     7.5 Transactions with Affiliates.



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




          (b) Certain Transactions with the Advisor and its Affiliates. Notwithstanding anything
to the contrary in this Agreement, the General Partner shall not cause the Partnership, directly or
indirectly, to Transfer any property to, purchase any property from, loan any money to, borrow any
money from or enter into any other transaction with the Advisor or any of its Affiliates, or any
director of the General Partner, except in accordance with the procedures set forth in the Articles
of Incorporation for transactions between the General Partner and the Advisor or its Affiliates.




          (c) Benefit Plans Sponsored by the Partnership. The General Partner, in its sole and
absolute discretion and without the approval of the Limited Partners, may propose and adopt, on
behalf of the Partnership, employee benefit plans, option or other equity incentive plans, and
similar plans funded by the Partnership for the benefit of employees of the Partnership, the
General Partner, any Subsidiaries of the Partnership or any Affiliate of any of them in respect of
services performed, directly or indirectly, for the benefit of the Partnership, the General
Partner, any Subsidiaries of the Partnership or any of their respective Affiliates.




-32-









 








     7.6 Indemnification.



          (a) General. Subject to the limitations of Section 7.6(b), to the maximum extent
permitted under the Act in effect from time to time and subject to the limitations of Section II.G.
of the NASAA Guidelines, the Partnership shall indemnify each Indemnitee from and against any and
all losses, claims, damages, liabilities, joint or several, expenses (including, without
limitation, reasonable attorneys’ fees and other legal fees and expenses), judgments, fines,
settlements, and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative (collectively, “Claims”),
that relate to the operations of the Partnership, the General Partner or any of the Partnership’s
Subsidiaries in which such Indemnitee may be involved, or is threatened to be involved, as a party
or otherwise; provided, however, that in no event shall this Section 7.6(a) enlarge the
indemnification permitted below under Section 7.6(b).




          (b) Limitation. Notwithstanding any provision hereof to the contrary:




               (i) the Partnership will not indemnify any Indemnitee unless:



                    (A) the Indemnitee has determined in good faith that the course of conduct which caused the
loss, liability or expenses was in the best interests of the Partnership;



                    (B) the Indemnitee was acting on behalf of the Partnership or performing services for the
Partnership;



                    (C) Such Claim was not the result of:



                         (1) with respect to the General Partner, the gross negligence, willful misconduct or fraud of
the General Partner;



                         (2) with respect to any Limited Partner, the gross negligence, willful misconduct or fraud of
the Limited Partner;



                         (3) with respect to (A) the directors, officers and employees of the General Partner, (B) the
Advisor and (C) the members, managers and employees of the Advisor, the negligence or misconduct of
such Person; or



                         (4) with respect to the Independent Directors (as defined in the Articles of Incorporation),
the gross negligence or willful misconduct of such Independent Director; and



                    (D) any indemnification or agreement to hold harmless may be paid only out of the Net Assets
of the Partnership, and neither the General Partner nor any Limited Partner shall have any
obligation to contribute to the capital of the Partnership, or otherwise provide funds, to enable
the Partnership to fund its obligations under this Section 7.6;



               (ii) notwithstanding anything to the contrary in Section 7.6(b)(ii), the Partnership will not
indemnify any Indemnitee for losses, liabilities or expenses arising from or out of an alleged
violation of federal or state securities laws unless:



-33-









 





                    (A) there has been a successful adjudication on the merits of each count involving alleged
securities law violations as to the particular Indemnitee;



                    (B) such claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular Indemnitee; or



                    (C) a court of competent jurisdiction approves a settlement of the claims against the
particular Indemnitee and finds that indemnification of the settlement and related costs should be
made, and the court considering the matter has been advised of the position of the Securities
Exchange Commission and the published position of any state securities regulatory authority in
which the securities were offered or sold as to indemnification for violations of securities laws.



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




          (d) Advancement of Expenses. Reasonable expenses incurred by an Indemnitee who is a
party to a proceeding shall be paid or reimbursed by the Partnership in advance of the final
disposition of any and all Claims made or threatened against an Indemnitee only if all of the
following conditions are satisfied: (i) the Claim relates to acts or omissions with respect to the
performance of duties or services on behalf of the Partnership, (ii) either (A) the Claim was
initiated by a third party who is not a stockholder of the General Partner or (B) if the Proceeding
was initiated by a Stockholder, the initiating Stockholder was acting in his or her capacity as
such and the advancement was approved by a court of competent jurisdiction, and (iii) the
Indemnitee provides the Partnership with a written undertaking 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.




          (e) No Exclusivity. The indemnification provided by this Section 7.6 shall be in
addition to any other rights to which an Indemnitee or any other Person may be entitled under any
agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall
continue as to an Indemnitee who has ceased to serve in such capacity unless otherwise provided in
a written agreement pursuant to which such Indemnitees are indemnified.




          (f) Insurance. The Partnership may purchase and maintain insurance, on behalf of 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.




          (g) Benefit Plan Fiduciary. For purposes of this Section 7.6, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit



-34-









 






plan whenever the performance by such Indemnitee of its duties to the Partnership also imposes
duties on, or otherwise involves services by, such Indemnitee to the plan or participants or
beneficiaries of the plan. Excise taxes assessed on an Indemnitee with respect to an employee
benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section
7.6 and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the
performance of its duties for a purpose reasonably believed by such Indemnitee 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.




          (h) No Personal Liability for Partners. In no event may an Indemnitee subject any of
the Partners to personal liability by reason of the indemnification provisions set forth in this
Agreement.




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




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




          (k) Amendment of this Section 7.6. Any amendment, modification or repeal of this
Section 7.6 or any provision hereof shall be prospective only and shall not in any way affect the
Partnership’s liability to any Indemnitee under this Section 7.6, as in effect immediately prior to
such amendment, modification, or repeal with respect to Claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when
such Claims may arise or be asserted.




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




          (m) Exception to Indemnification. Notwithstanding anything to the contrary in this
Agreement, the General Partner shall not be entitled to indemnification hereunder for any Claim for
which the General Partner is obligated to indemnify the Partnership under any other agreement
between the General Partner and the Partnership.




     7.7 Liability of the General Partner.



          (a) General. To the maximum extent permitted under the Act and subject to the
limitations of Section II.G. of the NASAA Guidelines in effect from time to time, neither the
General Partner nor any director, officer, shareholder, partner, member or employee, trustee,
representative or agent of the General Partner (including the Advisor and its Affiliates) shall be
liable to the Partnership or to any Partner for (i) any act or omission performed or failed to be
performed by it, or for any losses, claims, costs, damages, or liabilities arising from any such
act or omission, except to the extent such loss, claim, cost damage or liability results from such



-35-









 






Person’s gross negligence, willful misconduct or fraud, (ii) any tax liability imposed on the
Partnership or (iii) any losses due to the misconduct, negligence (gross or ordinary), dishonesty
or bad faith of any agents of the Partnership. Notwithstanding anything to the contrary in this
Section 7.7(a), this limitation on liability applies only to the extent that the particular officer
or director has satisfied the requirements of Sections 7.6(b)(i) and (ii).




          (b) No Obligation to Consider Separate Interests of Limited Partners. The Limited
Partners expressly acknowledge that (i) the General Partner (and the Advisor, in advising the
General Partner) is acting on behalf of the Partnership and the stockholders of the General
Partner, collectively, (ii) the General Partner (and the Advisor, in advising the General Partner)
is under no obligation to consider the separate interest of the Limited Partners (including,
without limitation, the tax consequences to Limited Partners or Assignees) in deciding whether to
cause the Partnership to take (or decline to take) any actions, and (iii) neither the General
Partner nor the Advisor shall be liable for monetary damages for losses sustained, liabilities
incurred, or benefits not derived by Limited Partners in connection with such decisions, unless the
General Partner or the Advisor, as the case may be, acted in bad faith and the act or omission was
material to the matter giving rise to the loss, liability or benefit not derived.




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




          (d) Amendment of this Section 7.7. Any amendment, modification or repeal of this
Section 7.7 or any provision hereof shall be prospective only and shall not in any way affect the
limitations on the General Partner’s and its officers’ and directors’ liability to the Partnership
and the Limited Partners under this Section 7.7 as in effect immediately prior to such amendment,
modification or repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless of when such claims
may arise or be asserted.




     7.8 Other Matters Concerning the General Partner.



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




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




-36-









 








          (c) Action Through Agents. The General Partner shall have the right, in respect of any
of its powers or obligations hereunder, to act through any of its duly authorized officers, agents,
including the Advisor, and duly appointed attorneys-in-fact. Each such officer, agent or
attorney-in-fact shall, to the extent granted by the General Partner in writing, have full power
and authority to do and perform each and every act and duty which is permitted or required to be
done by the General Partner hereunder.




          (d) Actions to Maintain REIT Status. 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) avoid the
General Partner incurring any taxes under Sections 857 or 4981 of the Code, is expressly authorized
under this Agreement and is deemed approved by all of the Limited Partners.




          (e) Separate Assets. Notwithstanding any other provisions in this Agreement to the
contrary, the General Partner shall have the ability to form a new partnership for which it serves
as General Partner for the purpose of acquiring real estate and other assets after the date of the
Termination Event, other than the Included Assets.




     7.9 Title to Partnership Assets. Title to all Partnership Assets, whether real, personal or
mixed and whether tangible or intangible, shall be deemed to be held by the Partnership as an
entity, and no Partner, individually or collectively, shall have any ownership interest in the
Partnership Assets or any portion thereof. 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 Asset for which legal title is held in the name of the
General Partner or any nominee or Affiliate of the General Partner shall be held by the General
Partner for the use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, that the General Partner shall use reasonable efforts to cause beneficial and
record title to such assets to be vested in the Partnership as soon as reasonably practicable. All
Partnership Assets shall be recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership Assets is held.



     7.10 Reliance by Third Parties.



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




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




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



-37-









 






with or to inquire into the necessity or expediency of any act or action of the General
Partner or its representatives.




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




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



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



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



ARTICLE 8

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS




     8.1 Limitation of Liability. The Limited Partners shall have no liability under this
Agreement, except as expressly provided in this Agreement, including Section 10.5 hereof, or under
the Act.



     8.2 No Right to Participate in the Management of Business. No Limited Partner shall take part
in the management or control of the Partnership’s investment or other activities, transact any
business in the Partnership’s name or have the power to sign documents for or otherwise bind the
Partnership. Except as expressly provided herein, no Limited Partner shall have the right to vote
for the election, removal or replacement of the General Partner. The exercise by any Limited
Partner of any right conferred herein shall not be construed to constitute participation by such
Limited Partner in the control of the business of the Partnership so as to make such Limited
Partner liable as a general partner for the debts and obligations of the Partnership for purposes
of the Act, laws of non-U.S. jurisdictions or otherwise.



     8.3 Outside Activities of Limited Partners. Subject to any agreements entered into by a
Limited Partner or its Affiliates, or any Assignee, with the Partnership or any of its
Subsidiaries, any Limited Partner or Assignee and any officer, director, employee, agent, trustee,
Affiliate or shareholder or other equity owner of any Limited Partner or Assignee shall be entitled
to and may have business interests and engage in business activities in addition to those relating
to the Partnership, including business interests and activities that are in direct competition with
the Partnership or that are enhanced by the activities of the Partnership. Neither the Partnership
nor any of the other Partners shall have any rights by virtue of this Agreement in any business
ventures of any Limited Partner or Assignee. None of the Limited Partners nor any other Person
shall have any rights by virtue of this Agreement or the Partnership relationship established
hereby in any business ventures of any other Person and such Person shall have no obligation
pursuant to this Agreement to offer any interest in any such business ventures to the Partnership,
any Limited Partner or any such other Person, even if such opportunity is of a character which, if
presented to the Partnership, any Limited Partner or such other Person, could be taken by such
Person.



-38-









 





     8.4 Return of Capital. No Limited Partner shall be entitled to the withdrawal or return of
its Capital Contribution, except (a) to the extent of such Limited Partner’s right of redemption
set forth in Section 8.6, and (b) to the extent that the General Partner (or the Liquidator)
determines to make distributions made pursuant to this Agreement or upon termination of the
Partnership as provided herein. Except as otherwise expressly provided in this Agreement, no
Limited Partner or Assignee shall have priority over any other Limited Partner or Assignee, either
as to the return of Capital Contributions or as to distributions or allocations of Profits or
Losses.



     8.5 Rights of Limited Partners Relating to the Partnership.



          (a) General. In addition to the other rights provided by this Agreement and any rights
granted to limited partners of a limited partnership under the Act that such limited partners are
not permitted to waive under the Act, and except as limited by Section 8.5(b) hereof, each Limited
Partner shall have the right, for a purpose reasonably related to such Limited Partner’s interest
as a limited partner in the Partnership, upon written demand with a statement of the purpose of
such demand and at such Limited Partner’s own expense (including such reasonable copying and
administrative charges as the General Partner may establish from time to time):




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



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



               (iii) to obtain a current list of the name and last known business, residence or mailing
address of each Partner; and



               (iv) to obtain a copy of this Agreement and the Certificate and all amendments thereto,
together with executed copies of all powers of attorney pursuant to which this Agreement, the
Certificate and all amendments thereto have been executed.


Each Limited Partner hereby waives any and all rights that such Limited Partner may have under the
Act that the Act permits limited partners to waive, except any such right that is granted expressly
to such Limited Partner under this Agreement.




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




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



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



-39-









 





     8.6 Redemption Right.



          (a) Redemption Right. Subject to the provisions of this Section 8.6, at any time on or
after the first anniversary date of the issuance of a Partnership Unit to a Partner, such Partner
shall have the right (the “Redemption Right”) to require the Partnership to redeem on a
Specified Redemption Date all or a portion of the Partnership Units held by such Partner, at a
redemption price equal to and in the form of the Redemption Amount. The Redemption Right shall be
exercised pursuant to a Notice of Redemption Request delivered to the General Partner by the
Partner who is exercising the Redemption Right (the “Redeeming Partner”).




          (b) Distributions and Allocations.




               (i) Subject to Section 8.6(c), the Redeeming Partner shall have no right to receive any
distributions that are paid after the Specified Redemption Date with respect to any Partnership
Units redeemed pursuant to this Section 8.6.



               (ii) If any Partnership Interest is redeemed (other than pursuant to Section 8.6(c)) on any
day other than the first day of a Fiscal Year, then Profit, Losses, each item thereof and all other
items attributable to such Partnership Interest for such Fiscal Year shall be divided and allocated
to the Redeeming Partner by taking into account the Redeeming Partner’s ownership of such
Partnership Interest during the Fiscal Year in accordance with Section 706(d) of the Code, using
the interim closing of the books method (unless the General Partner, in its sole and absolute
discretion, elects to adopt a daily, weekly or monthly proration period, in which event Profits,
Losses, each item thereof and all other items attributable to such redeemed Partnership Interest
for such Fiscal Year shall be prorated based upon the applicable method selected by the General
Partner).



          (c) General Partner Assumption of Obligation. Notwithstanding the provisions of
Section 8.6(a), the General Partner may, in its sole and absolute discretion (subject to the
limitations on ownership and transfer of shares of REIT Stock in the Articles of Incorporation),
assume directly the obligation to satisfy a Redemption Right and satisfy such Redemption Right by
paying to the Redeeming Partner the Redemption Amount on the Specified Redemption Date, whereupon
the General Partner shall acquire the Partnership Units offered for redemption by the Redeeming
Partner and shall be treated for all purposes of this Agreement as the owner of such Partnership
Units. In the event that the General Partner shall exercise this right to satisfy the Redemption
Right in the manner described in the preceding sentence and shall fully perform its obligation to
pay the Redemption Amount on the Specified Redemption Date, the Partnership shall have no
obligation to pay any amount to the Redeeming Partner with respect to such Redeeming Partner’s
exercise of the Redemption Right, and each of the Redeeming Partner, the Partnership and the
General Partner shall treat the transaction between the General Partner and the Redeeming Partner
as a sale of the Redeeming Partner’s Partnership Units to the General Partner for Federal income
tax purposes. Distributions and allocations with respect to Partnership Units acquired by the
General Partner pursuant to this Section 8.6(c) shall be made in accordance with Sections 11.6(c)
and 11.6(d).




          (d) Fractional Shares. If the General Partner elects, either on its own behalf or on
behalf of the Partnership, to satisfy the Redemption Right by paying the REIT Stock Amount, and the
REIT Stock Amount is not equal to a whole number of shares of REIT Stock, the Redeeming Partner
shall be paid (i) that number of shares of REIT Stock which equals the nearest whole number less
than the REIT Stock Amount, plus (ii) (A) an amount of cash equal to the Value of one share of REIT
Stock on the applicable Valuation Date, multiplied by (B) the





-40-












 




REIT Stock Amount minus the whole number of shares of REIT Stock pursuant to clause (i)
of this Section 8.6(d).




          (e) Execution of Documents. Each Redeeming Partner agrees to execute such documents as
the General Partner may reasonably require in connection with (i) the exercise and satisfaction of
the Redemption Right, (ii) any assumption by the General Partner pursuant to Section 8.6(c), and
(iii) any issuance of REIT Stock in connection with the Partnership or the General Partner paying
the Redemption Amount to the Redeeming Partner.



          (f) Exceptions to Redemption Right. Notwithstanding the provisions of Section 8.6(a),
unless the General Partner elects for payment of the Redemption Amount by the Partnership to be the
Cash Amount, a Partner shall not be entitled to exercise the Redemption Right if the delivery of
REIT Stock to such Partner on the Specified Redemption Date would (i) be prohibited under the
Articles of Incorporation or the bylaws of the General Partner, (ii) adversely affect the ability
of the General Partner to continue to qualify as a REIT or would subject the General Partner to any
additional taxes under Sections 857 or 4981 of the Code, (iii) constitute or be likely to
constitute a violation of any applicable federal or state securities laws or regulations, or (iv)
be prohibited under Section 11.6(f) of this Agreement (in each case regardless of whether the
General Partner would in fact assume and satisfy the Redemption Right).



          (g) Exercise of the Redemption Right by the General Partner. The receipt of a notice
of redemption with respect to shares of REIT Stock held by stockholders of the General Partner (a
“REIT Notice”) shall be deemed to be a Notice of Redemption Request given by the General
Partner to the Partnership. The redemption by the REIT of REIT Stock pursuant to a REIT Notice
shall be deemed an exercise of the Redemption Right with respect to a number of Partnership Units
equal to the number of shares of REIT Stock identified in the REIT Notice. With respect to any
Redemption Right exercised by the General Partner pursuant to this Section 8.6(g), the General
Partner will elect for payment of the Redemption Amount by the Partnership to the General Partner
to be the Cash Amount.



          (h) Assignees. The Assignee of any Limited Partner may exercise the rights of such
Limited Partner pursuant to this Section 8.6 with respect to any Partnership Units Transferred by
such Limited Partner to such Assignee, and such Limited Partner shall be deemed to have assigned
such rights to such Assignee and shall be bound by the exercise of such rights by such Assignee. In
connection with any exercise of such rights by such Assignee on behalf of such Limited Partner, the
Redemption Amount shall be paid by the Partnership directly to such Assignee and not to such
Limited Partner.



          (i) No Liens on Partnership Units Delivered for Redemption. Each Partner covenants and
agrees that all Partnership Units delivered for redemption pursuant to this Section 8.6 shall be
delivered to the Partnership or the General Partner, as the case may be, free and clear of all
Liens. Notwithstanding anything contained herein to the contrary, neither the General Partner nor
the Partnership shall be under any obligation to acquire Partnership Units which are or may be
subject to any Liens. Each Partner further agrees that, if any state or local property transfer tax
is payable as a result of the Transfer of its Partnership Units to the Partnership or the General
Partner pursuant to this Section 8.6, such Partner shall assume and pay such transfer tax.



          (j) Cancellation of Units; Amendments to Exhibit A. Upon the redemption of Partnership
Units pursuant to this Section 8.6, (i) all such redeemed Partnership Units (other than Partnership
Units redeemed pursuant to Section 8.6(c)) shall be cancelled, and (ii) the General Partner shall
amend Exhibit A to reflect the new Percentage Interests of the Partners and



-41-









 







to (A) either adjust the number of Partnership Units and the Percentage Interest of the
Redeeming Partner or eliminate the Redeeming Partner from Exhibit A, as applicable, and (B)
in the event that the General Partner assumes the obligation to satisfy a Redemption Right pursuant
to Section 8.6(c), adjust the number of Partnership Units and the Percentage Interest of the
General Partner to reflect the Transfer of such Partnership Units to the General Partner.



          (k) Additional Partnership Interests. If the Partnership issues Partnership Interests
to any Additional Limited Partner pursuant to Article 4, the General Partner shall make such
revisions to this Section 8.6 as the General Partner determines are necessary to reflect the
issuance of such Partnership Interests (including setting forth any restrictions on the exercise of
the Redemption Right with respect to such Partnership Interests).



          (l) Redemptions by the Advisor. For so long as the Advisor remains the advisor to the
Partnership and General Partner under the Advisory Agreement, or in the event the Advisor makes a
Deferred Payment Election pursuant to Section 5.1(e), until payment of the Deferred Termination
Amount, if any and as applicable, neither the Advisor nor any Affiliate of the Advisor (other than
the General Partner) may redeem any portion of the Partnership Units held by such Person; provided
that, upon the occurrence of a Listing Event, immediately following the distribution to the Advisor
of all amounts required to be distributed to the Advisor pursuant to Section 5.1(d) or Section
5.1(e), as applicable, the Partnership shall redeem all of the Partnership Units held by the
Advisor and its Affiliates (other than the General Partner), at a redemption price equal to and in
the form of the Redemption Amount. In addition, upon the occurrence of a Termination Event,
immediately following the distribution to the Advisor of all amounts required to be distributed to
the Advisor pursuant to Section 5.1(e) (including, but not limited to the repayment of the
Termination Note in full, if applicable), the Partnership shall redeem all of the Partnership Units
held by the Advisor and its Affiliates (other than the General Partner), at a redemption price
equal to and in the form of the Redemption Amount. With respect to any automatic redemption of
Partnership Units held by the Advisor or its Affiliates (other than the General Partner) pursuant
to this Section 8.6(l), the General Partner will elect for payment of the Redemption Amount by the
Partnership to the Advisor and/or any such Affiliate to be the Cash Amount.



ARTICLE 9

BOOKS, RECORDS, ACCOUNTING AND REPORTS




     9.1 Records and Accounting.



          (a) Books and Records. The General Partner shall keep or cause to be kept at the
principal office of the Partnership those records and documents required to be maintained by the
Act and other books and records deemed by the General Partner to be appropriate with respect to the
Partnership’s business, including, without limitation, all books and records necessary for the
General Partner to comply with applicable REIT Requirements and to provide to the Limited Partners
any information, lists and copies of documents required to be provided pursuant to Sections 8.5(a)
and 9.2 hereof.



          (b) Accounting Method. The books of the Partnership shall be maintained, for financial
and tax reporting purposes, on an accrual basis in accordance with GAAP.




-42-









 





     9.2 Reports.



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



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



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



ARTICLE 10

TAX MATTERS




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



     10.2 Tax Elections. Except as otherwise provided herein, the General Partner shall, in its
sole and absolute discretion, determine whether to make any available election pursuant to the
Code; provided, however, that the General Partner shall make the election under Section 754 of the
Code in accordance with applicable regulations thereunder. The General Partner shall have the right
to seek to revoke any such election it makes, including, without limitation, the election under
Section 754 of the Code, upon the General Partner’s determination, in its sole and absolute
discretion, that such revocation is in the best interests of the Partners.



     10.3 Tax Matters Partner.



          (a) General. The General Partner shall be the “tax matters partner” of the Partnership
for federal income tax purposes. Pursuant to Section 6223(c)(3) of the Code, upon receipt of notice
from the Internal Revenue Service of the beginning of an administrative proceeding with respect to
the Partnership, the tax matters partner shall furnish the Internal Revenue Service with the name,
address, taxpayer identification number, and profit interest of each of the Limited Partners and
the Assignees; provided, that such information is provided to the Partnership by the Limited
Partners and the Assignees.



          (b) Powers. The tax matters partner is authorized, but not required:



-43-









 





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



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



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



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



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



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



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



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



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



          (c) Reimbursements. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner in performing its
duties as such (including legal and accounting fees and expenses) shall be borne by the
Partnership. Nothing herein shall be construed to restrict the Partnership from engaging an



-44-









 







accounting firm to assist the tax matters partner in discharging its duties hereunder, so long
as the compensation paid by the Partnership for such services is reasonable.



     10.4 Organizational Expenses. The Partnership shall elect to deduct expenses, if any,
incurred by it in organizing the Partnership ratably over a sixty (60) month period as provided in
Section 709 of the Code.



     10.5 Withholding.



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



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



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



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


Any amounts withheld from amounts otherwise distributable to a Limited Partner as described in
clause (i) or (ii) of this Section 10.5(b) shall be treated as having been distributed to such
Limited Partner.




          (c) Security Interest. Each Limited Partner hereby unconditionally and irrevocably
grants to the Partnership a security interest in such Limited Partner’s Partnership Interest to
secure such Limited Partner’s obligation to pay to the Partnership any amounts required to be paid
pursuant to this Section 10.5. Each Limited Partner shall take such actions as the Partnership or
the General Partner shall request in order to perfect or enforce the security interest created
hereunder.



          (d) Default. In the event that a Limited Partner fails to pay when due any amounts
owed to the Partnership pursuant to this Section 10.5, the General Partner may, in its sole and
absolute discretion, elect to make the payment to the Partnership on behalf of such defaulting
Limited Partner, and in such event shall be deemed to have loaned such amount to such defaulting
Limited Partner and shall succeed to all rights and remedies of the Partnership as against such
defaulting Limited Partner. Without limitation, in such event, the General Partner shall have the
right to receive distributions that would otherwise be distributable to such defaulting Limited
Partner until such time as such loan, together with all interest thereon, has been paid in full,
and any such distributions so received by the General Partner shall be treated as having been
distributed to the defaulting Limited Partner and immediately paid by the defaulting Limited
Partner to the General Partner in repayment of such loan.



-45-









 





          (e) Interest. Any amount payable by a Limited Partner under this Section 10.5 shall
bear interest at the lesser of (i) 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, plus four (4)
percentage points, and (ii) the maximum lawful rate of interest on such obligation, such interest
to accrue from the date such amount is due (i.e., fifteen (15) days after demand) until such amount
is paid in full.



ARTICLE 11

TRANSFERS AND WITHDRAWALS




     11.1 Transfer.



          (a) Definition. The term “Transfer,” when used in this Article 11 with respect to a
Partnership Interest or a Partnership Unit, shall be deemed to refer to a transaction by which the
General Partner purports to assign all or any part of its General Partner Interest to another
Person or a Limited Partner purports to assign all or any part of its Limited Partner Interest to
another Person, and includes a sale, assignment, gift, pledge, encumbrance, hypothecation,
mortgage, exchange or any other disposition by law or otherwise. The term “Transfer” when used in
this Article 11 does not include any redemption of Partnership Units or other Partnership Interests
for cash or REIT Stock pursuant to Section 8.6.



          (b) Restriction on Transfer. No Partnership Interest shall be Transferred, in whole or
in part, except in accordance with the terms and conditions set forth in this Article 11. Any
Transfer or purported Transfer of a Partnership Interest not made in accordance with this Article
11 shall be null and void.



     11.2 Transfer of the General Partner’s General Partner Interest.



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



               (i) with the Consent of the Outside Limited Partners; or



               (ii) if such Transfer is to an entity which is wholly-owned, directly or indirectly, by the
General Partner.



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



     11.3 Limited Partners’ Rights to Transfer.



          (a) General. Subject to the provisions of Section 11.3(b), no Limited Partner shall
have the right to Transfer all or a portion of such Limited Partner’s Partnership Interest, or any
of such Limited Partner’s rights as a Limited Partner, without the consent of the General Partner,
which may be given or withheld by the General Partner in its sole and absolute discretion.



          (b) Transfers to Permitted Transferees. Notwithstanding the provisions of Section
11.3(a), but subject to the provisions of Sections 11.3(c), 11.3(d), and 11.3(e) and other
applicable restrictions on Transfers contained in this Article 11, a Limited Partner may Transfer,



-46-









 







with or without the consent of the General Partner, all or a portion of his Partnership Units
to a Permitted Transferee; provided that such Permitted Transferee must qualify as
“accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act; and provided further that, no Transfer pursuant to this
Section 11.3(b) shall be effective until the General Partner receives notice of such Transfer.



          (c) No Transfers Violating Securities Laws. The General Partner may prohibit any
Transfer by a Limited Partner of its Partnership Units if, in the opinion of legal counsel to the
Partnership, such Transfer would require the filing of a registration statement under the
Securities Act, or would otherwise violate any federal or state securities laws or regulations
applicable to the Partnership or the Partnership Units.



          (d) No Transfers to Certain Lenders. 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 Treasury
Regulations Section 1.752-4(b)) to any lender to the Partnership whose loan constitutes a
nonrecourse liability (within the meaning of Treasury Regulations Section 1.752-1(a)(2)), without
the consent of the General Partner, which may be withheld in its sole and absolute discretion.



          (e) Additional Prohibited Transfers. No Transfer by a Limited Partner of its
Partnership Units may be made to any Person if:



               (i) in the opinion the General Partner based on the advice of legal counsel, if appropriate,
it would adversely affect the ability of the General Partner to continue to qualify as a REIT or
would subject the General Partner to any additional taxes under Sections 857 or 4981 of the Code;



               (ii) in the opinion of the General Partner based on the advice of legal counsel, if
appropriate, it would result in the Partnership being treated as an association taxable as a
corporation for federal income tax purposes;



               (iii) such Transfer would subject the Partnership to regulation under the Investment Company
Act of 1940, the Investment Advisers Act of 1940, as amended or ERISA;



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



               (v) such Transfer is to a Prohibited Transferee.



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



          (g) Transfers by the Advisor. For so long as the Advisor remains the advisor to the
Partnership and the General Partner under the Advisory Agreement, or in the event the



-47-









 







Advisor makes a Deferred Payment Election pursuant to Section 5.1(e), until payment of the
Deferred Termination Amount, if any and as applicable, neither the Advisor nor any Affiliate of the
Advisor (other than the General Partner) may transfer any portion of the Partnership Units held by
the Advisor to any Person, other than (i) Transfers to any Affiliate of the Advisor, and (ii)
deemed Transfers to the General Partner pursuant to Section 8.6(c).



     11.4 Substituted Limited Partners.



          (a) Consent of the General Partner. No Limited Partner shall have the right to
substitute a Permitted Transferee in such Limited Partner’s place. The General Partner shall,
however, have the right to consent to the admission of a Permitted Transferee of the Partnership
Interest of a Limited Partner pursuant to this Section 11.4 as a Substitute Limited Partner, which
consent may be given or withheld by the General Partner in its sole and absolute discretion. The
General Partner’s failure or refusal to permit such transferee to become a Substituted Limited
Partner shall not give rise to any cause of action against the Partnership or any Partner.



          (b) Rights of a Substituted Limited Partner. A transferee who has been admitted as a
Substituted Limited Partner in accordance with this Article 11 shall have all the rights and powers
and be subject to all the restrictions and liabilities of a Limited Partner under this Agreement.
The admission of any transferee as a Substituted Limited Partner shall be conditioned upon the
transferee executing and delivering to the Partnership an acceptance of all of the terms and
conditions of this Agreement, including, without limitation, the power of attorney granted in
Section 2.6, and such other documents or instruments as may be required in the reasonable
discretion of the General Partner in order to effect such Person’s admission as a Substituted
Limited Partner.



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



     11.5 Assignees. If the General Partner, in its sole and absolute discretion, does not consent
to the admission of any transferee as a Substituted Limited Partner, as described in Section
11.4(a), such transferee shall be considered an Assignee for purposes of this Agreement. An
Assignee shall be deemed to have had assigned to it, and shall be entitled to receive distributions
from the Partnership and the share of Profit, Losses and any other items of gain, loss, deduction
or credit of the Partnership attributable to the Partnership Units assigned to such transferee, but
shall not be deemed to be a holder of Partnership Units for any other purpose under this Agreement
except as otherwise provided in this Agreement, and shall not be entitled to vote such Partnership
Units in any matter presented to the Limited Partners for a vote (such Partnership Units being
deemed to have been voted on such matter in the same proportion as all other Partnership Units held
by Limited Partners are voted). In the event any such transferee desires to make a further
assignment of any such Partnership Units, such transferee shall be subject to all of the provisions
of this Article 11 to the same extent and in the same manner as any Limited Partner desiring to
make an assignment of Partnership Units.



     11.6 General Provisions.



          (a) Withdrawal of a Limited Partner. No Limited Partner may withdraw from the
Partnership other than as a result of a Transfer of all of such Limited Partner’s



-48-









 







Partnership Units pursuant to which the transferee is admitted as a Substituted Limited
Partner or a redemption of all of the Partnership Units held by such Limited Partner pursuant to
Section 8.6.



          (b) Termination of Status as a Limited Partner. Any Limited Partner that (i) Transfers
all of such Limited Partner’s Partnership Units (or other Partnership Interests) in a Transfer
pursuant to which the transferee is admitted as a Substituted Limited Partner, or (ii) redeems all
of such the Partnership Units held by such Limited Partner pursuant to Section 8.6 shall cease to
be a Limited Partner.



          (c) Allocations. If any Partnership Interest is Transferred during the Partnership’s
Fiscal Year in compliance with the provisions of this Article 11 (including Transfers to the
General Partner pursuant to Section 8.6(c)) on any day other than the first day of a Fiscal Year,
then Profit, Losses, each item thereof and all other items attributable to such Partnership
Interest for such Fiscal Year shall be divided and allocated between the transferor Partner and the
transferee Partner by taking into account their varying interests during the Fiscal Year in
accordance with Section 706(d) of the Code, using the interim closing of the books method (unless
the General Partner, in its sole and absolute discretion, elects to adopt a daily, weekly or
monthly proration period, in which event Profits, Losses, each item thereof and all other items
attributable to such transferred Partnership Interest for such Fiscal Year shall be prorated based
upon the applicable method selected by the General Partner).



          (d) Distributions. All distributions of Available Operating Cash, Net Sales Proceeds
or other Partnership Assets attributable to Partnership Units, with respect to which the
Partnership Record Date is before the date of a Transfer of such Partnership Units (including any
Transfer to the General Partner pursuant to Section 8.6(c)), shall be made to the transferor
Partner, and all distributions of Available Operating Cash, Net Sales Proceeds or other Partnership
Assets thereafter attributable to such Partnership Units shall be made to the transferee Partner.



          (e) Capital Accounts. The original Capital Account established for each transferee
shall be in the same amount as the Capital Account or portion thereof of the Partner to which such
transferee succeeds, at the time such transferee is admitted to the Partnership. The Capital
Account of any Partner whose Percentage Interest shall be increased by means of the Transfer to it
of all or part of the Partnership Interest of another Partner shall be appropriately adjusted to
reflect such Transfer. Any reference in this Agreement to a Capital Contribution of, or
distribution to, a then-Partner shall include a Capital Contribution or distribution previously
made by or to any prior Partner on account of the Partnership Interest of such then-Partner.



          (f) Additional Restrictions. In addition to any other restrictions on transfer
contained in this Agreement, in no event may any Transfer of a Partnership Interest by any Partner
or any redemption pursuant to Section 8.6 be made without the express consent of the General
Partner, in its sole and absolute discretion, (i) to any person or entity who lacks the legal
right, power or capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii)
of any component portion of a Partnership Interest, such as the Capital Account, or rights to
distributions, separate and apart from all other components of a Partnership Interest; (iv) if in
the opinion of the General Partner based on the advice of legal counsel, if appropriate, such
Transfer would cause a termination of the Partnership for Federal or state income tax purposes
(except as a result of a redemption of all Partnership Units held by all Limited Partners); (v) if
in the opinion of the General Partner based on the advice of legal counsel, if appropriate, such
Transfer would cause the Partnership to cease to be classified as a partnership for Federal income
tax purposes (except as a result of a redemption of all Partnership Units held by all Limited
Partners); (vi) if



-49-









 







such Transfer requires the registration of such Partnership Interest pursuant to any
applicable federal or state securities laws; (vii) if such Transfer would cause the Partnership to
become a “publicly traded partnership,” as such term is defined in Section 7704(b) of the Code
(provided that this clause (vii) shall not be the basis for limiting or restricting in any manner
the exercise of the Redemption Right under Section 8.6 unless, and only to the extent that, outside
tax counsel advises the General Partner that, in the absence of such limitation or restriction,
there is a significant risk that the Partnership will be treated as a “publicly traded partnership”
and, by reason thereof, taxable as a corporation); (viii) if such Transfer would cause the General
Partner to own 10% or more of the ownership interests of any tenant of a property held by the
Partnership within the meaning of Section 856(d)(2)(B) of the Code; (ix) if such Transfer would
result in the General Partner being “closely held” within the meaning of Section 856(h) of the
Code; or (x) if in the opinion the General Partner based on the advice of legal counsel, if
appropriate, such Transfer would adversely affect the ability of the General Partner to continue to
qualify as a REIT or subject the General Partner to any additional taxes under Sections 857 or 4981
of the Code.



ARTICLE 12

ADMISSION OF PARTNERS




     12.1 Admission of Successor General Partner. A successor to all of the General Partner
Interest pursuant to Article 11 hereof who is proposed to be admitted as a successor General
Partner shall be admitted to the Partnership as the General Partner, effective immediately
following the successor General Partner’s execution and delivery to the Partnership of an
acceptance of all of the terms and conditions of this Agreement and such other documents or
instruments as may be required or appropriate to effect such Person’s admission as General Partner.
In the case of such admission on any day other than the first day of a Fiscal Year, all items
attributable to the General Partner Interest for such Fiscal Year shall be allocated between the
transferring General Partner and such successor as provided in Section 11.6(c) hereof. Any such
successor General Partner shall carry on the business of the Partnership without dissolution.



     12.2 Admission of Additional Limited Partners.



          (a) General. A Person other than the General Partner and the Initial Limited Partner
who makes a Capital Contribution to the Partnership in accordance with this Agreement shall be
admitted to the Partnership as an Additional Limited Partner only upon executing and delivering to
the General Partner:



               (i) evidence of acceptance in form satisfactory to the General Partner of all of the terms and
conditions of this Agreement, including, without limitation, the power of attorney granted in
Section 2.6 hereof; and



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



          (b) General Partner’s Consent Required. Notwithstanding anything to the contrary in
this Section 12.2, no Person shall be admitted as an Additional Limited Partner without the consent
of the General Partner, which consent may be given or withheld in the General Partner’s sole and
absolute discretion. The admission of any Person as an Additional Limited Partner shall become
effective on the date upon which the name of such Person is recorded on the books and records of
the Partnership, following the consent of the General Partner to such admission and the
satisfaction of the conditions set forth in Section 12.2(a).



-50-









 





          (c) Allocations to Additional Limited Partners. If any Additional Limited Partner is
admitted to the Partnership on any day other than the first day of a Fiscal Year, then Profit,
Losses, each item thereof and all other items allocable among Partners and Assignees for such
Fiscal Year shall be allocated among such Additional Limited Partner and all other Partners and
Assignees by taking into account their varying interests during the Fiscal Year in accordance with
Section 706(d) of the Code, using the interim closing of the books method. Solely for purposes of
making such allocations, each of such items for the calendar month in which an admission of any
Additional Limited Partner occurs shall be allocated among all of the Partners and Assignees,
including such Additional Limited Partner.



     12.3 Amendment of Agreement and Certificate of Limited Partnership. For the admission to the
Partnership of any Partner, the General Partner shall take all steps necessary and appropriate
under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A) and, if
required by law, shall prepare and file an amendment to the Certificate and may for this purpose
exercise the power of attorney granted pursuant to Section 2.6 hereof.



ARTICLE 13

DISSOLUTION, LIQUIDATION AND TERMINATION




     13.1 Dissolution. The Partnership shall not be dissolved by the admission of Substituted
Limited Partners or Additional Limited Partners or by the admission of a successor General Partner
in accordance with the terms of this Agreement. Subject to Section 13.1(b), upon the withdrawal of
the General Partner, any successor General Partner shall continue the business of the Partnership.
The Partnership shall dissolve, and its affairs shall be wound up, only upon the first to occur of
any of the following (“Liquidating Events”):



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



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



          (c) an election to dissolve the Partnership made by the General Partner, in its sole and
absolute discretion;



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



          (e) the occurrence of a Terminating Sale Transaction; or



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



-51-









 







the business of the Partnership and to the appointment, effective as of a date prior to the
date of such order or judgment, of a substitute General Partner, if applicable.


As used in this Article 13, a “majority in interest” shall refer to Partners (excluding the
General Partner) who hold Partnership Units that constitute more than fifty percent (50%) of the
aggregate number of outstanding Partnership Units not held by the General Partner.




     13.2 Winding Up; Liquidation.



          (a) Upon dissolution of the Partnership, the business and affairs of the Partnership shall be
wound up as provided in this Section 13.2. The General Partner shall act as the
“Liquidator” (or, in the event there is no remaining General Partner, any Person elected by
Limited Partners holding more than 50% of the total number of Partnership Units then issued and
outstanding). The Liquidator shall wind up the affairs of the Partnership, shall dispose of such
Partnership Assets as it deems necessary or appropriate and shall pay and distribute the assets of
the Partnership, including the proceeds of any such disposition, as follows:



               (i) first, to creditors, including Partners who are creditors, to the extent otherwise
permitted by law, in satisfaction of liabilities of the Partnership (whether by payment or by
establishment or reserves as determined by the Liquidator in its sole discretion), other than
distributions to Partners pursuant to Article 5, and



               (ii) second, to the Partners in accordance with their positive Capital Account balances.


It is intended that such distributions will result in the Partners receiving aggregate
distributions in the order of and equal to the amount of distributions that would have been
received if the liquidating distributions were made in accordance with Section 5.1. However, if the
balances in the Capital Accounts do not result in such intention being satisfied, items of Profits
and Losses will be reallocated among the Partners for the Fiscal Year of the liquidation (and, at
the election of the General Partner, if necessary and permissible, prior Fiscal Years) so as to
cause the balances in the Capital Accounts to be in the amounts necessary to assure that such
result is achieved. Notwithstanding anything herein to the contrary, in the event the Partnership
is liquidated within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g), liquidation
distributions shall be made by the end of the taxable year in which the Partnership liquidates or,
if later, within ninety (90) days of the date of such liquidation.




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



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



               (ii) withheld or escrowed to provide a reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the unrealized portion of any



-52-









 







installment obligations owed to the Partnership, provided that such withheld or escrowed
amounts shall be distributed to the General Partner and Limited Partners in the manner and order of
priority set forth in Section 13.2(a) as soon as practicable.



          (c) The Liquidator shall, in its sole discretion, determine whether to sell any Partnership
Assets, including, without limitation, Real Estate Assets, and if so, whether at a public or
private sale, for what price and on what terms. If the Liquidator determines to sell or otherwise
dispose of any Partnership Asset or any interest therein, the Liquidator shall do so expeditiously
and for its fair market value under the circumstances, giving due regard to the activity and
condition of the relevant market and general financial and economic conditions. If the Liquidator
determines not to sell or otherwise dispose of any Partnership Asset or any interest therein, the
Liquidator shall not be required to distribute the same to the Partners promptly but shall have
full right and discretion to determine the time and manner of such distribution and distributions
giving due regard to the interests of the Partners.



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



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



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



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



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



ARTICLE 14

AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS




     14.1 Amendments.



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



-53-









 







action under this Section 14.1(a) is taken in the next regular communication to the Limited
Partners. The Limited Partners shall not have the power to amend this Agreement.



          (b) Restrictions on General Partner’s Ability to Amend this Agreement. Notwithstanding
Section 14.1(a) hereof, this Agreement shall not be amended with respect to any Partner adversely
affected without the Consent of such Partner adversely affected if such amendment would:



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



               (ii) impose on the Limited Partners any obligation to make additional Capital Contributions to
the Partnership;



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



               (iv) amend this Section 14.1(b).



     14.2 Meetings of the Partners.



          (a) General. Meetings of the Partners may be called by the General Partner and shall
be called upon the receipt by the General Partner of a written request by Limited Partners holding
twenty-five percent (25%) or more of the Partnership Interests. The request shall state the nature
of the business to be transacted. Notice of any such meeting shall be given to all Partners not
less than seven (7) days nor more than thirty (30) days prior to the date of such meeting. Partners
may vote in person or by proxy at such meeting.



          (b) Vote Required. Whenever the vote or Consent of the Partners is permitted or
required under this Agreement, such vote or Consent may be given at a meeting of the Partners or
may be given in accordance with the procedure prescribed in Section 14.2(c) hereof. Except as
otherwise expressly provided in this Agreement, the Consent of holders of Partnership Units that
constitute more than fifty percent (50%) of the aggregate number of outstanding Partnership Units
held by the Partners (including the General Partner) shall constitute the consent of the Partners.



          (c) Action Without a Meeting. Any action required or permitted to be taken at a
meeting of the Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by holders of Partnership Units that constitute more than fifty percent
(50%) (or such other percentage as is expressly required by this Agreement) of the aggregate number
of outstanding Partnership Units held by the Partners (including the General Partner). Such
consent may be in one instrument or in several instruments, and shall have the same force and
effect as a vote the holders of Partnership Units that constitute more than fifty percent (50%) (or
such other percentage as is expressly required by this Agreement) of the aggregate number of
outstanding Partnership Units held by the Partners (including the General Partner). Such consent
shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a
meeting held on the effective date of the consent as certified by the General Partner.



          (d) Proxy. Each Partner may authorize any Person or Persons to act for him by proxy on
all matters in which a Partner is entitled to participate, including waiving notice of any meeting,
or voting or participating at a meeting. Every proxy must be signed by the Partner or



-54-









 







his attorney-in-fact and a copy thereof delivered to the Partnership. No proxy shall be valid
after the expiration of eleven (11) months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the Partner executing it, such revocation
to be effective upon the General Partner’s receipt of written notice of such revocation from the
Partner executing such proxy.



          (e) Conduct of Meeting. Each meeting of the Partners shall be conducted by the General
Partner or such other Person as the General Partner may appoint pursuant to such rules for the
conduct of the meeting as the General Partner or such other Person deems appropriate. Meetings of
Partners may be conducted in the same manner as meetings of the stockholders of the General Partner
and may be held at the same time, and as part of, meetings of the stockholders of the General
Partner.



ARTICLE 15

GENERAL PROVISIONS




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



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



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



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



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



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



-55-









 





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



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



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



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



     15.11 Merger. Subject to Section 11.2, the Partnership may merge with, or consolidate into,
any Person or Entity in accordance with Section 17-211 of the Act.



     15.12 No Rights as Stockholders. Nothing contained in this Agreement shall be construed as
conferring upon the holders of the Partnership Units any rights whatsoever as stockholders of the
General Partner, including, without limitation, any right to receive dividends or other
distributions made to such stockholders or to vote or to consent or receive notice as stockholders
in respect to any meeting or stockholders for the election of directors of the General Partner or
any other matter.



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



[SIGNATURE PAGE FOLLOWS]




-56-









 





     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement of Limited
Partnership effective as of the day and year first-above written.



	 	 	 	 	 	 	 
	 	 	GENERAL PARTNER:	 	 
	 
	 	 	 	 	 	 
	 	 	Grubb & Ellis Healthcare REIT II, Inc., a Maryland
corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeffrey T. Hanson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Jeffrey T. Hanson	 	 
	 

	 	Title:	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	INITIAL LIMITED PARTNER/ADVISOR:	 	 
	 
	 	 	 	 	 	 
	 	 	Grubb & Ellis Healthcare REIT II Advisor, LLC, a

Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeffrey T. Hanson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Jeffrey T. Hanson	 	 
	 

	 	Title:	 	Chief Executive Officer	 	 






 









 








Exhibit A




PARTNERS’ CONTRIBUTIONS AND PARTNERSHIP INTERESTS




	 	 	 	 	 	 	 	 	 	 					 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 					Number of	 	 
	Name and Address	 	 	 	 	 	Capital	 	Date	 	Partnership	 	Percentage
	of Partner	 	Type of Interest	 	Contribution	 	Contributed	 	Units	 	Interest
	Grubb & Ellis Healthcare REIT II, Inc.

1551 North Tustin Avenue
Suite 200

Santa Ana, CA 92705

Fax: (714) 667-6860

Attention: Chief Executive Officer
	 	General Partnership Interest	 	$	200,000	 	 	February 4, 2009	 	 	20,000	 	 	 	99.00	%
	 
	 	 	 	 	 	 	 	 	 					 	 	 	 	 	 	 
	Grubb & Ellis Healthcare REIT II

Advisor, LLC

1551 North Tustin Avenue

Suite 200

Santa Ana, CA 92705

Fax: (714) 667-6860

Attention: General Counsel
	 	Limited Partnership Interest	 	$	2,000	 	 	February 4, 2009	 	 	200	 	 	 	1.00	%
	 
	 	 	 	 	 	 	 	 	 					 	 	 	 	 	 	 
	TOTAL
	 	 	 	 	 	$	202,000	 	 	 	 	 	 	 	20,200	 	 	 	100.00	%








 









 








Exhibit B




NOTICE OF REDEMPTION REQUEST




     The undersigned Limited Partner hereby irrevocably (i) requests that Grubb & Ellis Healthcare
REIT II Holdings, LP (the “Partnership”) redeem Partnership Units in the Partnership held
by such Limited Partner in accordance with the terms of the Agreement of Limited Partnership of the
Partnership, as such agreement may be amended from time to time (the “Partnership
Agreement”) and the Redemption Right referred to therein; (ii) agrees to surrender such
Partnership Units and all right, title, and interest therein promptly upon payment of the
Redemption Amount; (iii) directs that the Redemption Amount deliverable upon exercise of the
Redemption Right be delivered to such Limited Partner at the address as specified in the
Partnership Agreement; and (iv) directs that, if the General Partner determines that the Redemption
Amount shall be the REIT Stock Amount, the REIT Stock be registered or placed in the name of such
Limited Partner and at such address specified in the Partnership Agreement. The undersigned hereby
represents, warrants, and certifies that the undersigned (a) has not transferred or encumbered
title to such Partnership Units; (b) has the full right, power and authority to redeem and
surrender such Partnership Units as provided herein; and (c) has obtained the consent or approval
of all Persons, if any, having the right to consent or approve such redemption and surrender.



Dated:                                        




	 	 	 	 	 	 	 
	 	 	[Name of Limited Partner]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title: