Exhibit 10.2


 




 


 





SECOND AMENDED AND RESTATED


 


AGREEMENT OF LIMITED PARTNERSHIP


 


OF


 


EXCEL REALTY PARTNERS, L.P.


 


a Delaware limited partnership


 












 


 


dated as of May 19, 2003




 





 

















 


SECOND AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

EXCEL REALTY PARTNERS, L.P.


 


THIS
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF EXCEL REALTY
PARTNERS, L.P., dated as of May 19, 2003, is entered into by
and among New Plan DRP Trust, a Maryland real estate investment trust, as the
General Partner, and the Persons listed in the Partner Register who are the
Limited Partners, together with any other Persons who become Partners in the
Partnership as provided herein.


 


WHEREAS, the
parties hereto as of the date hereof are parties to that certain Amended and
Restated Agreement of Limited Partnership of Excel Realty Partners, L.P., dated
as of June 25, 1997, as amended by that certain First Amendment to the
Amended and Restated Agreement of Limited Partnership of Excel Realty Partners,
L.P., dated as of August 20, 1999 (the “Prior Agreement”); and


 


WHEREAS, the
parties now wish to amend and restate the Prior Agreement.


 


NOW THEREFORE, in
consideration of the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereby agree
as follows:


 


ARTICLE 1  

DEFINED TERMS


 


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


 


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


 


“Actions” has the
meaning set forth in Section 7.7 hereof.


 


“Additional Funds” has
the meaning set forth in Section 4.4.A hereof.


 


“Additional Limited Partner” means
a Person admitted to the Partnership as a Limited Partner pursuant to Section
4.2 or Section 4.4.D and Section 12.2 hereof and who is shown as such on the
books and records of the Partnership.


 


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


 


(a)           decrease
such deficit by any amounts that such Partner is obligated to restore pursuant
to this Agreement or by operation of law upon liquidation of such Partner’s
Partnership Interest or is deemed to be obligated to restore pursuant to the


 

















 


penultimate
sentence of each of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and


 


(b)           increase
such deficit by the items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).


 


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


 


“Adjustment Factor” means
1.0; provided, however, that in the event that:


 


(a)           New
Plan (i) declares or pays a dividend on its outstanding REIT Shares in REIT
Shares or makes a distribution to all holders of its outstanding REIT Shares in
REIT Shares, (ii) splits or subdivides its outstanding REIT Shares or (iii)
effects a reverse stock split or otherwise combines its outstanding REIT Shares
into a smaller number of REIT Shares, the Adjustment Factor shall be adjusted
by multiplying the Adjustment Factor previously in effect by a fraction, (1) the numerator of which shall be the
number of REIT Shares issued and outstanding on the record date for such
dividend, distribution, split, subdivision, reverse split or combination
(assuming for such purposes that such dividend, distribution, split,
subdivision, reverse split or combination has occurred as of such time) and (2) the denominator of which shall be the
actual number of REIT Shares (determined without the above assumption) issued
and outstanding on the record date for such dividend, distribution, split,
subdivision, reverse split or combination;


 


(b)           in
the event that New Plan distributes any rights, options or warrants to all
holders of its REIT Shares to subscribe for or to purchase or to otherwise
acquire REIT Shares (or other securities or rights convertible into,
exchangeable for or exercisable for REIT Shares) at a price per share less than
the Value of a REIT Share on the record date for such distribution (each a “Distributed
Right”), then the Adjustment Factor shall be adjusted by multiplying
the Adjustment Factor previously in effect by a fraction, (i) the numerator of
which shall be the number of REIT Shares issued and outstanding on the record
date plus the maximum number of REIT Shares purchasable under such Distributed
Rights and (ii) the denominator of which shall be the number of REIT Shares
issued and outstanding on the record date plus a fraction, (1) the numerator of which is the maximum
number of REIT Shares purchasable under such Distributed Rights times the
minimum purchase price per REIT Share under such Distributed Rights and (2) the denominator of which is the Value
of a REIT Share as of the record date; provided,
however,  that, if any such
Distributed Rights expire or become no longer exercisable, then the Adjustment
Factor shall be adjusted, effective retroactive to the date of distribution of
the Distributed Rights, to reflect a reduced maximum number of REIT Shares or any
change in the minimum purchase price for the purposes of the above fractions;
and


 


(c)           in
the event that New Plan shall, by dividend or otherwise, distribute to all
holders of its REIT Shares evidences of its indebtedness or assets (including
securities, but excluding any dividend or distribution referred to in
subsection (a) above), which


 


2

















 


evidences of
indebtedness or assets relate to assets not received by New Plan pursuant to a pro rata distribution by the Partnership,
then the Adjustment Factor shall be adjusted to equal the amount determined by
multiplying the Adjustment Factor in effect immediately prior to the close of
business on the date fixed for determination of shareholders entitled to receive
such distribution by a fraction, (i) the numerator shall be such Value of a
REIT Share on the date fixed for such determination and (ii) the denominator
shall be the Value of a REIT Share on the dated fixed for such determination
less the then fair market value (as reasonably determined by New Plan) of the
portion of the evidences of indebtedness or assets so distributed applicable to
one REIT Share.


 


Any adjustments to the
Adjustment Factor shall become effective immediately after the effective date
of such event, retroactive to the record date, if any, for such event; provided, however,  that any Limited Partner may waive, by written notice to
the General Partner, the effect of any adjustment to the Adjustment Factor
applicable to the Partnership Units held by such Limited Partner, and,
thereafter, such adjustment will not be effective as to such Partnership Units.


 


“Affiliate” means,
with respect to any person, any Person directly or indirectly controlling or
controlled by or under common control with such Person. For the purposes of
this definition, “control” when
used with respect to any Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Agreement” means
this Second Amended and Restated Agreement of Limited Partnership of Excel
Realty Partners, L.P., as it may be amended, supplemented or restated from time
to time.


 


“Applicable Percentage” has
the meaning set forth in Section 8.6.B hereof.


 


“Appraisal” means,
with respect to any assets, the written opinion of an independent third party
experienced in the valuation of similar assets, selected by the General Partner
in good faith. Such opinion may be in the form of an opinion by such
independent third party that the value for such property or asset as set by the
General Partner is fair, from a financial point of view, to the Partnership.


 


“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 hereof.


 


“Available Cash” means,
with respect to any period for which such calculation is being made,


 


(a)           the sum, without
duplication, of:


 


(1)           the
Partnership’s Net Income or Net Loss (as the case may be) for such period,


 


3

















 


(2)           Depreciation
and all other noncash charges to the extent deducted in determining Net Income
or Net Loss for such period,


 


(3)           the
amount of any reduction in reserves of the Partnership referred to in clause
(b)(6) below (including, without limitation, reductions resulting because the
General Partner determines such amounts are no longer necessary),


 


(4)           the
excess, if any, of the net cash proceeds from the sale, exchange, disposition,
financing or refinancing of Partnership property for such period over the gain
(or loss, as the case may be) recognized from such sale, exchange, disposition,
financing or refinancing during such period (excluding Terminating Capital
Transactions), and


 


(5)           all
other cash received (including amounts previously accrued as Net Income and
amounts of deferred income) or any net amounts borrowed by the Partnership for
such period that was not included in determining Net Income or Net Loss for
such period;


 


(b)           less the sum,
without duplication, of:


 


(1)           all
principal debt payments made during such period by the Partnership,


 


(2)           capital
expenditures made by the Partnership during such period,


 


(3)           investments
in any entity (including loans made thereto) to the extent that such
investments are not otherwise described in clause (b)(1) or clause (b)(2)
above,


 


(4)           all
other expenditures and payments not deducted in determining Net Income or Net
Loss for such period (including amounts paid in respect of expenses previously
accrued),


 


(5)           any
amount included in determining Net Income or Net Loss for such period that was
not received by the Partnership during such period, and


 


(6)           the
amount of any increase in reserves (including, without limitation, working
capital reserves) established during such period that the General Partner
determines are necessary or appropriate in its sole and absolute discretion.


 


Notwithstanding the
foregoing, Available Cash shall not include (i) any cash received or reductions
in reserves, or take into account any disbursements made, or reserves
established, after dissolution and the commencement of the liquidation and
winding up of the Partnership or (ii) any Capital Contributions, whenever
received.


 


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


 


“Capital Account” means, with respect to
any Partner, the Capital Account maintained by the General Partner for such
Partner on the Partnership’s books and records in accordance with the following
provisions:


 


4

















 


(a)           To
each Partner’s Capital Account, there shall be added such Partner’s Capital
Contributions, such Partner’s distributive share of Net Income and any items in
the nature of income or gain that are specially allocated pursuant to Section
6.3 hereof, and the principal amount of any Partnership liabilities assumed by
such Partner or that are secured by any property distributed to such Partner.


 


(b)           From
each Partner’s Capital Account, there shall be subtracted the amount of cash
and the Gross Asset Value of any property distributed to such Partner pursuant
to any provision of this Agreement, such Partner’s distributive share of Net
Losses and any items in the nature of expenses or losses that are specially
allocated pursuant to Section 6.3 hereof, and the principal amount of any
liabilities of such Partner assumed by the Partnership or that are secured by
any property contributed by such Partner to the Partnership.


 


(c)           In
the event any interest in the Partnership is Transferred in accordance with the
terms of this Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent that it relates to the Transferred interest.


 


(d)           In
determining the principal amount of any liability for purposes of subsections
(a) and (b) hereof, there shall be taken into account Code Section 752(c) and
any other applicable provisions of the Code and Regulations.


 


(e)           The
provisions of this Agreement relating to the maintenance of Capital Accounts
are intended to comply with Regulations Sections 1.704-1(b) and 1.704-2, and
shall be interpreted and applied in a manner consistent with such Regulations.
If the General Partner shall determine that it is prudent to modify the manner
in which the Capital Accounts are maintained in order to comply with such
Regulations, the General Partner may make such modification provided that such modification will not have a material
effect on the amounts distributable to any Partner without such Partner’s
Consent.  The General Partner also shall
(i) make any adjustments that are necessary or appropriate to maintain equality
between the Capital Accounts of the Partners and the amount of Partnership
capital reflected on the Partnership’s balance sheet, as computed for book
purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q) and (ii) make any appropriate
modifications in the event that unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b) or Section 1.704-2.


 


“Capital Contribution” means,
with respect to any Partner, the amount of money and the initial Gross Asset
Value of any Contributed Property that such Partner contributes to the
Partnership pursuant to Section 4.1, Section 4.2 or Section 4.4 hereof.


 


“Capital Transaction” means
any Partnership transaction, not in the ordinary course of the Partnership’s
business, involving a sale, exchange, disposition, financing or refinancing of
any Property.


 


“Cash Amount” means
an amount of cash equal to the product of (a) the Value of a REIT Share and (b)
the REIT Shares Amount determined as of the applicable Valuation Date.


 


5

















 


“Certificate” means
the Certificate of Limited Partnership of the Partnership filed in the office
of the Secretary of State of the State of Delaware, as amended from time to
time in accordance with the terms hereof and the Act.


 


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


 


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


 


“Consent” means
the consent to, approval of, or vote on a proposed action by a Partner given in
accordance with Article 14 hereof.


 


“Consent of the Limited Partners” means
the Consent of a Majority in Interest of the Limited Partners, which Consent
shall be obtained prior to the taking of any action for which it is required by
this Agreement and, except as otherwise provided in this Agreement, may be
given or withheld by a Majority in Interest of the Limited Partners, in their
reasonable discretion.


 


“Contributed Property” means
each Property or other asset, in such form as may be permitted by the Act, but
excluding cash, contributed or deemed contributed to the Partnership.


 


“Controlled Entity” means,
as to any Limited Partner, (a) any corporation more than fifty percent (50% )
of the outstanding voting stock of which is owned by such Limited Partner or
such Limited Partner’s Family Members, (b) any trust, whether or not revocable,
of which such Limited Partner or such Limited Partner’s Family Members are the
sole beneficiaries, (c) any partnership of which such Limited Partner is the
managing partner and in which such Limited Partner or such Limited Partner’s
Family Members hold partnership interests representing at least twenty-five
percent (25%) of such partnership’s capital and profits and (d) any limited
liability company of which such Limited Partner is the manager and in which
such Limited Partner or such Limited Partner’s Family Members hold membership
interests representing at least twenty-five percent (25%) of such limited
liability company’s capital and profits.


 


“Controlling Person” means
any Person, whatever his or her title, who performs executive or senior
management functions for the General Partner or its Affiliates similar to those
of directors, executive management and senior management, or any Person who
either holds a two percent (2%) or more equity interest in the General Partner
or its Affiliates, or has the power to direct or cause the direction of the
General Partner or its Affiliates, whether through the ownership of voting
securities, by contract or otherwise, or, in the absence of a specific role or
title, any Person having the power to direct or cause the direction of the
management-level employees and policies of the General Partner or its
Affiliates.  It is not intended that
every Person who carries a title such as vice president, senior vice president,
secretary or treasurer be included in the definition of “Controlling Person.”


 


6

















 


“Cut-Off Date” means
the twentieth (20th) calendar day (or, if such day is not a Business Day, then
the next following Business Day) after the General Partner’s receipt of a
Notice of Redemption.


 


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


 


“Declination” has
the meaning set forth in Section 8.6.D hereof.


 


“Depreciation” means,
for each Fiscal Year or other applicable period, an amount equal to the federal
income tax depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that,
if the Gross Asset Value of an asset differs from its adjusted basis for
federal income tax purposes at the beginning of such year or period,
Depreciation shall be in an amount that beats the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization or other
cost recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however,  that,
if the federal income tax depreciation, amortization or other cost recovery
deduction for such year or period is zero, Depreciation shall be determined
with reference to such beginning Gross Asset Value using any reasonable method
selected by the General Partner.


 


“Designated Parties” means
the Persons designated as such on the Partner Schedules then in effect.


 


“Distributed Right” has
the meaning set forth in the definition of “Adjustment Factor.”


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.


 


“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.


 


“Family Members” means,
as to a Person that is an individual, (a) such Person’s spouse, (b) such
Person’s ancestors, (c) such Person’s descendants (whether by blood or by
adoption), (d) such Person’s brothers and sisters, (e) inter vivos or testamentary
trusts of which only such Person and/or his spouse, ancestors, descendants
(whether by blood or by adoption), brothers and/or sisters are beneficiaries
and (f) any partnership or limited liability company all of whose partners or
members consist of such Person and/or his spouse, ancestors, descendants
(whether by blood or by adoption), brothers and/or sisters and/or inter vivos or
testamentary trusts of which only such Person and/or his spouse, ancestors,
descendants (whether by blood or by adoption), brothers and/or sisters are
beneficiaries.


 


7

















 


“Fiscal Year” means
the fiscal year of the Partnership, which shall be the calendar year.


 


“Funding Debt” means
any Debt incurred by or on behalf of the General Partner for the purpose of
providing funds to the Partnership.


 


“Funding Notice” has
the meaning set forth in Section 4.4.B hereof.


 


“General Partner” means
New Plan DRP Trust, a Maryland real estate investment trust, and its successors
and assigns, as the general partner of the Partnership in their capacities as
general partner of the Partnership.


 


“General Partner Interest” means
the Partnership Interest held by the General Partner, which Partnership
Interest is an interest as a general partner under the Act.  A General Partner Interest may be expressed
as a number of Partnership Units.


 


“General Partner Loan” has
the meaning set forth in Section 4.4.C hereof.


 


“General
Partner Obligation” means, without limitation unless
expressly provided herein to the contrary, all of the General Partner’s
obligations as a general partner of the Partnership, including but not limited
to those obligations under this Agreement, other legal and/or equitable
obligations of general partners under applicable law, contractual obligations
of the Partnership, and other legal and equitable obligations of the
Partnership. The purpose of Section 7.12 of the Partnership Agreement and the
General Partner Obligations is to give the Limited Partners exactly the same
legal rights and remedies against New Plan after the assignment of the general
partner interest in the Partnership from New Plan to the General Partner
effected on August 20, 1999 as the Limited Partners had prior to such
assignment.


 


Without limiting the
foregoing standard and scope of the General Partner Obligations, the following
are examples of obligations that are included within the definition of “General
Partner Obligations”:


 


(i)            the General Partner’s obligations as
a general partner of the Partnership, whether resulting from this Agreement,
the related Partner Schedules or other legal or equitable state or federal
obligations of general partners (e.g., fiduciary obligations); and


 


(ii)           the General Partner’s obligations as
a general partner of the Partnership relating to the Partnership’s obligations
under:


 


(1)           applicable state or federal law
(legal or equitable);


 


(2)           the underlying retail leases and
related agreements (which have been assumed or executed by the Partnership)
regarding the retail projects owned, or ground leased, by the Partnership (“Projects”), and, if applicable, the related
ground leases;


 


(3)           the underlying debt of the Projects
(which have been assumed by the Partnership to the extent the same is
recourse); and


 


8

















 


(4)           the various contracts and agreements
relating to the Projects (which have been assumed or executed by the
Partnership).


 


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


 


(a)           The
initial Gross Asset Value of any asset contributed by a Limited Partner to the
Partnership shall be set forth on the Partner Schedule with respect to such
Limited Partner.


 


(b)           The
Gross Asset Values of all Partnership assets immediately prior to the
occurrence of any event described in clause (1), clause (2), clause (3), clause
(4) or clause (5) hereof shall be adjusted to equal their respective gross fair
market values, as determined by the General Partner using such reasonable
method of valuation as it may adopt, as of the following times:


 


(1)           the
acquisition of an additional interest in the Partnership (other than in
connection with the execution of this Agreement but including, without
limitation, acquisitions pursuant to Section 4.4 hereof or contributions or
deemed contributions by the General Partner pursuant to Section 4.4 hereof) by
a new or existing Partner in exchange for more than a de minimis Capital Contribution, if the General Partner
reasonably determines that such adjustment is necessary or appropriate to
reflect the relative economic interests of the Partners in the Partnership;


 


(2)           the
distribution by the Partnership to a Partner of more than a de minimis amount of
Partnership property as consideration for an interest in the Partnership, if
the General Partner reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Partners in the
Partnership;


 


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


 


(4)           upon
the admission of a successor General Partner pursuant to Section 12.1 hereof;
and


 


(5)           at
such other times as the General Partner shall reasonably determine necessary or
advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2.


 


(c)           The
Gross Asset Value of any Partnership asset distributed to a Partner shall be
the gross fair market value of such asset on the date of distribution as
determined by the distributee and the General Partner, provided that, if the
distributee is the General Partner or if the distributee and the General
Partner cannot agree on such a determination, such gross fair market value
shall be determined by Appraisal.


 


9

















 


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


 


(e)           If
the Gross Asset Value of a Partnership asset has been determined or adjusted
pursuant to subsection (a), subsection (b) or subsection (d) above, such Gross
Asset Value shall thereafter be adjusted by the Depreciation taken into account
with respect to such asset for purposes of computing Net Income and Net Losses.


 


“Holder” means
either (a) a Partner or (b) an Assignee, owning a Partnership Unit, that is
treated as a member of the Partnership for federal income tax purposes.


 


“Incapacity” or “Incapacitated”
means, (i) as to any Partner who is an individual, death, total
physical disability or entry by a court of competent jurisdiction adjudicating
such Partner incompetent to manage his or her person or his or her estate; (ii)
as to any Partner that is a corporation or limited liability company, the
filing of a certificate of dissolution, or its equivalent, for the corporation
or limited liability company or the revocation of its charter; (iii) as to any
Partner that is a partnership, the dissolution and commencement of winding up
of the partnership; (iv) as to any Partner that is an estate, the distribution
by the fiduciary of the estate’s entire interest in the Partnership; (v) 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 (vi) as to any Partner, the bankruptcy
of such Partner. For purposes of this definition, bankruptcy of a Partner shall
be deemed to have occurred when (a) the Partner commences a voluntary
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, (b) 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,
(c) the Partner executes and delivers a general assignment for the benefit of
the Partner’s creditors, (d) 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 (b)
above, (e) the Partner seeks, consents to or acquiesces in the appointment of a
trustee, receiver or liquidator for the Partner or for all or any substantial
part of the Partner’s properties, (f) any proceeding seeking liquidation,
reorganization or other relief 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, (g) 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 (h) an appointment referred to in clause (g) above is not
vacated within ninety (90) days after the expiration of any such stay.


 


10

















 


“Indemnitee” means
(i) any Person made a party to a proceeding by reason of its status as (A) the
General Partner or an Affiliate of the General Partner or (B) a director of the
General Partner or an Affiliate of the General Partner or an officer or
employee of the Partnership, the General Partner or an Affiliate of the General
Partner and (ii) such other Persons (including Affiliates of the General
Partner or the Partnership) as the General Partner may designate from time to
time (whether before or after the event giving rise to potential liability), in
its sole and absolute discretion.


 


“Interest” means
interest, original issue discount and other similar payments or amounts paid by
the Partnership for the use or forbearance of money.


 


“IRS” means the Internal Revenue Service,
which administers the internal revenue laws of the United States.


 


“Limited Partner” means
any Person named as a Limited Partner in the Partner Register, as such Partner
Register may be amended from time to time, or any Substituted Limited Partner
or Additional Limited Partner, in such Person’s capacity as a Limited Partner
in the Partnership.


 


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


 


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


 


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


 


“Majority in Interest of the Limited
Partners” means those Limited Partners (other than any
Limited Partner fifty percent (50%) or more of whose equity is owned, directly
or indirectly, by the General Partner) holding in the aggregate more than fifty
percent (50%) of the aggregate Partnership Units of all Limited Partners (other
than any Limited Partner fifty percent (50%) or more of whose equity is owned,
directly or indirectly, by the General Partner).


 


“Majority of Remaining Partners” means
Partners other than the General Partner owning (a) a majority of the income
interests in the Partnership held by all Partners other than the General
Partner, determined and allocated based on any reasonable estimate of income
from the relevant date to the projected termination of the Partnership and taking
into account present and future allocations of income under the Agreement as it
is in effect on the relevant date, and (b) a majority of all capital interests
in the Partnership, determined as of the relevant date under the Agreement,
owned by all of the Partners other than the General Partner.


 


“Net Income” or “Net Loss” means,
for each Fiscal Year of the Partnership, an amount equal to the Partnership’s
taxable income or loss for such year, determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain, loss or deduction
required to be


 


11

















 


stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or
loss), with the following adjustments:


 


(a)           Any
income of the Partnership that is exempt from federal income tax and not
otherwise taken into account in computing Net Income (or Net Loss) pursuant to
this definition of “Net Income” or “Net Loss” shall be added to
(or subtracted from, as the case may be) such taxable income (or loss);


 


(b)           Any
expenditure of the Partnership described in Code Section 705(a)(2)(B) or
treated as a Code Section 705(a)(2)(B) expenditure pursuant to Regulations
Section 1.704-1(b)(2)(iv)(i), and
not otherwise taken into account in computing Net Income (or Net Loss) pursuant
to this definition of “Net
Income” or “Net Loss,” shall be subtracted from (or
added to, as the case may be) such taxable income (or loss);


 


(c)           In
the event that the Gross Asset Value of any Partnership asset is adjusted
pursuant to subsection (b) or subsection (c) of the definition of “Gross Asset Value,” the amount of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Net Income or Net Loss;


 


(d)           Gain
or loss resulting from any disposition of property with respect to which gain
or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of, notwithstanding
that the adjusted tax basis of such property differs from its Gross Asset
Value;


 


(e)           In
lieu of the depreciation, amortization and other cost recovery deductions that
would otherwise be taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year;


 


(f)            To
the extent that an adjustment to the adjusted tax basis of any Partnership
asset pursuant to Code Section 734(b) or Code Section 743(b) is required
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be
taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Partner’s interest in the
Partnership, the amount of such adjustment shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the adjustment
decreases the basis of the asset) from the disposition of the asset and shall
be taken into account for purposes of computing Net Income or Net Loss; and


 


(g)           Notwithstanding
any other provision of this definition of “Net Income” or “Net Loss,” any item that is
specially allocated pursuant to Section 6.3.B hereof shall not be taken into
account in computing Net Income or Net Loss. The amounts of the items of
Partnership income, gain, loss or deduction available to be specially allocated
pursuant to Section 6.3.B hereof shall be determined by applying rules
analogous to those set forth in this definition of “Net Income” or “Net Loss.”


 


“New Plan” means New Plan Excel Realty Trust, Inc., a
Maryland corporation, or its successor.


 


12

















 


“Nonrecourse Deductions” has
the meaning set forth in Regulations Section 1.704-2(b)(1), and the amount of
Nonrecourse Deductions for a Fiscal Year shall be determined in accordance with
the rules of Regulations Section 1.704-2(c).


 


“Nonrecourse Liability” has
the meaning set forth in Regulations Section 1.752-1(a)(2).


 


“Notice of Redemption” means
the Notice of Redemption substantially in the form of Exhibit A
attached to this Agreement.


 


“Original Limited Partners” means
the Persons executing a Partner Schedule together with the General Partner and
being admitted to the Partnership either as an initial Limited Partner or as an
Additional Limited Partner; provided, however, that “Original
Limited Partners” does not include any Assignee or other transferee,
including, without limitation, any Substituted Limited Partner succeeding to
all or any part of the Partnership Interest of any such Person. The initial
Original Limited Partners are listed on the Partner Register.


 


“Ownership Limit” means
the applicable restriction on ownership of shares of New Plan imposed under the
Charter.


 


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


 


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


 


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


 


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


 


“Partner
Register” means the register of partners maintained by the General
Partner in the books and records of the Partnership, which shall include the
name, address, number of Partnership Units and deemed capital contributions of
each Partner.


 


“Partner Schedule” means
a schedule executed  by
the General Partner and a Limited Partner (including any Original Limited
Partner and any Substituted Limited Partner), that shall set forth, with
respect to a Limited Partner to which Partnership Units are issued pursuant to
this Agreement, among other things, (a) the Gross Asset Values, as determined
by the General Partner and agreed to by the contributing Limited Partner, for
any Contributed Properties contributed by such contributing Limited Partner,
(b) the initial Partnership Units issued to such Limited Partner, (c) the
Preferred Return Per Unit, (d) the Specific Adjustment Factor and (e) any
Specific Adjustment Limitations.


 


13

















 


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


 


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


 


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


 


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


 


“Partnership Unit” means
a fractional share of the Partnership Interests of all Partners issued pursuant
to Section 4.1, Section 4.2 or Section 4.4 hereof; provided, however, that the
General Partner Interest and the Limited Partner Interests shall have the
differences in rights and privileges as specified in this Agreement. The
ownership of Partnership Units may (but need not, in the sole and absolute
discretion of the General Partner) be evidenced by a certificate in the form
approved by the General Partner.


 


“Permitted Transfer” has
the meaning set forth in Section 11.3.A hereof.


 


“Person” means an
individual or a corporation, partnership, trust, unincorporated organization,
association, limited liability company or other entity.


 


“Pledge” has the
meaning set forth in Section 11.3.A hereof.


 


“Preferred Return Per Unit” means


 


(a)           as
to a Limited Partner or its Assignee (including, without limitation, the
General Partner following the acquisition of Tendered Units pursuant to Section
8.6 hereof), the amount specified, as an amount distributable quarterly (or
upon such other frequency as may be provided in the relevant Partner Schedule)
from Available Cash as provided in Section 5.1 hereof, as such on the Partner
Schedule with respect to such Limited Partner; or


 


(b)           in
the case of additional Partnership Units issued to the General Partner in
exchange for additional Capital Contributions as provided in Section 4.4.D, an
amount, distributable quarterly from Available Cash as provided in Section 5.1
hereof, equal to the then current dividend yield on a REIT Share.


 


14

















 


The Preferred Return Per
Unit need not be the same amount for each Partnership Limited Partner or
Assignee or with respect to each Partnership Unit and, being determined with regard to the Partnership’s income,
shall not constitute a “guaranteed payment” under Code Section
707(c).


 


“Prior Agreement” has
the meaning set forth in the recitals to this Agreement.


 


“Properties” means
any assets and property of the Partnership such as, but not limited to,
interests in real property and personal property, including, without
limitation, fee interests, interests in ground leases, interests in limited
liability companies, joint ventures or partnerships, interests in mortgages,
and Debt instruments as the Partnership may hold from time to time.


 


“Qualified Transferee” means
an “accredited
investor” as defined in Rule 501 promulgated under the Securities
Act.


 


“Qualifying Party” means
(a) an Original Limited Partner, (b) an Additional Limited Partner (unless
otherwise provided in the applicable Partner Schedule), (c) a Designated Party
that is either a Substituted Limited Partner or an Assignee, (d) a Family
Member, or a lending institution as the pledgee of a Pledge, who is the
transferee in a Permitted Transfer or (e) with respect to any Notice of
Redemption delivered to the General Partner within the time period set forth in
Section 11.3.A(4) hereof, a Substituted Limited Partner succeeding to all or
part of the Limited Partner Interest of (i) an Original Limited Partner, (ii)
an Additional Limited Partner (unless such Additional Limited Partner was not a
Qualifying Party), (iii) a Designated Party that is either a Substituted
Limited Partner or an Assignee or (iv) a Family Member, or a lending
institution as the pledgee of a Pledge, who is the transferee in a Permitted
Transfer.


 


“Redemption” has the
meaning set forth in Section 8.6.A hereof.


 


“Regulations” means
the applicable income tax regulations under the Code, whether such regulations
are in proposed, temporary or final form, as such regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).


 


“Regulatory Allocations” has
the meaning set forth in Section 6.3.B(h) hereof.


 


“REIT” means a
real estate investment trust qualifying under Code Section 856.


 


“REIT Partner” means
a Partner or Assignee that is, or has made an election to qualify as, a REIT.


 


“REIT Payment” has
the meaning set forth in Section 15.11 hereof.


 


“REIT Requirements” has
the meaning set forth in Section 5.1 hereof.


 


“REIT Share” means
a share of the common stock, par value $.01 per share, of New Plan.


 


“REIT Shares Amount” means
a number of REIT Shares equal to the product of (a) the number of Tendered
Units, (b) the Adjustment Factor and (c) the applicable Specific Adjustment
Factor, taking into account any applicable Specific Adjustment Limitations; provided,
however,


 


15

















 


that, in the event that
New Plan issues to all holders of REIT Shares as of a certain record date
rights, options, warrants or convertible or exchangeable securities entitling
New Plan’s shareholders to subscribe for or purchase REIT Shares, or any other
securities or property (collectively, the “Rights”), with the record date for such Rights issuance falling
within the period starting on the date of the Notice of Redemption and ending
on the day immediately preceding the Specified Redemption Date, which Rights
will not be distributed before the relevant Specified Redemption Date, then the
REIT Shares Amount shall also include such Rights that a holder of that number
of REIT Shares would be entitled to receive, expressed, where relevant
hereunder, in a number of REIT Shares determined by New Plan in good faith.


 


“Related Party” means,
with respect to any Person, any other Person whose ownership of shares of the
General Partner’s capital stock would be attributed to the first such Person
under Code Section 544 (as modified by Code Section 856(h)(1)(B)).


 


“Related Person” means
with respect to a Partner or a Holder, a Person bearing a relationship to such
Partner or Holder, or a Person to whom such Partner or Holder bears a
relationship, specified in Regulations Section 1.752-4(b).


 


“Rights” has the
meaning set forth in the definition of REIT
Shares Amount.


 


“SEC” means the Securities and Exchange
Commission.


 


“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
SEC promulgated thereunder.


 


“Single Funding Notice” has
the meaning set forth in Section 8.6.D(3) hereof.


 


“Specific Adjustment Factor” means,
as to a Limited Partner or its Assignee, the amount specified as such on the
Partner Schedule with respect to such Limited Partner; provided, however, that, if
no such amount is specified on such Partner Schedule, the Specific Adjustment
Factor shall be 1.0. The Specific Adjustment Factor need not be the same for
each Limited Partner and Assignee.


 


“Specific Adjustment Limitations” means,
as to a Limited Partner or its Assignee, the limitations and restrictions, if
any, specified as such on the Partner Schedule with respect to such Limited
Partner. The Specific Adjustment Limitations need not be the same for each
Limited Partner and Assignee.


 


“Specified Redemption Date” means
the thirtieth (30th) calendar day (or, if such day is not a Business Day, the
next following Business Day) after the receipt by the General Partner of a
Notice of Redemption; provided, however, that no Specified
Redemption Date shall occur during the first Twelve-Month Period; provided,
further, that the Specified Redemption Date, as well as the closing
of a Redemption, or an acquisition of Tendered Units by the General Partner or
New Plan pursuant to Section 8.6.B hereof, on any Specified Redemption Date,
may be deferred, in the General Partner’s sole and absolute discretion, for
such time (but in any event not more than one hundred fifty (150) days in the
aggregate) as may reasonably be required to effect, as applicable, (i)
necessary funding arrangements, (ii) compliance with the Securities Act or


 


16

















 


other law (including, but
not limited to, (a) state “blue sky” or other securities laws and
(b) the expiration or termination of the applicable waiting period, if any,
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) and
(iii) satisfaction or waiver of other commercially reasonable and customary
closing conditions and requirements for a transaction of such nature.


 


“Subsidiary” means, with respect to any
Person, any corporation or other entity of which a majority of (i) the voting
power of the voting equity securities or (ii) the outstanding equity interests
is owned, directly or indirectly, by such Person; provided, however, that,
with respect to the Partnership, “Subsidiary” means solely a partnership or
limited liability company (taxed, for federal income tax purposes, as a
partnership and not as an association or publicly traded partnership taxable as
a corporation) of which the Partnership is a member unless the General Partner
has received an unqualified opinion from independent counsel of recognized
standing, or a ruling from the IRS, that the ownership of shares of stock of a
corporation or other entity will not jeopardize the General Partner’s status as
a REIT, in which event the term “Subsidiary” shall include the corporation or other
entity which is the subject of such opinion or ruling.


 


“Substituted Limited Partner” means
an Assignee who is admitted as a Limited Partner to the Partnership pursuant to
Section 11.4 hereof. The term “Substituted Limited Partner” shall not include any Additional Limited
Partner.


 


“Tax Items” has
the meaning set forth in Section 6.4.A hereof.


 


“Tendered Units” has
the meaning set forth in Section 8.6.A hereof.


 


“Tendering Party” has the meaning set forth in Section
8.6.A hereof.


 


“Terminating Capital Transaction” means
any sale or other disposition 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.


 


“Transfer,” when
used with respect to a Partnership Unit or all or any portion of a Partnership
Interest, means any sale, assignment, bequest, conveyance, devise, gift
(outright or in trust), Pledge, encumbrance, hypothecation, mortgage, exchange,
transfer or other disposition or act of alienation, whether voluntary or
involuntary or by operation of law; provided, however, that, when the term is
used in Article 11 hereof, Transfer does not include (a) any Redemption of
Partnership Units by the Partnership, or acquisition of Tendered Units from the
Limited Partners by the General Partner, pursuant to Section 8.6 hereof or (b)
any redemption of Partnership Units pursuant to Section 8.7 or Section 8.8
hereof. The terms “Transferred” and “Transferring” have correlative meanings.


 


“Twelve-Month Period” means
a twelve-month period (or, as to a particular Qualifying Party, such shorter
period as the General Partner may, in its sole and absolute discretion, agree
to in the relevant Partner Schedule) ending on the day before the first (1st)
anniversary of either (i) the admission of such Qualifying Party as a Limited
Partner in the Partnership or (ii) the Transfer of Partnership Units to such
Qualifying Party, or on the day before a subsequent anniversary


 


17

















 


thereof (or, in the case
of a period shorter than twelve (12) months, such other period as may be
provided in the relevant Partner Schedule).


 


“Unitholder” means
the General Partner or a Holder of Partnership Units.


 


“Valuation Date” means
(a) in the case of a tender of Partnership Units for Redemption, the date of
receipt by the General Partner of a Notice of Redemption or, if such date is
not a Business Day, the immediately preceding Business Day or (b) in any other
case, the date specified in this Agreement.


 


“Value” means, on
any Valuation Date with respect to a REIT Share, the average of the daily
market prices for twenty (20) consecutive trading days immediately preceding
the Valuation Date. The market price for any such trading day shall be:


 


(1)           if
the REIT Shares are listed or admitted to trading on any national securities
exchange or The Nasdaq Stock Market’s National Market System, the closing
price, regular way, on such day, or if no such sale takes place on such day,
the average of the closing bid and asked prices on such day, in either case as
reported in the principal consolidated transaction reporting system,


 


(2)           if
the REIT Shares are not listed or admitted to trading on any national securities
exchange or The Nasdaq Stock Market’s National Market System, 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


 


(3)           if
the REIT Shares are not listed or admitted to trading on any national
securities exchange or The Nasdaq Stock Market’s National Market System and no
such last reported sale price or closing bid and asked prices are available,
the average of the reported high bid and low asked prices on such day, as
reported by a reliable quotation source designated by the General Partner, or
if there shall be no bid and asked prices on such day, the average of the high
bid and low asked prices, as so reported, on the most recent day (not more than
ten (10) days prior to the date in question) for which prices have been so
reported;


 


provided, however, that,
if there are no bid and asked prices reported during the ten (10) days prior to
the date in question, the Value of the REIT Shares shall be determined by the
General Partner acting in good faith on the basis of such quotations and other
information as it considers, in its reasonable judgment, appropriate. In the
event that the REIT Shares Amount includes Rights that a holder of REIT Shares
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.


 


18

















 


ARTICLE 2

ORGANIZATIONAL MATTERS


 


Section
2.1            Organization


 


The Partnership is
a limited partnership organized pursuant to the provisions of the Act and upon
the terms and subject to the conditions set forth in this Agreement. Except as
expressly provided herein to the contrary, the rights and obligations of the
Partners and the administration and termination of the Partnership shall be
governed by the Act.  The Partnership
Interest of each Partner shall be personal property for all purposes.


 


Section
2.2            Name


 


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


 


Section
2.3            Registered Office and Agent;
Principal Office


 


The address of the
registered office of the Partnership in the State of Delaware is located at 32
Loockerman Square, Suite L-100, Dover, Delaware 19901, and the registered agent
for service of process on the Partnership in the State of Delaware at such
registered office is The Prentice-Hall Corporation System, Inc.  The principal office of the Partnership is
located at 1120 Avenue of the Americas, Suite 1200, New York, NY  10036, 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.


 


Section
2.4            Power of Attorney


 


A. Each Limited
Partner and each Assignee hereby irrevocably constitutes and appoints the
General Partner, any Liquidator, and authorized officers and attorneys-in-fact
of each, and each of those acting singly, in each case with full power of
substitution, as its true and lawful agent and attorney-in-fact, with full
power and authority in its name, place and stead to:


 


(1)           execute,
swear to, seal, 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,
supplements 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


 


19

















 


a limited
partnership (or a partnership in which the limited partners have limited
liability to the extent provided by applicable law) in the State of Delaware
and in all other jurisdictions in which the Partnership may conduct business or
own property; (b) all instruments that the General Partner 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 the 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 conveyances and other
instruments or documents that the General Partner or the Liquidator deems
appropriate or necessary to reflect the distribution or exchange of assets of
the Partnership pursuant to the terms of this Agreement; (e) all instruments
relating to the admission, withdrawal, removal or substitution of any Partner
pursuant to, or other events described in, Article 11, Article 12 or Article 13
hereof or the Capital Contribution of any Partner; and (f) all certificates,
documents and other instruments relating to the determination of the rights,
preferences and privileges relating to Partnership Interests; and


 


(2)           execute,
swear to, 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, to make, evidence, give, confirm or
ratify any vote, consent, approval, agreement or other action that is made or
given by the Partners hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole and absolute discretion of
the General Partner, to effectuate the terms or intent of this Agreement.


 


Nothing contained herein
shall be construed as authorizing the General Partner 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 special power coupled with an interest,
in recognition of the fact that each of the Limited Partners and Assignees will
be relying upon the power of the General Partner to act as contemplated by this
Agreement in any filing or other action by it on behalf of the Partnership, and
it shall survive and not be affected by the subsequent Incapacity of any
Limited Partner or Assignee and the Transfer of all or any portion of such
Limited Partner’s or Assignee’s Partnership Units or Partnership Interest and
shall extend to such Limited Partner’s or Assignee’s heirs, successors, assigns
and personal representatives. Each such Limited Partner or Assignee hereby
agrees to be bound by any representation made by the General Partner, acting in
good faith pursuant to such power of attorney; and each such Limited Partner or
Assignee hereby waives any and all defenses that may be available to contest,
negate or disaffirm the action of the General Partner, taken in good faith
under such power of attorney. 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 the 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.


 


20

















 


Section
2.5            Term


 


The term of the
Partnership commenced on April 24, 1995, the date that the original
Certificate was filed in the office of the Secretary of State of Delaware in
accordance with the Act, and shall continue until December 31, 2093 unless the
Partnership is dissolved sooner pursuant to the provisions of Article 13 hereof
or as otherwise provided by law.


 


ARTICLE 3 

PURPOSE


 


Section
3.1            Purpose and Business


 


The purpose and
nature of the Partnership is to conduct any business, enterprise or activity
permitted by or under the Act, including, but not limited to, (i) the
business of ownership, construction, development and operation of shopping
centers or other real estate rental properties, (ii) entering into any
partnership, joint venture, business trust arrangement, limited liability
company or other similar arrangement to engage in any business permitted by or
under the Act, or owning interests in any entity engaged in any business
permitted by or under the Act, (iii) engaging in any of the activities
permitted by Section 7.1 hereof, and (iv) doing anything necessary or
incidental to the foregoing; provided,
however, such business and
arrangements and interests may be limited to and conducted in such a manner as
to permit New Plan at all times to be classified as a REIT.


 


Section
3.2            Powers


 


A.            The Partnership shall be empowered
to do any and all acts and things necessary, appropriate, proper, advisable,
incidental to or convenient for the furtherance and accomplishment of the
purposes and business described herein and for the protection and benefit of
the Partnership.


 


B.            Notwithstanding any other provision
in this Agreement, the General Partner may cause the Partnership not to take,
or to refrain from taking, any action that, in the judgment of the General
Partner, in its sole and absolute discretion, (i) could adversely affect the
ability of New Plan to continue to qualify as a REIT, (ii) could subject New
Plan to any additional taxes under Code Section 857 or Code Section 4981 or
(iii) could violate any law or regulation of any governmental body or agency
having jurisdiction over the General Partner or New Plan, their securities or
the Partnership, unless such action (or inaction) under clause (i), clause (ii)
or clause (iii) above shall have been specifically consented to by the
General Partner in writing.


 


Section
3.3            Partnership Only for Purposes
Specified


 


The Partnership
shall be a limited partnership only for the purposes specified in
Section 3.1 hereof, and this Agreement shall not be deemed to create a
company, venture or partnership between or among the Partners with respect to
any activities whatsoever other than the activities within the purposes of the
Partnership as specified in Section 3.1 hereof. Except as


 


21

















 


otherwise provided in
this Agreement, no Partner shall have any authority to act for, bind, commit or
assume any obligation or responsibility on behalf of the Partnership, its
properties or any other Partner. No Partner, in its capacity as a Partner under
this Agreement, shall be responsible or liable for any indebtedness or
obligation of another Partner, nor shall the Partnership be responsible or
liable for any indebtedness or obligation of any Partner, incurred either
before or after the execution and delivery of this Agreement by such Partner,
except as to those responsibilities, liabilities, indebtedness or obligations
incurred pursuant to and as limited by the terms of this Agreement and the Act.


 


Section
3.4            Representations and Warranties by
the Limited Partners


 


A.            Each Limited Partner that is an
individual (including, without limitation, each Additional Limited Partner or
Substituted Limited Partner as a condition to becoming an Additional Limited
Partner or a Substituted Limited Partner) represents and warrants to the
Partnership, the General Partner and each other Limited Partner that (i) the
consummation of the transactions contemplated by this Agreement to be performed
by such Limited Partner will not result in a breach or violation of, or a
default under, any material agreement by which such Limited Partner or any of
such Limited Partner’s property is bound, or any statute, regulation, order or
other law to which such Limited Partner is subject, (ii) such Limited Partner
is neither a “foreign person” within the meaning of Code Section 1445(f)
nor a “foreign
partner” within the meaning of Code Section 1446(e), (iii) such
Limited Partner does not own, directly or indirectly or by attribution under
Code Section 318 (as modified by Code Section 856(d)(5)), (a) nine and
eight-tenths percent (9.8%) or more of the total combined voting power of all
classes of stock entitled to vote, or nine and eight-tenths percent (9.8%) or
more of the total number of shares of all classes of stock, of New Plan or of
any corporation that is a tenant of any of (I) New Plan, (II) the
General Partner, (III) the Partnership or (IV) any partnership, venture or
limited liability company of which New Plan, the General Partner or the
Partnership is a member or (b) an interest of nine and eight-tenths percent
(9.8%) or more in the assets or net profits of any tenant of any of (I) New
Plan, (II) the General Partner, (III) the Partnership or (IV) any
partnership, venture or limited liability company of which New Plan, the
General Partner or the Partnership is a member, (iv) such Limited Partner does
not own, directly or indirectly or by attribution under Code Section 544 (as
modified by Code Section 856(h)) stock of New Plan (except as set forth in a
Partner Schedule), and (v) this Agreement is binding upon, and enforceable
against, such Limited Partner in accordance with its terms.


 


B.            Each Limited Partner that is not an
individual (including, without limitation, each Additional Limited Partner or
Substituted Limited Partner as a condition to becoming an Additional Limited
Partner or a Substituted Limited Partner) represents and warrants to the
Partnership, the General Partner and each other Limited Partner that (i) all
transactions contemplated by this Agreement to be performed by it have been
duly authorized by all necessary action, including, without limitation, that of
its general partner(s), committee(s), trustee(s), beneficiaries, directors
and/or shareholder(s), as the case may be, as required, (ii) the consummation
of such transactions shall not result in a breach or violation of, or a default
under, its partnership or operating agreement, trust agreement, charter or
bylaws, as the case may be, any material agreement by which such Limited
Partner or any of such Limited Partner’s properties or any of its partners,
members, beneficiaries, trustees or shareholders, as the case may


 


22

















 


be, is or are bound, or
any statute, regulation, order or other law to which such Limited Partner or
any of its partners, members, trustees, beneficiaries or shareholders, as the
case may be, is or are subject, (iii) such Limited Partner is neither a “foreign
person” within the meaning of Code Section 1445(f) nor a “foreign
partner” within the meaning of Code Section 1446(e), (iv) such
Limited Partner does not own, directly or indirectly or by attribution under
Code Section 318 (as modified by Code Section 856(d)(5)), (a) nine and
eight-tenths percent (9.8%) or more of the total combined voting power of all classes
of stock entitled to vote, or nine and eight-tenths percent (9.8%) or more of
the total number of shares of all classes of stock, of New Plan or of any
corporation that is a tenant of any of (I) New Plan, (II) the General
Partner, (III) the Partnership or (IV) any partnership, venture or limited
liability company of which New Plan, the General Partner or the Partnership is
a member or (b) an interest of nine and eight-tenths percent (9.8%) or more in
the assets or net profits of any tenant of any of (I) New Plan, (II) the
General Partner, (III) the Partnership or (IV) any partnership, venture or
limited liability company of which New Plan, the General Partner or the
Partnership is a member, (v) such Limited Partner does not own, directly or
indirectly or by attribution under Code Section 544 (as modified by Code
Section 856(h)) stock of New Plan (except as set forth in a Partner Schedule),
and (vi) this Agreement is binding upon, and enforceable against, such Limited
Partner in accordance with its terms.


 


C.            Each Limited Partner (including,
without limitation, each Substituted Limited Partner as a condition to becoming
a Substituted Limited Partner) represents, warrants and agrees that it has
acquired and continues to hold its interest in the Partnership for its own
account for investment only and not for the purpose of, or with a view toward,
the resale or distribution of all or any part thereof, nor with a view toward
selling or otherwise distributing such interest or any part thereof at any
particular time or under any predetermined circumstances. Each Limited Partner
further represents and warrants that it is a sophisticated investor, able and
accustomed to handling sophisticated financial matters for itself, particularly
real estate investments, and that it has a sufficiently high net worth that it
does not anticipate a need for the funds that it has invested in the
Partnership in what it understands to be a highly speculative and illiquid
investment.


 


D.            The representations and warranties
contained in Sections 3.4.A, 3.4.B and 3.4.C hereof shall survive the execution
and delivery of this Agreement by each Limited Partner (and, in the case of an
Additional Limited Partner or a Substituted Limited Partner, the admission of
such Additional Limited Partner or Substituted Limited Partner as a Limited
Partner in the Partnership) and the dissolution, liquidation and termination of
the Partnership. The General Partner may, in its sole and absolute discretion
on behalf of the Partnership and its Partners, grant waivers and exceptions to
the representations and warranties contained in Sections 3.4.A, 3.4.B and 3.4.C
hereof, but any such waiver or exception must be in writing, must refer to this
Section 3.4.D and must describe with particularity the representation or
warranty as to which such waiver or exception shall apply.


 


E.             Each Limited Partner (including,
without limitation, each Substituted Limited Partner as a condition to becoming
a Substituted Limited Partner) hereby represents that it has consulted and been
advised by its legal counsel and tax advisor in connection with, and
acknowledges that no representations as to potential profit, tax consequences
of any sort


 


23

















 


(including, without
limitation, the tax consequences resulting from making a Capital Contribution,
being admitted to the Partnership or being allocated Tax Items), cash flows,
funds from operations or yield, if any, in respect of the Partnership or the
General Partner have been made by any Partner or any employee or representative
or Affiliate of any Partner, and that projections and any other information,
including, without limitation, financial and descriptive information and
documentation, that may have been in any manner submitted to such Limited
Partner shall not constitute any representation or warranty of any kind or
nature, express or implied.


 


ARTICLE 4  

CAPITAL CONTRIBUTIONS


 


Section
4.1            Capital Contributions of the Initial
Partners


 


The initial
Limited Partner has made the Capital Contribution as set forth in the Partner
Schedule for such Partner, and the General Partner has made the Capital
Contribution shown on the Partner Register. 
Each initial Limited Partner shall own Partnership Units in the amount
set forth for such Partner in the Partner Schedule with respect to such
Partner, as the same may be amended from time to time. The General Partner
shall initially own Partnership Units in the amount set forth for the General
Partner on the Partner Register.  Except
as provided in a particular Partner Schedule, by law or in Section 4.4.B or
Section 10.4 hereof, the Partners shall have no obligation or right to make any
additional Capital Contributions or loans to the Partnership.


 


Section
4.2            Additional Limited Partners


 


The General Partner
is authorized to admit one or more Additional Limited Partners to the
Partnership from time to time, on terms and conditions and for such Capital
Contributions as may established by the General Partner in its reasonable
discretion. No action or consent by the Limited Partners shall be required in
connection with the admission of any Additional Limited Partner. In the sole
and absolute discretion of the General Partner, the Partnership may acquire in
the future additional Properties by means of Capital Contributions by other
Persons, which Capital Contributions shall be set forth in one or more Partner
Schedules. Persons making such Capital Contributions and executing such Partner
Schedules together with the General Partner shall be admitted to the Partnership
as Additional Limited Partners, with such number of Partnership Units,
Preferred Returns Per Unit, Specific Adjustment Factors and Specific Adjustment
Limitations as may be set forth in such Partner Schedules. To the extent that
the Partnership acquires in the future any property by the merger of any other
Person into the Partnership, Persons who receive Partnership Interests in
exchange for their interests in the Person merging into the Partnership shall
become Partners and shall be deemed to have made Capital Contributions as
provided in the applicable merger agreement and as set forth in one or more
Partner Schedules.


 


24

















 


Section
4.3            Loans by Third Parties


 


The Partnership
may incur or assume Debt, or enter into other similar credit, guarantee,
financing or refinancing arrangements, for any purpose (including, without
limitation, in connection with any further acquisition of Properties from any
Person), upon such terms as the General Partner determines appropriate; provided,
however, that the Partnership shall not incur or assume any Debt
under which a breach, violation or default would be deemed to occur by virtue
of the Transfer of any Limited Partner Interest or General Partner Interest; provided,
further, that any Debt shall be nonrecourse to the General Partner
unless the General Partner otherwise agrees.


 


Section
4.4            Additional  Funding and Capital Contributions


 


A.            General.  The General Partner may, at any time and
from time to time, determine that the Partnership requires additional funds (“Additional Funds”)  for the acquisition or development of
additional Properties or for such other purposes as the General Partner may
determine. Additional Funds may be raised by the Partnership, at the election of
the General Partner, in any manner provided in, and in accordance with, the
terms of this Section 4.4 or, alternatively, the terms of Section 4.3 hereof.
No Person, including, without limitation, any Partner or Assignee, shall have
any preemptive, preferential, participation or similar right or rights to
subscribe for or acquire any Partnership Interest.


 


B.            Notice of Additional Funds
Requirement.  The
General Partner may, but shall not be required to, give written notice (the “Funding Notice”) to the Limited Partners of the need for Additional Funds and the
anticipated source(s) thereof.


 


C.            General Partner Loans.  Whether or not a Funding Notice is given to
the Limited Partners, the General Partner may enter into a Funding Debt
(including, but not limited to, a Funding Debt that is convertible into REIT
Shares) and lend the Additional Funds to the Partnership (a “General
Partner Loan”).  If the General Partner enters into
such a Funding Debt, the General Partner Loan will consist of the net proceeds
from such Funding Debt and, to the extent permitted by law, will be on the same
terms and conditions, including interest rate and repayment schedule, and
providing for the reimbursement of costs and expenses, as shall be applicable
with respect to or incurred in connection with such Funding Debt. Otherwise,
all General Partner Loans made pursuant to this Section 4.4 shall be on terms
and conditions no less favorable to the Partnership than would be available to
the Partnership from any third party.


 


D.            Additional General Partner
Contributions; Additional Limited Partners.  Whether or not a Funding Notice is given to
the Limited Partners, the General Partner on behalf of the Partnership may
raise all or any portion of the Additional Funds by making additional Capital
Contributions and/or accepting additional Capital Contributions from any other
Partners and/or third parties and either (a) in the case of Partners (including
the General Partner), increasing such Partner’s Partnership Units or (b) in the
case of a third party, admitting such third party as an Additional Limited
Partner as contemplated by Section 4.2 of this Agreement. Subject to the terms
of this Section 4.4 and to the definition of “Gross Asset Value,” the
General Partner shall determine in good faith the amount, terms and conditions
of such additional Capital


 


25

















 


Contributions; provided,
however, that, in the case of an additional Capital Contribution by
the General Partner, the Partnership shall issue to the General Partner the
number of Partnership Units derived by dividing (1) the amount of the
additional Capital Contribution (net of any liabilities assumed or taken
subject to by the Partnership) by (2) the Value determined as of the date of
such Capital Contribution.


 


E.             Timing of Additional Capital
Contributions.  If
additional Capital Contributions are made by Partners on any day other than the
first day of a Fiscal Year, then Net Income, Net Loss, each item thereof and
all other items of income, gain, loss, deduction and credit allocable among
Partners and Assignees for such Fiscal Year shall be allocated among such
Partners and Assignees by taking into account their varying interests during
the Fiscal Year in accordance with Code Section 706(d), using the “interim
closing of the books” or “daily proration” method or another permissible method
selected by the General Partner. Solely for purposes of making such
allocations, each of such items for the calendar month in which such Capital
Contributions are made shall be allocated among all the Partners and Assignees
in accordance with the principles described in Section 11.6.C hereof. All
distributions of Available Cash shall be made in accordance with the principles
described in Section 12.2.C hereof.


 


Section
4.5            No Interest; No Return


 


No Partner shall
be entitled to interest on its Capital Contribution or on such Partner’s
Capital Account. Except as provided herein or by law, no Partner shall have any
right to demand or receive the return of its Capital Contribution from the
Partnership.


 


ARTICLE 5 

DISTRIBUTIONS


 


Section 5.1            Requirement and Characterization of
Distributions


 


The General
Partner shall cause the Partnership to distribute quarterly (or, with respect
to a particular Holder of Partnership Units, in installments upon such other
frequency as may be provided in the relevant Partner Schedule) all, or such
portion as the General Partner may in its sole and absolute discretion
determine, of Available Cash generated by the Partnership during such quarter
(or other period) to the Unitholders on the Partnership Record Date with
respect to such quarter (or other period) as follows:


 


(1)           First,
to each Holder of Partnership Units (including the General Partner following
the acquisition of Tendered Units pursuant to Section 8.6 hereof), pari passu, an
amount equal to the sum of (a) the product of (i) the Preferred Return Per Unit
for such Holder (or its predecessor) for such quarter (or for such other period
as provided in the relevant Partner Schedule) and (ii) the number of
Partnership Units held by such Holder as of the Partnership Record Date and (b)
any unpaid amounts previously distributable to such Holder (or its predecessor)
under this Section 5.1(1); provided, however, that, except as may
otherwise be provided in a particular Partner Schedule, the amount
distributable pursuant to clause (a) to any Additional Limited Partner admitted
to


 


26

















 


the Partnership in
the quarter immediately preceding and ending with such Partnership Record Date
shall be prorated based on the number of days that such Additional Limited
Partner was a Holder of Partnership Units during such quarter; and


 


(2)           Second,
the balance, (a) ninety-nine percent (99%) to the General Partner and (b) one
percent (1%) to the Limited Partners and Assignees (including the General
Partner following the acquisition of Tendered Units pursuant to Section 8.6
hereof and the issuance of additional Partnership Units in exchange for
Additional Capital Contributions pursuant to Section 4.4.D) in accordance with
their respective Partnership Units as of the Partnership Record Date.


 


The General Partner in
its sole and absolute discretion may distribute to the Unitholders Available
Cash in accordance with foregoing priorities on a more frequent basis and
provide for an appropriate record date. The General Partner shall take such
reasonable efforts, as determined by it in its sole and absolute discretion and
consistent with New Plan’s qualification as a REIT, to cause the Partnership to
distribute sufficient amounts to enable New Plan to pay shareholder dividends
that will (a) satisfy the requirements for qualifying as a REIT under the Code
and Regulations (the “REIT Requirements”) and (b) avoid any
federal income or excise tax liability of New Plan.


 


Section
5.2            Distributions in Kind


 


No right is given
to any Unitholder to demand and receive property other than cash as provided in
this Agreement.  The General Partner may
determine, in its sole and absolute discretion, to make a distribution in kind
of Partnership assets to the Unitholders, and, subject to Section 8.8 hereof,
such assets shall be distributed in such a fashion as to ensure that the fair
market value is distributed and allocated in accordance with Articles 5, 6 and
10 hereof.


 


Section
5.3            Amounts Withheld


 


All amounts
withheld pursuant to the Code or any provisions of any state or local tax law
and Section 10.4 hereof with respect to any allocation, payment or distribution
to any Unitholder shall be treated as amounts paid or distributed to such
Unitholder pursuant to Section 5.1 hereof for all purposes under this
Agreement.


 


Section
5.4            Distributions Upon Liquidation


 


Notwithstanding
the other provisions of this Article 5, net proceeds from a Terminating Capital
Transaction, and any other cash received or reductions in reserves made after
commencement of the liquidation of the Partnership, shall be distributed to the
Unitholders in a accordance with Section 13.2 hereof.


 


27

















 


Section
5.5            Restricted  Distributions


 


Notwithstanding
any provision to the contrary contained in this Agreement, neither the
Partnership nor the General Partner, on behalf of the Partnership, shall make a
distribution to any Unitholder on account of its Partnership Interest or
interest in Partnership Units if such distribution would violate Section 17-607
of the Act or other applicable law.


 


ARTICLE 6 

ALLOCATIONS


 


Section
6.1            Timing and Amount of Allocations of
Net Income and Net Loss


 


Net Income and Net
Loss of the Partnership shall be determined and allocated with respect to each
Fiscal Year of the Partnership as of the end of each such year. Except as
otherwise provided in this Article 6, and subject to Section 11.6.C hereof, an
allocation to a Unitholder of a share of Net Income or Net Loss shall be
treated as an allocation of the same share of each item of income, gain, loss
or deduction that is taken into account in computing Net Income or Net Loss.


 


Section
6.2            General Allocations


 


Except as
otherwise provided in this Article 6, and subject to Section 11.6.C hereof:


 


A.            Net Income.  Net Income for any Fiscal Year shall be
allocated as follows:


 


(1)                                  First,
to the Holders in proportion to, and until the amount of the cumulative Net
Income allocated pursuant to this section 6.2.A(1) is equal to the amount of,
the cumulative Net Loss allocated pursuant to section 6.2.B(2) and (3) for all
prior Fiscal Years, in the reverse order of priority that such Net Loss was
allocated to the Holders.


 


(2)                                  Second,
up to 99% to the Holders, in proportion to, and to the extent of the excess, if
any, of (a) the cumulative amount of the distributions of the Preferred Return
Per Unit received for the Fiscal Year and all prior Fiscal Years, by such Holders
pursuant to section 5.1(1) of this Agreement, over (b) the amount of the
cumulative Net Income allocated for all prior Fiscal Years to such Holders
pursuant to this section 6.2.A(2), until each Holder has been allocated an
amount under this section 6.2.A(2) equal to such excess.


 


(3)                                  Third,
to the General Partner, 1.01% of the amount allocated under section 6.2.A(2).


 


(4)                                  Fourth,
to the Holders in proportion to, and to the extent of the excess, if any, of
(a) the cumulative amount of the distributions received for the Fiscal Year and
all prior Fiscal Years, by such Holders pursuant to section 


 


28

















 


5.1(2) of this
Agreement, over (b) the amount of the cumulative Net Income allocated
for all prior Fiscal Years to such Holders pursuant to this section 6.2.A(4),
until each Holder has been allocated an amount under this section 6.2.A(4)
equal to such excess.


 


(5)                                  Thereafter,
99% to the General Partner and 1% to the Limited Partners and Assignees
(including the General Partner following the acquisition of Tendered Units
pursuant to section 8.6 hereof and the issuance of additional Partnership Units
in exchange for additional Capital Contributions pursuant to section 4.4.D) in
accordance with their respective Partnership Units at the end of such Fiscal
Year.


 


B.            Net Loss.  Net Loss for any Fiscal Year shall be
allocated as follows:


 


(1)                                  First,
to the Holders in proportion to, and until the amount of the cumulative Net
Loss allocated pursuant to this section 6.2.B(1) is equal to the amount of, the
cumulative Net Income allocated pursuant to sections 6.2.A(2), (3), (4) and (5)
for all prior Fiscal Years, in the reverse order of priority that such Net
Income was allocated to the Holders.


 


(2)                                  Second,
to the Holders up to and in proportion to the positive balances of their
respective Capital Accounts, after giving effect to all contributions and
distributions for such Fiscal Year.


 


(3)                                  Thereafter,
99% to the General Partner and 1% to the Limited Partners and Assignees (including
the General Partner following the acquisition of Tendered Units pursuant to
section 8.6 hereof and the issuance of additional Partnership Units in exchange
for additional Capital Contributions pursuant to section 4.4.D) in accordance
with their respective Partnership Units at the end of such Fiscal Year.


 


Section
6.3            Additional Allocation Provisions


 


A.            Special Allocations.  Notwithstanding the foregoing provisions of
this Article 6:


 


(1)                                  Depreciation
shall be allocated to the Holders in accordance with and in proportion to their
Partnership Units.


 


(2)                                  Net
Income for any Fiscal Year upon the sale or other disposition of any of the
Properties shall be allocated to the Holders in proportion to, and until the
amount of the cumulative Net Income allocated pursuant to this section 6.3.A(2)
is equal to the amount of, the cumulative Depreciation allocated to the Holders
with respect to the Property being sold or disposed of pursuant to section
6.3.A(1) for the Fiscal Year and all prior Fiscal Years.


 


29

















 


B.            Regulatory
Allocations.


 


(a)           Minimum Gain Chargeback.  Except as otherwise
provided in Regulations Section 1.704-2(f), notwithstanding the provisions of
Section 6.2 hereof, or any other provision of this Article 6, if there is a net
decrease in Partnership Minimum Gain during any Fiscal Year, each Unitholder
shall be specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to such Unitholder’s
share of the net decrease in Partnership Minimum Gain, as determined under
Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated
to each Unitholder pursuant thereto. The items to be allocated shall be
determined in accordance with Regulations Sections 1.704-2(f)(6) and
1.704-2j)(2). This Section 6.3.B(a) is intended to qualify as a “minimum
gain chargeback” within the meaning of Regulations Section
1.704-2(f) and shall be interpreted consistently therewith.


 


(b)           Partner
Minimum Gain Chargeback.  Except as otherwise provided in
Regulations Section 1.704-2(i)(4) or in Section 6.3.B(a) hereof, if there is a
net decrease in Partner Minimum Gain attributable to a Partner Nonrecourse Debt
during any Fiscal Year, each Unitholder who has a share of the Partner Minimum
Gain attributable to such Partner Nonrecourse Debt, determined in accordance
with 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 such Unitholder’s share of the net decrease in Partner
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts
required to be allocated to each General Partner, Limited Partner and other
Holder pursuant thereto. The items to be so allocated shall be determined in
accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2j)(2). This
Section 6.3.B(b) is intended to qualify as a “chargeback of partner nonrecourse debt
minimum gain” within the meaning of Regulations Section 1.704-2(i)
and shall be interpreted consistently therewith.


 


(c)           Nonrecourse Deductions and Partner
Nonrecourse Deductions.  Any
Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the
Holders of Partnership Units in accordance with their Partnership Units.  Any Partner Nonrecourse Deductions for any
Fiscal Year shall be specially allocated to the Unitholder(s) who bears the
economic risk of loss with respect to the Partner Nonrecourse Debt to which
such Partner Nonrecourse Deductions are attributable, in accordance with
Regulations Section 1.704-2(i).


 


(d)           Qualified Income Offset.  If any Unitholder
unexpectedly receives an adjustment, allocation or distribution described in
Regulations Section 1.704-1(b)(2)(ii)(d)(4),
(5) or (6), items of Partnership income and gain shall be allocated,
in accordance with Regulations Section 1.704­I(b)(2)(ii)(d), to such Unitholder
in an amount and manner sufficient to eliminate, to the extent required by such
Regulations, the Adjusted Capital Account Deficit of such Unitholder as quickly
as possible, provided that an allocation pursuant to this Section 6.3.B(d)
shall be made if and only to the extent that such Unitholder would have an
Adjusted Capital Account Deficit after all other allocations provided in this
Article 6 have been tentatively made as if this Section 6.3.B(d) were not in
the Agreement.  It is intended that this
Section 6.3.B(d) qualify and be construed as a “qualified income offset” within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.


 


30

















 


(e)           Gross Income Allocation.  In the event that any
Unitholder has a deficit Capital Account at the end of any Fiscal Year that is
in excess of the sum of (i) the amount (if any) that such Unitholder is
obligated to restore to the Partnership upon complete liquidation of such
Unitholder’s Partnership Interest and (ii) the amount that such Unitholder is
deemed to be obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Unitholder
shall be specially allocated items of Partnership income and gain in the amount
of such excess to eliminate such deficit as quickly as possible, provided that
an allocation pursuant to this Section 6.3.B(e) shall be made if and only to
the extent that such Unitholder would have a deficit Capital Account in excess
of such sum after all other allocations provided in this Article 6 have been
tentatively made as if this Section 6.3.B(e) and Section 6.3.B(d) hereof were
not in the Agreement.


 


(f)            Limitation on Allocation of Net
Loss.  To the extent
that any allocation of Net Loss would cause or increase an Adjusted Capital
Account Deficit as to any Holder of Partnership Units, such allocation of Net
Loss shall be reallocated among the other Holders of Partnership Units in
accordance with their respective Partnership Units, subject to the limitations
of this Section 6.3.B(f).


 


(g)           Section 754 Adjustment.  To the extent that an
adjustment to the adjusted tax basis of any Partnership asset pursuant to Code
Section 734(b) or Code Section 743(b) is required, pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m)(2)
or Regulations Section 1.704-1(b)(2)(iv)(m)(4),
to be taken into account in determining Capital Accounts as the
result of a distribution to a Holder of Partnership Units in complete
liquidation of its interest in the Partnership, the amount of such adjustment
to the Capital Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis), and such gain or loss shall be specially allocated to the Holders in
accordance with their Partnership Units in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Holders to whom
such distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.


 


(h)           Curative Allocations.  The allocations set forth
in Sections 6.3.B(a), (b), (c), (d), (e), (f) and (g) hereof (the “Regulatory
Allocations”) are intended
to comply with certain regulatory requirements, including the requirements of
Regulations Sections 1.704-1(b) and 1.704-2. 
Notwithstanding the provisions of Section 6.1 hereof, the
Regulatory Allocations shall betaken into account in allocating other items of
income, gain, loss and deduction among the Unitholders so that, to the extent
possible without violating the requirements giving rise to the Regulatory
Allocations, the net amount of such allocations of other items and the
Regulatory Allocations to each Unitholder shall be equal to the net amount that
would have been allocated to each such Unitholder if the Regulatory Allocations
had not occurred.


 


C.            Allocation of Excess
Nonrecourse Liabilities.  For
purposes of determining a Holder’s proportional share of the “excess
nonrecourse liabilities” of the Partnership within the meaning of
Regulations Section 1.752-3(a)(3), each Holder’s interest in Partnership
profits shall be such Holder’s share of Partnership Units, unless otherwise
agreed to between the General Partner and a particular Holder (and such
allocation would not reduce the allocation to any other Holder not a party to
such agreement).


 


31

















 


Section
6.4            Tax Allocations


 


A.            In General.  Except as otherwise provided in this Section
6.4, for income tax purposes under the Code and the Regulations each
Partnership item of income, gain, loss and deduction (collectively, “Tax  Items”) shall be allocated among the
Unitholders in the same manner as its correlative item of “book” income, gain, loss or
deduction is allocated pursuant to Sections 6.2 and 6.3 hereof.


 


B.            Allocations Respecting Section
704(c) Revaluations. 
Notwithstanding Section 6.4.A hereof, Tax Items with respect to Property
that is contributed to the Partnership with a Gross Asset Value that varies
from its basis in the hands of the contributing Partner immediately preceding
the date of contribution shall be allocated among the Unitholders for income
tax purposes pursuant to Regulations promulgated under Code Section 704(c) so
as to take into account such variation. 
The Partnership shall account for such variation under any method
approved under Code Section 704(c) and the applicable Regulations as chosen by
the General Partner, including, without limitation, the “traditional method” as
described in Regulations Section 1.704-3(b). 
In the event that the Gross Asset Value of any Partnership asset is
adjusted pursuant to subsection (b) of the definition of “Gross Asset
Value” (provided in Article 1 hereof), subsequent allocations of Tax
Items with respect to such asset shall take account of the variation, if any,
between the adjusted basis of such asset and its Gross Asset Value in the same
manner as under Code Section 704(c) and the applicable Regulations.


 


Section
6.5            Other Provisions


 


A.            Other Allocations Upon Change in
Law.  In the event
that the Code or any Regulations require allocations of items of income, gain,
loss, deduction or credit different from those set forth in this Article 6, the
General Partner is hereby authorized to make new allocations in reliance on the
Code and such Regulations, such new allocations shall be deemed to be made
pursuant to the fiduciary duty of the General Partner to the Partnership and
the other Holders, and no such new allocation shall give rise to any claim or
cause of action by any Holder.


 


B.            Consistent Tax Reporting.  The Partners acknowledge
and are aware of the income tax consequences of the allocations made by this
Article 6 and hereby agree to be bound by the provisions of this Article 6
in reporting their shares of Net Income, Net Losses and other items of income,
gain, loss, deduction and credit for federal, state and local income tax purposes.


 


ARTICLE 7

MANAGEMENT AND OPERATIONS OF BUSINESS


 


Section
7.1            Management


 


A.            Except as otherwise expressly
provided in this Agreement, all management powers over the business and affairs
of the Partnership are and shall be exclusively vested in the General Partner,
and no Limited Partner shall have any right to participate in or exercise
control or management power over the business and affairs of the
Partnership.  The General Partner may


 


32

















 


not be removed by the
Partners with or without cause, except with the Consent of the General
Partner.  In addition to the powers now
or hereafter granted a general partner of a limited partnership under
applicable law or that are granted to the General Partner under any other
provision of this Agreement, the General Partner, subject to the other
provisions hereof including Section 7.3, 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:


 


(1)           the
making of any expenditures, the lending or borrowing of money (including,
without limitation, making prepayments on loans and borrowing money to permit
the Partnership to make distributions to its Partners in such amounts as will
permit the General Partner (so long as the General Partner qualifies as a REIT)
to avoid the payment of any federal income tax (including, for this purpose,
any excise tax pursuant to Code Section 4981) and to make distributions to its
shareholders sufficient to permit the General Partner to maintain REIT status
or otherwise to satisfy the REIT Requirements), the assumption or guarantee of,
or other contracting for, indebtedness and other liabilities, the issuance of
evidences of indebtedness (including the securing of same by deed to secure
debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s
assets) and the incurring of any obligations that it deems necessary for the
conduct of the activities of the Partnership;


 


(2)           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;


 


(3)           the
acquisition, sale, transfer, exchange or other disposition of any assets of the
Partnership (including, but not limited to, the exercise or grant of any
conversion, option, privilege or subscription right or any other right
available in connection with any assets at any time held by the Partnership) or
the merger, consolidation, reorganization or other combination of the
Partnership with or into another entity;


 


(4)           (i) the
mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership
(including, without limitation, any Contributed Property) on such terms as the
General Partner deems proper, which powers shall include, without limitation,
the power to pledge any or all of the assets of the Partnership, or enter into
a guarantee on behalf of the Partnership, to secure a loan or other financing
for the benefit of New Plan or the General Partner (the proceeds of which are
not required to be contributed or loaned to the Partnership) (provided,
however, that New Plan shall indemnify the Partnership from and against any
loss or expenses incurred as a result of such arrangement), or (ii) any
other use of the assets of the Partnership (including, without limitation, cash
on hand) for any purpose consistent with the terms of this Agreement which the
General Partner believes will benefit the Partnership and on any terms that the
General Partner sees fit, including, without limitation, the financing of the
operations and activities of New Plan, the General Partner, the Partnership or
any Subsidiaries of New Plan, the General Partner or the Partnership, the
lending of funds to other Persons (including, without limitation, New Plan, the
General Partner or any Subsidiaries of New Plan, the


 


33

















 


General Partner or
the Partnership), the repayment of obligations of the Partnership, its
Subsidiaries and any other Person in which it has an equity investment, and the
making of capital contributions to and equity investments in the Partnership’s
Subsidiaries;


 


(5)           the
management, operation, leasing, landscaping, repair, alteration, demolition,
replacement or improvement of any Property, including, without limitation, any
Contributed Property, or other asset of the Partnership or any Subsidiary;


 


(6)           the
negotiation, execution and performance of any contracts, leases, 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 property
managers (including, without limitation, as to any Contributed Property or
other Property, contracting  with
the contributing or any other Limited Partner or its Affiliates for property
management services), 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;


 


(7)           the
distribution of Partnership cash or other Partnership assets in accordance with
this Agreement, the holding, management, investment and reinvestment of cash
and other assets of the Partnership, and the collection and receipt of
revenues, rents and income of the Partnership;


 


(8)           the
selection and dismissal of employees of the Partnership or the General Partner
(including, without limitation, employees having titles or offices such as “president,”
“vice president,” “secretary” and “treasurer”), and agents, outside attorneys,
accountants, consultants and contractors of the Partnership or the General
Partner and the determination of their compensa­tion and other terms of
employment or hiring;


 


(9)           the
maintenance of such insurance for the benefit of the Partnership and the
Partners as it deems necessary or appropriate;


 


(10)         the
formation of, or acquisition of an interest in, and the contribution of
property to, any further limited or general partnerships, limited liability
companies, joint ventures or other relationships that it deems desirable
(including, without limitation, the acquisition of interests in, and the
contributions of property to, any Subsidiary and any other Person in which it
has an equity investment from time to time); provided, however, that, as
long as New Plan has determined to continue to qualify as a REIT, the General
Partner may not engage in any such formation, acquisition or contribution that
would cause New Plan to fail to qualify as a REIT;


 


(11)         the
control of any matters affecting the rights and obligations of the Partnership,
including 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, the
commencement or defense of suits, legal proceedings, administrative
proceedings, arbitrations or other forms of dispute


 


34

















 


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


 


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


 


(13)         the
determination of the fair market value of any Partnership property distributed
in kind using such reasonable method of valuation as it may adopt, provided
that such methods are otherwise consistent with the requirements of this
Agreement;


 


(14)         the
enforcement of any rights against any Partner pursuant to representations,
warranties, covenants and indemnities relating to such Partner’s contribution
of property or assets to the Partnership;


 


(15)         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;


 


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


 


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


 


(18)         the
making, execution and delivery of any and all deeds, leases, notes, deeds to
secure debt, 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 powers of the
General Partner enumerated in this Agreement;


 


(19)         the
issuance of additional Partnership Units, as appropriate and in the General
Partner’s sole and absolute discretion, in connection with Capital
Contributions by Additional Limited Partners and additional Capital
Contributions by Partners pursuant to Article 4 hereof.


 


B.            Each of the Limited
Partners agrees that, except as provided in Section 7.3 hereof, the General
Partner is authorized to execute, deliver and perform the above-mentioned
agreements and transactions on behalf of the Partnership without any further
act, approval or vote of the Partners, notwithstanding any other provision of
this Agreement (except as provided in Section 7.3 hereof), the Act or any applicable
law, rule or regulation. The execution, delivery


 


35

















 


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


 


C.            At all times from and after the date
hereof, the General Partner may cause the Partnership to obtain and maintain
(i) casualty, liability and other insurance on the Properties of the
Partnership and (ii) liability insurance for the Indemnitees hereunder.


 


D.            At all times from and after the date
hereof, the General Partner may cause the Partnership to establish and maintain
working capital and other reserves in such amounts as the General Partner, in
its sole and absolute discretion, deems appropriate and reasonable from time to
time.


 


E.             In exercising its authority under
this Agreement, the General Partner may, but shall be under no obligation to,
take into account the tax consequences to any Partner (including the General
Partner) of any action taken by it. The General Partner and the Partnership
shall not have liability to a Limited Partner under any circumstances as a
result of an income tax liability incurred by such Limited Partner as a result
of an action (or inaction) by the General Partner pursuant to its authority
under this Agreement so long as the action or inaction is taken in good faith.


 


Section
7.2            Certificate of Limited Partnership


 


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 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, the District of Columbia or any other
jurisdiction in which the Partnership may elect to do business or own property.
Subject to the terms of Section 8.5.A(4) 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. 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 to the extent
provided by applicable law) in the State of Delaware and any other state, or
the District of Columbia or other jurisdiction in which the Partnership may
elect to do business or own property.


 


Section
7.3            Restrictions on General Partner’s Authority


 


A.            The General Partner
may not take any action in contravention of this Agreement.  Specifically (but without limitation), the General
Partner may not:


 


(1)           take
any action that would make it impossible to carry on the ordinary business of
the Partnership, except as otherwise provided in this Agreement;


 


36

















 


(2)           possess
Partnership property, or assign any rights in specific Partnership property,
for other than a Partnership purpose except as otherwise provided in this
Agreement;


 


(3)           admit
a Person as a Partner, except as otherwise provided in this Agreement;


 


(4)           perform
any act that would subject a Limited Partner to liability as a general partner
in any jurisdiction or any other liability except as provided herein or under
the Act; or


 


(5)           enter
into any contract, mortgage, loan or other agreement that prohibits or
restricts, or has the effect of prohibiting or restricting, the ability of (a)
the General Partner or the Partnership from satisfying its obligations under
Section 8.6 hereof in full or (b) a Limited Partner from exercising its rights
under Section 8.6 hereof to effect a Redemption in full, except, in either
case, with the written consent of such Limited Partner affected by the
prohibition or restriction.


 


B.            The General Partner
shall not, without the prior Consent of the Limited Partners, undertake, on
behalf of the Partnership, any of the following actions or enter into any
transaction that would have the effect of such transactions:


 


(1)           except
as provided in Section 7.3.C hereof, amend, modify or terminate this Agreement
other than to reflect the admission, substitution, termination or withdrawal of
Partners pursuant to Article 11 or Article 12 hereof;


 


(2)           make
a general assignment for the benefit of creditors or appoint or acquiesce in
the appointment of a custodian, receiver or trustee for all or any part of the
assets of the Partnership;


 


(3)           institute any proceeding for bankruptcy on behalf
of the Partnership; or


 


(4)           subject
to the rights of Transfer provided in Section 11.2 hereof, approve or acquiesce
to the Transfer of the Partnership Interest of the General Partner, or admit
into the Partnership any additional or successor General Partners.


 


C.            Notwithstanding
Section 7.3.B hereof, the General Partner shall have the power, without the
Consent of the Limited Partners, to amend this Agreement as may be required to facilitate
or implement any of the following purposes:


 


(1)           to
add to the obligations of the General Partner or surrender any right or power
granted to the General Partner or any Affiliate of the General Partner for the
benefit of the Limited Partners;


 


(2)           to
reflect the admission, substitution or withdrawal of Partners or the
termination of the Partnership in accordance with this Agreement;


 


37

















 


(3)           to
reflect a change that is of an inconsequential nature and does not adversely
affect the Limited Partners in any material respect, or to cure any ambiguity,
correct or supplement any provision in this Agreement not inconsistent with law
or with other provisions, or make other changes with respect to matters arising
under this Agreement that will not be inconsistent with law or with the
provisions of this Agreement;


 


(4)           to
satisfy any requirements, conditions or guidelines contained in any order,
directive, opinion, ruling or regulation of a federal or state agency or
contained in federal or state law;


 


(5)           to
reflect such changes as are reasonably necessary for NPXL to maintain its
status as a REIT or to satisfy the REIT Requirements; and


 


(6)           to
modify the manner in which Capital Accounts are computed (but only to the
extent set forth in the definition of “Capital
Account” or contemplated by the
Code or the Regulations).


 


The General Partner will
provide notice to the Limited Partners when any action under this Section 7.3.C
is taken.


 


D.            Notwithstanding
Section 7.3.B and 7.3.C hereof, this Agreement shall not be amended, and no
action may be taken by the General Partner, without the Consent of each Partner
adversely affected, if such amendment or action would (i) convert a Limited
Partner Interest in the Partnership into a General Partner Interest (except as
a result of the General Partner acquiring such Partnership Interest), (ii)
modify the limited liability of a Limited Partner, (iii) alter rights of the
Partner to receive distributions pursuant to Article 5 or Section 13.2.A(4)
hereof, or the allocations specified in Article 6 hereof (except in any case as
permitted pursuant to Sections 4.4 and 7.3.C hereof), (iv) alter or modify the
Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections
8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend
this Section 7.3.D. Further, no amendment may alter the restrictions on the
General Partner’s authority set forth elsewhere in this Section 7.3 without the
Consent specified therein. Any such amendment or action consented to by any
Partner shall be effective as to that Partner, notwithstanding the absence of
such consent by any other Partner.


 


Section
7.4            Reimbursement of the General Partner


 


A.            The General Partner
shall not be compensated for its services as general partner of the Partnership
except as provided elsewhere in this Agreement.


 


B.            Subject to Sections
7.4.C and 15.11 hereof, the Partnership shall be liable, and shall reimburse
the General Partner on a monthly basis (or such other basis as the General
Partner may determine in its sole and absolute discretion), for all sums
expended in connection with the Partnership’s business. Any such reimbursements
shall be in addition to any reimbursement of the General Partner as a result of
indemnification pursuant to Section 7.7 hereof.


 


38

















 


C.            To the extent
practicable, Partnership expenses shall be billed directly to and paid by the
Partnership. Subject to Section 15.11 hereof, reimbursements to the General
Partner or any of its Affiliates by the Partnership shall be allowed, however,
for the actual cost to the General Partner or any of its Affiliates of
operating and other expenses of the Partnership, including, without limitation,
the actual cost of goods, materials and administrative services related to (i)
Partnership operations, (ii) Partnership accounting, (iii) communications with
Partners, (iv) legal services, (v) tax services, (vi) computer services, (vii)
risk management, (viii) mileage and travel expenses and (ix) such other
related operational and administrative expenses as are necessary for the
prudent organization and operation of the Partnership. “Actual cost of goods and materials” means
the actual cost to the General Partner or any of its Affiliates of goods and
materials used for or by the Partnership obtained from entities not affiliated
with the General Partner, and “actual cost of administrative services” means
the pro ratacost of personnel (as if such persons were employees of the
Partnership) providing administrative services to the Partnership.  The cost for such services to be reimbursed
to the General Partner or any Affiliate thereof shall be the lesser of the
General Partner’s or Affiliate’s actual cost, or the amount the Partnership
would be required to pay to independent parties for comparable administrative
services in the same geographic location. Notwithstanding the foregoing, the
Partnership shall not reimburse the General Partner or any Affiliate thereof
under this Section 7.4 for:


 


(1)           Any
rent, depreciation, utilities or other administrative items generally
constituting the General Partner’s or Affiliate’s overhead or


 


(2)           Any
of the salaries or fringe benefits incurred or allocated to any Controlling
Person of any General Partner or any Affiliate thereof.


 


Subject to Section 15.11
hereof, reimbursements to the General Partner or any of its Affiliates by the
Partnership pursuant to this Section 7.4 shall be treated as “guaranteed
payments” within the meaning of Code Section 707(c).


 


Section
7.5            Other Business of General Partner
and Its Affiliates


 


The General
Partner and any Affiliate of the General Partner (including, without
limitation, New Plan) may engage independently or with others in other business
ventures of every nature and description, including, without limitation, the
ownership of other properties and the making or management of other
investments. Nothing in this Agreement shall be deemed to prohibit the General
Partner or any Affiliate of the General Partner (including, without limitation,
New Plan) from dealing, or otherwise engaging in business with, Persons
transacting business with the Partnership, or from providing services related
to the purchase, sale, financing, management, development or operation of real
or personal property and receiving compensation therefor, not involving any
rebate or reciprocal arrangement that would have the effect of circumventing
any restriction set forth herein upon dealings with the General Partner or any Affiliate
of the General Partner. Neither the Partnership nor any Partner shall have any
right by virtue of this Agreement or the Partnership relationship created
hereby in or to such other ventures or activities or to the income or proceeds
derived therefrom, and the pursuit of such


 


39

















 


ventures, even if competitive with the business of the
Partnership, shall not be deemed wrongful or improper.


 


Section
7.6            Contracts with Affiliates


 


A.            Subject to Section 7.6.C, the
Partnership may lend or contribute funds to, borrow funds from, and enter into
any other transactions with (including, without limitation, the purchase or
sale of any property or the transfer of a tenant from one of the Partnership’s
properties to other properties in which New Plan or the General Partner has an
interest, directly or indirectly, without compensation to the Partnership) New
Plan, the General Partner, Subsidiaries of New Plan, the General Partner or the
Partnership, or other Persons in which it has an equity investment, 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.            The Partnership may transfer assets
to joint ventures, limited liability companies, partnerships, corporations,
business trusts or other business entities in which it is or thereby becomes a
participant upon such terms and subject to such conditions consistent with this
Agreement and applicable law as the General Partner, in its sole and absolute
discretion, believes to be advisable.


 


C.            Except as expressly permitted by
this Agreement, neither the General Partner nor any of its Affiliates shall
sell, transfer or convey any property to, purchase any property from, borrow
funds from (which shall not include a guarantee by the Partnership of
obligations of the General Partner or its Affiliates), or lend funds to, the
Partnership, directly or indirectly, except pursuant to transactions that are
determined by the General Partner in good faith to be fair and reasonable.


 


D.            The General Partner is expressly
authorized to enter into, in the name and on behalf of the Partnership, a right
of first opportunity arrangement and other conflict avoidance agreements with
various Affiliates of the Partnership and the General Partner, on such terms as
the General Partner, in its sole and absolute discretion, believes are
advisable.


 


Section 7.7            Indemnification


 


A.            To the fullest extent permitted by
applicable law, the Partnership shall indemnify each Indemnitee from and
against any and all losses, claims, damages, liabilities, joint or several,
expenses (including, without limitation, attorney’s 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, that relate to the operations of the
Partnership (“Action”) as
set forth in this Agreement in which such Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise; provided, however,
that the Partnership shall not indemnify an Indemnitee (i) for fraud, willful
misconduct, recklessness, gross negligence or a knowing violation of the law or
(ii) for any transaction for which such Indemnitee received an improper
personal benefit in violation or breach of any provision of this Agreement or
applicable law. Without limitation, the foregoing indemnity shall extend to any


 


40

















 


liability of any Indemnitee, pursuant to a loan
guaranty or otherwise, for any indebtedness of the Partnership or any
Subsidiary of the Partnership (including, without limitation, any indebtedness
which the Partnership or any Subsidiary of the Partnership has assumed or taken
subject to), and the General Partner is hereby authorized and empowered, on
behalf of the Partnership, to enter into one or more indemnity agreements
consistent with the provisions of this Section 7.7 in favor of any Indemnitee
having or potentially having liability for any such indebtedness. It is the
intention of this Section 7.7.A that the Partnership indemnify each Indemnitee
to the fullest extent permitted by law. 
The termination of any proceeding by judgment, order or settlement does
not create a presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 7.7.A. The termination of any
proceeding by conviction of an Indemnitee or upon a plea of nolo
contendere or its equivalent by an Indemnitee, or an entry of an
order of probation against an Indemnitee prior to judgment, does not create a
presumption that such Indemnitee acted in a manner contrary to that specified
in this Section 7.7.A with respect to the subject matter of such proceeding.
Any indemnification pursuant to this Section 7.7 shall be made only out of the
assets of the Partnership, and neither the General Partner nor any Limited
Partner shall have any obligation to contribute to the capital of the
Partnership or otherwise provide funds to enable the Partnership to fund its
obligations under this Section 7.7.


 


B.            To the fullest extent permitted by
law, expenses incurred by an Indemnitee who is a party to a proceeding or
otherwise subject to or the focus of or is involved in any Action shall be paid
or reimbursed by the Partnership as incurred by the Indemnitee in advance of
the final disposition of the Action upon receipt by the Partnership of (i) a
written affirmation by the Indemnitee of the Indemnitee’s good faith belief
that the standard of conduct necessary for indemnification by the Partnership
as authorized in this Section 7.7.A has been met, and (ii) a written
undertaking by or on behalf of the Indemnitee to repay the amount if it shall
ultimately be determined that the standard of conduct has not been met.


 


C.            The indemnification provided by this
Section 7.7 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 and shall inure to the
benefit of the heirs, successors, assigns and administrators of the Indemnitee
unless otherwise provided in a written agreement with such Indemnitee or in the
writing pursuant to which such Indemnitee is indemnified.


 


D.            The Partnership may, but shall not
be obligated to, purchase and maintain insurance, on behalf of any 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.


 


E.             Any liabilities which an Indemnitee
incurs as a result of acting on behalf of the Partnership or the General
Partner (whether as a fiduciary or otherwise) in connection with the operation,
administration or maintenance of an employee benefit plan or any related trust
or funding mechanism (whether such liabilities are in the form of excise taxes
assessed by the IRS,


 


41

















 


penalties assessed by the Department of Labor,
restitutions to such a plan or trust or other funding mechanism or to a
participant or beneficiary of such plan, trust or other funding mechanism, or
otherwise) shall be treated as liabilities or judgments or fines under this
Section 7.7, unless such liabilities arise as a result of (i) such Indemnitee’s
fraud, willful misconduct, recklessness, gross negligence or knowing violation
of the law, or (ii) any transaction in which such Indemnitee received an
improper personal benefit in violation or breach of any provision of this
Agreement or applicable law.


 


F.             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.


 


G.            An Indemnitee shall not be denied
indemnification in whole or in part under this Section 7.7 because the
Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms
of this Agreement.


 


H.            The provisions of this Section 7.7
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. 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 Partnership’s liability to any Indemnitee 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.


 


I.              It is the intent of the Partners
that any amounts paid by the Partnership to the General Partner pursuant to
this Section 7.7 shall be treated as “guaranteed payments” within the meaning
of Code Section 707(c).


 


Section 7.8            Liability
of the General Partner


 


A.            Notwithstanding anything to the
contrary set forth in this Agreement, neither the General Partner nor any of
its directors or officers shall be liable or accountable in damages or
otherwise to the Partnership, any Partners or any Assignees for losses
sustained, liabilities incurred or benefits not derived as a result of errors
in judgment or mistakes of fact or law or of any act or omission if the General
Partner or such director or officer acted in good faith.


 


B.            The Limited Partners expressly
acknowledge that the General Partner is acting for the benefit of the
Partnership, the Limited Partners and the General Partner’s shareholders
collectively and that the General Partner is under no obligation to give
priority to the separate interests of the Limited Partners or the General
Partner’s shareholders (including, without limitation, the tax consequences to
Limited Partners, Assignees or the General Partner’s shareholders) in deciding
whether to cause the Partnership to take (or decline to take) any actions.


 


C.            Subject to its obligations and
duties as General Partner set forth in Section 7.1.A hereof, the General
Partner may exercise any of the powers granted to it by this Agreement and


 


42

















 


perform any of the duties imposed upon it hereunder
either directly or by or through its employees or agents (subject to the
supervision and control of the General Partner). The General Partner shall not
be responsible for any misconduct or negligence on the part of any such agent
appointed by it in good faith.


 


D.            Any amendment, modification or
repeal of this Section 7.8 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 7.8 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.


 


E.             Notwithstanding anything herein to
the contrary, except for fraud, willful misconduct, recklessness or gross
negligence, or pursuant to any express indemnities given to the Partnership by
any Partner pursuant to any other written instrument, no Partner shall have any
personal liability whatsoever, to the Partnership or to the other Partner(s),
for the debts or liabilities of the Partnership or the Partnership’s
obligations hereunder, and the full recourse of the other Partner(s) shall be
limited to the interest of that Partner in the Partnership. To the fullest
extent permitted by law, no officer, director or shareholder of the General
Partner shall be liable to the Partnership for money damages except for (i)
active and deliberate dishonesty established by a non-appealable final judgment
or (ii) actual receipt of an improper benefit or profit in money, property or
services. Without limitation of the foregoing, and except for fraud, willful
misconduct, recklessness or gross negligence, or pursuant to any such express
indemnity, no property or assets of any Partner, other than its interest in the
Partnership, shall be subject  to
levy, execution or other enforcement procedures for the satisfaction of any
judgment (or other judicial process) in favor of any other Partner(s) and
arising out of, or in connection with, this Agreement.  This Agreement is executed by the officers
of the General Partner solely as officers of the same and not in their own
individual capacities.


 


F.             To the extent that, at law or in
equity, the General Partner has duties (including fiduciary duties) and
liabilities relating thereto to the Partnership or the Limited Partners, the
General Partner shall not be liable to the Partnership or to any other Partner
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of the General Partner otherwise existing at law or in equity, are agreed by
the Partners to replace such other duties and liabilities of such General
Partner.


 


Section 7.9            Other
Matters Concerning the General Partner


 


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


 


B.            The General Partner may consult with
legal counsel, accountants, appraisers, management consultants, investment
bankers, architects, engineers, environmental consultants


 


43

















 


and other consultants and advisers selected by it, and
any act taken or omitted to be taken in reliance upon the opinion of such
Persons as to matters that the General Partner reasonably believes to be within
such Person’s professional or expert competence shall be conclusively presumed
to have been done or omitted in good faith and in accordance with such opinion.


 


C.            The General Partner shall have the
right, in respect of any of its powers or obligations hereunder, to act through
any of its duly authorized officers and a duly appointed attorney or
attorneys-in-fact. Each such attorney shall, to the extent provided by the
General Partner in the power of attorney, have full power and authority to do
and perform all and every act and duty that is permitted or required to be done
by the General Partner hereunder.


 


D.            Notwithstanding any other provisions
of this Agreement or the Act, any action of the General Partner on behalf of
the. Partnership or any decision of New Plan to refrain from acting on behalf
of the Partnership, undertaken in the good faith belief that such action or
omission is necessary or advisable in order (i) to protect the ability of New
Plan to continue to qualify as a REIT, (ii) for New Plan otherwise to satisfy
the REIT Requirements or (iii) to avoid New Plan incurring any taxes under Code
Section 857 or Code Section 4981, is expressly authorized under this Agreement
and is deemed approved by all of the Limited Partners.


 


Section 7.10         Title
to Partnership Assets


 


Title to Partnership
assets, whether real, personal or mixed and whether tangible or intangible,
shall be deemed to be owned by the Partnership as an entity, and no Partner,
individually or collectively with other Partners or Persons, shall have any
ownership interest in such 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 assets for which
legal title is held in the name of the General Partner or any nominee or
Affiliate of the General Partner shall be held by the General Partner for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the General Partner shall
use its best efforts to cause beneficial and record title to such assets to be
vested in the Partnership as soon as reasonably practicable.  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.


 


Section 7.11         Reliance
by Third Parties


 


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 assets of the
Partnership and to enter into any contracts on behalf of the Partnership, and
take any and all actions on behalf of the Partnership, and such Person shall be
entitled to deal with the General Partner as if it were the Partnership’s sole
party in interest, both legally and beneficially. Each Limited Partner hereby
waives any and all defenses or other remedies that may be available against
such Person to contest, negate or disaffirm any action of the General Partner
in connection with any such dealing. In no event shall any Person


 


44

















 


dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this Agreement have
been complied with or to inquire into the necessity or expediency of any act or
action of the General Partner or its representatives. 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.


 


Section 7.12         Continuing
Obligations of New Plan


 


A.            New Plan unconditionally and irrevocably agrees to be
jointly and severally obligated (along with General Partner) to satisfy the
General Partner Obligations.  The obligations of New Plan hereunder are in
addition to, and independent of, the obligations of General Partner. A separate
action or actions may be brought and prosecuted against New Plan whether an
action is brought against General Partner or whether General Partner is joined
in any such action or actions. New Plan further agrees that it may be joined in
any action against General Partner in connection with the General Partner
Obligations and recovery may be had against New Plan in any such action. The
Partners acknowledge that New Plan’s obligations under this Section 7.12 are
primary obligations and not that of a guarantor or surety.


 


B.            New Plan hereby covenants that if
any Qualifying Party tenders Partnership Units for Redemption pursuant to the
Partnership Agreement and their respective Partner Schedules, and if the
General Partner of the Partnership, elects pursuant to Section 8.6B of the
Partnership Agreement and the provisions of the respective Partner Schedules,
to acquire some or all of the Tendered Units in exchange for REIT Shares, then
(i) New Plan will cause such REIT Shares to be issued as required to accomplish
the Redemption, and (ii) to the extent the Qualifying Party has been granted
registration rights with respect to any REIT Shares issued pursuant to Section
8.6B of the Partnership Agreement, such registration rights shall continue to
apply, without modification.


 


ARTICLE 8 

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS


 


Section 8.1            Limitation
of Liability


 


The Limited
Partners shall have no liability under this Agreement except as expressly
provided in this Agreement (including, without limitation, Section 10.4 hereof)
or under the Act.


 


45

















 


Section 8.2            Management
of Business


 


No Limited Partner
or Assignee (other than the General Partner, any of its Affiliates or any
officer, director, member, employee, partner, agent or trustee of the General
Partner, the Partnership or any of their Affiliates, in their capacity as such)
shall take part in the operations, management or control (within the meaning of
the Act) of the Partnership’s business, transact any business in the
Partnership’s name or have the power to sign documents for or otherwise bind
the Partnership. The transaction of any such business by the General Partner,
any of its Affiliates or any officer, director, member, employee, partner,
agent, representative, or trustee of the General Partner, the Partnership or
any of their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or Assignees
under this Agreement.


 


Section 8.3            Outside
Activities of Limited Partners


 


Subject to any
agreements entered into pursuant to Section 7.6.D hereof and any other
agreements entered into by a Limited Partner or its Affiliates with the General
Partner, the Partnership or a Subsidiary (including, without limitation, any
employment agreement), any Limited Partner and any Assignee, officer, director,
employee, agent, trustee, Affiliate or shareholder of any Limited Partner shall
be entitled to and may have business interests and engage in business
activities in addition to those relating to the Partnership, including business
interests and activities that are in direct or indirect competition with the
Partnership or that are enhanced by the activities of the Partnership. Neither
the Partnership nor any Partners shall  have
any rights by virtue of this Agreement in any business ventures of any Limited
Partner or Assignee. Subject to such agreements, 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 (other than the General Partner, to the extent expressly provided
herein), and such Person shall have no obligation pursuant to this Agreement,
subject to Section 7.6.D hereof and any other agreements entered into by a
Limited Partner or its Affiliates with the General Partner, the Partnership or
a Subsidiary, 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 that, if presented to the Partnership, any
Limited Partner or such other Person, could be taken by such Person.


 


Section 8.4            Return
of Capital


 


Except pursuant to
the rights of Redemption set forth in Section 8.6 hereof, no Limited Partner
shall be entitled to the withdrawal or return of its Capital Contribution,
except to the extent of distributions made pursuant to this Agreement or upon
termination of the Partnership as provided herein.  Except to the extent provided in Section 4.2 or Article 6 hereof
or 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 profits, losses or
distributions.


 


46

















 


Section 8.5            Rights
of Limited Partners Relating to the Partnership


 


A.            In addition to other rights provided
by this Agreement or by the Act, and except as limited by Section 8.5.C 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:


 


(1)           to
obtain a copy of (i) the most recent annual and quarterly reports filed with
the SEC by the General Partner pursuant to the Exchange Act and (ii) each
report or other written communication sent to the shareholders of the General
Partner;


 


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


 


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


 


(4)           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; and


 


(5)           to
obtain true and full information regarding the amount of cash and a description
and statement of any other property or services contributed by each Partner and
that each Partner has agreed to contribute in the future, and the date on which
each became a Partner.


 


B.            On written request, the Partnership
shall notify any Limited Partner that is a Qualifying Party of the then current
Adjustment Factor or any change made to the Adjustment Factor or to the REIT
Shares Amount, Preferred Return Per Unit or Specific Adjustment Factor
applicable to such Limited Partner.


 


C.            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 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 the General Partner or (ii) the
Partnership or the General Partner is required by law or by agreements with
unaffiliated third parties to keep confidential.


 


Section 8.6            Redemption
Rights of Qualifying Parties


 


A.            After the first Twelve-Month Period
(or such shorter or longer period as may be provided in a particular Partner
Schedule), a Qualifying Party, but no other Limited Partner or Assignee, shall
have the right (subject to the terms and conditions set forth herein) to
require the Partnership to redeem all or a portion of the Partnership Units
held by such Tendering Party (such Partnership Units being hereafter called “Tendered
Units”) in exchange (a “Redemption”)


 


47

















 


for the Cash Amount payable on the Specified
Redemption Date. Any Redemption shall be exercised pursuant to a Notice of
Redemption delivered to the General Partner by the Qualifying Party when
exercising the Redemption right (the “Tendering Party”). The Partnership’s
obligation to effect a Redemption, however, shall not arise or be binding
against the Partnership (i) until and unless there has been a Declination
and (ii) before the first Business Day following the Cut-Off Date. In the event
of a Redemption, the Cash Amount shall be delivered as a certified check
payable to the Tendering Party or, in the General Partner’s sole discretion, in
immediately available funds.


 


B.            Notwithstanding the provisions of
Section 8.6.A hereof, on or before the close of business on the Cut-Off Date,
the General Partner may, in its sole and absolute discretion but subject to the
Ownership Limit and the transfer restrictions and other limitations of the
Charter, elect to acquire some or all (such percentage being referred to as the
“Applicable
Percentage”) of the Tendered Units from the Tendering Party in
exchange for REIT Shares.  If the
General Partner so elects, on the Specified Redemption Date the Tendering Party
shall sell such number of the Tendered Units to the General Partner in exchange
for a number of REIT Shares equal to the product of the REIT Shares Amount and
the Applicable Percentage.  The
Tendering Party shall submit (i) such information, certification or affidavit
as the General Partner may reasonably require in connection with the
application of the Ownership Limit and other restrictions and limitations of
the Charter to any such acquisition and (ii) such written representations,
investment letters, legal opinions or other instruments necessary, in the
General Partner’s view, to effect compliance with the Securities Act. In the
event of a purchase of the Tendered Units pursuant to this Section 8.6.B, the
Tendering Party shall no longer have the right to cause the Partnership to
effect a Redemption of such Tendered Units, and, upon notice to the Tendering
Party by the General Partner, given on or before the close of business on the
Cut-Off Date, that the General Partner has elected to acquire some or all of
the Tendered Units pursuant to this Section 8.6.B, the obligation of the
Partnership to effect a Redemption of the Tendered Units as to which the
General Partner’s notice relates shall not accrue or arise. The product of the
Applicable Percentage and the REIT Shares Amount, if applicable, shall be
delivered by the General Partner as duly authorized, validly issued, fully paid
and nonassessable REIT Shares and, if applicable, Rights, free of any pledge,
lien, encumbrance or restriction, other than the Ownership Limit and other
restrictions provided in the Charter, the Bylaws of the General Partner, the
Securities Act and relevant state securities or “blue sky” laws.  Neither any Tendering Party whose Tendered
Units are acquired by the General Partner pursuant to this Section 8.6.B, any
other Partner, any Assignee nor any other interested Person shall have any
right to require or cause the General Partner to register, qualify or list any
REIT Shares owned or held by such Person, whether or not such REIT Shares are
issued pursuant to this Section 8.6.B, with the SEC, with any state securities
commissioner, department or agency, under the Securities Act or the Exchange
Act or with any stock exchange; provided, however, that this limitation
shall not be in derogation of any registration or similar rights granted
pursuant to any other written agreement between the General Partner and any
such Person.  Notwithstanding any delay
in such delivery, the Tendering Party shall be deemed the owner of such REIT
Shares and Rights for all purposes, including, without limitation, rights to
vote or consent, receive dividends, and exercise rights, as of the Specified
Redemption Date.  REIT Shares issued
upon an acquisition of the Tendered Units by the General Partner pursuant to
this Section 8.6.B may contain such legends regarding restrictions under the
Securities Act and applicable state securities laws as the


 


48

















 


General Partner in good faith determines to be
necessary or advisable in order to ensure compliance with such laws.


 


C.            Notwithstanding the
provisions of Sections 8.6.A and 8.6.B hereof, no Tendering Party (i) where the
Redemption would consist of less than all the Partnership Units held by
Partners other than the General Partner, shall be entitled to elect or effect a
Redemption to the extent that the aggregate Partnership Units of the Limited
Partners would be reduced, as a result of the Redemption (or the acquisition of
the Tendered Units by the General Partner pursuant to Section 8.6.B hereof), to
less than one percent (1%) of all Partnership Units outstanding immediately
prior to delivery of the Notice of Redemption and (ii) shall have any rights
under this Agreement that would otherwise be prohibited under the Charter.  To the extent that any attempted Redemption
or acquisition of the Tendered Units by the General Partner pursuant to Section
8.6.B hereof would be in violation of this Section 8.6.C, it shall be null and
void ab initio, and the Tendering
Party shall not acquire any rights or economic interests in REIT Shares
otherwise issuable by the General Partner under Section 8.6.B hereof.


 


D.            In the event that the
General Partner declines or fails to exercise its purchase rights pursuant to
Section 8.6.B hereof following receipt of a Notice of Redemption (a “Declination”):


 


(1)           The
General Partner shall give notice of such Declination to the Tendering Party on
or before the close of business on the Cut-Off Date. The failure of the General
Partner to give notice of such Declination by the close of business on the
Cut-Off Date shall itself constitute a Declination.


 


(2)           The
Partnership may elect to raise funds for the payment of the Cash Amount from
any sources (including, but not limited to, the sale of any Property and the
incurrence of additional Debt) available to the Partnership.


 


E.             Notwithstanding the
provisions of Section 8.6.B hereof, the General Partner shall not, under any
circumstances, elect to acquire Tendered Units in exchange for the REIT Shares
Amount if such exchange would be prohibited under the Charter.


 


F.             Notwithstanding
anything herein to the contrary (but subject to Section 8.6.C hereof), with
respect to any Redemption (or any tender of Partnership Units for Redemption if
the Tendered Units are acquired by the General Partner pursuant to Section
8.6.B hereof) pursuant to this Section 8.6:


 


(1)           All
Partnership Units acquired by the General Partner pursuant to Section 8.6.B
hereof shall automatically, and without further action required, be converted
into and deemed to be General Partner Interests comprised of the same number of
Partnership Units.


 


(2)           Subject
to the Ownership Limit, no Tendering Party may effect a Redemption for less
than five hundred (500) Partnership Units or, if such Tendering Party holds (as
a Limited Partner or, economically, as an Assignee) less than five hundred
(500) Partnership Units, all of the Partnership Units held by such Tendering
Party.


 


49

















 


(3)           Each
Tendering Party (a) may effect a Redemption only once in each Twelve-Month
Period (unless the restriction contained in this Section 8.6.F(3)(a) is waived
by the General Partner in its sole and absolute discretion) and (b) may not
effect a Redemption during the period after the Partnership Record Date with
respect to a distribution and before the record date established by the General
Partner for a distribution to its shareholders of some or all of its portion of
such Partnership distribution.


 


(4)           Without
the Consent of the General Partner (which may be given or withheld in its sole
and absolute discretion), no Tendering Party may effect a Redemption within
ninety (90) days following the closing of any prior registered public offering
of REIT Shares by the General Partner.


 


(5)           The
consummation of such Redemption (or an acquisition of Tendered Units by the
General Partner pursuant to Section 8.6.B hereof, as the case may be) shall be
subject to the expiration or termination of the applicable waiting period, if
any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.


 


(6)           The
Tendering Party shall continue to own (subject, in the case of an Assignee, to
the provisions of Section 11.5 hereof) all Partnership Units subject to any
Redemption, and be treated as a Limited Partner or an Assignee, as applicable,
with respect to such Partnership Units for all purposes of this Agreement,
until such Partnership Units are either paid for by the Partnership pursuant to
Section 8.6.A hereof or transferred to the General Partner and paid for, by the
issuance of the REIT Shares, pursuant to Section 8.6.B hereof on the Specified
Redemption Date. Until a Specified Redemption Date and an acquisition of the
Tendered Units by the General Partner pursuant to Section 8.6.B hereof, the
Tendering Party shall have no rights as a shareholder of the General Partner
with respect to the REIT Shares issuable in connection with such acquisition.


 


For purposes of
determining compliance with the restrictions set forth in this Section 8.6.F,
all Partnership Units beneficially owned by a Related Party of a Tendering
Party shall be considered to be owned or held by such Tendering Party.


 


G.            In connection with an
exercise of Redemption rights pursuant to this Section 8.6, the Tendering Party
shall submit the following to the General Partner, in addition to the Notice of
Redemption:


 


(1)           A
written affidavit, dated the same date as, and accompanying, the Notice of
Redemption, (a) disclosing the actual and constructive ownership, as determined
for purposes of Code Sections 856(a)(6), 856(h), 856(d)(2)(B) and 856(d)(5), of
REIT Shares by (i) such Tendering Party and (ii) any Related Party and (b)
representing that, after giving effect to the Redemption or an acquisition of
the Tendered Units by the General Partner pursuant to Section 8.6.B hereof,
neither the Tendering Party nor any Related Party will own REIT Shares in
excess of the Ownership Limit;


 


50

















 


(2)           A
written representation that neither the Tendering Party nor any Related Party
has any intention to acquire any additional REIT Shares prior to the closing of
the Redemption or an acquisition of the Tendered Units by the General Partner
pursuant to Section 8.6.B hereof on the Specified Redemption Date; and


 


(3)           An
undertaking to certify, at and as a condition to the closing of (i) the
Redemption or (ii) the acquisition of the Tendered Units by the General Partner
pursuant to Section 8.6.B hereof on the Specified Redemption Date, that either
(a) the actual and constructive ownership of REIT Shares by the Tendering Party
and any Related Party remain unchanged from that disclosed in the affidavit
required by Section 8.6.G(l) or (b) after giving effect to the Redemption or an
acquisition of the Tendered Units by the General Partner pursuant to Section
8.6.B hereof, neither the Tendering Party nor any Related Party shall own REIT
Shares in violation of the Ownership Limit.


 


Section 8.7            Partnership
Right to Call Limited Partner Interests


 


Notwithstanding
any other provision of this Agreement, on and after the date on which the
aggregate Partnership Units of the Limited Partners are less than five thousand
(5,000), the Partnership shall have the right, but not the obligation, from
time to time and at any time to redeem any and all outstanding Limited Partner
Interests by treating any Limited Partner as a Tendering Party who has
delivered a Notice of Redemption pursuant to Section 8.6 hereof for the amount
of Partnership Units to be specified by the General Partner, in its sole and
absolute discretion, by notice to such Limited Partner that the Partnership has
elected to exercise its rights under this Section 8.7. Such notice given by the
General Partner to a Limited Partner pursuant to this Section 8.7 shall be
treated as if it were a Notice of Redemption delivered to the General Partner
by such Limited Partner. For purposes of this Section 8.7, (a) any Limited
Partner (whether or not otherwise a Qualifying Party) may, in the General
Partner’s sole and absolute discretion, be treated as a Qualifying Party that
is a Tendering Party and (b) the provisions of Sections 8.6.C(i), 8.6.F(2),
8.6.F(3) and 8.6.F(4) hereof shall not apply, but the remainder of Section 8.6 hereof
shall apply with such adjustments as shall be necessary in the circumstances.


 


Section 8.8            Other
Redemptions


 


Notwithstanding
the provisions of Section 8.6 hereof, nothing in this Agreement shall preclude
the redemption of a Limited Partner Interest or Partnership Units by the
Partnership upon such terms and conditions as may be negotiated between the
Limited Partner or Assignee holding such Limited Partner Interest or
Partnership Units, on the one hand, and the General Partner, on the other hand,
in their sole and absolute discretion. Such a redemption may include, without
limitation, the payment of cash by the Partnership to the Limited Partner or
Assignee, in a lump sum or in installments, or the distribution in kind of
Partnership assets to such Limited Partner or Assignee (which assets may be
encumbered), including assets to be designated by the Limited Partner or
Assignee and acquired (with or without debt financing) by the Partnership. Upon
any such redemption, the Partnership Units and Limited Partner Interest
redeemed and the applicable Partner Schedule shall be cancelled and the Partner
Register shall be amended as appropriate to reflect such redemption. In
effecting any such redemption by negotiated agreement, none of the Partnership,
the General Partner, the Limited Partner and the Assignee, as


 


51

















 


the case may be, shall incur any liability to any
other Holder of Partnership Units or have any duty to offer the same or similar
terms for redemption of any other Limited Partner Interest or Partnership
Units.


 


ARTICLE 9 

BOOKS, RECORDS, ACCOUNTING AND REPORTS


 


Section 9.1            Records
and Accounting


 


A.            The General Partner shall keep or
cause to be kept at the principal office of the Partnership those records and
documents required to be maintained by the Act and other books and records
deemed by the General Partner to be appropriate with respect to the
Partnership’s business, including, without limitation, all books and records
necessary to provide to the Limited Partners any information, lists and copies
of documents required to be provided pursuant to Section 8.5.A or Section 9.3
hereof. Any records maintained by or on behalf of the Partnership in the
regular course of its business may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, micrographics or any other information
storage device, provided that the records so maintained are convertible into
clearly legible written form within a reasonable period of time.


 


B.            The books of the Partnership shall
be maintained, for financial and tax reporting purposes, on an accrual basis in
accordance with generally accepted accounting principles, or on such other
basis as the General Partner determines to be necessary or appropriate. To the
extent permitted by sound accounting practices and principles, the Partnership
and the General Partner may operate with integrated or consolidated accounting
records, operations and principles.


 


Section 9.2            Fiscal
Year


 


The Fiscal Year of
the Partnership shall be the calendar year.


 


Section
9.3            Reports


 


A.            As soon as practicable, but in no
event later than ninety (90) days after the close of each Fiscal Year, the
General Partner shall cause to be mailed to each Limited Partner, of record as
of the close of the Fiscal Year, an annual report containing financial
statements of the Partnership, or of New Plan or the General Partner if such
statements are prepared solely on a consolidated basis with New Plan or the
General Partner, for such Fiscal Year, presented in accordance with generally
accepted accounting principles. Such statements of the Partnership need not be
audited if such statements are consolidated with audited financial statements
of New Plan or the General Partner.


 


B.            As soon as practicable, but in no
event later than sixty (60) days after the close of each calendar quarter
(except the last calendar quarter of each year), the General Partner shall
cause to be mailed to each Limited Partner, of record as of the last day of the
calendar quarter, a report containing unaudited financial statements of the
Partnership, or of New Plan or the


 


52

















 


General Partner, if such statements are prepared
solely on a consolidated basis with New Plan or the General Partner, and such
other information as may be required by applicable law or regulation or as the
General Partner determines to be appropriate.


 


ARTICLE 10 

TAX MATTERS


 


Section 10.1         Preparation
of Tax Returns


 


The General
Partner shall arrange for the preparation and timely filing of all returns with
respect to 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. The Limited Partners shall
promptly provide the General Partner with such information relating to the Contributed
Properties, including tax basis and other relevant information, as may be
reasonably requested by the General Partner from time to time.


 


Section 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, including, but not limited to, the election to use the “recurring
item” method of accounting provided under Code Section 461(h) with
respect to property taxes imposed on the Partnership’s Properties; provided,
however, that, if the “recurring item” method of accounting is
elected with respect to such property taxes, the Partnership shall pay the
applicable property taxes prior to the date provided in Code Section 461(h) for
purposes of determining economic performance; provided, further, that the
General Partner shall make the election under Code Section 754 upon a Permitted
Transfer under Section 11.3.A or upon the death of any Limited Partner. The
General Partner shall have the right to seek to revoke any such election
(including, without limitation, any election under Code Sections 461(h) and
754) upon the General Partner’s determination in its sole and absolute
discretion that such revocation is in the best interests of the Partners; provided, however, that the General
Partner may seek to revoke the election under Code Section 754 only with
the Consent of a Majority in Interest of the Limited Partners.


 


Section 10.3         Tax
Matters Partner


 


A.            The General Partner shall be the “tax matters
partner” of the Partnership for federal income tax purposes. 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 in addition to any reimbursement pursuant to Section 7.4
hereof.  Nothing herein shall be
construed to restrict the Partnership from engaging an accounting firm to
assist the tax matters partner in discharging its duties hereunder, so long as
the compensation paid by the Partnership for such services is reasonable. At
the request of any Limited Partner, the General


 


53

















 


Partner agrees to consult with such Limited Partner
with respect to the preparation and filing of any returns and with respect to
any subsequent audit or litigation relating to such returns; provided,
however, that the filing of such returns shall be in the sole and
absolute discretion of the General Partner.


 


B.            The tax matters
partner is authorized, but not required:


 


(1)           to
enter into any settlement with the IRS 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 (i) who (within the time
prescribed pursuant to the Code and Regulations) files a statement with the IRS
providing that the tax matters partner
shall not have the authority to enter into a settlement agreement on
behalf of such Partner or (ii) who is a “notice
partner” (as defined in Code
Section 6231) or a member of a “notice
group” (as defined in Code
Section 6223(b)(2)).


 


(2)           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 United States Tax Court or
the United States Claims Court, or the filing of a complaint for refund with
the District Court of the United States for the district in which the
Partnership’s principal place of business is located. If the tax matters
partner determines that the United States District Court or the United States
Claims Court is the most appropriate forum in which to seek judicial review,
the tax matters partner shall notify each Person who was a Partner at any time
during the Partnership’s taxable year to which the final adjustment relates of
the approximate amount by which such Person’s tax liability would be increased
(based on such assumptions as the tax matters partner may in good faith make)
if the treatment of partnership items on such Person’s return was made
consistent with the treatment of partnership items on the Partnership’s return,
as adjusted by the final adjustment. Unless each such Person deposits with the
tax matters partner, for deposit with the IRS, the approximate amount of such
Person’s increased tax liability, together with a written agreement to make
additional deposits if required to satisfy the jurisdictional requirements of
the Court, within thirty (30) days after the tax matters partner’s notice to
such Person, the tax matters partner shall not seek judicial review in such
Court. Instead, the tax matters partner may, but shall not be obligated to,
file a petition in the United States Tax Court;


 


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


 


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


 


54

















 


(5)           to
enter into an agreement with the IRS to extend the period for assessing any tax
that is attributable to any item required to be taken into account by a Partner
for tax purposes, or an item affected by such item; and


 


(6)           to
take any other action on behalf of the Partners 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 7.7
hereof shall be fully applicable to the tax matters partner in its capacity as
such.


 


Section 10.4         Withholding


 


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 Code
Section 1441, Code Section 1442, Code Section 1445 or Code Section 1446. 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 that 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 Cash of the
Partnership that would, but for such payment, be distributed to the Limited
Partner. 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 10.4. In the event
that a Limited Partner fails to pay any amounts owed to the Partnership
pursuant to this Section 10.4 when due, 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 (including, without limitation, the right to receive distributions).
Any amounts payable by a Limited Partner hereunder shall bear interest at 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 (but not higher than the maximum lawful rate) from the date
such amount is due (i.e., fifteen
(15) days after demand) until such amount is paid in full. 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.


 


55

















 


ARTICLE 11 

TRANSFERS AND WITHDRAWALS


 


Section
11.1         Transfer


 


A.            No part of the interest of a Partner
shall be subject to the claims of any creditor, to any spouse for alimony or
support, or to legal process, and may not be voluntarily or involuntarily
alienated or encumbered except as may be specifically provided for in this
Agreement.


 


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


 


Section 11.2         Transfer
of General Partner’s Partnership Interest


 


A.            The General Partner may not Transfer
any of its General Partner Interest or withdraw from the Partnership except as
provided in Section 11.2.B hereof.  For
purposes of Article 11, “Transfer” includes, without limitation, any sale,
assignment, bequest, conveyance, devise, gift (outright or in trust), Pledge,
encumbrance, hypothecation, mortgage, exchange, transfer or other disposition
or act of alienation, whether voluntary or involuntary or by operation of law
of any equity interests or securities in General Partner, of any nature or
character whatsoever (including, but not limited to, rights of any nature or
character, to purchase and/or convert into equity interests or securities of
General Partner).  For purposes of
Section 11.2.B (including the exception permitted by clause (iv) of
Section 11.2.B), “Transfer” also shall include a change in the equity ownership
of New Plan, through a restructuring, recapitalization, reclassification or
otherwise, that results in the common stock of New Plan no longer being
publicly traded on any national securities exchange or The Nasdaq Stock
Market’s National Market System (a “Going Private Transaction”).


 


B.            The General Partner shall not
withdraw from the Partnership and shall not Transfer all or any portion of its
General Partner Interest in the Partnership (whether by sale, disposition,
statutory merger or consolidation, liquidation or otherwise) without the
Consent of a Majority of Remaining Partners, which Consent may be given or
withheld in their sole and absolute discretion; provided, that the General Partner may transfer its General
Partner Interest without the Consent of a Majority of Remaining Partners (i) to
an Affiliate of the General Partner so long as arrangements are made so that
the REIT Shares to be issued pursuant to Section 8.6B continue to be
shares of New Plan’s common stock, par value $.01 per share, and that such
common stock continues to be listed on any national securities exchange or The
Nasdaq Stock Market’s National Market System, (ii) in connection with a sale of
all or substantially all of New Plan’s assets, (iii) in connection with a
merger, consolidation or other business combination involving New Plan, or
(iv) in connection with any Going Private Transaction, but only if, in the
case of a sale of all or substantially all of New Plan’s assets, a merger,
consolidation or other business combination involving New Plan, or a Going
Private Transaction involving New Plan (a “Termination Transaction”), in
connection therewith all Limited Partners will have the right to


 


56

















 


elect to receive, for each Partnership Unit, an amount
of cash, securities, or other property equal to the product of the Adjustment
Factor (or Specific Adjustment Factor, as applicable) multiplied by the
greatest amount of cash, securities or other property paid to a holder of REIT
Shares in consideration of one such REIT Share in connection with such
Termination Transaction (the “Transaction Consideration”) at any time during
the period from and after the date on which the Termination Transaction is
consummated; provided that if, in connection with the Termination
Transaction, a purchase, tender or exchange offer shall have been made to and
accepted by the holders of more than fifty percent (50%) of the outstanding
REIT Shares, each holder of Partnership Units shall have the right to elect to
receive without any right of Consent set forth above in this subsection B, the
greatest amount of cash, securities, or other property which such holder would
have received had it exercised the Redemption right set forth in
Section 8.6.A and received REIT Shares in exchange for its Partnership
Units immediately prior to the expiration of such purchase, tender or exchange
offer and had thereupon accepted such purchase, tender or exchange offer.  Each Limited Partner who does not elect to
receive the Transaction Consideration as described above shall remain as a
Limited Partner in the Partnership. 
Upon any Transfer of such a Partnership Interest pursuant to the Consent
of such Partners and otherwise in accordance with the provisions of this
Section 11.2.B, the transferee shall become a successor General Partner for all
purposes herein, and shall be vested with the powers and rights of the transferor
General Partner, and shall be liable for all obligations and responsible for
all duties of the General Partner, once such transferee has executed such
instruments as may be necessary to effectuate such admission and to confirm the
agreement of such transferee to be bound by all the terms and provisions of
this Agreement with respect to the Partnership Interest so acquired. It is a
condition to any Transfer otherwise permitted hereunder that the transferee
assumes, by operation of law or express agreement, all of the obligations of
the transferor General Partner under this Agreement with respect to such
Transferred Partnership Interest, and such Transfer shall relieve the
transferor General Partner of its obligations under this Agreement without the
Consent of the Limited Partners.  In the
event that the General Partner withdraws from the Partnership, in violation of
this Agreement or otherwise, or otherwise dissolves or terminates, or upon the
bankruptcy of the General Partner, a Majority of Remaining Partners may elect
to continue the Partnership business by selecting a successor General Partner
in accordance with the Act.


 


Section 11.3         Limited
Partners’ Rights to Transfer


 


A.            General.  Prior to the end of the first Twelve-Month
Period, no Limited Partner shall Transfer all or any portion of its Partnership
Interest to any transferee without the consent of the General Partner, which
consent may be withheld in its sole and absolute discretion; provided, however,
that any Limited Partner may, at any time, without the consent of the General
Partner, (i) Transfer all or part of its Partnership Interest to any Designated
Party, any Family Member, any Controlled Entity or any Affiliate, provided that
the transferee is, in any such case, a Qualified Transferee, or (ii) pledge (a “Pledge”) all or any
portion of its Partnership Interest to a lending institution, that is not an
Affiliate of such Limited Partner, as collateral or security for a bona fide loan or other extension of
credit, and Transfer such pledged Partnership Interest to such lending
institution in connection with the exercise of remedies under such loan or
extension or credit (any Transfer or Pledge permitted by this proviso is
hereinafter referred to as a “Permitted Transfer”).  After such first Twelve-Month Period,
each Limited Partner, and each


 


57

















 


transferee of Partnership Units or Assignee pursuant
to a Permitted Transfer, shall have the right to Transfer all or any portion of
its Partnership Interest to any Person, subject to the provisions of Section
11.6 hereof and to satisfaction of each of the following conditions:


 


(1)           General
Partner Right of First Refusal.  The
transferring Partner shall give written notice of the proposed Transfer to the
General Partner, which notice shall state (i) the identity of the proposed
transferee and (ii) the amount and type of consideration proposed to be
received for the Transferred Partnership Units. The General Partner shall have
ten (10) Business Days upon which to give the Transferring Partner notice of
its election to acquire the Partnership Units on the proposed terms. If it so
elects, it shall purchase the Partnership Units on such terms within ten (10)
Business Days after giving notice of such election; provided, however, that such
closing may be deferred to the extent necessary to effect compliance with the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, and any
other applicable requirements of law. If it does not so elect, the Transferring
Partner may Transfer such Partnership Units to a third party, on terms no more
favorable to the transferee than the proposed terms, subject to the other
conditions of this Section 11.3.


 


(2)           Qualified
Transferee.  Any
Transfer of a Partnership Interest shall be made only to a single Qualified
Transferee; provided,
however, that, for such purposes, all Qualified Transferees that are
Affiliates, or that comprise investment accounts or funds managed by a single
Qualified Transferee and its Affiliates, shall be considered together to be a
single Qualified Transferee; provided, further, that
each Transfer meeting the minimum Transfer restriction of Section 11.3.A(3)
hereof may be to a separate Qualified Transferee.


 


(3)           Minimum
Transfer Restriction.  Any
Transferring Partner must Transfer not less than the lesser of (i) five
thousand (5,000) Partnership Units (or such lesser number as to which the
General Partner has consented in writing) or (ii) all of the remaining
Partnership Units owned by such Transferring Partner; provided, however, that, for
purposes of determining compliance with the foregoing restriction, all
Partnership Units owned by Affiliates of a Limited Partner shall be considered
to be owned by such Limited Partner.


 


(4)           Transferee
Agreement to Effect a Redemption.  Any
proposed transferee shall deliver to the General Partner a written agreement
reasonably satisfactory to the General Partner to the effect that the
transferee will, within six (6) months after consummation of the Partnership
Units Transfer, tender its Partnership Units for Redemption in accordance with
the terms of the Redemption rights provided in Section 8.6 hereof.


 


(5)           Exception
for Permitted Transfers. 
The conditions of Sections 11.3.A(1) through 11.3.A(4) hereof shall
not apply in the case of a Permitted Transfer.


 


It is a condition to any
Transfer otherwise permitted hereunder (whether or not such Transfer is a
Permitted Transfer or is effected during or after the first Twelve-Month
Period) that the


 


58

















 


transferee assume by
operation of law or express agreement all of the obligations of the transferor
Limited Partner under this Agreement with respect to such Transferred
Partnership Interest. Notwithstanding the foregoing, any transferee of any
Transferred Partnership Interest shall be subject to any and all ownership
limitations (including, without limitation, the Ownership Limit) contained in
the Charter that may limit or restrict such transferee’s ability to exercise its
Redemption rights, including, without limitation, the Ownership Limit. Any
transferee, whether or not admitted as a Substituted Limited Partner, shall
take subject to the obligations of the transferor hereunder. Unless admitted as
a Substituted Limited Partner, no transferee, whether by a voluntary Transfer,
by operation of law or otherwise, shall have any rights hereunder, other than
the rights of an Assignee as provided in Section 11.5 hereof.


 


B.            Incapacity.  If a Limited Partner is subject
to Incapacity, the executor, administrator, trustee, committee, guardian,
conservator or receiver of such Limited Partner’s estate shall have all 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 its interest in the Partnership. The Incapacity of a Limited Partner,
in and of itself, shall not dissolve or terminate the Partnership.


 


C.            Opinion of Counsel.  In connection with any
Transfer of a Limited Partner Interest, the General Partner shall have the
right to receive an opinion of counsel reasonably satisfactory to it to the
effect that the proposed Transfer may be effected without registration under
the Securities Act and will not otherwise violate any federal or state
securities laws or regulations applicable to the Partnership or the Partnership
Interests Transferred. If, in the opinion of such counsel, 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, the General Partner may
prohibit any Transfer otherwise permitted under this Section 11.3 by a Limited
Partner of Partnership Interests.


 


D.            Adverse Tax Consequences.  No Transfer by a Limited
Partner of its Partnership Interests (including any Redemption, any other
acquisition of Partnership Units by the General Partner or any acquisition of
Partnership Units by the Partnership) may be made to any person if (i) in the
opinion of legal counsel for the Partnership, it would result in the
Partnership being treated as an association taxable as a corporation, or (ii)
such Transfer is effectuated through an “established securities market” or a “secondary
market (or the substantial equivalent thereof)” within the meaning
of Code Section 7704.


 


Section 11.4         Substituted
Limited Partners


 


A.            No Limited Partner shall have the
right to substitute a transferee (including any Designated Party or other
transferees pursuant to Transfers permitted by Section 11.3 hereof) as a
Limited Partner in its place. A transferee (including, but not limited to, any
Designated Party) of the interest of a Limited Partner may be admitted as a
Substituted Limited Partner only with the Consent of the General Partner, which
Consent may be given or withheld by the General Partner in its sole and
absolute discretion (or in the reasonable discretion of the General Partner


 


59

















 


if the Partnership receives an opinion from counsel
for the Partnership that conditioning the admittance of a transferee as a
Substituted Limited Partner upon the sole and absolute discretion of the
General Partner is no longer necessary under federal or state tax laws or
regulations), provided, however, that such consent shall be
granted to transferees under pledges or other collateral transfers effected by
a Limited Partner to secure the repayment of a loan or other obligation;
provided, further, however, that each such pledgee shall agree in writing,
prior to admittance of such pledgee or purchaser from such pledgee as a
Substituted Limited Partner, to (i) subordinate its rights with respect to the
pledged interest to any and all rights granted by the pledging Limited Partner
to the Partnership, whether or not such rights constitute perfected security
interests in favor of the Partnership, including, without limitation, any rights
to withhold, restrict or offset distributions in respect of such pledged
interest under the terms of any agreement between the Partnership and the
pledging Limited Partner, and (ii) to defer the exercise of its rights as a
secured creditor to realize upon the collateral in the case of an event of
default until the expiration of any applicable “lock-up” period under the terms of
any agreement between the Partnership and the pledging Limited Partner. The
failure or refusal by the General Partner to permit a transferee of any such
interests to become a Substituted Limited Partner shall not give rise to any
cause of action against the Partnership or the General Partner, except where
such failure or refusal breaches the provisions hereinabove contained. Subject
to the foregoing, an Assignee shall not be admitted as a Substituted Limited
Partner until and unless it furnishes to the General Partner (i) evidence of
acceptance, in form and substance satisfactory to the General Partner, of all
the terms, conditions and applicable obligations of this Agreement, including,
without limitation, the power of attorney granted in Section 2.4 hereof, (ii) a
Partner Schedule executed by such Assignee and (iii) such other documents and
instruments as may be required or advisable, in the sole and absolute
discretion of the General Partner, to effect such Assignee’s admission as a
Substituted Limited Partner.


 


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


 


C.            Upon the admission of a Substituted
Limited Partner, the General Partner shall amend the Partner Register to
reflect the name and address of such Substituted Limited Partner and to
eliminate, if necessary, the name and address of the predecessor of such
Substituted Limited Partner. In addition, the Substituted Limited Partner and
the General Partner shall execute a Partner Schedule with respect to such
Substituted Limited Partner, which Partner Schedule shall supersede, to the
extent necessary, the Partner Schedule for the predecessor of such Substituted
Limited Partner.


 


Section 11.5         Assignees


 


If the General
Partner, in its sole and absolute discretion, does not consent to the admission
of any permitted transferee under Section 11.3 hereof as a Substituted Limited
Partner, as described in Section 11.4 hereof, such transferee shall be
considered an Assignee for purposes of this Agreement.  An Assignee shall be entitled to all the
rights of an assignee of a limited partnership interest under the Act,
including the right to receive distributions from the Partnership and the share
of Net Income, Net Losses and other items of income, gain, loss,


 


60

















 


deduction and credit of the Partnership attributable
to the Partnership Units assigned to such transferee and the rights to Transfer
the Partnership Units provided in this Article 11, but shall not be deemed to
be a holder of Partnership Units for any other purpose under this Agreement
(other than as expressly provided in Section 8.6 hereof with respect to a
Qualifying Party that becomes a Tendering Party), and shall not be entitled to
effect a Consent or vote with respect to such Partnership Units on any matter
presented to the Limited Partners for approval (such right to Consent or vote,
to the extent provided in this Agreement or under the Act, fully remaining with
the transferor Limited Partner). In the event that any such transferee desires
to make a further assignment of any such Partnership Units, such transferee
shall be subject to all 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.


 


Section 11.6         General
Provisions


 


A.            No Limited Partner may withdraw from
the Partnership other than as a result of a permitted Transfer of all of such
Limited Partner’s Partnership Units in accordance with this article 11, with
respect to which the transferee becomes a Substituted Limited Partner, or
pursuant to a Redemption (or acquisition by the General Partner) of all of its
Partnership Units under Section 8.6 hereof.


 


B.            Any Limited Partner who shall
Transfer all of its Partnership Units in a Transfer (i) permitted pursuant
to this Article 11 where such transferee was admitted as a Substituted
Limited Partner, (ii) pursuant to the exercise of its rights to effect a
Redemption of all of its Partnership Units under Section 8.6 hereof or (iii) to
the General Partner, whether or not pursuant to Section 8.6.B hereof, shall
cease to be a Limited Partner.


 


C.            If any Partnership Unit is
Transferred in compliance with the provisions of this Article 11, or is
redeemed by the Partnership or acquired by the General Partner pursuant to
Section 8.6 hereof, on any day other than the first day of a Fiscal Year, then
Net Income, Net Loss, each item thereof and all other items of income, gain,
loss, deduction and credit attributable to such Partnership Unit for such
Fiscal Year shall be allocated to the transferor Partner or the Tendering
Party, as the case may be, and, in the case of a Transfer or assignment other
than a Redemption, to the transferee Partner (including, without limitation,
the General Partner in the case of an acquisition of Partnership Units pursuant
to Section 8.6 hereof) or Assignee, by taking into account their varying
interests during the Fiscal Year in accordance with Code Section 706(d), using
the “daily proration” or “interim  closing of
the books” method or another permissible method selected by the
General Partner. Solely for purposes of making such allocations, the General
Partner, in its sole and absolute discretion, may determine that each of such
items for the calendar month in which a Transfer occurs shall be allocated to
the transferee Partner or Assignee and none of such items for the calendar
month in which a Transfer or a Redemption occurs shall be allocated to the
transferor Partner or the Tendering Party, as the case may be, if such Transfer
occurs on or before the fifteenth (15th) day of the month; otherwise such items
for such calendar month shall be allocated to the transferor. All distributions
of Available Cash attributable to such Partnership Unit with respect to which
the Partnership Record Date is before the date of such Transfer, assignment or
Redemption shall be made to the transferor Partner or the Tendering Party, as
the case may be, and, in the case of a Transfer other


 


61

















 


than a Redemption, all distributions of Available Cash
thereafter attributable to such Partnership Unit shall be made to the
transferee Partner or Assignee.


 


D.            In addition to any
other restrictions on Transfer herein contained, in no event may any Transfer
or assignment of a Partnership Interest by any Partner or Assignee (including
any Redemption, any acquisition of Partnership Units by the General Partner or
any other acquisition of Partnership Units by the Partnership) be made:


 


(a)           to
any person or entity who lacks the legal right, power or capacity to own a
Partnership Interest;


 


(b)           in
violation of applicable law;


 


(c)           in
the event that such Transfer would cause New Plan to cease to comply with the
REIT Requirements;


 


(d)           if
such Transfer would, in the opinion of counsel to the Partnership or the
General Partner, cause an increased tax liability to any other Partner or
Assignee as a result of the termination of the Partnership, in either case for
federal or state income tax purposes (except as a result of the Redemption (or
acquisition by the General Partner) of all Partnership Units held by all
Limited Partners);


 


(e)           if
such Transfer would, in the opinion of legal counsel to the Partnership, cause
the Partnership either (i) to cease to be classified as a partnership or (ii)
to be classified as a publicly traded partnership treated as a corporation, in
either case for federal income tax purposes (except as a result of the
Redemption (or acquisition by the General Partner) of all Partnership Units
held by all Limited Partners);


 


(f)            if
such Transfer would cause the Partnership to become, with respect to any
employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as
defined in ERISA Section 3(14)) or a “disqualified person” (as defined in Code
Section 4975(c));


 


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


 


(h)           if
such Transfer requires the registration of such Partnership Interest pursuant
to any applicable federal or state securities laws;


 


(i)            if
such Transfer causes the Partnership (as opposed to the General Partner) to
become a reporting company under the Exchange Act; or


 


(j)            if
such Transfer subjects the Partnership to regulation under the Investment
Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as
amended.


 


62

















 


ARTICLE 12 

ADMISSION OF PARTNERS


 


Section 12.1         Admission
of Successor General Partner


 


A successor to all
of the General Partner’s General Partner Interest pursuant to Section 11.2
hereof who is proposed to be admitted as a successor General Partner shall be
admitted to the Partnership as the General Partner, effective immediately prior
to such Transfer.  Any such successor
shall carry on the business of the Partnership without dissolution. In each
case, the admission shall be subject to the successor General Partner executing
and delivering to the Partnership an acceptance of all of the terms, conditions
and applicable obligations of this Agreement and such other documents or
instruments as may be required to effect the admission.


 


Section 12.2         Admission
of Additional Limited Partners


 


A.            A Person (other than an existing
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 furnishing to the General Partner (i) evidence of acceptance,
in form and substance satisfactory to the General Partner, of all of the terms,
conditions and applicable of this Agreement, including, without limitation, the
power of attorney granted in Section 2.4 hereof, (ii) a Partner Schedule
executed by such Person and (iii) such other documents or instruments as may be
required in the sole and absolute discretion of the General Partner in order to
effect such Person’s admission as an Additional Limited Partner.


 


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


 


C.            If any Additional Limited Partner is
admitted to the Partnership on any day other than the first day of a Fiscal
Year, then Net Income, Net Losses, each item thereof and all other items of
income, gain, loss, deduction and credit 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 Code Section 706(d), using
the “interim
closing of the books” method or another permissible method selected
by the General Partner.  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 the Partners and Assignees including such Additional
Limited Partner, in accordance with the principles described in
Section 11.6.C hereof. All distributions of Available Cash with respect to
which the Partnership Record Date is before the date of such admission shall be
trade solely to Partners and Assignees other than the Additional Limited
Partner, and all distributions of Available Cash thereafter shall be made to
all the Partners and Assignees including such Additional Limited Partner.


 


63

















 


Section 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 the Partner Register) and, if required by
law, shall prepare and file an amendment to the Certificate and may for this
purpose exercise the power of attorney granted pursuant to Section 2.4
hereof.


 


Section 12.4         Limit
on Number of Partners


 


No Person shall be
admitted to the Partnership as a Substituted Limited Partner or an Additional
Limited Partner if the effect of such admission (a) would be to cause the
Partnership to have more than five hundred (500) Partners, including as
Partners for this purpose those Persons indirectly owning an interest in the
Partnership through another partnership, a limited liability company, a
subchapter S corporation or a grantor trust, or otherwise cause the Partnership
to become a reporting company under the Exchange Act, or (b) would, in the
opinion of legal counsel to the Partnership, cause the Partnership either (i)
to cease to be classified as a partnership or (ii) to be classified as a
publicly traded partnership treated as a corporation, in either case for
federal income tax purposes (except as a result of the Redemption (or
acquisition by the General Partner) of all Partnership Units held by all
Limited Partners).


 


ARTICLE 13 

DISSOLUTION, LIQUIDATION AND TERMINATION


 


Section 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. Upon the withdrawal of the
General Partner, any successor General Partner shall continue the business of
the Partnership without dissolution. However, the Partnership shall dissolve,
and its affairs shall be wound up, upon the first to occur of any of the
following (each a “Liquidating Event”):


 


A.            the expiration of its term as
provided in Section 2.5 hereof;


 


B.            an event of withdrawal, as defined
in the Act (including, without limitation, bankruptcy), of the sole General
Partner unless, within ninety (90) days after the withdrawal, a Majority of
Remaining Partners agree in writing, in their sole and absolute discretion, 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, with the Consent of a Majority in
Interest of the Limited Partners;


 


64

















 


D.            entry of a decree of judicial
dissolution of the Partnership pursuant to the provisions of the Act;


 


E.             the occurrence of a Terminating
Capital Transaction; or


 


F.             the Redemption (or acquisition by
the General Partner) of all Partnership Units other than Partnership Units held
by the General Partner.


 


Section 13.1.B
shall be of no further force or effect on the date that the Partnership
receives an opinion from counsel for the Partnership that such provision is no
longer necessary for federal or state tax laws or regulations.


 


Section 13.2         Winding
Up


 


A.            Upon the occurrence of a Liquidating
Event, the Partnership shall continue solely for the purposes of winding up its
affairs in an orderly manner, liquidating its assets and satisfying the claims
of its creditors and Partners.  After
the occurrence of a Liquidating Event, no Partner shall take any action that is
inconsistent with, or not necessary to or appropriate for, the winding up of
the Partnership’s business and affairs. 
The General Partner (or, in the event that there is no remaining General
Partner or the General Partner has dissolved, become bankrupt within the
meaning of the Act or ceased to operate, any Person elected by a Majority in
Interest of the Limited Partners (the General Partner or such other Person
being referred to herein as the “Liquidator”))  shall be responsible for overseeing the winding up and
dissolution of the Partnership and shall take full account of the Partnership’s
liabilities and property, and the Partnership property shall be liquidated as
promptly as is consistent with obtaining the fair value thereof, and the
proceeds therefrom (which may, to the extent determined by the General Partner,
include shares of stock in the General Partner) shall be applied and
distributed in the following order:


 


(1)           First,
to the satisfaction of all of the Partnership’s debts and liabilities to
creditors other than the Partners and their Assignees (whether by payment or
the making of reasonable provision for payment thereof);


 


(2)           Second,
to the satisfaction of all of the Partnership’s debts and liabilities to the
General Partner (whether by payment or the making of reasonable provision for
payment thereof), including, but not limited to, amounts due as reimbursements
under Section 7.4 hereof;


 


(3)           Third,
to the satisfaction of all of the Partnership’s debts and liabilities to the
other Partners and any Assignees (whether by payment or the making of
reasonable provision for payment thereof); and


 


(4)           The
balance, if any, to the General Partner, the Limited Partners and any Assignees
in accordance with and in proportion to their positive Capital Account
balances, after giving effect to all contributions, distributions and
allocations for all periods.


 


65

















 


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


 


B.            Notwithstanding the provisions of
Section 13.2.A hereof that require liquidation of the assets of the
Partnership, but subject to the order of priorities set forth therein, if prior
to or upon dissolution of the Partnership the Liquidator determines that an
immediate sale of part or all of the Partnership’s assets would be impractical
or would cause undue loss to the Partners, the Liquidator may, in its sole and
absolute discretion, defer for a reasonable time the liquidation of any assets
except those necessary to satisfy liabilities of the Partnership (including to
those Partners as creditors) and/or distribute to the Partners, in lieu of
cash, as tenants in common and in accordance with the provisions of Section
13.2.A hereof, undivided interests in such Partnership assets as the Liquidator
deems not suitable for liquidation. Any such distributions in kind shall be
made only if, in the good faith judgment of the Liquidator, such distributions
in kind are in the best interest of the Partners, and shall be subject to such
conditions relating to the disposition and management of such properties as the
Liquidator deems reasonable and equitable and to any agreements governing the
operation of such properties at such time. The Liquidator shall determine the
fair market value of any property distributed in kind using such reasonable
method of valuation as it may adopt.


 


C.            In the event that the Partnership is
“liquidated” within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(g),
distributions shall be made pursuant to this Article 13 to the Partners and
Assignees that have positive Capital Accounts in compliance with Regulations
Section 1.704-1(b)(2)(ii)(b)(2)
to the extent of, and in proportion to, positive Capital Account balances. If
any Partner has a deficit balance in its 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. In
the sole and absolute discretion of the General Partner or the Liquidator, a pro rata portion of the distributions that
would otherwise be made to the Partners pursuant to this Article 13 may be
withheld or escrowed to provide a reasonable reserve for Partnership
liabilities (contingent or otherwise) and to reflect the unrealized portion of
any installment obligations owed to the Partnership, provided that such
withheld or escrowed amounts shall be distributed to the General Partner and
Limited Partners and Assignees in the manner and order of priority set forth in
Section 13.2.A hereof as soon as practicable.


 


Section 13.3         Deemed Distribution and Recontribution


 


Notwithstanding
any other provision of this Article 13, in the event that the Partnership is
liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), but no Liquidating Event has occurred,
the Partnership’s Property shall not be liquidated, the Partnership’s
liabilities shall not be paid or discharged and the Partnership’s affairs shall
not be wound up. Instead, for federal and state income tax purposes, the
Partnership shall be deemed to have made such transfers of assets, liabilities
and partnership interests as are provided in Regulations Section 1.708-1(b)(4);
provided, however, that nothing in this Section 13.4
shall be deemed to have


 


66

















 


constituted any Assignee as a Substituted Limited
Partner without compliance with the provisions of Section 11.4 hereof.


 


Section 13.4         Rights
of Limited Partners


 


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


 


Section 13.5         Notice
of Dissolution


 


In the event that
a Liquidating Event occurs or an event occurs that would, but for an election
or objection by one or more Partners pursuant to Section 13.1 hereof, 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 and, in
the General Partner’s sole and absolute discretion or as required by the Act,
to all other parties with whom the Partnership regularly conducts business (as
determined in the sole and absolute discretion of the General Partner), and the
General Partner may, or, if required by the Act, shall, publish notice thereof
in a newspaper of general circulation in each place in which the Partnership
regularly conduct business (as determined in the sole and absolute discretion
of the General Partner).


 


Section 13.6         Cancellation
of Certificate of Limited Partnership


 


Upon the
completion of the liquidation of the Partnership cash and property as provided
in Section 13.2 hereof, the Partnership shall be terminated, a certificate of
cancellation shall be filed with the State of Delaware, all qualifications of
the Partnership as a foreign limited partnership or association in
jurisdictions other than the State of Delaware shall be cancelled, and such
other actions as may be necessary to terminate the Partnership shall be taken.


 


Section 13.7         Reasonable
Time for Winding-Up


 


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


 


67

















 


ARTICLE 14 

PROCEDURES FOR ACTIONS AND CONSENTS 

OF PARTNERS; AMENDMENTS; MEETINGS


 


Section 14.1         Procedures
for Actions and Consents of Partners


 


The actions
requiring consent or approval of Limited Partners pursuant to this Agreement,
including Section 7.3 hereof, or otherwise pursuant to applicable law, are
subject to the procedures set forth in this Article 14.


 


Section 14.2         Amendments


 


Amendments to this
Agreement may be proposed by the General Partner or by a Majority in Interest
of the Limited Partners.  Following such
proposal, the General Partner shall submit any proposed amendment to the
Limited Partners. The General Partner shall seek the written consent of the
Limited Partners on the proposed amendment or shall call a meeting to vote
thereon and to transact any other business that the General Partner may deem
appropriate.  The affirmative vote or
consent, as applicable, of the General Partner and a Majority in Interest of
the Limited Partners is required for the approval of a proposed amendment. For
purposes of obtaining a written consent, the General Partner may require a
response within a reasonable specified time; but not less than fifteen (15)
days, and failure to respond in such time period shall constitute a consent
that is consistent with the General Partner’s recommendation with respect to
the proposal; provided, however, that an action shall become effective at
such time as requisite consents are received even if prior to such specified
time.


 


Section 14.3         Meetings
of the Partners


 


A.            Meetings of the Partners may be
called by the General Partner and shall be called upon the receipt by the
General Partner of a written request by a Majority in Interest of the Limited
Partners. The call 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. Whenever the vote or
Consent of Partners is permitted or required under this Agreement, such vote or
Consent may be given at a meeting of Partners or may be given in accordance
with the procedure prescribed in Section 14.3.B hereof.


 


B.            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 Partners holding
a majority of the Partnership Units (or such other percentage as is expressly
required by this Agreement for the action in question). Such consent may be in
one instrument or in several instruments, and shall have the same force and
effect as a vote of Partners holding a majority of the Partnership Units (or
such other percentage as is expressly required by this Agreement). 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 so certified.


 


68

















 


C.            Each Limited Partner may authorize
any Person or Persons to act for him by proxy on all matters in which a Limited
Partner is entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. Every proxy must be signed by the Limited
Partner or its attorney-in-fact. No proxy shall be valid after the expiration
of eleven (11) months from the date thereof unless otherwise provided in the
proxy (or there is receipt of a proxy authorizing a later date). Every proxy
shall be revocable at the pleasure of the Limited Partner executing it, such
revocation to be effective upon the Partnership’s receipt of written notice of
such revocation from the Limited Partner executing such proxy.


 


D.            Each meeting of 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 in its sole and absolute
discretion.  Without limitation,
meetings of Partners may be conducted in the same manner as meetings of the
General Partner’s shareholders and may be held at the same time as, and as part
of, the meetings of the General Partner’s shareholders.


 


ARTICLE 15 GENERAL PROVISIONS


 


Section 15.1         Addresses
and Notice


 


Any notice,
demand, request or report required or permitted to be given or made to a
Partner or Assignee under this Agreement shall be in writing and shall be
deemed given or made when delivered in person or when sent by fast class United
States mail or by other means of written communication (including by telecopy,
facsimile, or commercial courier service) (i) in the case of a Partner, to such
Partner at the address set forth in the Partner Register (or, if the Partner
Register has not been amended to reflect the address of any such Partner, the
Partner Schedule with respect to such Partner) or such other address of which
the Partner shall notify the General Partner in writing and (ii) in the case of
an Assignee, to the address of which such Assignee shall notify the General
Partner in writing.


 


Section 15.2         Titles  and  Captions


 


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


 


Section 15.3         Pronouns
and Plurals


 


Whenever the
context may require, any pronouns 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.


 


69

















 


Section 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.


 


Section 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.


 


Section
15.6         Waiver


 


A.            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.


 


B.            The restrictions, conditions and
other limitations on the rights and benefits of the Limited Partners contained
in this Agreement, and the representations, duties, covenants and other
requirements of performance or notice by the Limited Partners, are for the
benefit of the Partnership and, except for an obligation to pay money to the
Partnership, may be waived or relinquished by the General Partner, in its sole
and absolute discretion, on behalf of the Partnership in one or more instances
from time to time and at any time; provided,
however, that
any such waiver or relinquishment may not made if it would have the effect of
(i) creating liability for any other Limited Partner, (ii) causing the
Partnership to cease to qualify as a limited partnership, (iii) reducing the
amount of cash otherwise distributable to the Limited Partners, (iv) resulting
in the classification of the Partnership as an association or publicly traded
partnership taxable as a corporation or (v) violating the Securities Act, the
Exchange Act or any state “blue sky” or other securities laws; provided,
further, that any waiver relating to compliance with the Ownership
Limit or other restrictions in the Charter shall be made and shall be effective
only as provided in the Charter.


 


Section 15.7         Counterparts


 


This Agreement may
be executed in counterparts, all of which together shall constitute one
agreement binding on all 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 or upon execution of a Partner Schedule.


 


Section 15.8         Applicable
Law


 


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


 


70

















 


a conflict between any provision of this Agreement and
any non-mandatory provision of the Act, the provisions of this Agreement shall
control and take precedence.


 


Section 15.9         Entire
Agreement


 


This Agreement
contains all of the understandings and agreements between and among the
Partners with respect to the subject matter of this Agreement and the rights,
interests and obligations of the Partners with respect to the Partnership.


 


Section 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.


 


Section 15.11       Limitation
to Preserve REIT Status


 


Notwithstanding anything
else in this Agreement, to the extent that the amount paid, credited,
distributed or reimbursed by the Partnership to, for or with respect to any
REIT Partner or its officers, directors, employees or agents, whether as a
reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross
income to the REIT Partner for purposes of Code Section 856(c)(2) or Code
Section 856(c)(3), then, notwithstanding any other provision of this Agreement,
the amount of such REIT Payments, as selected by the General Partner in its
discretion from among items of potential distribution, reimbursement, fees,
expenses and indemnities, shall be reduced for any Fiscal Year so that the REIT
Payments, as so reduced, to, for or with respect to such REIT Partner shall not
exceed the lesser of:


 


(a)           an
amount equal to the excess, if any, of (i) four and nine-tenths percent (4.9%)
of the REIT Partner’s total gross income (but excluding the amount of any REIT
Payments) for the Fiscal Year that is described in subsections (A) through (H)
of Code Section 856(c)(2) over (ii) the amount of gross income (within the
meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources
other than those described in subsections (A) through (H) of Code Section
856(c)(2) (but not including the amount of any REIT Payments); or


 


(b)           an
amount equal to the excess, if any, of (i) twenty-four percent (24%) of the
REIT Partner’s total gross income (but excluding the amount of any REIT
Payments) for the Fiscal Year that is described in subsections (A) through (I)
of Code Section 856(c)(3) over (ii) the amount of gross income (within the
meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources
other than those described in subsections (A) through (I) of Code Section
856(c)(3) (but not including the amount of any REIT  Payments);


 


provided, however, that
REIT Payments in excess of the amounts set forth in clauses (a) and (b) above
may be made if the General Partner, as a condition precedent, obtains an
opinion of tax counsel that the receipt of such excess amounts shall not
adversely affect the REIT Partner’s


 


71

















 


ability to qualify as a
REIT. To the extent that REIT Payments may not be made in a Fiscal Year as a
consequence of the limitations set forth in this Section 15.11, such REIT
Payments shall carry over and shall be treated as arising in the following
Fiscal Year; provided, however, that such amounts shall not carry
over for more than five years, and, if not paid within such five year period,
shall expire; provided  further, that (i) as REIT Payments are
made, such payments shall be applied first to carry over amounts outstanding,
if any, and (ii) with respect to carry over amounts for more than one
Fiscal Year, such payments shall be applied to the earliest Fiscal Year
first.  The purpose of the limitations
contained in this Section 15.11 is to prevent any REIT Partner from failing to
qualify as a REIT under the Code by reason of such  REIT Partner’s share of items, including
distributions, reimbursements, fees, expenses or indemnities, receivable
directly or indirectly from the Partnership, and this Section 15.11 shall be
interpreted and applied to effectuate such  purpose.


 


Section 15.12       No
Partition


 


No Partner nor any
successor-in-interest to a Partner shall have the right while this Agreement
remains in effect to have any property of the Partnership partitioned, or to
file a complaint or institute to any proceeding at law or in equity to have such property of the Partnership
partitioned, and each Partner, on behalf of itself and its successors and
assigns hereby waives any such right. It is the intention of the Partners that
the rights of the parties hereto and their successors-in-interest to
Partnership property, as among themselves, shall be governed by the terms of
this Agreement, and that the rights of the Partners and their
successors-in-interest shall be subject to the limitations and restrictions as
set forth in this Agreement.


 


Section 15.13       No
Third-Party Rights Created Hereby


 


The provisions of
this Agreement are solely for the purpose of defining the interests of the
Partners, inter
se; and no other
person, firm or entity (i.e., a
party who is not a signatory hereto or a permitted successor to such signatory
hereto) shall have any right, power, title or interest by way of subrogation or
otherwise, in and to the rights, powers, title and provisions of this
Agreement.  No creditor or other third
party having dealings with the Partnership shall have the right to enforce the
right or obligation of any Partner to make Capital Contributions or loans to
the Partnership or to pursue any other right or remedy hereunder or at law or
in equity. None of the rights or obligations of the Partners herein set forth
to make Capital Contributions or loans to the Partnership shall be deemed an
asset of the Partnership for any purpose by any creditor or other third party;
nor may any such rights or obligations be sold, transferred or assigned by the
Partnership or pledged or encumbered by the Partnership to secure any debt or
other obligation of the Partnership or any of the Partners.


 


72

















 


IN WITNESS
WHEREOF, the General Partner and the Limited Partners have adopted this
Agreement as of the date first written above.


 


 


	
   

  	
  GENERAL
  PARTNER:

  
	
   

  	
   

  
	
   

  	
  NEW PLAN DRP TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven F. Siegel

  	
   

  
	
   

  	
  Name:

  	
  Steven F. Siegel

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIMITED PARTNERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Steven F. Siegel

  	
   

  
	
   

  	
   

  	
  Steven F. Siegel, Executive Vice President and General

  
	
   

  	
   

  	
  Counsel, New Plan DRP Trust, General Partner

  
	
   

  	
   

  	
  Attorney-in-Fact for the Limited Partners

  
						



 


73

















 


EXHIBIT A 

NOTICE OF REDEMPTION


 

















 


NOTICE OF REDEMPTION


 


To:                              New
Plan DRP Trust, c/o New Plan Excel Realty Trust, Inc.

1120 Avenue of the Americas, 12th Floor

New York, NY  10036


 


The undersigned Limited
Partner or Assignee hereby irrevocably tenders for Redemption
                      
Partnership Units in Excel Realty Partners, L.P. in accordance with the terms
of the Amended and Restated Agreement of Limited Partnership of Excel Realty
Partners, L.P., dated as of
                            ,
2003, as amended (the “Agreement”), and the Redemption rights
referred to therein.  The undersigned
Limited Partner or Assignee:


 


(a)           undertakes (i) to surrender such
Partnership Units and any certificate therefor at the closing of the Redemption
and (ii) to furnish to the General Partner, prior to the Specified Redemption Date,
the documentation, instruments and information required under
Section 8.6.G of the Agreement;


 


(b)           directs
that the certified check representing the Cash Amount deliverable upon the
closing of such Redemption be delivered to the address specified below;


 


(c)           represents,
warrants, certifies and agrees that:


 


(1)
the undersigned Limited Partner or Assignee is a Qualifying Party,


 


(2) the undersigned Limited Partner or Assignee has,
and at the closing of the Redemption will have, good, marketable and unencumbered
title to such Partnership Units, free and clear of the rights or interests of
any other person or entity,


 


(3) the undersigned Limited Partner or Assignee has,
and at the closing of the Redemption will have, the full right, power and
authority to tender and surrender such Partnership Units as provided herein,
and


 


(4) the undersigned Limited Partner or Assignee has
obtained the consent or approval of all persons and entities, if any, having
the right to consent to or approve such tender and surrender; and


 


(d)           acknowledges
that he will continue to own such Partnership Units until and unless either (1)
such Partnership Units are acquired by the General


 

















 


Partner pursuant
to Section 8.6.B of the Agreement or (2) such Redemption transaction closes.


 


All capitalized terms
used herein and not otherwise defined shall have the same meaning ascribed to
them respectively in the Agreement.


 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name of Limited Partner

  or Assignee:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Signature of Limited
  Partner or Assignee)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)

  	
  (State)    (Zip Code)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guaranteed
  by:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Issue Check Payable to:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Please insert social
  security or identifying number:

  	
   

  



 


2

















 


TABLE OF CONTENTS


 


 


	
  ARTICLE 1  DEFINED TERMS

  
	
  ARTICLE 2  ORGANIZATIONAL MATTERS

  
	
  Section 2.1

  	
  Organization

  
	
  Section 2.2

  	
  Name

  
	
  Section 2.3

  	
  Registered Office and Agent; Principal
  Office

  
	
  Section 2.4

  	
  Power of Attorney

  
	
  Section 2.5

  	
  Term

  
	
  ARTICLE 3 
  PURPOSE

  
	
  Section 3.1

  	
  Purpose and Business

  
	
  Section 3.2

  	
  Powers

  
	
  Section 3.3

  	
  Partnership Only for Purposes Specified

  
	
  Section 3.4

  	
  Representations and Warranties by the
  Limited Partners

  
	
  ARTICLE 4  CAPITAL CONTRIBUTIONS

  
	
  Section 4.1

  	
  Capital Contributions of the Initial
  Partners

  
	
  Section 4.2

  	
  Additional Limited Partners

  
	
  Section 4.3

  	
  Loans by Third Parties

  
	
  Section 4.4

  	
  Additional Funding and Capital Contributions

  
	
  Section 4.5

  	
  No Interest; No Return

  
	
  ARTICLE 5 
  DISTRIBUTIONS

  
	
  Section 5.1

  	
  Requirement and
  Characterization of Distributions

  
	
  Section 5.2

  	
  Distributions in Kind

  
	
  Section 5.3

  	
  Amounts Withheld

  
	
  Section 5.4

  	
  Distributions Upon Liquidation

  
	
  Section 5.5

  	
  Restricted Distributions

  
	
  ARTICLE 6  ALLOCATIONS

  
	
  Section 6.1

  	
  Timing and Amount of Allocations of Net
  Income and Net Loss

  
	
  Section 6.2

  	
  General Allocations

  
	
  Section 6.3

  	
  Additional Allocation Provisions

  
	
  Section 6.4

  	
  Tax Allocations

  
	
  Section 6.5

  	
  Other Provisions

  
	
  ARTICLE
  7  MANAGEMENT AND OPERATIONS OF
  BUSINESS

  
	
  Section 7.1

  	
  Management

  
	
  Section 7.2

  	
  Certificate of Limited Partnership

  
	
  Section 7.3

  	
  Restrictions on General
  Partner’s Authority

  
	
  Section 7.4

  	
  Reimbursement of the General Partner

  
	
  Section 7.5

  	
  Other Business of General Partner and Its
  Affiliates

  
	
  Section 7.6

  	
  Contracts with
  Affiliates

  
	
  Section 7.7

  	
  Indemnification

  
	
  Section
  7.8

  	
  Liability
  of the General Partner

  
	
  Section
  7.9

  	
  Other
  Matters Concerning the General Partner

  



 


i

















 


	
  Section 7.10

  	
  Title to
  Partnership Assets

  
	
  Section 7.11

  	
  Reliance by
  Third Parties

  
	
  Section
  7.12

  	
  Continuing
  Obligations of New Plan

  
	
  ARTICLE 8  RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

  
	
  Section 8.1

  	
  Limitation of
  Liability

  
	
  Section 8.2

  	
  Management of
  Business

  
	
  Section
  8.3

  	
  Outside
  Activities of Limited Partners

  
	
  Section 8.4

  	
  Return of Capital

  
	
  Section
  8.5

  	
  Rights
  of Limited Partners Relating to the Partnership

  
	
  Section
  8.6

  	
  Redemption
  Rights of Qualifying Parties

  
	
  Section
  8.7

  	
  Partnership
  Right to Call Limited Partner Interests

  
	
  Section 8.8

  	
  Other Redemptions

  
	
  ARTICLE 9  BOOKS, RECORDS, ACCOUNTING AND REPORTS

  
	
  Section 9.1

  	
  Records and
  Accounting

  
	
  Section
  9.2

  	
  Fiscal
  Year

  
	
  Section
  9.3

  	
  Reports

  
	
  ARTICLE 10  TAX MATTERS

  
	
  Section 10.1

  	
  Preparation of
  Tax Returns

  
	
  Section 10.2

  	
  Tax Elections

  
	
  Section 10.3

  	
  Tax Matters Partner

  
	
  Section
  10.4

  	
  Withholding

  
	
  ARTICLE 11  TRANSFERS AND WITHDRAWALS

  
	
  Section
  11.1

  	
  Transfer

  
	
  Section
  11.2

  	
  Transfer
  of General Partner’s Partnership Interest

  
	
  Section
  11.3

  	
  Limited
  Partners’ Rights to Transfer

  
	
  Section 11.4

  	
  Substituted
  Limited Partners

  
	
  Section
  11.5

  	
  Assignees

  
	
  Section 11.6

  	
  General Provisions

  
	
  ARTICLE 12  ADMISSION OF PARTNERS

  
	
  Section
  12.1

  	
  Admission
  of Successor General Partner

  
	
  Section
  12.2

  	
  Admission
  of Additional Limited Partners

  
	
  Section
  12.3

  	
  Amendment
  of Agreement and Certificate of Limited Partnership

  
	
  Section 12.4

  	
  Limit on
  Number of Partners

  
	
  ARTICLE 13  DISSOLUTION, LIQUIDATION AND TERMINATION

  
	
  Section
  13.1

  	
  Dissolution

  
	
  Section
  13.2

  	
  Winding
  Up

  
	
  Section
  13.3

  	
  Deemed
  Distribution and Recontribution

  
	
  Section 13.4

  	
  Rights of
  Limited Partners

  
	
  Section 13.5

  	
  Notice of
  Dissolution

  
	
  Section
  13.6

  	
  Cancellation
  of Certificate of Limited Partnership

  
	
  Section
  13.7

  	
  Reasonable
  Time for Winding-Up

  
	
  ARTICLE 14  PROCEDURES FOR ACTIONS AND CONSENTS  OF PARTNERS; AMENDMENTS; MEETINGS

  
	
  Section
  14.1

  	
  Procedures
  for Actions and Consents of Partners

  
	
  Section
  14.2

  	
  Amendments

  



 


ii

















 


	
  Section 14.3

  	
  Meetings of the
  Partners

  
	
  ARTICLE 15 GENERAL
  PROVISIONS

  
	
  Section 15.1

  	
  Addresses and Notice

  
	
  Section 15.2

  	
  Titles and Captions

  
	
  Section 15.3

  	
  Pronouns and Plurals

  
	
  Section 15.4

  	
  Further Action

  
	
  Section 15.5

  	
  Binding Effect

  
	
  Section
  15.6

  	
  Waiver

  
	
  Section 15.7

  	
  Counterparts

  
	
  Section 15.8

  	
  Applicable Law

  
	
  Section 15.9

  	
  Entire Agreement

  
	
  Section 15.10

  	
  Invalidity of
  Provisions

  
	
  Section
  15.11

  	
  Limitation
  to Preserve REIT Status

  
	
  Section 15.12

  	
  No Partition

  
	
  Section
  15.13

  	
  No
  Third-Party Rights Created Hereby

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXHIBIT
  A  Notice of Redemption

  
			



 


iii