Exhibit 10.33


 


LIMITED PARTNERSHIP AGREEMENT


 


OF


 


AMERICOLD REALTY OPERATING PARTNERSHIP, LP


 


A DELAWARE LIMITED PARTNERSHIP


 


April     , 2010


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
  DEFINED TERMS

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  PARTNERSHIP FORMATION AND
  IDENTIFICATION

  	
   

  	
  8

  
	
  2.1

  	
   

  	
  Formation

  	
   

  	
  8

  
	
  2.2

  	
   

  	
  Name, Office and
  Registered Agent

  	
   

  	
  8

  
	
  2.3

  	
   

  	
  Partners

  	
   

  	
  9

  
	
  2.4

  	
   

  	
  Term and Dissolution

  	
   

  	
  9

  
	
  2.5

  	
   

  	
  Filing of Certificate and
  Perfection of Limited Partnership

  	
   

  	
  10

  
	
  2.6

  	
   

  	
  Certificates Describing
  Partnership Units

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  BUSINESS OF THE
  PARTNERSHIP

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  CAPITAL CONTRIBUTIONS AND
  ACCOUNTS

  	
   

  	
  11

  
	
  4.1

  	
   

  	
  Capital Contributions

  	
   

  	
  11

  
	
  4.2

  	
   

  	
  Additional Capital
  Contributions and Issuances of Additional Partnership Interests

  	
   

  	
  11

  
	
  4.3

  	
   

  	
  Additional Funding

  	
   

  	
  13

  
	
  4.4

  	
   

  	
  Capital Accounts

  	
   

  	
  14

  
	
  4.5

  	
   

  	
  Percentage Interests

  	
   

  	
  14

  
	
  4.6

  	
   

  	
  No Interest on
  Contributions

  	
   

  	
  14

  
	
  4.7

  	
   

  	
  Return of Capital
  Contributions

  	
   

  	
  14

  
	
  4.8

  	
   

  	
  No Third Party Beneficiary

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  PROFITS AND LOSSES;
  DISTRIBUTIONS

  	
   

  	
  15

  
	
  5.1

  	
   

  	
  Allocation of Profit and
  Loss

  	
   

  	
  15

  
	
  5.2

  	
   

  	
  Distribution of Cash

  	
   

  	
  18

  
	
  5.3

  	
   

  	
  REIT Distribution
  Requirements

  	
   

  	
  19

  
	
  5.4

  	
   

  	
  No Right to Distributions
  in Kind

  	
   

  	
  19

  
	
  5.5

  	
   

  	
  Limitations on Return of
  Capital Contributions

  	
   

  	
  19

  
	
  5.6

  	
   

  	
  Distributions upon
  Liquidation

  	
   

  	
  19

  
	
  5.7

  	
   

  	
  Substantial Economic Effect

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  RIGHTS, OBLIGATIONS AND
  POWERS OF THE GENERAL PARTNER

  	
   

  	
  20

  
	
  6.1

  	
   

  	
  Management of the
  Partnership

  	
   

  	
  20

  
	
  6.2

  	
   

  	
  Delegation of Authority

  	
   

  	
  23

  
	
  6.3

  	
   

  	
  Indemnification and
  Exculpation of Indemnitees

  	
   

  	
  23

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.4

  	
   

  	
  Liability of the General
  Partner

  	
   

  	
  25

  
	
  6.5

  	
   

  	
  Reimbursement of General
  Partner

  	
   

  	
  26

  
	
  6.6

  	
   

  	
  Outside Activities

  	
   

  	
  26

  
	
  6.7

  	
   

  	
  Employment or Retention of
  Affiliates

  	
   

  	
  27

  
	
  6.8

  	
   

  	
  General Partner
  Participation

  	
   

  	
  27

  
	
  6.9

  	
   

  	
  Title to Partnership
  Assets

  	
   

  	
  28

  
	
  6.10

  	
   

  	
  Miscellaneous

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
  CHANGES IN GENERAL PARTNER

  	
   

  	
  28

  
	
  7.1

  	
   

  	
  Transfer of the General
  Partner’s Partnership Interest

  	
   

  	
  28

  
	
  7.2

  	
   

  	
  Admission of a Substitute
  or Additional General Partner

  	
   

  	
  30

  
	
  7.3

  	
   

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

  	
   

  	
  31

  
	
  7.4

  	
   

  	
  Removal of a General
  Partner

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  RIGHTS AND OBLIGATIONS OF
  THE LIMITED PARTNERS

  	
   

  	
  33

  
	
  8.1

  	
   

  	
  Management of the
  Partnership

  	
   

  	
  33

  
	
  8.2

  	
   

  	
  Power of Attorney

  	
   

  	
  33

  
	
  8.3

  	
   

  	
  Limitation on Liability of
  Limited Partners

  	
   

  	
  33

  
	
  8.4

  	
   

  	
  Exchange Right

  	
   

  	
  33

  
	
  8.5

  	
   

  	
  Registration

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
  TRANSFERS OF LIMITED
  PARTNERSHIP INTERESTS

  	
   

  	
  37

  
	
  9.1

  	
   

  	
  Purchase for Investment

  	
   

  	
  37

  
	
  9.2

  	
   

  	
  Restrictions on Transfer
  of Limited Partnership Interests

  	
   

  	
  37

  
	
  9.3

  	
   

  	
  Admission of Substitute
  Limited Partner

  	
   

  	
  39

  
	
  9.4

  	
   

  	
  Rights of Assignees of
  Partnership Interests

  	
   

  	
  40

  
	
  9.5

  	
   

  	
  Effect of Bankruptcy,
  Death, Incompetence or Termination of a Limited Partner

  	
   

  	
  40

  
	
  9.6

  	
   

  	
  Joint Ownership of
  Interests

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  	
  BOOKS AND RECORDS;
  ACCOUNTING; TAX MATTERS

  	
   

  	
  41

  
	
  10.1

  	
   

  	
  Books and Records

  	
   

  	
  41

  
	
  10.2

  	
   

  	
  Custody of Partnership
  Funds; Bank Accounts

  	
   

  	
  41

  
	
  10.3

  	
   

  	
  Fiscal and Taxable Year

  	
   

  	
  42

  
	
  10.4

  	
   

  	
  Annual Tax Information and
  Report

  	
   

  	
  42

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.5

  	
   

  	
  Tax Matters Partner; Tax
  Elections; Special Basis Adjustments

  	
   

  	
  42

  
	
  10.6

  	
   

  	
  Reports to Limited
  Partners

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  	
  AMENDMENT OF AGREEMENT;
  MERGER

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  	
  GENERAL PROVISIONS

  	
   

  	
  44

  
	
  12.1

  	
   

  	
  Notices

  	
   

  	
  44

  
	
  12.2

  	
   

  	
  Survival of Rights

  	
   

  	
  44

  
	
  12.3

  	
   

  	
  Additional Documents

  	
   

  	
  44

  
	
  12.4

  	
   

  	
  Severability

  	
   

  	
  44

  
	
  12.5

  	
   

  	
  Entire Agreement

  	
   

  	
  44

  
	
  12.6

  	
   

  	
  Pronouns and Plurals

  	
   

  	
  45

  
	
  12.7

  	
   

  	
  Headings

  	
   

  	
  45

  
	
  12.8

  	
   

  	
  Counterparts

  	
   

  	
  45

  
	
  12.9

  	
   

  	
  Governing Law

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  A –

  	
   

  	
  Partners,
  Capital Contributions and Percentage Interests

  	
   

  	
   

  
	
  EXHIBIT
  B –

  	
   

  	
  Notice
  of Exercise of Exchange Right

  	
   

  	
   

  



 


iii














 


LIMITED
PARTNERSHIP AGREEMENT


 


OF


 


AMERICOLD REALTY OPERATING PARTNERSHIP, LP


 


RECITALS


 


This
Agreement of Limited Partnership (this “Agreement”) is entered into as
of April      , 2010, between Americold Realty
Trust, a Maryland real estate investment trust (“ART”) (the “General
Partner”), and the Limited Partner set forth on Exhibit A
hereto.  Capitalized terms used herein
but not otherwise defined shall have the meanings given them in Article 1.


 


AGREEMENT


 


WHEREAS,
the General Partner has qualified and intends to qualify as a real estate
investment trust under the Internal Revenue Code of 1986, as amended;


 


WHEREAS,
Americold Realty Operating Partnership, LP (the “Partnership”), was
formed on April      , 2010, as a limited
partnership under the laws of the State of Delaware, pursuant to a Certificate
of Limited Partnership filed with the Office of the Secretary of State of the
State of Delaware on April      , 2010;


 


WHEREAS,
the General Partner desires to conduct its current and future business through
the Partnership;


 


WHEREAS,
in furtherance of the foregoing, the General Partner desires to contribute
certain assets to the Partnership from time to time;


 


WHEREAS,
in exchange for the General Partner’s contribution of assets, the parties
desire that the Partnership issue Partnership Units to the General Partner in
accordance with the terms of this Agreement;


 


WHEREAS,
in furtherance of the Partnership’s business, the Partnership will acquire
Properties and other assets from time to time by means of the contribution of
such Properties or other assets to the Partnership by the owners thereof in
exchange for Partnership Units;


 


WHEREAS,
the parties hereto wish to establish herein their respective rights and
obligations in connection with all of the foregoing and certain other matters;


 


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


 


1

















 


ARTICLE 1


 


DEFINED TERMS


 


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


 


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


 


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


 


“Additional
Securities” means any additional REIT Shares (other than REIT Shares issued
in connection with an exchange pursuant to Section 8.4 hereof or rights,
options, warrants or convertible or exchangeable securities containing the
right to subscribe for or purchase REIT Shares.


 


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


 


“Affiliate”
means, (i) any Person that, directly or indirectly, controls or is
controlled by or is under common control with such Person, (ii) any other
Person that owns, beneficially, directly or indirectly, 10% or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii) any
officer, director, employee, partner or trustee of such Person or any Person
controlling, controlled by or under common control with such Person (excluding
trustees and persons serving in similar capacities who are not otherwise an
Affiliate of such Person).  For the
purposes of this definition, “control” (including the correlative meanings of
the terms “controlled by” and “under common control with”), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person, through the ownership of voting securities or partnership
interests or otherwise.


 


“Agreed
Value” means the fair market value of a Partner’s non-cash Capital
Contribution as of the date of contribution as agreed to by such Partner and
the General Partner.  The names and
addresses of the Partners, number of Partnership Units issued to each Partner,
and the Agreed Value of non-cash Capital Contributions as of the date of
contribution is set forth on Exhibit A hereto.


 


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


 


2

















 


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


 


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


 


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


 


“Carrying
Value” means, with respect to any asset of the Partnership, the asset’s
adjusted basis for federal income tax purposes or, in the case of any asset
contributed to the Partnership, the fair market value of such asset at the time
of contribution, except that the Carrying Values of all assets may, at the
discretion of the General Partner, be adjusted to equal their respective fair
market values (as determined by the General Partner), in accordance with the rules set
forth in Regulations Section 1.704-1(b)(2)(iv)(f), as provided for in Section 4.4
hereof.  In the case of any asset of the
Partnership that has a Carrying Value that differs from its adjusted tax basis,
the Carrying Value shall be adjusted by the amount of depreciation, depletion
and amortization calculated for purposes of the definition of Profit and Loss
rather than the amount of depreciation, depletion and amortization determined
for federal income tax purposes.


 


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


 


“Certificate”
means any instrument or document that is required under the laws of the State
of Delaware, or any other jurisdiction in which the Partnership conducts
business, to be signed and sworn to by the Partners of the Partnership (either
by themselves or pursuant to the power-of-attorney granted to the General
Partner in Section 8.2 hereof) and filed for recording in the appropriate
public offices within the State of Delaware or such other jurisdiction to
perfect or maintain the Partnership as a limited partnership, to effect the
admission, withdrawal, or substitution of any Partner of the Partnership, or to
protect the limited liability of the Limited Partners as limited partners under
the laws of the State of Delaware or such other jurisdiction.


 


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


 


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


 


“Common
Unit” means a Partnership Unit representing a Partnership Interest that is
without preference as to distributions and allocations.


 


“Conversion
Factor” means 1.0, provided
that in the event that the General Partner (i) declares or pays a dividend
on its outstanding REIT Shares in REIT Shares or makes a distribution to all
holders of its outstanding REIT Shares in REIT Shares, (ii) subdivides its
outstanding REIT Shares, or (iii) combines its outstanding REIT Shares
into a smaller number of 


 


3

















 


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


 


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


 


“Exchange
Right” has the meaning provided in Section 8.4(a) hereof.


 


“Exchanging
Partner” has the meaning provided in Section 8.4(a) hereof.


 


“General
Partner” means Americold Realty Trust, a Maryland real estate investment
trust, and any Person who becomes a substitute or additional General Partner as
provided herein, and any of their successors as General Partner.


 


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


 


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


 


4

















 


“Independent
Director” means a director of the General Partner who is not an officer or
employee of the General Partner, any Affiliate of an officer or employee or any
Affiliate of (i) any lessee of any property of the General Partner or any
Subsidiary of the General Partner, (ii) any Subsidiary of the General
Partner, or (iii) any partnership that is an Affiliate of the General
Partner.


 


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


 


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


 


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


 


“Minimum
Limited Partnership Interest” means the lesser of (i) 1% or (ii) if
the total Capital Contributions to the Partnership exceeds $50 million, 1%
divided by the ratio of the total Capital Contributions to the Partnership to
$50 million; provided, however, that the Minimum Limited Partnership
Interest shall not be less than 0.2% at any time.


 


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


 


“NYSE”
means the New York Stock Exchange.


 


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


 


“Partner”
means any General Partner or Limited Partner.


 


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


 


“Partnership”
means Americold Realty Operating Partnership LP, a Delaware limited
partnership.


 


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


 


“Partnership
Minimum Gain” has the meaning set forth in Regulations Section 1.704-2(d).  In accordance with Regulations Section 1.704-2(d),
the amount of Partnership Minimum Gain is determined by first computing, for
each Partnership nonrecourse liability, any gain the Partnership would realize
if it disposed of the property subject to that liability for no 


 


5

















 


consideration
other than full satisfaction of the liability, and then aggregating the
separately computed gains.  A Partner’s
share of Partnership Minimum Gain shall be determined in accordance with
Regulations Section 1.704-2(g)(1).


 


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


 


“Partnership
Unit” means a fractional, undivided share of the Partnership Interests of
all Partners issued hereunder.  The
allocation of Partnership Units among the Partners shall be as set forth on Exhibit A
hereto, as such Exhibit may be amended from time to time.


 


“Percentage
Interest” means the percentage ownership interest in the Partnership of
each Partner, as determined by dividing the Partnership Units owned by a
Partner by the total number of Partnership Units then outstanding.  The Percentage Interest of each Partner shall
be as set forth on Exhibit A hereto, as such Exhibit may be
amended from time to time.


 


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


 


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


 


“Property”
means any warehouse or industrial property or other investment in which the
Partnership holds an ownership interest.


 


“Publicly
Traded” means listed or admitted to trading on the NYSE, the American Stock
Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or another
national securities exchange, or any successor to any of the foregoing.


 


“Regulations”
means the Federal income tax regulations promulgated under the Code, as amended
and as hereafter amended from time to time.  Reference to any particular provision of the
Regulations shall mean that provision of the Regulations on the date hereof and
any successor provision of the Regulations.


 


“Regulatory
Allocations” has the meaning set forth in Section 5.1(i) hereof.


 


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


 


“REIT
Expenses” means (i) costs and expenses relating to the formation and
continuity of existence and operation of the General Partner and any
Subsidiaries thereof (which Subsidiaries shall, for purposes hereof, be
included within the definition of General Partner), including taxes, fees and
assessments associated therewith, any and all costs, expenses or fees payable
to any director, officer, or employee of the General Partner, (ii) costs
and expenses relating to any public offering and registration of securities by
the General Partner and all statements, reports, fees and expenses incidental
thereto, including, without limitation, underwriting discounts and selling
commissions applicable to any such offering of securities, and any costs and
expenses associated with any claims made by any holders of such securities or
any 


 


6

















 


underwriters
or placement agents thereof, (iii) costs and expenses associated with any
repurchase of any securities by the General Partner, (iv) costs and
expenses associated with the preparation and filing of any periodic or other
reports and communications by the General Partner under federal, state or local
laws or regulations, including filings with the Commission, (v) costs and
expenses associated with compliance by the General Partner with laws, rules and
regulations promulgated by any regulatory body, including the Commission and
any securities exchange, (vi) costs and expenses associated with any 401(k) plan,
incentive plan, bonus plan or other plan providing for compensation for the
employees of the General Partner, (vii) costs and expenses incurred by the
General Partner relating to any issuing or redemption of Partnership Interests,
and (viii) all other operating or administrative costs of the General
Partner incurred in the ordinary course of its business on behalf of or in
connection with the Partnership.


 


“REIT
Share” means a common share of beneficial interest in the General Partner
(or successor entity, as the case may be).


 


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


 


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


 


“Service”
means the United States Internal Revenue Service.


 


“Specified
Exchange Date” means: (i) if the REIT Shares are not Publicly Traded
on the date on which the Notice of Exchange is received by the General Partner,
the first business day of the month that is at least 60 business days after the
receipt by the General Partner of the Notice of Exchange or (ii) if the
REIT Shares are Publicly Traded on the date on which the Notice of Exchange is
received by the General Partner, the tenth business day after the receipt by
the General Partner of the Notice of Exchange.


 


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


 


“Subsidiary
Partnership” means any partnership of which the partnership interests
therein are owned by the General Partner or a direct or indirect Subsidiary of
the General Partner.


 


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


 


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


 


7

















 


contained
herein.


 


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


 


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


 


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


 


“Unitholders”
means all holders of Partnership Interests.


 


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


 


ARTICLE 2


 


PARTNERSHIP FORMATION AND IDENTIFICATION


 


2.1          Formation.  The Partnership was formed as a limited
partnership pursuant to the Act and all other pertinent laws of the State of
Delaware, for the purposes and upon the terms and conditions set forth in this
Agreement.


 


2.2          Name,
Office and Registered Agent.  The name of the Partnership is Americold
Realty Operating Partnership, LP.  The
specified office and place of business of the Partnership shall be 10 Glenlake
Parkway, South Tower, Suite 800, Atlanta, GA 30328.  The General Partner may at any time change
the location of such office, provided the General Partner gives notice to the
Partners of any such change.  The name
and address of the Partnership’s registered agent is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801.  The sole duty of
the registered agent as such is to forward to the Partnership any notice that
is served on him as registered agent.


 


8

















 


2.3          Partners.


 


(a)           The General Partner of the
Partnership is Americold Realty Trust, a Maryland real estate investment
trust.  Its principal place of business
is the same as that of the Partnership.


 


(b)           The Limited Partners are
those Persons identified as Limited Partners on Exhibit A hereto,
as amended from time to time.


 


2.4          Term and Dissolution.


 


(a)           The term of the Partnership
shall continue in full force and effect until December 31 2040, except
that the Partnership shall be dissolved upon the first to occur of any of the
following events:


 


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


 


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


 


(iii)          The exchange of all Limited
Partnership Interests (other than any of such interests held by the General
Partner or Affiliates of the General Partner) for REIT Shares or the securities
of any other entity; or


 


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


 


(b)           Upon dissolution of the
Partnership (unless the business of the Partnership is continued pursuant to Section 7.3(b) hereof),
the General Partner (or its trustee, receiver, successor or legal
representative) shall amend or cancel the Certificate and liquidate the
Partnership’s assets and apply and distribute the proceeds thereof in
accordance with Section 5.6 hereof. 



 


9

















 


Notwithstanding the
foregoing, the liquidating General Partner may either (i) defer
liquidation of, or withhold from distribution for a reasonable time, any assets
of the Partnership (including those necessary to satisfy the Partnership’s
debts and obligations), or (ii) distribute the assets to the Partners in
kind.


 


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


 


2.6          Certificates
Describing Partnership Units.  At the request of a Limited Partner, the
General Partner, at its option, may issue a certificate summarizing the terms
of such Limited Partner’s interest in the Partnership, including the number of
Partnership Units owned and the Percentage Interest represented by such
Partnership Units as of the date of such certificate.  Any such certificate (i) shall be in
form and substance as approved by the General Partner, (ii) shall not be
negotiable and (iii) shall bear a legend to the following effect:


 


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


 


ARTICLE 3


 


BUSINESS OF THE PARTNERSHIP


 


The
purpose and nature of the business to be conducted by the Partnership is (i) to
conduct any business that may be lawfully conducted by a limited partnership
organized pursuant to the Act, provided, however, that such business shall be
limited to and conducted in such a manner as to permit the General Partner at
all times to qualify as a REIT, unless the General Partner otherwise ceases to
qualify as a REIT, and in a manner such that the General Partner will not be
subject to any taxes under Section 857 or 4981 of the Code, (ii) to
enter into any partnership, joint venture or other similar arrangement to
engage in any of the foregoing or the ownership of interests in any entity
engaged in any of the foregoing and (iii) to do anything necessary or
incidental to the foregoing.  In
connection with the foregoing, and without limiting the General Partner’s right
in its sole and absolute discretion to cease qualifying as a REIT, the Partners
acknowledge that the General Partner’s current status as a REIT and the
avoidance of income and excise taxes on the General Partner inures to the
benefit of all the Partners and not solely to the General Partner.  Notwithstanding the foregoing, the Limited
Partners agree that the General Partner may terminate its status as a REIT
under the Code at any time to the full extent permitted under the Articles of
Incorporation.  The General Partner on
behalf of the Partnership shall also be empowered to do any and all acts and
things necessary or prudent to ensure that the Partnership will not be
classified as a “publicly traded partnership” for purposes of Section 7704
of the Code.


 


10














 


ARTICLE 4


 


CAPITAL
CONTRIBUTIONS AND ACCOUNTS


 


4.1          Capital Contributions.  The General Partner and the initial Limited
Partner have made Capital Contributions to the Partnership in exchange for the
Partnership Interests set forth opposite their names on Exhibit A
hereto, as such Exhibit may be amended from time to time.


 


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


 


(a)           Issuances
of Additional Partnership Interests.


 


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


 


(1)           (A) the additional
Partnership Interests are issued in connection with an issuance of REIT Shares
of or other interests in the General Partner, which shares or interests have
designations, preferences and other rights, all such that the economic
interests are substantially similar to the designations, preferences and other
rights of the additional 


 


11

















 


Partnership Interests issued
to the General Partner by the Partnership in accordance with this Section 4.2
and (B) the General Partner shall make a Capital Contribution to the
Partnership in an amount equal to the proceeds raised in connection with the
issuance of such REIT Shares of or other interests in the General Partner;


 


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


 


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


 


Without
limiting the foregoing, the General Partner is expressly authorized to cause
the Partnership to issue Partnership Units for less than fair market value, so
long as the General Partner concludes in good faith that such issuance is in
the best interests of the General Partner and the Partnership.


 


(ii)           Upon Issuance
of Additional Securities.  The
General Partner shall not issue any Additional Securities other than to all
holders of REIT Shares, unless (A) the General Partner shall cause the
Partnership to issue to the General Partner, as the General Partner may
designate, Partnership Interests or rights, options, warrants or convertible or
exchangeable securities of the Partnership having designations, preferences and
other rights, all such that the economic interests are substantially similar to
those of the Additional Securities, and (B) the General Partner
contributes the proceeds from the issuance of such Additional Securities and
from any exercise of rights contained in such Additional Securities, directly
and through the General Partner, to the Partnership;  provided, however, that the General Partner is
allowed to issue Additional Securities in connection with an acquisition of a
property to be held directly by the General Partner, but if and only if, such
direct acquisition and issuance of Additional Securities have been approved and
determined to be in the best interests of the General Partner and the
Partnership by a majority of the General Partner’s board of directors.  Without limiting the foregoing, the General
Partner is expressly authorized to issue Additional Securities for less than
fair market value, and to cause the Partnership to issue to the General Partner
corresponding Partnership Interests, so long as (x) the General Partner
concludes in good faith that such issuance is in the best interests of the
General Partner and the Partnership, including without limitation, 


 


12

















 


the issuance of REIT Shares
and corresponding Partnership Units pursuant to an employee’s equity incentive
plan or an employee share purchase plan providing for, as the case may be,
purchases of or awards of REIT Shares at a discount from fair market value or
employee stock options that have an exercise price that is less than the fair
market value of the REIT Shares, either at the time of issuance or at the time
of exercise, and (y) the General Partner contributes all proceeds from
such issuance to the Partnership.  For
example, in the event the General Partner issues REIT Shares for a cash
purchase price and contributes all of the proceeds of such issuance to the
Partnership as required hereunder, the General Partner shall be issued a number
of additional Partnership Units equal to the product of (A) the number of
such REIT Shares issued by the General Partner, the proceeds of which were so
contributed, multiplied by (B) a fraction, the numerator of which is 100%,
and the denominator of which is the Conversion Factor in effect on the date of
such contribution.


 


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


 


(c)           Minimum
Limited Partnership Interest.  In the event that either an exchange pursuant
to Section 8.4 hereof or additional Capital Contributions by the General
Partner would result in the Limited Partners, in the aggregate, owning less
than the Minimum Limited Partnership Interest, the General Partner and the
Limited Partners shall form another partnership and contribute sufficient
Limited Partnership Interests together with such other Limited Partners so that
the limited partners of such partnership own at least the Minimum Limited
Partnership Interest.


 


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


 


13

















 


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


 


4.5          Percentage
Interests.  If the
number of outstanding Partnership Units increases or decreases during a taxable
year, each Partner’s Percentage Interest shall be adjusted by the General
Partner effective as of the effective date of each such increase or decrease to
a percentage equal to the number of Partnership Units held by such Partner
divided by the aggregate number of Partnership Units outstanding after giving
effect to such increase or decrease.  If
the Partners’ Percentage Interests are adjusted pursuant to this Section 4.5,
the Profits and Losses for the taxable year in which the adjustment occurs
shall be allocated between the part of the year ending on the effective date of
such adjustment and the part of the year beginning on the following day either (i) as
if the taxable year had ended on the date of the adjustment or (ii) based
on the number of days in each part.  The
General Partner, in its sole and absolute discretion, shall determine which
method shall be used to allocate Profits and Losses for the taxable year in
which the adjustment occurs.  The
allocation of Profits and Losses for the earlier part of the year shall be
based on the Percentage Interests before adjustment, and the allocation of
Profits and Losses for the later part shall be based on the adjusted Percentage
Interests.


 


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


 


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


 


4.8          No Third
Party Beneficiary.  No creditor
or other third party having dealings with the Partnership shall have the right
to enforce the right or obligation of any Partner to make 


 


14

















 


Capital Contributions or loans or to pursue any other right or remedy
hereunder or at law or in equity, it being understood and agreed that the provisions
of this Agreement shall be solely for the benefit of, and may be enforced
solely by, the parties hereto and their respective successors and assigns.  None of the rights or obligations of the
Partners herein set forth to make Capital Contributions or loans to the
Partnership shall be deemed an asset of the Partnership for any purpose by any
creditor or other third party, nor may such rights or obligations be sold,
transferred or assigned by the Partnership or pledged or encumbered by the
Partnership to secure any debt or other obligation of the Partnership or of any
of the Partners.  In addition, it is the
intent of the parties hereto that no distribution to any Limited Partner shall
be deemed a return of money or other property in violation of the Act.  However, if any court of competent
jurisdiction holds that, notwithstanding the provisions of this Agreement, any
Limited Partner is obligated to return such money or property, such obligation
shall be the obligation of such Limited Partner and not of the General
Partner.  Without limiting the generality
of the foregoing, a deficit Capital Account of a Partner shall not be deemed to
be a liability of such Partner nor an asset or property of the Partnership.


 


ARTICLE 5


 


PROFITS AND LOSSES; DISTRIBUTIONS


 


5.1          Allocation of Profit and Loss.


 


(a)           General.  Profit and Loss (or items thereof) of the
Partnership for each fiscal year or other applicable period of the Partnership
shall be allocated among the Unitholders in accordance with their respective
Percentage Interests.


 


(b)           General
Partner Gross Income Allocation.  There shall be specially allocated to the
General Partner an amount of (i) first, items of Partnership income and (ii) second,
items of Partnership gain during each fiscal year or other applicable period,
before any other allocations are made hereunder, in an amount equal to the
excess, if any, of the cumulative distributions made to the General Partner
under Section 6.5(b) hereof over the cumulative allocations of
Partnership income and gain to the General Partner under this Section 5.1(b).


 


(c)           Nonrecourse
Deductions; Minimum Gain Chargeback.  Notwithstanding any provision to the
contrary, (i) any expense of the Partnership that is a “nonrecourse
deduction” within the meaning of Regulations Section 1.704-2(b)(1) shall
be allocated in accordance with the Partners’ respective Percentage Interests, (ii) any
expense of the Partnership that is a “partner nonrecourse deduction” within the
meaning of Regulations Section 1.704-2(i)(2) shall be allocated to
the Partner that bears the “economic risk of loss” with respect to the
liability to which such deductions are attributable in accordance with
Regulations Section 1.704-2(i)(1), (iii) if there is a net decrease
in Partnership Minimum Gain within the meaning of Regulations Section 1.704-2(f)(1) for
any Partnership 


 


15

















 


taxable year, then, subject to the exceptions
set forth in Regulations Section 1.704-2(f)(2),(3), (4) and (5),
items of gain and income shall be allocated among the Partners in accordance
with Regulations Section 1.704-2(f) and the ordering rules contained
in Regulations Section 1.704-2(j), and (iv) if there is a net
decrease in Partner Nonrecourse Debt Minimum Gain within the meaning of Regulations
Section 1.704-2(i)(4) for any Partnership taxable year, then, subject
to the exceptions set forth in Regulations Section 1.704-(2)(g), items of
gain and income shall be allocated among the Partners in accordance with
Regulations Section 1.704-2(i)(4) and the ordering rules contained
in Regulations Section 1.704-2(j). 
A Partner’s “interest in partnership profits” for purposes of
determining its share of the excess nonrecourse liabilities of the Partnership
within the meaning of Regulations Section 1.752-3(a)(3) shall be such
Partner’s Percentage Interest.


 


(d)           Qualified
Income Offset.  If a
Partner unexpectedly receives in any taxable year an adjustment, allocation, or
distribution described in subparagraphs (4), (5), or (6) of Regulations Section 1.704-1(b)(2)(ii)(d) that
causes or increases a deficit balance in such Partner’s Capital Account that
exceeds the sum of such Partner’s shares of Partnership Minimum Gain and
Partner Nonrecourse Debt Minimum Gain, as determined in accordance with
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), such Partner
shall be allocated specially for such taxable year (and, if necessary, later
taxable years) items of income and gain in an amount and manner sufficient to
eliminate such deficit Capital Account balance as quickly as possible as
provided in Regulations Section 1.704-1(b)(2)(ii)(d).  This Section 5.1(d) is intended to
constitute a “qualified income offset” under Section 1.704-1(b)(2)(ii)(d) of
the Regulations and shall be interpreted consistently therewith.


 


(e)           Capital
Account Deficits.  Loss (or
items of Loss) shall not be allocated to a Limited Partner to the extent that
such allocation would cause or increase a deficit in such Partner’s Capital
Account at the end of any fiscal year (after reduction to reflect the items
described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and
(6)) to exceed the sum of such Partner’s shares of Partnership Minimum
Gain and Partner Nonrecourse Debt Minimum Gain, as determined in accordance
with Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5).  Any Loss in excess of that limitation shall
be allocated to the General Partner. 
After the occurrence of an allocation of Loss to the General Partner in
accordance with this Section 5.1(e), to the extent permitted by Regulations
Section 1.704-1(b), Profit shall be allocated to such Partner in an amount
necessary to offset the Loss previously allocated to such Partner under this Section 5.1(e).


 


(f)            Allocations
Between Transferor and Transferee.  If a Partner transfers any part or all of its
Partnership Interest, the distributive shares of the various items of Profit
and Loss allocable among the Partners during such fiscal 


 


16

















 


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


 


(g)           Definition
of Profit and Loss.  “Profit”
and “Loss” and any items of income, gain, expense, or loss referred to
in this Agreement shall be determined in accordance with federal income tax
accounting principles, as modified by Regulations Section 1.704-1(b)(2)(iv),
except that Profit and Loss shall not include items of income, gain and expense
that are specially allocated pursuant to Sections 5.1(b), 5.1(c), 5.1(d), 5.1(e),
or 5.1(i).  All allocations of Profit and
Loss (and all items contained therein) for federal income tax purposes shall be
identical to all allocations of such items set forth in this Section 5.1,
except as otherwise required by Section 704(c) of the Code and
Regulations Section 1.704-1(b)(4). 
The General Partner shall have the authority to elect the method to be
used by the Partnership for allocating items of income, gain, and expense as
required by Section 704(c) of the Code including a method that may
result in a Partner receiving a disproportionately larger share of the
Partnership tax depreciation deductions, and such election shall be binding on
all Partners.


 


(h)           Curative
Allocations.  The
allocations set forth in Section 5.1(c), (d) and (e) of this
Agreement (the “Regulatory Allocations”) are intended to comply with
certain requirements of the Regulations. 
The General Partner is authorized to offset all Regulatory Allocations
either with other Regulatory Allocations or with special allocations of other
items of Partnership income, gain, loss or deduction pursuant to this Section 5.1(h).  Therefore, notwithstanding any other
provision of this Section 5.1 (other than the Regulatory Allocations), the
General Partner shall make such offsetting special allocations of Partnership
income, gain, loss or deduction in whatever manner it deems appropriate so
that, after such offsetting allocations are made, each Partner’s Capital
Account is, to the extent possible, equal to the Capital Account balance such
Partner would have had if the Regulatory Allocations were not part of this
Agreement and all Partnership items were allocated pursuant to Section 5.1(a),
(b), (d), (f), and (i) hereof.


 


(i)            Forfeiture
Allocations.  Upon a
forfeiture of any unvested Partnership Interest by any Partner, gross items of
income, gain, loss or deduction shall be allocated to such Partner if and to
the extent required by final Regulations promulgated after the date of this
Agreement to ensure that 


 


17

















 


allocations made with respect to all unvested
Partnership Interests are recognized under Code Section 704(b).


 


5.2          Distribution of Cash.


 


(a)           The Partnership shall
distribute cash on a quarterly (or, at the election of the General Partner,
more frequent) basis, in an amount determined by the General Partner in its
sole and absolute discretion, to the Partners who are Partners on the
Partnership Record Date with respect to such quarter (or other distribution
period) in accordance with Section 5.2(b) below.  Distributions payable with respect to any
Partnership Units that were not outstanding during the entire quarterly period
in respect of which any distribution is made shall be pro rated based on the
portion of the period that such Partnership Units were outstanding.


 


(b)           Except for distributions
pursuant to Section 5.6 hereof in connection with the dissolution and
liquidation of the Partnership and subject to the provisions of
Sections 5.2(c), 5.2(d), 5.3 and 5.5 hereof, distributions shall be made
to the Unitholders in accordance with their respective Percentage Interests on
the Partnership Record Date.


 


(c)           Notwithstanding any other
provision of this Agreement, the General Partner is authorized to take any
action that it determines to be necessary or appropriate to cause the
Partnership to comply with any withholding requirements established under the
Code or any other federal, state or local law including, without limitation,
pursuant to Sections 1441, 1442, 1445 and 1446 of the Code.  To the extent that the Partnership is
required to withhold and pay over to any taxing authority any amount resulting
from the allocation or distribution of income to any Partner or assignee
(including by reason of Section 1446 of the Code), either (i) if the
actual amount to be distributed to the Partner equals or exceeds the amount
required to be withheld by the Partnership, the amount withheld shall be
treated as a distribution of cash in the amount of such withholding to such
Partner, or (ii) if the actual amount to be distributed to the Partner is
less than the amount required to be withheld by the Partnership, the actual
amount shall be treated as a distribution of cash in the amount of such
withholding and the additional amount required to be withheld shall be treated
as a loan (a “Partnership Loan”) from the Partnership to the Partner on
the day the Partnership pays over such amount to a taxing authority.  A Partnership Loan shall be repaid through
withholding by the Partnership with respect to subsequent distributions to the
applicable Partner or assignee.  In the
event that a Limited Partner (a “Defaulting Limited Partner ”) fails to
pay any amount owed to the Partnership with respect to the Partnership Loan
within 15 days after demand for payment thereof is made by the Partnership
on the Limited Partner, the General Partner, in its sole and absolute
discretion, may elect to make the payment to the Partnership on behalf of such
Defaulting Limited Partner.  In such
event, 


 


18

















 


on the date of payment, the General Partner
shall be deemed to have extended a loan (a “General Partner Loan”) to
the Defaulting Limited Partner in the amount of the payment made by the General
Partner and shall succeed to all rights and remedies of the Partnership against
the Defaulting Limited Partner as to that amount.  Without limitation, the General Partner shall
have the right to receive any distributions that otherwise would be made by the
Partnership to the Defaulting Limited Partner until such time as the General
Partner Loan has been paid in full, and any such distributions so received by
the General Partner shall be treated as having been received by the Defaulting
Limited Partner and immediately paid to the General Partner.


 


Any
amounts treated as a Partnership Loan or a General Partner Loan pursuant to
this Section 5.2(c) shall bear interest at the lesser of (i) the
base rate on corporate loans at large United States money center commercial
banks, as published from time to time in The Wall Street Journal, or (ii) the
maximum lawful rate of interest on such obligation, such interest to accrue
from the date the Partnership or the General Partner, as applicable, is deemed
to extend the loan until such loan is repaid in full.


 


(d)           In no event may a Partner
receive a distribution of cash with respect to a Partnership Unit if such
Partner is entitled to receive a cash distribution as the holder of record of a
REIT Share for which all or part of such Partnership Unit has been or will be
exchanged.


 


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


 


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


 


5.5          Limitations on Return of
Capital Contributions. 
Notwithstanding any of the provisions of this Article 5, no Partner
shall have the right to receive and the General Partner shall not have the
right to make, a distribution that includes a return of all or part of a
Partner’s Capital Contributions, unless after giving effect to the return of a
Capital Contribution, the sum of all Partnership liabilities, other than the
liabilities to a Partner for the return of his Capital Contribution, does not
exceed the fair market value of the Partnership’s assets.


 


5.6          Distributions upon
Liquidation.  Upon
liquidation of the Partnership, after payment of, or adequate provision for,
debts and obligations of the Partnership, including any Partner loans, any
remaining assets of the Partnership shall be distributed to all Partners in
accordance with Section 5.2(b) hereof, but only to the extent of the
positive balance of the Capital Account of each Partner.  For purposes of the preceding sentence, the
Capital Account of each Partner shall be determined after all adjustments have
been made in accordance with 


 


19

















 


Sections 4.4, 5.1 and 5.2 resulting from Partnership operations
and from all sales and dispositions of all or any part of the Partnership’s
assets.  Notwithstanding any other
provision of this Agreement, the amount by which the value, as determined in good
faith by the General Partner, of any property other than cash to be distributed
in kind to the Partners exceeds or is less than the Carrying Value of such
property shall, to the extent not otherwise recognized by the Partnership, be
taken into account in computing Profit and Loss of the Partnership for purposes
of crediting or charging the Capital Accounts of, and distributing proceeds to,
the Partners, pursuant to this Agreement. 
To the extent deemed advisable by the General Partner, appropriate arrangements
(including the use of a liquidating trust) may be made to assure that adequate
funds are available to pay any contingent debts or obligations.


 


5.7          Substantial Economic Effect.  It is the intent of the Partners that the
allocations of Profit and Loss under this Agreement have substantial economic
effect (or be consistent with the Partners’ interests in the Partnership in the
case of the allocation of losses attributable to nonrecourse debt) within the
meaning of Section 704(b) of the Code as interpreted by the
Regulations promulgated pursuant thereto. 
Article 5 and other relevant provisions of this Agreement shall be
interpreted in a manner consistent with such intent.


 


ARTICLE 6


 


RIGHTS, OBLIGATIONS AND

POWERS OF THE GENERAL PARTNER


 


6.1          Management of the Partnership.


 


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


 


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


 


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


 


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


 


20














 


Interests, or options, rights, warrants or
appreciation rights relating to any Partnership Interests) of the Partnership;


 


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


 


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


 


(vi)                            to guarantee or
become a co-maker of indebtedness of the General Partner or any Subsidiary
thereof, refinance, increase the amount of, modify, amend or change the terms
of, or extend the time for the payment of, any such guarantee or indebtedness,
and secure such guarantee or indebtedness by mortgage, deed of trust, pledge or
other lien on the Partnership’s assets;


 


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


 


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


 


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


 


(x)                                 to file
applications, communicate, and otherwise deal with any and all governmental
agencies having jurisdiction over, or in any way 


 


21

















 


affecting, the Partnership’s assets or any
other aspect of the Partnership business;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


6.2                             Delegation of Authority.  The General Partner may delegate any or all
of its powers, rights and obligations hereunder, and may appoint, employ,
contract or otherwise deal with any Person for the transaction of the business
of the Partnership, which Person may, under supervision of the General Partner,
perform any acts or services for the Partnership as the General Partner may
approve.


 


6.3                             Indemnification
and Exculpation of Indemnitees.


 


(a)                                The Partnership
shall indemnify an Indemnitee from and against any and all losses, claims,
damages, liabilities, joint or several, expenses (including reasonable legal
fees and expenses), judgments, fines, settlements, and other amounts arising
from any and all claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative, that relate to the operations of the
Partnership as set forth in this Agreement in which any Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, unless it
is established that: (i) the act or omission of 


 


23

















 


the Indemnitee was material
to the matter giving rise to the proceeding and either was committed in bad
faith or was the result of active and deliberate dishonesty; (ii) the
Indemnitee actually received an improper personal benefit in money, property or
services; or (iii) in the case of any criminal proceeding, the Indemnitee
had reasonable cause to believe that the act or omission was unlawful.  The termination of any proceeding by
judgment, order or settlement does not create a presumption that the Indemnitee
did not meet the requisite standard of conduct set forth in this Section 6.3(a).  The termination of any proceeding by conviction
or upon a plea of nolo contendere or its equivalent, or an entry of an order of
probation prior to judgment, creates a rebuttable presumption that the
Indemnitee acted in a manner contrary to that specified in this Section 6.3(a).  Any indemnification pursuant to this Section 6.3
shall be made only out of the assets of the Partnership.


 


(b)                               The Partnership
shall reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee
who is a party to a proceeding in advance of the final disposition of the
proceeding 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 6.3
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)                                (c) The
indemnification provided by this Section 6.3 shall be in addition to any
other rights to which an Indemnitee or any other Person may be entitled under
any agreement, pursuant to any vote of the Partners, as a matter of law or
otherwise, and shall continue as to an Indemnitee who has ceased to serve in
such capacity.


 


(d)                               The Partnership
may purchase and maintain insurance, on behalf of the Indemnitees and such
other Persons as the General Partner shall determine, against any liability
that may be asserted against or expenses that may be incurred by such Person in
connection with the Partnership’s activities, regardless of whether the
Partnership would have the power to indemnify such Person against such
liability under the provisions of this Agreement.


 


(e)                                For purposes of
this Section 6.3, the Partnership shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the
performance by it of its duties to the Partnership also imposes duties on, or
otherwise involves services by, it to the plan or participants or beneficiaries
of the plan; excise taxes assessed on an Indemnitee with respect to an employee
benefit plan pursuant to applicable law shall constitute fines within the
meaning of this Section 6.3; and actions taken or omitted by the
Indemnitee with respect to 


 


24

















 


an employee benefit plan in the performance
of its duties for a purpose reasonably believed by it to be in the interest of
the participants and beneficiaries of the plan shall be deemed to be for a
purpose which is not opposed to the best interests of the Partnership.


 


(f)                                  In no event may
an Indemnitee subject the Limited 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 6.3
because the Indemnitee had an interest in the transaction with respect to which
the indemnification applies if the transaction was otherwise permitted by the
terms of this Agreement.


 


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


 


6.4                             Liability of the General Partner.


 


(a)                                Notwithstanding
anything to the contrary set forth in this Agreement, the General Partner shall
not be liable for monetary damages to the Partnership or any Partners for
losses sustained or liabilities incurred as a result of errors in judgment or
of any act or omission if the General Partner acted in good faith.  The General Partner shall not be in breach of
any duty that the General Partner may owe to the Limited Partners or the
Partnership or any other Persons under this Agreement or of any duty stated or
implied by law or equity provided the General Partner, acting in good faith,
abides by the terms of this Agreement.


 


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


 


25

















 


in connection with such decisions, provided that the General Partner has
acted in good faith.


 


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


 


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


 


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


 


6.5                             Reimbursement of General Partner.


 


(a)                                Except as
provided in this Section 6.5 and elsewhere in this Agreement (including
the provisions of Articles 5 and 6 regarding distributions, payments, and
allocations to which it may be entitled), the General Partner shall not be
compensated for its services as general partner of the Partnership.


 


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


 


6.6                             Outside
Activities.  Subject to Section 6.8
hereof, the Articles of Incorporation of the General Partner and any agreements
entered into by the General Partner or its Affiliates with the Partnership or a
Subsidiary, any officer, director, employee, agent, trustee, Affiliate or
stockholder of the General Partner, the General Partner shall be entitled to
and may have business interests and engage in business activities in addition
to those relating to the 


 


26

















 


Partnership, including business interests and
activities substantially similar or identical to those of the Partnership.  Neither the Partnership nor any of the
Limited Partners shall have any rights by virtue of this Agreement in any such
business ventures, interest or activities. 
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 such business ventures, interests or activities, and the General Partner
shall have no obligation pursuant to this Agreement to offer any interest in
any such business ventures, interests and activities to the Partnership or any
Limited Partner, even if such opportunity is of a character which, if presented
to the Partnership or any Limited Partner, could be taken by such Person.


 


6.7                             Employment or Retention of Affiliates.


 


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


 


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


 


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


 


(d)                               Except as
expressly permitted by this Agreement, neither the General Partner nor any of
its Affiliates shall sell, transfer or convey any property to, or purchase any
property from, the Partnership, directly or indirectly, except pursuant to
transactions that are on terms that are fair and reasonable to the Partnership.


 


6.8                             General
Partner Participation.  The
General Partner agrees that all business activities of the General Partner,
including activities pertaining to the acquisition, development or ownership of
office or industrial property or other property, shall be conducted through the
Partnership or one or more Subsidiary;
provided, however,
that the General Partner is allowed to make a direct acquisition, but if and
only if, such acquisition is made in connection with the issuance of Additional
Securities, which direct acquisition and issuance have been approved and
determined to be in the best interests of the General Partner and the
Partnership by a majority of the Independent Directors.


 


27

















 


6.9                             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, 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.


 


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


 


ARTICLE 7


 


CHANGES IN GENERAL PARTNER


 


7.1                             Transfer of the General Partner’s Partnership Interest.


 


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


 


(b)                               The General Partner
agrees that the Percentage Interest for it will at all times be in the
aggregate, at least 1%.


 


(c)                                Except as
otherwise provided in Section 6.4(b) or Section 7.1(d) or (e) hereof,
the General Partner shall not engage in any merger, consolidation or other
combination with or into another Person or sale of all or substantially all of
its assets, (other than in connection with a change in the General Partner’s
state of incorporation or organizational form) in each case which results in a
change of control of the General Partner (a “Transaction”), unless:


 


28






 










 


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


 


(ii)                                  as a result of
such Transaction all Limited Partners will receive for each Partnership Unit an
amount of cash, securities, or other property equal to the product of the
Conversion Factor and the greatest amount of cash, securities or other property
paid in the Transaction to a holder of one REIT Share in consideration of one
REIT Share, 
provided  that if, in
connection with the Transaction, a purchase, tender or exchange offer (“Offer”)
shall have been made to and accepted by the holders of more than 50% of the
outstanding REIT Shares, each holder of Partnership Units shall be given the
option to exchange its Partnership Units for the greatest amount of cash,
securities, or other property which a Limited Partner holding Partnership Units
would have received had it (1) exercised its Exchange Right and (2) sold,
tendered or exchanged pursuant to the Offer the REIT Shares received upon
exercise of the Exchange Right immediately prior to the expiration of the
Offer; or


 


(iii)                               the General
Partner is the surviving entity in the Transaction and either (A) the
holders of REIT Shares do not receive cash, securities, or other property in
the Transaction or (B) all Limited Partners (other than the General
Partner or any Subsidiary) receive in exchange for their Partnership Units, an
amount of cash, securities, or other property (expressed as an amount per REIT
Share) that is no less than the product of the Conversion Factor and the
greatest amount of cash, securities, or other property (expressed as an amount
per REIT Share) received in the Transaction by any holder of REIT Shares.


 


(d)                                 Notwithstanding
Section 7.1(c) above, the General Partner may merge with or into or
consolidate with another entity if immediately after such merger or
consolidation (i) substantially all of the assets of the successor or
surviving entity (the “Survivor”), other than Partnership Units held by
the General Partner, are contributed, directly or indirectly, to the
Partnership as a Capital Contribution in exchange for Partnership Units with a
fair market value equal to the value of the assets so contributed as determined
by the Survivor in good faith and (ii) the Survivor expressly agrees to
assume all obligations of the General Partner, as appropriate, hereunder.  Upon such contribution and assumption, the
Survivor shall have the right and duty to amend this Agreement as set forth in
this Section 7.1(d).  The Survivor shall
in good faith arrive at a new method for the calculation of the Cash Amount,
the REIT Shares Amount and Conversion Factor for a Partnership Unit after any
such merger or consolidation so as to approximate the existing method for such
calculation as closely as reasonably possible. 
Such calculation shall take 


 


29

















 


into account, among other
things, the kind and amount of securities, cash and other property that was
receivable upon such merger or consolidation by a holder of REIT Shares or
options, warrants or other rights relating thereto, and which a holder of
Partnership Units could have acquired had such Partnership Units been exchanged
immediately prior to such merger or consolidation.  Such amendment to this Agreement shall
provide for adjustment to such method of calculation, which shall be as nearly
equivalent as may be practicable to the adjustments provided for with respect
to the Conversion Factor.  The Survivor
also shall in good faith modify the definition of REIT Shares and make such
amendments to Sections 8.4 and 8.5 hereof so as to approximate the
existing rights and obligations set forth in Sections 8.4 and 8.5 as
closely as reasonably possible.  The
above provisions of this Section 7.1(d) shall similarly apply to
successive mergers or consolidations permitted hereunder.


 


(e)                                  Notwithstanding
Section 7.1(c),


 


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


 


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


 


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


 


(a)                                  the Person to
be admitted as a substitute or additional General Partner shall have accepted
and agreed to be bound by all the terms and provisions of this Agreement by
executing a counterpart thereof and such other documents or instruments as may
be required or appropriate in order to effect the admission of such Person as a
General Partner, and a certificate evidencing the admission of such Person as a
General Partner shall have been filed for recordation and all other actions
required by Section 2.5 hereof in connection with such admission shall
have been performed;


 


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


 


30

















 


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


 


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


 


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


 


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


 


7.4                               Removal of
a General Partner.


 


(a)                                  Upon the
occurrence of an Event of Bankruptcy as to, or the dissolution of, a General
Partner, such General Partner shall be deemed to be removed 


 


31

















 


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


 


(b)                                 If a General
Partner has been removed pursuant to this Section 7.4 and the Partnership
is continued pursuant to Section 7.3 hereof, such General Partner shall
promptly transfer and assign its General Partnership Interest in the
Partnership to the substitute General Partner approved by a majority in
interest of the Limited Partners in accordance with Section 7.3(b) hereof
and otherwise admitted to the Partnership in accordance with Section 7.2
hereof.  At the time of assignment, the
removed General Partner shall be entitled to receive from the substitute
General Partner the fair market value of the General Partnership Interest of
such removed General Partner as reduced by any damages caused to the
Partnership by such General Partner. 
Such fair market value shall be determined by an appraiser mutually
agreed upon by the General Partner and a majority in interest of the Limited
Partners within 10 days following the removal of the General Partner.  In the event that the parties are unable to
agree upon an appraiser, the removed General Partner and a majority in interest
of the Limited Partners each shall select an appraiser.  Each such appraiser shall complete an
appraisal of the fair market value of the removed General Partner’s General
Partnership Interest within 30 days of the General Partner’s removal, and
the fair market value of the removed General Partner’s General Partnership
Interest shall be the average of the two appraisals;  provided ,  however
, that if the higher appraisal exceeds the lower appraisal by more than 20% of
the amount of the lower appraisal, the two appraisers, no later than
40 days after the removal of the General Partner, shall select a third
appraiser who shall complete an appraisal of the fair market value of the
removed General Partner’s General Partnership Interest no later than
60 days after the removal of the General Partner.  In such case, the fair market value of the
removed General Partner’s General Partnership Interest shall be the average of
the two appraisals closest in value.


 


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


 


32

















 


would have been entitled to receive in its
capacity as General Partner, until the transfer is effective pursuant to Section 7.4(b) above.


 


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


 


ARTICLE 8


 


RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS


 


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


 


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


 


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


 


8.4                               Exchange
Right.


 


(a)                                  Subject to
Sections 8.4(b), 8.4(c), 8.4(d) and 8.4(e) below and the
provisions of any agreements between the Partnership and one or more Limited
Partners with respect to Partnership Units held by them, each Limited Partner,
other than the General Partner, shall have the right (the “Exchange Right”)
to require the Partnership to redeem on a Specified Exchange Date all or a
portion of the Partnership Units held by such Limited Partner at an exchange
price equal to and in the form of the Cash Amount to be paid by the
Partnership, provided, that such
Partnership Units shall have been outstanding for at least one year.  The Exchange Right shall be exercised
pursuant to a Notice of Exchange delivered to the Partnership (with a copy to
the General Partner) by the Limited Partner who is exercising the Exchange
Right (the “Exchanging Partner”);  


 


33

















 


provided, however, that the Partnership shall not
be obligated to satisfy such Exchange Right if the General Partner elects to
purchase the Partnership Units subject to the Notice of Exchange pursuant to Section 8.4(b) below;
and provided, further, that no Limited Partner may
deliver more than two Notices of Exchange during each calendar year unless the
REIT Shares are then Publicly Traded, in which case there will be no limitation
on the number of Notices of Exchange that may be delivered.  A Limited Partner may not exercise the
Exchange Right for less than 1,000 Partnership Units or, if such Limited
Partner holds less than 1,000 Partnership Units, all of the Partnership Units
held by such Partner.  The Exchanging
Partner shall have no right, with respect to any Partnership Units so
exchanged, to receive any distribution paid with respect to Partnership Units
if the record date for such distribution is on or after the Specified Exchange
Date.


 


(b)                                 Notwithstanding
the provisions of Section 8.4(a) above, a Limited Partner that
exercises the Exchange Right shall be deemed to have offered to sell the
Partnership Units described in the Notice of Exchange to the General Partner,
and the General Partner may, in its sole and absolute discretion, elect to
purchase directly and acquire such Partnership Units by paying to the
Exchanging Partner either the Cash Amount or the REIT Shares Amount, as elected
by the General Partner (in its sole and absolute discretion), on the Specified
Exchange Date, whereupon the General Partner shall acquire the Partnership
Units offered for exchange by the exchanging Partner and shall be treated for
all purposes of this Agreement as the owner of such Partnership Units.  If the General Partner shall elect to
exercise its right to purchase Partnership Units under this Section 8.4(b) with
respect to a Notice of Exchange, it shall so notify the Exchanging Partner
within five Business Days after the receipt by the General Partner of such
Notice of Exchange.  Unless the General
Partner (in its sole and absolute discretion) shall exercise its right to
purchase Partnership Units from the Exchanging Partner pursuant to this Section 8.4(b),
the General Partner shall have no obligation to the Exchanging Partner or the
Partnership with respect to the Exchanging Partner’s exercise of the Exchange
Right.  In the event the General Partner
shall exercise its right to purchase Partnership Units with respect to the
exercise of a Exchange Right in the manner described in the first sentence of
this Section 8.4(b), the Partnership shall have no obligation to pay any
amount to the Exchanging Partner with respect to such Exchanging Partner’s
exercise of such Exchange Right, and each of the Exchanging Partner, the
Partnership, and the General Partner, as the case may be, shall treat the
transaction between the General Partner, and the Exchanging Partner for federal
income tax purposes as a sale of the Exchanging Partner’s Partnership Units to
the General Partner.  Each Exchanging
Partner agrees to execute such documents as the General Partner may reasonably
require in connection with any issuance of REIT Shares upon exercise of the
Exchange Right.


 


34






 










 


(c)                                  Notwithstanding
the provisions of Section 8.4(a) and 8.4(b) above, a Limited
Partner shall not be entitled to exercise the Exchange Right if the delivery of
REIT Shares to such Partner on the Specified Exchange Date by the General
Partner pursuant to Section 8.4(b) above (regardless of whether or
not the General Partner would in fact exercise its rights under Section 8.4(b))
would (i) result in such Partner or any other person owning, directly or
indirectly, shares of the General Partner in excess of the Ownership Limit (as
defined in the Articles of Incorporation and calculated in accordance
therewith), except as provided in the Articles of Incorporation, (ii) result
in shares of the General Partner being owned by fewer than 100 Persons
(determined without reference to any rules of attribution and under the
definition of “Person” in the Articles of Incorporation), except as provided in
the Articles of Incorporation, (iii) result in the General Partner being “closely
held” within the meaning of Section 856(h) of the Code, (iv) cause
the General Partner to own, directly or constructively, 9.9% or more of the
ownership interests in a tenant of the General Partner’s, the Partnership’s, or
any direct or indirect subsidiary (including, without limitation, partnerships,
joint ventures and limited liability companies) of the General Partner’s or the
Partnership’s real property, within the meaning of Section 856(d)(2)(B) of
the Code, (v) otherwise, directly or indirectly, cause the General Partner
to fail to qualify as a REIT or (vi) cause the acquisition of REIT Shares
by such Partner to be “integrated” with any other distribution of REIT Shares
for purposes of complying with the registration provisions of the Securities
Act.  The General Partner, in its sole
and absolute discretion, may waive the restriction on exchange set forth in
this Section 8.4(c); provided, however, that in the event such
restriction is waived, the Exchanging Partner shall be paid the Cash Amount.


 


(d)                                 Any Cash Amount
to be paid to an Exchanging Partner pursuant to this Section 8.4 shall be
paid on the Specified Exchange Date;
provided, however,
that the General Partner may elect to cause the Specified Exchange Date to be
delayed for up to an additional 180 days to the extent required for the
General Partner to cause additional REIT Shares to be issued to provide
financing to be used to make such payment of the Cash Amount.  Notwithstanding the foregoing, the General
Partner agrees to use its best efforts to cause the closing of the acquisition
of exchanged Partnership Units hereunder to occur as quickly as reasonably
possible.


 


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


 


35

















 


notice shall be accompanied by a copy of an
opinion of counsel to the Partnership which states that, in the opinion of such
counsel, restrictions are necessary in order to avoid having the Partnership be
treated as a “publicly traded partnership” under Section 7704 of the Code.


 


8.5                               Registration.  Subject to
the terms of any agreement between the General Partner and one or more Limited
Partners with respect to Partnership Units held by them:


 


(a)                                  Shelf
Registration of the Common Stock.  Within four weeks prior or subsequent to the
first date upon which the Partnership Units owned by any Limited Partner may be
exchanged (or such later date as may be required under applicable provisions of
the Securities Act), the General Partner agrees to file with the Commission, a
shelf registration statement on Form S-3 (if the General Partner is
eligible to use such form) under Rule 415 of the Securities Act (a “Registration
Statement”), or any similar rule that may be adopted by the
Commission, with respect to all of the REIT Shares that may be issued upon
exchange of such Partnership Units pursuant to Section 8.5 hereof (“Exchange
Shares”).  The General Partner will
use its best efforts to have the Registration Statement declared effective
under the Securities Act.  The General
Partner need not file a separate Registration Statement, but may file one
Registration Statement covering Exchange Shares issuable to more than one
Limited Partner.  The General Partner
further agrees to supplement or make amendments to each Registration Statement,
if required by the rules, regulations or instructions applicable to the
registration form utilized by the General Partner or by the Securities Act or rules and
regulations thereunder for such Registration Statement.


 


(b)                                 If a
Registration Statement under subsection (a) above is not available
under the securities laws or the rules of the Commission, or if required
to permit the resale of Exchange Shares by “Affiliates” (as defined in the
Securities Act), upon the written request of any Limited Partner holding at
least [500,000] Partnership Units, the General Partner agrees to file with the
Commission a Registration Statement covering the resale of Exchange Shares by
Affiliates or others whose Exchange Shares are not covered by a Registration
Statement filed pursuant to subsection (a) above.  The General Partner will use its best efforts
to have the Registration Statement declared effective under the Securities
Act.  The General Partner need not file a
separate Registration Statement, but may file one Registration Statement
covering Exchange Shares issuable to more than one Limited Partner.  The General Partner further agrees to
supplement or make amendments to each Registration Statement, if required by
the rules, regulations or instructions applicable to the registration form
utilized by the General Partner or by the Securities Act or rules and
regulations thereunder for such Registration Statement.


 


36

















 


(c)                                  Listing
on Securities Exchange.  If
the General Partner shall list or maintain the listing of any REIT Shares on
any securities exchange or national market system, it will at its expense and
as necessary to permit the registration and sale of the Exchange Shares
hereunder, list thereon, maintain and, when necessary, increase such listing to
include such Exchange Shares.


 


(d)                                 Registration
Not Required. 
Notwithstanding the foregoing, the General Partner shall not be required
to file or maintain the effectiveness of a registration statement relating to
Exchange Shares after the first date upon which, in the opinion of counsel to
the General Partner, all of the Exchange Shares covered thereby could be sold
by the holders thereof in any period of three months pursuant to Rule 144
under the Securities Act, or any successor rule thereto.


 


ARTICLE 9


 


TRANSFERS OF LIMITED PARTNERSHIP INTERESTS


 


9.1                               Purchase
for Investment.


 


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


 


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


 


9.2                               Restrictions
on Transfer of Limited Partnership Interests.


 


(a)                                  Subject to the
provisions of 9.2(b), (c) and (d), no Limited Partner may offer, sell,
assign, hypothecate, pledge or otherwise transfer all or any portion of his
Limited Partnership Interest, or any of such Limited Partner’s economic rights
as a Limited Partner, whether voluntarily or by operation of law or at judicial
sale or otherwise (collectively, a “Transfer”) without the consent of
the General Partner, which consent may be granted or withheld in its sole and
absolute discretion.  Any such purported
transfer undertaken without such consent shall be considered to be null and
void ab initio and shall not be given effect. 
The General Partner may require, as a condition of any Transfer to which
it consents, that the 


 


37

















 


transferor assume all costs
incurred by the Partnership in connection therewith.


 


(b)                                 No Limited
Partner may withdraw from the Partnership other than as a result of a permitted
Transfer (i.e., a Transfer consented to as contemplated by clause (a) above
or clause (c) below or a Transfer pursuant to Section 9.5 below)
of all of its Partnership Interest pursuant to this Article 9 or pursuant
to an exchange of all of its Partnership Units pursuant to Section 8.4
hereof.  Upon the permitted Transfer or
redemption of all of a Limited Partner’s Partnership Interest, such Limited Partner
shall cease to be a Limited Partner.


 


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


 


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


 


(e)                                  No Transfer by
a Limited Partner of its Partnership Interest, in whole or in part, may be made
to any Person if (i) in the opinion of legal counsel for the Partnership,
the transfer would result in the Partnership’s being treated as an association
taxable as a corporation, (ii) in the opinion of legal counsel for the
Partnership, it would adversely affect the ability of the General Partner to
continue to qualify as a REIT or subject the General Partner to any additional
taxes under Section 857 or Section 4981 of the Code, or (iii) such
transfer is effectuated through an “established securities market” or a “secondary
market (or the substantial equivalent thereof)” within the meaning of Section 7704
of the Code.


 


(f)                                    No Transfer by
a Limited Partner of any Partnership Interest may be made to a lender to the
Partnership or any Person who is related (within the meaning of Regulations Section 1.752-4(b))
to any lender to the Partnership whose loan constitutes a nonrecourse liability
(within the meaning of Regulations Section 1.752-1(a)(2)), without the
consent of the General Partner, which may be withheld in its sole and absolute
discretion, 
provided  that as a
condition to such consent the lender will be required to 


 


38

















 


enter into an arrangement with the
Partnership and the General Partner to exchange or redeem for the Cash Amount
any Partnership Units in which a security interest is held simultaneously with
the time at which such lender would be deemed to be a Partner in the
Partnership for purposes of allocating liabilities to such lender under Section 752
of the Code.


 


(g)                                 Any Transfer in
contravention of any of the provisions of this Article 9 shall be void and
ineffectual and shall not be binding upon, or recognized by, the Partnership.


 


(h)                                 Prior to the
consummation of any Transfer under this Article 9, the transferor and/or
the transferee shall deliver to the General Partner such opinions, certificates
and other documents as the General Partner shall request in connection with
such Transfer.


 


9.3                               Admission
of Substitute Limited Partner.


 


(a)                                  Subject to the
other provisions of this Article 9, an assignee of the Limited Partnership
Interest of a Limited Partner (which shall be understood to include any
purchaser, transferee, donee, or other recipient of any disposition of such
Limited Partnership Interest) shall be deemed admitted as a Limited Partner of
the Partnership only with the consent of the General Partner and upon the
satisfactory completion of the following:


 


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


 


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


 


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


 


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


 


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


 


39

















 


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


 


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


 


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


 


(c)                                  The General
Partner shall cooperate with the Person seeking to become a Substitute Limited
Partner by preparing the documentation required by this Section and making
all official filings and publications. 
The Partnership shall take all such action as promptly as practicable
after the satisfaction of the conditions in this Article 9 to the
admission of such Person as a Limited Partner of the Partnership.


 


9.4                               Rights of
Assignees of Partnership Interests.


 


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


 


(b)                                 Any Person who
is the assignee of all or any portion of a Limited Partner’s Limited
Partnership Interest, but does not become a Substitute Limited Partner and
desires to make a further assignment of such Limited Partnership Interest,
shall be subject to all the provisions of this Article 9 to the same
extent and in the same manner as any Limited Partner desiring to make an
assignment of its Limited Partnership Interest.


 


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


 


40

















 


incompetent Limited Partner possessed to
assign all or any part of his Partnership Interest and to join with the
assignee in satisfying conditions precedent to the admission of the assignee as
a Substitute Limited Partner.


 


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


 


ARTICLE 10


 


BOOKS AND RECORDS; ACCOUNTING;
TAX MATTERS


 


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


 


10.2                        Custody of
Partnership Funds; Bank Accounts.


 


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


 


(b)                                 All deposits
and other funds not needed in the operation of the business of the Partnership
may be invested by the General Partner in investment grade instruments (or
investment companies whose portfolio consists primarily thereof), government
obligations, certificates of deposit, 


 


41

















 


bankers’ acceptances and municipal notes and
bonds.  The funds of the Partnership
shall not be commingled with the funds of any other Person except for such
commingling as may necessarily result from an investment in those investment
companies permitted by this Section 10.2(b).


 


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


 


10.4                        Annual Tax Information and Report.  Within 75 days after the end of each
fiscal year of the Partnership, the General Partner shall furnish to each
person who was a Limited Partner at any time during such year the tax
information necessary to file such Limited Partner’s individual tax returns as
shall be reasonably required by law.


 


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


 


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


 


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


 


(c)                                  In the event of
a Transfer of all or any part of the Partnership Interest of any Partner, the
Partnership, at the option of the General Partner, may elect pursuant to Section 754
of the Code to adjust the basis of the Partnership’s assets.  Notwithstanding anything contained in Article 5
of this Agreement, any adjustments made pursuant to Section 754 of the
Code shall affect only the successor in interest to the Transferring Partner
and in no event shall be taken into account in establishing, maintaining or
computing Capital Accounts for the other Partners for any purpose under this
Agreement.  Each Partner will furnish the
Partnership with all information necessary to give effect to such election.


 


42

















 


(d)                                 To the extent
provided for in Regulations, revenue rulings, revenue procedures and/or other
IRS guidance issued after the date hereof, the Partnership is hereby authorized
to, and at the direction of the General Partner shall, elect a safe harbor
under which the fair market value of any Partnership Interests issued after the
effective date of such Regulation (or other guidance) will be treated as equal
to the liquidation value of such Partnership Interests (i.e., a value equal to
the total amount that would be distributed with respect to such interests if
the Partnership sold all of its assets for their fair market value immediately
after the issuance of such Partnership Interests, satisfied its liabilities
(excluding any non-recourse liabilities to the extent the balance of such
liabilities exceed the fair market value of the assets that secure them) and
distributed the net proceeds to the Partners under the terms of this
Agreement).  In the event that the
Partnership makes a safe harbor election as described in the preceding sentence,
each Partner hereby agrees to comply with all safe harbor requirements with
respect to transfers of such Partnership Interest while the safe harbor
election remains effective.


 


10.6                        Reports to
Limited Partners.


 


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


 


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


 


ARTICLE 11


 


AMENDMENT OF AGREEMENT; MERGER


 


The
General Partner’s consent shall be required for any amendment to this
Agreement.  The General Partner, without
the consent of the Limited Partners, may amend this Agreement in any respect or
merge or consolidate the Partnership with or into any other partnership or
business entity (as defined in Section 17-211 of the Act) in a transaction
pursuant to Section 7.1(c), (d) or 


 


43

















 


(e) hereof;  provided
, 
however , that the following amendments and any other merger
or consolidation of the Partnership shall require the consent of Limited
Partners holding more than 50% of the Percentage Interests of the Limited
Partners:


 


(a)                                  any amendment
affecting the operation of the Conversion Factor or the Exchange Right (except
as provided in Section 8.4(d) or 7.1(d) hereof) in a manner
adverse to the Limited Partners;


 


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


 


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


 


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


 


ARTICLE 12


 


GENERAL PROVISIONS


 


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


 


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


 


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


 


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


 


12.5                        Entire Agreement.  This
Agreement and exhibits attached hereto constitute the entire Agreement of the
Partners and supersede all prior written agreements and prior and


 


44






 










 


contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof.


 


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


 


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


 


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


 


12.9                        Governing Law.  This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.


 


IN
WITNESS WHEREOF, the General Partner has hereunder affixed its signature to
this Agreement, as of the        day of April   ,
2010.


 


 


 


	
  GENERAL PARTNER:

  	
   

  
	
   

  	
   

  
	
  AMERICOLD REALTY TRUST

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


45

















 


EXHIBIT A


 

















 


EXHIBIT B


 


NOTICE OF EXERCISE OF EXCHANGE RIGHT


 


In
accordance with Section 8.4 of the Agreement of Limited Partnership (the “Agreement”)
of Americold Realty Operating Partnership LP, the undersigned hereby
irrevocably (i) presents for exchange             
Partnership Units in Americold Realty Operating Partnership LP in accordance
with the terms of the Agreement and the Exchange Right referred to in Section 8.4
thereof, (ii) surrenders such Partnership Units and all right, title and
interest therein, and (iii) directs that the Cash Amount or REIT Shares
Amount (as defined in the Agreement) as determined by the General Partner
deliverable upon exercise of the Exchange Right be delivered to the address
specified below, and if REIT Shares (as defined in the Agreement) are to be
delivered, such REIT Shares be registered or placed in the name(s) and at
the address(es) specified below.


 


 


	
  Dated:
                  ,

  	
   

  	
   

  
	
   

  	
   

  	
  (Name
  of Limited Partner)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature
  of Limited Partner)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Mailing
  Address)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (City)
  (State) (Zip Code)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guaranteed by:

  
	
   

  	
   

  	
   

  
	
  If
  REIT Shares are to be issued, issue to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Social
  Security or Tax I.D. Number: