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Exhibit 10.5  


 
 

FORM    
    
    OF    
    
    LIMITED PARTNERSHIP AGREEMENT    
    
    OF    
    
    DIVIDEND CAPITAL TOTAL REALTY OPERATING PARTNERSHIP LP    
    
    A DELAWARE LIMITED PARTNERSHIP
 
    
    [                        ], 2005    










   TABLE OF CONTENTS  



	RECITALS	 	1
	

Article 1 DEFINED TERMS	
 	

1
	

Article 2 PARTNERSHIP FORMATION AND IDENTIFICATION	
 	

9
	 	2.1	 	Formation.	 	9
	 	2.2	 	Name, Office and Registered Agent.	 	9
	 	2.3	 	Partners.	 	9
	 	2.4	 	Term and Dissolution.	 	9
	 	2.5	 	Filing of Certificate and Perfection of Limited Partnership.	 	10
	 	2.6	 	Certificates Describing Partnership Units and Special 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.	 	13
	 	4.5	 	Percentage Interests.	 	13
	 	4.6	 	No Interest On Contributions.	 	13
	 	4.7	 	Return Of Capital Contributions.	 	13
	 	4.8	 	No Third Party Beneficiary.	 	14
	

Article 5 PROFITS AND LOSSES; DISTRIBUTIONS	
 	

14
	 	5.1	 	Allocation of Profit and Loss.	 	14
	 	5.2	 	Distribution of Cash.	 	16
	 	5.3	 	REIT Distribution Requirements.	 	17
	 	5.4	 	No Right to Distributions in Kind.	 	18
	 	5.5	 	Limitations on Return of Capital Contributions.	 	18
	 	5.6	 	Distributions Upon Liquidation.	 	18
	 	5.7	 	Substantial Economic Effect.	 	18
	

Article 6 RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER	
 	

18
	 	6.1	 	Management of the Partnership.	 	18
	 	6.2	 	Delegation of Authority.	 	20
	 	6.3	 	Indemnification and Exculpation of Indemnitees.	 	20
	 	6.4	 	Liability of the General Partner.	 	22
	 	6.5	 	Reimbursement of General Partner.	 	23
	 	6.6	 	Outside Activities.	 	23
	 	6.7	 	Employment or Retention of Affiliates.	 	23
	 	6.8	 	General Partner Participation.	 	24
	 	6.9	 	Title to Partnership Assets.	 	24
	 	6.10	 	Miscellaneous.	 	24
	

Article 7 CHANGES IN GENERAL PARTNER	
 	

25
	 	7.1	 	Transfer of the General Partner's Partnership Interest.	 	25
	 	7.2	 	Admission of a Substitute or Additional General Partner.	 	26
	 	7.3	 	Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner.	 	27
	 	7.4	 	Removal of a General Partner.	 	27
	 	 	 	 	 





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Article 8 RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS	
 	

28
	 	8.1	 	Management of the Partnership.	 	28
	 	8.2	 	Power of Attorney.	 	28
	 	8.3	 	Limitation on Liability of Limited Partners.	 	28
	 	8.4	 	Ownership by Limited Partner of Corporate General Partner or Affiliate.	 	29
	 	8.5	 	Redemption Right.	 	29
	 	8.6	 	Registration.	 	30
	 	8.7	 	Redemption of Special Partnership Units.	 	31
	 	8.8	 	Distribution Reinvestment Plan.	 	32
	

Article 9 TRANSFERS OF LIMITED PARTNERSHIP INTERESTS	
 	

32
	 	9.1	 	Purchase for Investment.	 	32
	 	9.2	 	Restrictions on Transfer of Limited Partnership Interests.	 	32
	 	9.3	 	Admission of Substitute Limited Partner.	 	33
	 	9.4	 	Rights of Assignees of Partnership Interests.	 	34
	 	9.5	 	Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner.	 	35
	 	9.6	 	Joint Ownership of Interests.	 	35
	

Article 10 BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS	
 	

35
	 	10.1	 	Books and Records.	 	35
	 	10.2	 	Custody of Partnership Funds; Bank Accounts.	 	35
	 	10.3	 	Fiscal and Taxable Year.	 	36
	 	10.4	 	Annual Tax Information and Report.	 	36
	 	10.5	 	Tax Matters Partner; Tax Elections; Special Basis Adjustments.	 	36
	 	10.6	 	Reports to Limited Partners.	 	36
	

Article 11 AMENDMENT OF AGREEMENT; MERGER	
 	

37
	

Article 12 GENERAL PROVISIONS	
 	

37
	 	12.1	 	Notices.	 	37
	 	12.2	 	Survival of Rights.	 	37
	 	12.3	 	Additional Documents.	 	37
	 	12.4	 	Severability.	 	37
	 	12.5	 	Entire Agreement.	 	38
	 	12.6	 	Pronouns and Plurals.	 	38
	 	12.7	 	Headings.	 	38
	 	12.8	 	Counterparts.	 	38
	 	12.9	 	Governing Law.	 	38




EXHIBITS  


EXHIBIT
A—Partners, Capital Contributions and Percentage Interests or Special Percentage Interests 


EXHIBIT
B—Notice of Exercise of Redemption Right 


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LIMITED PARTNERSHIP AGREEMENT

OF

DIVIDEND CAPITAL TOTAL REALTY OPERATING PARTNERSHIP L.P.  


RECITALS  


        This Limited Partnership Agreement (this "Agreement") is entered into this    day
of                        , 2005, between Dividend Capital Total Realty
Trust, Inc., a Maryland corporation (the "General Partner") and the Limited Partners set forth on Exhibit A attached hereto. Capitalized
terms used herein but not otherwise defined shall have the meanings given them in Article 1. 


AGREEMENT  


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


        WHEREAS,
Dividend Capital Total Realty Operating Partnership LP (the "Partnership"), was formed on April 11, 2005 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 12, 2005; 


        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,
the Limited Partners will contribute certain of their property to the Partnership in exchange for Partnership Units or Special Partnership Units 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; and 


        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: 


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 a redemption pursuant to Section 8.5 hereof or REIT Shares issued
pursuant to a dividend reinvestment plan of the General Partner) or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase REIT Shares,
as set forth in Section 4.2(a)(ii). 







 



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


        "ADVISOR"
or "ADVISORS" means the Person or Persons, if any, appointed, employed or contracted with by the General Partner and responsible for directing or performing the
day-to-day business affairs of the General Partner, including any Person to whom the Advisor subcontracts substantially all of such functions. 



        "ADVISORY
AGREEMENT" means the agreement between the General Partner and the Advisor pursuant to which the Advisor will direct or perform the day-to-day business
affairs of the General Partner. 


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


        "AGGREGATE
SHARE OWNERSHIP LIMIT" shall have the meaning set forth in the Articles of Incorporation. 


        "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 or Special Partnership Units issued to each Partner, and the Agreed Value of non-cash Capital Contributions as of the
date of contribution are set forth on Exhibit A. 


        "AGREEMENT"
means this Limited Partnership Agreement, as amended, modified supplemented or restated from time to time, as the context requires. 


        "APPLICABLE
PERCENTAGE" has the meaning provided in Section 8.5(b) hereof. 


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


        "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 net 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, reduced by any amounts attributable to the inclusion of liabilities in basis pursuant to Section 752 of the Code,
except that the Carrying Values of 


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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. 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 lesser of (i) the Value of the REIT Shares Amount on the date of receipt by the General Partner of a Notice
of Redemption or (ii) the applicable Redemption Price determined by the General Partner. 


        "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
SHARE OWNERSHIP LIMIT" shall have the meaning set forth in the Articles of Incorporation. 


        "CONVERSION"
shall have the meaning set forth in the Articles of Incorporation. 


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


        "DIRECTOR"
shall have the meaning set forth in the Articles of Incorporation. 


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        "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. 


        "EXCEPTED
HOLDER LIMIT" shall have the meaning set forth in the Articles of Incorporation. 



        "GENERAL
PARTNER" means Dividend Capital Total Realty Trust, Inc., a Maryland corporation, 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. 


        "INDEPENDENT
DIRECTORS" shall have the meaning set forth in the Articles of Incorporation. 


        "JOINT
VENTURE" means any joint venture or general partnership arrangement in which the Partnership is a co-venturer or general partner which are established to acquire Real
Property. 


        "LIMITED
PARTNER" means any Person named as a Limited Partner on Exhibit A attached 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. 


        "LISTING"
means the listing of the shares of the General Partner's stock, previously issued by the General Partner pursuant to an effective registration statement and such shares
currently registered with the Commission pursuant to an effective registration statement, on a national securities exchange or the quotation of the shares on the Nasdaq National market. Upon such
Listing, the shares shall be deemed "LISTED". 


        "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. 


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        "MORTGAGES"
means, in connection with any mortgage financing provided, invested in, participated in or purchased by the Partnership, all of the notes, deeds of trust, mortgages, security
interests or other evidences of indebtedness or obligations, which are secured by or, collateralized by, or applicable to any Real Property owned by the borrowers under such notes, deeds of trust,
mortgages, security interests or other evidences of indebtedness or obligations. 



        "NET
SALES PROCEEDS" means (i) in the case of a transaction described in clause (A)(i) of the definition of Sale, the proceeds of any such transaction less the
amount of selling expenses incurred by or on behalf of the Partnership, including all real estate commissions, closings costs and legal fees and expenses; (A)(ii) in the case of a transaction
described in clause (ii) of the definition of Sale, the proceeds of any such transaction less the amount of selling expenses incurred by or on behalf of the Partnership, including any legal
fees and expenses and other selling expenses incurred in connection with such transaction; (iii) in the case of a transaction described in clause (A)(iii) of the definition of
Sale, the proceeds of any such transaction actually distributed to the Partnership from the Joint Venture less the amount of any selling expenses incurred by or on behalf of the Partnership (other
than those paid by the Joint Venture); (iv) in the case of a transaction described in clause (A)(iv) of the definition of Sale, the proceeds of any such transaction (including the
aggregate of all payment under a Mortgage on or in satisfaction thereof other than regularly schedule interest payments) less the amount of selling expenses incurred by or on behalf of the
Partnership, including all commissions, closing cots and legal fees and expenses; (v) in the case of a transaction described in clause (A)(v) of the definition of Sale, the
proceeds of any such transaction less the amount of selling expenses incurred by or on behalf of the Partnership, including any legal fees and expenses and other selling expenses incurred in
connection with such transaction; and (vi) in the case of a transaction described in clause (B) of the definition of Sale, the proceeds of such transaction or series of transactions less
all amounts generated thereby which are reinvested in one or more assets as described in clause (B) of the definition of Sale within 180 days thereafter and less the amount of any real
estate commissions, closing costs, and legal fees and expenses and other selling expenses incurred by or allocated to the Partnership in connection with such transaction or series of transactions. Net
Sale Proceeds shall also include any amounts that the General Partner determines, in its discretion, to be economically equivalent to the proceeds of a Sale. Net Sales Proceeds shall not include any
reserves established by the Partnership in its sole discretion. 


        "NOTICE
OF REDEMPTION" means the Notice of Exercise of Redemption Right substantially in the form attached as Exhibit B hereto. 


        "OFFER"
has the meaning set forth in Section 7.1(c) hereof. 


        "OFFERING"
means the initial offer and sale of REIT Shares to the public. 


        "OP
UNITHOLDERS" means all holders of Partnership Interests other than the Special OP Unitholders. 



        "ORIGINAL
LIMITED PARTNER" means the Limited Partners designated as "Original Limited Partners" on Exhibit A hereto. 


        "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 Dividend Capital Total Realty Operating Partnership LP, a Delaware limited partnership. 


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        "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 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 shareholders 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 excluding the Partnership Interests represented by Special
Partnership Units. The allocation of Partnership Units among the Partners shall be as set forth on Exhibit A, 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, 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 Real Property, Real Estate Securities or other investment in which the Partnership holds an ownership interest. 


        "REAL
ESTATE SECURITIES" means the real estate related securities, or such investments the General Partner and the Advisor mutually designate as Real Estate Securities to the extent such
investments could be classified as either Real Estate Securities or Real Property, typically consisting of (i) securities of other real estate investment trusts or real estate companies,
(ii) shares of open-end and/or closed-end real estate funds, and (iii) mortgages or interests in pools of mortgages secured by real estate, which are acquired by
the Partnership, either directly or through joint venture arrangements or other partnerships. 


        "REAL
PROPERTY" means (i) the real properties, including the buildings located thereon, or (ii) the real properties only, or (iii) the buildings only, which are
acquired by the Partnership, either directly or through joint venture arrangements or other partnerships, or (iv) such investments the General Partner and the Advisor mutually designate as Real
Property to the extent such investments could be classified as either Real Property or Real Estate Securities. 


        "REDEMPTION
PRICE" means the Value of the REIT Shares Amount on the date of receipt by the General Partner of a Notice of Redemption multiplied by any discount determined by the General
Partner, including but not limited to, any discount based upon the combined number of years that the applicable Partner has held the Partnership Units offered for redemption. 



        "REDEMPTION
RIGHT" has the meaning provided in Section 8.5(a) hereof. 


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        "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 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 a Tendering Party, multiplied by the Conversion Factor
as adjusted to and including the Specified Redemption 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 shareholders 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
Redemption 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. 


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


        "SALE"
means (A) any transaction or series of transactions whereby: (i) the Partnership directly or indirectly (except as described in other subsections of this definition)
sells, grants, transfers, conveys, or relinquishes its ownership of any Real Property or portion thereof, including the lease of any Real Property consisting of the building only, and including any
event with respect to any Real Property which gives rise to a significant amount of insurance proceeds or condemnation awards; (ii) the Partnership directly or indirectly (except as described
in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes its ownership of all or substantially all of the interest of the Partnership in any Joint Venture;
(iii) any Joint Venture directly or indirectly (except as described in 


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other
subsections of this definition) in which the Partnership as a co-venturer or partner sells, grants, transfers, conveys, or relinquishes its ownership of any Real Property or portion
thereof, including any event with respect to any Real Property which gives rise to insurance claims or condemnation awards; (iv) the Partnership directly or indirectly (except as described in
other subsections of this definition) sells, grants, conveys or relinquishes its interest in any Mortgage or portion thereof (including with respect to any Mortgage, all payments thereunder or in
satisfaction thereof other than regularly scheduled interest payments) of amounts owed pursuant to such Mortgage and any event which gives rise to a significant among of insurance proceeds or similar
awards; or (v) the Partnership directly or indirectly (except as described in any other subsections of this definition) sells, grants, transfers, conveys, or relinquishes it ownership of any
other Real Property, Mortgage or other investment owner by the Partnership, directly or indirectly through one or more of its Affiliates, and any other investment made, directly or indirectly through
one of more of its Affiliates, not previously described in this definition of any portion thereof, but (B) not including any transaction or series of transactions specified in clause (A)
(i) through (v) above in which the proceeds of such transaction or series of transactions are reinvested by the Partnership in one or more such assets within 180 days thereafter. 


        "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. 


        "SPECIAL
OP UNITHOLDERS" means the holders of Special Partnership Units. 


        "SPECIAL
PARTNERSHIP UNIT" means a unit of a series of Partnership Interests, designated as Special Partnership Units, issued pursuant to Section 4.1. The number of Special
Partnership Units outstanding and the Special Percentage Interests in the Partnership represented by such Special Partnership Units are set forth on  Exhibit A, as such Exhibit may be amended from
time to time. A holder of a Special Partnership Unit shall have the same rights and preferences as
a holder of a Partnership Unit under this Agreement that is a Limited Partner except as set forth in Sections 5.1(c), 5.2(b), 7.1(c), 8.5, 8.6 and 8.7. 


        "SPECIAL
PERCENTAGE INTEREST" shall mean the percentage ownership interest in the Partnership of each Special OP Unitholder, as determined by dividing the Special Partnership Units owned
by each Special OP Unitholder by the total number of Special Partnership Units then outstanding. The Special Percentage Interest of each Partner shall be as set forth on  Exhibit A, as such Exhibit
may be amended from time to time. 


        "SPECIFIED
REDEMPTION DATE" means the first business day of the month that is at least sixty (60) business days after the receipt by the General Partner of the Notice of
Redemption. 


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



        "SUBSIDIARY
PARTNERSHIP" means any partnership 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" contained herein. 


        "SURVIVOR
"has the meaning set forth in Section 7.1(d) hereof. 


        "TAX
MATTERS PARTNER" has the meaning described in Section 10.5(a) hereof. 


8







 



        "TERMINATION
EVENT" means the termination or nonrenewal of the Advisory Agreement (i) in connection with a merger, sale of assets or transaction involving the General Partner
pursuant to which a majority of the directors of the General Partner then in office are replaced or removed, (ii) by the Advisor for "good reason" (as defined in the Advisory Agreement) or
(iii) by the General Partner other than for "cause" (as defined in the Advisory Agreement). 


        "TENDERED
UNITS" has the meaning provided in Section 8.5(a) hereof. 


        "TENDERING
PARTY" has the meaning provided in Section 8.5(a) 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. 


        "VALUE"
means the fair market value per share of REIT Shares which will equal: (i) if REIT Shares are Listed, the average closing price per share for the previous thirty business
days, (ii) if REIT Shares are not Listed, the most recent offering price per share or share equivalent of REIT Shares, until December 31st of the year following the year in which the
most recently completed offering of REIT Shares has expired, and (iii) thereafter, such price per REIT Share as the management of the General Partner determines in good faith. 


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 Dividend Capital Total Realty Operating Partnership LP The specified office and place of business of the Partnership shall be 518 17th Street, 17th Floor,
Denver, Colorado 80202. 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 Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. 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. 


        2.3    Partners.    



        (a)   The
General Partner of the Partnership is Dividend Capital Total Realty Trust, Inc., a Maryland corporation. Its principal place of business is the same as that
of the Partnership. 


        (b)   The
Limited Partners are those Persons identified as Limited Partners 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, 2035, 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 




9







 


additional
partners, and such General Partner and such partners comply with any other applicable requirements of this Agreement; 


        (ii)   The
passage of ninety (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 any Certificate(s) and liquidate the Partnership's assets and apply and distribute the proceeds thereof in accordance with
Section 5.6 hereof. 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(s) 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 and Special Partnership
Units.    At the request of a Limited Partner, the General Partner, at its option, may issue (but in no way is obligated to issue) a certificate summarizing the terms
of such Limited Partner's interest in the Partnership, including the number of Partnership Units and Special Partnership Units owned and the Percentage Interest and Special Percentage Interest
represented by such Partnership Units and Special 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 and Special Partnership Units represented by this certificate are governed by and transferable only in accordance with the
provisions of the Limited Partnership Agreement of Dividend Capital Total 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 qualify
or cease qualifying as a REIT, the Partners acknowledge that the General Partner intends to 


10







 



qualify
as a REIT for federal income tax purposes and upon such qualification 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. 


ARTICLE 4

CAPITAL CONTRIBUTIONS AND ACCOUNTS  


        4.1    Capital Contributions.    The General Partner and the initial
Limited Partners have made capital contributions to the Partnership in exchange for the Partnership Interests set forth opposite their names on  Exhibit A, 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, 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, including but not limited to Partnership Units issued in connection with
acquisitions of properties, 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 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 shares of stock 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 





11







 






        (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 Independent 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, the issuance of REIT Shares and corresponding Partnership Units pursuant to an employee share purchase plan providing for employee purchases of REIT Shares at a discount from fair
market value or employee stock options that have an exercise price that is less than the fair market value of the REIT Shares, either at the time of issuance or at the time of exercise, and
(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 a redemption pursuant to Section 8.5
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 (other than the Limited Partners that own only 



12







 




Special
Partnership Units) shall form another partnership and contribute sufficient Limited Partnership Interests (other than Special Partnership Units) 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,
provided, however, that the Partnership may not borrow money from its Affiliates, unless a majority of the Directors of the General Partner (including a majority of Independent Directors) not
otherwise interested in such transaction approve the transaction as being fair, competitive, and commercially reasonable and no less favorable to the Partnership than loans between unaffiliated
parties under the same circumstances. 


        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) the Partnership distributes to a Partner more than a de minimis amount of Partnership property
or money as consideration for a Partnership Interest, or (iii) the Partnership is liquidated within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g), the General
Partner shall revalue the property of the Partnership to its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account
Section 7701(g) of the Code) in accordance with Regulations Section 1.704-1(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 if there were a taxable disposition of such property for its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account
Section 7701(g) of the Code) on the date of the revaluation. 


        4.5    Percentage Interests.    If the number of outstanding
Partnership Units increases or decreases during a taxable year, each Partner's Percentage Interest shall be adjusted by the General Partner effective as of the 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 day when the Partnership's property is revalued by the General Partner 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. 


13









   
        4.8    No Third Party Beneficiary.    No creditor or
other third party
having dealings with the Partnership shall have the right to enforce the right or obligation of any Partner to make Capital Contributions or loans or to pursue any other right or remedy hereunder or
at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective
successors and assigns. None of the rights or obligations of the Partners herein set forth to make Capital Contributions or loans to the Partnership shall be deemed an asset of the Partnership for any
purpose by any creditor or other third party, nor may such rights or obligations be sold, transferred or assigned by the Partnership or pledged or encumbered by the Partnership to secure any debt or
other obligation of the Partnership or of any of the Partners. In addition, it is the intent of the parties hereto that no distribution to any Limited Partner shall be deemed a return of money or
other property in violation of the Act. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this 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 OP 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) over the cumulative allocations of Partnership income and gain to the
General Partner under this Section 5.1(b). 


        (c)    Special Allocation with Respect to Sales.    The items of Profit and Loss of the Partnership for each fiscal
year or other applicable period from Sales, other than any such items allocated under Section 5.1(b), shall be allocated among the Partners in a manner that will, as nearly as possible (after
giving effect to the allocations under Section 5.1(a), 5.1(b) and 5.1(d), cause the Capital Account balance of each Partner at the end of such fiscal year or other applicable period to equal
(i) the amount of the hypothetical distribution that such Partner would receive if the Partnership were liquidated on the last day of such period and all assets of the Partnership, including
cash, were sold for cash equal to their Carrying Value, taking into account any adjustments thereto for such period, all liabilities of the Partnership were satisfied in full in cash according to
their terms (limited with respect to each nonrecourse liability to the Carrying Value of the assets securing such liability) and Net Sales Proceeds (after satisfaction of such liabilities) were
distributed in full pursuant to Section 5.2(b)(i), minus (ii) the sum of such Partner's share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain and the amount, if any
and without duplication, that the Partner would be obligated to contribute to the capital of the Partnership, all computed as of the date of the hypothetical sale of
assets.


        (d)    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 



14







 




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 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. 


        (e)    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(e) 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. After the occurrence of an allocation of income or
gain to a Partner in accordance with this Section 5.1(e), to the extent permitted by Regulations Section 1.704-1(b), items of expense or loss shall be allocated to such
Partner in an amount necessary to offset the income or gain previously allocated to such Partner under this Section 5.1(e). 


        (f)    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(d), 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(f). 



        (g)    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 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. 



15







 




        (h)    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(f). 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. 


        (i)    Curative Allocations.    The allocations set forth in Section 5.1(d), (e) and (f) 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(i). 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), (c) and (g). 




        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);
provided, however, that if a new or existing Partner acquires an additional Partnership Interest in exchange for a Capital Contribution on any date other than a Partnership Record Date, the cash
distribution attributable to such additional Partnership Interest relating to the Partnership Record Date next following the issuance of such additional Partnership Interest shall be reduced in the
proportion equal to one minus (i) the number of days that such additional Partnership Interest is held by such Partner bears to (ii) the number of days between such Partnership Record
Date and the immediately preceding Partnership Record Date. 


        (b)   Except
for distributions pursuant to Section 5.6 of this Agreement in connection with the dissolution and liquidation of the Partnership and subject to the
provisions of Section 5.2(c), 5.2(d), 5.3 and 5.5 of this Agreement, distributions shall be made in accordance with the following provisions: 



        (i)    all
distributions of Net Sales Proceeds shall be made: (A) first, 100% to the OP Unitholders in accordance with their respective Percentage Interests on the
Partnership Record Date until the OP Unitholders have received cumulative distributions under this Section 5.2(b) equal to the aggregate Capital Contributions made by the OP Unitholders to the
Partnership plus a cumulative, noncompounded pre-tax rate of return thereon of 6.5% per annum, determined by taking into account the dates on which all such Capital Contributions and
distributions were made and (B) second, (1) 85% to the OP Unitholders, in accordance with their respective Percentage Interests on the Partnership Record Date and (2) 15% to the 




16







 


Special
OP Unitholders in accordance with their respective Special Percentage Interests on the Partnership Record Date; and 



        (ii)   all
distributions of cash other than Net Sales Proceeds shall be made to the OP 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 fifteen (15) days after demand for payment thereof is made by the Partnership on the Limited Partner, the
General Partner, in its sole and absolute discretion, may elect to make the payment to the Partnership on behalf of such Defaulting Limited Partner. In such event, on the date of payment, the General
Partner shall be deemed to have extended a loan (a "General Partner Loan") to the Defaulting Limited Partner in the amount of the payment made by the General Partner and shall succeed to all rights
and remedies of the Partnership against the Defaulting Limited Partner as to that amount. Without limitation, the General Partner shall have the right to receive any distributions that otherwise would
be made by the Partnership to the Defaulting Limited Partner until such time as the General Partner Loan has been paid in full, and any such distributions so received by the General Partner shall be
treated as having been received by the Defaulting Limited Partner and immediately paid to the General Partner. 




        Any
amounts treated as a Partnership Loan or a General Partner Loan pursuant to this Section 5.2(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 shareholder 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. 


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        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), 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 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 and other
Real Estate Securities, that the General Partner determines are necessary or appropriate or in the best interests of the business of the Partnership; 


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


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




18







 





obligations
of the Partnership convertible into any class or series of Partnership Interests, or options, rights, warrants or appreciation rights relating to any Partnership Interests) of the
Partnership; 


        (iv)  to
borrow or lend money for the Partnership, issue or receive evidences of indebtedness in connection therewith, refinance, increase the amount of, modify, amend or
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 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 remuneration as the General Partner may deem reasonable and proper; 




19







 





        (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); 


        (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 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 



20







 

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)   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 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. 



21









  



        (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. 


        (i)    Notwithstanding
the foregoing, the Partnership may not indemnify or hold harmless an Indemnitee for any liability or loss unless all of the following conditions are met:
(i) the Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Partnership; (ii) the Indemnitee was
acting on behalf of or performing services for the Partnership; (iii) the liability or loss was not the result of (A) negligence or misconduct, in the case that the Indemnitee is a
director of the General Partner (other than an Independent Director), the Advisor or an Affiliate of the Advisor or (B) gross negligence or willful misconduct, in the case that the Indemnitee
is an Independent Director; and (iv) the indemnification or agreement to hold harmless is recoverable only out of net assets of the Partnership. In addition, the Partnership shall not provide
indemnification for any loss, liability or expense arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met:
(i) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to the Indemnitee; (ii) such claims have been dismissed
with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against the Indemnitee and
finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and
Exchange Commission and of the published position of any state securities regulatory authority in which Securities were offered or sold as to indemnification for violations of securities laws. 




        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 shareholders 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 shareholders 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 shareholders 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 shareholders or the Limited Partner shall be resolved in favor of the shareholders. The General Partner shall not be liable for monetary damages for losses
sustained, liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions, provided that the General Partner has acted in good faith. 



        (c)   Subject
to its obligations and duties as General Partner set forth in Section 6.1 hereof, the General Partner may exercise any of the powers granted to it under
this Agreement and 



22







 




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 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 shareholder of the General Partner, the General Partner shall be entitled to and may have business interests and engage in business activities in addition to those
relating to the Partnership, including business interests and activities substantially similar or identical to those of the Partnership. Neither the Partnership nor any of the Limited Partners shall
have any rights by virtue of this Agreement in any such business ventures, interests or activities. None of the Limited Partners 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 



23







 




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, in the General Partner's sole discretion, 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 any office, retail, multifamily industrial,
or other Real Property, Real Estate Securities or other property shall be conducted through the Partnership or one or more Subsidiary Partnerships; 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. 


        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 (other than REIT Shares redeemed in accordance with the share redemption program of the General Partner through proceeds received from the General Partner's
dividend reinvestment plan), 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 redeemed such REIT Shares. Moreover, if the General Partner makes a cash tender offer or other offer to acquire REIT Shares, then the
General Partner shall cause the Partnership to make a corresponding offer to the General Partner to acquire an equal number of Partnership Units held by the General Partner. In the event any REIT
Shares are redeemed by the General Partner pursuant to such offer, the Partnership shall redeem an equivalent number of the General Partner's Partnership Units for an equivalent purchase price based
on the application of the Conversion Factor. 


24







 


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). 


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


        (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: 



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


         (ii)  as
a result of such Transaction all Limited Partners will receive (A) 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 Redemption Right and (2) sold, tendered or exchanged pursuant to the Offer the REIT Shares received upon exercise of the Redemption Right
immediately prior to the expiration of the Offer and (B) for each Special Partnership Unit an amount of cash, securities or other property (as applicable based upon the type of consideration
and the proportions thereof paid to holders of REIT Shares in the Transaction) equal to the fair market value of such Special Partnership Unit at such time as determined in good faith by the General
Partner by reference to the value paid for the REIT Shares; 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 (1) 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 and (2) in exchange for their Special Partnership Units, an amount of cash, securities or other property (as applicable
based upon the type of consideration and the proportions thereof paid to holders of REIT Shares in the Transaction) equal to the fair market value of such Special Partnership Units at such time as
determined in good faith by the General Partner by reference to the value paid for the REIT Shares. 




        (d)   Notwithstanding
Section 7.1(c), the General Partner may merge with or into or consolidate with another entity if immediately after such merger or consolidation
(i) substantially all of the assets of the successor or surviving entity (the "Survivor"), other than Partnership Units held by the General Partner, are contributed, directly or indirectly, to
the Partnership as a Capital 



25







 

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 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 8.5 and 8.7 hereof so as to approximate the existing rights and obligations set forth in Sections 8.5 and
8.7 as closely as reasonably possible. The above provisions of this Section 7.1(d) shall similarly apply to successive mergers or consolidations permitted hereunder. 




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



        (e)   Notwithstanding
Section 7.1(c), 



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



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





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



        (a)   the
Person to be admitted as a substitute or additional General Partner shall have accepted and agreed to be bound by all the terms and provisions of this Agreement by
executing a counterpart 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 


        (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
(x) the admission of 



26







 




the
person to be admitted as a substitute or additional General Partner is in conformity with the Act and (y) 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 of, 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 ninety (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 automatically;
provided, however, that if a General Partner is on the date of such occurrence a partnership, the withdrawal, death or dissolution of, 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 ten (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 



27







 




appraiser
shall complete an appraisal of the fair market value of the removed General Partner's General Partnership Interest within thirty (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 forty (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 sixty (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), shall be converted to that of a
special Limited Partner; provided, however, such removed General Partner shall not have any rights to participate in the management and affairs of the Partnership, and shall not be entitled to any
portion of the income, expense, profit, gain or loss allocations or cash distributions allocable or payable, as the case may be, to the Limited Partners. Instead, such removed General Partner shall
receive and be entitled only to retain distributions or allocations of such items that it would have been entitled to receive in its capacity as General Partner, until the transfer is effective
pursuant to Section 7.4(b). 


        (d)   All
Partners shall have given and hereby do give such consents, shall take such actions and shall execute such documents as shall be legally
necessary, desirable 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. 


28









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


        8.5    Redemption Right.    



        (a)   Subject
to Sections 8.5(b), 8.5(c), 8.5(d), 8.5(e) and 8.5(f) 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, after holding their Partnership Units for at least one year, have the right (subject to the terms and
conditions set forth herein) to require the Partnership to redeem (a "Redemption") all or a portion of the Partnership Units held by such Limited Partner in exchange (a "Redemption Right") for REIT
shares issuable on, or the Cash Amount payable on, the Specified Redemption Date, as determined by the General Partner in its sole discretion, provided that such Partnership Units (the "Tendered
Units") shall have been outstanding for at least one year. Any Redemption Right shall be exercised pursuant to a Notice of Redemption delivered to the Partnership (with a copy to the General Partner)
by the Limited Partner exercising the Redemption Right (the "Tendering Party"). No Limited Partner may deliver more than two Notices of Redemption during each calendar year. A Limited Partner may not
exercise the Redemption 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
Tendering Party shall have no right, with respect to any Partnership Units so redeemed, to receive any distribution paid with respect to Partnership Units if the record date for such distribution is
on or after the Specified Redemption Date. 


        (b)   If
the General Partner elects to redeem Tendered Units for REIT Shares rather than cash, then the Partnership shall direct the General Partner to issue and deliver such
REIT Shares to the Tendering Party pursuant to the terms set forth in this Section 8.5(b), in which case, (i) the General Partner, acting as a distinct legal entity, shall assume
directly the obligation with respect thereto and shall satisfy the Tendering Party's exercise of its Redemption Right, and (ii) such transaction shall be treated, for federal income tax
purposes, as a transfer by the Tendering Party of such Tendered Units to the General Partner in exchange for REIT shares. The percentage of the Tendered Units tendered for Redemption by the Tendering
Party for which the General Partner elects to issue REIT Shares (rather than cash) is referred to as the "Applicable Percentage." In making such election to acquire Tendered Units, the Partnership
shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Limited Partners over another nor discriminates against a group or class of Limited Partners. If the
Partnership elects to redeem any number of Tendered Units for REIT Shares, rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the
General Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage. The product of the Applicable Percentage and the REIT Shares
Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and accessible REIT Shares free of any pledge, lien, encumbrance or restriction, other
than the Aggregate Share Ownership Limit (as calculated in accordance with the Articles of Incorporation) and other restrictions provided in the Article of Incorporation, the bylaws of the General
Partner, the Securities Act and relevant state securities or "blue sky" laws. Notwithstanding the provisions of Section 8.5(a) and this Section 8.5(b), the Tendering Parties shall have
no rights under this Agreement that would otherwise be prohibited under the Articles of Incorporation. 



29







 




        (c)   In
connection with an exercise of Redemption Rights pursuant to this Section 8.5, the Tendering Party shall submit the following to the General Partner, in
addition to the Notice of Redemption: 



        (1)   A
written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code
Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) any Related Party and (b) representing that, after giving effect to the Redemption, neither the
Tendering Party nor any Related Party will own REIT Shares in excess of the Aggregate Share Ownership Limit (or, if applicable the Excepted Holder Limit); 


        (2)   A
written representation that neither the Tendering Party nor any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the
Redemption on the Specified Redemption Date; and 


        (3)   An
undertaking to certify, at and as a condition to the closing of the Redemption on the Specified Redemption Date, that either (a) the actual and constructive
ownership of REIT Shares by the Tendering Party and any Related Party remain unchanged from that disclosed in the affidavit required by Section 8.5(c)(1) or (b) after giving effect to
the Redemption, neither the Tendering Party nor any
Related Party shall own REIT Shares in violation of the Aggregate Share Ownership Limit (or, if applicable, the Excepted Holder Limit). 


        (4)   Any
other documents as the General Partner may reasonably require in connection with the issuance of REIT Shares upon the exercise of the Redemption Right. 




        (d)   Any
Cash Amount to be paid to a Tendering Party pursuant to this Section 8.5 shall be paid on the Specified Redemption Date; provided, however, that the General
Partner may elect to cause the Specified Redemption 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 Tendered 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
Redemption Rights to prevent, among other things, (a) any person from owning shares in excess of the Common Share Ownership Limit, the Aggregate Share Ownership Limit and the Excepted Holder
Limit, (b) the General Partner's common stock from being owned by less than 100 persons, the General Partner from being "closely held" within the meaning of section 856(h) of the Code,
and 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 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. 


        (f)    A
redemption fee may be charged in connection with an exercise of Redemption Rights pursuant to this Section 8.5. 




        8.6    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 two (2) weeks prior or subsequent to the first date
upon which the Partnership Units owned by any Limited Partner may be redeemed 



30







 

(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 redemption of such Partnership Units pursuant to Section 8.5 hereof ("Redemption 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 Redemption 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 Redemption Shares by "Affiliates" (as defined in the Securities Act), upon the written request of any Limited Partner or group of Limited Partners holding in the aggregate at least 20,000
Partnership Units, the General Partner agrees to file with the Commission a Registration Statement covering the resale of Redemption Shares by Affiliates or others whose Redemption 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 Redemption 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. 


        (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 Redemption Shares hereunder, list thereon, maintain and, when
necessary, increase such listing to include such Redemption 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 Redemption Shares after the first date upon which, in the opinion of counsel to the General Partner, all of the Redemption Shares
covered thereby could be sold by the holders thereof in any period of three (3) months pursuant to Rule 144 under the Securities Act, or any successor rule thereto. 




        8.7    Redemption of Special Partnership Units.    Upon the earliest
to occur of (a) the termination or nonrenewal of the Advisory Agreement for "cause" (as defined in the Advisory Agreement), (b) a Termination Event, (c) the Listing or
(d) Conversion, the Special Partnership Units will be redeemed. 



        (a)    Redemption of Special Partnership Units Upon Termination or Nonrenewal of the Advisory Agreement for
Cause.    If the Advisory Agreement is terminated or not renewed by the General Partner for "cause" (as defined in the Advisory Agreement), all of the Special
Partnership Units shall be redeemed by the Partnership for $1 within thirty (30) days after the termination or nonrenewal of the Advisory Agreement. 


        (b)    Redemption of Special Partnership Units upon a Termination Event or the Listing, or Conversion.    Upon the
occurrence of a Termination Event, the Listing or Conversion, the Special Partnership Units shall be redeemed for an aggregate amount equal to the Net Sales Proceeds that would have been distributed
to the Special OP Unitholders under Section 5.2(b)(i)(B)(2) if all 



31







 




assets
of the Partnership had been sold for their fair market value and all liabilities of the Partnership had been satisfied in full according to their terms. Such redemption shall occur no later
than 30 days after the date of a Termination Event or Conversion and no later than 240 days after the Listing. In determining the fair market value of the assets of the Partnership,
(i) in connection with a Termination Event or Conversion, the General Partner shall obtain an appraisal of the assets of the Partnership (excluding any assets which may be readily marked to
market) and (ii) in connection with the Listing, the General Partner shall make such determination taking into account the market value of the General Partner's listed shares based upon the
average closing price, or average of bid and asked prices, as the case may be, during a period of thirty (30) days during which such shares are traded beginning 150 days after the
Listing. Payment to Special OP Unitholders upon a Termination Event, a Listing or a Conversion shall consist of a non-interest bearing promissory note that will be repaid using the entire
net proceeds of each sale of an asset or assets of the Partnership in connection with or following the occurrence of the Termination Event, Listing or Conversion. 




        8.8    Distribution Reinvestment Plan.    OP
Unitholders may have the opportunity to join the General Partner's distribution reinvestment plan by completing an enrollment form which is available upon request. A copy of the General Partner's
distribution reinvestment plan is also available upon request. The shares of the General Partner's common stock which may be issued under the General Partner's distribution reinvestment plan are
offered only by a prospectus. 


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 Interest 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) and (c), 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 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 a redemption of all of its
Partnership Units pursuant to Section 8.5 or pursuant to the redemption of the Limited Partner's Special Partnership Units pursuant to 



32







 




Section 8.7.
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)   Notwithstanding
Section 9.2(a) and subject to Sections 9.2(d), (e) and (f) below, a Limited Partner may Transfer, without 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 (other than a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code), (ii) in the opinion of legal counsel for the Partnership, it would adversely affect the ability of the General Partner to continue to qualify as a
REIT or subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code, or (iii) such transfer is effectuated through an "established securities
market" or a "secondary market (or the substantial equivalent thereof)" within the meaning of Section 7704 of the Code. 


        (f)    No
transfer 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 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 




33







 


revised
Exhibit A, and such other documents or instruments as the General Partner may require in order to effect the admission of such Person as a Limited Partner. 


        (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. 



        (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. 



34









   
        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 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, 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 



35







 




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
seventy-five (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. 




        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. 



36







 

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



        (a)   any
amendment affecting the operation of the Conversion Factor or the Redemption Right (except as provided in Section 8.5(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 attached hereto; provided, however, that any Partner may specify a different address by
notifying the General Partner in writing of such different address. Notices to the Partnership shall be delivered at or mailed to its specified office. 


        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. 


37







 



        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 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; provided, however, that any cause of action for violation of federal or state securities laws shall not be governed by this
Section 12.9. 


38








        IN
WITNESS WHEREOF, the parties hereto have hereunder affixed their signatures to this Agreement of Limited Partnership, all as of the            day
of                        , 2005.
 



	 	 	GENERAL PARTNER:
	

 	
 	

DIVIDEND CAPITAL TOTAL REALTY TRUST, INC., a Maryland corporation
	

 	
 	

By:	
 	

 

	 	 	 	 	Name:	 	 	 	 
	 	 	 	 	Title:	 	 	 	 
	

 	
 	

LIMITED PARTNERS:
	

 	
 	

DIVIDEND CAPITAL TOTAL ADVISORS LLC
	

 	
 	

By:	
 	

Dividend Capital Total Advisors Group LLC, Its Sole Member
	

 	
 	

 	
 	

 	
 	

By:	
 	

 
	

 	
 	

 	
 	

By:	
 	

 
 Evan Zucker, Manager of the Sole Member
	

 	
 	

DIVIDEND CAPITAL TOTAL ADVISORS GROUP LLC
	

 	
 	

 	
 	

By:	
 	

 
 Evan Zucker, Manager










   EXHIBIT A  



	Partner
 
	 	Cash

Contribution
	 	Agreed Value

of Capital

Contribution
	 	Partnership

Units
	 	Special

Partnership

Units
	 	Percentage

Interest
	 	Special

Percentage

Interest

	

GENERAL PARTNER:	
 	

 	
 	
 	

 	
 	

 	
 	

 	
 	

 	
 	

 
	

Dividend Capital Total Realty Trust Inc.

518 17th Street, 17th Floor

Denver, CO 80202	
 	

 	
 	
 	

 	
 	

 	
 	

 	
 	

99.0	
%	

 
	

ORIGINAL LIMITED PARTNERS:	
 	

 	
 	
 	

 	
 	

 	
 	

 	
 	

 	
 	

 
	

Dividend Capital Total Advisors LLC

518 17th Street, 17th Floor

Denver, CO 80202	
 	

 	
 	
 	

 	
 	

 	
 	

 	
 	

 	
 	

 
	

Dividend Capital Total Advisors Group LLC

518 17th Street, 17th Floor

Denver, CO 80202	
 	

 	
 	
 	

 	
 	

 	
 	

 	
 	

 	
 	

 
	

Totals	
 	

 	
 	
$	

0	
 	

 	
 	

 	
 	

 	
 	

 




A-1








   EXHIBIT B  


 NOTICE OF EXERCISE OF REDEMPTION RIGHT  


        In accordance with Section 8.5 of the Limited Partnership Agreement (the "Agreement") of Dividend Capital Total Realty Operating Partnership LP, the
undersigned hereby irrevocably (i) presents for redemption            Partnership Units in Dividend Capital Total Realty Operating Partnership LP in accordance with the terms of the
Agreement and the Redemption Right referred to in Section 8.5 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 Redemption 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:	
 	

 
	
 	

 




B-1











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FORM OF LIMITED PARTNERSHIP AGREEMENT OF DIVIDEND CAPITAL TOTAL REALTY OPERATING PARTNERSHIP LP A DELAWARE LIMITED PARTNERSHIP [ ], 2005