exv10w1






Exhibit 10.1




AMENDED AND RESTATED




AGREEMENT OF LIMITED PARTNERSHIP



OF



CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP



                          , 2010








 









 








TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE 1. DEFINED TERMS

	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	2	 
	Section 1.2. Rules of Construction
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 2. ORGANIZATIONAL MATTERS

	 
	 	 	 	 
	Section 2.1. Organization
	 	 	17	 
	Section 2.2. Name
	 	 	17	 
	Section 2.3. Registered Office and Agent; Principal Office
	 	 	17	 
	Section 2.4. Power of Attorney
	 	 	18	 
	Section 2.5. Term
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 3. PURPOSE

	 
	 	 	 	 
	Section 3.1. Purpose and Business
	 	 	19	 
	Section 3.2. Powers
	 	 	19	 
	Section 3.3. Partnership Only for Purposes Specified
	 	 	19	 
	Section 3.4. Representations and Warranties by the Parties
	 	 	20	 
	Section 3.5. Certain ERISA Matters
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 4. CAPITAL CONTRIBUTIONS

	 
	 	 	 	 
	Section 4.1. Capital Contributions
	 	 	22	 
	Section 4.2. Loans by Third Parties
	 	 	22	 
	Section 4.3. Additional Funding and Capital Contributions
	 	 	23	 
	Section 4.4. Other Contribution Provisions
	 	 	27	 
	Section 4.5. No Preemptive Rights
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 5. DISTRIBUTIONS

	 
	 	 	 	 
	Section 5.1. Requirement and Characterization of Distributions
	 	 	27	 
	Section 5.2. Distributions in Kind
	 	 	28	 
	Section 5.3. Distributions Upon Liquidation
	 	 	28	 
	Section 5.4. Distributions to Reflect Issuance of Additional Partnership Interests

	 	 	28	 
	 
	 	 	 	 
	ARTICLE 6. ALLOCATIONS

	 
	 	 	 	 
	Section 6.1. Timing and Amount of Allocations of Net Income and Net Loss
	 	 	28	 
	Section 6.2. General Allocations
	 	 	29	 
	Section 6.3. Special Allocation Provisions
	 	 	30	 
	Section 6.4. Additional Allocation Rules
	 	 	32	 
	Section 6.5. Tax Allocations
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 7. MANAGEMENT AND OPERATIONS OF BUSINESS

	 
	 	 	 	 
	Section 7.1. Management
	 	 	33	 
	Section 7.2. Certificate of Limited Partnership
	 	 	37	 
	Section 7.3. Restrictions on General Partner’s Authority
	 	 	37	 






 









 







	 	 	 	 	 

	Section 7.4. Reimbursement of the General Partner
	 	 	39	 
	Section 7.5. Outside Activities of the General Partner and the Company
	 	 	40	 
	Section 7.6. Contracts with Affiliates
	 	 	41	 
	Section 7.7. Indemnification
	 	 	42	 
	Section 7.8. Liability of the General Partner
	 	 	44	 
	Section 7.9. Other Matters Concerning the General Partner
	 	 	45	 
	Section 7.10. Title to Partnership Assets
	 	 	45	 
	Section 7.11. Reliance by Third Parties
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 8. RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

	 
	 	 	 	 
	Section 8.1. Limitation of Liability
	 	 	46	 
	Section 8.2. Management of Business
	 	 	46	 
	Section 8.3. Outside Activities of Limited Partners
	 	 	47	 
	Section 8.4. Return of Capital
	 	 	47	 
	Section 8.5. Rights of Limited Partners Relating to the Partnership
	 	 	47	 
	Section 8.6. Redemption Rights
	 	 	48	 
	Section 8.7. Conversion of PIUs
	 	 	51	 
	Section 8.8. Voting Rights of PIUs
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 9. BOOKS, RECORDS, ACCOUNTING AND REPORTS

	 
	 	 	 	 
	Section 9.1. Records and Accounting
	 	 	53	 
	Section 9.2. Fiscal Year
	 	 	53	 
	Section 9.3. Reports
	 	 	53	 
	Section 9.4. Nondisclosure of Certain Information
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 10. TAX MATTERS

	 
	 	 	 	 
	Section 10.1. Preparation of Tax Returns
	 	 	54	 
	Section 10.2. Tax Elections
	 	 	54	 
	Section 10.3. Tax Matters Partner
	 	 	54	 
	Section 10.4. Organizational Expenses
	 	 	56	 
	Section 10.5. Withholding
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 11. TRANSFERS AND WITHDRAWALS

	 
	 	 	 	 
	Section 11.1. Transfer
	 	 	56	 
	Section 11.2. Transfer of General Partner’s Partnership Interest
	 	 	57	 
	Section 11.3. Termination Transactions; Transfer of the Company’s Onwership of the
General Partner
	 	 	57	 
	Section 11.4. Limited Partners’ Rights to Transfer
	 	 	58	 
	Section 11.5. Substituted Limited Partners
	 	 	59	 
	Section 11.6. Assignees
	 	 	60	 
	Section 11.7. General Provisions
	 	 	60	 
	 
	 	 	 	 
	ARTICLE 12. ADMISSION OF PARTNERS

	 
	 	 	 	 
	Section 12.1. Admission of Successor General Partner
	 	 	62	 
	Section 12.2. Admission of Additional Limited Partners
	 	 	63	 






 









 






	 	 	 	 	 

	Section 12.3. Amendment of Agreement and Certificate of Limited Partnership

	 	 	63	 
	 
	 	 	 	 
	ARTICLE 13. DISSOLUTION AND LIQUIDATION

	 
	 	 	 	 
	Section 13.1. Dissolution
	 	 	63	 
	Section 13.2. Winding Up
	 	 	64	 
	Section 13.3. Capital Contribution Obligation
	 	 	65	 
	Section 13.4. Distribution to Liquidating Trust; Retention of Reserve
	 	 	66	 
	Section 13.5. Deemed Distribution and Recontribution
	 	 	66	 
	Section 13.6. Rights of Limited Partners
	 	 	66	 
	Section 13.7. Notice of Dissolution
	 	 	66	 
	Section 13.8. Cancellation of Certificate of Limited Partnership
	 	 	67	 
	Section 13.9. Reasonable Time for Winding-Up
	 	 	67	 
	Section 13.10. Waiver of Partition
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 14. AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS

	 
	 	 	 	 
	Section 14.1. Amendments
	 	 	67	 
	Section 14.2. Action by the Partners
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 15. GENERAL PROVISIONS

	 
	 	 	 	 
	Section 15.1. Addresses and Notice
	 	 	68	 
	Section 15.2. Titles and Captions
	 	 	68	 
	Section 15.3. Pronouns and Plurals
	 	 	69	 
	Section 15.4. Further Action
	 	 	69	 
	Section 15.5. Binding Effect
	 	 	69	 
	Section 15.6. Creditors
	 	 	69	 
	Section 15.7. Waiver
	 	 	69	 
	Section 15.8. Counterparts
	 	 	69	 
	Section 15.9. Applicable Law
	 	 	69	 
	Section 15.10. Consent to Jurisdiction
	 	 	69	 
	Section 15.11. Invalidity of Provisions
	 	 	70	 
	Section 15.12. Entire Agreement
	 	 	70	 
	Section 15.13. No Rights as Stockholders
	 	 	70	 











 









 







THE LIMITED PARTNERSHIP INTERESTS REFERRED TO IN THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. REFERENCE IS MADE TO ARTICLE 8
AND ARTICLE 11 OF THIS AGREEMENT FOR PROVISIONS RELATING TO VARIOUS RESTRICTIONS ON THE SALE OR
OTHER TRANSFER OF THESE INTERESTS.




AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF




CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP




     THIS AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the “Agreement”), dated as of
                        
     , 2010, is entered into by and among Campus Crest Communities GP, LLC, a Delaware
limited liability company (“Communities GP”), as the General Partner, and Campus Crest Communities
LP, LLC, a Delaware limited liability company (“Communities LP”), as the Limited Partner, together
with any other Persons who become Partners in the Partnership as provided herein.



     WHEREAS, Campus Crest Communities Operating Partnership, LP, a Delaware limited partnership
(the “Partnership”), was formed pursuant to that certain Certificate of Limited Partnership filed
on March 4, 2010 in the office of the Secretary of State of the State of Delaware and that certain
Agreement of Limited Partnership dated as of March 4, 2010 (the “Initial Agreement”);



     WHEREAS, Campus Crest Communities, Inc., a Maryland corporation (the “Company”) and the sole
member of Communities GP and Communities LP, proposes to effect a public offering of its common
stock and contribute the net proceeds from the public offering to the Partnership, to cause the
Partnership to acquire direct and indirect interests in certain student housing properties and
other assets, and to cause the Partnership to enter into certain financing transactions;



     WHEREAS, the Partnership will issue Partnership Interests to Communities GP, Communities LP
and other Persons who become Partners in the Partnership as provided herein in connection with the
foregoing transactions;



     WHEREAS, in connection with the foregoing transactions or with the existing or future equity
incentive plans or programs of the Company or the Partnership, the Company or the Partnership may
make grants of PIUs (as defined herein) to executives of the Company or its subsidiaries or the
Partnership; and



     WHEREAS, the General Partner desires to amend and restate in its entirety the Initial
Agreement in order to permit and reflect all of the foregoing actions and transactions involving
the Partnership, its Partners and the Company.



     NOW, THEREFORE, BE IT RESOLVED, that for good and adequate consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows.



1









 





ARTICLE 1.

DEFINED TERMS



Section 1.1. Definitions.




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



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



     “Additional Funds” shall have the meaning set forth in Section 4.3.A.



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



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




	 	(i)	 	decrease such deficit by any amounts which such Partner is obligated to restore
pursuant to this Agreement or is deemed to be obligated to restore pursuant to
Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentence of each of
Regulations Sections 1.704-2(i)(5) and 1.704-2(g); and
	 
	 	(ii)	 	increase such deficit by the items described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6).





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



     “Adjustment Date” means, with respect to any Capital Contribution, the close of business on
the Business Day immediately preceding the date of the Capital Contribution, provided, that if such
Capital Contribution is being made by the Company (either directly or indirectly through
Communities GP and Communities LP) in respect of the proceeds from the issuance of REIT Shares (or
the issuance of the Company’s securities exercisable for, convertible into or exchangeable for REIT
Shares), then the Adjustment Date shall be as of the close of business on the Business Day
immediately preceding the date of the issuance of such securities.



     “Adjustment Event” shall have the meaning set forth in Section 4.3.E.(i) hereof.



     “Affiliate” means, with respect to any Person, any Person directly or indirectly controlling,
controlled by or under common control with such Person. Control of any Person means the power to
direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



2









 





     “Agreed Value” means (i) in the case of any Contributed Property set forth in Exhibit A and as
of the time of its contribution to the Partnership, the Agreed Value of such property as set forth
in Exhibit A; (ii) in the case of any Contributed Property not set forth in Exhibit A and as of the
time of its contribution to the Partnership, the fair market value of such property or other
consideration as determined by the General Partner, reduced by any liabilities either assumed by
the Partnership upon such contribution or to which such property is subject when contributed; and
(iii) in the case of any property distributed to a Partner by the Partnership, the fair market
value of such property as determined by the General Partner at the time such property is
distributed, reduced by any liabilities either assumed by such Partner upon such distribution or to
which such property is subject at the time of the distribution as determined under Section 752 of
the Code and the Regulations thereunder.



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



     “Allocation Year” means (i) the period commencing on the Effective Date and ending on December
31, 2010, (ii) any subsequent period commencing on January 1 and ending on the following December
31, or (iii) any portion of the period described in clause (ii) for which the Partnership is
required to allocate Net Income, Net Losses, and other items of Partnership income, gain, loss, or
deduction pursuant to Article 6.



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



     “Assignee” means a Person to whom one or more Partnership Units have been transferred in a
manner permitted under this Agreement, but who has not become a Substituted Limited Partner, and
who has the rights set forth in Section 11.6.



     “Available Cash” means, with respect to any period for which such calculation is being made,
the excess, if any, of “Receipts” over “Expenditures.” For purposes hereof, the term “Receipts”
means the sum of all cash receipts of the Partnership from all sources for such period (including
Net Sale Proceeds and Net Financing Proceeds but excluding Capital Contributions) and any amounts
held as reserves as of the last day of such period which the General Partner reasonably deems to be
in excess of necessary reserves as determined below. The term “Expenditures” means the sum of (a)
all cash expenses of the Partnership for such period, (b) the amount of all payments of principal
of, premium, if any, and interest on account of any indebtedness of the Partnership and (c) such
additions to reserves as of the last day of such period as the General Partner deems necessary or
appropriate or any capital, operating or other expenditure, including, without limitation,
contingent liabilities, but the term “Expenditures” shall not include any expense paid from a
reserve previously established by the Partnership. For this purpose, cash proceeds received by a
Joint Venture Partnership shall not be deemed to be received or available to the Partnership until
(i) the distribution of such proceeds is actually received by the Partnership, or (ii) under the
terms of the Joint Venture Partnership’s partnership



3









 




agreement, the Partnership controls the timing of the Joint Venture Partnership’s
distributions and then only to the extent of the Partnership’s entitlement to such distributions.




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



     “Capital Account” means, with respect to any Partner, the Capital Account maintained for such
Partner in accordance with the following provisions:



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



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



     (c) In the event any interest in the Partnership is transferred in accordance with the terms
of this Agreement (which does not result in a termination of the Partnership for federal income tax
purposes), the transferee shall succeed to the Capital Account of the transferor to the extent it
relates to the transferred interest.



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



     (e) The foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulations Sections 1.704-1(b) and
1.704-2, and shall be interpreted and applied in a manner consistent with such Regulations. In the
event the General Partner shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without limitation, debits or
credits relating to liabilities which are secured by contributed or distributed property or which
are assumed by the Partnership, the General Partner, or the Limited Partners) are computed in order
to comply with such Regulations, the General Partner may make such modification, provided that it
is not likely to have a material effect on the amounts distributable to any Person pursuant to
Article 13 of this Agreement upon the dissolution of the Partnership. The General Partner also
shall (i) make any adjustments that are necessary or appropriate to maintain equality between the
Capital Accounts of the Partners and the amount of Partnership capital reflected on the
Partnership’s balance sheet, as computed for book purposes, in accordance with Regulations Section
1.704-1(b)(2)(iv)(q), and (ii) make any appropriate



4









 




modifications in the event unanticipated events might otherwise cause this Agreement not to
comply with Regulations Section 1.704-1(b) or Section 1.704-2.




     “Capital Contribution” means, with respect to any Partner, the amount of money and the initial
Gross Asset Value of any property (other than money) contributed to the Partnership by such Partner
(net of any liabilities assumed by the Partnership relating to such property and any liability to
which such property is subject).



     “Cash Amount” means, with respect to any Partnership Unit subject to a Redemption, an amount
of cash equal to the Deemed Partnership Interest Value attributable to such Partnership Unit.



     “Certificate” means the Certificate of Limited Partnership relating to the Partnership filed
in the office of the office of the Secretary of State of the State of Delaware on March 4, 2010, as
amended from time to time in accordance with the terms and the Act.



     “Charter” means the Articles of Incorporation of the Company filed with the Maryland State Department of Assessments and Taxation on March 1, 2010 , as further amended or restated
from time to time.



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



     “Common Unit” means a Partnership Unit which is designated as a Common Unit and which has the
rights, preferences and other privileges designated herein in respect of Common Unitholders. The
number of any Common Units owned by a Partner shall be set forth on Exhibit A, as may be amended
from time to time.



     “Common Unitholder” means a Partner that holds Common Units.



     “Common Unit Distribution” shall have the meaning set forth in Section 4.3.E.(ii) hereof.



     “Common Unit Economic Balance” is an amount equal to the quotient that results when (i) the
sum of (x) the Capital Account of the General Partner attributable to its Common Units, (y) the
General Partner’s share of Partner Minimum Gain, if any, and (z) the General Partner’s share of
Partnership Minimum Gain, if any, is divided by (ii) the number of Common Units held by the General
Partner.



     “Communities GP” has the meaning set forth in the first paragraph recitals to this Agreement.



     “Communities LP” has the meaning set forth in the first paragraph recitals to this Agreement.



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



5









 





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



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



     “Consent of the Partners” means the Consent of Partners holding Percentage Interests (other
than PIUs) that in the aggregate are equal to or greater than fifty percent (50%) of the aggregate
Percentage Interests of all Partners, which Consent shall be obtained prior to the taking of any
action for which it is required by this Agreement and may be given or withheld by such Partners, in
their sole and absolute discretion.



     “Constituent Person” shall have the meaning set forth in Section 8.7.B.



     “Constructively Own” means ownership under the constructive ownership rules described in
Exhibit C.



     “Contributed Property” means each property or other asset, in such form as may be permitted by
the Act, but excluding cash, contributed or deemed contributed to the Partnership (or, to the
extent provided in applicable Regulations, deemed contributed to the Partnership on termination and
reconstitution thereof pursuant to Section 708 of the Code).



     “Conversion Date” shall have the meaning set forth in Section 8.7.A.



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



     “Deemed Partnership Interest Value” means, as of any date with respect to any class of
Partnership Interests, the Deemed Value of the Partnership Interests of such class multiplied by
the applicable Partner’s Percentage Interest of such class.



     “Deemed Value of the Partnership Interests” means, as of any date with respect to any class or
series of Partnership Interests, (i) the total number of Partnership Units of the General Partner
in such class or series of Partnership Interests (as provided for in Section 4.1 and Section
4.3.B.) issued and outstanding as of the close of business on such date multiplied by the Fair
Market Value determined as of such date of a share of capital stock of the Company which
corresponds to such class or series of Partnership Interests, as adjusted (x) pursuant to Section



6









 




7.5 (in the event the Company acquires material assets, other than on behalf of the
Partnership) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse
stock splits and combinations, distribution of warrants or options and distributions of evidences
of indebtedness or assets not received by the Company (either directly or indirectly through
Communities GP and Communities LP) pursuant to a pro rata distribution by the Partnership; (ii)
divided by the Percentage Interest of the General Partner in such class or series of Partnership
Interests on such date; provided, that if no outstanding shares of capital stock of the General
Partner correspond to a class of series of Partnership Interests, the Deemed Value of the
Partnership Interests with respect to such class or series shall be equal to an amount reasonably
determined by the General Partner.




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



     “Distribution Payment Date” shall mean the dates upon which the General Partner makes
distributions in accordance with Section 5.1 of the Partnership Agreement.



     “Economic Capital Account Balance” with respect to a PIU Holder means an amount equal to the
sum of: (i) the PIU Holder’s Capital Account balance, (ii) the PIU Holder’s share of Partnership
Minimum Gain, if any, and (iii) the PIU Holder’s share of Partner Minimum Gain, if any, all
determined as of the date the PIU Holder’s Economic Capital Account Balance is to be measured.



     “Effective Date” means the date of closing of the initial public offering of REIT Shares, upon
which date the contributions set forth on Exhibit A shall become effective.



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



     “Fair Market Value” means, with respect to any share of capital stock of the Company, the
average of the daily market price for the five (5) consecutive trading days immediately preceding
the date with respect to which “Fair Market Value” must be determined hereunder or, if such date is
not a Business Day, the immediately preceding Business Day. The market price for each such trading
day shall be: (i) if such shares are listed or admitted to trading on any securities exchange or
the NASDAQ Global Select Market, the closing price, regular way, on such day, or if no such sale
takes place on such day, the average of the closing bid and asked prices on such day, (ii) if such
shares are not listed or admitted to trading on any securities exchange or the NASDAQ Global Select
Market, the last reported sale price on such day or, if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by the quotation source on
which such shares are quoted, or (iii) if such shares are not



7









 




listed or admitted to trading on any securities exchange or the NASDAQ Global Select Market
and no such last reported sale price or closing bid and asked prices are available, the average of
the reported high bid and low asked prices on such day, as reported by the quotation source on
which such shares are quoted, or if there shall be no bid and asked prices on such day, the average
of the high bid and low asked prices, as so reported, on the most recent day (not more than ten
(10) days prior to the date in question) for which prices have been so reported; provided that, if
there are no bid and asked prices reported during the five (5) days prior to the date in question,
the Fair Market Value of such shares shall be determined by the General Partner acting in good
faith on the basis of such quotations and other information as it considers, in its reasonable
judgment, appropriate. In the event the REIT Shares Amount for such shares includes rights that a
holder of such shares would be entitled to receive, then the Fair Market Value of such rights shall
be determined by the General Partner acting in good faith on the basis of such quotations and other
information as it considers, in its reasonable judgment, appropriate; and provided, further that,
in connection with determining the Deemed Value of the Partnership Interests for purposes of
determining the number of additional Partnership Units issuable to the Company (either directly or
indirectly through Communities GP and Communities LP) upon a Capital Contribution funded by an
underwritten public offering of shares of capital stock of the Company, the Fair Market Value of
such shares shall be the public offering price per share of such class of capital stock sold.
Notwithstanding the foregoing, the General Partner in its reasonable discretion may use a different
“Fair Market Value” for purposes of making the determinations under subparagraph (b) of the
definition of “Gross Asset Value” and Section 4.3.D in connection with the contribution of Property
to the Partnership by a third party, provided such value shall be based upon the value per REIT
Share (or per Partnership Unit) agreed upon by the General Partner and such third party for
purposes of such contribution.




     “General Partner” means Communities GP or its successor as general partner of the Partnership.



     “General Partner Interest” means a Partnership Interest held by the General Partner. A General
Partner Interest may be expressed as a number of Partnership Units.



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



     (a) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership
shall be the gross fair market value of such asset, as determined by the contributing Partner and
the General Partner (as set forth on Exhibit A attached hereto, as such Exhibit may be amended from
time to time); provided, that if the contributing Partner is the General Partner then, except with
respect to the General Partner’s initial Capital Contribution which shall be determined as set
forth on Exhibit A, the determination of the fair market value of the contributed asset shall be
determined (i) by the price paid by the General Partner if the asset is acquired by the General
Partner contemporaneously with its contribution to the Partnership, (ii) by Appraisal, if otherwise
acquired by the General Partner, (iii) by the amount of cash if the asset is cash, and (iv) as
reasonably determined by the General Partner if the asset is REIT Shares or other shares of capital
stock of the Company.



8









 





     (b) The Gross Asset Values of all Partnership assets shall be adjusted to equal their
respective gross fair market values, as determined by the General Partner using such reasonable
method of valuation as it may adopt, provided, however, that for such purpose, the net value of all
of the Partnership assets, in the aggregate, shall be equal to the Deemed Value of the Partnership
Interests of all classes of Partnership Interests then outstanding, regardless of the method of
valuation adopted by the General Partner, immediately prior to the times listed below:




	 	(i)	 	the acquisition of an additional interest in the Partnership by
a new or existing Partner in exchange for more than a de minimis Capital
Contribution, or in connection with the issuance of a greater than de minimis
amount of PIUs or if the General Partner reasonably determines that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership in connection with the grant of an
interest in the Partnership (other than a de minimis interest), as
consideration for the provision of services to or for the benefit of the
Partnership by an existing Partner acting in a Partner capacity, or by a new
Partner acting in a Partner capacity or in anticipation of being a Partner;
	 
	 	(ii)	 	the distribution by the Partnership to a Partner of more than a
de minimis amount of Partnership property as consideration for an interest in
the Partnership if the General Partner reasonably determines that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
	 
	 	(iii)	 	the liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g); and
	 
	 	(iv)	 	at such other times as the General Partner shall reasonably
determine necessary or advisable in order to comply with Regulations Sections
1.704-1(b) and 1.704-2.





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



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



     (e) If the Gross Asset Value of a Partnership asset has been determined or adjusted pursuant
to subparagraph (a), (b) or (d), such Gross Asset Value shall thereafter be adjusted by



9









 




the Depreciation taken into account with respect to such asset for purposes of computing Net
Income and Net Losses.




     “Holder” means either the Partner or Assignee owning a Partnership Unit.



     “Immediate Family” means, with respect to any natural Person, such natural Person’s estate or
heirs or current spouse or former spouse, parents, parents-in-law, children (whether natural,
adopted or by marriage), siblings and grandchildren and any trust or estate, all of the
beneficiaries of which consist of such Person or such Person’s spouse, or former spouse, parents,
parents-in-law, children, siblings or grandchildren.



     “Incapacity” or “Incapacitated” means, (i) as to any individual Partner, death, total physical
disability or entry by a court of competent jurisdiction adjudicating him or her incompetent to
manage his or her Person or his or her estate; (ii) as to any corporation which is a Partner, the
filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of
its charter; (iii) as to any partnership which is a Partner, the dissolution and commencement of
winding up of the partnership; (iv) as to any estate which is a Partner, the distribution by the
fiduciary of the estate’s entire interest in the Partnership; (v) as to any trustee of a trust
which is a Partner, the termination of the trust (but not the substitution of a new trustee); or
(vi) as to any Partner, the bankruptcy of such Partner. For purposes of this definition, bankruptcy
of a Partner shall be deemed to have occurred when (a) the Partner commences a voluntary proceeding
seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other
similar law now or hereafter in effect, (b) the Partner is adjudged as bankrupt or insolvent, or a
final and non-appealable order for relief under any bankruptcy, insolvency or similar law now or
hereafter in effect has been entered against the Partner, (c) the Partner executes and delivers a
general assignment for the benefit of the Partner’s creditors, (d) the Partner files an answer or
other pleading admitting or failing to contest the material allegations of a petition filed against
the Partner in any proceeding of the nature described in clause (b) above, (e) the Partner seeks,
consents to or acquiesces in the appointment of a trustee, receiver or liquidator for the Partner
or for all or any substantial part of the Partner’s properties, (f) any proceeding not filed
voluntarily by a Partner seeking liquidation, reorganization or other relief under any bankruptcy,
insolvency or other similar law now or hereafter in effect has not been dismissed within 120 days
after the commencement thereof, (g) the appointment without the Partner’s consent or acquiescence
of a trustee, receiver or liquidator has not been vacated or stayed within 90 days of such
appointment, or (h) an appointment referred to in clause (g) is not vacated within 90 days after
the expiration of any such stay.



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



     “Initial Agreement” has the meaning set forth on the recitals of this Agreement.



10









 





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



     “Joint Venture Partnership” shall mean any Subsidiary Partnership in which the Partnership and
the Company do not own, directly or indirectly, 100% of the ownership interests in the aggregate.



     “Liens” shall mean any liens, security interests, mortgages, deeds of trust, capital leases,
charges, claims, encumbrances, pledges, options, rights of first offer or first refusal and any
other similar encumbrances of any nature whatsoever.



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



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



     “Liquidation Value” means the amount of cash that a recipient of a newly issued partnership
interest would receive, if immediately after the partnership interest was issued: (i) the
Partnership sold all of its assets substantially as an entirety for cash equal to their Fair Market
Value; (ii) the Partnership paid all Partnership liabilities pursuant to Section 13.2, and (iii)
the Partnership distributed the remaining proceeds to the Partners in complete liquidation of the
Partnership.



     “Liquidating Event” shall have the meaning set forth in Section 13.1.



     “Liquidator” shall have the meaning set forth in Section 13.2.A.



     “Majority in Interest of the Limited Partners” means Limited Partners (including in all cases
the Limited Partner Interests held directly or indirectly by the Company) holding in the aggregate
Percentage Interests (other than PIUs) that are greater than fifty percent (50%) of the aggregate
Percentage Interests of all Limited Partners.



     “Net Financing Proceeds” shall mean the cash proceeds received by the Partnership in
connection with any borrowing or refinancing of borrowing by or on behalf of the Partnership or by
or on behalf of any Subsidiary Partnership (whether or not secured), after deduction of all costs
and expenses incurred by the Partnership or the Subsidiary Partnership in connection with such
borrowing, and after deduction of that portion of such proceeds used to (i) acquire the Property
with respect to which any such borrowing was specifically incurred, and (ii) repay any other
indebtedness of the Partnership or Subsidiary Partnerships with respect to which any such
refinancing or borrowing was specifically incurred, or any interest or premium thereon. For this
purpose, cash proceeds received by a Joint Venture Partnership shall not be deemed to be received
or available to the Partnership until (i) such proceeds are distributed and actually



11









 




received by the Partnership, or (ii) under the terms of the Joint Venture Partnership’s
partnership agreement, the Partnership controls the timing and the amount of the Joint Venture
Partnership’s distributions and then only to the extent of the Partnership’s entitlement to such
distributions.




     “Net Sale Proceeds” shall mean the cash proceeds received by or available to the Partnership
in connection with a sale or condemnation of, or casualty or other capital event with respect to,
any asset by or on behalf of the Partnership or by or on behalf of a Subsidiary Partnership, after
deduction of any costs or expenses incurred by the Partnership or a Subsidiary Partnership with
respect to, or payable specifically out of the proceeds of, such transaction (including, without
limitation, any repayment of any indebtedness required to be repaid as a result of such sale
together with accrued interest and premium, if any, thereon and any sales commissions or other
costs and expenses due and payable to any Person in connection with a sale, including to a Partner
or its Affiliates). For this purpose, cash proceeds received by a Joint Venture Partnership shall
not be deemed to be received or available to the Partnership until (i) such proceeds are
distributed and actually received by the Partnership, or (ii) under the terms of the Joint Venture
Partnership’s partnership agreement, the Partnership controls the timing and the amount of the
Joint Venture Partnership’s distributions and then only to the extent of the Partnership’s
entitlement to such distributions.



     “Net Income” or “Net Loss” means for each fiscal year of the Partnership, an amount equal to
the Partnership’s taxable income or loss for such fiscal year, determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain loss, or deduction required to be
stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:



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



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



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



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



12









 





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



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



     (g) Notwithstanding any other provision of this definition of Net Income or Net Loss, any
items which are specially allocated pursuant to Sections 6.3.A. and 6.4 shall not be taken into
account in computing Net Income or Net Loss. The amounts of the items of Partnership income, gain,
loss, or deduction available to be specially allocated pursuant to Sections 6.3.A. and 6.4 shall be
determined by applying rules analogous to those set forth in this definition of Net Income or Net
Loss.



     “New Securities” means (i) any rights, options, warrants or convertible or exchangeable
securities having the right to subscribe for or purchase REIT Shares or other shares of capital
stock of the Company, excluding in each case, securities issued or issuable under any Stock Plan,
or (ii) any Debt issued by the Company that provides any of the rights described in clause (i).



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



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



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



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



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



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



     “Partner Nonrecourse Deductions” shall have the meaning set forth in Regulations Section
1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with respect to a



13









 




Partner Nonrecourse Debt for a Partnership Year shall be determined in accordance with the
rules of Regulations Section 1.704-2(i)(2).




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



     “Partnership Interest” means, an ownership interest in the Partnership of either a Limited
Partner or the General Partner, whether by Common Units, Preferred Units or PIUs, and includes any
and all benefits to which the holder of such a Partnership Interest may be entitled as provided in
this Agreement, together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Partnership Interest may be expressed as a number of the applicable
type of Partnership Units (i.e. Common Units, Preferred Units or PIUs). Unless otherwise expressly
provided for by the General Partner at the time of the original issuance of any Partnership
Interests, all Partnership Interests (whether held by a Limited Partner or a General Partner) shall
be Common Units.



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



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



     “Partnership Unit” means, with respect to any class of Partnership Interest, a fractional,
undivided share of such class of Partnership Interest issued pursuant to Sections 4.1 and 4.3.



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



     “Percentage Interest” means, as to a Partner holding a class or series of Partnership
Interests, its interest in such class or series as determined by dividing the Partnership Units of
such class or series owned by such Partner by the total number of Partnership Units of such class
then outstanding as specified in Exhibit A attached hereto, as such Exhibit may be amended from
time to time. If the Partnership issues more than one class or series of Partnership Interests, the
interest in the Partnership among the classes or series of Partnership Interests shall be
determined as set forth in the amendment to the Partnership Agreement setting forth the rights and
privileges of such additional classes or series of Partnership Interest, if any, as contemplated by
Section 4.3.C.



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



     “PIU” means a Partnership Unit which is designated as a profits interest unit and which has
the rights, preferences and other privileges designated in Section 4.3.E. hereof and elsewhere



14









 




in the Partnership in respect of PIU Holders. The number of any PIUs owned by a Partner shall
be set forth on Exhibit A, as may be amended from time to time.




     “PIU Holder” means a Limited Partner that holds PIUs.



     “PIU Vesting Agreement” means each or any, as the context implies, PIU Vesting Agreement
entered into by a PIU Holder upon acceptance of an award of PIUs under the Plan (as such agreement
may be amended, modified or supplemented from time to time) or in connection with the initial
public offering.



     “Plan Asset Regulation” means the regulations promulgated by the United States Department of
Labor in Title 29, Code of Federal Regulations, Part 2510, Section 2510.3-101, and any successor
regulations thereto.



     “Preferred Unit” means a limited partnership interest (of any series), other than a Common
Unit, represented by a fractional, undivided share of the Partnership Interests of all Partners
issued hereunder and which is designated as a “Preferred Unit” (or as a particular class or series
of Preferred Units) herein and which has the rights, preferences and other privileges designated
herein (including by way of a certificate of designations) in respect of a Preferred Unitholder.
The number of any Preferred Units owned by a Partner shall be set forth on Exhibit A, as may be
amended from time to time.



     “Preferred Unitholder” means a Limited Partner that holds Preferred Units (of any class or
series).



     “Property” means any property or other investment in which the Partnership holds a direct or
indirect ownership interest.



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



     “Redemption” shall have the meaning set forth in Section 8.6.A.



     “Regulations” means the Income Tax Regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).



     “Regulatory Allocations” shall have the meaning set forth in Section 6.3.B.



     “REIT” means an entity qualifying as a real estate investment trust under Sections 856 through
859 of the Code.



     “REIT Requirements” shall have the meaning set forth in Section 5.1.



     “REIT Share” means a share of common stock of the Company.



     “REIT Shares Amount” means, as of any date, an aggregate number of REIT Shares equal to the
number of Tendered Units, as adjusted (x) pursuant to Section 7.5 (in the event the



15









 




Company acquires material assets, other than on behalf of the Partnership) and (y) for stock
dividends and distributions, stock splits and subdivisions, reverse stock splits and combinations,
distributions of rights, warrants or options, and distributions of evidences of indebtedness or
assets relating to assets not received by the Company (either directly or indirectly through
Communities GP and Communities LP) pursuant to a pro rata distribution by the Partnership.




     “Safe Harbor” means the ability to treat the fair market value of a Partnership interest that
is transferred in connection with the performance of services as being equal to the liquidation
value of that interest pursuant to a Safe Harbor Election.



     “Safe Harbor Election” means an election by the Partnership and its Partners to apply the Safe
Harbor described in the Safe Harbor Regulation and IRS Notice 2005-43 issued May 19, 2005.



     “Safe Harbor Regulation” means Prop. Treas. Reg. § 1.83-3(l) issued May 19, 2005.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Securities and Exchange Commission promulgated thereunder and any successor statute thereto.



     “Securities Exchange Act” means the Securities Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder and any successor
statute thereto.



     “Specified Redemption Date” means the day of receipt by the General Partner of a Notice of
Redemption.



     “Stock Plan” means any stock incentive, stock option, stock ownership or employee benefits
plan of the Company.



     “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, joint venture 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 or limited liability company that is a
Subsidiary of the Partnership.



     “Substituted Limited Partner” means a Person who is admitted as a Limited Partner to the
Partnership pursuant to Section 11.5.



     “Surviving Partnership” shall have the meaning set forth in Section 11.3.A.



     “Tax Items” means for income tax purposes each item of income, gain, loss and deduction.



     “Tenant” means any tenant from which the Company derives rent either directly or indirectly
through partnerships or other entities, including the Partnership.



16









 





     “Tendered Units” shall have the meaning set forth in Section 8.6.A.



     “Tendering Partner” shall have the meaning set forth in Section 8.6.A.



     “Termination Transaction” shall have the meaning set forth in Section 11.3.A.



     “Transaction” shall have the meaning set forth in Section 8.7.B.



     “Unvested PIUs” means each or any, as the context implies, PIU that has not yet vested
pursuant to such PIU’s PIU Vesting Agreement.



     “Vested PIUs” means each or any, as the context implies, PIU that has vested pursuant to such
PIU’s PIU Vesting Agreement.


Section 1.2. Rules of Construction




     Unless otherwise indicated, all references herein to “REIT,” “REIT Requirements,” “REIT
Shares” and “REIT Shares Amount” shall apply only with reference to the Company.



ARTICLE 2.

ORGANIZATIONAL MATTERS



Section 2.1. Organization




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


Section 2.2. Name




     The name of the Partnership is “Campus Crest Communities Operating Partnership, LP.” The
Partnership’s business may be conducted under any other name or names deemed advisable by the
General Partner, including the name of the General Partner or any Affiliate thereof. The words
“Limited Partnership,” “LP,” “Ltd.” or similar words or letters shall be included in the
Partnership’s name where necessary for the purposes of complying with the laws of any jurisdiction
that so requires. The General Partner in its sole and absolute discretion may change the name of
the Partnership at any time and from time to time.


Section 2.3. Registered Office and Agent; Principal Office




     The Registered Agent of the Partnership shall be The Corporation Trust Company or such other
Person as the General Partner may select in its sole discretion. The Registered Office of the
Partnership and the address of the principal office of the partnership in Delaware shall be The
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 or such other location as
the General Partner may select in its sole and absolute discretion. The principal office of the
Partnership outside of Delaware is located at 2100 Rexford Road, Suite 414, Charlotte,



17









 




North Carolina 28211, or such other place as the General Partner may from time to time
designate. The Partnership may maintain offices at such other place or places within or outside the
State of North Carolina as the General Partner deems advisable.



Section 2.4. Power of Attorney




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



          (1) execute, swear to, acknowledge, deliver, file and record in the appropriate public offices
(a) all certificates, documents and other instruments (including, without limitation, this
Agreement and the Certificate and all amendments or restatements thereof) that the General Partner
or the Liquidator deems appropriate or necessary to form, qualify or continue the existence or
qualification of the Partnership as a limited partnership (or a partnership in which the Limited
Partners have limited liability) in the State of Delaware and in all other jurisdictions in which
the Partnership may conduct business or own property; (b) all instruments that the General Partner
or any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or
restatement of this Agreement in accordance with its terms; (c) all conveyances and other
instruments or documents that the General Partner or any Liquidator deems appropriate or necessary
to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a certificate of cancellation; (d) all instruments,
agreements or other documents relating to the admission, withdrawal, removal or substitution of any
Partner pursuant to, or to other events described in, Articles 11, 12 or 13 or the Capital
Contribution of any Partner; and (e) all certificates, documents and other instruments relating to
the determination of the rights, preferences and privileges of Partnership Interests; and




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




     B. The foregoing power of attorney is hereby declared to be irrevocable and a power coupled
with an interest, in recognition of the fact that each of the Partners will be relying upon the
power of the General Partner and any Liquidator to act as contemplated by this Agreement in any
filing or other action by it on behalf of the Partnership, and it shall survive and not be affected
by the subsequent Incapacity of any Limited Partner or Assignee and the transfer of all or any
portion of such Limited Partner’s or Assignee’s Partnership Units and shall extend to such Limited
Partner’s or Assignee’s heirs, successors, assigns and personal representatives. Each such Limited
Partner or Assignee hereby agrees to be bound by any representation made by the General Partner or
any Liquidator, acting in good faith pursuant to such power of attorney; and each such Limited
Partner or Assignee hereby waives any and all defenses which may be



18









 




available to contest, negate or disaffirm the action of the General Partner or any Liquidator,
taken in good faith under such power of attorney. Each Limited Partner or Assignee shall execute
and deliver to the General Partner or any Liquidator, within 15 days after receipt of the General
Partner’s or Liquidator’s request therefor, such further designation, powers of attorney and other
instruments as the General Partner or the Liquidator, as the case may be, deems necessary or
appropriate to effectuate this Agreement and the purposes of the Partnership.



Section 2.5. Term




     The Partnership’s term shall commence upon the filing of the Certificate of Limited
Partnership with the Secretary of State of the State of Delaware and shall continue until it is
dissolved pursuant to the provisions of Article 13 or as otherwise provided by law.



ARTICLE 3.

PURPOSE



Section 3.1. Purpose and Business




     The purpose and nature of the business to be conducted by the Partnership is to conduct any
business that may be lawfully conducted by a limited partnership organized pursuant to the Act;
provided, however, that such business shall be limited to and conducted in such a manner as to
permit the Company at all times to qualify as a REIT, unless the Company otherwise ceases to
qualify as a REIT. The General Partner also shall 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.


Section 3.2. Powers




     The Partnership is empowered to do any and all acts and things necessary, appropriate, proper,
advisable, incidental to, desirable or convenient for the furtherance and accomplishment of the
purposes and business described herein and for the protection and benefit of the Partnership,
including, without limitation, full power and authority, directly or through its ownership interest
in other entities, to enter into, perform and carry out contracts of any kind, borrow money and
issue evidences of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other
Liens, acquire, own, manage, improve and develop real property, and lease, sell, transfer and
dispose of real property.


Section 3.3. Partnership Only for Purposes Specified




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



19









 




Section 3.4. Representations and Warranties by the Parties




     A. Each Partner that is an individual represents and warrants to each other Partner that (i)
such Partner has the legal capacity to enter into this Agreement and perform such Partner’s
obligations hereunder, (ii) except as disclosed in a contribution agreement by and between the
Partner, the Company and the Partnership with respect to any transfer of property to the
Partnership, the consummation of the transactions contemplated by this Agreement to be performed by
such Partner will not result in a breach or violation of, or a default under, any agreement by
which such Partner or any of such Partner’s property is or are bound, or any statute, regulation,
order or other law to which such Partner is subject, (iii) such Partner is a “United States person”
within the meaning of Section 7701(a)(30) of the Code, and (iv) this Agreement is binding upon, and
enforceable against, such Partner in accordance with its terms.



     B. Each Partner that is not an individual represents and warrants to each other Partner that
(i) its execution and delivery of this Agreement and all transactions contemplated by this
Agreement to be performed by it have been duly authorized by all necessary action, including
without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries,
directors and/or stockholder(s), as the case may be, as required, (ii) except as disclosed in a
contribution agreement by and between the Partner, the Company and the Partnership with respect to
any transfer of property to the Partnership, the consummation of such transactions shall not result
in a breach or violation of, or a default under, its certificate of limited partnership,
partnership agreement, trust agreement, limited liability company operating agreement, charter,
bylaws or other agreements or instruments governing its organization and operation, as the case may
be, any agreement by which such Partner or any of such Partner’s properties or any of its partners,
beneficiaries, trustees or stockholders, as the case may be, is or are bound, or any statute,
regulation, order or other law to which such Partner or any of its partners, trustees,
beneficiaries or stockholders, as the case may be, is or are subject, (iii) such Partner is a
“United States person” within the meaning of Section 7701(a)(30) of the Code, and (iv) this
Agreement is binding upon, and enforceable against, such Partner in accordance with its terms.



     C. Each Partner represents, warrants, and agrees that it has acquired and continues to hold
its interest in the Partnership for its own account for investment only and not for the purpose of,
or with a view toward, the resale or distribution of all or any part thereof, nor with a view
toward selling or otherwise distributing such interest or any part thereof at any particular time
or under any predetermined circumstances. Each Partner further represents and warrants that it is a
sophisticated investor, able and accustomed to handling sophisticated financial matters for itself,
particularly real estate investments, and that it has a sufficiently high net worth that it does
not anticipate a need for the funds it has invested in the Partnership in what it understands to be
a highly speculative and illiquid investment. Each Partner represents, warrants and agrees that
such Partner is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D
under the Securities Act).



     D. Each Partner acknowledges that (i) the Partnership Units have not been registered under the
Securities Act and may not be transferred unless they are subsequently registered under the
Securities Act or an exemption from such registration is available (it being understood that the
Partnership has no intention of so registering the Partnership Units) and any REIT Shares that
might be issued in exchange for Partnership Units may not be registered under the Securities Act,



20









 




which would limit the transferability of such REIT Shares in a manner similar to the
limitations described above for the Partnership Units and (ii) a notation shall be made in the
appropriate records of the Partnership indicating that the Partnership Units are subject to
restrictions on transfer.




     E. Each Partner further represents, warrants, covenants and agrees as follows:



          (1) Except as provided in Exhibit D, at any time such Partner actually or Constructively Owns
a 25% or greater capital interest or profits interest in the Partnership, it does not and will not,
without the prior written consent of the General Partner (or in the case of the General Partner, a
Majority in Interest of the Partners exclusive of the interest of the General Partner), actually
own or Constructively Own (a) with respect to any Tenant that is a corporation, any stock of such
Tenant, and (b) with respect to any Tenant that is not a corporation, any interests in either the
assets or net profits of such Tenant.




          (2) Upon request of the General Partner (or in the case of the General Partner, a Majority in
Interest of the Partners exclusive of the interest of the General Partner), it will promptly
disclose to the General Partner the amount of REIT Shares or other shares of capital stock of the
Company that it actually owns or Constructively Owns.




     Each Partner understands that if, for any reason, (a) the representations, warranties or
agreements set forth in E.(1) or (2) above are violated, or (b) the Partnership’s actual or
Constructive Ownership of REIT Shares or other shares of capital stock of the Company violates the
limitations set forth in the Charter, then (x) some or all of the Redemption rights of the Partners
may become non-exercisable, and (y) some or all of the REIT Shares owned by the Partners may be
automatically transferred to a trust for the benefit of a charitable beneficiary, as provided in
the Charter.



     F. The representations and warranties contained in this Section 3.4 shall survive the
execution and delivery of this Agreement by each Partner and the dissolution and winding up of the
Partnership.



     G. Each Partner hereby acknowledges that no representations as to potential profit, cash
flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner
have been made by any Partner or any employee or representative or Affiliate of any Partner, and
that projections and any other information, including, without limitation, financial and
descriptive information and documentation, which may have been in any manner submitted to such
Partner shall not constitute any representation or warranty of any kind or nature, express or
implied.


Section 3.5. Certain ERISA Matters




     Each Partner acknowledges that the Partnership is intended to qualify as a “real estate
operating company” (as such term is defined in the Plan Asset Regulation). The General Partner
shall use its commercially reasonable efforts to structure the investments in, relationships with
and conduct with respect to Properties and any other assets of the Partnership so that the
Partnership will be a “real estate operating company” (as such term is defined in the Plan Asset
Regulation).



21









 





ARTICLE 4.

CAPITAL CONTRIBUTIONS



Section 4.1. Capital Contributions.




     A. Concurrently herewith, the General Partner shall contribute to the Partnership cash in the
amount set forth opposite the General Partner’s name on Exhibit A hereto, in immediately available
funds to a Partnership bank account.



     B. Concurrently herewith, each Limited Partner shall contribute to the Partnership the Capital
Contributions, Contributed Property and such other property related interests as set forth opposite
such Limited Partner’s name on Exhibit A.



     C. Each Partner shall have a Percentage Interest in the Partnership as set forth in Exhibit A,
which Percentage Interest shall be adjusted in Exhibit A from time to time by the General Partner
to the extent necessary to reflect accurately exchanges, redemptions, Capital Contributions, the
issuance of additional Partnership Units or similar events having an effect on a Partner’s
Percentage Interest. Except as required by law, as otherwise provided in Sections 4.3, 4.4 or 10.5,
or as otherwise agreed to by a Partner and the Partnership, no Partner shall be required or
permitted to make any additional Capital Contributions or loans to the Partnership. Unless
otherwise specified by the General Partner at the time of the creation of any class of Partnership
Interests, the corresponding class or series of capital stock for any Partnership Units issued
shall be REIT Shares.



     D. A Limited Partner shall be unconditionally liable to the Partnership for all or a portion
of any deficit in its Capital Account if it so elects to be liable for such deficit or portion
thereof. Such election may be for either a limited or an unlimited amount and may be amended or
withdrawn at any time. The election, and any amendment thereof, shall be made by written notice to
the General Partner stating that the Limited Partner elects to be liable, and specifying the
limitations, if any, on the maximum amount or duration of such liability. Said election, or
amendment thereof, shall be effective only from the date the written notice is received by the
General Partner, and shall terminate upon the date, if any, specified therein as a termination date
or upon delivery to the General Partner of a subsequent written notice withdrawing or otherwise
amending such election. A withdrawal, or an amendment reducing the Limited Partner’s maximum
liability, shall not be effective to avoid responsibility for any loss incurred prior to such
amendment or withdrawal.


Section 4.2. Loans by Third Parties




     Subject to Section 4.3, the Partnership may incur Debt, or enter into other similar credit,
guarantee, financing or refinancing arrangements for any purpose (including, without limitation, in
connection with any further acquisition of Properties) with any Person that is not the General
Partner upon such terms as the General Partner determines appropriate; provided that, the
Partnership shall not incur any Debt that is recourse to the General Partner, except to the extent
otherwise agreed to by the General Partner in its sole discretion.



22









 




Section 4.3. Additional Funding and Capital Contributions




     A. General. The General Partner may, at any time and from time to time determine that
the Partnership requires additional funds (“Additional Funds”) for the acquisition of additional
Properties or for such other Partnership purposes as the General Partner may determine. Additional
Funds may be raised by the Partnership, at the election of the General Partner, in any manner
provided in, and in accordance with, the terms of this Section 4.3. No Person shall have any
preemptive, preferential or similar right or rights to subscribe for or acquire any Partnership
Interest, except as set forth in this Section 4.3.



     B. Issuance of Additional Partnership Interests. The General Partner, in its sole and
absolute discretion, may raise all or any portion of the Additional Funds by accepting additional
Capital Contributions. In connection therewith, the General Partner is hereby authorized to cause
the Partnership from time to time to issue to Partners (including the General Partner) or other
Persons (including, without limitation, in connection with the contribution of property to the
Partnership) additional Partnership Units or other Partnership Interests 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 then existing Limited Partner Interests, all as shall be determined by the General
Partner in its sole and absolute discretion, without the approval of any Limited Partners, subject
to Delaware law, including without limitation, (i) the allocations of items of Partnership income,
gain, loss, deduction, and credit to such class or series of Partnership Interests, (ii) the
rights, designations, preferences and priorities of each such class or series of Partnership
Interests to share in Partnership distributions, (iii) the rights, designations, preferences and
priorities of each such class or series of Partnership Interests upon dissolution and liquidation
of the Partnership, and (iv) the right to vote, including, without limitation, the Limited Partner
approval rights set forth in Section 11.2.



     C. Issuance of REIT Shares or Other Securities by the Company. From and after the
Company’s completion of its first public offering of REIT Shares, the Company shall not issue any
additional REIT Shares, other shares of capital stock of the Company or New Securities (other than
REIT Shares issued pursuant to Section 8.6 or pursuant to a dividend or distribution (including any
stock split) of REIT Shares, other shares of capital stock of the Company or New Securities to all
of its stockholders on a pro rata basis) unless (i) the Partnership shall issue to the Company
(either directly or indirectly through Communities GP and Communities LP), 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 thereof are
substantially similar to those of the REIT Shares, other shares of capital stock of the Company or
New Securities and (ii) the Company shall contribute (either directly or indirectly through
Communities GP and Communities LP) the net proceeds from the issuance of such additional REIT
Shares, other shares of capital stock of the Company or New Securities, as the case may be, and
from the exercise of the rights contained in such REIT Shares, other capital stock of the Company
or New Securities, as applicable, to the Partnership as a Capital Contribution. Without limiting
the foregoing, the Company is expressly authorized to issue REIT Shares, other shares of capital
stock of the Company or New Securities for no tangible value or for less than fair market value,
and the Company is expressly authorized to cause the General Partner to cause the Partnership to
issue to the Company (either directly or indirectly through



23









 




Communities GP and Communities LP) corresponding Partnership Interests, so long as (x) the
General Partner concludes in good faith that such issuance of Partnership Interests is in the
interests of the Partnership, and (y) the Company contributes (either directly or indirectly
through Communities GP and Communities LP) the net proceeds, if any, from such issuance and
exercise to the Partnership.




     In connection with the Company’s initial public offering of REIT Shares and any other issuance
of REIT Shares, other capital stock of the Company or New Securities, the Company shall contribute
to the Partnership (either directly or indirectly through Communities GP and Communities LP) any
net proceeds raised in connection with such issuance; provided, that if the net proceeds actually
received by the Company 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 Company shall be deemed to have made a Capital Contribution to the Partnership in the amount
equal to the sum of the net proceeds of such issuance plus the amount of such underwriter’s
discount and other expenses paid by the Company (which discount and expense shall be treated as an
expense for the benefit of the Partnership for purposes of Section 7.4). In the case of issuances
of REIT Shares, other capital stock of the Company or New Securities pursuant to any Stock Plan at
a discount from fair market value or for no value, the amount of such discount representing
compensation to the employee, as determined by the General Partner, shall be treated as an expense
for the benefit of the Partnership for purposes of Section 7.4 and, as a result, the Company shall
be deemed to have made a Capital Contribution to the Partnership (either directly or indirectly
through Communities GP and Communities LP) in an amount equal to the sum of any net proceeds of
such issuance plus the amount of such expense.



     D. Percentage Interest Adjustments in the Case of Capital Contributions for Partnership
Units. Upon the acceptance of additional Capital Contributions in exchange for any class or
series of Partnership Units, the Percentage Interest in such class or series of Partnership Units
shall be equal to a fraction, the numerator of which is equal to the amount of cash and the Agreed
Value of the Property contributed as of the Business Day immediately preceding the date on which
the additional Capital Contributions are made (an “Adjustment Date”) and the denominator of which
is equal to the sum of (i) the Deemed Value of the Partnership Interests of such class or series
(computed as of the Business Day immediately preceding the Adjustment Date) and (ii) the aggregate
Agreed Value of additional Capital Contributions contributed by all Partners and/or third parties
to the Partnership on such Adjustment Date in such class or series of Partnership Interests. The
Percentage Interest of each other Partner holding Partnership Interests of such class or series not
making a full pro rata Capital Contribution shall be adjusted to equal a fraction, the numerator of
which is equal to the sum of (i) the Deemed Partnership Interest Value of such Partner in respect
of such class or series (computed as of the Business Day immediately preceding the Adjustment Date)
and (ii) the Agreed Value of additional Capital Contributions, if any, made by such Partner to the
Partnership in such class or series of Partnership Interests as of such Adjustment Date, and the
denominator of which is equal to the sum of (i) the Deemed Value of the Partnership Interests of
such class or series (computed as of the Business Day immediately preceding the Adjustment Date),
plus (ii) the aggregate Agreed Value of additional Capital Contributions contributed by all
Partners and/or third parties to the Partnership on such Adjustment Date in such class or series.
Provided, however, solely for purposes of calculating a Partner’s Percentage Interest pursuant to
this Section 4.3.D., (i) in the case of cash Capital



24









 




Contributions by the Company (either directly or indirectly through Communities GP and
Communities LP) funded by an offering of REIT Shares or other shares of capital stock of the
Company and (ii) in the case of the contribution of properties by the Company (either directly or
indirectly through Communities GP and Communities LP) which were acquired by the Company in
exchange for REIT Shares or other shares of capital stock of the Company immediately prior to such
contribution, the Company shall be issued (either directly or indirectly through Communities GP and
Communities LP) a number of Partnership Units equal and corresponding to the number of such shares
issued by the Company in exchange for such cash or Properties, the Partnership Units held by the
other Partners shall not be adjusted, and the Partners’ Percentage Interests shall be adjusted
accordingly. The General Partner shall promptly give each Partner written notice of its Percentage
Interest, as adjusted.




     E. Issuance of PIUs. The General Partner may from time to time issue PIUs to Persons
who provide services to the Partnership or its Affiliates, for such consideration as the General
Partner may determine to be appropriate, and admit such Persons as Limited Partners. Subject to the
following provisions of this Section 4.3.E and the special provisions of Sections 6.3.C., 8.7 and
8.8, PIUs shall be treated as Common Units, with all of the rights, privileges and obligations
attendant thereto. For purposes of computing the Partners’ Percentage Interests, holders of PIUs
shall be treated as Common Unit holders and PIUs shall be treated as Common Units. In particular,
the Partnership shall maintain at all times a one-to-one correspondence between PIUs and Common
Units for conversion, distribution and other purposes, including without limitation complying with
the following procedures:




          (i) If an Adjustment Event (as defined below) occurs, then the General Partner shall
make a corresponding adjustment to the PIUs to maintain a one-for-one conversion and
economic equivalence ratio between Common Units and PIUs. The following shall be “Adjustment
Events”: (A) the Partnership makes a distribution on all outstanding Common Units in
Partnership Units; (B) the Partnership subdivides the outstanding Common Units into a
greater number of units or combines the outstanding Common Units into a smaller number of
units; or (C) the Partnership issues any Partnership Units in exchange for its outstanding
Common Units by way of a reclassification or recapitalization of its Common Units. If more
than one Adjustment Event occurs, the adjustment to the PIUs need be made only once using a
single formula that takes into account each and every Adjustment Event as if all Adjustment
Events occurred simultaneously. For the avoidance of doubt, the following shall not be
Adjustment Events: (x) the issuance of Partnership Units in a financing, reorganization,
acquisition or other similar business transaction; (y) the issuance of Partnership Units
pursuant to any Stock Plan; or (z) the issuance of any Partnership Units to the Company
(either directly or indirectly through Communities GP and Communities LP) in respect of a
capital contribution to the Partnership of proceeds from the sale of securities by the
Company. If the Partnership takes an action affecting the Common Units other than actions
specifically described above as “Adjustment Events” and in the opinion of the General
Partner such action would require an adjustment to the PIUs to maintain the one-to-one
correspondence described above, the General Partner shall have the right to make such
adjustment to the PIUs, to the extent permitted by law and by the Stock Plan, in such manner
and at such time as the General Partner, in its sole discretion, may determine to be
appropriate under the circumstances without the consent of any Limited Partner. If



25









 







an adjustment is made to the PIUs as herein provided the Partnership shall promptly
file in the books and records of the Partnership an officer’s certificate setting forth such
adjustment and a brief statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment absent manifest error.
Promptly after filing of such certificate, the Partnership shall mail a notice to each PIU
Holder setting forth the adjustment to his or her PIUs and the effective date of such
adjustment; and




          (ii) The PIU Holders shall, in respect of each Distribution Payment Date, when, as and
if authorized and declared by the General Partner out of assets legally available for that
purpose, be entitled to receive distributions in an amount per PIU equal to the
distributions per Common Unit (the “Common Unit Distribution”), paid to holders of record on
the same record date established by the General Partner with respect to such Distribution
Payment Date.



     The PIUs shall rank pari passu with the Common Units as to the payment of regular and special
periodic distributions. As to the payment of distributions, any class or series of Partnership
Units or Partnership Interests which by its terms specifies that it shall rank junior to, or pari
passu with, or senior to the Common Units shall also rank junior to, or pari passu with, or senior
to, as the case may be, the PIUs. Subject to the terms of any PIU Vesting Agreement, a PIU Holder
shall be entitled to transfer his or her PIUs to the same extent, and subject to the same
restrictions as holders of Common Units are entitled to transfer their Common Units pursuant to
Article 11.




	 	 	PIUs shall be subject to the following special provisions:






          (i) PIU Vesting Agreements. PIUs may, in the sole discretion of the General
Partner, be issued subject to vesting, forfeiture and additional restrictions on transfer
pursuant to the terms of a PIU Vesting Agreement. The terms of any PIU Vesting Agreement may
be modified by the General Partner from time to time in its sole discretion, subject to any
restrictions on amendment imposed by the relevant PIU Vesting Agreement or by the Stock
Plan, if applicable.




          (ii) Forfeiture. Unless otherwise specified in the PIU Vesting Agreement, upon
the occurrence of any event specified in a PIU Vesting Agreement resulting in either the
right of the Partnership or the General Partner to repurchase PIUs at a specified purchase
price or some other forfeiture of any PIUs, if the Partnership or the General Partner
exercises such right to repurchase or forfeiture in accordance with the applicable PIU
Vesting Agreement, then the relevant PIUs shall immediately, and without any further action,
be treated as cancelled and no longer outstanding for any purpose. Unless otherwise
specified in the PIU Vesting Agreement, no consideration or other payment shall be due with
respect to any PIUs that have been forfeited, other than any distributions declared with
respect to a Partnership Record Date prior to the effective date of the forfeiture. In
connection with any repurchase or forfeiture of PIUs, the balance of the portion of the
Capital Account of the PIU Holder that is attributable to all of his or her PIUs shall be
reduced by the amount, if any, by which it exceeds the target balance



26









 







contemplated by Section 6.3.C., calculated with respect to the PIU Holder’s remaining
PIUs, if any.




          (iii) Allocations. PIU Holders shall be entitled to certain special allocations
of gain under Section 6.3.C.




          (iv) Redemption. The Redemption right provided to Limited Partners under
Section 8.6 shall not apply with respect to PIUs unless and until they are converted to
Common Units as provided in clause (v) below and Section 8.7.




          (v) Conversion To Common Units. Vested PIUs will be converted into Common Units
as provided in Section 8.7.




          (vi) Voting. PIUs shall have the voting rights provided in Section 8.8.


Section 4.4. Other Contribution Provisions




     In the event that any Partner is admitted to the Partnership and is given (or is treated as
having received) a Capital Account in exchange for services rendered to the Partnership, such
transaction shall be treated by the Partnership and the affected Partner as if the Partnership had
compensated such Partner in cash, and the Partner had contributed such cash to the capital of the
Partnership. In addition, with the consent of the General Partner, in its sole discretion, one or
more Limited Partners may enter into agreements with the Partnership, in the form of a guarantee or
contribution agreement, which have the effect of providing a guarantee of certain obligations of
the Partnership.


Section 4.5. No Preemptive Rights




     Except to the extent expressly granted by the Partnership pursuant to another agreement, no
Person shall have any preemptive, preferential or other similar right with respect to (i)
additional Capital Contributions or loans to the Partnership or (ii) issuance or sale of any
Partnership Units or other Partnership Interests.



ARTICLE 5.

DISTRIBUTIONS



Section 5.1. Requirement and Characterization of Distributions




     The General Partner shall cause the Partnership to distribute quarterly all, or such portion
as the General Partner may in its discretion determine, of Available Cash generated by the
Partnership to the Partners who are Partners on the applicable record date with respect to such
distribution, (1) first, with respect to any class or series of Partnership Interests that are
entitled to any preference in distributions, in accordance with the rights of such class or series
of Partnership Interests (and within such class or series, pro rata in proportion to the respective
Percentage Interests on the applicable record date), and (2) second, with respect to any class or
series of Partnership Interests that are not entitled to any preference in distributions, such as
Common Units and PIUs, pro rata to each such class or series in accordance with the terms of such
class or series to the Partners who are Partners of such class or series on the Partnership



27









 




Record Date with respect to such distribution (and within each such class or series, pro rata
in proportion to the respective Percentage Interests on such Partnership Record Date). Unless
otherwise expressly provided for herein or in an agreement, if any, entered into in connection with
the creation of a new class or series of Preferred Units created in accordance with Article 4, no
Partnership Interest shall be entitled to a distribution in preference to any other Partnership
Interest. The Company shall undertake such reasonable efforts, as determined by it in its sole and
absolute discretion and consistent with its qualification as a REIT, to cause the General Partner
to cause the Partnership to distribute sufficient amounts to enable the Company, for so long as the
Company has determined to qualify as a REIT, to pay stockholder dividends that will (a) satisfy the
requirements for qualifying as a REIT under the Code and Regulations (“REIT Requirements”), and (b)
except to the extent otherwise determined by the Company, avoid any federal income or excise tax
liability of the Company.



Section 5.2. Distributions in Kind




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


Section 5.3. Distributions Upon Liquidation




     Notwithstanding Section 5.1, proceeds from a Liquidating Event shall be distributed to the
Partners in accordance with Section 13.2.


Section 5.4. Distributions to Reflect Issuance of Additional Partnership Interests




     In the event that the Partnership issues additional Partnership Interests to the General
Partner or any Additional Limited Partner pursuant to Section 4.3.B. or 4.3.C. or 4.3.E., the
General Partner shall make such revisions to this Article 5 as it determines are necessary to
reflect the issuance of such additional Partnership Interests. In the absence of any agreement to
the contrary, an Additional Limited Partner shall be entitled to the distributions set forth herein
(without regard to this Section 5.4) with respect to the period during which the closing of its
contribution to the Partnership occurs, multiplied by a fraction the numerator of which is the
number of days from and after the date of such closing through the end of the applicable period,
and the denominator of which is the total number of days in such period.



ARTICLE 6.

ALLOCATIONS



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




     Net Income and Net Loss of the Partnership shall be determined and allocated with respect to
each Allocation Year of the Partnership as of the end of each such Allocation Year. Subject to the
other provisions of this Article 6, an allocation to a Partner of a share of Net Income or Net Loss
shall be treated as an allocation of the same share of each item of income, gain, loss or deduction
that is taken into account in computing Net Income or Net Loss.



28









 




Section 6.2. General Allocations




     A. Allocation of Net Income and Net Losses.



          (1) Net Income. After first giving effect to the special allocations provided in
Section 6.3.A. and 6.4, Net Income for any Allocation Year shall be allocated to the Partners in
the following manner and order of priority:




               (a) First, to the General Partner in an amount equal to the excess, if any, of: (i) the
cumulative Net Losses allocated to the General Partner pursuant to Section 6.2.C. for all prior
Allocation Years, over (ii) the cumulative Net Income allocated to the General Partner pursuant to
this Section 6.2.A.(1)(a) for all prior Allocation Years;



               (b) Second, to each Partner other than the General Partner in an amount equal to the excess,
if any, of: (i) the cumulative Net Losses allocated to each such Partner pursuant to Sections
6.2.C. for all prior Partnership Years, over (ii) the cumulative Net Income allocated to such
Partner pursuant to this Section 6.2.A.(1)(b) for all prior Allocation Years; and



               (c) The balance, if any, to and among the Partners in accordance with their respective
Percentage Interests.


In determining the amount of cumulative Net Income and cumulative Net Losses allocated to a
Partner, Net Income and Net Losses allocated to a predecessor or transferor to such Partner shall
be taken into account. To the extent the allocations of Net Income set forth above in any
paragraph of this Section 6.2.A.(1) are insufficient to satisfy the full amount of any allocations
set forth in such paragraph, such allocations shall be made in proportion to the total amounts that
would have been allocated pursuant to this Section 6.2.A.(1) without regard to such shortfall.




          (2) Net Losses. After first giving effect to the special allocations provided in
Section 6.3.A. and 6.4, and subject to the limitation provided in Section 6.2.C., Net Losses for
any Allocation Year shall be allocated to and among the Partners in accordance with their
Percentage Interests.




     B. Allocations to Reflect Issuance of Additional Partnership Interests. In the event
that the Partnership issues additional Partnership Interests to the General Partner, a Limited
Partner or any Additional Limited Partner pursuant to Section 4.3, the General Partner shall make
such revisions to this Section 6.2 as it determines are necessary to reflect the terms of the
issuance of such additional Partnership Interests, including making preferential allocations to
certain classes of Partnership Interests in accordance with any method selected by the General
Partner.



     C. Limitation on Allocations of Net Losses. The Net Losses allocated pursuant to
Section 6.2.A.(2) hereof shall not exceed the maximum amount of Net Losses that can be so allocated
without causing any Limited Partner to have an Adjusted Capital Account Deficit at the end of any
Allocation Year. In the event some but not all of the Limited Partners would have Adjusted Capital
Account Deficits as a consequence of an allocation of Net Losses pursuant to Section 6.2.A.(2), the
limitation set forth in this Section 6.2.C. shall be applied on a Limited



29









 




Partner by Limited Partner basis so as to allocate the maximum permissible Net Losses to each
Limited Partner under Regulations Section 1.704-1(b)(2)(ii)(d). All Net Losses in excess
of the limitation set forth in this Section 6.2.C. shall be allocated to the General Partner.



Section 6.3. Special Allocation Provisions




     A. Regulatory Allocations.




     (1) Minimum Gain Chargeback. Except as otherwise provided in Regulations
Section 1.704-2(f), if there is a net decrease in Partnership Minimum Gain during any
Allocation Year, each Holder shall be specially allocated items of Partnership income and
gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount
equal to such Holder’s share of the net decrease in Partnership Minimum Gain, as determined
under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each Holder
pursuant thereto. The items to be allocated shall be determined in accordance with
Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.3.A(1) is intended to
qualify as a “minimum gain chargeback” within the meaning of Regulation Section 1.704-2(f)
which shall be controlling in the event of a conflict between such Regulation and this
Section 6.3.A.(1).




     (2) Partner Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(i)(4), if there is a net decrease in Partner Minimum Gain
attributable to a Partner Nonrecourse Debt during any Allocation Year, each Holder who has a
share of the Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined
in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of
Partnership income and gain for such Allocation Year (and, if necessary, subsequent
Allocation Years) in an amount equal to such Holder’s share of the net decrease in Partner
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each Holder
pursuant thereto. The items to be so allocated shall be determined in accordance with
Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.3.A.(2) is intended to
qualify as a “chargeback of partner nonrecourse debt minimum gain” within the meaning of
Regulation Section 1.704-2(i) which shall be controlling in the event of a conflict between
such Regulation and this Section 6.3.A.(2).




     (3) Qualified Income Offset. In the event any Limited Partner unexpectedly
receives any adjustments, allocations, or distributions described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5), or
Section 1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall
be specially allocated to each such Limited Partner in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit
of such Limited Partner as quickly as possible, provided that an allocation pursuant to this
Section 6.3.A.(3) shall be made only if and to the extent that such Limited Partner would
have an Adjusted Capital Account Deficit after all other allocations provided for in this
Article 6 have been tentatively made as if this Section 6.3.A.(3) were not in the Agreement.




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     (4) Gross Income Allocation. In the event any Limited Partner has a deficit
Capital Account at the end of any Allocation Year that is in excess of the sum of (i) the
amount such Limited Partner is obligated to restore pursuant to any provision of this
Agreement and (ii) the amount such Limited Partner is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), each such Limited Partner shall be specially allocated items of Partnership
income and gain in the amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 6.3.A.(4) shall be made only if and to the extent that
such Limited Partner would have a deficit Capital Account in excess of such sum after all
other allocations provided for in this Article 6 have been made as if Section 6.3.A.(3) and
this Section 6.3.A.(4) were not in the Agreement.




     (5) Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions for any
Allocation Year shall be specially allocated to the Holder(s) who bears the economic risk of
loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse
Deductions are attributable, in accordance with Regulations Sections 1.704-2(b)(4) and
1.704-2(i).




     (6) Nonrecourse Deductions. Any Nonrecourse Deductions for any Allocation Year
shall be specially allocated to the Holders in accordance with their respective Percentage
Interests.




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



     B. Curative Allocations. The allocations set forth in Sections 6.3.A.(1), (2), (3),
(4), (5) and (6) (the “Regulatory Allocations”) are intended to comply with certain regulatory
requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2.
Notwithstanding the provisions of Sections 6.1 and 6.2, the Regulatory Allocations shall be taken
into account in allocating other items of income, gain, loss and deduction among the Holders so
that, to the extent possible, the net amount of such allocations of other items and the Regulatory
Allocations to each Holder shall be equal to the net amount that would have been allocated to each
such Holder if the Regulatory Allocations had not occurred.




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     C. Special Allocation to PIU Holders.



     (1) Gross Income Allocation. In accordance with Section 6.3A(4), if a PIU
Holder has a deficit Capital Account at the end of any Allocation Year that is in excess of
the sum of (i) the amount such PIU Holder is obligated to restore pursuant to any provision
of this Agreement and (ii) the amount such PIU Holder is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), each such PIU Holder shall be specially allocated items of Partnership income
and gain in the amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 6.3.C.(1) shall be made only if and to the extent that such PIU
Holder would have a deficit Capital Account in excess of such sum after all other
allocations provided for in this Article 6 have been made as if Section 6.3.A.(3), Section
6.3.A.(4) and this Section 6.3.C.(1) were not in the Agreement.




     (2) Allocation of Gain. Any remaining gain for any Allocation Year with
respect to all sales and other dispositions of Partnership Property (other than sales or
other dispositions in the ordinary course of business of the Partnership), including any
adjustments to the Gross Asset Value of Partnership Property pursuant to sections (b) and
(c) of the definition of “Gross Asset Value” in Section 1.1 of this Agreement, shall be
allocated 100% to the PIU Holders until the Economic Capital Account Balance of each Limited
Partner attributable to that Limited Partner’s ownership of PIUs is equal to (i) the Common
Unit Economic Balance multiplied by (ii) the number of PIUs held by such Limited Partner.
Allocations under this Section 6.3.C(2) shall be made among PIU Holders in proportion to the
number of PIUs held by each such PIU Holder. For clarity, the parties agree that this
Section 6.3.C(2) is intended to make the Capital Account balances of the PIU Holders with
respect to their PIUs economically equivalent to the Capital Account balance of the Company
(held either directly or indirectly through Communities GP and Communities LP) with respect
to its Common Units (i.e., the “target balance” for the PIUs).


Section 6.4. Additional Allocation Rules




     A. Excess Nonrecourse Liabilities. The General Partner is authorized to cause the
Partnership to allocate “excess nonrecourse liabilities” that are secured by any property
contributed to the Partnership to the contributing Partner up to the amount of the built-in gain
that is allocable to the contributing Partner under Section 704(c) of the Code, to the extend such
built-in gain exceeds the gain described in Regulations Section 1.752-3(a)(2). Any remaining
“excess nonrecourse liabilities” shall be allocated in accordance with each Holder’s interest in
Partnership profits, which for this purpose shall be in accordance with such Holder’s Percentage
Interest.



     B. Safe Harbor Election. In the event the Safe Harbor Regulation is finalized, the
Partnership agrees that the General Partner shall be authorized and directed to make the Safe
Harbor Election for the Partnership and the Partnership and each Partner, including any person to
whom an interest in the Partnership is transferred in connection with the performance of services,
agrees to comply with all requirements of the Safe Harbor with respect to all interests in the
Partnership transferred in connection with the performance of services to which the Safe Harbor
Election applies. The General Partner shall retain all such records as may be necessary to
indicate that an effective Safe Harbor Election has been made and remains in effect. The



32









 




General Partner shall be authorized to and shall prepare, execute, and file the Safe Harbor
Election.



Section 6.5. Tax Allocations




     Tax Items with respect to Partnership property that is contributed to the Partnership by a
Partner shall be shared among the Holders for income tax purposes pursuant to Regulations
promulgated under Section 704(c) of the Code, so as to take into account the variation, if any,
between the basis of the property to the Partnership and its initial Gross Asset Value. The
Partnership shall account for such variation under any method consistent with Section 704(c) of the
Code and the applicable regulations as chosen by the General Partner. In the event the Gross Asset
Value of any Partnership asset is adjusted pursuant to subparagraph (b) of the definition of Gross
Asset Value (provided in Article 1), subsequent allocations of Tax Items with respect to such asset
shall take account of the variation, if any, between the adjusted basis of such asset and its Gross
Asset Value in the same manner as under Section 704(c) of the Code and the applicable regulations
consistent with the requirements of Regulations Section 1.704-1(b)(2)(iv)(g) using any method
approved under Section 704(c) of the Code and the applicable regulations as chosen by the General
Partner.



ARTICLE 7.

MANAGEMENT AND OPERATIONS OF BUSINESS



Section 7.1. Management




     A. Except as otherwise expressly provided in this Agreement, all management powers over the
business and affairs of the Partnership are and shall be exclusively vested in the General Partner,
and no Limited Partner shall have any right to participate in or exercise control or management
power over the business and affairs of the Partnership. The General Partner may not be removed by
the Limited Partners with or without cause. In addition to the powers now or hereafter granted a
general partner of a limited partnership under applicable law or which are granted to the General
Partner under any other provision of this Agreement, the General Partner, subject to the other
provisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all
things deemed necessary, appropriate, convenient or desirable by it to conduct the business of the
Partnership, to exercise all powers set forth in Section 3.2 and to effectuate the purposes set
forth in Section 3.1, including, without limitation:



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







33









 








          (2) the making of tax, regulatory and other filings, or rendering of periodic or other reports
to governmental or other agencies having jurisdiction over the business or assets of the
Partnership or which the General Partner agrees to cause the Partnership to file, the registration
of any class of securities of the Partnership under the Securities Exchange Act, and the listing of
any debt securities of the Partnership on any exchange and communication with any and all
governmental authorities;




          (3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of
any assets of the Partnership or the merger or other combination of the Partnership with or into
another entity;




          (4) the acquisition, ownership, disposition, lease, management, mortgage, pledge, encumbrance
or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership
(including, without limitation, cash on hand) for any purpose consistent with the terms of this
Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct
or the operations of the General Partner or the Partnership, the lending of funds to other Persons
(including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the
repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which
it has an equity investment, and the making of capital contributions to its Subsidiaries, and
specifically including entering into agreements incident to the acquisition of property through
which the Partnership indemnifies the contributing party for tax liabilities incurred related to
the Partnership’s disposition of the property or reducing the debt of the Partnership allocable to
the contributing party;




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




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




          (7) the establishment of one or more divisions of the Partnership, the selection and dismissal
of employees of the Partnership (including, without limitation, employees having titles such as
“president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys,
accountants, consultants and contractors of the Partnership, the determination of their
compensation and other terms of employment or hiring, including waivers of conflicts of interest
and the payment of their expenses and compensation out of the Partnership’s assets;




          (8) the maintenance of insurance for the benefit of the Partnership, its assets and the
Partners and directors and officers of the Partnership, the General Partner or the direct or
indirect parent of the General Partner in such amounts, on such terms and of such types as it deems
necessary or appropriate;




34









 





          (9) the formation of, or acquisition of an interest in, and the contribution of 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 any Subsidiary and any other Person in which it has an equity investment from time to
time); provided, that, as long as the Company has determined to continue to qualify as a REIT, the
Partnership may not engage in any such formation, acquisition or contribution that could cause the
Company to fail to qualify as a REIT;




          (10) the control of any matters affecting the rights and obligations of the Partnership,
including the settlement, compromise, submission to arbitration or any other form of dispute
resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing
to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative
proceedings, arbitration or other forms of dispute resolution, and the representation of the
Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other
forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person
against liabilities and contingencies to the extent permitted by law;




          (11) the undertaking of any action in connection with the Partnership’s direct or indirect
investment in any Person (including, without limitation, contributing or loaning Partnership funds
to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);




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




          (13) the management, operation, leasing, landscaping, repair, alteration, demolition or
improvement of any real property or improvements owned by the Partnership or any Subsidiary of the
Partnership or any Person in which the Partnership has made a direct or indirect equity investment;




          (14) holding, managing, investing and reinvesting cash and other assets of the Partnership;




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




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




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




35









 





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




          (19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure
debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees,
warranties, indemnities, waivers, releases, documents, legal instruments or agreements, in writing,
as may be necessary or appropriate in the judgment of the General Partner for the accomplishment of
any of the powers of the General Partner enumerated in this Agreement;




          (20) the issuance of additional Partnership Interests, as appropriate, in connection with the
contribution of Additional Funds pursuant to Section 4.3;




          (21) the distribution of cash to acquire Partnership Units held by a Limited Partner in
connection with a Limited Partner’s exercise of its Redemption right under Section 8.6 hereof; and




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




     B. Each of the Limited Partners agrees that the General Partner is authorized to perform the
actions authorized by Section 7.1.A. and to execute, deliver and perform the above-mentioned
agreements and transactions on behalf of the Partnership without any further act, approval or vote
of the Partners, notwithstanding any other provisions of this Agreement (except as provided in
Section 7.3 or 11.2), the Act or any applicable law, rule or regulation to the fullest extent
permitted under the Act or other applicable law, rule or regulation. The execution, delivery or
performance, the taking of any action or the failure to take any action, by the General Partner or
the Partnership of any agreement authorized or permitted under this Agreement shall not constitute
a breach by the General Partner of any duty that the General Partner may owe the Partnership or the
Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law
or equity.



     C. In addition to the authority granted to it in Section 7.1.A.(8), at all times from and
after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i)
casualty, liability and other insurance on the properties of the Partnership and (ii) liability
insurance for the Indemnities hereunder.



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



36









 





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



     F. 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 to make such payments 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.



     G. The General Partner shall not permit the Partnership to engage in any “prohibited
transaction” as defined in Section 857(b)(6)(B)(iii) of the Code.


Section 7.2. Certificate of Limited Partnership




     To the extent that such action is determined by the General Partner to be necessary,
reasonable or appropriate, the General Partner shall file amendments to and restatements of the
Certificate and do all the things to maintain the Partnership as a limited partnership (or a
partnership in which the limited partners have limited liability) under the laws of the State of
Delaware and each other state, the District of Columbia or other jurisdiction, in which the
Partnership may elect to do business or own property, and no vote of the Limited Partners shall be
required in connection therewith. Subject to the terms of Section 8.5.A.(3), the General Partner
shall not be required, before or after filing, to deliver or mail a copy of the Certificate or any
amendment thereto to any Limited Partner. The General Partner shall use all reasonable efforts to
cause to be filed such other certificates or documents as may be necessary or as it deems
reasonable or appropriate for the formation, continuation, qualification and operation of a limited
partnership (or a partnership in which the limited partners have limited liability) in the State of
Delaware, any other state, or the District of Columbia or other jurisdiction, in which the
Partnership may elect to do business or own property, and no vote of the Limited Partners shall be
required in connection therewith.


Section 7.3. Restrictions on General Partner’s Authority




     A. The General Partner may not take any action in contravention of an express prohibition or
limitation of this Agreement without the written Consent of the Limited Partners and may not (i)
perform any act that would subject a Limited Partner to liability as a general partner in any
jurisdiction or, except as provided herein or under the Act, to any other liability, or (ii) enter
into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect
of prohibiting or restricting, the ability of a Limited Partner to exercise its rights to a
Redemption in full, except in each case with the written consent of such Limited Partner.



37









 





     B. The General Partner shall not, without the prior consent of the Partners holding Percentage
Interests that in the aggregate are not less than 66 2/3% of the aggregate Percentage
Interests of all the Partners (including in all cases the Limited Partner Interests owned directly
or indirectly by the Company and in addition to any Consent of the Limited Partners required by any
other provision hereof), or except as provided in Section 7.3.C., amend, modify or terminate this
Agreement.



     C. Notwithstanding Section 7.3.B., the General Partner shall have the exclusive power and
authority to amend this Agreement as may be required to facilitate or implement any of the
following purposes:



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




          (2) to reflect the issuance of additional Partnership Interests pursuant to this Agreement,
including, without limitation, Sections 4.3.B., 5.4 and 6.2.B. or the admission, substitution,
termination, or withdrawal of Partners in accordance with this Agreement;




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




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




          (5) to reflect such changes as are reasonably necessary for the Company to maintain its status
as a REIT, including changes which may be necessitated due to a change in applicable law (or an
authoritative interpretation thereof) or a ruling of the IRS; and




          (6) to modify, as set forth in the definition of “Capital Account,” the manner in which
Capital Accounts are computed.




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



     D. Notwithstanding Sections 7.3.B. and 7.3.C., this Agreement shall not be amended with
respect to any Partner adversely affected, and no action may be taken by the General Partner,
without the Consent of such Partner adversely affected if such amendment or action would (i)
convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except
as the result of the General Partner acquiring such interest), (ii) modify the limited liability of
a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5
or Section 13.2.A.(4) or Section 13.2.A.(5), or the allocations specified in Article 6 (except as
permitted or as a consequence of matters permitted pursuant to Sections 4.3, 5.4, 6.2.B. and
Section 7.3.C.(3)), (iv) materially alter or modify the rights to a Redemption or the



38









 




REIT Shares Amount as set forth in Section 8.6, and related definitions hereof, or (v) amend
this Section 7.3.D. Further, no amendment may alter the restrictions on the General Partner’s
authority set forth elsewhere in this Section 7.3 or in Section 11.2 without the Consent specified
in such section. This Section 7.3.D. does not require unanimous consent of all Partners adversely
affected unless the amendment is to be effective against all partners adversely affected.



Section 7.4. Reimbursement of the General Partner




     A. Except as provided in this Section 7.4 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 Partnership shall be responsible for and shall pay all expenses relating to the
Partnership’s and the General Partner’s organization, the ownership of its assets and its
operations. The General Partner is hereby authorized to pay compensation for accounting,
administrative, legal, technical, management and other services rendered to the Partnership. Except
to the extent provided in this Agreement, the General Partner and its Affiliates 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 expenses that the General Partner and its Affiliates incur
relating to the ownership and operation of, or for the benefit of, the Partnership (including,
without limitation, administrative expenses and the Company’s expenses as a company whose
securities are publicly traded); provided, that the amount of any such reimbursement shall be
reduced by any interest earned by the General Partner with respect to bank accounts or other
instruments or accounts held by it on behalf of the Partnership. The Partners acknowledge that all
such expenses of the General Partner and its Affiliates are deemed to be for the benefit of the
Partnership. Such reimbursement shall be in addition to any reimbursement made as a result of
indemnification pursuant to Section 7.7 hereof. In the event that certain expenses are incurred for
the benefit of the Partnership and other entities (including the General Partner), such expenses
will be allocated to the Partnership and such other entities in such a manner as the General
Partner in its sole and absolute discretion deems fair and reasonable. All payments and
reimbursements hereunder shall be characterized for federal income tax purposes as expenses of the
Partnership incurred on its behalf, and not as expenses of the General Partner.



     C. If the Company shall elect to purchase from its stockholders REIT Shares for the purpose of
delivering such REIT Shares to satisfy an obligation under any dividend reinvestment program
adopted by the Company, any employee stock purchase plan adopted by the Company, or any similar
obligation or arrangement undertaken by the Company in the future or for the purpose of retiring
such REIT Shares, the purchase price paid by the Company for such REIT Shares and any other
expenses incurred by the Company in connection with such purchase shall be considered expenses of
the Partnership and shall be advanced to the Company or reimbursed to the Company, subject to the
condition that: (i) if such REIT Shares subsequently are sold by the Company, the Company shall pay
to the Partnership any proceeds received by the Company for such REIT Shares (which sales proceeds
shall include the amount of dividends reinvested under any dividend reinvestment or similar
program; provided, that a transfer of REIT Shares for Partnership Units pursuant to Section 8.6
would not be considered a sale for such purposes); and (ii) if such REIT Shares are not
retransferred by the Company within thirty (30) days after the



39









 




purchase thereof, or the Company otherwise determines not to retransfer such REIT Shares, the
Company shall cause the General Partner to cause the Partnership to redeem a number of Partnership
Units held by the Company equal to the number of such REIT Shares, as adjusted (x) pursuant to
Section 7.5 (in the event the Company has acquired material assets, other than on behalf of the
Partnership) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse
stock splits and combinations, distributions of rights, warrants or options, and distributions of
evidences of indebtedness or assets relating to assets not received by the Company pursuant to a
pro rata distribution by the Partnership (in which case such advancement or reimbursement of
expenses shall be treated as having been made as a distribution in redemption of such number of
Partnership Units held by the Company).




     D. As set forth in Section 4.3, the Company shall be treated as having made a Capital
Contribution in the amount of all expenses that it incurs relating to the Company’s offering of
REIT Shares, other shares of capital stock of the Company or New Securities.



     E. If and to the extent any reimbursements to the General Partner pursuant to this Section 7.4
constitute gross income of the General Partner (as opposed to the repayment of advances made by the
General Partner on behalf of the Partnership), such amounts shall constitute guaranteed payments
within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the
Partnership and all Partners, and shall not be treated as distributions for purposes of computing
the Partners’ Capital Accounts.


Section 7.5. Outside Activities of the General Partner and the Company




     A. Without the written consent of the Limited Partners, the General Partner shall not directly
or indirectly enter into or conduct any business other than in connection with the ownership,
acquisition and disposition of Partnership Interests and the management of the business of the
Partnership, and such activities as are incidental thereto. In the event the General Partner
desires to contribute cash to any Subsidiary Partnership to acquire or maintain an interest of 1%
or less in the capital of such partnership, the General Partner may acquire or maintain an interest
of 1% or less in the capital of such partnership, and the General Partner may acquire such cash
from the Partnership as a loan or in exchange for a reduction in the General Partner’s Partnership
Units, in an amount equal to the amount of such cash divided by the Fair Market Value of a REIT
Share on the day such cash is received by the General Partner. Notwithstanding the foregoing, the
General Partner may acquire Properties in exchange for REIT Shares, to the extent such Properties
are immediately contributed by the General Partner to the Partnership, pursuant to the terms
described in Section 4.3.D. Any Limited Partner Interests acquired by the General Partner, whether
pursuant to exercise by a Limited Partner of its right of Redemption, or otherwise, shall be
automatically converted into a General Partner Interest comprised of an identical number of
Partnership Units with the same rights, priorities and preferences as the class or series so
acquired. If, at any time, the General Partner acquires material assets (other than on behalf of
the Partnership) the definition of “REIT Shares Amount” and the definition of “Deemed Value of
Partnership Interests” shall be adjusted, as reasonably determined by the General Partner, to
reflect the relative Fair Market Value of a share of capital stock of the General Partner relative
to the Deemed Partnership Interest Value of the related Partnership Unit. The General Partner’s
General Partner Interest in the Partnership, its minority interest in any Subsidiary Partnership(s)
(held directly or indirectly through a Qualified REIT Subsidiary) that



40









 




the General Partner holds in order to maintain such Subsidiary Partnership’s status as a
partnership, and interests in such short-term liquid investments, bank accounts or similar
instruments as the General Partner deems necessary to carry out its responsibilities contemplated
under this Agreement and the Charter are interests which the General Partner is permitted to
acquire and hold for purposes of this Section 7.5.A.




     B. In the event the Company exercises its rights under the Charter to purchase REIT Shares,
other capital stock of the Company or New Securities, as the case may be, then the Company shall
cause the General Partner to cause the Partnership to purchase from it a number of Partnership
Units equal to the number of REIT Shares, other capital stock of the Company or New Securities, as
the case may be, so purchased on the same terms that the Company purchased such REIT Shares, other
capital stock of the Company or New Securities, as the case may be.


Section 7.6. Contracts with Affiliates




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



     B. Except as provided in Section 7.5.A., 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 consistent with this Agreement
and applicable law as the General Partner in its sole discretion deems advisable.



     C. The General Partner, in its sole and absolute discretion and without the approval of the
Limited Partners, may propose and adopt on behalf of the Partnership employee benefit plans funded
by the Partnership for the benefit of employees of the General Partner, the Partnership,
Subsidiaries of the Partnership or any Affiliate of any of them in respect of services performed,
directly or indirectly, for the benefit of the Partnership, the General Partner, or any of the
Partnership’s Subsidiaries. The General Partner also is expressly authorized to cause the
Partnership to issue to the Company Partnership Units corresponding to REIT Shares issued by the
Company pursuant to any Stock Plan or any similar or successor plan and to repurchase such
Partnership Units from the Company to the extent necessary to permit the Company to repurchase such
REIT Shares in accordance with such plan.



     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 determined by the
General Partner in good faith to be fair and reasonable.



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



41









 




Section 7.7. Indemnification




     A. To the fullest extent permitted by law, the Partnership shall indemnify an Indemnitee from
and against any and all losses, claims, damages, liabilities, joint or several, expenses (including
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, fraud or was the result of active and
deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money,
property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had
reasonable cause to believe that the act or omission was unlawful. Without limitation, the
foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or
otherwise, for any indebtedness of the Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness which the Partnership or any Subsidiary of the Partnership has
assumed or taken subject to), and the General Partner is hereby authorized and empowered, on behalf
of the Partnership, to enter into one or more indemnity agreements consistent with the provisions
of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such
indebtedness. The termination of any proceeding by judgment, order or settlement does not create a
presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this
Section 7.7.A. The termination of any proceeding by conviction or upon a plea of nolo contendere or
its equivalent, or any 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 7.7.A.
Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the
Partnership, and any insurance proceeds from the liability policy covering the General Partner and
any Indemnitee, and neither the General Partner nor any Limited Partner shall have any obligation
to contribute to the capital of the Partnership or otherwise provide funds to enable the
Partnership to fund its obligations under this Section 7.7, except to the extent otherwise
expressly agreed to by such Partner and the Partnership.



     B. Reasonable expenses incurred by an Indemnitee who is a party to a proceeding may be paid or
reimbursed by the Partnership 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 7.7 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee
to repay the amount if it shall ultimately be determined that the standard of conduct has not been
met.



     C. The indemnification provided by this Section 7.7 shall be in addition to any other rights
to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any
vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who
has ceased to serve in such capacity unless otherwise provided in a written agreement pursuant to
which such Indemnitee is indemnified.



42









 





     D. The Partnership may, but shall not be obligated to, 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 7.7, 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
Section 7.7; 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
7.7 because the Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.



     H. The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs,
successors, assigns and administrators and shall not be deemed to create any rights for the benefit
of any other Persons. Any amendment, modification or repeal of this Section 7.7 or any provision
hereof shall be prospective only and shall not in any way affect the limitations on the
Partnership’s liability to any Indemnitee under this Section 7.7 as in effect immediately prior to
such amendment, modification or repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.



     I. If and to the extent any reimbursements to the General Partner pursuant to this Section 7.7
constitute gross income of the General Partner or the Company (as opposed to the repayment of
advances made by the General Partner on behalf of the Partnership) such amounts shall constitute
guaranteed payments within the meaning of Section 707(c) of the Code, shall be treated consistently
therewith by the Partnership and all Partners, and shall not be treated as distributions for
purposes of computing the Partners’ Capital Accounts.



     J. Any indemnification hereunder is subject to, and limited by, the provisions of Section
10-107 of the Act.



     K. In the event the Partnership is made a party to any litigation or otherwise incurs any loss
or expense as a result of or in connection with any Partner’s personal obligations or liabilities
unrelated to Partnership business, such Partner shall indemnify and reimburse the



43









 




Partnership for all such loss and expense incurred, including legal fees, and the Partnership
interest of such Partner may be charged therefor. The liability of a Partner under this Section
7.7.K. shall not be limited to such Partner’s Partnership Interest, but shall be enforceable
against such Partner personally.



Section 7.8. Liability of the General Partner




     A. Notwithstanding anything to the contrary set forth in this Agreement, none of the General
Partner nor any of its officers, directors, agents or employees shall be liable or accountable in
damages or otherwise to the Partnership, any Partners or any Assignees, or their successors or
assigns, for losses sustained, liabilities incurred or benefits not derived as a result of any one
or more acts or omissions, errors in judgment or mistakes of fact or law if the General Partner
acted in good faith.



     B. The Limited Partners expressly acknowledge that the General Partner is acting for the
benefit of the Partnership, the Limited Partners and the Company’s stockholders collectively. The
General Partner is under no obligation to give priority to the separate interests of the Limited
Partners or the Company’s stockholders (including, without limitation, the tax consequences to
Limited Partners or Assignees or to stockholders) in deciding whether to cause the Partnership to
take (or decline to take) any actions. If there is a conflict between the interests of the
stockholders of the Company 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 the
stockholders of the Company or the Limited Partners; provided, however, that for so long as the
Company owns a controlling interest in the Partnership, any such conflict that cannot be resolved
in a manner not adverse to either the stockholders of the Company or the Limited Partners shall be
resolved in favor of the stockholders. The General Partner shall not be liable under this Agreement
to the Partnership or to any Partner for monetary damages for losses sustained, liabilities
incurred, or benefits not derived by Limited Partners in connection with such decisions or actions
based on 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 7.1.A., the
General Partner may exercise any of the powers granted to it by this Agreement and perform any of
the duties imposed upon it hereunder either directly or by or through its agents. The General
Partner shall not be responsible for any misconduct or negligence on the part of any such agent
appointed by it in good faith.



     D. Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be
prospective only and shall not in any way affect the limitations on the liability of the General
Partner or that of any of its officers, directors, agents or employees to the Partnership and the
Limited Partners that were provided for under this Section 7.8 as in effect immediately prior to
such amendment, modification or repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.



44









 




Section 7.9. Other Matters Concerning the General Partner




     A. A General Partner shall be fully protected from liability to the Partnership, the Partners
or other persons party to or otherwise bound by the Agreement in relying in good faith upon the
records of the Partnership and upon information, opinions, reports or statements presented by any
other Partner, an officer or employee of the Partnership, a liquidating trustee, or committees of
the Partnership, or by any other person as to matters the General Partner reasonably believes are
within such other person’s professional or expert competence, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities, profits or losses of
the Partnership, or the value and amount of assets or reserves or contracts, agreements or other
undertakings that would be sufficient to pay claims and obligations of the Partnership or to make
reasonable provision to pay such claims and obligations, or any other facts pertinent to the
existence and amount of assets from which distributions to Partners or creditors might properly be
paid. Furthermore, the General Partner may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties.



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



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



     D. Notwithstanding any other provisions of this Agreement or any non-mandatory provision of
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 Company, for so long as the Company has determined to qualify as a REIT, to continue to
qualify as a REIT or (ii) to avoid the Company incurring any taxes under Section 857 or Section
4981 of the Code, is expressly authorized under this Agreement and is deemed approved by all of the
Limited Partners.


Section 7.10. Title to Partnership Assets




     Title to Partnership assets, whether real, personal or mixed and whether tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and no Partners,
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



45









 




Partnership, the General Partner or one or more nominees, as the General Partner may
determine, including Affiliates of the General Partner. The General Partner hereby declares and
warrants that any Partnership assets for which legal title is held in the name of the General
Partner or any nominee or Affiliate of the General Partner shall be held by the General Partner for
the use and benefit of the Partnership in accordance with the provisions of this Agreement;
provided, however, that the General Partner shall use its best efforts to cause beneficial and
record title to such assets to be vested in the Partnership as soon as reasonably practicable. All
Partnership assets shall be recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is held.



Section 7.11. Reliance by Third Parties




     Notwithstanding anything to the contrary in this Agreement, any Person dealing with the
Partnership shall be entitled to assume that the General Partner has full power and authority to
encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter
into any contracts on behalf of the Partnership, and such Person shall be entitled to deal with the
General Partner as if it were the Partnership’s sole party in interest, both legally and
beneficially. Each Limited Partner hereby waives any and all defenses or other remedies which may
be available against such Person to contest, negate or disaffirm any action of the General Partner
in connection with any such dealing. In no event shall any Person dealing with the General Partner
or its representatives be obligated to ascertain that the terms of this Agreement have been
complied with or to inquire into the necessity or expedience of any act or action of the General
Partner or its representatives. Each and every certificate, document or other instrument executed
on behalf of the Partnership by the General Partner or its representatives shall be conclusive
evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the
time of the execution and delivery of such certificate, document or instrument, this Agreement was
in full force and effect, (ii) the Person executing and delivering such certificate, document or
instrument was duly authorized and empowered to do so for and on behalf of the Partnership and
(iii) such certificate, document or instrument was duly executed and delivered in accordance with
the terms and provisions of this Agreement and is binding upon the Partnership.



ARTICLE 8.

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS



Section 8.1. Limitation of Liability




     The Limited Partners shall have no liability under this Agreement or for the obligations of
the Partnership except as expressly provided in this Agreement or under the Act.


Section 8.2. Management of Business




     No Limited Partner or Assignee (other than the General Partner, any of its Affiliates or any
officer, director, employee, partner, agent or trustee of the General Partner, the Partnership or
any of their Affiliates, in their capacity as such) shall take part in the operations, management
or control (within the meaning of the Act) of the Partnership’s business, transact any business in
the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership.
The transaction of any such business by the General Partner, any of its Affiliates or



46









 




any officer, director, employee, partner, agent or trustee of the General Partner, the
Partnership or any of their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or Assignees under this
Agreement.



Section 8.3. Outside Activities of Limited Partners




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


Section 8.4. Return of Capital




     Except pursuant to the rights of Redemption set forth in Section 8.6, no Limited Partner shall
be entitled to the withdrawal or return of his or her Capital Contribution, except to the extent of
distributions made pursuant to this Agreement or upon termination of the Partnership as provided
herein. Except as expressly set forth herein, no Limited Partner or Assignee shall have priority
over any other Limited Partner or Assignee either as to the return of Capital Contributions, or
otherwise expressly provided in this Agreement, or as to profits, losses, distributions or credits.


Section 8.5. Rights of Limited Partners Relating to the Partnership




     A. In addition to other rights provided by this Agreement or by the Act and except as limited
by Section 8.5.C., each Limited Partner shall have the right to obtain:



          (1) a copy of the most recent annual and quarterly reports filed with the Securities and
Exchange Commission by the Company pursuant to the Securities Exchange Act and each communication
sent to the stockholders of the Company at such Limited Partner’s Expense;




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




          (3) a copy of this Agreement and the Certificate and all amendments thereto.







47









 








     B. The Partnership shall notify each Limited Partner in writing of any adjustment made in the
calculation of the REIT Shares Amount within a reasonable time after the date such change becomes
effective.



     C. Notwithstanding any other provision of this Section 8.5 other than Section 8.5.D., the
General Partner may keep confidential from the Limited Partners, for such period of time as the
General Partner determines in its sole and absolute discretion to be reasonable, any information
that (i) the General Partner believes to be in the nature of trade secrets or other information the
disclosure of which the General Partner in good faith believes is not in the best interests of the
Partnership or (ii) the Partnership or the General Partner is required by law or by agreements with
unaffiliated third parties to keep confidential.



     D. Notwithstanding anything in this Agreement to the contrary, each Limited Partner also shall
have the rights provided by Section 10-305 of the Act.


Section 8.6. Redemption Rights




     A. On or after the date twelve (12) months after (i) the Effective Date, with respect to the
Partnership Units acquired on or contemporaneously with the Effective Date (including, without
limitation, those Partnership Units set forth on Exhibit A), or on or after such later date as
expressly provided in an agreement entered into between the Partnership and any Limited Partner,
each Limited Partner shall have the right (subject to the terms and conditions set forth herein and
in any other such agreement, as applicable) to require the Partnership to redeem all or a portion
of the Partnership Units held by such Limited Partner (such Partnership Units being hereafter
referred to as “Tendered Units”) in exchange for the Cash Amount (a “Redemption”); provided that
the terms of such Partnership Units do not provide that such Partnership Units are not entitled to
a right of Redemption. Unless otherwise expressly provided in this Agreement or in a separate
agreement entered into between the Partnership and the holders of such Partnership Units, all
Partnership Units shall be entitled to a right of Redemption hereunder. The Tendering Partner shall
have no right, with respect to any Partnership Units so redeemed, to receive any distributions paid
on or after the Specified Redemption Date. Any Redemption shall be exercised pursuant to a Notice
of Redemption delivered to the General Partner by the Limited Partner who is exercising the right
(the “Tendering Partner”). Subject to Section 8.6.F.(3), the Cash Amount shall be payable to the
Tendering Partner within ten (10) days of the Specified Redemption Date.



     B. Notwithstanding Section 8.6.A. above, if a Limited Partner has delivered to the General
Partner a Notice of Redemption then the General Partner may, in its sole and absolute discretion,
(subject to the limitations on ownership and transfer of REIT Shares set forth in the Charter)
elect to acquire some or all of the Tendered Units from the Tendering Partner in exchange for the
REIT Shares Amount (as of the Specified Redemption Date) and, if the Company so elects, the
Tendering Partner shall transfer the Tendered Units to the Company in exchange for the REIT Shares
Amount. In such event, the Tendering Partner shall have no right to cause the Partnership to redeem
such Tendered Units. The Company shall promptly give such Tendering Partner written notice of its
election, and the Tendering Partner may elect to withdraw its redemption request at any time prior
to the acceptance of the cash or REIT Shares Amount by such Tendering Partner.



48









 





     C. The REIT Shares Amount, if applicable, shall be delivered as duly authorized, validly
issued, fully paid and nonassessable REIT Shares and, if applicable, free of any pledge, lien,
encumbrance or restriction, other than those provided in the Charter, the Bylaws of the Company,
the Securities Act, relevant state securities or blue sky laws and any applicable registration
rights agreement with respect to such REIT Shares entered into by the Tendering Partner.
Notwithstanding any delay in such delivery (but subject to Section 8.6.E and 8.6.F(3)), but only
upon the effectiveness of the Redemption, the Tendering Partner shall be deemed the owner of such
REIT Shares for all purposes, including without limitation, rights to vote or consent, and receive
dividends, as of the Specified Redemption Date. In addition, the REIT Shares for which the
Partnership Units might be exchanged shall also bear (or, in the event that the REIT Shares are
uncertificated, be subject to) a legend which generally provides the following:



     THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE, AMONG OTHERS, OF
THE CORPORATION’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). SUBJECT TO
CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE CORPORATION’S
CHARTER, (I) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE
CORPORATION’S COMMON STOCK IN EXCESS OF 9.8 PERCENT (IN VALUE OR NUMBER OF SHARES)
OF THE OUTSTANDING SHARES OF COMMON STOCK OF THE CORPORATION UNLESS SUCH PERSON IS
AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE);
(II) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK OF THE
CORPORATION IN EXCESS OF 9.8 PERCENT OF THE VALUE OF THE TOTAL OUTSTANDING SHARES OF
CAPITAL STOCK OF THE CORPORATION, UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH
CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (III) NO PERSON MAY
BENEFICIALLY OR CONSTRUCTIVELY OWN CAPITAL STOCK THAT WOULD RESULT IN THE
CORPORATION BEING “CLOSELY HELD” UNDER SECTION 856(H) OF THE CODE OR OTHERWISE CAUSE
THE CORPORATION TO FAIL TO QUALIFY AS A REIT; AND (IV) NO PERSON MAY TRANSFER SHARES
OF CAPITAL STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE
CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO BENEFICIALLY OR
CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF
CAPITAL STOCK WHICH CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY
OWN SHARES OF CAPITAL STOCK IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUST
IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ON TRANSFER OR
OWNERSHIP ARE VIOLATED, THE SHARES OF CAPITAL STOCK REPRESENTED HEREBY MAY BE
AUTOMATICALLY TRANSFERRED TO A TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE
CHARITABLE BENEFICIARIES OR MAY BE VOID AB INITIO. IN ADDITION, THE CORPORATION MAY
REDEEM SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS IN
ITS SOLE DISCRETION IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A
TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. ALL
CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE CHARTER OF THE
CORPORATION, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH,
INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF CAPITAL STOCK OF
THE CORPORATION ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE
DIRECTED TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE.




49









 






     D. Each Limited Partner covenants and agrees with the Company that all Tendered Units shall be
delivered to the Company free and clear of all liens, claims and encumbrances whatsoever and should
any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the
Company shall be under no obligation to acquire the same. Each Limited Partner further agrees that,
in the event any state or local property transfer tax is payable as a result of the transfer of its
Tendered Units to the Company (or its designee), such Limited Partner shall assume and pay such
transfer tax.



     E. Notwithstanding the provisions of Section 8.6.A., 8.6.B., 8.6.C. or any other provision of
this Agreement, a Limited Partner (i) shall not be entitled to effect a Redemption for cash or an
exchange for REIT Shares to the extent the ownership or right to acquire REIT Shares pursuant to
such exchange by such Partner on or as of the Specified Redemption Date could cause such Partner or
any other Person to violate the restrictions on ownership and transfer of REIT Shares set forth in
the Charter and (ii) shall have no rights under this Agreement to acquire REIT Shares which would
otherwise be prohibited under the Charter. To the extent any attempted Redemption or exchange for
REIT Shares would be in violation of this Section 8.6.E., it shall be null and void ab initio and
such Limited Partner shall not acquire any rights or economic interest in the cash otherwise
payable upon such Redemption or the REIT Shares otherwise issuable upon such exchange.



     F. Notwithstanding anything herein to the contrary (but subject to Section 8.6.E.), with
respect to any Redemption or exchange for REIT Shares pursuant to this Section 8.6:



          (1) Without the consent of the General Partner, no Limited Partner may effect a Redemption for
less than 1,000 Partnership Units or, if the Limited Partner holds less than 1,000 Partnership
Units, all of the Partnership Units held by such Limited Partner.




          (2) Without the consent of the General Partner, no Limited Partner may effect a Redemption
during the period after the Partnership Record Date with respect to a distribution and before the
record date established by the General Partner for a distribution to its stockholders of some or
all of its portion of such distribution.




          (3) The consummation of any Redemption or exchange for REIT Shares shall be subject to the
expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.




          (4) Each Tendering Partner shall continue to own all Partnership Units subject to any
Redemption or exchange for REIT Shares, and be treated as a Limited Partner with respect to such
Partnership Units for all purposes of this Agreement, until such Partnership Units are transferred
and paid for or exchanged pursuant to the Redemption. Until such Partnership




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Units are transferred and paid for or exchanged pursuant to the Redemption, the Tendering
Partner shall have no rights as a stockholder of the Company with respect to such Tendering
Partner’s Partnership Units.




     G. In the event that the Partnership issues additional Partnership Interests to any Additional
Limited Partner pursuant to Section 4.3.B., the General Partner shall make such revisions to this
Section 8.6 as it determines are necessary to reflect the issuance of such additional Partnership
Interests.


Section 8.7. Conversion of PIUs.




     A. PIUs will automatically convert into an equal number of fully paid and non-assessable
Common Units, giving effect to all adjustments (if any) made pursuant to Section 4.3.E., at such
time (a “Conversion Date”) as the Economic Capital Account Balance attributable to such PIUs is
equal to the Common Unit Economic Balance, in each case as determined as of the effective date of
conversion (the “Capital Account Limitation”). The resulting Common Units will be vested or
unvested in accordance with the PIU Vesting Agreement governing the converted PIUs.



     Notwithstanding anything herein to the contrary, a holder of vested PIUs may deliver a Notice
of Redemption pursuant to Section 8.6.A. of the Partnership Agreement relating to those Common
Units that will be issued to such holder upon conversion of such PIUs into Common Units in advance
of the Conversion Date; provided, however, that the redemption of such Common Units by the
Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted
that the objective of this paragraph is to put a PIU Holder in a position where, if he or she so
wishes, the Common Units into which his or her Vested PIUs will be converted can be redeemed by the
Partnership simultaneously with such conversion, with the further consequence that, if the Company
elects to assume the Partnership’s Redemption obligation with respect to such Common Units under
Section 8.6.B. of the Agreement by delivering to such holder REIT Shares rather than cash, then
such holder can have such REIT Shares issued to him or her simultaneously with the conversion of
his or her Vested PIUs into Common Units. The General Partner and the Company shall reasonably
cooperate with a PIU Holder to coordinate the timing of the different events described in the
foregoing sentence.



     B. If the Partnership or the General Partner shall be a party to any transaction (including,
without limitation, a merger, consolidation, unit exchange, self tender offer for all or
substantially all Common Units or other business combination or reorganization, or sale of all or
substantially all of the Partnership’s assets, but excluding any transaction which constitutes an
Adjustment Event) in each case as a result of which Common Units shall be exchanged for or
converted into the right, or the holders of such Units shall otherwise be entitled, to receive
cash, securities or other property or any combination thereof (each of the foregoing being referred
to herein as a “Transaction”), the PIUs held by each PIU Holder will be converted into a number of
Common Units equal to the Economic Capital Account Balance of the PIU Holder (to the extent
attributable to its ownership of PIUs) divided by the Common Unit Economic Balance. For this
purposes, the Economic Capital Account Balance of the PIU Holder will be adjusted by taking into
account any allocations that occur in connection with the Transaction or that would occur in
connection with the Transaction if the assets of the Partnership were sold at the



51









 




Transaction price or, if applicable, at a value determined by the General Partner in good
faith using the value attributed to the Partnership Units in the context of the Transaction (in
which case the Conversion Date shall be the effective date of the Transaction). The Common Units
received in the Conversion will be vested or unvested in accordance with the PIU Vesting Agreement
governing the converted PIUs.




     In anticipation of such Conversion and the consummation of the Transaction, the Partnership
shall use commercially reasonable efforts to cause each PIU Holder to be afforded the right to
receive in connection with such Transaction in consideration for the Common Units into which his or
her PIUs will be converted the same kind and amount of cash, securities and other property (or any
combination thereof) receivable upon the consummation of such Transaction by a holder of the same
number of Common Units, assuming such holder of Common Units is not a Person with which the
Partnership consolidated or into which the Partnership merged or which merged into the Partnership
or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an
affiliate of a Constituent Person. In the event that holders of Common Units have the opportunity
to elect the form or type of consideration to be received upon consummation of the Transaction,
prior to such Transaction the General Partner shall give prompt written notice to each PIU Holder
of such election, and shall use commercially reasonable efforts to afford the PIU Holders the right
to elect, by written notice to the General Partner, the form or type of consideration to be
received upon conversion of each PIU held by such holder into Common Units in connection with such
Transaction. If a PIU Holder fails to make such an election, such holder (and any of its
transferees) shall receive upon conversion of each PIU held him or her (or by any of his or her
transferees) the same kind and amount of consideration that a holder of a Common Unit would receive
if such Common Unit holder failed to make such an election.



     Subject to the rights of the Partnership and the Company under any PIU Vesting Agreement and
the Stock Plan, the Partnership shall use commercially reasonable efforts to cause the terms of any
Transaction to be consistent with the provisions of this Section 8.7.B and to enter into an
agreement with the successor or purchasing entity, as the case may be, for the benefit of any PIU
Holders whose PIUs will not be converted into Common Units in connection with the Transaction that
will (i) contain provisions enabling the holders of PIUs that remain outstanding after such
Transaction to convert their PIUs into securities as comparable as reasonably possible under the
circumstances to the Common Units and (ii) preserve as far as reasonably possible under the
circumstances the distribution, special allocation, conversion, and other rights set forth in the
Partnership Agreement for the benefit of the PIU Holders.


Section 8.8. Voting Rights of PIUs




     PIU Holders shall:



     (a) have those voting rights required from time to time by applicable law, if any; and (b)
have the additional voting rights that are expressly set forth below. So long as any PIUs remain
outstanding, the Partnership shall not, without the affirmative vote of the holders of at least a
majority of the PIUs outstanding at the time, given in person or by proxy, either in writing or at
a meeting (voting separately as a class), amend, alter or repeal, whether by merger, consolidation
or otherwise, the provisions of the Partnership Agreement applicable to PIUs so as



52









 




to materially and adversely affect any right, privilege or voting power of the PIUs or the PIU
Holders as such, unless such amendment, alteration, or repeal affects equally, ratably and
proportionately the rights, privileges and voting powers of the holders of Common Units; but
subject, in any event, to the following provisions:





     (i) With respect to any Transaction, so long as the PIUs are treated in accordance with
Section 8.7.B. hereof, the consummation of such Transaction shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting powers of the
PIUs or the PIU Holders as such; and




     (ii) Any creation or issuance of any Partnership Units or of any class or series of
Partnership Interest including without limitation additional Common Units, PIUs or Preferred
Units, whether ranking senior to, junior to, or on a parity with the PIUs with respect to
distributions and the distribution of assets upon liquidation, dissolution or winding up,
shall not be deemed to materially and adversely affect such rights, preferences, privileges
or voting powers of the PIUs or the PIU Holders as such.



     The foregoing voting provisions will not apply if, at or prior to the time when the act with
respect to which such vote would otherwise be required will be effected, all outstanding PIUs shall
have been converted into Common Units.



ARTICLE 9.

BOOKS, RECORDS, ACCOUNTING AND REPORTS



Section 9.1. Records and Accounting




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



     B. The books of the Partnership shall be maintained, for financial and tax reporting purposes,
on an accrual basis in accordance with generally accepted accounting principles.


Section 9.2. Fiscal Year




     The fiscal year of the Partnership shall be the calendar year.


Section 9.3. Reports




     A. As soon as practicable, but in no event later than 105 days after the close of each
Partnership Year, or such earlier date as they are filed with the Securities and Exchange
Commission, the General Partner shall cause to be mailed to each Limited Partner as of the close of
the Partnership Year, an annual report containing financial statements of the Partnership, or of
the Company if such statements are prepared solely on a consolidated basis with those of the



53









 




Company, for such Partnership Year, presented in accordance with generally accepted accounting
principles, such statements to be audited by a nationally recognized firm of independent public
accountants selected by the General Partner.




     B. As soon as practicable, but in no event later than 45 days after the close of each calendar
quarter (except the last calendar quarter of each year), or such earlier date as they are filed
with the Securities and Exchange Commission, the General Partner shall cause to be mailed to each
Limited Partner as of the last day of the calendar quarter, a report containing unaudited financial
statements of the Partnership, or of the Company, if such statements are prepared solely on a
consolidated basis with those of the Company, or as the General Partner determines to be
appropriate.


Section 9.4. Nondisclosure of Certain Information




     Notwithstanding the provisions of Sections 9.1 and 9.3, the General Partner may keep
confidential from the Limited Partners any information that the General Partner believes to be in
the nature of trade secrets or other information the disclosure of which the General Partner in
good faith believes is not in the best interest of the Partnership or could damage the Partnership
or its business or which the Partnership is required by law or by agreements with unaffiliated
third parties to keep confidential.



ARTICLE 10.

TAX MATTERS



Section 10.1. Preparation of Tax Returns




     The General Partner shall arrange for the preparation and timely filing of all returns of
Partnership income, gains, deductions, losses and other items required of the Partnership for
federal and state income tax purposes and shall use all reasonable efforts to furnish, within 90
days of the close of each taxable year, the tax information reasonably required by Limited Partners
for federal and state income tax reporting purposes. Each Limited Partner shall promptly provide
the General Partner with any information reasonably requested by the General Partner relating to
any Contributed Property contributed (directly or indirectly) by such Limited Partner to the
Partnership.


Section 10.2. Tax Elections




     Except as otherwise provided herein, the General Partner shall, in its sole and absolute
discretion, determine whether to make any available election pursuant to the Code, including the
election under Section 754 of the Code. The General Partner shall have the right to seek to revoke
any such election (including without limitation, any election under Section 754 of the Code) upon
the General Partner’s determination in its sole and absolute discretion.


Section 10.3. Tax Matters Partner




     A. The General Partner shall be the “tax matters partner” of the Partnership for federal
income tax purposes. Pursuant to Section 6223(c) of the Code, upon receipt of notice from the IRS
of the beginning of an administrative proceeding with respect to the Partnership,



54









 




the tax matters partner shall furnish the IRS with the name, address and profit interest of
each of the Limited Partners and Assignees; provided, however, that such information is provided to
the Partnership by the Limited Partners and Assignees.




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



          (1) to enter into any settlement with the IRS with respect to any administrative or judicial
proceedings for the adjustment of Partnership items required to be taken into account by a Partner
for income tax purposes (such administrative proceedings being referred to as a “tax audit” and
such judicial proceedings being referred to as “judicial review”), and in the settlement agreement
the tax matters partner may expressly state that such agreement shall bind all Partners, except
that such settlement agreement shall not bind any Partner (i) who (within the time prescribed
pursuant to the Code and Regulations) files a statement with the IRS providing that the tax matters
partner shall not have the authority to enter into a settlement agreement on behalf of such Partner
or (ii) who is a “notice partner” (as defined in Section 6231 of the Code) or a member of a “notice
group” (as defined in Section 6223(b)(2) of the Code);




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




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




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




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




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




          (7) The taking of any action and the incurring of any expense by the tax matters partner in
connection with any such proceeding, except to the extent required by law, is a matter in the sole
and absolute discretion of the tax matters partner and the provisions relating to indemnification
of the General Partner set forth in Section 7.7 shall be fully applicable to the tax matters
partner in its capacity as such.




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



55









 




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



Section 10.4. Organizational Expenses




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


Section 10.5. Withholding




     Each Limited Partner hereby authorizes the Partnership to withhold from or pay on behalf of or
with respect to such Limited Partner any amount of federal, state, local, or foreign taxes that the
General Partner determines that the Partnership is required to withhold or pay with respect to any
amount distributable or allocable to such Limited Partner pursuant to this Agreement, including,
without limitation, any taxes required to be withheld or paid by the Partnership pursuant to
Sections 1441, 1442, 1445 or 1446 of the Code. Any amount paid on behalf of or with respect to a
Limited Partner shall constitute a receivable of the Partnership from such Limited Partner, which
receivable shall be paid by such Limited Partner within 15 days after notice from the General
Partner that such payment must be made unless (i) the Partnership withholds such payment from a
distribution which would otherwise be made to the Limited Partner or (ii) the General Partner
determines, in its sole and absolute discretion, that such payment may be satisfied out of the
available funds of the Partnership which would, but for such payment, be distributed to the Limited
Partner. Any amounts withheld pursuant to the foregoing clauses (i) or (ii) shall be treated as
having been distributed to such Limited Partner. Each Limited Partner hereby unconditionally and
irrevocably grants to the Partnership a security interest in such Limited Partner’s Partnership
Interest to secure such Limited Partner’s obligation to pay to the Partnership any amounts required
to be paid pursuant to this Section 10.5. Any amounts payable by a Limited Partner hereunder shall
bear interest at the base rate on corporate loans at large United States money center commercial
banks, as published from time to time in The Wall Street Journal, plus two percentage points (but
not higher than the maximum lawful rate) from the date such amount is due (i.e., 15 days after
demand) until such amount is paid in full. Each Limited Partner shall take such actions as the
Partnership or the General Partner shall request in order to perfect or enforce the security
interest created hereunder.



ARTICLE 11.

TRANSFERS AND WITHDRAWALS



Section 11.1. Transfer




     A. The term “transfer,” when used in this Article 11 with respect to a Partnership Interest,
shall be deemed to refer to a transaction by which the General Partner purports to assign its
General Partner Interest to another Person or by which a Limited Partner purports to assign its
Limited Partner Interest to another Person, and includes a sale, assignment, gift (outright or in
trust), pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by law or
otherwise. The term “transfer” when used in this Article 11 does not include any Redemption or
exchange for REIT Shares pursuant to Section 8.6 except as otherwise provided herein. No



56









 




part of the Partnership Interest of a Limited Partner shall be subject to the claims of any
creditor, any spouse for alimony or support, or to legal process, and may not be voluntarily or
involuntarily alienated or encumbered except as may be specifically provided for in this Agreement
or consented to by the General Partner.




     B. No Partnership Interest shall be transferred, in whole or in part, except in accordance
with the terms and conditions set forth in this Article 11. Any transfer or purported transfer of a
Partnership Interest not made in accordance with this Article 11 shall be null and void ab initio
unless otherwise consented by the General Partner in its sole and absolute discretion.


Section 11.2. Transfer of General Partner’s Partnership Interest




     The General Partner shall not withdraw from the Partnership and shall not transfer all or any
portion of its interest as General Partner in the Partnership (whether by sale, statutory merger or
consolidation, liquidation or otherwise) without the Consent of the Limited Partners, which may be
given or withheld by each Limited Partner in its sole and absolute discretion, and only upon the
admission of a successor General Partner pursuant to Section 12.1. Upon any transfer of a
Partnership Interest in accordance with the provisions of this Section 11.2, the transferee shall
become a Substitute General Partner for all purposes herein, and shall be vested with the powers
and rights of the transferor General Partner, and shall be liable for all obligations and
responsible for all duties of the General Partner, once such transferee has executed such
instruments as may be necessary to effectuate such admission and to confirm the agreement of such
transferee to be bound by all the terms and provisions of this Agreement with respect to the
Partnership Interest so acquired. It is a condition to any transfer otherwise permitted hereunder
that the transferee assumes, by operation of law or express agreement, all of the obligations of
the transferor General Partner under this Agreement with respect to such transferred Partnership
Interest, and no such transfer (other than pursuant to a statutory merger or consolidation wherein
all obligations and liabilities of the transferor General Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor General Partner of its obligations
under this Agreement without the Consent of the Limited Partners, in their reasonable discretion.
In the event the General Partner withdraws from the Partnership, in violation of this Agreement or
otherwise, or otherwise dissolves or terminates, or upon the Incapacity of the General Partner, all
of the remaining Partners may elect to continue the Partnership business by selecting a Substitute
General Partner in accordance with the Act.


Section 11.3. Termination Transactions; Transfer of the Company’s Onwership of the General Partner




     A. Termination Transactions. The Company 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
(a “Termination Transaction”) unless either clause (a) or (b) below is satisfied:



          (a) in connection with such Termination Transaction all Limited Partners either will receive,
or will have the right to elect to receive, for each Partnership Unit an amount of cash,
securities, or other property equal to the product of the REIT Shares Amount and the greatest
amount of cash, securities or other property paid to a holder of one REIT Share in






57









 







consideration of one REIT Share at any time during the period commencing upon and continuing
after the date on which the Termination Transaction is consummated; or




          (b) the following conditions are met: (i) substantially all of the assets directly or
indirectly owned by the surviving entity are held directly or indirectly by the Partnership or
another limited partnership or limited liability company which is the survivor of a merger,
consolidation or combination of assets with the Partnership (in each case, the “Surviving
Partnership”); (ii) the holders of Partnership Units own a percentage interest of the Surviving
Partnership based on the relative fair market value of the net assets of the Partnership and the
other net assets of the Surviving Partnership immediately prior to the consummation of such
transaction; (iii) the rights, preferences and privileges of such holders in the Surviving
Partnership are at least as favorable as those in effect immediately prior to the consummation of
such transaction and as those applicable to any other limited partners or non-managing members of
the Surviving Partnership; and (iv) such rights of the Limited Partners include at least one of the
following: (a) the right to redeem their interests in the Surviving Partnership for the
consideration available to such persons pursuant to Section 8.6.A.; or (b) the right to redeem
their Partnership Units for cash on terms equivalent to those in effect with respect to their
Partnership Units immediately prior to the consummation of such transaction, or, if the ultimate
controlling person of the Surviving Partnership has publicly traded common equity securities, such
common equity securities, with an exchange ratio based on the determination of relative fair market
value of such securities and the REIT Shares.




     B. Transfer of the Company’s Ownership of the General Partner. Except in connection
with a Termination Transaction, the Company shall not directly transfer all or any portion of its
interest in the General Partner (whether by sale, statutory merger or consolidation, liquidation or
otherwise) without the Consent of the Limited Partners (not including the Company), which may be
given or withheld by each Limited Partner in its sole and absolute discretion.


Section 11.4. Limited Partners’ Rights to Transfer




     A. Subject to Section 11.7, no Limited Partner shall transfer all or any portion of its
Partnership Interest to any transferee without the consent of the General Partner, which consent
may be withheld in its sole and absolute discretion; provided, however, that any Limited Partner
may, at any time, without the consent of the General Partner, (i) transfer all or any portion of
its Partnership Interest to the General Partner, (ii) transfer all or any portion of its
Partnership Interest to an Affiliate or to an Immediate Family Member, subject to the provisions of
Section 11.7 and (iii) transfer all or any portion of its Partnership Interest to an organization
described in Section 501(c)(3) of the Code (or to a trust for the benefit of such an organization),
subject to the provisions of Section 11.7.



     B. It is a condition to any transfer otherwise permitted hereunder that the transferee assumes
by operation of law or express agreement all of the obligations of the transferor Limited Partner
under this Agreement with respect to such transferred Partnership Interest and no such transfer
(other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities
of the transferor Partner are assumed by a successor corporation by operation of law) shall relieve
the transferor Partner of its obligations under this Agreement without the approval



58









 




of the General Partner, in its reasonable discretion. Notwithstanding the foregoing, any
transferee of any transferred Partnership Interest shall be subject to any and all ownership
limitations contained in the Charter and to the representations in Section 3.4.D. Any transferee,
whether or not admitted as a Substituted Limited Partner, shall take subject to the obligations of
the transferor hereunder. Unless admitted as a Substitute Limited Partner, no transferee, whether
by a voluntary transfer, by operation of law or otherwise, shall have any rights hereunder, other
than the rights of an Assignee as provided in Section 11.6.




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



     D. The General Partner may prohibit any transfer otherwise permitted under this Section 11.4
by a Limited Partner of his or her Partnership Units if, in the opinion of legal counsel to the
Partnership, such transfer would require the filing of a registration statement under the
Securities Act by the Partnership or would otherwise violate any federal or state securities laws
or regulations applicable to the Partnership or the Partnership Unit.


Section 11.5. Substituted Limited Partners




     A. Except as otherwise provided below, no Limited Partner shall have the right to substitute a
transferee as a Limited Partner in his or her place (including any transferee permitted by Section
11.4). The General Partner shall, however, have the right to consent to the admission of a
transferee of the interest of a Limited Partner pursuant to this Section 11.5 as a Substituted
Limited Partner, which consent may be given or withheld by the General Partner in its sole and
absolute discretion. The General Partner’s failure or refusal to permit a transferee of any such
interests to become a Substituted Limited Partner shall not give rise to any cause of action
against the Partnership or any Partner.



     B. A transferee who has been admitted as a Substituted Limited Partner in accordance with this
Article 11 shall have all the rights and powers and be subject to all the restrictions and
liabilities of a Limited Partner under this Agreement. The admission of any transferee as a
Substituted Limited Partner shall be subject to the transferee executing and delivering to the
Partnership an acceptance of all of the terms and conditions of this Agreement (including without
limitation, the provisions of Section 2.4 and such other documents or instruments as may be
required to effect the admission), each in form and substance satisfactory to the General Partner)
and the acknowledgment by such transferee that each of the representations and warranties set forth
in Section 3.4 are true and correct with respect to such transferee as of the date of the transfer
of the Partnership Interest to such transferee and will continue to be true to the extent required
by such representations and warranties.



     C. Upon the admission of a Substituted Limited Partner, the General Partner shall amend
Exhibit A to reflect the name, address, number of Partnership Units, and Percentage



59









 




Interest of such Substituted Limited Partner and to eliminate or adjust, if necessary, the
name, address and interest of the predecessor of such Substituted Limited Partner.



Section 11.6. Assignees




     If the General Partner, in its sole and absolute discretion, does not consent to the admission
of any permitted transferee under Section 11.4 as a Substituted Limited Partner, as described in
Section 11.5, such transferee shall be considered an Assignee for purposes of this Agreement. An
Assignee shall be entitled to all the rights of an assignee of a limited partnership interest under
the Act, including the right to receive distributions from the Partnership and the share of Net
Income, Net Losses, gain and loss attributable to the Partnership Units assigned to such
transferee, the rights to transfer the Partnership Units provided in this Article 11, the right of
Redemption provided in Section 8.6, but shall not be deemed to be a holder of Partnership Units for
any other purpose under this Agreement, and shall not be entitled to effect a Consent with respect
to such Partnership Units on any matter presented to the Limited Partners for approval (such
Consent remaining with the transferor Limited Partner). In the event any such transferee desires to
make a further assignment of any such Partnership Units, such transferee shall be subject to all
the provisions of this Article 11 to the same extent and in the same manner as any Limited Partner
desiring to make an assignment of Partnership Units. Notwithstanding anything contained in this
Agreement to the contrary, as a condition to becoming an Assignee, any prospective Assignee must
first execute and deliver to the Partnership an acknowledgment that each of the representations and
warranties set forth in Section 3.4 are true and correct with respect to such prospective Assignee
as of the date of the prospective assignment of the Partnership Interest to such prospective
Assignee and will continue to be true to the extent required by such representations or warranties.


Section 11.7. General Provisions




     A. No Limited Partner may withdraw from the Partnership other than as a result of (i) a
permitted transfer of all of such Limited Partner’s Partnership Interests in accordance with this
Article 11 and the transferee(s) of such Partnership Units being admitted to the Partnership as a
Substituted Limited Partner or (ii) pursuant to the exercise of its right of Redemption of all of
such Limited Partner’s Partnership Units under Section 8.6; provided that after such transfer,
exchange or redemption such Limited Partner owns no Partnership Units. No Limited Partner who
withdraws from the Partnership, other than as expressly permitted by this Section 11.7.A., shall
thereafter be entitled to consent or vote with respect to any matter requiring the vote or consent
of the Limited Partners and all Partnership Units of such Limited Partner shall be disregarded for
purposes of determining whether the requisite Percentage Interest required to consent to or approve
such matter has been given or obtained.



     B. Any Limited Partner who shall transfer all of such Limited Partner’s Partnership Units in a
transfer permitted pursuant to this Article 11 where such transferee was admitted as a Substituted
Limited Partner or pursuant to the exercise of its rights of Redemption of all of such Limited
Partner’s Partnership Units under Section 8.6 shall cease to be a Limited Partner; provided that
after such transfer, exchange or redemption such Limited Partner owns no Partnership Units.



60









 





     C. Transfers pursuant to this Article 11 may only be made on the first day of a fiscal quarter
of the Partnership, unless the General Partner otherwise agrees.



     D. If any Partnership Interest is transferred, assigned or redeemed during any quarterly
segment of the Partnership’s fiscal year in compliance with the provisions of this Article 11 or
transferred or redeemed pursuant to Section 8.6, on any day other than the first day of a
Partnership Year, then Net Income, Net Losses, each item thereof and all other items attributable
to such Partnership Interest for such fiscal year shall be divided and allocated between the
transferor Partner and the transferee Partner by taking into account their varying interests during
the fiscal year using a method selected by the General Partner that is in accordance with Section
706(d) of the Code. All distributions of Available Cash with respect to which the Partnership
Record Date is before the date of such transfer, assignment, exchange or redemption shall be made
to the transferor Partner, and all distributions of Available Cash thereafter, in the case of a
transfer or assignment other than an exchange or a redemption for REIT Shares, shall be made to the
transferee Partner.



     E. In addition to any other restrictions on transfer herein contained, including without
limitation the provisions of this Article 11, in no event may any transfer or assignment of a
Partnership Interest by any Partner (including pursuant to a Redemption or exchange for REIT Shares
pursuant to Section 8.6) be made: (i) to any person or entity who lacks the legal right, power or
capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii) except with the
consent of the General Partner, which may be given or withheld in its sole and absolute discretion,
of any economic component portion of a Partnership Interest, such as the Capital Account, or rights
to distributions, separate and apart from all other components of a Partnership Interest; (iv)
except with the consent of the General Partner, which may be given or withheld in its sole and
absolute discretion, if in the opinion of legal counsel to the Partnership such transfer could
cause a termination of the Partnership for federal or state income tax purposes (except as a result
of the Redemption or exchange for REIT Shares of all Partnership Units held by all Limited Partners
or pursuant to a transaction expressly permitted under Section 11.3); (v) if in the opinion of
counsel to the Partnership such transfer could cause the Partnership to cease to be classified as a
partnership for federal income tax purposes (except as a result of the Redemption or exchange for
REIT Shares of all Partnership Units held by all Limited Partners); (vi) if such transfer would
cause the Partnership to become, with respect to any employee benefit plan subject to Title I of
ERISA, a “party-in-interest” (as defined in Section 3(14) of ERISA) or a “disqualified person” (as
defined in Section 4975(c) of the Code); (vii) if such transfer would, in the opinion of counsel to
the Partnership, cause any portion of the assets of the Partnership to constitute assets of any
employee benefit plan pursuant to Department of Labor Regulation Section 2510.3-101; (viii) if such
transfer requires the registration of such Partnership Interest pursuant to any applicable federal
or state securities laws; (ix) except with the consent of the General Partner, which may be given
or withheld in its sole and absolute discretion, if such transfer (1) could be treated as
effectuated through an “established securities market” or a “secondary market” (or the substantial
equivalent thereof) within the meaning of Section 7704 of the Code, (2) could cause the Partnership
to become a “Publicly Traded Partnership,” as such term is defined in Sections 469(k)(2) or 7704(b)
of the Code or (3) could cause the Partnership to fail one or more of the Safe Harbors (as defined
below); (x) if such transfer subjects the Partnership to be regulated under the Investment Company
Act of 1940, the Investment Advisors Act of 1940 or the Employee Retirement Income Security Act of
1974, each as amended; (xi)



61









 




except with the consent of the General Partner, which may be given or withheld in its sole
discretion, if the proposed transferee or assignee of such Partnership Interest is unable to make
the representations set forth in Section 3.4.C; (xii) if such transfer is made to a lender to the
Partnership or any Person who is related (within the meaning of Section 1.752-4(b) of the
Regulations) to any lender to the Partnership whose loan constitutes a Nonrecourse Liability,
except with the consent of the General Partner, which may be given or withheld in its sole and
absolute discretion; and provided, that, as a condition to granting such consent the lender may be
required to enter into an arrangement with the Partnership and the General Partner to redeem or
exchange for the REIT Shares 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; or
(xiii) if in the opinion of legal counsel for the Partnership such transfer could adversely affect
the ability of the Company to continue to qualify as a REIT or, except with the consent of the
General Partner, which may be given or withheld in its sole and absolute discretion, subject the
General Partner to any additional taxes under Section 857 or Section 4981 of the Code.




     F. The General Partner shall monitor the transfers of interests in the Partnership to
determine (i) if such interests are being traded on an “established securities market” or a
“secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of
the Code and (ii) whether such transfers of interests would result in the Partnership being unable
to qualify for the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance
subsequently published by the IRS setting forth safe harbors under which interests will not be
treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within
the meaning of Section 7704 of the Code) (the “Safe Harbors”). The General Partner shall have the
authority (but shall not be required) to take any steps it determines are necessary or appropriate
in its sole and absolute discretion to prevent any trading of interests which could cause the
Partnership to become a “publicly traded partnership,” or any recognition by the Partnership of
such transfers, or to insure that one or more of the Safe Harbors is met.



     G. No Partner who withdraws, or attempts to withdraw, from the Partnership shall be entitled
to receive the fair value of such Partner’s partnership interest in the Partnership.



ARTICLE 12.

ADMISSION OF PARTNERS



Section 12.1. Admission of Successor General Partner




     A successor to all of the General Partner’s General Partner Interest pursuant to Section 11.2
who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership
as the General Partner, effective upon such transfer. Any such transferee shall carry on the
business of the Partnership without dissolution. In each case, the admission shall be subject to
the successor General Partner executing and delivering to the Partnership an acceptance of all of
the terms and conditions of this Agreement and such other documents or instruments as may be
required to effect the admission. In the case of such admission on any day other than the first day
of a Partnership Year, all items attributable to the General Partner Interest for such Partnership
Year shall be allocated between the transferring General Partner and such successor as provided in
Article 11.



62









 




Section 12.2. Admission of Additional Limited Partners




     A. After the admission to the Partnership of the initial Limited Partners on the date hereof,
a Person who makes a Capital Contribution to the Partnership in accordance with this Agreement
shall be admitted to the Partnership as an Additional Limited Partner upon, and only upon,
furnishing to the General Partner (i) evidence of acceptance in form satisfactory to the General
Partner of all of the terms and conditions of this Agreement, including, without limitation, the
power of attorney granted in Section 2.4 and (ii) such other documents or instruments as may be
required in the discretion of the General Partner in order to effect such Person’s admission as an
Additional Limited Partner.



     B. Notwithstanding anything to the contrary in this Section 12.2, no Person shall be admitted
as an Additional Limited Partner without the consent of the General Partner, which consent may be
given or withheld in the General Partner’s sole and absolute discretion. The admission of any
Person as an Additional Limited Partner shall become effective on the date upon which the name of
such Person is recorded on the books and records of the Partnership, following the receipt of the
Capital Contribution in respect of such Limited Partner and the consent of the General Partner to
such admission. If any Additional Limited Partner is admitted to the Partnership on any day other
than the first day of a Partnership Year, then Net Income, Net Losses, each item thereof and all
other items allocable among Partners and Assignees for such Partnership Year shall be allocated
among such Limited Partner and all other Partners and Assignees by taking into account their
varying interests during the Partnership Year using a method selected by the General Partner that
is in accordance with Section 706(d) of the Code. All distributions of Available Cash with respect
to which the Partnership Record Date is before the date of such admission shall be made solely to
Partners and Assignees other than the Additional Limited Partner (other than in its capacity as an
Assignee) and, except as otherwise agreed to by the Additional Limited Partners and the General
Partner, all distributions of Available Cash thereafter shall be made to all Partners and Assignees
including such Additional Limited Partner.


Section 12.3. Amendment of Agreement and Certificate of Limited Partnership




     For the admission to the Partnership of any Partner, the General Partner shall take all steps
necessary and appropriate under the Act to amend the records of the Partnership and, if necessary,
to prepare as soon as practical an amendment of this Agreement (including an amendment of Exhibit
A) and, if required by law, shall prepare and file an amendment to the Certificate and may for this
purpose exercise the power of attorney granted pursuant to Section 2.4.



ARTICLE 13.

DISSOLUTION AND LIQUIDATION



Section 13.1. Dissolution




     The Partnership shall not be dissolved by the admission of Substituted Limited Partners or
Additional Limited Partners or by the admission of a successor General Partner in accordance with
the terms of this Agreement. Upon the withdrawal of the General Partner, any successor



63









 




General Partner (selected as described in Section 13.1.A. below) shall continue the business
of the Partnership. The Partnership shall dissolve, and its affairs shall be wound up, upon the
first to occur of any of the following (each a “Liquidating Event”):




     A. subject to compliance with Section 11.2, an event of withdrawal of the General Partner, as
defined in the Act, unless, within 90 days after the withdrawal, remaining Partners holding
Percentage Interests that in the aggregate are not less than 66 2/3% of the aggregate
Percentage Interests of all the remaining Partners (including in all cases the Limited Partner
Interests owned directly or indirectly by the Company) agree in writing, in their sole and absolute
discretion, to continue the business of the Partnership and to the appointment, effective as of the
date of withdrawal, of a substitute General Partner;



     B. an election to dissolve the Partnership made by the General Partner, in its sole and
absolute discretion;



     C. consent to dissolution by Partners holding Percentage Interests that in the aggregate are
not less than 66 2/3% of the aggregate Percentage Interests of all the Partners
(including in all cases the Limited Partner Interests owned directly or indirectly by the Company);



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



     E. subject to compliance with Section 11.3, any sale or other disposition of all or
substantially all of the assets of the Partnership or a related series of transactions that, taken
together, result in the sale or other disposition of all or substantially all of the assets of the
Partnership;



     F. a final and non-appealable judgment is entered by a court of competent jurisdiction ruling
that the General Partner is bankrupt or insolvent, or a final and non-appealable order for relief
is entered by a court with appropriate jurisdiction against the General Partner, in each case under
any federal or state bankruptcy or insolvency laws as now or hereafter in effect, unless prior to
the entry of such order or judgment all of the remaining Partners agree in writing to continue the
business of the Partnership and to the appointment, effective as of a date prior to the date of
such order or judgment, of a substitute General Partner.


Section 13.2. Winding Up




     A. Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the
purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the
claims of its creditors and Partners. No Partner shall take any action that is inconsistent with,
or not necessary to or appropriate for, the winding up of the Partnership’s business and affairs.
The General Partner (or, in the event there is no remaining General Partner, any Person elected by
a Majority in Interest of the Limited Partners (the “Liquidator”)) shall be responsible for
overseeing the winding up and dissolution of the Partnership and shall take full account of the
Partnership’s liabilities and property and the Partnership property shall be liquidated as promptly
as is consistent with obtaining the fair value thereof, and the proceeds



64









 




therefrom (which may, to the extent determined by the General Partner, include shares of stock
in the Company) shall be applied and distributed in the following order:




          (1) First, to the payment and discharge of all of the Partnership’s debts and liabilities to
creditors other than the Partners;




          (2) Second, to the payment and discharge of all of the Partnership’s debts and liabilities to
the General Partner;




          (3) Third, to the payment and discharge of all of the Partnership’s debts and liabilities to
the other Partners;




          (4) Fourth, to the payment and discharge of any preferred distributions due to Preferred
Unitholders (each such distribution reducing such Preferred Unitholder’s Capital Account); and




          (5) Fifth, the balance, if any, to the General Partner, Common Unitholders and Preferred
Unitholders in accordance with their positive Capital Account balances, determined after taking
into account all Capital Account adjustments for all prior periods and the Partnership taxable year
during which the liquidation occurs (other than those made as a result of the liquidating
distribution set forth in this Section 13.2.A.).




     The General Partner shall not receive any additional compensation for any services performed
pursuant to this Article 13 other than reimbursement of its expenses as provided in Section 7.4.



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


Section 13.3. Capital Contribution Obligation




     If any Partner has a deficit balance in his or her Capital Account (after giving effect to all
contributions, distributions and allocations for the taxable years, including the year during which
such liquidation occurs), such Partner shall have no obligation to make any contribution to the
capital of the Partnership with respect to such deficit, and such deficit at any time shall not be



65









 




considered a debt owed to the Partnership or to any other Person for any purpose whatsoever,
except to the extent otherwise expressly agreed to by such Partner and the Partnership pursuant to
an election under Section 4.1.D.



Section 13.4. Distribution to Liquidating Trust; Retention of Reserve




     In the discretion of the Liquidator or the General Partner, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited Partners pursuant to
this Article 13 may be:



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




          (2) withheld or escrowed to provide a reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed
to the Partnership, provided, that such withheld or escrowed amounts shall be distributed to the
General Partner and Limited Partners in the manner and priority set forth in Section 13.2.A as soon
as practicable.



Section 13.5. Deemed Distribution and Recontribution




     Notwithstanding any other provision of this Article 13, in the event the Partnership is
liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no Liquidating Event
has occurred, the Partnership’s property shall not be liquidated, the Partnership’s liabilities
shall not be paid or discharged, and the Partnership’s affairs shall not be wound up. Instead, the
Partnership shall be deemed to have contributed all of its assets and liabilities to a new
partnership in exchange for an interest in the new partnership. Immediately thereafter, the
Partnership shall be deemed to distribute interests in the new partnership to the General Partner
and Limited Partners in proportion to their respective interests in the Partnership in liquidation
of the Partnership.


Section 13.6. Rights of Limited Partners




     Except as otherwise provided in this Agreement, each Limited Partner shall look solely to the
assets of the Partnership for the return of his Capital Contribution and shall have no right or
power to demand or receive property from the General Partner.


Section 13.7. Notice of Dissolution




     In the event a Liquidating Event occurs or an event occurs that would, but for provisions of
Section 13.1, result in a dissolution of the Partnership, the General Partner shall, within 30 days
thereafter, provide written notice thereof to each of the Partners and to all other parties with



66









 




whom the Partnership regularly conducts business (as determined in the discretion of the
General Partner) and shall publish notice thereof in a newspaper of general circulation in each
place in which the Partnership regularly conducts business (as determined in the discretion of the
General Partner).



Section 13.8. Cancellation of Certificate of Limited Partnership




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


Section 13.9. Reasonable Time for Winding-Up




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


Section 13.10. Waiver of Partition




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



ARTICLE 14.

AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS



Section 14.1. Amendments




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



     B. Amendments to this Agreement requiring the consent or approval of Limited Partners may be
proposed by the General Partner or by Limited Partners holding twenty-five percent (25%) or more of
the Partnership Interests held by Limited Partners. The General Partner shall seek the written
consent of the Limited Partners on the proposed amendment or shall call a meeting to vote thereon
and to transact any other business that it may deem appropriate. For purposes of obtaining a
written consent, the General Partner may require a response within a reasonable specified time, but
not less than 15 days, and failure to respond in such time period shall constitute a consent which
is consistent with the General Partner’s recommendation (if so recommended) with respect to the
proposal; provided, that, an action shall become effective at such time as requisite consents are
received even if prior to such specified time.


Section 14.2. Action by the Partners




     A. Meetings of the Partners may be called by the General Partner and shall be called upon the
receipt by the General Partner of a written request by Limited Partners holding



67









 




twenty-five percent (25%) or more of the Partnership Interests held by Limited Partners. The notice
shall state the nature of the business to be transacted. Notice of any such meeting shall be given
to all Partners not less than seven days nor more than 30 days prior to the date of such meeting.
Partners may vote in person or by proxy at such meeting. Whenever the vote or Consent of the
Limited Partners or of the Partners is permitted or required under this Agreement, such vote or
Consent may be given at a meeting of Partners or may be given in accordance with the procedure
prescribed in Section 14.1.




     B. Any action required or permitted to be taken at a meeting of the Partners may be taken
without a meeting if a written consent setting forth the action so taken is signed by the
percentage as is expressly required by this Agreement for the action in question. Such consent may
be in one instrument or in several instruments, and shall have the same force and effect as a vote
of the Percentage Interests of the Partners (expressly required by this Agreement). Such consent
shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a
meeting held on the effective date so certified.



     C. Each Limited Partner may authorize any Person or Persons to act for him by proxy on all
matters in which a Limited Partner is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. Every proxy must be signed by the Limited Partner
or his attorney-in-fact. No proxy shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of
the Limited Partner executing it.



     D. Each meeting of Partners shall be conducted by the General Partner or such other Person as
the General Partner may appoint pursuant to such rules for the conduct of the meeting as the
General Partner or such other Person deems appropriate.



     E. On matters on which Limited Partners are entitled to vote, each Limited Partner shall have
a vote equal to the number of Partnership Units held.



ARTICLE 15.

GENERAL PROVISIONS



Section 15.1. Addresses and Notice




     Any notice, demand, request or report required or permitted to be given or made to a Partner
or Assignee under this Agreement shall be in writing and shall be deemed given or made when
delivered in person or when sent by first class United States mail or by other means of written
communication to the Partner or Assignee at the address set forth in Exhibit A or such other
address as the Partners shall notify the General Partner in writing.


Section 15.2. Titles and Captions




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



68









 




Section 15.3. Pronouns and Plurals




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


Section 15.4. Further Action




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


Section 15.5. Binding Effect




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


Section 15.6. Creditors




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


Section 15.7. Waiver




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


Section 15.8. Counterparts




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


Section 15.9. Applicable Law




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


Section 15.10. Consent to Jurisdiction




     The Partners hereby agree that, except as otherwise required by the Act, any action or
proceeding seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought by or against any Partner in the courts of the State of North Carolina,
or, if it has or can acquire jurisdiction, in the United States District Court for the Western
District



69









 




of North Carolina, and each of the Partners hereby consents to the non-exclusive jurisdiction
of such courts (and of the appropriate appellate courts) in any such action or proceeding and
waives any objection to personal jurisdiction, venue, and inconvenient forum laid therein.



Section 15.11. Invalidity of Provisions




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


Section 15.12. Entire Agreement




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


Section 15.13. No Rights as Stockholders




     Nothing contained in this Agreement shall be construed as conferring upon the holders of
Partnership Units any rights whatsoever as stockholders of the Company, including without
limitation any right to receive dividends or other distributions made to stockholders of the
Company or to vote or to consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter.



     IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Agreement of
Limited Partnership as of the date first written above.



	 	 	 	 	 	 	 	 	 	 	 

	 	 	General Partner:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Campus Crest Communities GP, LLC, a 

Delaware limited liability company 

Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Campus Crest Communities, Inc., a 

Maryland corporation 

Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Donald L. Bobbitt, Jr.
	 	 
	 

	 	 	 	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 







70











 





	 	 	 	 	 	 	 	 	 
	 	 	Limited Partners:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	CAMPUS CREST COMMUNITIES LP, LLC	 	 
	 
	 	 	By:	 	Campus Crest Communities, Inc., a 

Maryland corporation 

Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name: Donald L. Bobbitt, Jr.
	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	Name:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	Name:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	Name:	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	Name:	 	 






71









 





EXHIBIT A

PARTNERS, CONTRIBUTIONS AND PERCENTAGE INTERESTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Gross	 	 	 	 	 	Agreed Value Of	 	 	 	 	 	 	 	 	 	Number Of	 	 
	 	 	Asset	 	Cash	 	Contributed	 	Total	 	Partnership	 	Partnership	 	Percentage
	Name And Address Of Partner	 	Value	 	Contributions	 	Property*	 	Contributions	 	Unit Type	 	Units	 	Interest
	General Partner
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Campus Crest Communities
GP, LLC
	 	 	 	 	 	$	 	 	 	 	—	 	 	$	 	 	 	Common	 	 	 	 	 	 	 	 
	2100 Rexford Road, Suite 414

Charlotte, NC 28211
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Limited Partners
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Campus Crest Communities LP, LLC
	 	 	 	 	 	$	 	 	 	 	—	 	 	$	 	 	 	Common	 	 	 	 	 	 	 	 
	2100 Rexford Road, Suite 414

Charlotte, NC 28211
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 











 









 








EXHIBIT B

NOTICE OF REDEMPTION



The undersigned hereby irrevocably (i) transfers _________ Limited Partnership Units in Campus
Crest Communities Operating Partnership, LP in accordance with the terms of the Amended and
Restated Agreement of Limited Partnership of Campus Crest Communities Operating Partnership, LP and
the rights of Redemption referred to therein, (ii) surrenders such Limited Partnership Units and
all right, title and interest therein, and (iii) directs that the cash (or, if applicable, REIT
Shares) deliverable upon Redemption or exchange be delivered to the address specified below, and if
applicable, that 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)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(Street Address)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(City) (State) (Zip Code)
	 	 
	 
	 	 	 	 
	 

	 	Signature Guaranteed by:	 	 
	 
	 	 	 	 
	 
	 

	 	 

	 	 





Issue REIT Shares to:



Please insert social security or identifying number:



Name:









B-1









 








EXHIBIT C

CONSTRUCTIVE OWNERSHIP DEFINITION




     The term “Constructively Owns” means ownership determined through the application of the
constructive ownership rules of Section 318 of the Code, as modified by Section 856(d)(5) of the
Code. Generally, these rules provide the following:



          a. an individual is considered as owning the Ownership Interest that is owned, actually or
constructively, by or for his spouse, his children, his grandchildren, and his parents;




          b. an Ownership Interest that is owned, actually or constructively, by or for a partnership,
limited liability company or estate is considered as owned proportionately by its partners or
beneficiaries;




          c. an Ownership Interest that is owned, actually or constructively, by or for a trust is
considered as owned by its beneficiaries in proportion to the actuarial interest of such
beneficiaries (provided, however, that in the case of a “grantor trust” the Ownership Interest will
be considered as owned by the grantors);




          d. if ten (10) percent or more in value of the stock in a corporation is owned, actually or
constructively, by or for any person, such person shall be considered as owning the Ownership
Interest that is owned, actually or constructively, by or for such corporation in that proportion
which the value of the stock which such person so owns bears to the value of all the stock in such
corporation;




          e. an Ownership Interest that is owned, actually or constructively, by or for a partner or
member which actually or constructively owns a 25% or greater capital interest or profits interest
in a partnership or limited liability company, or by or to or for a beneficiary of an estate or
trust shall be considered as owned by the partnership, limited liability company, estate, or trust
(or, in the case of a grantor trust, the grantors);




          f. if ten (10) percent or more in value of the stock in a corporation is owned, actually or
constructively, by or for any person, such corporation shall be considered as owning the Ownership
Interest that is owned, actually or constructively, by or for such person;




          g. if any person has an option to acquire an Ownership Interest (including an option to
acquire an option or any one of a series of such options), such Ownership Interest shall be
considered as owned by such person;




          h. an Ownership Interest that is constructively owned by a person by reason of the application
of the rules described in paragraphs (a) through (g) above shall, for purposes of applying
paragraphs (a) through (g), be considered as actually owned by such person provided, however, that
(i) an Ownership Interest constructively owned by an individual by reason of paragraph (a) shall
not be considered as owned by him for purposes of again applying paragraph (a) in order to make
another the constructive owner of such Ownership Interest, (ii) an Ownership Interest
constructively owned by a partnership, estate, trust, or corporation by reason of the application
of paragraphs (e) or (f) shall not be considered as owned by it for purposes of applying paragraphs
(b), (c), or (d) in order to make another the constructive owner of such




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Ownership Interest, (iii) if an Ownership Interest may be considered as owned by an individual
under paragraphs (a) or (g), it shall be considered as owned by him under paragraph (g), and (iv)
for purposes of the above described rules, an S corporation shall be treated as a partnership and
any stockholder of the S corporation shall be treated as a partner of such partnership except that
this rule shall not apply for purposes of determining whether stock in the S corporation is
constructively owned by any person.




          i. For purposes of the above summary of the constructive ownership rules, the term “Ownership
Interest” means the ownership of stock with respect to a corporation and, with respect to any other
type of entity, the ownership of an interest in either its assets or net profits.









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EXHIBIT D




SCHEDULE OF PARTNERS’ OWNERSHIP

WITH RESPECT TO TENANTS


NONE









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EXHIBIT E




SCHEDULE OF REIT SHARES

ACTUALLY OR CONSTRUCTIVELY OWNED BY LIMITED PARTNERS

OTHER THAN THOSE ACQUIRED PURSUANT TO AN EXCHANGE




E-1