exv4w1






Exhibit 4.1




AGREEMENT OF LIMITED PARTNERSHIP

OF

PLYMOUTH OPPORTUNITY OP, LP




July ___, 2011




     This Agreement of Limited Partnership (this “Agreement”) is entered into effective as of the
___ day of July, 2011, by and among Plymouth Opportunity REIT, Inc., a Maryland corporation (the
“General Partner”), Plymouth OP Limited, LLC, a Delaware limited liability company (the “Original
Limited Partner”), and the Limited Partner(s) set forth or which may, in the future, be set forth
on Exhibit A hereto, as amended from time to time.



RECITALS




     WHEREAS, effective as of March 22, 2011, Plymouth Opportunity OP, LP (the “Partnership”) was
formed under the laws of the State of Delaware, pursuant to a Certificate of Limited Partnership
filed with the Office of the Secretary of State of the State of Delaware; and



     WHEREAS, the parties hereto desire to enter into this Agreement in order to set forth (a) the
number of issued and outstanding Partnership Units, (b) the terms and conditions under which the
Partnership will be operated and (c) the rights, obligations, and limitations of the General
Partner and the Limited Partners with respect to each other and the Partnership as a whole.



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



AGREEMENT




ARTICLE I



DEFINED TERMS



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



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



     “Additional Funds” has the meaning set forth in Section 4.03 hereof.



     “Additional Limited Partner” means a Person admitted to the Partnership as a Limited Partner
pursuant to Section 4.02 hereof and who is shown as such on the books and records of the
Partnership.



 









 





     “Additional Securities” means any additional REIT Shares (other than REIT Shares issued in
connection with an exchange pursuant to Section 8.05 hereof) or rights, options, warrants or
convertible or exchangeable securities containing the right to subscribe for or purchase REIT
Shares, as set forth in Section 4.02(a)(ii).



     “Administrative Expenses” means (i) all administrative and operating costs and expenses
incurred by the Partnership, (ii) those administrative costs and expenses of the General Partner,
including any salaries or other payments to directors, officers or employees of the General
Partner, and any accounting and legal expenses of the General Partner, which expenses, the Partners
have agreed, are expenses of the Partnership and not the General Partner, and (iii) to the extent
not included in clause (ii) above, REIT Expenses.



     “Advisor” means Plymouth Real Estate Investors, Inc., a Maryland corporation and any successor
thereto (including any Person to whom the Advisor subcontracts all or substantially all of such
functions).



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



     “Agreed Value” means (i) the fair market value of a Partner’s non-cash Capital Contribution as
of the date of contribution as agreed to by such Partner and the General Partner as of the date of
contribution as set forth on Exhibit A hereto, as it may be amended from time to time, or
(ii) in the case of any contribution or distribution of property other than cash not set forth on
Exhibit A, the fair market value of such property as determined by the General Partner at
the time such property is contributed or distributed, reduced by liabilities either assumed by the
Partnership or Partner upon such contribution or distribution or to which such property is subject
when the property is contributed or distributed.



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



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



     “Capital Account” has the meaning provided in Section 4.04 hereof.



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



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



     “Certificate” means any instrument or document that is required under the laws of the State of
Delaware, or any other jurisdiction in which the Partnership conducts business, to be signed and
sworn to by the Partners of the Partnership (either by themselves or pursuant to the
power-of-attorney granted to the General Partner in Section 8.02 hereof) and filed for recording in
the appropriate public offices within the State of Delaware or such other jurisdictions to perfect
or maintain the Partnership as a limited partnership, to effect the admission, withdrawal, or
substitution of any Partner from or to the Partnership, or to protect the limited liability of the
Limited Partners as limited partners under the laws of the State of Delaware or such other
jurisdictions.



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



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



     “Conversion Factor” means 1.0, provided, that in the event that the General Partner (i)
declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution
to all holders of its outstanding REIT Shares in REIT Shares, (ii) subdivides its outstanding REIT
Shares, or (iii) combines its outstanding REIT Shares into a smaller number of REIT Shares, the
Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the
numerator of which shall be the number of REIT Shares issued and outstanding on the record date for
such dividend, distribution, subdivision or combination (assuming for such purposes that such
dividend, distribution, subdivision or combination has occurred as of such time), and the
denominator of which shall be the actual number of REIT Shares (determined without the above
assumption) issued and outstanding on such date, and provided further, that in the event that an
entity other than an Affiliate of the General Partner shall become General Partner pursuant to any
merger, consolidation or combination of the General Partner with or into another entity (the
“Successor Entity”), the Conversion Factor shall be adjusted by multiplying the Conversion Factor
by the number of shares of the Successor Entity into which one REIT Share is converted pursuant to
such merger, consolidation or combination, determined as of the date of such merger, consolidation
or combination. Any adjustment to the Conversion Factor shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for such event; provided,
however, that if the General Partner receives an Exchange Notice after the record date, but prior
to the effective date of such dividend, distribution, subdivision or combination, the Conversion
Factor shall be determined as if the General Partner had received the Exchange Notice immediately
prior to the record date for such dividend, distribution, subdivision or combination; and provided
further, however, that if the General Partner, in its sole and absolute discretion, causes the
Partnership to make a distribution of Partnership Units or to subdivide or combine the outstanding
Partnership Units in order to give equivalent effect to a dividend or distribution of REIT Shares
or a subdivision or combination or REIT Shares, then the Conversion Factor shall remain the factor
which it was immediately prior to such dividend or distribution of REIT Shares or subdivision or
combination of REIT Shares.



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



     “Exchange Amount” means either the Cash Amount or the REIT Shares Amount, as selected by the
General Partner in its sole and absolute discretion pursuant to Section 8.05(b) hereof.



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



     “Exchange Right” has the meaning provided in Section 8.05(a) hereof.



     “Exchanging Partner” has the meaning provided in Section 8.05(a) hereof.



     “General Partner” means Plymouth Opportunity REIT, and any Person who becomes a substitute or
additional General Partner as provided herein, and any successors thereto.



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



     “GP Capital” means the aggregate of Capital Contributions of cash made by the General Partner
in accordance with Sections 4.01 and 4.02 hereof.



     “GP Minimum Return” means such amount as may be necessary or required to allow the General
Partner to meet its distribution requirement for qualification as a REIT as set forth in Section
857 of the Code and to avoid any federal income or excise tax liability imposed by the Code.



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



     “Independent Director” has the meaning provided in the Articles of Incorporation of the
General Partner.



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     “Joint Venture” means any joint venture or partnership arrangement in which the Partnership is
a co-venturer or general partner established to acquire or hold Properties, Mortgages or other
investments of the General Partner.



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



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



     “Liquidating Event” has the meaning set forth in Section 2.04 hereof.



     “Listing” means the listing of the REIT Shares on a national securities exchange or the
receipt by the holders of the REIT Shares of securities that are listed on a national securities
exchange. Upon such Listing, the REIT Shares shall be deemed “Listed.”



     “Loss” has the meaning provided in Section 5.01(f) hereof.



     “LP Capital” means the aggregate of Capital Contributions in cash or cash equivalents and the
Agreed Value of any non-cash contributions to the Partnership made by a Limited Partner in
accordance with Sections 4.01 and 4.02 hereof.



     “LP Return” means, with regard to any Limited Partner, an amount equal to the aggregate cash
dividends that would have been payable to such Limited Partner with respect to the applicable
fiscal period if such Limited Partner had owned REIT Shares equal in number to the number of
Partnership Units owned by such Limited Partner during such fiscal period (as adjusted by the
General Partner to reflect any changes in the Conversion Factor).



     “Mortgage” means, in connection with mortgage financing provided, invested in or purchased by
the Partnership, any note, deed of trust, security interest or other evidence of indebtedness or
obligations, which is secured or collateralized by real property owned by the borrower under such
note, deed of trust, security interest or other evidence of indebtedness or obligations.



     “Net Capital Proceeds” means the net cash proceeds received by the Partnership in connection
with (i) any Sale, (ii) any borrowing or refinancing of borrowing(s) by the Partnership, (iii) any
condemnation or deeding in lieu of condemnation of all or a portion of any Property, (iv) any
collection in respect of property, hazard, or casualty insurance (but not business interruption
insurance) or any damage award; or (v) any other transaction the proceeds of which, in accordance
with generally accepted accounting principles, are considered to be capital in nature, in each
case, after deduction of (a) all costs and expenses incurred by the Partnership with regard to such
transactions (including, without limitation, any repayment of any indebtedness required to be
repaid as a result of such transaction or which the General Partner elects to pay out of the
proceeds of such transaction, together with accrued interest and premium,



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if any, thereon and any sales commissions or other costs or expenses due and payable to any
Person in connection therewith, including to a Partner or its Affiliates), and (b) all amounts
expended by the Partnership for the acquisition of additional Properties, Mortgages or other
investments or for capital repairs or improvements to any Property with such cash proceeds.




     “Offer” has the meaning set forth in Section 7.01(c)(ii) hereof.



     “Original Limited Partner” means the Limited Partner designated as such on Exhibit A
hereto.



     “Partner” means any General Partner or Limited Partner shall be determined in accordance with
Regulations Section 1.704-2(i)(5).



     “Partnership” means Plymouth Opportunity OP, LP, a Delaware limited partnership.



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



     “Partnership Minimum Gain” has the meaning set forth in Regulations Section 1.704-2(b)(2). In
accordance with Regulations Section 1.704-2(d), the amount of Partnership Minimum Gain is
determined by first computing, for each Partnership nonrecourse liability, any gain the Partnership
would realize if it disposed of the property subject to that liability for no consideration other
than full satisfaction of the liability, and then aggregating the separately computed gains. A
Partner’s share of Partnership Minimum Gain shall be determined in accordance with Regulations
Section 1.704-2(g)(1).



     “Partnership Record Date” means the record date established by the General Partner for the
distribution of cash pursuant to Section 5.02 hereof, which record date shall be the same as the
record date established by the General Partner for a distribution to its stockholders.



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



     “Percentage Interest” means the percentage ownership interest in the Partnership of each
Partner, as determined by dividing the number of Partnership Units owned by a Partner by the
aggregate number of Partnership Units owned by all Partners.



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



     “Plymouth Opportunity REIT” means Plymouth Opportunity REIT, Inc., a Maryland corporation.



     “Profit” has the meaning provided in Section 5.01(f) hereof.



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     “Property” means any real property in which the Partnership holds an ownership interest,
either directly or pursuant to the Partnership’s ownership of an interest in a subsidiary which
owns an interest in any such real property.



     “Regulations” means the Federal Income Tax Regulations, including temporary or proposed
regulations, issued under the Code, as amended and as hereafter amended from time to time.
Reference to any particular provision of the Regulations shall mean that provision of the
Regulations on the date hereof and any successor provision of the Regulations.



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



     “REIT Expenses” means (i) costs and expenses relating to the formation and continuity of
existence and operation of the General Partner and any Subsidiaries thereof (which Subsidiaries
shall, for purposes hereof, be included within the definition of General Partner), including taxes,
fees and assessments associated therewith, any and all costs, expenses or fees payable to any
director, officer, or employee of the General Partner, (ii) costs and expenses relating to (A) any
registration and public offering of securities by the General Partner, the net proceeds of which
were used to make a contribution to the Partnership, and (B) all statements and reports incidental
thereto, including, without limitation, underwriting discounts and selling commissions applicable
to any such offering of securities, and any costs and expenses associated with any claims made by
any holders of such securities or any underwriters or placement agents thereof, (iii) costs and
expenses associated with any repurchase of any securities by the General Partner, (iv) costs and
expenses associated with the preparation and filing, of any periodic or other reports and
communications by the General Partner under federal, state or local laws or regulations, including
filings with the Commission, (v) costs and expenses associated with compliance by the General
Partner with laws, rules and regulations promulgated by any regulatory body, including the
Commission and any securities exchange, (vi) costs and expenses associated with any section 401(k)
plan, incentive plan, bonus plan or other plan providing for compensation for the employees of the
General Partner, (vii) costs and expenses incurred by the General Partner relating to any issuance
or redemption of Partnership Interests or REIT Shares, and (viii) all other operating or
administrative costs of the General Partner incurred in the ordinary course of its business on
behalf of or in connection with the Partnership.



     “REIT Share” means a share of common stock in the General Partner (or Successor Entity, as the
case may be).



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



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     “Sale” means any transaction or series of transactions whereby (i) the Partnership directly or
indirectly (except as described in other subsections of this definitions) sells, grants, transfers,
conveys or relinquishes its ownership of any Property or portion thereof, including the lease of
any Property consisting of a building only, and including any event with respect to any Property
which gives rise to a significant amount of insurance proceeds or condemnation awards; (ii) the
Partnership directly or indirectly (except as described in other subsections of this definition)
sells, grants, transfers, conveys or relinquishes its ownership of all or substantially all the
interest of the Partnership in any Joint Venture in which it is a co-venturer or partner; (iii) any
Joint Venture directly or indirectly (except as described in other subsections of this definition)
in which the Partnership as a co-venturer or partner sells, grants, transfers, conveys or
relinquishes its ownership of any Property or portion thereof, including any event with respect to
any such Property which gives rise to insurance claims or condemnation awards; (iv) the Partnership
directly or indirectly (except as described in other subsections of this definition) sells, grants,
conveys or relinquishes its interest in any Mortgage or portion thereof (including with respect to
any Mortgage, all payments thereunder or in satisfaction thereof other than regularly scheduled
interest payments) and any event with respect to a Mortgage which gives rise to a significant
amount of insurance proceeds or similar awards, or (v) the Partnership directly or indirectly
(except as described in other subsections of this definition) sells, grants, transfers, conveys or
relinquishes its ownership of any other asset (other than investments in bank accounts, money
market funds or other current assets) not previously described in this definition or any portion
thereof.



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



     “Service” means the Internal Revenue Service.



     “Specified Exchange Date” means the first business day of the month first occurring after the
expiration of sixty (60) business days from the date of receipt by the General Partner of the
Exchange Notice.



     “Sponsor” means Plymouth Group Real Estate LLC and any successor thereto.



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



     “Subsidiary Partnership” means any partnership, limited liability company or other entity
taxed as a partnership for federal income tax purposes in which interests are owned by the General
Partner or by a wholly-owned Subsidiary or Subsidiaries of the General Partner.



     “Substitute Limited Partner” means any Person admitted to the Partnership as a Limited Partner
pursuant to Section 9.03 hereof.



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



     “Survivor” has the meaning set forth in Section 7.01(d) hereof.



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     “Transaction” has the meaning set forth in Section 7.01(c) hereof.



     “Transfer” has the meaning set forth in Section 9.02(a) hereof.



     “Unaffiliated Percentage Interest” means a Percentage Interest held by a Limited Partner that
is not an Affiliate of the General Partner; provided that, during any period in which all of the
Partners are Affiliates of the General Partner, the Original Limited Partner shall be deemed to
hold an Unaffiliated Percentage Interest hereunder.



     “Unpaid Return” means any accrued but unpaid LP Return or GP Minimum Return less all amounts
distributed by the Partnership to a Limited Partner or the General Partner in reduction thereof.



     “Value” means the fair market value per share of REIT Shares which will equal: (i) if REIT
Shares are Listed, the average closing price per share for the immediately preceding ten
consecutive trading days, (ii) if REIT Shares are not Listed, the then-applicable redemption price
per REIT share used by the General Partner in its REIT Share redemption program (as determined by
the General Partner), or (iii) if there is no such then-applicable redemption price per REIT Share,
then the Value shall equal the price per REIT Share as the management of the General Partner
determines in good faith.



ARTICLE II




PARTNERSHIP FORMATION AND IDENTIFICATION



     2.01 Formation. The Partnership is a limited partnership formed pursuant to the
Act and upon the terms and conditions set forth in this Agreement.



     2.02 Name, Office and Registered Agent. The name of the Partnership is “Plymouth
Opportunity OP, LP” The principal place of business of the Partnership shall be Two Liberty Square,
10th Floor, Boston, Massachusetts 02109. The General Partner may at any time change the
location of such office, provided the General Partner gives notice to the Partners of any such
change. The name and address of the Partnership’s registered agent is the Corporation Trust
Company, the Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The sole duty of the registered agent as such is to forward to the
Partnership any notice that is served on it as registered agent.



     2.03 Partners.




     (a) The General Partner of the Partnership is Plymouth Opportunity REIT, Inc., a
Maryland corporation. Its principal place of business is the same as that of the
Partnership.




     (b) The Limited Partners are the Original Limited Partner and any other Persons
identified as Limited Partners on Exhibit A hereto, as it may be amended from time
to time.



     2.04 Term and Dissolution.



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     (a) The term of the Partnership shall continue in full force and effect until
December 31, 2099, except that the Partnership shall be dissolved earlier upon the first to
occur of any of the following events (“Liquidating Events”):




     (i) the occurrence of an Event of Bankruptcy as to a General Partner or the
dissolution, death, removal or withdrawal of a General Partner unless the business
of the Partnership is continued pursuant to Section 7.03(b) hereof, provided, that
if a General Partner is on the date of such occurrence a partnership, the
dissolution of such General Partner as a result of the dissolution, death,
withdrawal, removal or Event of Bankruptcy of a partner in such partnership shall
not be an event of dissolution of the Partnership if the business of such General
Partner is continued by the remaining partner or partners thereof, either alone or
with additional partners, and such General Partner and such partners comply with any
other applicable requirements of this Agreement;




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




     (iii) the exchange of all Limited Partnership Interests; or




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




     (b) Upon dissolution of the Partnership (unless the business of the Partnership is
continued pursuant to Section 7.03(b) hereof), the General Partner (or its trustee,
receiver, successor or legal representative) shall amend or cancel the Certificate and
liquidate the Partnership’s assets and apply and distribute the proceeds thereof in
accordance with Section 5.06 hereof. Notwithstanding the foregoing, the General Partner may,
in its sole discretion, elect either to (i) defer liquidation of, or withhold from
distribution for a reasonable time, any assets of the Partnership (including those necessary
to satisfy the Partnership’s debts and obligations), or (ii) distribute the assets to the
Partners in kind.



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



     2.06 Certificates Describing Partnership Units. At the request of a Limited
Partner, the General Partner may, at its option and in its discretion, issue a certificate
summarizing the terms of such Limited Partner’s interest in the Partnership, including the number
of Partnership Units owned as of the date of such certificate. If issued, any such certificates (a)
shall be in form and



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substance as approved by the General Partner, (b) shall not be negotiable, and (c) shall bear
a legend substantially similar to the following:





“THIS CERTIFICATE IS NOT NEGOTIABLE. THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE
ARE GOVERNED BY AND TRANSFERABLE ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT OF
LIMITED PARTNERSHIP OF PLYMOUTH OPPORTUNITY OP, LP, AS AMENDED FROM TIME TO TIME.”



ARTICLE III




BUSINESS OF THE PARTNERSHIP



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



ARTICLE IV




CAPITAL CONTRIBUTIONS AND ACCOUNTS



     4.01 Capital Contributions. The General Partner and the Original Limited Partner
made initial Capital Contributions of One Dollar ($1.00) and Nine Hundred Ninety-Nine Dollars
($999.00), respectively, to the Partnership in exchange for one-tenth of one (0.10) Partnership
Unit and ninety-nine and nine-tenths (99.9) Partnership Units, respectively. At such time as
Additional Limited Partners are admitted to the Partnership, each shall make Capital Contributions
as set forth opposite their names on Exhibit A, as it may be amended from time to time.
Exhibit A shall be deemed amended upon, and the General Partner may, without the approval
of any other Partner, attach an amended Exhibit A to this Agreement to reflect: (a) the
issuance of Partnership Units issued to Additional Limited Partners or to any existing Limited
Partner pursuant to Section 4.02 (including the Original Limited Partner), (b) any Partnership



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Units purchased or redeemed pursuant to Section 6.10, and (c) any redemption or purchase of
Partnership Units by the Partnership or the General Partner by reason of the exercise by a Limited
Partner of the Exchange Right.




     4.02 Additional Capital Contributions and Issuances of Additional Partnership
Interests. Except as provided in this Section 4.02 or in Section 4.03, the Partners shall have
no right or obligation to make any additional Capital Contributions or loans to the Partnership.
The General Partner may contribute additional capital to the Partnership, from time to time, and
receive additional Partnership Units in respect thereof in the manner contemplated by this Section
4.02.




     (a) Issuances of Additional Partnership Interests.




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




          (1) the additional Partnership Interests are issued in connection with an issuance
of REIT Shares or other interests in, the General Partner, which shares or interests have
designations, preferences and other rights such that the economic interests are
substantially similar to the designations, preferences and other rights of the additional
Partnership Interests issued to the General Partner by the Partnership in accordance with
this Section 4.02, and the General Partner, on its own or with the Original Limited Partner,
shall make a Capital Contribution to the Partnership in an amount equal to the aggregate
proceeds raised in connection with the issuance of such shares of stock of or other
interests in the General Partner;




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



12









 






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



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




     (ii) Issuance of Additional Securities. The General Partner shall not issue
any additional REIT Shares (other than REIT Shares issued in connection with an
exchange made pursuant to Section 8.05 hereof) or rights, options, warrants or
convertible or exchangeable securities containing the right to subscribe for or
purchase REIT Shares (collectively, “Additional Securities”) other than to all
holders of REIT Shares, unless (A) the General Partner shall cause the Partnership
to issue to the General Partner and/or the Original Limited Partner, as the General
Partner may designate, Partnership Interests or rights, options, warrants or
convertible or exchangeable securities of the Partnership having designations,
preferences and other rights such that the economic interests are substantially
similar to those of the Additional Securities, and (B) the General Partner and/or
the Original Limited Partner contribute the proceeds from the issuance of such
Additional Securities and from any exercise of rights contained in such Additional
Securities, to the Partnership; provided, however, that the General Partner is
allowed to issue Additional Securities in connection with an acquisition of a
Property or other asset to be held directly by the General Partner, but if and only
if, such direct acquisition and issuance of Additional Securities have been approved
and determined to be in the best interests of the General Partner and the
Partnership by Limited Partners holding more than 50% of the Unaffiliated Percentage
Interests. Without limiting the foregoing, the General Partner is expressly
authorized to issue Additional Securities for less than fair market value, and to
cause the Partnership to issue to the General Partner (or to the General Partner and
the Original Limited Partner) corresponding Partnership Interests, so long as (1)
the General Partner concludes in good faith that such issuance is in the best
interests of the General Partner and the Partnership, including without limitation,
the issuance of REIT Shares and corresponding Partnership Units pursuant to (A) an
employee share purchase plan providing for employee purchases of REIT Shares at a
discount from fair market value, (B) a dividend reinvestment plan providing for
shareholder purchases of REIT Shares at a discount from fair market value, and (C)
employee stock options that have an exercise price that is less than the fair market
value of the REIT Shares, either at the time of issuance or at the time of exercise,
and (2) the General Partner contributes directly or directly and through the
Original Limited Partner all proceeds from such issuances to the Partnership. For
example, in the event that the General Partner issues REIT Shares for a cash
purchase price and contributes all of the proceeds of such issuance to the
Partnership, the General Partner shall be issued a number of additional Partnership
Units equal to the product of (A) the number of REIT Shares issued by the General
Partner, the proceeds of which were so contributed, multiplied by (B) a fraction the
numerator of which is one



13









 






(1) and the denominator of which is the Conversion Factor in effect on the date
of such contribution.




     (b) Certain Deemed Contributions of Proceeds of Issuance of REIT Shares. In
connection with any and all issuances of REIT Shares, the General Partner shall make
directly or directly and through the Original Limited Partner Capital Contributions to the
Partnership of the proceeds therefrom, provided, that if the proceeds actually received and
contributed by the General Partner are less than the gross proceeds of such issuance as a
result of any underwriter’s or other discount or other fees or expenses paid or incurred in
connection with such issuance, then the General Partner (or the General Partner together
with the Original Limited Partner, as applicable) shall be deemed to have made Capital
Contributions to the Partnership in the aggregate amount of the gross proceeds of such
issuance and the Partnership shall be deemed simultaneously to have paid such offering
expenses in accordance with Section 6.05 hereof and in connection with the required issuance
of additional Partnership Units for such Capital Contributions pursuant to Section 4.02(a)
hereof.



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



     4.04 Capital Accounts. A separate capital account (a “Capital Account”) shall be
established and maintained for each Partner in accordance with Regulations Section
1.704-1(b)(2)(iv). If (a) a new or existing Partner acquires an additional Partnership Interest in
exchange for more than a de minimis Capital Contribution, (b) the Partnership distributes to a
Partner more than a de minimis amount of Partnership property as consideration for the redemption
of a Partnership Interest, or (c) the Partnership is liquidated within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g), the General Partner shall revalue the property of the Partnership to
its fair market value (as determined by the General Partner, in its sole and absolute discretion,
and taking into account Section 7701(g) of the Code) in accordance with Regulations Section 1.704-
l(b)(2)(iv)(f). When the Partnership’s property is revalued by the General Partner, the Capital
Accounts of the Partners shall be adjusted in accordance with Regulations Sections
1.704-1(b)(2)(iv)(f) and (g), which generally require such Capital Accounts to be adjusted to
reflect the manner in which the unrealized gain or loss inherent in such property (that has not
been reflected in the Capital Accounts previously) would be allocated among the Partners pursuant
to Section 5.01 hereof if there were a taxable disposition of such property for its fair market
value (as determined by the General Partner, in its sole and absolute discretion, and taking into
account Section 7701(g) of the Code) on the date of the revaluation.



     4.05 Percentage Interests. If the number of outstanding Partnership Units
increases or decreases during a taxable year, each Partner’s Percentage Interest shall be adjusted
by the General Partner effective as of the date of each such increase or decrease to a percentage
equal to the number of Partnership Units held by such Partner divided by the aggregate number of
Partnership Units outstanding after giving effect to such increase or decrease. In such event, the
General Partner shall revalue the property of the Partnership and the Capital Account for each



14









 




Partner shall be adjusted as set forth in Section 4.04 hereof. If the Partners’ Percentage
Interests are adjusted pursuant to this Section 4.05, the Profit and Loss for the taxable year in
which the adjustment occurs shall be prorated between the part of the year ending on the day when
the Partnership’s property is revalued by the General Partner and the part of the year beginning on
the following day and, as so divided, shall be allocated to the Partners based on their Percentage
Interests before adjustment, and their adjusted Percentage Interests, respectively, either (a) as
if the taxable year had ended on the date of the adjustment or (b) based on the number of days in
each part. The General Partner, in its sole and absolute discretion, shall determine which method
shall be used to allocate Profit and Loss for the taxable year in which an adjustment occurs, as
may be required or permitted under Section 706 of the Code.




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



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



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



ARTICLE V




PROFIT AND LOSS; DISTRIBUTIONS



     5.01 Allocation of Profit and Loss.




     (a) After giving effect to the special allocations set forth in Sections 5.01(b),
(c) and (d), Profit for each fiscal year of the Partnership shall be allocated as follows:
(i) first to the Partners, pro rata, in accordance with and in proportion to their
respective




15












 






Partnership Interests, in amounts equal to the amount of cash distributed to the
Partners pursuant to Section 5.02(a) hereof with respect to such fiscal year; (ii) second,
to the extent the amount of Profit for such fiscal year exceeds the amount of cash
distributed to the Partners pursuant to Section 5.02(a) hereof, such excess shall be
allocated to the General Partner and the Limited Partners in amounts and in proportion to
the cumulative Loss allocated to the General Partner pursuant to clauses (y) and (z) of this
Section 5.01(a) and the cumulative Loss allocated to the Limited Partners pursuant to clause
(x) of this Section 5.01(a), respectively; and (iii) finally, the balance, if any, of Profit
shall be allocated to the Partners in accordance with and in proportion to their respective
Percentage Interests. Notwithstanding the foregoing, however, it is the intent of the
Partners that allocations of Profit to the Limited Partners be such that the amount of
Profit allocated to each Limited Partner be equal to the amount of income that would have
been allocated to such Limited Partner with respect to the applicable fiscal period if such
Limited Partner had owned REIT Shares equal in number to the number of Partnership Units
owned by such Limited Partner during such fiscal period, and if, for any reason, the
foregoing allocations of Profit result in any material variation from this concept, Profit
shall be allocated to each Limited Partner in an amount equal to the aggregate amount of
income that would have been allocated to such Limited Partner with respect to the applicable
fiscal period if such Limited Partner had owned REIT Shares equal in number to the number of
Partnership Units owned by such Limited Partner during such fiscal period. After giving
effect to the special allocations set forth in Sections 5.01(b), (c) and (d), Loss for a
fiscal year of the Partnership shall be allocated as follows: (w) first, to the Partners,
pro rata, in accordance with and in proportion to their respective Partnership Interests,
until the cumulative Loss allocated to each Partner under this clause (w) equals the
cumulative Profit allocated to each Partner under clause (iii) of this Section 5.01(a); (x)
second, to the Limited Partners in an amount equal to each such Limited Partner’s Capital
Account balance prior to the allocation made under this clause (x); (y) third, to the
General Partner in an amount equal to the General Partner’s Capital Account balance prior to
the allocation made under this clause (y); and (z) fourth, to the General Partner to the
extent that any further allocation of Loss to Limited Partners would result in any such
Limited Partners having a deficit balance in their Capital Accounts.




     (b) Notwithstanding any provision to the contrary herein, (i) any expense of the
Partnership that is a “nonrecourse deduction” within the meaning of Regulations Section
1.704-2(b)(1) shall be allocated in accordance with the Partners’ respective Percentage
Interests, (ii) any expense of the Partnership that is a “partner nonrecourse deduction”
within the meaning of Regulations Section 1.704-2(i)(2) shall be allocated to the Partner
that bears the “economic risk of loss” of such deduction in accordance with Regulations
Section 1.704- 2(i)(1), (iii) if there is a net decrease in Partnership Minimum Gain within
the meaning of Regulations Section 1.704-2(f)(1) for any Partnership taxable year, then,
subject to the exceptions set forth in Regulations Section 1.704-2(f)(2), (3), (4) and (5),
items of gain and income shall be allocated among the Partners in accordance with
Regulations Section 1.704-2(f) and the ordering rules contained in Regulations Section
1.704-2(j), and (iv) if there is a net decrease in Partner nonrecourse debt minimum gain
within the meaning of Regulations Section 1.704-2(i)(4) for any Partnership taxable year,
then, subject to the exceptions set forth in Regulations Section



16









 






1.704-2(g), items of gain and income shall be allocated among the Partners, in
accordance with Regulations Section 1.704-2(i)(4) and the ordering rules contained in
Regulations Section 1.704-2(j). A Partner’s “interest in partnership profits” for purposes
of determining its share of the nonrecourse liabilities of the Partnership within the
meaning of Regulations Section 1.752- 3(a)(3) shall be such Partner’s Percentage Interest.




     (c) If a Partner receives in any taxable year an adjustment, allocation, or
distribution described in subparagraphs (4), (5), or (6) of Regulations Section
1.704-1(b)(2)(ii)(d) that causes or increases a deficit balance in such Partner’s Capital
Account that exceeds the sum of such Partner’s shares of Partnership Minimum Gain and
Partner nonrecourse debt minimum gain, as determined in accordance with Regulations Sections
1.704-2(g) and 1.704-2(i), such Partner shall be allocated specially for such taxable year
(and, if necessary, later taxable years) items of income and gain in an amount and manner
sufficient to eliminate such deficit Capital Account balance as quickly as possible as
provided in Regulations Section 1.704-1(b)(2)(ii)(d). After the occurrence of an allocation
of income or gain to a Partner in accordance with this Section 5.01(c), to the extent
permitted by Regulations Section 1.704-1(b), items of expense or loss shall be allocated to
such Partner in an amount necessary to offset the income or gain previously allocated to
such Partner under this Section 5.01(c).




     (d) Loss shall not be allocated to a Limited Partner to the extent that such allocation
would cause a deficit in such Partner’s Capital Account (after reduction to reflect the
items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) to exceed the
sum of such Partner’s shares of Partnership Minimum Gain and Partner nonrecourse debt
minimum gain. Any Loss in excess of that limitation shall be allocated to the General
Partner. After the occurrence of an allocation of Loss to the General Partner in accordance
with this Section 5.01(d), to the extent permitted by Regulations Section 1.704-1(b), Profit
shall be allocated to the General Partner in an amount necessary to offset the Loss
previously allocated to the General Partner under this Section 5.01(d).




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




     (f) “Profit” and “Loss” and any items of income, gain, expense, or loss referred to in
this Agreement shall be determined in accordance with federal income tax accounting
principles, as modified by Regulations Section 1.704-(b)(2)(iv), except that Profit and Loss
shall not include items of income, gain and expense that are specially allocated pursuant to
Sections 5.01(b), 5.01(c), or 5.01(d). All allocations of income,



17









 






Profit, gain, Loss, and expense (and all items contained therein) for federal income
tax purposes shall be identical to all allocations of such items set forth in this Section
5.01, except as otherwise required by Section 704(c) of the Code and Regulations Section
1.704-1(b)(4). Any deductions, income, gain or loss (“Tax Items”) with respect to
Partnership property that is contributed to the Partnership by a Partner shall be shared
among the Partners 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 Agreed Value. With respect to any property
that is contributed to the Partnership by a Partner, the Partnership shall account for such
variation under any method approved under Section 704(c) of the Code and the applicable
regulations as chosen by the General Partner. In the event Agreed Value of any Partnership
asset is adjusted, 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 Agreed
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 704(c) of the Code and the applicable regulations as chosen by the
General Partner.




     (g) If the General Partner determines that is advantageous to the business of the
Partnership to amend the allocation provisions of this Agreement so as to permit the
Partnership to avoid the characterization of Partnership income allocable to various
qualified plans, IRAs and other entities which are exempt from federal income taxation (“Tax
Exempt Partners”) as constituting Unrelated Business Taxable Income (“UBTI”) within the
meaning of the Code, specifically including, but not limited to, amendments to satisfy the
so-called “fractions rule” contained in Code Section 514(c)(9), the General Partner is
authorized, in its discretion, to amend this Agreement so as to allocate income, gain, loss,
deduction or credit (or items thereof) arising in any year differently than as provided for
in this Section if, and to the extent, that such amendments will achieve such result or
otherwise permit the avoidance of characterization of Partnership income as UBTI to Tax
Exempt Partners. Any allocation made pursuant to this Section 5.01(g) shall be deemed to be
a complete substitute for any allocation otherwise provided for in this Agreement, and no
further amendment of this Agreement or approval by any Limited Partner shall be required to
effectuate such allocation. In making any such allocations under this Section 5.01(g) (“New
Allocations”), the General Partner is authorized to act in reliance upon advice of counsel
to the Partnership or the Partnership’s regular certified public accountants that, in their
opinion, after examining the relevant provisions of the Code and any current or future
proposed or final Treasury Regulations thereunder, the New Allocation will achieve the
intended result of this Section 5.01(g).



     New Allocations made by the General Partner in reliance upon the advice of counsel or
accountants as described above shall be deemed to be made in the best interests of the Partnership
and all of the Partners, and any such New Allocations shall not give rise to any claim or cause of
action by any Partner against the Partnership or any General Partner. Nothing herein shall require
or obligate the General Partner, by implication or otherwise, to make any such amendments or
undertake any such action.



18









 





     5.02 Distributions of Cash.




     (a) The Partnership may distribute cash on a quarterly (or, at the election of the
General Partner, more or less frequent) basis, in an amount determined by the General
Partner in its sole and absolute discretion, to the Partners who are Partners on the
Partnership Record Date with respect to such quarter (or other distribution period) in the
following manner: (i) first, to the General Partner in an amount equal to the GP Minimum
Return with respect to the current fiscal year of the General Partner; (ii) second, to the
Limited Partners pro rata among them in proportion to the their respective Unpaid Return, if
any, owing to each such Limited Partners with respect to prior fiscal years, in an amount
equal to their respective Unpaid Return for such prior fiscal years owing to each such
Limited Partner; (iii) third, after the establishment of reasonable cash reserves to meet
REIT Expenses and other obligations of the Partnership, as determined in the sole and
absolute discretion of the General Partner, to the General Partner and the Limited Partners
in such aggregate amount as may be determined by the General Partner in its sole and
absolute discretion to be allocated among the General Partner and the Limited Partners such
that each Limited Partner will receive an amount equal to its LP Return for such fiscal
year; and (iv) finally, to the Partners in accordance with and in proportion to their
respective Percentage Interests; provided, however, that if a new or existing Partner
acquires an additional Partnership Interest in exchange for a Capital Contribution on any
date other than a Partnership Record Date, the cash distribution attributable to such
additional Partnership Interest relating to the Partnership Record Date next following the
issuance of such additional Partnership Interest shall be reduced to the proportion thereof
which equals (i) the number of days that such additional Partnership Interest is held by
such Partner divided by (ii) the number of days between such Partnership Record Date and the
immediately preceding Partnership Record Date.




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



19









 






Partnership Loan within fifteen (15) days after demand for payment thereof is made by
the Partnership on the Limited Partner, the General Partner, in its sole and absolute
discretion, may elect to make the payment to the Partnership on behalf of such Defaulting
Limited Partner. In such event, on the date of payment, the General Partner shall be deemed
to have extended a loan (a “General Partner Loan”) to the Defaulting Limited Partner in the
amount of the payment made by the General Partner and shall succeed to all rights and
remedies of the Partnership against the Defaulting Limited Partner as to that amount.
Without limitation, the General Partner shall have the right to receive any distributions
that otherwise would be made by the Partnership to the Defaulting Limited Partner until such
time as the General Partner Loan has been paid in full, and any such distributions so
received by the General Partner shall be treated as having been received by the Defaulting
Limited Partner and immediately paid to the General Partner. Any amounts treated as a
Partnership Loan or a General Partner Loan pursuant to this Section 5.02(b) shall bear
interest at the lesser of (A) the base rate on corporate loans at large United States money
center commercial banks, as published from time to time in The Wall Street Journal, or (B)
the maximum lawful rate of interest on such obligation, such interest to accrue from the
date the Partnership or the General Partner, as applicable, is deemed to extend the loan
until such loan is repaid in full.




     (c) To the extent not utilized for expenses of the Partnership or for investment in
additional Properties, the General Partner may, in its discretion, cause the Partnership to
distribute Net Capital Proceeds in such amount as shall be determined by the General Partner
in its discretion in accordance with the provisions of Section 5.02(a) hereof.




     (d) In no event may a Partner receive a distribution of cash with respect to a
Partnership Unit if such Partner is entitled to receive a cash dividend as the holder of
record of a REIT Share for which all or part of such Partnership Unit has been or will be
exchanged, and the Unpaid Return with respect to such Partnership Unit shall be deemed to be
reduced by the amount of any such cash dividend.



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



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



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



20









 





     5.06 Distributions Upon Liquidation. Upon liquidation of the Partnership, after
payment of, or adequate provision for, debts and obligations of the Partnership, including any
Partner loans, any remaining assets of the Partnership shall be distributed to all Partners with
positive Capital Accounts in accordance with their respective positive Capital Account balances.
For purposes of the preceding sentence, the Capital Account of each Partner shall be determined
after all adjustments made in accordance with Sections 5.01 and 5.02 resulting from Partnership
operations and from all sales and dispositions of all or any part of the Partnership’s assets have
been made. To the extent deemed advisable by the General Partner, appropriate arrangements
(including the use of a liquidating trust) may be made to assure that adequate funds are available
to pay any contingent debts or obligations.



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



     5.08 Withholding. All amounts required to be withheld pursuant to Section 1445 of the
Code or any other provision of federal, state, or local tax law shall be treated as amounts
actually distributed to the affected Partners for all purposes under this Agreement.



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



ARTICLE VI




RIGHTS, OBLIGATIONS AND

POWERS OF THE GENERAL PARTNER



     6.01 Management of the Partnership.




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




     (i) to acquire, purchase, own, operate, lease and dispose of any real property
and any other property or assets including, but not limited to notes, Mortgages,
partnership or joint venture interests or securities, that the General



21









 







Partner determines are necessary or appropriate or in the best interests of the
business of the Partnership;




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




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




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




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




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




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




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




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



22









 






     (x) to file applications, communicate, and otherwise deal with any and all
governmental agencies having jurisdiction over, or in any way affecting, the
Partnership’s assets or any other aspect of the Partnership business;




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




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




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




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




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




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




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




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




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




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



23









 






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




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




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




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



     6.02 Delegation of Authority. The General Partner may delegate any or all of its
powers, rights and obligations hereunder, and may appoint, employ, contract or otherwise deal with
any Person (including without limitation officers or other agents of the Partnership or the General
Partner appointed by the General Partner) for the transaction of the business of the Partnership,
which Person may, under supervision of the General Partner, perform any acts or services for the
Partnership as the General Partner may approve.



     6.03 Indemnification and Exculpation of Indemnitees.




     (a) The Partnership shall indemnify an Indemnitee from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including reasonable legal fees
and expenses), judgments, fines, settlements, and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal, administrative or
investigative, that relate to the operations of the Partnership as set forth in this
Agreement in which any Indemnitee may be involved, or is threatened to be involved, as a
party or otherwise, unless it is established that (i) the act or omission of the Indemnitee
was material to the matter giving rise to the proceeding and either was committed in bad
faith or was the result of active and deliberate dishonesty; (ii) the 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. Any indemnification pursuant to this Section 6.3 shall be made only
out of the assets of the Partnership.



24









 






     (b) The Partnership shall pay or reimburse reasonable legal expenses and other costs
incurred by an Indemnitee in advance of final disposition of a proceeding if all of the
following are satisfied: (i) the Indemnitee provides the Partnership with written
affirmation of the Indemnitee’s good faith belief that the Indemnitee has met the standard
of conduct necessary for indemnification by the Partnership as authorized in this Section
6.03, and (ii) the Indemnitee provides the Partnership with a written agreement to repay the
amount paid or reimbursed by the Partnership if it is ultimately determined that the
Indemnitee did not comply with the requisite standard of conduct and is not entitled to
indemnification.




     (c) The Indemnification provided by this Section 6.03 shall be in addition to any other
rights to which an Indemnitee or any other Person may be entitled under any agreement,
pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as
to an Indemnitee who has ceased to serve in such capacity.




     (d) The Partnership may purchase and maintain insurance or establish other
arrangements, including without limitation trust arrangements and letters of credit on
behalf of or to secure indemnification obligations owed to 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. For purposes of this
Section 6.03, (i) the Partnership shall be deemed to have requested an Indemnitee to serve
as a fiduciary of an employee benefit plan whenever the performance by the Indemnitee of its
duties to the Partnership also imposes duties on the Indemnitee, or otherwise involves
services by the Indemnitee to the plan or participants or beneficiaries of the plan; (ii)
excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to
applicable law shall constitute fines within the meaning of this Section 6.03; and (iii)
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.




     (e) In no event may an Indemnitee subject the Limited Partners to personal liability by
reason of the indemnification provisions set forth in this Agreement.




     (f) An Indemnitee shall not be denied indemnification in whole or in part under this
Section 6.03 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.




     (g) The provisions of this Section 6.03 are for the benefit of the Indemnitees, their
heirs, successors, assigns and administrators and shall not be deemed to create any rights
in or be for the benefit of any other Persons.



25









 






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



     6.04 Liability of the General Partner.




     (a) Notwithstanding anything to the contrary set forth in this Agreement, the General
Partner shall not be liable for monetary damages to the Partnership or any Partners for
losses sustained or liabilities incurred as a result of errors in judgment or any act or
omission if the General Partner acted in good faith. The General Partner shall not be in
breach of any duty that the General Partner may owe to the Limited Partners or the
Partnership or any other Persons under this Agreement or of any duty stated or implied by
law or equity, provided, the General Partner, acting in good faith, abides by the terms of
this Agreement. In addition, to the extent the General Partner or any officer, director,
employee, agent or stockholder of the General Partner performs its duties in accordance with
the standards provided by the Act, as it may be amended from time to time, or under any
successor statute thereto, such Person or Persons shall have no liability by reason of being
or having been the General Partner, or by reason of being an officer, director, employee,
agent or stockholder of the General Partner. To the maximum extent that the Act and the
general laws of the State of Delaware, in effect from time to time, permit limitation of the
liability of general partners of a limited partnership, the General Partner and its
officers, directors, employees, agents and stockholders shall not be liable to the
Partnership or to any Partner for money damages except to the extent that (i) the General
Partner or its officers, directors, employees, agents or stockholders actually received an
improper benefit or profit in money, property or services, in which case the liability shall
not exceed the amount of the benefit or profit in money, property or services actually
received; or (ii) a judgment or other final adjudication adverse to the General Partner or
one or more of its officers, directors, employees, agents or stockholders is entered in a



26









 







proceeding based on a finding in the proceeding that the action or failure to act of
the General Partner or one or more of its officers, directors, employees, agents or
stockholders was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding. Neither the amendment nor repeal of this
Section 6.04(a), nor the adoption or amendment of any other provision of this Agreement
inconsistent with this Section 6.04(a), shall apply to or affect in any respect the
applicability of the preceding sentence with respect to any act or failure to act which
occurred prior to such amendment, repeal or adoption. In the absence of any Delaware statute
limiting the liability of the General Partner or its directors or officers for money damages
in a suit by or on behalf of the Partnership or by any Partner, the General Partner and the
officers, directors, employees, agents and stockholders of the General Partner shall not be
liable to the Partnership or to any Partner for money damages except to the extent that the
General Partner or one or more of its officers, directors, employees, agents or stockholders
actually received an improper benefit or profit in money, property or services, in which
case the liability shall not exceed the amount of the benefit or profit in money, property
or services actually received; or (ii) a judgment or other final adjudication adverse to the
General Partner or one or more of its officers, directors, employees, agents or stockholders
is entered in a proceeding based on a finding in the proceeding that the action of the
General Partner or one or more of its officers, directors, employees or stockholders action
or failure to act was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding.




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




     (c) Subject to its obligations and duties as General Partner set forth in Section 6.01
hereof, the General Partner may exercise any of the powers granted to it under this
Agreement and perform any of the duties imposed upon it hereunder either directly or by or
through its agents. The General Partner shall not be responsible for any misconduct or
negligence on the part of any such agent appointed by it in good faith.




     (d) Notwithstanding any other provisions of this Agreement or the Act, any action of
the General Partner on behalf of the Partnership or any decision of the General



27









 







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




     (e) Any amendment, modification or repeal of this Section 6.04 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the General
Partner’s liability to the Partnership and the Limited Partners under this Section 6.04 as
in effect immediately prior to such amendment, modification or repeal with respect to
matters occurring, in whole or in part, prior to such amendment, modification or repeal,
regardless of when claims relating to such matters may arise or be asserted.



     6.05 Reimbursement of General Partner.




     (a) Except as provided in this Section 6.05 and elsewhere in this Agreement (including
the provisions of Articles V and VI regarding distributions, payments, and allocations to
which it may be entitled), the General Partner shall not be compensated for its services as
general partner of the Partnership.




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



     6.06 Outside Activities. Subject to the Articles of Incorporation and any agreements
entered into by the General Partner or its Affiliates with the Partnership or a Subsidiary, or any
officer, director, manager, employee, agent, trustee, Affiliate or owner of the General Partner,
the Affiliates of the General Partner and the officers, directors, managers, agents, trustees and
owners of the General Partner and its Affiliates shall be entitled to and may have business
interests and engage in business activities in addition to those relating to the Partnership,
including business interests and activities substantially similar or identical to those of the
Partnership. Neither the Partnership nor any of the Limited Partners shall have any rights by
virtue of this Agreement in any such business ventures, interests or activities. None of the
Limited Partners or any other Person shall have any rights by virtue of this Agreement or the
partnership relationship established hereby in any such business ventures, interests or activities,
and neither the General Partner, nor any Affiliates of the General Partner nor any officers,
directors, managers, employees, agents, trustees or owners of the General Partner or the General
Partner’s Affiliates shall have any obligation pursuant to this Agreement to offer any interest in
any such business ventures, interests and activities to the Partnership or any Limited Partner,
even if such opportunity is of a character which, if presented to the Partnership or any Limited
Partner, could be taken by such Person.



     6.07 Employment or Retention of Affiliates.



28









 






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




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




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




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



     6.08 General Partner Participation. The General Partner agrees that all business
activities of the General Partner, including activities pertaining to the acquisition, development
or ownership of any Asset shall be conducted through the Partnership or one or more Subsidiary
Partnerships; provided, however, that the General Partner is allowed to make a direct acquisition,
subject to the provisions of Section 4.02(a)(ii) hereof.



     6.09 Title to Partnership Assets. Partnership assets, whether real, personal or mixed
and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity,
and no Partner, individually or collectively, shall have any ownership interest in such Partnership
assets or any portion thereof; provided, that title to any or all of the Partnership assets may be
held in the name of the Partnership, the General Partner or one or more nominees, as the General
Partner may determine, including Affiliates of the General Partner. The General Partner hereby
declares and warrants that any Partnership assets for which legal title is held in the name of the
General Partner or any nominee or Affiliate of the General Partner shall be held by such Person for
the use and benefit of the Partnership in accordance with the provisions of this Agreement;
provided, that the General Partner shall use its commercially reasonable efforts to cause legal
title to such assets to be vested in the Partnership as soon as reasonably practicable. All
Partnership assets shall be recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is held.



     6.10 Miscellaneous. In the event the General Partner redeems any REIT Shares, then the
Partnership will be deemed to have purchased from the Original Limited Partner a number of
Partnership Units determined by, and based upon, the application of the Conversion Factor on the
same terms upon which the General Partner redeemed such REIT Shares. Moreover, if the



29









 




General Partner makes a cash tender offer or other offer to acquire REIT Shares, then the
General Partner shall be deemed to have made a corresponding offer to the Original Limited Partner
to acquire an equivalent number of Partnership Units held by the Original Limited Partner based on
the application of the Conversion Factor. In the event any REIT Shares are redeemed by the General
Partner pursuant to such offer, then the Partnership shall be deemed to have redeemed an equivalent
number of the Original Limited Partner’s Partnership Units for an equivalent purchase price based
on the application of the Conversion Factor. If the Original Limited Partner holds an insufficient
number of Partnership Units to effect a purchase or redemption contemplated by this Section 6.10,
then the Partnership will be deemed to have purchased or redeemed from the General Partner, after
it has purchased or redeemed all of the Original Limited Partner’s Partnership Units, the number of
Partnership Units necessary to effect such purchase or redemption.




ARTICLE VII




CHANGES IN GENERAL PARTNER



     7.01 Transfer of the General Partner’s Partnership Interest.




     (a) The General Partner shall not transfer all or any portion of its General
Partnership Interest or withdraw as General Partner except as provided in or in connection
with a transaction contemplated by Sections 7.01(c), 7.01(d) or 7.01(e).




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




     (c) Except as otherwise provided in Section 7.01(d) or (e) hereof, the General Partner
shall not engage in any merger, consolidation or other combination with or into another
Person or sale of all or substantially all of its assets (other than in connection with a
change in the General Partner’s state of incorporation or organizational form), which, in
any such case, results in a change of control of the General Partner (a “Transaction”),
unless:




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




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




30












 






the Offer the REIT Shares received upon exercise of the Exchange Right
immediately prior to the expiration of the Offer; or




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




     (d) Notwithstanding Section 7.01(c), the General Partner may merge with or into or
consolidate with another entity if immediately after such merger or consolidation (i)
substantially all of the assets of the successor or surviving entity (the “Survivor”), other
than Partnership Units held by the General Partner, are contributed, directly or indirectly,
to the Partnership as a Capital Contribution in exchange for Partnership Units with a fair
market value equal to the value of the assets so contributed as determined by the Survivor
in good faith, and (ii) the Survivor expressly agrees to assume all obligations of the
General Partner, as appropriate, hereunder. Upon such contribution and assumption, the
Survivor shall have the right and duty to amend this Agreement as set forth in this Section
7.01(d). The Survivor shall in good faith arrive at a new method for the calculation of the
Cash Amount, the REIT Shares Amount and the Conversion Factor for a Partnership Unit after
any such merger or consolidation so as to approximate the existing method for such
calculation as closely as reasonably possible. Such calculation shall take into account,
among other things, the kind and amount of securities, cash and other property that was
receivable upon such merger or consolidation by a holder of REIT Shares or options, warrants
or other rights relating thereto, and which a holder of Partnership Units could have
acquired had such Partnership Units been exchanged immediately prior to such merger or
consolidation. Such amendment to this Agreement shall provide for adjustments to such method
of calculation, which shall be as nearly equivalent as may be practicable to the adjustments
provided for herein with respect to the Conversion Factor. The Survivor also shall in good
faith modify the definition of REIT Shares and make such amendments to Section 8.05 hereof
so as to approximate the existing rights and obligations set forth in Section 8.05 as
closely as reasonably possible. The above provisions of this Section 7.01(d) shall similarly
apply to successive mergers or consolidations permitted hereunder.




     (e) Notwithstanding Section 7.01(c), (i) a General Partner may transfer all or any
portion of its General Partnership Interest to (A) a wholly-owned Subsidiary of such General
Partner or (B) the owner of all of the ownership interests of such General Partner, and
following a transfer of all of its General Partnership Interest, may withdraw as General
Partner; and (ii) the General Partner may engage in a transaction not required by law or by
the rules of any national securities exchange on which the REIT Shares are listed to be
submitted to the vote of the holders of the REIT Shares.



31









 





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




     (a) the Person to be admitted as a substitute or additional General Partner shall have
accepted and agreed to be bound by all the terms and provisions of this Agreement by
executing a counterpart hereof and such other documents or instruments as may be required or
appropriate in order to effect the admission of such Person as a General Partner, a
certificate evidencing the admission of such Person as a General Partner shall have been
filed for recordation and all other actions required by Section 2.05 hereof in connection
with such admission shall have been performed;




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




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



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




     (a) Upon the occurrence of an Event of Bankruptcy as to a General Partner (and its
removal pursuant to Section 7.04(a) hereof) or the death, withdrawal, removal or dissolution
of a General Partner (except that, if a General Partner is, on the date of such occurrence a
partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to, or removal of a
partner in, such partnership shall be deemed not to be a dissolution of such General Partner
if the business of such General Partner is continued by the remaining partner or partners
thereof), the Partnership shall be dissolved and terminated unless the Partnership is
continued pursuant to Section 7.03(b) hereof. The merger of the General Partner with or into
any entity that is admitted as a substitute or successor General Partner pursuant to Section
7.02 hereof shall not be deemed to be the withdrawal, dissolution or removal of the General
Partner.




     (b) Following the occurrence of an Event of Bankruptcy as to a General Partner (and its
removal pursuant to Section 7.04(a) hereof) or the death, withdrawal, removal or dissolution
of a General Partner (except that, if a General Partner is, on the date of such occurrence a
partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to, or removal of a
partner in, such partnership shall be deemed not to be a dissolution of such General Partner
if the business of such General Partner is continued by the remaining partner or partners
thereof), the Limited Partners, within ninety (90) days after such occurrence, may elect to
continue the business of the Partnership for the



32









 






balance of the term specified in Section 2.04 hereof by selecting, subject to Section
7.02 hereof and any other provisions of this Agreement, a substitute General Partner by
consent of a majority in interest of the Limited Partners. If the Limited Partners elect to
continue the business of the Partnership and admit a substitute General Partner, the
relationship with the Partners and of any Person who has acquired an interest of a Partner
in the Partnership shall be governed by this Agreement.



     7.04 Removal of a General Partner.




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




     (b) If a General Partner has been removed pursuant to this Section 7.04 and the
Partnership is continued pursuant to Section 7.03 hereof, such General Partner shall
promptly transfer and assign its General Partnership Interest in the Partnership to the
substitute General Partner approved by a majority in interest of the Limited Partners in
accordance with Section 7.03(b) hereof and otherwise admitted to the Partnership in
accordance with Section 7.02 hereof. At the time of assignment, the removed General Partner
shall be entitled to receive from the substitute General Partner the fair market value of
the General Partnership Interest of such removed General Partner as reduced by any damages
caused to the Partnership by such General Partner’s removal. Such fair market value shall be
determined by an appraiser mutually agreed upon by the General Partner and a majority in
interest of the Limited Partners within ten (10) days following the removal of the General
Partner. In the event that the parties are unable to agree upon an appraiser, the removed
General Partner and a majority in interest of the Limited Partners shall each select an
appraiser. Each such appraiser shall complete an appraisal of the fair market value of the
removed General Partner’s General Partnership Interest within thirty (30) days of the
General Partner’s removal, and the fair market value of the removed General Partner’s
General Partnership Interest shall be the average of the two appraisals; provided, however,
that if the higher appraisal exceeds the lower appraisal by more than twenty percent (20%)
of the amount of the lower appraisal, the two appraisers, no later than forty (40) days
after the removal of the General Partner, shall select a third appraiser who shall complete
an appraisal of the fair market value of the removed General Partner’s General Partnership
Interest no later than sixty (60) days after the removal of the General Partner. In such
case, the fair market value of the removed General Partner’s General Partnership Interest
shall be the average of the two appraisals closest in value.




     (c) The General Partnership Interest of a removed General Partner, during the time
after removal until the date of transfer under Section 7.04(b), shall be converted to that
of a special Limited Partner; provided, however, such removed General Partner shall not have
any rights to participate in the management and affairs of the Partnership, and



33









 






shall not be entitled to any portion of the income, expense, Profit, gain or Loss
allocations or cash distributions allocable or payable, as the case may be, to the Limited
Partners. Instead, such removed General Partner shall receive and be entitled only to retain
distributions or allocations of such items that it would have been entitled to receive in
its capacity as General Partner, until the transfer is effective pursuant to Section
7.04(b).




     (d) All Partners shall have given and hereby do give such consents, shall take such
actions and shall execute such documents as shall be legally necessary and sufficient to
effect all the foregoing provisions of this Section 7.04.



ARTICLE VIII




RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS



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



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



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



     8.04 Ownership by Limited Partner of Corporate General Partner or Affiliate. No
Limited Partner shall at any time, either directly or indirectly, own any stock or other interest
in the General Partner or in any Affiliate thereof, if such ownership by itself or in conjunction
with other stock or other interests owned by other Limited Partners would, in the opinion of
counsel for the Partnership, jeopardize the classification of the Partnership as a partnership for
federal income tax purposes. The General Partner shall be entitled to make such reasonable inquiry
of the Limited Partners as is required to establish compliance by the Limited Partners with the
provisions of this Section 8.04.



     8.05 Exchange Right.




     (a) Subject to Sections 8.05(b), 8.05(c), 8.05(d) and 8.05(e) hereof, and subject to
the potential modification of any rights or obligations provided for herein by



34









 






agreement(s) between the Partnership and any one or more Limited Partners with respect
to Partnership Units held by them, each Limited Partner shall have the right (the “Exchange
Right”) to require the Partnership to redeem on a Specified Exchange Date all or a portion
of the Partnership Units held by such Limited Partner at an exchange price equal to and in
the form of the Cash Amount to be paid by the Partnership; provided, that such Partnership
Units shall have been outstanding for at least one year. The Exchange Right shall be
exercised pursuant to the delivery of an Exchange Notice to the Partnership (with a copy to
the General Partner) by the Limited Partner who is exercising the Exchange Right (the
“Exchanging Partner”); provided, however, that the Partnership shall not be obligated to
satisfy such Exchange Right if the General Partner elects to purchase the Partnership Units
subject to the Exchange Notice pursuant to Section 8.05(b); and provided further, that no
Limited Partner may deliver more than two Exchange Notices during each calendar year. A
Limited Partner may not exercise the Exchange Right for less than 1,000 Partnership Units
or, if such Limited Partner holds less than 1,000 Partnership Units, all of the Partnership
Units held by such Partner. The Exchanging Partner shall have no right, with respect to any
Partnership Units so exchanged, to receive any distribution paid with respect to such
Partnership Units if the record date for such distribution is on or after the Specified
Exchange Date.




     (b) Notwithstanding the provisions of Section 8.05(a), a Limited Partner that exercises
the Exchange Right shall be deemed to have also offered to sell the Partnership Units
described in the Exchange Notice to the General Partner, and the General Partner may, in its
sole and absolute discretion, elect to purchase directly and acquire such Partnership Units
by paying to the Exchanging Partner either the Cash Amount or the REIT Shares Amount, as
elected by the General Partner (in its sole and absolute discretion), on the Specified
Exchange Date, whereupon the General Partner shall acquire the Partnership Units offered for
exchange by the Exchanging Partner and shall be treated for all purposes of this Agreement
as the owner of such Partnership Units. If the General Partner shall elect to exercise its
right to purchase Partnership Units under this Section 8.05(b) with respect to an Exchange
Notice, it shall so notify the Exchanging Partner within five (5) business days after the
receipt by the General Partner of such Exchange Notice. Unless the General Partner (in its
sole and absolute discretion) shall exercise its right to purchase Partnership Units from
the Exchanging Partner pursuant to this Section 8.05(b), the General Partner shall have no
obligation to the Exchanging Partner or the Partnership with respect to the Exchanging
Partner’s exercise of an Exchange Right. In the event the General Partner shall exercise its
right to purchase Partnership Units with respect to the exercise of an Exchange Right in the
manner described in the first sentence of this Section 8.05(b), the Partnership shall have
no obligation to pay any amount to the Exchanging Partner with respect to such Exchanging
Partner’s exercise of such Exchange Right, and each of the Exchanging Partner and the
General Partner shall treat the transaction between the General Partner and the Exchanging
Partner for federal income tax purposes as a sale of the Exchanging Partner’s Partnership
Units to the General Partner. Each Exchanging Partner agrees to execute such documents as
the General Partner may reasonably require in connection with the issuance of REIT Shares to
such Exchanging Partner upon exercise of its Exchange Right.



35









 






     (c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a Limited Partner
shall not be entitled to exercise the Exchange Right if the delivery of REIT Shares to such
Partner on the Specified Exchange Date by the General Partner pursuant to Section 8.05(b)
(regardless of whether or not the General Partner would in fact exercise its rights under
Section 8.05(b)) would (i) result in such Partner or any other Person owning, directly or
indirectly, REIT Shares in excess of the ownership limitations described in the Articles of
Incorporation and calculated in accordance therewith, (ii) result in REIT Shares being owned
by fewer than one hundred (100) Persons (determined without reference to any rules of
attribution), (iii) result in the General Partner being “closely held” within the meaning of
Section 856(h) of the Code, (iv) cause the General Partner to own, directly or
constructively, 10% or more of the ownership interests in a tenant of the General Partner’s,
the Partnership’s, or a Subsidiary Partnership’s real property within the meaning of Section
856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by such Partner to be
“integrated” with any other distribution of REIT Shares for purposes of complying with the
registration provisions of the Securities Act. The General Partner, in its sole and
absolute discretion, may waive any of the restrictions on exchange set forth in this Section
8.05(c); provided, however, that in the event any such restriction is waived, the Exchanging
Partner shall be paid the Cash Amount.




     (d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this Section 8.05
shall be paid on the Specified Exchange Date; provided, however, that the General Partner
may elect to cause the Specified Exchange Date to be delayed for up to one-hundred eighty
(180) days to the extent required for the General Partner to cause additional REIT Shares to
be issued to provide financing to be used to make such payment of the Cash Amount.
Notwithstanding the foregoing, the General Partner agrees to use its commercially reasonable
efforts to cause the closing of the acquisition of exchanged Partnership Units hereunder to
occur as quickly as reasonably possible.




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



     8.06 RESERVED.



     8.07 Duties and Conflicts. The General Partner recognizes that the Limited Partners
and their Affiliates have or may have other business interests, activities and investments, some of
which may be in conflict or competition with the business of the Partnership, and that such Persons
are entitled to carry on such other business interests, activities and investments. The Limited
Partners and their Affiliates may engage in or possess an interest in any other business or venture
of any kind, independently or with others, on their own behalf or on behalf of other entities with
which they are affiliated or associated, and such Persons may engage in any activities, whether or
not competitive with the Partnership, without any obligation to offer any



36









 




interest in such activities to the Partnership or to any Partner. Neither the Partnership nor
any Partner shall have any right, by virtue of this Agreement, in or to such activities, or the
income or profits derived therefrom, and the pursuit of such activities, even if competitive with
the business of the Partnership, and such activities shall not be deemed wrongful or improper.







37









 








ARTICLE IX




TRANSFERS OF LIMITED PARTNERSHIP INTERESTS



     9.01 Purchase for Investment.




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




     (b) Each Limited Partner agrees that it will not sell, assign or otherwise transfer its
Partnership Interest or any fraction thereof, whether voluntarily or by operation of law or
at judicial sale or otherwise, to any Person who does not make the representations and
warranties to the General Partner set forth in Section 9.01(a) above.



     9.02 Restrictions on Transfer of Limited Partnership Interests.




     (a) Subject to the provisions of Sections 9.02(b) and 9.02(c), no Limited Partner may
offer, sell, assign, hypothecate, pledge or otherwise transfer all or any portion of its
Limited Partnership Interest, or any of such Limited Partner’s economic rights as a Limited
Partner, whether voluntarily or by operation of law or at judicial sale or otherwise
(collectively, a “Transfer”), without the consent of the General Partner, which consent may
be granted or withheld in its sole and absolute discretion. Any such purported transfer
undertaken without such consent shall be considered to be null and void ab initio and shall
not be given effect. The General Partner may require, as a condition of any Transfer to
which it consents, that the transferor assume all costs incurred by the Partnership in
connection therewith.




     (b) No Limited Partner may withdraw from the Partnership other than as a result of: (i)
a permitted Transfer (i.e., a Transfer consented to as contemplated by paragraph (a) above
or a Transfer made pursuant to Section 9.05 below) of all of its Partnership Units pursuant
to this Article IX or (ii) pursuant to an exchange of all of its Partnership Units pursuant
to Section 8.05 above. Upon the permitted Transfer or redemption of all of a Limited
Partner’s Partnership Units, such Limited Partner shall cease to be a Limited Partner.




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




     (d) No Transfer by a Limited Partner of its Partnership Units, in whole or in part, may
be made to any Person if (i) in the opinion of legal counsel for the Partnership, the
transfer would result in the Partnership’s being treated as an association taxable as a



38









 






corporation, (ii) in the opinion of legal counsel for the Partnership, it would
adversely affect the ability of the General Partner to continue to qualify as a REIT or
subject the General Partner to any additional taxes under Section 857 or Section 4981 of the
Code, or (iii) such transfer is effectuated through an “established securities market” or a
“secondary market” (or the substantial equivalent thereof) within the meaning of Section
7704 of the Code.




     (e) No transfer of any Partnership Units may be made to a lender to the Partnership or
any Person who is related (within the meaning of Regulations Section 1.752-4(b)) to any
lender to the Partnership whose loan constitutes a nonrecourse liability (within the meaning
of Regulations Section 1.752-1(a)(2)), without the consent of the General Partner, which may
be withheld in its sole and absolute discretion; provided, that as a condition to such
consent the lender will be required to enter into an arrangement with the Partnership and
the General Partner to exchange or redeem for the Cash Amount any Partnership Units in which
a security interest is held simultaneously with the time at which such lender would be
deemed to be a partner in the Partnership for purposes of allocating liabilities to such
lender under Section 752 of the Code.




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




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



     9.03 Admission of Substitute Limited Partner.




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




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




     (ii) to the extent required by applicable law, an amended Certificate
evidencing the admission of such Person as a Limited Partner shall have been signed,
acknowledged and filed in accordance with the Act;



39









 






     (iii) the assignee shall have delivered a letter containing the representation
set forth in Section 9.01(a) hereof and the agreement set forth in Section 9.01(b)
hereof;




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




     (v) the assignee shall have executed a power of attorney containing the terms
and provisions set forth in Section 8.02 hereof;




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




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




     (b) For the purpose of allocating Profit and Loss and distributing cash received by the
Partnership, a Substitute Limited Partner shall be treated as having become, and appearing
in the records of the Partnership as, a Partner upon the filing of the Certificate described
in Section 9.03(a)(ii) hereof or, if no such filing is required, the later of the date
specified in the transfer documents or the date on which the General Partner has received
all necessary instruments of transfer and substitution.




     (c) The General Partner shall cooperate with the Person seeking to become a Substitute
Limited Partner by preparing the documentation required by this Section 9.03 and making all
official filings and publications. The Partnership shall take all such action as promptly as
practicable after the satisfaction of the conditions in this Article IX to the admission of
such Person as a Limited Partner of the Partnership.



     9.04 Rights of Assignees of Partnership Interests.




     (a) Subject to the provisions of Sections 9.01 and 9.02 hereof, except as required by
operation of law, the Partnership shall not be obligated for any purposes whatsoever to
recognize the assignment by any Limited Partner of its Partnership Interest until the
Partnership has received notice thereof.




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




40












 





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



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



ARTICLE X




BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS



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



41









 






10.02 Custody of Partnership Funds; Bank Accounts.




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




     (b) All deposits and other funds not needed in the operation of the business of the
Partnership may be invested by the General Partner in investment grade instruments (or
investment companies whose portfolio consists primarily thereof), government obligations,
certificates of deposit, bankers’ acceptances and municipal notes and bonds. The funds of
the Partnership shall not be commingled with the funds of any other Person except for such
commingling as may necessarily result from an investment in those investment companies
permitted by this Section 10.02(b).



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



     10.04 Annual Tax Information and Report. The General Partner will use its commercially
reasonable efforts to supply within seventy-five (75) days after the end of each fiscal year of the
Partnership to each person who was a Limited Partner at any time during such year the tax
information necessary to file such Limited Partner’s individual tax returns as shall be reasonably
required by law, and in all events the General Partner shall furnish such information within the
time required by applicable law.



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




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




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




     (c) In the event of a transfer of all or any part of the Partnership Interest of any
Partner, the Partnership, at the option and in the sole and absolute discretion of the



42









 






General Partner, may elect pursuant to Section 754 of the Code to adjust the basis of
the Properties. Notwithstanding anything contained in Article V of this Agreement, any
adjustments made pursuant to Section 754 shall affect only the successor-in-interest to the
transferring Partner and in no event shall be taken into account in establishing,
maintaining or computing Capital Accounts for the other Partners for any purpose under this
Agreement. Each Partner will furnish the Partnership with all information necessary to give
effect to such election.



     10.06 Reports to Limited Partners.




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




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



ARTICLE XI




AMENDMENT OF AGREEMENT; MERGER



     11.01 Amendment. The General Partner’s consent shall be required for any amendment to
this Agreement. The General Partner, without the consent of the Limited Partners, may amend this
Agreement in any respect or merge or consolidate the Partnership with or into any other partnership
or business entity (as defined in Section 17-211 of the Act) in a transaction pursuant to Section
7.01(c), (d) or (e) hereof; provided, however, that the following amendments and any other merger
or consolidation of the Partnership shall require the consent of Limited Partners holding more than
fifty percent (50%) of the Percentage Interests of the Limited Partners:




     (a) any amendment affecting the operation of the Conversion Factor or the Exchange
Right (except as provided in Sections 8.05(d) or 7.01(d) hereof) in a manner adverse to the
Limited Partners;




     (b) any amendment that would adversely affect the rights of the Limited Partners to
receive the distributions payable to them hereunder, other than with respect to the issuance
of additional Partnership Units pursuant to Section 4.02 hereof;



43









 






     (c) any amendment that would alter the Partnership’s allocations of Profit and Loss to
the Limited Partners, other than with respect to the issuance of additional Partnership
Units pursuant to Section 4.02 hereof; or




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



ARTICLE XII




GENERAL PROVISIONS



     12.01 Notices. All communications required or permitted under this Agreement shall be
in writing and shall be deemed to have been given when delivered personally or upon deposit in the
United States mail, registered, postage prepaid return receipt requested, if to the General
Partner, at Two Liberty Square, 10th Floor, Boston, Massachusetts 02109, attention:
Jeffrey E. Witherell, and if to any other Partner, at such address set forth in Exhibit A
attached hereto; provided, however, that any Partner may specify a different address by notifying
the General Partner in writing of such different address. Notices to the Partnership shall be
delivered at or mailed to its specified office.



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



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



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



     12.05 Entire Agreement. This Agreement and exhibits attached hereto constitute the
entire Agreement of the Partners and supersede all prior written agreements and prior and
contemporaneous oral agreements, understandings and negotiations with respect to the subject matter
hereof.



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



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



     12.08 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original copy and all of which together shall constitute one and



44









 




the same instrument binding on all parties hereto, notwithstanding that all parties shall not
have signed the same counterpart.




     12.09 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware; provided, however, that any cause of action for violation
of federal or state securities law shall not be governed by this Section 12.09.



     12.10 ACKNOWLEDGEMENT AS TO EXCULPATION AND INDEMNIFICATION. THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONTAINS EXCULPATION AND INDEMNIFICATION IN RESPECT OF
THE ACTIONS OR OMISSIONS OF THE GENERAL PARTNER AND DIRECTORS, OFFICERS AND AFFILIATES OF THE
GENERAL PARTNER BY THE PARTNERSHIP EVEN IF SUCH ACTIONS OR OMISSIONS CONSTITUTE NEGLIGENCE OF SUCH
PERSONS.



45









 





     IN WITNESS WHEREOF, the parties hereto have hereunder affixed their signatures to this
Agreement of Limited Partnership of Plymouth Opportunity OP, LP to be effective as of the ___ day
of July, 2011.



	 	 	 	 	 
	 	GENERAL PARTNER:



PLYMOUTH OPPORTUNITY REIT, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 





	 	 	 	 	 
	 	ORIGINAL LIMITED PARTNER:



PLYMOUTH OP LIMITED, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



46









 






	EXHIBIT A 	 —  	Limited Partners and Limited Partners’ Capital Contributions and Partnership
Units
	 
	EXHIBIT B 	—	   Notice of Exercise of Exchange Right




 









 











EXHIBIT A




LIMITED PARTNERS AND LIMITED PARTNERS’ CAPITAL CONTRIBUTIONS

AND PARTNERSHIP UNITS



As of July ___, 2011



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Agreed Value	 	 	 	 
	 	 	Cash	 	 	of Property	 	 	Partnership	 
	Partners	 	Contribution	 	 	Contribution	 	 	Units	 
	GENERAL PARTNER:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Plymouth
Opportunity REIT, Inc. 

Two Liberty Square,
10th Floor 

Boston, Massachusetts 02109 

Attn: Jeffrey E.
Witherell
	 	$	1.00	 	 	 	N/A	 	 	 	.1	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ORIGINAL LIMITED PARTNER:
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Plymouth OP
Limited, LLC 

Two Liberty Square,
10th
Floor 

Boston,
Massachusetts 02109

Attn: Jeffrey E. Witherell
	 	$	999.00	 	 	 	N/A	 	 	 	99.9	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ADDITIONAL LIMITED PARTNERS:
	 	 	 	 	 	 	 	 	 	 	 	 






 









 






EXHIBIT B




NOTICE OF EXERCISE OF EXCHANGE RIGHT


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




	 	 	 	 	 	 	 

	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Name of Limited Partner)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	(Signature of Limited Partner)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	(Mailing Address)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	(City) (State) (Zip Code)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guaranteed by:
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





If REIT Shares are to be issued, issue to:




Name:                                           




Social Security

or Tax I.D. Number: