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Maryland
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000-55006
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45-4355424
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(State of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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89 Davis Road, Suite 100
Orinda, California
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94563
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(Address of principal executive offices)
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(Zip Code)
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◻
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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MACKENZIE REALTY CAPITAL, INC.
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(Registrant)
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Date: June 8, 2020
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By:
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/s/ Robert Dixon
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Robert Dixon
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President
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Exhibit
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Description
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(a)
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Accuracy
of Representations and Warranties. The representations and warranties of each Contributor contained herein shall be true
and correct as of the Effective Date and the Closing Date (except to the extent that any such representation or warranty speaks as of a specific date, in which case only as of such specific date) in all material respects; provided, however, if any such representation or warranty
shall be qualified as to “materiality,” such qualified representation and warranty shall be true and correct in all respects.
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(b)
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Contributor
Deliveries. On the Closing Date, each Contributor and the Contributor Representative shall have executed (as applicable)
and delivered the items set forth in Section 3.2.
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(c)
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Absence
of Litigation. No Action shall be pending or threatened against each Contributor, the Property Owner or the Property
which (i) questions or could reasonably be expected to question the validity or legality of the transactions contemplated by this Agreement or the Related Agreements, or (ii) affects or could reasonably be expected to affect the operation
of the Property in any material manner.
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(d)
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No
Default. Each Contributor shall have fully complied with all of its obligations hereunder.
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(e)
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Loan
Prepayment. (i) The Existing Loans, if any, other than the Existing Mortgage Debt, shall have been absolved in accord
with Section 5.3, together with any penalties, costs, fees and/or expenses associated with such repayment by the Property Owner, and (ii) the Existing Lender of the Existing Mortgage Debt shall have approved or otherwise consented in writing to the transactions
contemplated by this Agreement and the Related Agreements, and such Existing Lender shall have confirmed in writing that it is not aware of any default, or any event which with the giving of notice or passage of time or both could give rise
to a default, by the Property Owner under any of the documents relating to the Existing Mortgage Debt, and any penalties, costs, fees and/or expenses related to obtaining such consents have been paid in full by all Contributors or the
Property Owner.
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(f)
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Concurrent
Contributions. Other Persons, if any, who own direct or indirect equity interests in the Property Owner (including, but
not limited to, the class A members of Addison NC and Addison Corporate) shall be prepared, simultaneously with the Closing, to contribute such equity interests to MacKenzie OP (or its designee) in order to allow MacKenzie OP (or its
designee), upon completion of such other contribution transactions, to own 100% of the equity interests in the Property Owner (after taking into account MacKenzie REIT’s contribution of the MacKenzie REIT Interests to MacKenzie OP pursuant
to Section 3.4(d)).
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(g)
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Title
Policies. On and as of the Closing Date, the Title Company shall be irrevocably committed to issue (at MacKenzie OP’s
election) to either (i) the Property Owner one or more Title Policies, or (ii) to MacKenzie OP (or its designee) one or more non-imputation endorsements to any existing Title Policy or Title Policies, in either case, insuring fee title to
each facility comprising the Property subject only to the Permitted Exceptions and in a form and an amount acceptable to MacKenzie OP, in its sole discretion.
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(a)
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Contributor
Documents. At the Closing (or such earlier date as may be specified below), each Contributor shall execute and/or
deliver, or cause to be delivered by the Contributor Representative, to MacKenzie OP and MacKenzie REIT (or its designee) the following:
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(b)
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Contributor
Representative Documents. At the Closing (or such earlier date as may be specified below), the Contributor Representative
(on behalf of all of the Contributors) shall deliver to MacKenzie OP and MacKenzie REIT (or its designee) the following:
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(a)
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Accuracy
of Representations and Warranties. The representations and warranties of each of MacKenzie OP and MacKenzie REIT
contained herein shall be true and correct as of the Effective Date and the Closing Date (except to the extent that any such representation or warranty speaks as of a specific date, in which case only as of such specific date) in all
material respects; provided, however, if any such
representation or warranty shall be qualified as to “materiality,” such qualified representation and warranty shall be true and correct in all respects.
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(b)
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Absence
of Litigation. No Action shall be pending or threatened against each of MacKenzie OP and MacKenzie REIT that questions or
could reasonably be expected to question the validity or legality of the transactions contemplated under this Agreement or the Related Agreements.
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(c)
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MacKenzie
OP and MacKenzie REIT Deliveries. On the Closing Date, each of MacKenzie OP and MacKenzie REIT (or their designee) shall
have executed (as applicable) and delivered the items set forth in Section 3.4.
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(d)
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No
Default. MacKenzie OP and MacKenzie REIT shall each have fully complied with all of its obligations hereunder.
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(a)
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Contributed
Interest Assignments. Counterparts to the Contributed Interest Assignments duly executed by an authorized person of
MacKenzie OP (or its designee);
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(b)
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Consideration. MacKenzie OP shall have issued the Unit Consideration required to be issued to each Contributor, in accordance with the terms and
conditions hereof;
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(c)
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Guaranty. MacKenzie REIT shall have delivered to the Existing Lender of the Existing Mortgage Debt, the Guaranty of the Existing Mortgage Debt in
the form of Exhibit I attached hereto;
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(d)
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Transfer
of Interests. MacKenzie OP and MacKenzie REIT shall have entered into an agreement for the contribution of the MacKenzie
REIT Interests in Property Owner to MacKenzie OP; and
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(e)
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Transfer
Tax Forms. Such transfer tax or similar forms required to be executed by MacKenzie OP (or its designee) in accordance
with applicable law.
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(a)
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Existence
and Power. Such Contributor is duly organized, validly existing and in good standing under the Laws of the jurisdiction
in which it is organized. Such Contributor has all power and authority to enter into this Agreement and all other documents to be executed and delivered in connection with the transactions that are the subject of this Agreement, including,
without limitation, all Related Agreements, to the extent they are to be executed by such Contributor, and to enter into and deliver and to perform its obligations hereunder and under all other documents to be executed and delivered in
connection with the transactions that are the subject of this Agreement, including, without limitation, all Related Agreements, to the extent they are to be executed by such Contributor.
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(b)
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Property
Owner Status/Organizational Documents. The Property Owner is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Property Owner has the power and authority to own and operate, whether directly or indirectly, the Property and its assets and to carry on its business as now being
conducted. The Property Owner is duly qualified to do business and is in good standing in the Connecticut. The Contributor Representative has delivered or made available to MacKenzie OP and MacKenzie REIT true, correct and complete copies
of the Organizational Documents for the Property Owner. The Organizational Documents for the Property Owner are in full force and effect and are enforceable in accordance with their respective terms. Such Contributor is not in default of,
nor has any event occurred or failed to occur which with the passage of time or the giving of notice would constitute a default by such Contributor under any of the Organizational Documents of the Property Owner.
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(c)
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Authorization;
No Contravention. The execution and delivery of this Agreement and the Related Agreements by such Contributor and the
performance of his, her or its obligations under all of the foregoing have been duly authorized by all requisite organizational action, and all necessary authorizations, consents, approvals, elections and waivers have been obtained as of
the Closing Date. This Agreement and the Related Agreements executed by such Contributor constitute the valid, legal and binding obligations of such Contributor, each enforceable against such Contributor in accordance with its terms,
subject to bankruptcy and similar laws affecting the remedies or resources of creditors generally and principles of equity. The execution and delivery of this Agreement or the Related Agreements and the consummation of the transactions
contemplated herein and therein will not conflict with, or result in any violation or default (with or without notice or lapse of time or both) under, give rise to a right of termination, cancellation or acceleration of, or give any Person
the right to exercise any remedy under, any contractual obligation, or result in the creation of any Lien upon such Contributor’s Contributed Interests, the Property or the other assets of the Property Owner under: (i) any agreement,
judgment, statute, law, ordinance, rule, regulation, order or decree to which such Contributor and/or the Property Owner is a party or by which such Person is bound or to which any of such Person’s assets are subject; (ii) the
Organizational Documents of such Contributor (if such Contributor is an entity) or the Property Owner; or (iii) any Law applicable to such Contributor, or the Property Owner. Except as set forth on Schedule 4.1(c) attached hereto, no authorization, approvals or consents from, or registration, declaration or filings with, any lender, partner, member, shareholder,
beneficiary, tenant, creditor, investor, Authority or other Person is required in order for such Contributor to execute and deliver this Agreement or the Related Agreements and consummate the transactions contemplated herein and therein.
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(d)
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Compliance
with Law; Licenses and Permits. Neither such Contributor nor the Property Owner have received written notice that (i) all
or any portion of the Property materially violates any law, rule, regulation, ordinance, code or interpretation of any Authority (collectively, “Laws”)
(including, without limitation, those relating to zoning and the requirements of Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181, et seq.)), or any requirement of any insurer or board of fire underwriters or similar entity that remain uncured in whole or in part, or (ii) the Property is otherwise not in material compliance with applicable
Laws. To such Contributor’s knowledge, the Property Owner has conducted its businesses in compliance with applicable Laws in all material respects. Neither such Contributor nor the Property Owner has received written notice that the
Property lacks any license, permit, approval, certificate or variance from any Authorities having jurisdiction over the Property (collectively, the “Licenses”)
or otherwise has any knowledge of any violation, revocation or modification of any of the Licenses or threatening such action with respect to such Licenses.
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(e)
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Contracts. Schedule 4.1(e) attached hereto identifies all
of the documents (including any amendments or modifications) evidencing each of the Contracts affecting the Property or the leasing, operation, repair or maintenance thereof, entered into by the Property Owner or any of its agents which, to
such Contributor’s knowledge, are presently in force and (i) pursuant to which the Property Owner has or will incur an obligation in excess of $40,000, and/or (ii) which have a term exceeding one (1) year and are not cancelable on 30-days’
or less notice without cause and without payment of a fee or penalty. True, complete and correct copies of all of such Contracts have been provided by the Contributor Representative to MacKenzie OP and MacKenzie REIT. Each such Contract
is in full force and effect and no breach or default by each Contributor or the Property Owner or, to such Contributor’s knowledge, by the counterparty thereunder, has occurred under any Contract. Neither such Contributor nor the Property
Owner has given or received written notice of any default under such Contracts, and to such Contributor’s knowledge there is no default or any fact or circumstance which, with the passage of time and/or the giving of notice, would
constitute a material default under any of such Contracts or would give rise to a right of termination or additional liability thereunder.
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(f)
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Litigation. There is no litigation or Action pending with respect to such Contributor, the Property Owner and/or the Property and no Actions or
proceedings pending to which either such Contributor or the Property Owner is a party, before any court or administrative agency, and to such Contributor’s and the Contributor Representative’s knowledge, no such Actions or proceedings have
been threatened.
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(g)
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Proceedings/Special
Assessments. Neither such Contributor nor the Property Owner has received written notice of any condemnation, zoning,
environmental or other land use regulations proceedings either instituted or planned to be instituted that would affect the Property. Neither such Contributor nor the Property Owner has received written notice of any special assessments
filed or pending or, to such Contributor’s knowledge, proposed against the Property or any other thereof.
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(h)
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Hazardous
Materials.
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(i)
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Patriot
Act. Neither such Contributor, the Property Owner, nor, to such Contributor’s knowledge, any Person holding any interest
in either such Contributor or the Property Owner (whether directly or indirectly) is (i) identified on any Governmental List (as hereinafter defined), or otherwise qualifies as a Prohibited Person (as hereinafter defined) or (ii) in
violation of any applicable law, rule or regulation relating to anti‑money laundering or anti‑terrorism, including any applicable law, rule or regulation related to transacting business with Prohibited Persons or the requirements of any
Anti‑Terrorism Laws (as hereinafter defined). As used herein, the term (1) “Anti‑Terrorism Laws” shall mean (a) the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. Law No. 107‑56, 115 Stat. 296 (2001); (b) the International Emergency Economic Powers Act, 50 U.S.C. (1701 et seq. (2003)); and (c) the Trading with the Enemy Act, 50 U.S.C. App. (1 et seq. (2003)) and (d) other similar laws enacted or promulgated of which MacKenzie OP notifies such Contributor prior to the Closing Date; in each case, together with any executive orders, rules
or regulations promulgated thereunder, including temporary regulations, all as amended or otherwise modified from time to time; (2) “Governmental List”
shall mean (a) the List of Specially Designated Nationals and Blocked Persons promulgated by the U.S. Department of the Treasury Office of Foreign Assets Control from time to time and (b) any other similar list (including any list of
Prohibited Persons) promulgated by any Authority from time to time; and (3) “Prohibited Person” shall mean any Person who is (a) designated by the
U.S. federal government as a terrorist or as a suspected terrorist, whether on a Governmental List, or otherwise or (b) otherwise subject to trade, anti‑money laundering or anti‑terrorism restrictions under any Anti‑Terrorism Laws.
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(j)
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Financial
Statements. Schedule 4.1(j)
attached hereto contains true, correct and complete copies of the (i) unaudited income, expense and other operating statements as of and for the fiscal period ended December 31, 2019 with respect to the Property and (ii) unaudited balance
sheet of the Property Owner as of December 31, 2019 (collectively, the “Financial Statements”). The Financial Statements have been prepared on an
income tax basis consistent with prior periods and are complete, accurate, true and correct in all material respects and in all material respects accurately set forth the results of the operation of the Property for the periods covered.
There are no liabilities or obligations relating to the Property Owner of any nature, whether accrued, contingent or otherwise, and there is no existing condition, situation or set of circumstances that reasonably could be expected to
result in such a liability or obligation, except for liabilities or obligations (a) reflected in the unaudited balance sheet of the Property Owner as of December 31, 2019 or (b) that were incurred since the date of the balance sheet and
were normal and recurring expenses incurred in the ordinary course of business and could not reasonably be expected to have a material or adverse effect on the Property Owner. The assets and liabilities of the Property Owner as of the
Closing are accurately represented by the Balance Sheet attached hereto as Exhibit H.
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(k)
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Taxes. All Tax or information returns required to be filed on or before the Effective Date by or on behalf of the Property Owner (i) have been
filed through the Effective Date or will be filed on or before the date when due in accordance with all applicable Laws, and (ii) are complete and correct. There is no Action pending or threatened against or with respect to the Property
Owner or the Property in respect of any Tax nor is any claim for additional Tax asserted by any Authority against such Contributor, the Property Owner or the Property. The Property Owner has paid, or caused to be paid, all material
federal, state, county, local, foreign, and other taxes, and all deficiencies, or other additions to tax, interest, fines and penalties (collectively, “Taxes”),
required to be paid by it, and in accordance with applicable Laws. No taxing authority is now asserting or, to the knowledge of such Contributor, threatening to assert against the Property Owner any deficiency or claim for additional
Taxes. All real estate Taxes and assessments relating to the Property that are due and payable have been paid.
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(l)
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Certain
Title Matters and Personal Property.
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(m)
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Existing
Loans. Schedule 4.1(m)
attached hereto lists: (i) all secured Debt presently encumbering the Property (collectively, the “Existing Mortgage Debt”), (ii) all direct or
indirect Debt secured by an interest in the Property Owner (“Other Secured Debt”), and (iii) all unsecured Debt of the Property Owner (“Other Unsecured Debt”; and together with the Existing Mortgage Debt and the Other Secured Debt, collectively, the “Existing Loans”) and the outstanding aggregate principal balance of each of the Existing Loans as of the Effective Date. No breach or default by the Property Owner has occurred
and is continuing under any of the Existing Loans. No event has occurred and is continuing which with the passage of time or the giving of notice (or both) would constitute a breach or default under any of the Existing Loans, nor have such
Contributor or Property Owner received or given written notice of a breach or default under any of the documents evidencing any of the Existing Loans, which remains uncured. The Existing Loans are pre-payable on a voluntary basis by the
Property Owner at Closing, and any prepayment penalties related to such prepayments have been paid in full by such Contributor or Property Owner on or prior to the Closing Date.
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(n)
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Eminent
Domain. There is no existing or, to such Contributor’s knowledge, proposed or threatened condemnation, eminent domain or
similar proceeding, or private purchase in lieu of such a proceeding which would have an adverse effect on the business or operations of the Property.
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(o)
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Non‑Foreign
Status. The Property Owner and such Contributor is a “United States person” (as defined in Section 7701(a)(30) of the
Code).
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(p)
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Employees. The Property Owner (i) does not have and has never had, any employees at or in connection with the Property for or to which MacKenzie OP
(or its designee) shall have any responsibilities or liabilities following the Closing, and (ii) is not a party to any collective bargaining agreement or similar agreement. The Property Owner does not have any Plans (as that term is
defined in the Employee Retirement Income Security Act § 3(3)), of which it is a sponsor or to which it contributes or has contributed or in which it otherwise participates or has participated.
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(q)
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Bank
Accounts. Schedule 4.1(q)
attached hereto sets forth a true, correct and complete list of the names and locations of all banks, trust companies, securities brokers and other financial institutions at which the Property Owner has an account or safe deposit box or
maintains a banking, custodial, trading or other similar relationship on behalf of itself and not in its capacity as an agent for another entity, together with a list of all authorized signatories with respect thereto.
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(r)
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Capitalization. Schedule 4.1(r) attached hereto sets forth all
of the outstanding ownership interests in the Property Owner, including the percentage interest of each owner therein. All such outstanding ownership interests have been duly authorized, are validly issued, fully paid and non-assessable.
There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, preemptive rights, exchange rights or other contracts or commitments that could require such Contributor or the Property
Owner to issue, sell or otherwise cause to become outstanding any additional ownership interest and there are no equity or benefit plans, relating to the Property Owner, and all such outstanding ownership interests in the Property Owner are
without any obligation to restore capital. The Contributed Interests of such Contributor was offered, issued and sold in compliance in all material respects with all applicable federal and state securities laws and neither such Contributor
nor the Property Owner has received or been advised of any notice or allegation to the contrary.
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(s)
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Title
to Interests.
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(t)
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Subsidiaries. The Property Owner does not own and has never owned any interest in any other Person.
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(u)
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Single
Purpose. The Property Owner has never engaged in any business other than the ownership and operation of the Property.
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(v)
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Solvency. Neither such Contributor nor the Property Owner has: (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary
petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of its assets; (v) admitted in writing its inability to pay its debts as they come due; or (vi) made an offer of settlement, extension or composition to its creditors generally, nor, to such
Contributor’s knowledge, are any such proceedings threatened against such Contributor or the Property Owner, or contemplated by such Contributor or the Property Owner. Such Contributor will be solvent immediately following the transfer of
such Contributor’s Contributed Interests to MacKenzie OP (or its designee) and the Property Owner will be solvent immediately following the transfer of all of the Contributed Interests to MacKenzie OP (or its designee).
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(w)
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Accredited
Investor. The Contributors, combined or consolidated with their Affiliates under generally accepted accounting
principles, have total assets in excess of $5,000,000, and therefore, meet the definition of an Accredited Investor under Rule 501(a)(3) of Regulation D under the Securities Act. Each such Contributor understands the risks of, and other
considerations relating to, the acquisition of Class A OP Units or REIT Shares (as applicable) (including any securities into which the Class A OP Units may be converted). Such Contributor by reason of its business and financial experience
together with the business and financial experience of those persons, if any, retained by such Contributor to represent or advise such Contributor with respect to such Contributor’s potential investment in Class A OP Units or REIT Shares
(as applicable) (including any securities into which the Class A OP Units may be converted):
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(x)
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Investment
For Own Account. The Class A OP Units or REIT Shares (as applicable) to be acquired by such Contributor as contemplated
hereby, if any, will be acquired for its own account for investment only and not with a view to, or with any intention of, a distribution or resale thereof, in whole or in part, or the grant of any participation therein, subject to its
right to further distribute such interests pursuant to Section 5.3.
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(y)
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Access
to Information; Review of Documents. Such Contributor confirms and acknowledges that (i) such Contributor has carefully
read and understood this Agreement and each of the Related Agreements, (ii) such Contributor has made such further investigations as such Contributor has deemed appropriate, (iii) neither MacKenzie OP or MacKenzie REIT nor their respective
Affiliates nor anyone else on MacKenzie OP or MacKenzie REIT’s behalf has made any representations or warranties of any kind or nature to induce such Contributor to enter into this Agreement except as specifically set forth in Section 4.2, (iv) none of the MacKenzie OP nor MacKenzie REIT or any of their respective Affiliates are acting as fiduciary or financial or investment
adviser for such Contributor in connection with its decision to subscribe for Class A OP Units or REIT Shares (as applicable), (v) such Contributor is not relying upon MacKenzie OP or MacKenzie REIT or their respective Affiliates for
guidance with respect to tax, legal or other considerations in connection with this prospective investment, (vi) such Contributor has been afforded an opportunity to ask questions of, and receive answers from, MacKenzie OP or MacKenzie
REIT, their representatives or persons authorized to act on their behalf, concerning the terms and conditions of the offer and sale of the Class A OP Units or REIT Shares (as applicable), (vii) such Contributor has been afforded access to
information about MacKenzie OP and MacKenzie REIT and their respective financial condition and results of operations sufficient to evaluate its potential investment in Class A OP Units or REIT Shares (as applicable) and (viii) such
Contributor has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by MacKenzie OP or MacKenzie REIT.
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(z)
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Unregistered
Securities. Such Contributor acknowledges that:
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(aa)
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Records. The Contributor Representative has made available to MacKenzie OP copies of all books of account, minute books and ownership interest
books of the Property Owner (if any) and the same are accurate in all material respects.
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(bb)
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Budget. The Contributor Representative has delivered to MacKenzie OP accurate and complete copies of the budget for the operation of the Property
for the fiscal year ending December 31, 2019.
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(cc)
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Insurance. The Property Owner has in place public liability, casualty and other insurance coverage with respect to the Property as is commercially
reasonable. The insurance certificates provided by the Contributor Representative to MacKenzie OP (the “Insurance Certificates”) attached hereto as
Exhibit F and incorporated herein by reference are true, accurate and complete copies of the certificates of insurance evidencing the Current
Insurance Policies, and such certificates evidence all insurance policies held by Property Owner with respect to the Property. Each of the Current Insurance Policies is in full force and effect and all premiums due and payable thereunder
have been fully paid when due and each Current Insurance Policy will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby or
such other terms required by the applicable insurers. None of the Property Owner, such Contributor and/or any other Person has received from any insurance company any notices of cancellation or intent to cancel the Current Insurance
Policies.
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(dd)
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Tax Status. Such Contributor is, and since its formation always has been, properly classified as a partnership for U.S. federal income tax purposes, and not as an association taxable as a corporation or a publicly traded partnership
taxable as a corporation under Section 7704 of the Code. The Property Owner is currently (and has been since its respective formation) either (a) properly classified as a partnership for U.S. federal income tax purposes or (b) properly
treated as disregarded as an entity separate from its respective owner for U.S. federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3(b).
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(ee)
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Contributor’s
Knowledge. As used in this Section 4.1,
the phrases “knowledge of such Contributor,” “such Contributor’s knowledge” and any similar phrase shall be deemed to include the knowledge of such Contributor in his, her or its individual capacity.
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(a)
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Existence
and Power.
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(b)
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Authorization;
No Contravention. Each of MacKenzie OP and MacKenzie REIT’s execution and delivery of this Agreement and the Related
Agreements, and the performance of its obligations under this Agreement and the Related Agreements executed by it, shall, by the Closing Date, have been duly authorized by all requisite organizational action, and this Agreement has been,
and such Related Agreements shall on the Closing Date have been, duly executed and delivered by each of MacKenzie OP and MacKenzie REIT. Upon such authorization, none of the foregoing will require any action by or in respect of, or filing
with, any Authority or contravene or constitute a default under any provision of applicable Law or any organizational document of each of MacKenzie OP and MacKenzie REIT, except for such filings as may be required pursuant to applicable
federal and state securities laws. This Agreement constitutes and, upon the execution thereof, the Related Agreements executed by each of MacKenzie OP and MacKenzie REIT will constitute the valid and binding obligations of each of
MacKenzie OP and MacKenzie REIT enforceable against each of MacKenzie OP and MacKenzie REIT in accordance with their respective terms, subject to bankruptcy and similar laws affecting the remedies or resources of creditors generally and
principles of equity.
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(c)
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Pending
Actions. There is no existing or, to each of MacKenzie OP and MacKenzie REIT’s knowledge, threatened Action of any kind
involving each of MacKenzie OP and MacKenzie REIT, any of its assets or the operation of any of the foregoing, which, if determined adversely to MacKenzie OP and MacKenzie REIT or their respective assets, would interfere with each of
MacKenzie OP and MacKenzie REIT’s ability to execute or deliver, or perform its obligations under, this Agreement or any of the Related Agreements executed by it.
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(d)
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Ownership
Interests. The Class A OP Units or REIT Shares to be issued to each Contributor hereunder, as applicable, have been duly
authorized for issuance and, upon such issuance, will be validly issued. There are no restrictions on the transfer of the Class A OP Units REIT Shares to be issued by MacKenzie OP or MacKenzie REIT hereunder, if any, other than those
contained in this Agreement, the MacKenzie OP LP Agreement, the Charter, the Related Agreements and those arising from federal and applicable state securities laws.
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(e)
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Tax
Status. MacKenzie OP is currently and has been since its formation treated as either a partnership or a disregarded
entity for U.S. federal income tax purposes, and has not at any time been taxable as a corporation for U.S. federal income tax purposes.
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(f)
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MacKenzie
OP LP Agreement. A true and complete copy of the MacKenzie OP LP Agreement has been provided to each Contributor and such
MacKenzie OP LP Agreement is in full force and effect.
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(a)
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a duly executed and completed Accredited Investor Questionnaire in the form attached hereto as Exhibit G that verifies that such transferee is an Accredited Investor;
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(b)
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a duly executed copy of the MacKenzie OP LP Agreement admitting such Persons receiving Class A OP Units
as a limited partner of MacKenzie OP (in the case of the transfer of Units); and
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(c)
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an agreement from each Person agreeing to and acknowledging the representations and warranties set forth
in Sections 4.1(w) – (z) as to such Person in place of “Contributor” or “Contributors.”
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(a)
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In the event that either the MacKenzie Indemnified Parties or the Contributor Indemnified Parties shall
incur or suffer any Losses in respect of which indemnification may be sought by such party pursuant to the provisions of this Article 7, the party
seeking to be indemnified hereunder (the “Indemnitee”) shall assert a claim for indemnification by written notice (a “Notice”) to the party from whom indemnification is sought (the “Indemnitor”) stating
the nature and basis of such claim. In the case of Losses arising by reason of any third party claim, the Notice shall be given within sixty (60) days of the filing of any such claim against the Indemnitee, but the failure of the
Indemnitee to give the Notice within such period shall not relieve the Indemnitor of any liability that the Indemnitor may have to the Indemnitee except to the extent that the Indemnitor is prejudiced thereby and then only to the extent of
such prejudice.
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(b)
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The Indemnitee shall provide to the Indemnitor on request all information and documentation reasonably
necessary to support and verify any Losses which the Indemnitee believes give rise to a claim for indemnification hereunder and shall give the Indemnitor reasonable access to all books, records and personnel in the possession or under the
control of the Indemnitee which would have bearing on such claim.
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(c)
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In the case of third party claims for which indemnification is sought, the Indemnitor shall have the
option (i) to conduct any proceedings or negotiations in connection therewith, (ii) to take all other steps to settle or defend any such claim (provided that the Indemnitor shall not, without the consent of the Indemnitee, settle any such
claim on terms which do not (A) include as an unconditional term thereof the giving by the claimant or plaintiff in question to the Indemnitee of a release of all liabilities in respect of such claims, and (B) result only in the payment of
monetary damages), and (iii) to employ counsel, which counsel shall be reasonably acceptable to the Indemnitee, to contest any such claim or liability in the name of the Indemnitee or otherwise. In any event, the Indemnitee shall be
entitled to participate at its own expense and by its own counsel in any proceedings relating to any third party claim; provided, however, that if the defendants in any such action or claim include both the Indemnitee and the Indemnitor and the Indemnitee shall have reasonably
concluded that there would be a conflict of interest were the same counsel to represent the Indemnitee and the Indemnitor, the Indemnitee shall be entitled to be represented by separate counsel at the Indemnitor’s expense; provided further, however, that such action or claim shall not be settled without the Indemnitor’s consent, which shall not unreasonably be withheld. The Indemnitor shall, within thirty (30) days of receipt
of the Notice, notify the Indemnitee of its intention to assume the defense of such claim. Until the Indemnitee has received notice of the Indemnitor’s election whether to defend any claim, the Indemnitee shall take reasonable steps to
defend (but may not settle) such claim. If the Indemnitor shall decline to assume the defense of any such claim, or shall fail to notify the Indemnitee within thirty (30) days after receipt of the Notice of the Indemnitor’s election to
defend such claim, the Indemnitee shall have the right to undertake the defense, compromise or settlement of such claim. The expenses of all proceedings, contests or lawsuits in respect of claims for which the Indemnitor would be
responsible for indemnifying the Indemnitee if determined adversely to the Indemnitee shall be borne by the Indemnitor and paid by the Indemnitor as incurred promptly after delivery of reasonably detailed invoices therefor.
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(a)
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Each party agrees to maintain in confidence through the Closing, and each Contributor agrees to maintain
in confidence following the Closing, in each case unless otherwise required by applicable Law, reporting requirements or accounting or auditing standards, all materials and information received from the other party or otherwise regarding
the Property Owner, the Property and the other matters which are the subject of this Agreement (“Confidential Information”). Each Contributor,
MacKenzie OP and MacKenzie REIT agree that, prior to the Closing Date, neither of them, without the prior written consent of the other party hereto, shall publicly or privately reveal any information relating to the existence or terms and
conditions of the transactions contemplated hereby, except as permitted below in this Section 8.13.
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(b)
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The parties agree that nothing in this Section 8.13 shall prevent each Contributor, MacKenzie OP or MacKenzie REIT from disclosing or accessing any Confidential Information under this Section (i) in connection with the enforcement of a party’s
rights hereunder, (ii) pursuant to any legal requirement in connection with the issuance or transfer of securities by MacKenzie OP or MacKenzie REIT, including, without limitation, federal or state securities laws, any reporting requirement
or any accounting or auditing standard, or (iii) as may otherwise be required by U.S. federal securities laws. Each Contributor, MacKenzie OP and MacKenzie REIT further agree that nothing in this Section 8.13 shall prevent the other of them from disclosing any Confidential Information to its respective Affiliates, owners, employees, counsel, lenders, and agents (collectively, “Representatives”) to the extent reasonably necessary to complete the transactions contemplated hereby; provided that the disclosing party informs its Representatives of the confidential nature of the Confidential Information and remains responsible for enforcing the terms of this Section as to such
Representatives.
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(c)
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Following the Closing, subject to the MacKenzie OP LP Agreement or Charter, MacKenzie OP and MacKenzie
REIT shall have the sole right to determine the form, timing and substance of, and to issue, all public disclosures concerning the transactions contemplated by this Agreement.
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(d)
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Upon the termination of this Agreement for any reason, each party will (i) promptly deliver to each
other party all Confidential Information furnished by such other party or its Representatives, together with all copies and summaries thereof in its possession or under its control or the possession or control of its Representatives, and
(ii) destroy all materials it or its Representatives have generated that include or refer to any part of the Confidential Information, without retaining a copy of any such material, and confirm such destruction in writing (including a list
of the destroyed materials).
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(e)
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Because an award of money damages would be inadequate for any breach of this Section 8.13 by a party or its Representatives and any such breach would cause the other party irreparable harm, each party agrees that, in the event of any breach or
threatened breach of this Section 8.13, such other party shall be entitled, without the requirement of posting a bond or other security, to
equitable relief, including injunctive relief and specific performance and shall be entitled to recover all of its costs and expenses (including reasonable attorney fees) in enforcing this Section 8.13.
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(f)
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This Section 8.13
shall survive the Closing.
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| By: |
MacKenzie Realty Capital, Inc., a Maryland corporation, its general partner
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| By: |
Virtua Partners LLC, an Arizona limited liability company, its Sole Managing Member
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| By: |
Virtua Partners LLC, an Arizona limited liability company, its Sole Managing Member
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| By: |
Vantage Point Consulting, LLC, an Arizona limited liability company, its Manager
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Effective Date: __________________, 2020
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County, State: New Castle, Delaware
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ASSIGNOR:
Addison Property Member, LLC
17470 North Pacesetter Way
Scottsdale, Arizona 85255
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ASSIGNEE:
MacKenzie Realty Operating Partnership, LP
ATTN: Chip Patterson, General Counsel
89 Davis Road, Suite 100
Orinda, California 94563
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| By: |
Virtua Partners LLC, an Arizona limited liability company, its Sole Managing Member
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| By: |
MacKenzie Realty Capital, Inc., a Maryland corporation, its General Partner
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EXHIBIT A
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NOTICE OF REDEMPTION
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A-1
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(i)
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increase such Capital Account by any amounts that such Partner is obligated to restore pursuant to this
Agreement upon liquidation of such Partner’s Partnership Interest or that such Person is deemed to be obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentence of each of Regulations
Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
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(ii)
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decrease such Capital Account by the items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5)
and (6).
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(i)
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the sum, without duplication, of:
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(1)
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the Partnership’s Net Income or Net Loss (as the case may be) for such period,
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(2)
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the Partnership’s Depreciation and all other noncash charges to the extent deducted in determining Net
Income or Net Loss for such period,
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(3)
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the amount of any reduction in reserves of the Partnership referred to in clause (ii)(6) below
(including, without limitation, reductions resulting because the General Partner determines such amounts are no longer necessary),
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(4)
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the excess, if any, of the net cash proceeds from the sale, exchange, disposition, financing or
refinancing of Partnership property for such period over the gain (or loss, as the case may be) recognized from such sale, exchange, disposition, financing or refinancing during such period (excluding Terminating Capital Transactions), and
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(5)
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all other cash received (including amounts previously accrued as Net Income and amounts of deferred
income) or any net amounts borrowed by the Partnership for such period that was not included in determining Net Income or Net Loss for such period;
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(ii)
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less the sum, without duplication, of:
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(1)
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all principal debt payments made during such period by the Partnership,
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(2)
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capital expenditures made by the Partnership during such period,
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(3)
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investments by the Partnership in any entity (including loans made thereto) to the extent that such
investments are not otherwise described in clause (ii)(1) or clause (ii)(2)above,
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(4)
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all other expenditures and payments not deducted in determining the Partnership’s Net Income or Net Loss
for such period (including amounts paid in respect of expenses previously accrued),
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(5)
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any amount included in determining Net Income or Net Loss for such period that was not received by the
Partnership during such period,
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(6)
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the amount of any increase in the Partnership’s reserves (including, without limitation, working capital
reserves) established during such period that the General Partner determines are necessary or appropriate in its sole and absolute discretion,
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(7)
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any amount distributed or paid in redemption of any Common Unit or other Partnership Units, including,
without limitation, any Cash Amount paid, and
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(8)
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the amount of any working capital accounts and other cash or similar balances that the General Partner
determines to be necessary or appropriate in its sole and absolute discretion.
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(i)
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To each Partner’s Capital Account, there shall be added such Partner’s Capital Contributions, such
Partner’s distributive share of Net Income and any items in the nature of income or gain that are specially allocated pursuant to Section 6.3 hereof, and the amount of any Partnership liabilities assumed by such Partner or that are secured
by any property distributed to such Partner.
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(ii)
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From each Partner’s Capital Account, there shall be subtracted the amount of cash and the Gross Asset
Value of any Partnership property distributed to such Partner pursuant to any provision of this Agreement, such Partner’s distributive share of Net Losses and any items in the nature of expenses or losses that are specially allocated
pursuant to Section 6.3 hereof, and the amount of any liabilities of such Partner assumed by the Partnership or that are secured by any property contributed by such Partner to the Partnership (except to the extent already reflected in the
amount of such Partner’s Capital Contribution).
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(iii)
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In the event any interest in the Partnership is Transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent that it relates to the Transferred interest.
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(iv)
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In determining the amount of any liability for purposes of subsections (i) and (ii) hereof, there shall
be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.
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(v)
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The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply
with Regulations promulgated under Section 704 of the Code, and shall be interpreted and applied in a manner consistent with such Regulations. If the General Partner shall determine that it is necessary or appropriate to modify the manner
in which the Capital Accounts are maintained in order to comply with such Regulations, the General Partner may make such modification. The General Partner may, in its sole discretion, (a) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership’s balance sheet, as computed for book purposes, in accordance with Regulations
Section 1.704-1(b)(2)(iv)(q) and (b) make any modifications that are necessary or appropriate in the event that unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b) or Section 1.704-2.
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(a)
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The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross
fair market value of such asset on the date of contribution, as determined by the General Partner and agreed to by the contributing Person.
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(b)
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The Gross Asset Values of all Partnership assets immediately prior to the occurrence of any event
described in clauses (i) through (v) below shall be adjusted to equal their respective gross fair market values, as determined by the General Partner using such reasonable method of valuation as it may adopt, as of the following times:
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(i)
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the acquisition of an additional interest in the Partnership (other than in connection with the execution
of this Agreement but including, without limitation, acquisitions pursuant to Section 4.2 hereof or contributions or deemed contributions by the General Partner pursuant to Section 4.2 hereof) by a new or existing Partner in exchange for
more than a de minimis Capital Contribution;
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(ii)
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the distribution by the Partnership to a Partner of more than a de minimis amount of Partnership property as consideration for an interest in the Partnership;
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(iii)
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the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
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(iv)
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the grant of an interest in the Partnership (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Partnership by an existing Partner acting in a partner capacity, or by a new
Partner acting in a partner capacity or in anticipation of becoming a Partner of the Partnership; and
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(v)
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at such other times as the General Partner shall reasonably determine necessary or advisable in order to
comply with Regulations Sections 1.704-1(b) and 1.704-2.
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(c)
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The Gross Asset Value of any Partnership asset distributed to a Partner shall be the gross fair market
value of such asset on the date of distribution, as determined by the distributee and the General Partner; provided, however, that if the distributee is the General Partner, such gross market value shall be reasonably determined by the General Partner in
good faith, or if the distributee and the General Partner cannot agree on such a determination, such gross fair market value shall be determined by Appraisal.
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(d)
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The Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments
to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the extent that the General Partner reasonably determines that an adjustment pursuant to subsection (b) above is necessary or
appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d).
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(e)
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If the Gross Asset Value of a Partnership asset has been determined or adjusted pursuant to subsection
(a), subsection (b) or subsection (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.
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(a)
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Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account
in computing Net Income (or Net Loss) pursuant to this definition of “Net Income” or “Net Loss” shall be added to (or subtracted from, as the case may be) such taxable income (or loss);
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(b)
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Any expenditure of the Partnership described in Code Section 705(a)(2)(B) or treated as a Code
Section 705(a)(2)(B) expenditure pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income (or Net Loss) pursuant to this definition of “Net Income” or “Net Loss,” shall be subtracted
from (or added to, as the case may be) such taxable income (or loss);
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(c)
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In the event the Gross Asset Value of any Partnership asset is adjusted pursuant to subsection (b) or
subsection (c) of the definition of “Gross Asset Value,” the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Loss;
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(d)
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Gain or loss to the Partnership resulting from any disposition of property with respect to which gain or
loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
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(e)
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In lieu of the depreciation, amortization and other cost recovery deductions that would otherwise be
taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Partnership Year or other applicable period;
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(f)
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To the extent that an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code
Section 734(b) or Code Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Partner’s
interest in the Partnership, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the
asset and shall be taken into account for purposes of computing Net Income or Net Loss; and
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(g)
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Notwithstanding any other provision of this definition of “Net Income” or “Net Loss,” any item that is
specially allocated pursuant to Article 6 hereof shall not be taken into account in computing Net Income or Net Loss. The amounts of the items of Partnership income, gain, loss or deduction available to be specially allocated pursuant to
Section 6.3 hereof shall be determined by applying rules analogous to those set forth in this definition of “Net Income” or “Net Loss.”
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A.
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Each Limited Partner and Assignee hereby irrevocably constitutes and appoints the General Partner, any Liquidator, and
authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead
to:
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(1)
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execute, swear to, seal, acknowledge, deliver, file and record in the appropriate public offices: (a) all certificates,
documents and other instruments (including, without limitation, this Agreement and the Certificate and all amendments, supplements or restatements thereof) that the General Partner or the Liquidator deems appropriate or necessary to form,
qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability to the extent provided by applicable law) in the State of Delaware and in all other jurisdictions in which the Partnership may conduct business or own property; (b) all instruments that the General Partner or
any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (c) all conveyances and other instruments or documents that the General Partner or
the Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (d) all conveyances and other
instruments or documents that the General Partner or the Liquidator deems appropriate or necessary to reflect the distribution or exchange of assets of the Partnership pursuant to the terms of this Agreement; (e) all instruments relating to
the admission, acceptance, withdrawal, removal or substitution of any Partner pursuant to the terms of this Agreement or the Capital Contribution of any Partner; and (f) all certificates, documents and other instruments relating to the
determination of the rights, preferences and privileges relating to Partnership Interests; and
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(2)
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execute, swear to, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments
appropriate or necessary, in the sole and absolute discretion of the General Partner or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action that is made or given by the Partners
hereunder or is consistent with the terms of this Agreement.
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B.
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The foregoing power of attorney is hereby declared to be irrevocable and a special power coupled with an interest, in
recognition of the fact that each of the Limited Partners and Assignees will be relying upon the power of the General Partner or the Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the
Partnership, and it shall survive and not be affected by the subsequent Incapacity of any Limited Partner or Assignee and the Transfer of all or any portion of such Person’s Partnership Interest and shall extend to such Person’s heirs,
successors, assigns and personal representatives. Each such Limited Partner and Assignee hereby agrees to be bound by any representation made by the General Partner or the Liquidator, acting in good faith pursuant to such power of attorney;
and each such Limited Partner and Assignee hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the General Partner or the Liquidator, taken in good faith under such power of attorney. Each
Limited Partner and Assignee shall execute and deliver to the General Partner or the Liquidator, within fifteen (15) days after receipt of the General Partner’s or the Liquidator’s request therefor, such further designation, powers of
attorney and other instruments as the General Partner or the Liquidator (as the case may be) deems necessary to effectuate this Agreement and the purposes of the Partnership. Notwithstanding anything else set forth in this Section 2.4B, no
Limited Partner shall incur any personal liability for any action of the General Partner or the Liquidator taken under such power of attorney.
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A.
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Each Partner that is an individual (including, without limitation, each Additional Limited Partner or Substituted Limited
Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) represents and warrants to, and covenants with, each other Partner that (i) the consummation of the transactions contemplated by this
Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other
law to which such Partner is subject, (ii) if five percent (5%) or more (by value) of the Partnership’s interests are or will be owned by such Partner within the meaning of Code Section 7704(d)(3), such Partner does not, and for so long as
it is a Partner will not, own, directly or indirectly, (a) stock of any corporation that is a tenant of (I) the General Partner or any Disregarded Entity with respect to the General Partner, (II) the Partnership or (III) any partnership,
venture or limited liability company of which the General Partner, any Disregarded Entity with respect to the General Partner, or the Partnership is a direct or indirect member or (b) an interest in the assets or net profits of any
non-corporate tenant of (I) the General Partner or any Disregarded Entity with respect to the General Partner, (II) the Partnership or (III) any partnership, venture, or limited liability company of which the General Partner, any
Disregarded Entity with respect to the General Partner, or the Partnership is a direct or indirect member, (iii) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder, and
(iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding the foregoing, a Partner that is an individual shall not be subject to the ownership restrictions set forth in clause
(ii) of the immediately preceding sentence to the extent such Partner obtains the written Consent of the General Partner prior to violating any such restrictions. Each Partner that is an individual shall also represent and warrant to the
Partnership that such Partner is neither a “foreign person” within the meaning of Code Section 1445(f) nor a foreign partner within the meaning of Code Section 1446(e).
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B.
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Each Partner that is not an individual (including, without limitation, each Additional Limited Partner or Substituted
Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) represents and warrants to, and covenants with, each other Partner that (i) all transactions contemplated by this Agreement to be
performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries, directors and/or stockholder(s) (as the case may be) as required,
(ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, charter or bylaws (as the case may be) any material agreement by which
such Partner or any of such Partner’s properties or any of its partners, members, beneficiaries, trustees or stockholders (as the case may be) is or are bound, or any statute, regulation, order or other law to which such Partner or any of
its partners, members, trustees, beneficiaries or stockholders (as the case may be) is or are subject, (iii) if five percent (5%) or more (by value) of the Partnership’s interests are or will be owned by such Partner within the meaning of
Code Section 7704(d)(3), such Partner does not, and for so long as it is a Partner will not, own, directly or indirectly, (a) stock of any corporation that is a tenant of (I) the General Partner or any Disregarded Entity with respect to
the General Partner, (II) the Partnership or (III) any partnership, venture or limited liability company of which the General Partner, any General Partner, any Disregarded Entity with respect to the General Partner, or the Partnership is a
direct or indirect member or (b) an interest in the assets or net profits of any non-corporate tenant of (I) the General Partner, or any Disregarded Entity with respect to the General Partner, (II) the Partnership or (III) any partnership,
venture or limited liability company for which the General Partner, any General Partner, any Disregarded Entity with respect to the General Partner, or the Partnership is a direct or indirect member, and (iv) this Agreement is binding upon,
and enforceable against, such Partner in accordance with its terms. Notwithstanding the foregoing, a Partner that is not an individual shall not be subject to the ownership restrictions set forth in clause (iii) of the immediately preceding
sentence to the extent such Partner obtains the written Consent of the General Partner prior to violating any such restrictions. Each Partner that is not an individual shall also represent and warrant to the Partnership that such Partner is
neither a “foreign person” within the meaning of Code Section 1445(f) nor a foreign partner within the meaning of Code Section 1446(e).
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C.
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Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition
to becoming an Additional Limited Partner or Substituted Limited Partner) represents, warrants and agrees that (i) it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and
not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, and not with a view toward selling or otherwise distributing such interest or any part thereof at any
particular time or under any predetermined circumstances in violation of applicable laws, (ii) it is an Accredited Investor and is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself,
particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid
investment, and (iii) without the Consent of the General Partner, it shall not take any action that would cause (a) the Partnership at any time to have more than 100 partners, including as partners those persons (“Flow-Through Partners”) indirectly owning an interest in the Partnership through an entity treated as a partnership, Disregarded Entity, S corporation or
grantor trust (each such entity, a “Flow-Through Entity”), but only if substantially all of the value of such Person’s interest in the
Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Partnership; or (b) the Partnership Interest initially issued to such Partner or its predecessors to be held by more than two partners,
including as partners any Flow-Through Partners. Notwithstanding the foregoing, a Partner shall not be subject to the restrictions set forth in clause (ii) of the immediately preceding sentence to the extent such Partner obtains the written
Consent of the General Partner after providing evidence satisfactory to the General Partner that the transfer or issuance of the Partnership Interest to such Partner is exempt from registration under the Securities Act or the regulations
promulgated thereunder (which evidence may include, at the General Partner’s discretion, an opinion of counsel regarding the same at such Partner’s cost).
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D.
|
The representations and warranties contained in Sections 3.4A, 3.4B and 3.4C hereof shall survive the execution and delivery
of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership)
and the dissolution, liquidation and termination of the Partnership.
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E.
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Each Partner (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition
to becoming an Additional Limited Partner or Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General
Partner have been made by any Partner or any employee or representative or Affiliate of any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation,
that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
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F.
|
Notwithstanding the foregoing, the General Partner may, in its sole and absolute discretion, permit the modification of any
of the representations and warranties contained in Sections 3.4A, 3.4B and 3.4C above as applicable to any Partner (including, without limitation any Additional Limited Partner or Substituted Limited Partner or any transferee of either),
provided that such representations and warranties, as modified, shall be set forth in either (i) a Partnership Unit Designation applicable to the Partnership Units held by such Partner or (ii) a separate writing addressed to the Partnership
and the General Partner.
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A.
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Generally. The
Partnership initially is authorized to issue two classes of Partnership Units, designated as “Class A Common Units” (“Class A Common Units”)
or Class B Common Units (“Class B Common Units”), and having the respective preferences, conversion and other rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms and conditions of redemption set forth herein. Except as expressly provided herein, Class A Common Units and Class B Common Units shall entitle the holders thereof to
equal rights under this Agreement. Notwithstanding anything to the contrary in this Agreement, any Partnership Units issued to the General Partner or any Affiliate of the General Partner shall be Class B Common Units, and any Partnership
Units acquired by the General Partner or any Affiliate of the General Partner from any Limited Partner pursuant to Sections 8.6 or 15.1 hereof or otherwise, shall automatically be converted to Class B Common Units.
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B.
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Issuances of Additional
Partnership Interests. Subject to the rights of any Holder of any Partnership Interest set forth in a Partnership Unit Designation, 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, and to admit such Persons as Additional Limited Partners, 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 Partner or any other Person. Without limiting the foregoing, the
General Partner is expressly authorized to cause the Partnership to issue Partnership Units (i) upon the conversion, redemption or exchange of any Debt, Partnership Units, or other securities issued by the Partnership, (ii) for less than
fair market value, (iii) for no consideration, (iv) in connection with any merger of any other Person into the Partnership or (v) upon the contribution of property or assets to the Partnership. Any additional Partnership Interests may be
issued in one or more classes, or one or more series of any of such classes, with such designations, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or
conditions of redemption (including, without limitation, terms that may be senior or otherwise entitled to preference over existing Partnership Units) as shall be determined by the General Partner, in its sole and absolute discretion
without the approval of any Limited Partner or any other Person, and set forth in a written document thereafter attached to and made an exhibit to this Agreement, which exhibit shall be an amendment to this Agreement and shall be
incorporated herein by this reference (each, a “Partnership Unit Designation”), without the approval of any Limited Partner or any other
Person. Without limiting the generality of the foregoing, the General Partner shall have authority to specify: (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 (on a pari passu, junior or preferred basis) in
Partnership distributions; (c) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; (d) the voting rights, if any, of each such class or series of Partnership Interests; and
(e) the conversion, redemption or exchange rights applicable to each such class or series of Partnership Interests. Except as expressly set forth in any Partnership Unit Designation or as may otherwise be required under the Act, a
Partnership Interest of any class or series other than a Class A Common Unit or Class B Common Unit shall not entitle the holder thereof to vote on, or consent to, any matter. Upon the issuance of any additional Partnership Interest, the
General Partner shall update the Register and the books and records of the Partnership as appropriate to reflect such issuance.
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C.
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No Preemptive Rights.
Except as expressly provided in this Agreement or in any Partnership Unit Designation, no Person, including, without limitation, any Partner or Assignee, shall have any preemptive, preferential, participation or similar right or rights to
subscribe for or acquire any Partnership Interest.
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A.
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General. The
General Partner may, at any time and from time to time, determine that the Partnership requires additional funds (“Additional Funds”)
for the acquisition or development of additional Properties, for the redemption of Partnership Units, distributions of cash to the Holders of the Preferred Return Per Class A Unit or for such other purposes as the General Partner may
determine, in its sole and absolute discretion. Additional Funds may be obtained by the Partnership, at the election of the General Partner, in any manner provided in, and in accordance with, the terms of this Section 4.3 without the
approval of any Limited Partner or any other Person.
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B.
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Additional Capital
Contributions. The General Partner, on behalf of the Partnership, may obtain any Additional Funds by accepting Capital Contributions from any Partners or other Persons. In connection with any such Capital Contribution (of cash or
property), the General Partner is hereby authorized to cause the Partnership from time to time to issue additional Partnership Units (as set forth in Section 4.2 above) in consideration therefor and the Percentage Interests of the General
Partner and the Limited Partners shall be adjusted to reflect the issuance of such additional Partnership Units.
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C.
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Loans by Third Parties.
The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur Debt to any Person (other than the General Partner (but, for this purpose, disregarding any Debt that may be deemed
incurred to the General Partner by virtue of clause (iii) of the definition of Debt)) upon such terms as the General Partner determines appropriate, including making such Debt convertible, redeemable or exchangeable for Partnership Units or
REIT Shares; provided, however,
that the Partnership shall not incur any such Debt if any Partner would be personally liable for the repayment of such Debt (unless such Partner otherwise agrees).
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D.
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General Partner Loans.
The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur Debt to the General Partner if such Debt is on terms and conditions no less favorable to the Partnership than would be
available to the Partnership from any third party; provided, however, that the Partnership shall not incur any such Debt if any Partner would be personally liable for the repayment of such Debt (unless such Partner otherwise agrees).
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A.
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Net Income.
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(i)
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First,
100% to the holders of Class A Common Units in accordance with their respective Percentage Interests in an amount equal to the excess of such holder’s cumulative distributions pursuant to Section 5.1(ii) to the last day of the current
Partnership year or other period, or to the date of redemption or exchange with the General Partner to the extent such units are redeemed or exchanged during such period, over the Cumulative Net Income previously allocated to such holder
pursuant to this Section 6.2A; and
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(ii)
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Second, 100% to the holders of Class B Common Units in accordance with their respective Percentage
Interests.
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B.
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Net Losses. Except as provided in Section 6.3A, Net Loss for any Partnership year or other period shall be allocated to the
holders of Class B Common Units in accordance with their Percentage Interests.
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C.
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Allocations to Reflect Issuance of Additional Partnership Interests. In the event that the Partnership issues additional
Partnership Interests to the General Partner or any Additional Limited Partner pursuant to Section 4.2 or 4.3, the General Partner shall make such revisions to this Section 6.2 or to Section 12.2C or 13.2A as it determines are necessary to
reflect the terms of the issuance of such additional Partnership Interests, including making preferential allocations to certain classes of Partnership Interests, subject to the terms of any Partnership Unit Designation with respect to
Partnership Interests then outstanding.
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A.
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Regulatory Allocations.
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(i)
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Minimum
Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding the provisions of Section 6.2 hereof, or any other provision of this Article 6, if there is a net decrease in Partnership Minimum
Gain during any Partnership Year, each Holder shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Partnership
Minimum Gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be
allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.3A(i) is intended to qualify as a “minimum gain chargeback” within the meaning of Regulations Section 1.704-2(f) and shall
be interpreted consistently therewith.
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(ii)
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Partner
Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(i)(4) or in Section 6.3A(i) hereof, if there is a net decrease in Partner Minimum Gain attributable to a Partner Nonrecourse Debt during any
Partnership Year, each Holder who has a share of the Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be so allocated shall be
determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.3A(ii) is intended to qualify as a “chargeback of partner nonrecourse debt minimum gain” within the meaning of Regulations
Section 1.704-2(i) and shall be interpreted consistently therewith.
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(iii)
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Nonrecourse
Deductions and Partner Nonrecourse Deductions. Any Nonrecourse Deductions for any Partnership Year shall be specially allocated to the Holders in accordance with their interests in the Partnership as determined by the General
Partner. Any Partner Nonrecourse Deductions for any Partnership Year shall be specially allocated to the Holder(s) who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions
are attributable, in accordance with Regulations Section 1.704-2(i).
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(iv)
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Qualified
Income Offset. If any Holder unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall be specially allocated,
in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to such Holder in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of such Holder as quickly as
possible, provided that an allocation pursuant to this Section 6.3A(iv) shall be made if and only to the extent that such Holder would have an Adjusted Capital Account Deficit after all other allocations provided in this Article 6 have been
tentatively made as if this Section 6.3A(iv) were not in the Agreement. It is intended that this Section 6.3A(iv) qualify and be construed as a “qualified income offset” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
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(v)
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Gross
Income Allocation. In the event that any Holder has a deficit Capital Account at the end of any Partnership Year that is in excess of the sum of (1) the amount (if any) that such Holder is obligated to restore to the Partnership
upon complete liquidation of such Holder’s Partnership Interest and (2) the amount that such Holder is deemed to be obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentences of Regulations
Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be specially allocated items of Partnership income and gain in the amount of such excess to eliminate such deficit as quickly as possible, provided that an allocation pursuant
to this Section 6.3A(v) shall be made if and only to the extent that such Holder would have a deficit Capital Account in excess of such sum after all other allocations provided in this Article 6 have been tentatively made as if this Section
6.3A(v) and Section 6.3A(iv) hereof were not in the Agreement.
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(vi)
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Limitation
on Allocation of Net Loss. To the extent that any allocation of Net Loss would cause or increase an Adjusted Capital Account Deficit as to any Holder, such allocation of Net Loss shall be reallocated among the other Holders of
Partnership Units in accordance with their interests in the Partnership as determined by the General Partner, subject to the limitations of this Section 6.3A(vi).
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(vii)
|
Section 754
Adjustment. To the extent that an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or
Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Holder in complete liquidation of its interest in the Partnership, the amount of such adjustment to
the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Holders in accordance
with their interests in the Partnership as determined by the General Partner in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Holder(s) to whom such distribution was made in the event that Regulations
Section 1.704-1(b)(2)(iv)(m)(4) applies.
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(viii)
|
Curative
Allocations. The allocations set forth in Sections 6.3A(i), (ii), (iii), (iv), (v), (vi) and (vii) hereof (the “Regulatory
Allocations”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Sections 6.1 and 6.2 hereof, the Regulatory
Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Holders so that to the extent possible without violating the requirements giving rise to the Regulatory Allocations, the net
amount of such allocations of other items and the Regulatory Allocations to each Holder shall be equal to the net amount that would have been allocated to each such Holder if the Regulatory Allocations had not occurred.
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B.
|
Allocation of Excess Nonrecourse Liabilities. For purposes of determining a Holder’s proportional share of the “excess
nonrecourse liabilities” of the Partnership within the meaning of Regulations Section 1.752-3(a)(3), each Holder’s respective interest in Partnership profits shall be equal to such Holder’s interest in the Partnership as determined by the
General Partner.
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A.
|
In General. Except as otherwise provided in this Section 6.4, for income tax purposes under the Code and the Regulations,
each Partnership item of income, gain, loss and deduction (collectively, “Tax Items”) shall be allocated among the Holders in the same
manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 6.2 hereof.
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B.
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Section 704(c) Allocations. Notwithstanding Section 6.4A hereof, Tax Items with respect to Property that is contributed to
the Partnership with an initial Gross Asset Value that varies from its basis in the hands of the contributing Partner immediately preceding the date of contribution shall be allocated among the Holders for income tax purposes pursuant to
Regulations promulgated under Code Section 704(c) so as to take into account such variation. The Partnership shall account for such variation under any method approved under Code Section 704(c) and the applicable Regulations as chosen by
the General Partner. In the event that the Gross Asset Value of any Partnership asset is adjusted pursuant to subsection (b) of the definition of “Gross Asset Value” (provided in Article 1 hereof), subsequent allocations of Tax Items with
respect to such asset shall take account of the variation, if any, between the adjusted basis of such asset and its Gross Asset Value in the same manner as under Code Section 704(c) and the applicable Regulations and using the method chosen
by the General Partner. Allocations pursuant to this Section 6.4B are solely for purposes of Federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Partner’s Capital Account or
share of Net Income, Net Loss, or any other items or distributions pursuant to any provision of this Agreement.
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A.
|
Except as otherwise expressly provided in this Agreement, including any Partnership Unit Designation, all management powers
over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner shall have any right to participate in or exercise control or management power over the business and affairs
of the Partnership. No General Partner may be removed by the Partners, with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership
under applicable law or that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 3.2 and Section 7.3, and the
rights of any Holder of any Partnership Interest set forth in a Partnership Unit Designation, shall have full and exclusive power and authority, without the consent or approval of any Limited Partner, to do or authorize all things deemed
necessary or desirable by it to conduct the business and affairs of the Partnership, to exercise or direct the exercise of all of the powers of the Partnership and a general partner under the Act and this Agreement and to effectuate the
purposes of the Partnership including, without limitation:
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(1)
|
the making of any expenditures, the lending or
borrowing of money or selling of assets (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to the Holders in such amounts as will permit the General Partner to prevent
the imposition of any federal income tax on the General Partner (including, for this purpose, any excise tax pursuant to Code Section 4981), to make distributions to its stockholders and payments to any taxing authority sufficient to permit
the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including
the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any
obligations to conduct the activities of the Partnership;
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(2)
|
the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the Partnership;
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(3)
|
the taking of any and all acts to ensure that the Partnership will not be classified as a “publicly traded partnership”
under Code Section 7704;
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(4)
|
subject to Section 11.2 hereof, the acquisition, sale, transfer, exchange or other disposition of any, all or substantially
all of the assets (including the goodwill) of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any
time held by the Partnership) or the merger, consolidation, reorganization or other combination of the Partnership with or into another entity;
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(5)
|
the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the
Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of
this Agreement and on any terms that the General Partner sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending
of funds to other Persons (including, without limitation, the General Partner and/or the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an
equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
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(6)
|
the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
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(7)
|
the negotiation, execution and performance of any contracts, including leases (including ground leases), easements,
management agreements, rights of way and other property-related agreements, conveyances or other instruments to conduct the Partnership’s operations or implement the General Partner’s powers under this Agreement, including contracting with
contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation, as applicable, out of the Partnership’s assets;
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(8)
|
the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management,
investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
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(9)
|
the selection and dismissal of employees of the Partnership (if any) (including, without limitation, employees having titles
or offices such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership and the determination of their compensation and other terms of
employment or hiring;
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(10)
|
the maintenance of such insurance (including, without limitation, directors and officers insurance) for
the benefit of the Partnership and the Partners (including, without limitation, the General Partner);
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(11)
|
the formation of, or acquisition of an interest in, and the contribution of property to, any further
limited or general partnerships, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any
Subsidiary and any other Person in which the General Partner has an equity investment from time to time);
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(12)
|
the control of any matters affecting the rights and obligations of the Partnership, including the
settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of
suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of
dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
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(13)
|
the undertaking of any action in connection with the Partnership’s direct or indirect investment in any
Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
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|
(14)
|
the determination of the fair market value of any Partnership property distributed in kind using such
reasonable method of valuation as the General Partner may adopt; provided, however, that such methods are otherwise consistent with the requirements of this Agreement;
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|
(15)
|
the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and
indemnities relating to such Partner’s contribution of property or assets to the Partnership;
|
|
(16)
|
the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited
power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
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|
(17)
|
the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in
connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
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|
(18)
|
the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any
Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
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|
(19)
|
the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages,
deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, confessions of judgment or any other legal instruments or agreements in writing;
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|
(20)
|
the issuance of additional Partnership Units in connection with Capital Contributions by Additional
Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
|
|
(21)
|
an election to dissolve the Partnership pursuant to Section 13.1B hereof;
|
|
(22)
|
the distribution of cash to acquire Common Units held by a Limited Partner in connection with a
Redemption under Section 15.1 hereof;
|
|
(23)
|
an election to acquire Tendered Units in exchange for REIT Shares;
|
|
(24)
|
the maintenance of the Register from time to time to reflect accurately at all times the Capital
Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any
Substituted Limited Partner or otherwise, which shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in the Register otherwise is authorized by this Agreement;
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|
(25)
|
the registration of any class of securities of the Partnership under the Securities Act or the Exchange
Act, and the listing of any debt securities of the Partnership on any exchange; and
|
|
(26)
|
the taking of such other action, execution, acknowledgement, swearing to or delivering of such other
documents and instruments, and performance of any and all other acts that the General Partner deems necessary or appropriate such that the General Partner shall continue to satisfy the REIT Requirements and avoid any federal income or
excise tax liability.
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|
B.
|
Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof and subject to the rights of any Holder
of any Partnership Interest set forth in a Partnership Unit Designation, the General Partner is authorized to execute and deliver any affidavit, agreement, certificate, consent, instrument, notice, power of attorney, waiver or other writing
or document in the name and on behalf of the Partnership and to otherwise exercise any power of the General Partner under this Agreement and the Act on behalf of the Partnership without any further act, approval or vote of the Partners or
any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or
the execution of any such document or writing by an officer of the General Partner, in the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (1) the approval
thereof by the General Partner, in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or writing is necessary, advisable, appropriate, desirable or prudent to conduct
the business and affairs of the Partnership, exercise the powers of the Partnership under this Agreement and the Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement
in connection with the taking of such action or execution of such document or writing, and (3) the authority of such officer with respect thereto.
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|
C.
|
At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain
(i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
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|
D.
|
At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working
capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, determines from time to time.
|
|
E.
|
The determination as to any of the following matters, made by or at the direction of the General Partner consistent with
this Agreement and the Act, shall be final and conclusive and shall be binding upon the Partnership and every Limited Partner: the amount of assets at any time available for distribution or the redemption of Common Units; the amount and
timing of any distribution; any determination to redeem Tendered Units; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any
obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any Partner’s Capital Account, Adjusted Capital Account or Adjusted Capital Account Deficit; the amount of
Net Income, Net Loss or Depreciation for any period; any special allocations of Net Income or Net Loss pursuant to Sections 6.3 or 6.4; the Gross Asset Value of any Partnership asset; the Value of any REIT Share; the timing and amount of
any adjustment to the Adjustment Factor; any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or distributions, qualifications or terms or conditions of
redemption of any class or series of Partnership Interest; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Partnership or of any Partnership Interest; the number
of authorized or outstanding Units of any class or series; any matter relating to the acquisition, holding and disposition of any assets by the Partnership; or any other matter relating to the business and affairs of the Partnership or
required or permitted by applicable law, this Agreement or otherwise to be determined by the General Partner.
|
|
A.
|
The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement
without the Consent of the Class A Limited Partners, and may not, without limitation:
|
|
(1)
|
take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise
provided in this Agreement; or
|
|
(2)
|
perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other
liability except as provided herein or under the Act.
|
|
B.
|
Except as provided in Section 7.3C hereof, the General Partner shall not, without the prior Consent of the Partners, amend,
modify or terminate this Agreement.
|
|
C.
|
Notwithstanding Section 7.3B and 14.2 hereof but subject to the rights of any Holder of any Partnership Interest set forth
in a Partnership Unit Designation, the General Partner shall have the power, without the Consent of the Partners or the consent or approval of any Limited Partner or any other Person (including any Class A Limited Partner), to amend this
Agreement as may be required to facilitate or implement any of the following purposes:
|
|
(1)
|
to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any
Affiliate of the General Partner for the benefit of the Limited Partners;
|
|
(2)
|
to reflect the admission, substitution or withdrawal of Partners, the Transfer of any Partnership Interest or the
termination of the Partnership in accordance with this Agreement and to update the Register in connection with such admission, substitution, withdrawal or Transfer;
|
|
(3)
|
to reflect a change that is of an inconsequential nature or does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be
inconsistent with law or with the provisions of this Agreement;
|
|
(4)
|
to set forth or amend the designations, preferences, conversion and other rights, voting powers, restrictions, limitations
as to distributions, qualifications and terms and conditions of redemption of the Holders of any additional Partnership Interests issued pursuant to Article 4 (including any changes contemplated by Section 5.5 above);
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(5)
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to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a
Federal or state agency or contained in Federal or state law;
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(6)
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(a) to reflect such changes as are reasonably necessary for the General Partner to maintain its status as a REIT or to
satisfy the REIT Requirements or (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner and any Disregarded Entity with respect to the General Partner;
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(7)
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to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article 6 or the
manner in which Capital Accounts are adjusted, computed, or maintained;
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(8)
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to reflect the issuance of additional Partnership Interests in accordance with Section 4.2; and
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(9)
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to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the
Partnership or the General Partner and which does not violate Section 7.3D.
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D.
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Notwithstanding Sections 7.3B, 7.3C (other than as set forth below in this Section 7.3D) and 14.2 hereof, this Agreement
shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected thereby, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into Class
B Common Units (except as a result of the General Partner acquiring such Limited Partner Interest), (ii) adversely modify in any material respect the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive
the distributions to which such Partner is entitled pursuant to Article 5 hereof, (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 15.1 hereof, or amend or modify any related definitions
(except, in any case, as permitted pursuant to clause (6) of Section 7.3C hereof), (v) alter or modify Section 11.2 hereof (except as permitted pursuant to clause (11) of Section 7.3C hereof), or (vi) amend this Section 7.3D (except as
permitted pursuant to clause (6) of Section 7.3C hereof). Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment
or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner. For the avoidance of doubt, nothing in this Section 7.3D shall affect the General Partner’s
rights to cause the Partnership to issue additional Partnership Interests and to determine the designations, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or
terms or conditions of redemption of such Partnership Interests.
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A.
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The General Partner shall not be compensated for its services as General Partner of the Partnership except as provided in
this Agreement (including the provisions of Articles 5 and 6 hereof regarding distributions, payments and
allocations to which the General Partner may be entitled in its capacity as the General Partner).
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B.
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To the extent practicable, Administrative Expenses shall be billed directly to and paid by the Partnership and, subject to
Section 15.12 hereof, if and to the extent any reimbursements to the General Partner or any of its Affiliates by the Partnership pursuant to this Section 7.4 constitute gross income to such Person (as opposed to the repayment of advances
made by such Person on behalf of the Partnership), such amounts shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Partners' Capital
Accounts.
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A.
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The Partnership may lend or contribute funds to, and borrow funds from, Persons in which the Partnership has an equity
investment, and such Persons may borrow funds from, and lend or contribute funds to, the Partnership, on terms and conditions established in the sole and absolute discretion of the General Partner. The foregoing authority: (i) shall not
create any right or benefit in favor of any Person, and (ii) is subject to any applicable limitations under any applicable Federal securities laws.
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B.
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Except as provided in Section 7.5 hereof, the Partnership may transfer assets to joint ventures, limited liability
companies, partnerships, corporations, business trusts or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions consistent with this Agreement and applicable law.
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C.
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The General Partner and its Affiliates may sell, transfer or convey any property to, or purchase any property from, the
Partnership, directly or indirectly, on terms and conditions established by the General Partner in its sole and absolute discretion.
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A.
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To the fullest extent permitted by applicable law, the Partnership shall indemnify each Indemnitee from and against any and
all losses, claims, damages, liabilities, joint or several, expenses (including, without limitation, attorneys’ fees and other legal fees and expenses), judgments, fines, settlements and other amounts arising from any and all claims,
demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership (“Actions”)
as set forth in this Agreement in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise; provided,
however, that the Partnership shall not indemnify an Indemnitee (i) if the act or omission of the Indemnitee was material to the matter
giving rise to the Action and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) in the case of any criminal proceeding, if the Indemnitee had reasonable cause to believe that the act or omission
was unlawful; or (iii) for any transaction for which such Indemnitee actually received an improper personal benefit in violation or breach of any provision of this Agreement; and provided, further, that no payments pursuant to this Agreement shall be made by the
Partnership to indemnify or advance funds to any Indemnitee (x) with respect to any Action initiated or brought voluntarily by such Indemnitee (and not by way of defense) unless (I) approved or authorized by the General Partner or (II)
incurred to establish or enforce such Indemnitee’s right to indemnification under this Agreement, and (y) in connection with one or more Actions or claims brought by the Partnership or involving such Indemnitee if such Indemnitee is found
liable to the Partnership on any portion of any claim in any such Action.
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B.
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Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or
otherwise, for any indebtedness of the Partnership or any Subsidiary of the Partnership (including, without limitation, any indebtedness which the Partnership or any Subsidiary of the Partnership has assumed or taken subject to), and the
General Partner is hereby authorized and empowered, on behalf of the Partnership, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having
liability for any such indebtedness. It is the intention of this Section 7.7 that the Partnership indemnify each Indemnitee to the fullest extent permitted by law and this Agreement. The termination of any proceeding by judgment, order or
settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in Section 7.7A. The termination of any proceeding by conviction of an Indemnitee or upon a plea of nolo contendere or its equivalent by an Indemnitee, or an entry of an order of probation against an Indemnitee prior to judgment, does not
create a presumption that such Indemnitee acted in a manner contrary to that specified in Section 7.7A with respect to the subject matter of such proceeding. Any indemnification pursuant to this Section 7.7 shall be made only out of the
assets of the Partnership, and neither the General Partner nor any other Holder shall have any obligation to contribute to the capital of the Partnership or otherwise provide funds to enable the Partnership to fund its obligations under
this Section 7.7.
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C.
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To the fullest extent permitted by law, expenses incurred by an Indemnitee who is a party to a proceeding or otherwise
subject to or the focus of or is involved in any Action shall be paid or reimbursed by the Partnership as incurred by the Indemnitee in advance of the final disposition of the Action upon receipt by the Partnership of (i) a written
affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in Section 7.7A has been met, and (ii) a written undertaking by or on behalf of
the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.
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D.
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The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee or any
other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the
heirs, successors, assigns and administrators of the Indemnitee unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to which such Indemnitee is indemnified.
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E.
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The Partnership may, but shall not be obligated to, purchase and maintain insurance, on behalf of any of the Indemnitees and
such other Persons as the General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership’s activities, regardless of whether the
Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
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F.
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Any liabilities which an Indemnitee incurs as a result of acting on behalf of the Partnership or the General Partner
(whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of any employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed
by the IRS, penalties assessed by the U.S. Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be
treated as liabilities or judgments or fines under this Section 7.7, unless such liabilities arise as a result of (i) an act or omission of such Indemnitee that was material to the matter giving rise to the Action and either was committed
in bad faith or was the result of active and deliberate dishonesty; (ii) in the case of any criminal proceeding, an act or omission that such Indemnitee had reasonable cause to believe was unlawful, or (iii) any transaction in which such
Indemnitee actually received an improper personal benefit in violation or breach of any provision of this Agreement.
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G.
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In no event may an Indemnitee subject any of the Holders to personal liability by reason of the indemnification provisions
set forth in this Agreement.
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H.
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An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an
interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
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I.
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The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and
administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 7.7 or any provision hereof shall be prospective only and shall not in any way affect
the limitations on the Partnership’s liability to any Indemnitee under this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole
or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
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J.
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Any obligation or liability whatsoever of the General Partner which may arise at any time under this Agreement or any other
instrument, transaction, or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the General Partner or the Partnership only. No such obligation or liability shall be personally binding upon, nor shall resort
for the enforcement thereof be had to, any of the General Partner’s directors, stockholders, officers, employees, or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise.
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K.
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It is the intent of the parties that any amounts paid by the Partnership to the General Partner pursuant to this Section 7.7
shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts.
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A.
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To the maximum extent permitted under the Act, the only duties that the General Partner owes to the Partnership, any Partner
or any other Person (including any creditor of any Partner or assignee of any Partnership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the
obligation of good faith and fair dealing, and to act with the fiduciary duties of care and loyalty which have been, in accordance with the Act, modified as set forth in this Section 7.8. The General Partner, in its capacity as such, shall
have no other duty, fiduciary or otherwise, to the Partnership, any Partner or any other Person (including any creditor of any Partner or any assignee of Partnership Interest). The provisions of this Agreement other than this Section 7.8
shall create contractual obligations of the General Partner only, and no such provision shall be interpreted to expand or modify the fiduciary duties of the General Partner under the Act.
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B.
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The Limited Partners agree that (i) the General Partner is acting for the benefit of the Partnership, the Limited Partners
and the General Partner’s stockholders collectively and (ii) in the event of a conflict between the interests of the Partnership or any Partner, on the one hand, and the separate interests of the General Partner or its stockholders, on the
other hand, the General Partner may give priority to the separate interests of the General Partner or the stockholders of the General Partner (including, without limitation, with respect to tax consequences to Limited Partners, Assignees or
the General Partner’s stockholders). In the event of such a conflict, any action or failure to act on the part of the General Partner that gives priority to the separate interests of the General Partner or its stockholders that does not
violate the contract rights of the Limited Partners expressly set forth in this Agreement does not violate the duty of loyalty or any other duty owed by the General Partner to the Partnership and/or the Partners or violate the obligation of
good faith and fair dealing.
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C.
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Subject to its obligations and duties as General Partner set forth in this Agreement and applicable law, the General Partner
may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents. The General Partner shall not be responsible to the Partnership
or any Partner for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.
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D.
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Any obligation or liability whatsoever of the General Partner which may arise at any time under this Agreement or any other
instrument, transaction, or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the General Partner or the Partnership only. No such obligation or liability shall be personally binding upon, nor shall resort
for the enforcement thereof be had to, any of the General Partner’s directors, stockholders, officers, employees, or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise. Notwithstanding
anything to the contrary set forth in this Agreement, none of the directors or officers of the General Partner shall be directly liable or accountable in damages or otherwise to the Partnership, any Partners, or any Assignees by reason of
their service as such. This Agreement is executed by the officers of the General Partner solely as officers of the same and not in their own individual capacities.
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E.
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Notwithstanding anything herein to the contrary, except for liability for fraud, willful misconduct or gross negligence on
the part of the General Partner, or pursuant to any express indemnities given to the Partnership by the General Partner pursuant to any other written instrument, the General Partner shall not have any personal liability whatsoever, to the
Partnership or to the other Partners, for any action or omission taken in its capacity as the General Partner or for the debts or liabilities of the Partnership or the Partnership’s obligations hereunder, except pursuant to Section 15.1.
Without limitation of the foregoing, and except for liability for fraud, willful misconduct or gross negligence, or pursuant to Section 15.1 or any such express indemnity, no property or assets of the General Partner, other than its
interest in the Partnership, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Partner(s) and arising out of, or in connection with,
this Agreement.
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F.
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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 of any action taken (or not taken) by it, and any action or failure to act on the part of the General Partner that does not take into account any such tax consequences that does not result in a
violation of the contract rights of the Limited Partners expressly set forth in this Agreement does not violate the duty of loyalty or any other duty owed by the General Partner to the Partnership and/or the Partners or violate the
obligation of good faith and fair dealing. The General Partner and the Partnership shall not have any liability to any Partner under any circumstances as a result of any income tax liability incurred by such Partner as a result of an action
(or inaction) by the General Partner pursuant to its authority under this Agreement.
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G.
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Whenever in this Agreement the General Partner is permitted or required to make a decision in its “sole and absolute
discretion,” “sole discretion” or “discretion” or under a grant of similar authority or latitude, the General Partner shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest or factors affecting the Partnership or the Partners or any of them, and any such decision or determination made by the General Partner that does not consider such interests or
factors affecting the Partnership of the Partners, or any of them, that does not result in a violation of the contract rights of the Limited Partners expressly set forth in this Agreement, does not violate the duty of loyalty or any other
duty owed by the General Partner to the Partnership and/or the Partners or violate the obligation of good faith and fair dealing. If any question should arise with respect to the operation of the Partnership, which is not otherwise
specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the General Partner is hereby authorized to make a final determination with respect to any such question and to interpret this
Agreement in such a manner as it shall deem, in its sole discretion, to be fair and equitable, and its determination and interpretations so made shall be final and binding on all parties. The General Partner’s “sole and absolute
discretion,” “sole discretion” and “discretion” under this Agreement shall be exercised consistently with the duty of care and the obligation of good faith and fair dealing under the Act (as modified by the Agreement).
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H.
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The General Partner may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. In
performing its duties under this Agreement and the Act, the General Partner shall be entitled to rely on the provisions of this Agreement and on any information, opinion, report or statement, including any financial statement or other
financial data or the records or books of account of the Partnership or any subsidiary of the Partnership, prepared or presented by any officer, employee or agent of the General Partner, any agent of the Partnership or any such subsidiary,
or by any lawyer, certified public accountant, appraiser or other Person engaged by the General Partner, the Partnership or any such subsidiary as to any matter within such Person’s professional or expert competence, and any act taken or
omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the General Partner reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed
to have been done or omitted in good faith and in accordance with such information, opinion, report or statement.
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I.
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Notwithstanding any other provision of this Agreement or the Act, any action of the General Partner on behalf of the
Partnership or any decision of the General Partner to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the
General Partner to continue to qualify as a REIT, (ii) for the General Partner otherwise to satisfy the REIT Requirements, (iii) for the General Partner to avoid incurring any taxes under Code Section 857 or Code Section 4981, or (iv) for
any General Partner Affiliate to continue to qualify as a “qualified REIT subsidiary”(within the meaning of Code Section 856(i)(2)) or “taxable REIT subsidiary”(within the meaning of Code Section 856(l)), is expressly authorized under this
Agreement and is deemed approved by all of the Limited Partners and does not violate the duty of loyalty or any other duty or obligation, fiduciary or otherwise, of the General Partner to the Partnership or any other Partner.
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J.
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Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in
any way affect the limitations on the General Partner’s and its officers’ and directors’ liability to the Partnership and the Limited Partners under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal
with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
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A.
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In addition to other rights provided by this Agreement or by the Act, and except as limited by Section 8.5C hereof, the
General Partner shall deliver to each Limited Partner a copy of any information mailed or electronically delivered to all of the common stockholders of the General Partner as soon as practicable after such mailing.
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B.
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The Partnership shall notify any Limited Partner that is a Qualifying Party, on request, of the then current Adjustment
Factor and any change made to the Adjustment Factor shall be set forth in the quarterly report required by Section 9.3B hereof immediately following the date such change becomes effective.
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C.
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Notwithstanding any other provision of this Section 8.5, the General Partner may keep confidential from the Limited Partners
(or any of them), for such period of time as the General Partner determines in its sole and absolute discretion to be reasonable, any information that (i) the General Partner believes to be in the nature of trade secrets or other
information the disclosure of which the General Partner in good faith believes is not in the best interests of the Partnership or the General Partner or (ii) the Partnership or the General Partner is required by law or by agreement to keep
confidential.
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D.
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Upon written request by any Limited Partner, the General Partner shall cause the ownership of Partnership Units by such
Limited Partner to be evidenced by a certificate for units in such form as the General Partner may determine with respect to any class of Partnership Units issued from time to time under this Agreement. Any officer of the General Partner
may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Partnership alleged to have been lost, destroyed, stolen or mutilated, upon the making of an affidavit of that
fact by the Person claiming the certificate to be lost, destroyed, stolen or mutilated. Unless otherwise determined by an officer of the General Partner, the owner of such lost, destroyed, stolen or mutilated certificate or certificates,
or his or her legal representative, shall be required, as a condition precedent to the issuance of a new certificate or certificates, to give the Partnership a bond in such sums as the General Partner may direct as indemnity against any
claim that may be made against the Partnership.
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A.
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The General Partner shall keep or cause to be kept at the principal place of business of the Partnership those records and
documents, if any, required to be maintained by the Act and any other books and records deemed by the General Partner to be appropriate with respect to the Partnership’s business, including, without limitation, all books and records
necessary to provide to the Limited Partners any information, lists and copies of documents required to be provided pursuant to Section 8.5A, Section 9.3 or Article 13 hereof. Any records maintained by or on behalf of the Partnership in the
regular course of its business may be kept on any information storage device, provided that the records so maintained are convertible into clearly legible written form within a reasonable period of time.
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B.
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The books of the Partnership shall be maintained, for financial and tax reporting purposes, on an accrual basis in
accordance with generally accepted accounting principles, or on such other basis as the General Partner determines to be necessary or appropriate. To the extent permitted by sound accounting practices and principles, the Partnership and the
General Partner may operate with integrated or consolidated accounting records, operations and principles.
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A.
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As soon as practicable, but in no event later than one hundred five (105) days after the close of each Partnership Year, the
General Partner shall cause to be mailed to each Limited Partner of record as of the close of the Partnership Year, 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 Partnership Year, presented in accordance with generally accepted accounting principles, such statements to be audited by a nationally recognized firm of independent public accountants selected by
the General Partner.
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B.
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As soon as practicable, but in no event later than sixty (60) days after the close of each calendar quarter (except the last
calendar quarter of each year), the General Partner shall cause to be mailed to each Limited Partner of record as of the last day of the calendar quarter, a report containing unaudited financial statements of the Partnership for such
calendar quarter, or of the General Partner if such statements are prepared solely on a consolidated basis with the General Partner, and such other information as may be required by applicable law or regulation or as the General Partner
determines to be appropriate.
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C.
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The General Partner shall have satisfied its obligations under Section 9.3A and Section 9.3B by posting or making available
the reports required by this Section 9.3 on the website maintained from time to time by the Partnership or the General Partner, provided that such reports are able to be printed or downloaded from such website.
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A.
|
Effective as of the date that the BBA Partnership Audit Rules are first applicable to the Partnership, the General Partner
shall be designated the “partnership representative” as defined in Section 6223 of the Code, as amended by the Budget Act (the “Partnership Representative”) and the Partnership Representative from time to time shall name the designated
individual under Prop. Reg. § 301.6223-1(b)(3)(i) (or comparable concept or position under other applicable law) for each of the Partnership’s taxable years, and shall have the power to remove any designated individual. The Partnership
Representative is authorized and required to represent the Partnership (at the Partnership’s expense) in all disputes, controversies or proceedings with the Internal Revenue Service, and, in its sole discretion, is authorized to make any
available election with respect to the BBA Partnership Audit Rules and take any action it deems necessary or appropriate to comply with the requirements of the Code and to conduct the Partnership’s affairs with respect to the BBA
Partnership Audit Rules. Each Partner and former Partner will cooperate fully with the Partnership Representative with respect to any such disputes, controversies or proceedings with the Internal Revenue Service, including providing the
Partnership Representative with any information reasonably requested to comply with and make elections under the BBA Partnership Audit Rules. The Partnership Representative may be replaced from time to time by the General Partner.
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B.
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If the Partnership Representative determines in its sole discretion, (i) the Partnership Representative may cause the
Partnership to elect out of the BBA Partnership Audit Rules under Code Section 6221(b) (as amended by the Budget Act), (ii) the Partnership Representative may cause the Partnership to push out the final partnership adjustments to the
Partners as described in Code Section 6226(a) (as amended by the Budget Act), or (iii) the Partnership Representative may cause the liability to be paid at the Partnership level.
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C.
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Each Partner agrees to indemnify and hold harmless the Partnership from and against any liability with respect to such
Partner’s proportionate share of any tax liability (including related interest and penalties) imposed at the Partnership level in connection with a Partnership-level tax audit of a taxable period during which such Partner was a Partner of
the Partnership, regardless of whether such Partner is a partner of the Partnership in the year in which such tax is actually imposed on the Partnership or becomes payable by the Partnership as a result of such audit. The General Partner
shall reasonably determine a Partner’s proportionate share of any such tax liability, taking into account the relevant facts and any information provided by such Partner that would reduce such liability. The Partnership may offset a
Partner’s share of any such tax liabilities against any Distribution. If not offset against a Distribution, the General Partner may deliver a written demand for payment to such Partner to pay the Partnership in immediately available funds
the amount that the General Partner determines is needed by the Partnership to discharge those obligations and to otherwise pay and reimburse, indemnify and hold the Partnership harmless with respect to such tax liability. If such a Partner
fails to timely make the full amount of the required payment to the Partnership as directed by the General Partner, such Partner shall pay the Partnership interest at the Default Rate, on the amount under this Section 10.3 that such Partner
fails to timely pay. Any amount paid by (or any Distribution retained from) a Partner under this Section 10.3 will not be treated as a Capital Contribution or otherwise added to the Partner’s Capital Account, except to the extent (if at
all) the General Partner determines that characterization or treatment is necessary or appropriate.
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D.
|
A Partner’s cooperation and indemnification obligations pursuant to this Section 10.3 shall survive the termination of a
Partner’s participation in the Partnership and the termination, dissolution and winding up of the Partnership. A Partner’s obligations under this Section 10.3 will survive the liquidation, termination or other Transfer of all or any
portion of the Partner’s Units and the dissolution, liquidation, winding up and termination of the Partnership. The Partnership, the General Partner and the other Partners may pursue and enforce all rights and remedies that they may have
against a Partner (including any former Partner) under this Agreement, including instituting a proceeding to collect any payments they are owed under this Section 10.3 with interest at the Default Rate, and exercising any other remedies
they may have under this Agreement or applicable law.
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E.
|
The Partners specifically acknowledge, without limiting the general applicability of this Section 10.3, that the General
Partner or the Partnership Representative shall not be liable, responsible or accountable in damages or otherwise to the Partnership or any Partner with respect to any action taken by him in this capacity. All out of pocket expenses
incurred by the General Partner or the Partnership Representative in this capacity shall be considered expenses of the Partnership for which the General Partner or the Partnership Representative shall be entitled to full reimbursement.
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A.
|
No part of the interest of a Partner shall be subject to the claims of any creditor, to any spouse for alimony or support,
or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement.
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B.
|
No Partnership Interest shall be Transferred, in whole or in part, except in accordance with the terms and conditions set
forth in this Article 11. Any Transfer or purported Transfer of a Partnership Interest not made in accordance with this Article 11 shall be null and void ab initio.
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C.
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No Transfer of any Partnership Interest may be made to a lender to the Partnership or any Person who is related (within the
meaning of Section 1.752-4(b) of the Regulations) to any lender to the Partnership whose loan constitutes a Nonrecourse Liability, without the Consent of the General Partner; provided, however, that, as a condition to such Consent, the lender may be required to
enter into an arrangement with the Partnership and the General Partner to redeem or exchange for the REIT Shares Amount any Partnership Units in which a security interest is held by such lender 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 (provided that, for purpose of calculating the REIT Shares Amount in this Section 11.1C, “Tendered Units” shall mean all such Partnership Units in which a security interest is held by such lender).
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A.
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Subject to the rights of any Holder of any Partnership Interest set forth in a Partnership Unit Designation, the General
Partner may not Transfer all or any portion of its Partnership Interest (whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise) unless: (i) coincident with such Transfer, the transferee is admitted as a
General Partner pursuant to Section 12.1 hereof; (ii) the transferee assumes, by operation of law or express agreement, all of the obligations of the transferor General Partner under this Agreement with respect to such Transferred
Partnership Interest; and (iii) the transferee has executed such instruments as may be necessary to effectuate such admission and to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement with
respect to the Partnership Interest so acquired and the admission of such transferee as a General Partner.
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B.
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Except in connection with Transfers permitted in this Article 11 and as otherwise provided in Section 12.1 in connection
with the Transfer of the General Partner’s entire Partnership Interest, the General Partner may not voluntarily withdraw as a general partner of the Partnership without the Consent of the Class A Limited Partners.
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A.
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General. Except as
provided in Section 11.1C hereof, each Limited Partner shall have the right to Transfer all or any portion of its Partnership Interest to any Person, without the Consent of the General Partner but subject to the provisions of Section 11.4
hereof and to satisfaction of each of the following conditions:
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(1)
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General Partner Right of
First Refusal. The transferor Limited Partner (or the Partner’s estate in the event of the Partner’s death) shall give written notice of the proposed Transfer to the General Partner, which notice shall state (i) the identity and
address of the proposed transferee and (ii) the amount and type of consideration proposed to be received for the Transferred Partnership Units. The General Partner shall have ten (10) Business Days upon which to give the transferor Limited
Partner notice of its election to acquire the Partnership Units on the terms set forth in such notice. If it so elects, it shall purchase the Partnership Units on such terms within ten (10) Business Days after giving notice of such
election; provided, however,
that in the event that the proposed terms involve a purchase for cash, the General Partner may at its election deliver in lieu of all or any portion of such cash a note from the General Partner payable to the transferor Limited Partner at a
date as soon as reasonably practicable, but in no event later than one hundred eighty (180) days after such purchase, and bearing interest at an annual rate equal to the total dividends declared with respect to one (1) REIT Share for the
twelve (12) preceding months of the General Partner, divided by the Value as of the closing of such purchase; and provided, further, that such closing may be deferred to the extent necessary to effect compliance with the Hart-Scott-Rodino Act, if applicable, and
any other applicable requirements of law. If it does not so elect, the transferor Limited Partner may Transfer such Partnership Units to a third party, on terms no more favorable to the transferee than the proposed terms, subject to the
other conditions of this Section 11.3.
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(2)
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Accredited Investor.
Any Transfer of a Partnership Interest shall be made only to a single Accredited Investor; provided, however, that, for such purposes, all Accredited Investors that are Affiliates, or that comprise investment accounts or funds managed by a single Accredited
Investor and its Affiliates, shall be considered together to be a single Accredited Investor; and provided, further, that each Transfer meeting the minimum Transfer restriction of Section 11.3A(4) hereof may be to a separate Accredited Investor.
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(3)
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Opinion of Counsel.
The transferor Limited Partner shall deliver or cause to be delivered to the General Partner an opinion of counsel reasonably satisfactory to it to the effect that the proposed Transfer may be effected without registration under the
Securities Act and will not otherwise violate the registration provisions of the Securities Act and the regulations promulgated thereunder or violate any state securities laws or regulations applicable to the Partnership or the Partnership
Interests Transferred; provided, however,
that the General Partner may, in its sole discretion, waive this condition upon the request of the transferor Limited Partner. If, in the opinion of such counsel, such Transfer would require the filing of a registration statement under the
Securities Act or would otherwise violate any Federal or state securities laws or regulations applicable to the Partnership or the Partnership Units, the General Partner may prohibit any Transfer otherwise permitted under this Section 11.3
by a Limited Partner of Partnership Interests.
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(4)
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Minimum Transfer
Restriction. Any Transferring Partner must Transfer not less than the lesser of (i) five hundred (500) Partnership Units or (ii) all of the remaining Partnership Units owned by such Transferring Partner, without, in each case, the
Consent of the General Partner; provided, however, that, for purposes of determining compliance with the foregoing restriction, all Partnership Units owned by Affiliates of a Limited Partner shall be considered to be owned by such Limited Partner.
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(5)
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Exception for Permitted
Transfers. The conditions of Sections 11.3A(1) through 11.3A(4) hereof shall not apply in the case of a Transfer of all or part of a Limited Partner’s Interest to any Family Member (including a Transfer by a Family Member that is
an inter vivos or testamentary trust (whether revocable or irrevocable) to a Family Member that is a beneficiary of such trust), any Charity, any Controlled Entity or any Affiliate (any Transfer permitted by this paragraph is hereinafter
referred to as a “Permitted Transfer”).
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B.
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Incapacity. If a
Limited Partner is subject to Incapacity, the executor, administrator, trustee, committee, guardian, conservator or receiver of such Limited Partner’s estate shall have all the rights of a Limited Partner, but not more rights than those
enjoyed by other Limited Partners, for the purpose of settling or managing the estate, and such power as the Incapacitated Limited Partner possessed to Transfer all or any part of its interest in the Partnership. The Incapacity of a Limited
Partner, in and of itself, shall not dissolve or terminate the Partnership.
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C.
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Adverse Tax Consequences.
Notwithstanding anything to the contrary in this Agreement, the General Partner shall have the authority (but shall not be required) to take any steps it determines are necessary or appropriate in its sole and absolute discretion to prevent
the Partnership from being taxable as a corporation for Federal income tax purposes. In furtherance of the foregoing, except with the Consent of the General Partner, no Transfer by a Limited Partner of its Partnership Interests (including
any Redemption, any acquisition of Partnership Units by the General Partner or any acquisition of Partnership Units by the Partnership) may be made to or by any Person if such Transfer could (i) result in the Partnership being treated as an
association taxable as a publicly traded partnership or corporation; (ii) be treated as effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Code
Section 7704 and the Regulations promulgated thereunder, (iii) result in the Partnership being unable to qualify for one or more of the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published
by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “Safe Harbors”) or (iv) based on the advice of counsel to the Partnership or the General Partner, 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 Code Section 857 or Code Section 4981.
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A.
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No Limited Partner shall have the right to substitute a transferee (including any transferees pursuant to Transfers
permitted by Section 11.3 hereof) as a Limited Partner in its place. A transferee of a Limited Partner Interest may be admitted as a Substituted Limited Partner only with the Consent of the General Partner. The failure or refusal by the
General Partner to permit a transferee of any such interests to become a Substituted Limited Partner shall not give rise to any cause of action against the Partnership or the General Partner. Subject to the foregoing, an Assignee shall not
be admitted as a Substituted Limited Partner until and unless it furnishes to the General Partner (i) evidence of acceptance, in form and substance satisfactory to the General Partner, of all the terms, conditions and applicable obligations
of this Agreement, (ii) a counterpart signature page to this Agreement executed by such Assignee and (iii) such other documents and instruments as the General Partner may require in its sole discretion to effect such Assignee’s admission as
a Substituted Limited Partner.
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B.
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Concurrently with, and as evidence of, the admission of a Substituted Limited Partner, the General Partner shall update the
Register and the books and records of the Partnership to reflect the name, address and number and class and/or series of Partnership Units of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address and
number of Partnership Units of the predecessor of such Substituted Limited Partner.
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C.
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A transferee who has been admitted as a Substituted Limited Partner in accordance with this Article 11 shall have all the
rights and powers and be subject to all the restrictions and liabilities of a Limited Partner under this Agreement.
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A.
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No Limited Partner may withdraw from the Partnership other than as a result of: (i) a Permitted Transfer of all of such
Limited Partner’s Partnership Interest in accordance with this Article 11 with respect to which the transferee becomes a Substituted Limited Partner; (ii) pursuant to a redemption (or acquisition by the General Partner) of all of its
Partnership Interest pursuant to a Redemption under Section 15.1 hereof and/or pursuant to any Partnership Unit Designation or (iii) the acquisition by the General Partner of all of such Limited Partner’s Partnership Interest, whether or
not pursuant to Section 15.1B hereof.
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B.
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Any Limited Partner who shall Transfer all of its Partnership Units in a Transfer (i) permitted pursuant to this Article 11
where such transferee was admitted as a Substituted Limited Partner, (ii) pursuant to the exercise of its rights to effect a redemption of all of its Partnership Units pursuant to a Redemption under Section 15.1 hereof and/or pursuant to
any Partnership Unit Designation or (iii) to the General Partner, whether or not pursuant to Section 15.1B hereof, shall cease to be a Limited Partner.
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C.
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If any Partnership Unit is Transferred in compliance with the provisions of this Article 11, or is redeemed by the
Partnership, or acquired by the General Partner pursuant to Section 15.1 hereof, on any day other than the first day of a Partnership Year, then Net Income, Net Losses, each item thereof and all other items of income, gain, loss, deduction
and credit attributable to such Partnership Unit for such Partnership Year shall be allocated to the transferor Partner or the Tendering Party (as the case may be) and, in the case of a Transfer other than a Redemption, to the transferee
Partner, by taking into account their varying interests during the Partnership Year in accordance with Code Section 706(d), using the “interim closing of the books” method or another permissible method selected by the General Partner in its
sole and absolute discretion. Solely for purposes of making such allocations, unless the General Partner decides in its sole and absolute discretion to use another method permitted under the Code, each of such items for the calendar month
in which a Transfer occurs shall be allocated to the transferee Partner and none of such items for the calendar month in which a Transfer or a Redemption occurs shall be allocated to the transferor Partner, or the Tendering Party (as the
case may be) if such Transfer occurs on or before the fifteenth (15th) day of the month, otherwise such items shall be allocated to the transferor. All distributions of Available Cash attributable to such Partnership Unit with respect to
which the Partnership Record Date is before the date of such Transfer, assignment or Redemption shall be made to the transferor Partner or the Tendering Party (as the case may be) and, in the case of a Transfer other than a Redemption, all
distributions of Available Cash thereafter attributable to such Partnership Unit shall be made to the transferee Partner.
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D.
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In addition to any other restrictions on Transfer herein contained, in no event may any Transfer of a Partnership Interest
by any Partner (including any Redemption, any acquisition of Partnership Units by the General Partner or any other acquisition of Partnership Units by the Partnership) be made: (i) to any Person or entity who lacks the legal right, power
or capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii) except with the Consent of the General Partner, of any component portion of a Partnership Interest, such as the Capital Account, or rights to
distributions, separate and apart from all other components of a Partnership Interest; (iv) in the event that such Transfer could cause either the General Partner or any General Partner Affiliate to cease to comply with the REIT
Requirements or to cease to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)); (v) if such Transfer could, based on the advice of legal counsel to the Partnership or the General Partner, cause the
Partnership to cease to be classified as a partnership for federal income tax purposes (except as a result of the Redemption (or acquisition by the General Partner) of all Common Units held by all Limited Partners); (vi) if such Transfer
would cause the Partnership to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in ERISA Section 3(14)) or a “disqualified person” (as defined in Code Section 4975(c)); (vii)
if such Transfer could, based on the advice of legal counsel to the Partnership or the General Partner, cause any portion of the assets of the Partnership to constitute assets of any employee benefit plan pursuant to Department of Labor
Regulations Section 2510.3-101; (viii) if such Transfer requires the registration of such Partnership Interest pursuant to any applicable Federal or state securities laws; (ix) except with the Consent of the General Partner, if such
Transfer could (1) be treated as effectuated through an “established securities market” or a “secondary market” (or the substantial equivalent thereof) within the meaning of Section 7704 of the Code and the Regulations promulgated
thereunder, (2) cause the Partnership to become a “publicly traded partnership,” as such term is defined in Sections 469(k)(2) or 7704(b) of the Code, (3) be in violation of Section 3.4C(iii) or (4) cause the Partnership to fail one or more
of the Safe Harbors; (x) if such Transfer causes the Partnership (as opposed to the General Partner) to become a reporting company under the Exchange Act; or (xii) if such Transfer subjects the Partnership to regulation under the Investment
Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as amended. The General Partner shall, in its sole discretion, be permitted to take all action necessary to prevent the Partnership from being classified as a “publicly
traded partnership” under Code Section 7704.
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E.
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Transfers pursuant to this Article 11 may only be made on the first day of a fiscal quarter of the Partnership, unless the
General Partner otherwise Consents.
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A.
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A Person (other than an existing Partner) who makes a Capital Contribution to the Partnership in exchange for Partnership
Units and in accordance with this Agreement shall be admitted to the Partnership as an Additional Limited Partner only upon furnishing to the General Partner (i) evidence of acceptance, in form and substance satisfactory to the General
Partner, of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 2.4 hereof, (ii) a counterpart signature page to this Agreement executed by such Person and (iii) such
other documents or instruments as the General Partner may require in its sole and absolute discretion in order to effect such Person’s admission as an Additional Limited Partner. Concurrently with, and as evidence of, the admission of an
Additional Limited Partner, the General Partner shall update the Register and the books and records of the Partnership to reflect the name, address and number and classes and/or series of Partnership Units of such Additional Limited
Partner.
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B.
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Notwithstanding anything to the contrary in this Section 12.2, no Person shall be admitted as an Additional Limited Partner
without the Consent of the General Partner. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded on the books and records of the Partnership,
following the Consent of the General Partner to such admission and the satisfaction of all the conditions set forth in Section 12.2A.
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C.
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If any Additional Limited Partner is admitted to the Partnership on any day other than the first day of a Partnership Year,
then Net Income, Net Losses, each item thereof and all other items of income, gain, loss, deduction and credit allocable among Holders for such Partnership Year shall be allocated among such Additional Limited Partner and all other Holders
by taking into account their varying interests during the Partnership Year in accordance with Code Section 706(d), using the “interim closing of the books” method or another permissible method selected by the General Partner. Solely for
purposes of making such allocations, each of such items for the calendar month in which an admission of any Additional Limited Partner occurs shall be allocated among all the Holders including such Additional Limited Partner, in accordance
with the principles described in Section 11.6C hereof. All distributions of Available Cash with respect to which the Partnership Record Date is before the date of such admission shall be made solely to Partners and Assignees other than the
Additional Limited Partner, and all distributions of Available Cash thereafter shall be made to all the Partners and Assignees including such Additional Limited Partner.
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D.
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Any Additional Limited Partner admitted to the Partnership that is an Affiliate of the General Partner shall be deemed to be
a “General Partner Affiliate” hereunder and shall be reflected as such on the Register and the books and records of the Partnership.
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A.
|
an event of withdrawal, as defined in Section 10-402(2) – (9) of the Act (including, without limitation, bankruptcy), or the
withdrawal in violation of this Agreement, of the last remaining General Partner unless, within ninety (90) days after the withdrawal, a Majority in Interest of the Partners remaining agree in writing, in their sole and absolute discretion,
to continue the Partnership and to the appointment, effective as of the date of such withdrawal, of a successor General Partner;
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B.
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an election to dissolve the Partnership made by the General Partner in its sole and absolute discretion, with or without the
Consent of the Partners;
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C.
|
entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Act; or
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D.
|
the Redemption or other acquisition by the Partnership or the General Partner of all Partnership Units other than
Partnership Units held by the General Partner.
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A.
|
Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs
in an orderly manner, liquidating its assets and satisfying the claims of its creditors and the Holders. After the occurrence of a Liquidating Event, no Holder shall take any action that is inconsistent with, or not necessary to or
appropriate for, the winding up of the Partnership’s business and affairs. The General Partner (or, in the event that there is no remaining General Partner or the General Partner has dissolved, become bankrupt within the meaning of the Act
or ceased to operate, any Person elected by a Majority in Interest of the Partners (the General Partner or such other Person being referred to herein as the “Liquidator”)) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall take full account of the Partnership’s liabilities and property, and the Partnership property shall
be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the General Partner, include shares of stock in the General Partner) shall be applied and
distributed in the following order:
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(1)
|
First, to the satisfaction of all of the Partnership’s debts and liabilities to creditors other than the Holders (whether by
payment or the making of reasonable provision for payment thereof);
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(2)
|
Second, to the satisfaction of all of the Partnership’s debts and liabilities to the General Partner (whether by payment or
the making of reasonable provision for payment thereof), including, but not limited to, amounts due as reimbursements under Section 7.4 hereof;
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(3)
|
Third, to the satisfaction of all of the Partnership’s debts and liabilities to the other Holders (whether by payment or the
making of reasonable provision for payment thereof); and
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(4)
|
Fourth, to the Partners in accordance with their positive Capital Account balances, determined after taking into account all
Capital Account adjustments for all prior periods and the Partnership taxable year during which the liquidation occurs (other than those made as a result of the liquidating distribution set forth in this Section 13.2A(4)).
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B.
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Notwithstanding the provisions of Section 13.2A hereof that require liquidation of the assets of the Partnership, but
subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership, the Liquidator determines that an immediate sale of part or all of the Partnership’s assets would be impractical or would cause undue
loss to the Holders, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Partnership (including to those Holders as
creditors) and/or distribute to the Holders, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2A hereof, undivided interests in such Partnership assets as the Liquidator deems not suitable for
liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Holders, and shall be subject to such conditions relating to the
disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any
property distributed in kind using such reasonable method of valuation as it may adopt.
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C.
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If any Holder has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and
allocations for all taxable years, including the year during which such liquidation occurs), except as otherwise agreed to by such Holder, such Holder shall have no obligation to make any contribution to the capital of the Partnership with
respect to such deficit, and such deficit shall not be considered a debt owed to the Partnership or to any other Person for any purpose whatsoever.
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D.
|
In the sole and absolute discretion of the General Partner or the Liquidator, a pro rata portion of the distributions that
would otherwise be made to the Holders pursuant to this Article 13 may be:
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(1)
|
distributed to a trust established for the benefit of the General Partner and the Holders for the purpose of liquidating
Partnership assets, collecting amounts owed to the Partnership, and paying any contingent or unforeseen liabilities or obligations of the Partnership or of the General Partner arising out of or in connection with the Partnership and/or
Partnership activities. The assets of any such trust shall be distributed to the Holders, from time to time, in the discretion of the General Partner, in the same proportions and amounts as would otherwise have been distributed to the
Holders pursuant to this Agreement; or
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(2)
|
withheld or escrowed to provide a reasonable reserve for Partnership liabilities (contingent or otherwise) and to reflect
the unrealized portion of any installment obligations owed to the Partnership, provided that such withheld or escrowed amounts shall be distributed to the Holders in the manner and order of priority set forth in Section 13.2A hereof as soon
as practicable.
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E.
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The provisions of Section 7.8 hereof shall apply to any Liquidator appointed pursuant to this Article 13 as though the
Liquidator were the General Partner of the Partnership.
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A.
|
Meetings of the Partners may be called only by the General Partner to transact any business that the General Partner
determines. The call shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Partners entitled to act at the meeting not less than seven (7) days nor more than sixty (60) days prior to the
date of such meeting. Partners may vote in person or by proxy at such meeting. Unless approval by a different number or proportion of the Partners is required by this Agreement, the affirmative vote of Partners holding a majority of the
Percentage Interests held by the Partners entitled to act on any proposal shall be sufficient to approve such proposal at a meeting of the Partners. Whenever the vote, consent or approval of Partners is permitted or required under this
Agreement, such vote, consent or approval may be given at a meeting of Partners or may be given at a meeting of Partners or in accordance with the procedure prescribed in Section 14.3B hereof.
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B.
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Any action requiring the Consent of any Partner or group of Partners pursuant to this Agreement or that is required or
permitted to be taken at a meeting of the Partners may be taken without a meeting if a consent in writing or by electronic transmission setting forth the action so taken or consented to is given by Partners whose affirmative vote would be
sufficient to approve such action or provide such Consent at a meeting of the Partners. Such consent may be in one instrument or in several instruments, and shall have the same force and effect as the affirmative vote of such Partners at a
meeting of the Partners. Such consent shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified. For purposes of obtaining a Consent in writing or by
electronic transmission, the General Partner may require a response within a reasonable specified time, but not less than fifteen (15) days, and failure to respond in such time period shall constitute a Consent that is consistent with the
General Partner’s recommendation with respect to the proposal; provided, however, that an action shall become effective at such time as requisite Consents are received even if prior to such specified time.
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C.
|
Each Partner entitled to act at a meeting of the Partners may authorize any Person or Persons to act for it by proxy on all
matters in which a Partner is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Each proxy must be signed by the Partner or its attorney-in-fact. No proxy shall be valid after the
expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy (or there is receipt of a proxy authorizing a later date). Every proxy shall be revocable at the pleasure of the Partner executing it, such
revocation to be effective upon the Partnership’s receipt of written notice of such revocation from the Partner executing such proxy, unless such proxy states that it is irrevocable and is coupled with an interest.
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D.
|
The General Partner may set, in advance, a record date for the purpose of determining the Partners (i) entitled to Consent
to any action, (ii) entitled to receive notice of or vote at any meeting of the Partners or (iii) in order to make a determination of Partners for any other proper purpose. Such date, in any case, shall not be prior to the close of
business on the day the record date is fixed and shall be not more than ninety (90) days and, in the case of a meeting of the Partners, not less than five (5) days, before the date on which the meeting is to be held or Consent is to be
given. If no record date is fixed, the record date for the determination of Partners entitled to notice of or to vote at a meeting of the Partners shall be at the close of business on the day on which the notice of the meeting is sent, and
the record date for any other determination of Partners shall be the effective date of such Partner action, distribution or other event. When a determination of the Partners entitled to vote at any meeting of the Partners has been made as
provided in this section, such determination shall apply to any adjournment thereof.
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E.
|
Each meeting of Partners shall be conducted by the General Partner or such other Person as the General Partner may appoint
pursuant to such rules for the conduct of the meeting as the General Partner or such other Person deems appropriate in its sole and absolute discretion. Without limitation, meetings of Partners may be conducted in the same manner as
meetings of the General Partner’s stockholders and may be held at the same time as, and as part of, the meetings of the General Partner’s stockholders.
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A.
|
A Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to
redeem all or a portion of the Common Units held by such Tendering Party (Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the sum of the Cash Amount and the excess of such
Holder’s Preferred Return Per Class A Unit with respect to the Class A Units being tendered over the aggregate amount previously distributed with respect to such Tendered Common Units pursuant to Section 5.1(ii) hereof payable on the
Specified Redemption Date. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Partnership’s obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the
General Partner notifies the Tendering Party that the General Partner declines to acquire some or all of the Tendered Units under Section 15.1B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the
Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the General Partner’s sole and absolute discretion, in immediately available funds, in each
case, on or before the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business 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.
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B.
|
Notwithstanding the provisions of Section 15.1A hereof, on or before the close of business on the Cut-Off Date, the General
Partner may, in the General Partner’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the General Partner elects to acquire some or all of the Tendered Units pursuant to this
Section 15.1B, the General Partner shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the General Partner elects to acquire any of the Tendered Units for REIT Shares, the
General Partner shall issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1B, in which case (1) the General Partner shall assume directly the obligation with respect thereto and shall satisfy
the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (2) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the
General Partner in exchange for the REIT Shares Amount. If the General Partner so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the General Partner in exchange for a number of
REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that if the General Partner makes an election under this Section 15.1B to issue REIT Shares, the Specified Redemption Date for the Tendered Units to be
exchanged for REIT Shares shall be the 10th Business Day after the date the General Partner gives notice of its election; provided, further, that
the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 50 Business Days to the extent required for such issuance not to violate any black-out period on trading imposed by the General
Partner or other General Partner policies then in effect and applicable to employees of the General Partner. The Tendering Party shall submit (i) such information, certification or affidavit as the General Partner may reasonably require in
connection with the application of the Ownership Limit to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the General Partner’s view, to effect compliance
with the Securities Act. In the event of a purchase of the Tendered Units by the General Partner pursuant to this Section 15.1B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such
Tendered Units and, upon notice to the Tendering Party by the General Partner given on or before the close of business on the Cut-Off Date that the General Partner has elected to acquire some or all of the Tendered Units pursuant to this
Section 15.1B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the General Partner’s notice relates shall not accrue or arise, but does not affect the obligation under Section 15.1.A. with respect
to the other Tendered Units. A number of REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the General Partner as duly authorized, validly issued, fully paid and
non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party
whose Tendered Units are acquired by the General Partner pursuant to this Section 15.1B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the General Partner to register, qualify or list any
REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or
with any stock exchange; provided, however,
that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the General Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering
Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon
an acquisition of the Tendered Units by the General Partner pursuant to this Section 15.1B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the General Partner determines to be
necessary or advisable in order to ensure compliance with such laws. Notwithstanding the foregoing, the Tendering Party shall have no right to receive any distribution paid with respect to Tendered Common Units if the record date for such
distribution is on or after the Specified Redemption Date. Upon the closing of exchange of REIT Shares pursuant to this Section 15.1.B., the Partnership shall distribute an amount equal to the excess of such Holder’s Preferred Return Per
Class A Unit with respect to Class A Units being exchanged over the aggregate amount previously distributed with respect to such Tendered Common Units pursuant to Section 5.1(ii) hereof through the date of exchange. Notwithstanding the
foregoing, the Tendering Party shall have no right, with respect to receive any distribution paid with respect to Tendered Common Units if the record date for such distribution is on or after the Specified Redemption Date.
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C.
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Notwithstanding the provisions of Section 15.1A and 15.1B hereof, the Tendering Parties shall have no rights under this
Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Partnership to redeem Common Units if the acquisition of such Common Units by the General Partner pursuant to Section 15.1B hereof would
cause any Person to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the General Partner pursuant to Section 15.1B hereof would be in violation of this Section 15.1C, it shall
be null and void ab initio, and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise
issuable by the General Partner under Section 15.1B hereof or cash otherwise payable under Section 15.1A hereof.
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D.
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If the General Partner does not elect to acquire the Tendered Units pursuant to Section 15.1B hereof:
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(1)
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The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requesting that the General
Partner contribute to the Partnership funds from the proceeds of a registered public offering by the General Partner of REIT Shares sufficient to purchase the Tendered Units (which the General Partner may agree to conduct in its sole
discretion) or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any such contribution shall entitle the General Partner to additional
Class B Common Units.
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(2)
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If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash
Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to 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 (but not higher than the maximum lawful rate).
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E.
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Notwithstanding the provisions of Section 15.1B hereof, the General Partner shall not, under any circumstances, elect to
acquire any Tendered Units in exchange for REIT Shares if such exchange would be prohibited under the Charter.
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F.
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Notwithstanding anything herein to the contrary (but subject to Section 15.1C hereof), with respect to any Redemption (or
any tender of Common Units for Redemption if the Tendered Units are acquired by the General Partner pursuant to Section 15.1B hereof) pursuant to this Section 15.1:
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(1)
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All Common Units acquired by the General Partner pursuant to Section 15.1B hereof shall automatically, and without further
action required, be converted into and deemed to be a Partnership Interest comprised of the same number of Class B Common Units.
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(2)
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Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Common Units
or, if such Tendering Party holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Common Units, all of the Common Units held by such Tendering Party, without, in each case, the Consent of the General
Partner.
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(3)
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If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a
distribution and before the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such Partnership distribution, and (ii) the General Partner elects to acquire any of such
Tendered Units in exchange for REIT Shares pursuant to Section 15.1B, such Tendering Party shall pay to the General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect
of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares.
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(4)
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The consummation of such Redemption (or an acquisition of Tendered Units by the General Partner pursuant to Section 15.1B
hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Act.
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(5)
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The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof)
all Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Common Units for all purposes of this Agreement, until such Common Units are either paid for by the
Partnership pursuant to Section 15.1A hereof or transferred to the General Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an
acquisition of the Tendered Units by the General Partner pursuant to Section 15.1B hereof, the Tendering Party shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such
acquisition.
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G.
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In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the
General Partner, the Tendering Party shall submit the following to the General Partner, in addition to the Notice of Redemption:
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(1)
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A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership,
as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an
acquisition of the Tendered Units by the General Partner pursuant to Section 15.1B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in violation of the Ownership Limit;
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(2)
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A written representation that neither the Tendering Party nor to the best of their knowledge any Related Party has any
intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the General Partner pursuant to Section 15.1B hereof on the Specified Redemption Date; and
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(3)
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An undertaking to certify, at and as a condition of the closing of (i) the Redemption or (ii) the acquisition of Tendered
Units by the General Partner pursuant to Section 15.1B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of its knowledge any Related Party
remain unchanged from that disclosed in the affidavit required by Section 15.1G(1) or (b) after giving effect to the Redemption or the acquisition of Tendered Units by the General Partner pursuant to Section 15.1B hereof, neither the
Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Shares in violation of the Ownership Limit.
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A.
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No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
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B.
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The restrictions, conditions and other limitations on the rights and benefits of the Limited Partners contained in this
Agreement, and the duties, covenants and other requirements of performance or notice by the Limited Partners, are for the benefit of the Partnership and, except for an obligation to pay money to the Partnership, may be waived or
relinquished by the General Partner, in its sole and absolute discretion, on behalf of the Partnership in one or more instances from time to time and at any time; provided, however, that any such waiver or relinquishment may not be made if it would have the effect of
(i) creating liability for any other Limited Partner, (ii) causing the Partnership to cease to qualify as a limited partnership, (iii) reducing the amount of cash otherwise distributable to the Limited Partners (other than any such
reduction that affects all of the Limited Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Partners holding such class or series of Partnership
Units), (iv) resulting in the classification of the Partnership as an association or publicly traded partnership taxable as a corporation or (v) violating the Securities Act, the Exchange Act or any state “blue sky” or other securities
laws; and provided, further,
that any waiver relating to compliance with the Ownership Limit or other restrictions in the Charter shall be made and shall be effective only as provided in the Charter.
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A.
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This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law. In the event of a conflict between any provision of this Agreement and any
non-mandatory provision of the Act, the provisions of this Agreement shall control and take precedence.
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B.
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Each Partner hereby (i) submits to the non-exclusive jurisdiction of any state or federal court sitting in the State of Delaware, with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts
would have subject matter jurisdiction with respect to such dispute, (ii) irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the
jurisdiction of any state or federal court sitting in the State of Delaware, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, or that the venue of the action is improper, (iii) agrees that notice or the service of process in any action, suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby shall be properly served or delivered if delivered to such Partner at such Partner’s last known address as set forth in the Partnership’s books and records, and (iv) irrevocably waives any and all
right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
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(i)
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an amount equal to the excess, if any, of (a) four percent (4%) of the REIT Partner’s total gross income
(but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over
(b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any
REIT Payments or any amounts excluded from gross income pursuant to Section 856(c) of the Code); or
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(ii)
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an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner’s total gross
income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3)
over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of
any REIT Payments or any amounts excluded from gross income pursuant to Section 856(c) of the Code);
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GENERAL PARTNER:
MACKENZIE REALTY CAPITAL, INC.
By:
Chip Patterson, Chairman and Secretary
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LIMITED PARTNER:
MACKENZIE REALTY CAPITAL, INC.
By:
Chip Patterson, Chairman and Secretary
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LIMITED PARTNER:
ADDISON NC, LLC, an Arizona limited liability company
By: Vantage Point Consulting, LLC, an Arizona limited liability company, its Manager
By: _______________________________
Name: Kathleen Robinson
Its: Sole Managing Member
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LIMITED PARTNER:
ADDISON CORPORATE CENTER, LLC, an Arizona limited liability company
By: Virtua Partners LLC, an Arizona limited liability company, its Manager
By: ________________________________
Name: Quynh Palomino
Its: Manager
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LIMITED PARTNER:
ADDISON HOLDINGS, LLC, an Arizona limited liability company
By: Virtua Addison Manager, LLC, an Arizona limited liability company, its
Manager
By: Virtua Partners LLC, an Arizona limited liability company, its Sole Managing
Member
By:
Name: Quynh Palomino
Its: Manager
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| To: |
[General Partner]
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Dated: ___________
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Name of Limited Partner or Assignee:
(Signature of Limited Partner or Assignee)
(Street Address)
(City) (State) (Zip Code)
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Issue Check Payable to:
Please insert social security
or identifying number:
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Signature Medallion Guaranteed by:
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