Exhibit 4.1

AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

OF

NEW YORK CITY OPERATING PARTNERSHIP, L.P.
(a Delaware limited partnership)

TABLE OF CONTENTS

Page

SCHEDULES AND EXHIBITS

SCHEDULE A — Partners and Percentage Interests

EXHIBIT A — Notice of Exercise of Class A Unit Redemption Right

EXHIBIT B-1 — Certification of Non-Foreign Status (For Redeeming Limited Partners That Are Entities)

EXHIBIT B-2 — Certification of Non-Foreign Status (For Redeeming Limited Partners That Are Individuals)

EXHIBIT C — Notice of Election by Partner to Convert LTIP Units into Class A Units

EXHIBIT D — Notice of Election by Partnership to Force Conversion of LTIP Units into Class A Units

EXHIBIT E-1 — Certification of Non-Foreign Status (For Redeeming Partners that are Entities)

EXHIBIT E-2 — Certification of Non-Foreign Status (For Redeeming Partners that are Individuals)

AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
NEW YORK CITY OPERATING PARTNERSHIP, L.P.

RECITALS

THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (this “Agreement”) of NEW YORK CITY OPERATING PARTNERSHIP, L.P. (the “Partnership”), is entered into among NEW YORK CITY REIT, INC., a Maryland corporation (in its capacity as general partner of the Partnership, together with its successors and permitted assigns that are admitted to the Partnership as a general partner of the Partnership in accordance with the terms hereof, the “General Partner”), for itself and for the Limited Partners listed on Schedule A not included on the signature page hereto, the Limited Partners included on the signature page hereto, and any other limited partner or general partner that is admitted from time to time to the Partnership and listed on Schedule A attached hereto, on August 18, 2020.

WHEREAS, the General Partner formed the Partnership as a limited partnership on October 11, 2012 pursuant to the Revised Uniform Limited Partnership Act of the State of Delaware and filed a Certificate of Limited Partnership of the Partnership with the Secretary of State of the State of Delaware.

WHEREAS, the parties entered into the Agreement of Limited Partnership of the Partnership on April 24, 2014, as amended by the First Amendment to Agreement of Limited Partnership, dated as of November 5, 2015 (the “Original Agreement”).

WHEREAS, on August 5, 2020, in contemplation of the Listing, the General Partner took the following corporate actions: (1) amended the Charter to effect a 9.72-to-1 reverse stock split combining every 9.72 shares of common stock, par value $0.01 per share, into one share of common stock, par value $0.0972 per share, and subsequently amended the Charter to reduce the resulting par value of the shares of common stock outstanding after the reverse stock split from $0.0972 per share back to $0.01 per share; (2) amended the Charter to change the name of common stock to “Class A Common Stock;” (3) filed articles supplementary reclassifying a number of authorized but unissued shares of Class A Common Stock equal to approximately three times the number of shares of Class A Common Stock then outstanding, into shares of Class B Common Stock; and (4) declared and paid to the holders of shares of Class A Common Stock a stock dividend equal to three shares of Class B Common Stock for each share of Class A Common Stock outstanding.

WHEREAS, as of the date of this Agreement, and as a result of the corporate actions described in the foregoing recital, shares of Class A Common Stock represent 25% of the issued and outstanding REIT Shares and shares of Class B Common Stock represent 75% of the issued and outstanding REIT Shares.

WHEREAS, on the date of this Agreement (which is also referred to as the “Listing Date”) the General Partner is listing its shares of Class A Common Stock for trading on the NYSE and causing the Partnership to issue the Master LTIP Unit (which will automatically convert into a number of LTIP Units equal to the LTIP Award Number effective as of the Effective Date) to Advisors Limited Partner pursuant to the 2020 Advisor OPP Agreement.

WHEREAS, the grant of the Master LTIP Unit allowed the Partnership to adjust the Gross Asset Value of the Partnership’s assets and allocate any Net Property Gain from the adjustment to Gross Asset Value to the Capital Accounts of the Partners in accordance with Exhibit B of the Amended and Restated Agreement, including the special allocation to the holders of Class B Units in Section 1(c)(ii) of Exhibit B of the Amended and Restated Agreement.

WHEREAS, as of the date hereof, the initial Capital Account for the LTIP Unitholder with respect to the Master LTIP Unit is zero.

WHEREAS, in connection with the Listing, the conditions for the Class B Units of the Partnership to become Unrestricted Class B Units were met, the Economic Capital Account Balance attributable to the Class B Units was adjusted so that it equaled the OP Unit Economic Balance (as such terms were defined in the Original Agreement) and, effective at the Listing, all Class B Units that were previously issued and outstanding automatically converted into Class A Units which, with respect to the Class A Units issued upon conversion of Class B Units owned by Advisors Limited Partner, were then, upon the request and with the consent of the Advisors Limited Partner, redeemed, at the election of the General Partner, for an equal number of shares of newly issued Class A Common Stock (the “Class B Unit Shares”).

WHEREAS, shares of Class B Common Stock will not be listed on the NYSE but will automatically convert into shares of Class A Common Stock to be listed on the NYSE in three equal tranches over the 360 days following the Listing Date, but each share of Class B Common Stock is otherwise identical to each share of Class A Common Stock in all other respects, including the right to vote on matters presented to the stockholders of the General Partner, and shares of all classes of REIT Shares are expected to receive the same dividends and other distributions (to the extent the General Partner pays dividends or other distributions to its common stockholders).

WHEREAS, pursuant to the authority granted to the General Partner pursuant to Article 14 of the Amended and Restated Agreement, the General Partner desires to amend and restate the Original Agreement in its entirety with this Agreement.

WHEREAS, in connection with amending and restating this Agreement, the Partnership is re-designating its OP Units as Class A Units, and, until the shares of Class B Common Stock automatically convert into shares of Class A Common Stock pursuant to their terms, each Class A Unit will correspond with one REIT Share without regard to whether such REIT Share is then designated as Class A Common Stock, Class B Common Stock; provided however for purposes of this Agreement, as necessary, including, for example, the distribution and allocation provisions of Article 5, until such time as such automatic conversions occur, a percentage of the Class A Units that is equal to the percentage of REIT Shares that are shares of Class B Common Stock shall correspond with the shares of Class B Common Stock.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, of mutual covenants between the parties hereto, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Original Agreement is hereby amended, restated, superseded and replaced in its entirety and the parties hereto agree as follows:

ARTICLE I
DEFINED TERMS

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

“2020 Advisor OPP Agreement” means the Advisor Multi-Year Outperformance Award Agreement, entered into as of August 18, 2020, by and among the General Partner, the Partnership and Advisors Limited Partner, as amended from time to time.

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

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

“Additional Securities” has the meaning set forth in Section 4.02(a)(ii).

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

(a)           credit to such Capital Account any portion of such negative balance which such Partner (i) is treated as obligated to restore to the Partnership pursuant to the provisions of Section 1.704-1(b)(2)(ii)(c) of the Regulations, or (ii) is deemed to be obligated to restore to the Partnership pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and

(b)           debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.

“Adjustment Events” means the following events: (a) the Partnership makes a distribution on all outstanding Class A Units in Partnership Units, (b) the Partnership subdivides the outstanding Class A Units into a greater number of units or combines the outstanding Class A Units into a smaller number of units, or (c) the Partnership issues any Partnership Units in exchange for its outstanding Class A Units by way of a reclassification or recapitalization of its Class A Units. For the avoidance of doubt, the following events shall not be Adjustment Events: (x) the issuance of Partnership Units in a financing, reorganization, acquisition or other similar business transaction, (y) the issuance of Partnership Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan, or (z) the issuance of any Partnership Units to the General Partner in respect of a Capital Contribution to the Partnership of proceeds from the sale of securities by the General Partner.

“Administrative Expenses” means (a) all administrative and operating costs and expenses incurred by the Partnership, (b) administrative costs and expenses of the General Partner, including any salaries or other payments to directors, officers or employees of the General Partner, and any accounting and legal expenses of the General Partner, which expenses, the Partners have agreed, are the expenses of the Partnership and not the General Partner, and (c) to the extent not included in clauses (a) or (b) above, REIT Expenses; provided, however, that Administrative Expenses shall not include any administrative costs and expenses incurred by the General Partner that are attributable to Properties or interests in a Subsidiary that are owned by the General Partner other than through its ownership interest in the Partnership.

“Advisors Limited Partner” means New York City Advisors, LLC, its successors and assigns.

“Affected Gain” has the meaning set forth in Section 5.01(f)(ii).

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

“Aggregate Share Ownership Limit” has the meaning set forth in the Charter.

“Agreed Value” means the fair market value of a Partner’s non-cash Capital Contribution as of the date of contribution as agreed to by such Partner and the General Partner. The names and addresses of the Partners, number of Partnership Units issued to each Partner, and the Agreed Value of any non-cash Capital Contributions as of the date of contribution are set forth on Schedule A, as it may be amended or restated from time to time.

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

“Asset Sale” has the meaning set forth in the Listing Note.

“Available Cash” means, with respect to the applicable period of measurement (i.e., any period (other than the first period in which this calculation of Available Cash is being made) beginning on the first day of the fiscal year, quarter or other period commencing immediately after the last day of the fiscal year, quarter or other applicable period for purposes of the prior calculation of Available Cash for or with respect to which a distribution has been made, and ending on the last day of the fiscal year, quarter or other applicable period immediately preceding the date of the calculation), the excess, if any, as of such date, of

(a)           the gross cash receipts of the Partnership for such period from all sources whatsoever, including the following:

(i)            all rents, revenues, income and proceeds derived by the Partnership from its operations, including distributions received by the Partnership from any Entity in which the Partnership has an interest;

(ii)           all proceeds and revenues received by the Partnership on account of any sales of any Property or as a refinancing of or payment of principal, interest, costs, fees, penalties or otherwise on account of any borrowings or loans made by the Partnership or financings or refinancings of any Property of the Partnership;

(iii)          the amount of any insurance proceeds and condemnation awards received by the Partnership;

(iv)          all Capital Contributions and loans received by the Partnership from its Partners;

(v)           all cash amounts previously reserved by the Partnership, to the extent such amounts are no longer needed for the specific purposes for which such amounts were reserved; and

(vi)          the proceeds of liquidation of the Property in accordance with this Agreement;

over

(b)           the sum of the following:

(i)            all operating costs and expenses paid, including taxes and other expenses of the Properties and capital expenditures made during such period (without deduction, however, for any capital expenditures, charges for Depreciation or other expenses not paid in cash or expenditures from reserves described in clause (viii) below);

(ii)           all costs and expenses paid during such period in connection with the sale or other disposition, or financing or refinancing, of Property or the recovery of insurance or condemnation proceeds;

(iii)          all fees provided for under this Agreement;

(iv)          all debt service, including principal and interest, paid during such period on all indebtedness (including under any line of credit) of the Partnership;

(v)           all capital contributions, advances, reimbursements, loans or similar payments made to any Person in which the Partnership has an interest;

(vi)          all loans made by the Partnership in accordance with the terms of this Agreement;

(vii)         all reimbursements paid to the General Partner or its Affiliates during such period; and

(viii)        the amount of any new reserve or increase in reserves established during such period which the General Partner determines is necessary or appropriate in its sole and absolute discretion.

Notwithstanding the foregoing, Available Cash shall not include any cash received or reductions in reserves, or take into account any disbursements made or reserves established, after commencement of the dissolution and liquidation of the Partnership.

“Average Class B Economic Capital Account Balance” means, with respect to a Limited Partner owning Class B Units, an amount equal to the quotient of (a) the Class B Economic Capital Account Balance of such Limited Partner, divided by (b) the number of Class B Units owned by such Limited Partner.

“Average LTIP Economic Capital Account Balance” means, with respect to a Limited Partner owning LTIP Units, an amount equal to the quotient of (a) the LTIP Economic Capital Account Balance of such Limited Partner, divided by (b) the number of LTIP Units owned by such Limited Partner.

“Board of Directors” means the Board of Directors of the General Partner.

“Budget Act” means the Bipartisan Budget Act of 2015 and any sections of the Code or Regulations promulgated thereunder and with respect thereto, each as amended from time to time.

“Business Day” means any day other than Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York are not required to be open.

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

(a)           to each Partner’s Capital Account there shall be credited:

(i)            such Partner’s Capital Contributions;

(ii)           such Partner’s distributive share of Net Income and any items in the nature of income or gain which are specially allocated to such Partner pursuant to Sections 5.01(c) and 5.01(d); and

(iii)          the amount of any Partnership liabilities assumed by such Partner or which are secured by any asset distributed to such Partner;

(b)           to each Partner’s Capital Account there shall be debited:

(i)            the amount of cash and the Gross Asset Value of any property distributed to such Partner pursuant to any provision of this Agreement;

(ii)           such Partner’s distributive share of Net Loss, Net Property Loss and any items in the nature of expenses or losses which are specially allocated to such Partner pursuant to Sections 5.01(c), 5.01(d), 12.04(c), 12.05(d), 13.01(e)(iv) and 13.02(e); and

(iii)          the amount of any liabilities of such Partner assumed by the Partnership or which are secured by any asset contributed by such Partner to the Partnership; and

(c)           if all or a portion of a Partnership Interest is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Partnership Interest.

In determining the amount of any liability for purposes of clauses (a)(iii) and (b)(iii), there shall be taken into account Section 752(c) of the Code and any other applicable provisions of the Code or Regulations. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Sections 1.704-1(b) and 1.704-2 of the Regulations, and shall be interpreted and applied in a manner consistent with such Regulations. If the General Partner shall reasonably determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including debits or credits relating to liabilities which are secured by contributed or distributed assets or which are assumed by the Partnership, the General Partner or any Limited Partner) are computed in order to comply with such Regulations, the General Partner may make such modification; provided, however, that all allocations of Partnership income, gain, loss and deduction continue to have “substantial economic effect” within the meaning of Section 704(b) of the Code and that no Limited Partner is materially adversely affected by any such modification.

“Capital Account Limitation” has the meaning set forth in Section 13.02(b).

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

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

“Cash Available for Distribution” means the Available Cash other than Net Sales Proceeds.

“Catch-Up Distributions” has the meaning set forth in Section 5.02(a)(iii).

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

“Change of Control” means, as to the General Partner, the occurrence of any of the following:

(a)           any “person” as such term is used in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof except that such term shall not include (A) the General Partner or any Subsidiaries of the General Partner, (B) any trustee or other fiduciary holding securities under an employee benefit plan of the General Partner or any Affiliate of the General Partner, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, (D) any corporation owned, directly or indirectly, by the stockholders of the General Partner in substantially the same proportions as their ownership of REIT Shares, or (E) any person or group as used in Rule 13d-1(b) under the Exchange Act, is or becomes the Beneficial Owner, as such term is defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of securities of the General Partner representing at least 35% of the combined voting power of the General Partner or the REIT Shares then outstanding;

(b)           during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors or whose election by the Board of Directors or nomination for election by the General Partner’s stockholders was approved by a vote of at least two thirds (2/3) of the Board of Directors then still in office cease for any reason to constitute at least a majority thereof;

(c)           there is consummated a merger or consolidation of the General Partner or any Subsidiary of the General Partner with any other corporation, other than a merger or consolidation which would result in the voting securities of the General Partner outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the General Partner or any Subsidiary of the General Partner, more than 50% of the combined voting power and common shares of the General Partner or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or

(d)           there is consummated an agreement for the sale or disposition by the General Partner of all or substantially all of the General Partner’s assets (or any transaction having a similar effect, including a liquidation) other than a sale or disposition by the General Partner of all or substantially all of the General Partner’s assets to an entity, more than fifty percent (50%) of the combined voting power and common shares of which is owned by stockholders of the General Partner in substantially the same proportions as their ownership of the common shares of the General Partner immediately prior to such sale.

“Charter” means the General Partner’s charter, filed with the Maryland State Department of Assessments and Taxation, or other organizational documents governing the General Partner, as amended, supplemented or restated from time to time.

“Class A Common Stock” means the class of common stock of the General Partner, $0.01 par value per share, designated as “Class A Common Stock.”

“Class A Unit” means a Partnership Unit which is designated by the General Partner as a Class A Unit of the Partnership.

“Class A Unit Economic Balance” means the quotient of (a) the aggregate Capital Account balance attributable to the Class A Units outstanding, plus the amount of any Partner Minimum Gain or Partnership Minimum Gain, in either case to the extent attributable to the ownership of Class A Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under Section 5.01(c), divided by (b) the number of Class A Units outstanding.

“Class A Unit Redemption Amount” means either (a) the Cash Amount pursuant to Section 8.04(a) or (b) the Cash Amount or the REIT Shares Amount as selected by the General Partner pursuant to Section 8.04(b).

“Class A Unit Redemption Right” has the meaning provided in Section 8.04(a) hereof.

“Class A Unit Transaction” shall mean a transaction to which the Partnership or the General Partner shall be a party, including, without limitation a merger, consolidation, unit exchange, self tender offer for all or substantially all Class A Units or other business combination or reorganization, or sale of all or substantially all the Partnership’s assets (but excluding any transaction which constitutes an Adjustment Event) in each case as a result of which Class A Units shall be exchanged for or converted into the right, or the holders of such Class A Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof.

“Class B Conversion Date” has the meaning set forth in Section 12.04(a).

“Class B Economic Capital Account Balances” mean the Capital Account balances of the Class B Units holders to the extent attributable to their ownership of Class B Units reduced by any forfeiture allocations in accordance with Section 12.05(d) due to the forfeiture of any Class B Units.

“Class B Common Stock” means the class of common stock of the General Partner, $0.01 par value per share, designated as “Class B Common Stock.”

“Class B Unit” means a Partnership Unit which is designated as a Class B Unit of the Partnership.

“Class B Unit Shares” has the meaning set forth in the recitals.

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

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

“Common Units” means any class or series of Partnership Interest that does not have a priority or preference in the payment of distributions in the distribution of assets upon any Liquidation, including Class A Units, Class B Units and LTIP Units.

“Constituent Person” has the meaning set forth in Section 12.04(d).

“Contributed Property” means each property, partnership interest, contract right or other asset, in such form as may be permitted by the Act, contributed or deemed contributed to the Partnership by any Partner, including any interest in any successor partnership occurring as a result of a termination of the Partnership pursuant to Section 708 of Code.

“Conversion Factor” means 1.0, provided, however that in the event that the General Partner:

(a)           (i) declares or pays a dividend on all of its outstanding REIT Shares wholly or partly in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares wholly or partly in REIT Shares, (ii) splits or subdivides its outstanding REIT Shares or (iii) effects a reverse stock split or otherwise combines its outstanding REIT Shares into a smaller number of REIT Shares, the Conversion Factor shall be adjusted by multiplying the Conversion Factor previously in effect by a fraction, the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination (assuming for such purposes that such dividend, distribution, split, subdivision, reverse split or combination has occurred as of such time), and the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on such date;

(b)           merges, consolidates or combines with or into any entity other than an Affiliate of the General Partner (the “Successor Entity”), the Conversion Factor shall be adjusted by multiplying the Conversion Factor by the number of shares of the Successor Entity into which one REIT Share is converted pursuant to such merger, consolidation or combination, determined as of the date of such merger, consolidation or combination; or

(c)           distributes, by dividend or otherwise, to all holders of REIT Shares evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in clause (i) of paragraph (a) of this definition of Conversion Factor), which evidences of indebtedness or assets relate to assets not received by holders of Class A Units pursuant to a pro rata distribution by the Partnership, then the Conversion Factor shall be adjusted by multiplying the Conversion Factor in effect immediately prior to the close of business on the date fixed for determination of holders of REIT Shares entitled to receive such distribution by a fraction the numerator of which shall be the Value of a REIT Share on the date fixed for such determination and the denominator of which shall be the Value of a REIT Share on the date fixed for such determination less the then fair market value (as reasonably determined by the General Partner, which determination shall be conclusive) of the portion of the evidences of indebtedness or assets so distributed applicable to one REIT Share.

Any adjustment to the Conversion Factor pursuant to an event pursuant to paragraph (a), (b) or (c) of this definition of Conversion Factor shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event; provided, however, that if the General Partner receives a Notice of Redemption after the record date, but prior to the effective date of any such event that is a dividend, distribution, split, subdivision, reverse split or combination, the Conversion Factor shall be determined as if the General Partner had received the Notice of Redemption immediately prior to the record date for such dividend, distribution, split, subdivision, reverse split or combination.

“Defaulting Limited Partner” means a Limited Partner or the Special Limited Partner, as applicable, that has failed to pay any amount owed to the Partnership under a Partnership Loan within 15 days after demand for payment thereof is made by the Partnership.

“Depreciation” means, for each fiscal year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for U.S. federal income tax purposes with respect to an asset for such fiscal year or other period, except that (a) with respect to any asset the Gross Asset Value of which differs from its adjusted tax basis for U.S. federal income tax purposes at the beginning of such fiscal year or other period and which difference is being eliminated by use of the “remedial method” as defined by Section 1.704-3(d) of the Regulations, Depreciation for such fiscal year or other period shall be the amount of book basis recovered for such fiscal year or other period under the rules prescribed by Section 1.704-3(d)(2) of the Regulations, and (b) with respect to any other asset the Gross Asset Value of which differs from its adjusted tax basis for U.S. federal income tax purposes at the beginning of such fiscal year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization, or other cost recovery deduction for such fiscal year or other period bears to such beginning adjusted tax basis; provided, however, that in the case of clause (b) above, if the adjusted tax basis for U.S. federal income tax purposes of an asset at the beginning of such fiscal year or other period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

“Determination Date” means (i) in respect of each LTIP Unit awarded under the 2020 Advisor OPP Agreement, the meaning set forth therein, or (ii) in respect of each other LTIP Unit awarded, the date following the completion of the performance period on which the number of LTIP Units earned pursuant to the terms of any OPP Agreement based on the achievement of goals during such performance period is determined, or, if no such date is specified or applicable, the date on which that LTIP Unit is issued.

“Effective Date” has the meaning set forth in the 2020 Advisor OPP Agreement.

“Entity” means any general partnership, limited partnership, corporation, joint venture, trust, business trust, real estate investment trust, limited liability company, limited liability partnership, cooperative or association.

“Equity Plan” means that certain 2020 Omnibus Incentive Compensation Plan of the General Partner adopted by the Board of Directors effective as of the Listing Date, as amended from time to time, that certain 2020 Advisor Omnibus Incentive Compensation Plan of the General Partner adopted by the Board of Directors effective as of the Listing Date, and any other equity plan of the General Partner.

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

“Excepted Holder Limit” has the meaning set forth in the Charter.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Forced Conversion” has the meaning set forth in Section 13.02(c) hereof.

“Forced Conversion Notice” has the meaning set forth in Section 13.02(c) hereof.

“General Partner” has the meaning set forth in the Preamble, and any successor as general partner of the Partnership.

“General Partner Loan” means a loan extended by the General Partner to a Defaulting Limited Partner in the form of a payment on a Partnership Loan by the General Partner to the Partnership on behalf of the Defaulting Limited Partner.

“General Partner Interest” means the Partnership Interests held by the General Partner in its capacity as the general partner of the Partnership, which Partnership Interest is an interest as a general partner under the Act. The General Partner Interest may be expressed as a number of Partnership Units. All other Partnership Units owned by the General Partner and any Partnership Units owned by any Affiliate or Subsidiary of the General Partner shall be considered to constitute a Limited Partnership Interest.

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

(a)           the initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset, without reduction for liabilities, as determined by the contributing Partner and the Partnership on the date of contribution thereof;

(b)           if the General Partner determines that an adjustment is necessary or appropriate to reflect the relative economic interests of the Partners, the Gross Asset Values of all Partnership assets shall be adjusted in accordance with Sections 1.704-1(b)(2)(iv)(f) and (g) of the Regulations to equal their respective gross fair market values, without reduction for liabilities, as reasonably determined by the General Partner, as of the time of:

(i)            a Capital Contribution (other than a de minimis Capital Contribution) to the Partnership by a new or existing Partner as consideration for a Partnership Interest;

(ii)           the distribution by the Partnership to a Partner of more than a de minimis amount of Partnership assets as consideration for the repurchase or redemption of a Partnership Interest;

(iii)          the liquidation of the Partnership within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations; and

(iv)          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 by such Partner;

(c)           the Gross Asset Values of Partnership assets distributed to any Partner shall be the gross fair market values of such assets (taking Section 7701(g) of the Code into account) without reduction for liabilities, as determined by the General Partner as of the date of distribution; and

(d)           the Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations (as set forth in Section 5.01(d)(vi)); provided, however, that Gross Asset Values shall not be adjusted pursuant to this paragraph (d) to the extent that the General Partner determines that an adjustment pursuant to paragraph (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (d).

At all times, Gross Asset Values shall be adjusted by any Depreciation taken into account with respect to the Partnership’s assets for purposes of computing Net Income and Net Loss.

“Indemnified Party” has the meaning set forth in Section 8.05(f).

“Indemnifying Party” has the meaning set forth in Section 8.05(f).

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

“Initial Share Price” has the meaning set forth in the 2020 Advisor OPP Agreement.

“IRS” means the Internal Revenue Service of the United States (or any successor organization).

“Liability Shortfall” has the meaning set forth in Section 5.01(f)(iv).

“Limited Partner” means a Person identified on Schedule A as holding a Limited Partner Interest, as it may be amended or restated from time to time, and any Person who becomes a Substitute Limited Partner or any additional Limited Partner, in such Person’s capacity as a limited partner in the Partnership.

“Limited Partnership Interest” means a Partnership Interest held by a Partner at any particular time representing a fractional part of the Partnership Interest (other than the General Partner Interest and the Special Partner Interest) of all Partners, and includes any and all benefits to which the holder of such a Limited Partnership Interest may be entitled as provided in this Agreement and in the Act, together with the obligations of such Partner to comply with all the provisions of this Agreement and of the Act. Limited Partnership Interests may be expressed as a number of Class A Units or other Partnership Units.

“Liquidation” means (a) a dissolution or winding up of the General Partner or the Partnership, whether voluntary or involuntary, (b) a consolidation or merger of the General Partner or the Partnership with and into one or more entities which are not affiliates of the General Partner or the Partnership which results in a Change in Control, or (c) a sale, transfer or other disposition of all or substantially all of the General Partner’s or the Partnership’s assets or a related series of transactions that, taken together, result in the sale, transfer or other disposition of all or substantially all of the General Partner’s or the Partnership’s assets other than to an affiliate of the General Partner or the Partnership.

“Liquidity Event” has the meaning set forth in the Listing Note.

“Listing” means the commencement of trading of the Class A Common Stock of the General Partner on the NYSE, which occurred on the date of this Agreement.

“Listing Amount” has the meaning set forth in the Listing Note.

“Listing Date” has the meaning set forth in the recitals.

“Listing Note” means that certain Listing Note Agreement, entered into August 18, 2020, between the Partnership and the Special Limited Partner as evidence of the Special Limited Partner’s right to receive, as a result of the Listing, an aggregate amount of distributions of Net Sales Proceeds equal to the Listing Amount.

“LTIP Award” means each or any, as the context requires, award of LTIP Units pursuant to an OPP Agreement or otherwise having the economic rights and entitlements and such other rights and entitlements, and subject to the vesting, forfeiture and additional restrictions on transfer, as set forth in the applicable OPP Agreement, including any amendments thereto.

“LTIP Award Number” means the quotient, rounded down to the nearest whole number, of (a) 50,000,000, divided by (b) the Initial Share Price.

“LTIP Conversion Date” has the meaning set forth in Section 13.02(b).

“LTIP Conversion Notice” has the meaning set forth in Section 13.02(b) hereof.

“LTIP Conversion Right” has the meaning set forth in Section 13.02(a) hereof.

“LTIP Economic Capital Account Balances” mean the Capital Account balances of the LTIP Unit holders to the extent attributable to their ownership of LTIP Units reduced by any forfeiture allocations in accordance with Sections 13.01(c)(ii) and 13.01(e)(iv) due to the forfeiture of any LTIP Units.

“LTIP Unit” means a Partnership Unit which is designated as an LTIP Unit (including, as the context requires, the Master LTIP Unit) and which has the rights, preferences and other privileges designated in Section 5.01(c)(iii) and Article XIII hereof and elsewhere in this Agreement in respect of holders of LTIP Units. The allocation of LTIP Units among the Partners shall be set forth on Schedule A, as the same may be amended from time to time.

“LTIP Unit Distribution Participation Date” means (i) in respect of each LTIP Unit awarded under the 2020 Advisor OPP Agreement, the date following the date as of which an Unvested LTIP Unit is earned and vested pursuant to conditions set forth thereunder, or (ii) in respect of each other LTIP Unit awarded, the day following the last day of the performance period for which the number of LTIP Units earned pursuant to the terms of any OPP Agreement will be determined based on the achievement of goals during such performance period, or, if no such date is specified or applicable, the date on which that LTIP Unit is issued.

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

“Master LTIP Unit” means the “Master LTIP Unit,” granted as of the Listing Date pursuant to the 2020 Advisor OPP Agreement, which represents the Award granted pursuant to the 2020 Advisor OPP Agreement and shall convert automatically on the Effective Date into a number of LTIP Units equal to the LTIP Award Number pursuant to Section 13.01(c)(vi)(2).

“Majority in Interest” means the Limited Partners holding more than fifty percent (50%) of the Percentage Interests of the Limited Partners.

“Market Value” has the meaning set forth in the Listing Note.

“Merger” has the meaning set forth in the Listing Note.

“Net Income” or “Net Loss” means, for each fiscal year or other applicable period, an amount equal to the Partnership’s taxable income or loss for such year or period as determined for U.S. federal income tax purposes by the General Partner, determined in accordance with Section 703(a) of the Code (including, for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to the Code), adjusted as follows:

(a)           by including as an item of gross income any tax-exempt income received by the Partnership and not otherwise taken into account in computing Net Income or Net Loss;

(b)           by treating as a deductible expense any expenditure of the Partnership described in Section 705(a)(2)(B) of the Code (or which is treated as a Section 705(a)(2)(B) expenditure pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations) and not otherwise taken into account in computing Net Income or Net Loss, including amounts paid or incurred to organize the Partnership (unless an election is made pursuant to Section 709(b) of the Code) or to promote the sale of interests in the Partnership and by treating deductions for any losses incurred in connection with the sale or exchange of Partnership property disallowed pursuant to Section 267(a)(1) or 707(b) of the Code as expenditures described in Section 705(a)(2)(B) of the Code;

(c)           by taking into account Depreciation in lieu of depreciation, depletion, amortization and other cost recovery deductions taken into account in computing taxable income or loss;

(d)           by computing gain or loss resulting from any disposition of Partnership property with respect to which gain or loss is recognized for U.S. federal income tax purposes by reference to the Gross Asset Value of such property rather than its adjusted tax basis;

(e)           if an adjustment of the Gross Asset Value of any Partnership asset which requires that the Capital Accounts of the Partnership be adjusted pursuant to Sections 1.704-1(b)(2)(iv)(e), (f) and (g) of the Regulations, by taking into account the amount of such adjustment as if such adjustment represented additional Net Income or Net Loss pursuant to Section 5.01; and

(f)            by not taking into account in computing Net Income or Net Loss items specially allocated to the Partners pursuant to Sections 5.01(c), 5.01(d), 15.05(d) and 13.01(e)(iv).

“Net Operating Income” means, for each fiscal year or other applicable period, any items of income, gain, loss, or deduction that are components of Net Income or Net Loss, excluding any items that are taken into account in determining Net Property Gain or Net Property Loss.

“Net Property Gain” or “Net Property Loss” means, for each fiscal year or other applicable period, items of income, gain, loss, or deduction that are components of the Partnership’s Net Income or Net Loss for such year or period from the disposition of any Property, including the net capital gain realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership, including but not limited to net capital gain realized in connection with an adjustment of the Gross Asset Value of any Property which requires that the Capital Accounts of the Partners be adjusted pursuant to Sections 1.704-1(b)(2)(iv)(e), (f) and (g) of the Regulations. For the avoidance of doubt, items of Depreciation shall be included in computing Net Property Gain or Net Property Loss.

“Net Sales Proceeds” means the aggregate proceeds paid in cash received by the General Partner or the Partnership in connection with an Asset Sale, net of (i) direct costs (including legal and accounting fees, disposition fees, sales commissions and underwriting discounts and all title and recording expenses), (ii) all federal, state, provincial, foreign and local taxes required to be accrued as a liability as a consequence thereof, (iii) all payments made by the General Partner or the Partnership on any indebtedness that is secured by the assets subject to such Asset Sale in accordance with the terms of any lien upon or with respect to such assets or that must, by the terms of such lien or by applicable law, be repaid out of the proceeds from such Asset Sale, (iv) a reasonable reserve for the after-tax costs of any indemnification payments (fixed or contingent) attributable to seller’s indemnities to the purchaser undertaken by the General Partner or the General Partner or the Partnership in connection with the Asset Sale, and (v) any payments in respect of the Listing Amount. Upon release from reserve or escrow or payment of any amounts referred to in clause (iv) above that are released or paid to the General Partner or the Partnership or any reduction in the amount of taxes required to be accrued pursuant to clause (ii) above resulting in a payment to the Partnership, such amounts shall then be deemed to be “Net Sales Proceeds.”

“Nonrecourse Deductions” has the meaning set forth in Sections 1.704-2(b)(1) and 1.704-2(c) of the Regulations.

“Nonrecourse Liabilities” has the meaning set forth in Section 1.704-2(b)(3) of the Regulations.

“Notice of Redemption” means the Notice of Exercise of Class A Unit Redemption Right substantially in the form attached as Exhibit A hereto.

“NYSE” means The New York Stock Exchange.

“Offer” has the meaning set forth in Section 7.02(a) hereof.

“OPP Agreement” means any award agreement pursuant to which LTIP Units are granted entered into by and among the General Partner, the Partnership and any grantee thereunder, including without limitation the 2020 Advisor OPP Agreement.

“Participant” means an eligible person who is granted an award under any Equity Plan.

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

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

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

“Partner Nonrecourse Deductions” has the meaning set forth in Sections 1.704-2(i)(1) and (2) of the Regulations, and the amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a Partnership taxable year shall be determined in accordance with the rules of Section 1.704-2(i)(2) of the Regulations.

“Partnership” means New York City Operating Partnership, L.P., a limited partnership formed under the Act and pursuant to this Agreement, and any successor thereto.

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

“Partnership Loan” has the meaning set forth in Section 5.02(d).

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

“Partnership Record Date” means the record date established by the General Partner for the distribution of cash pursuant to Section 5.02, which record date shall be the same as the record date established by the General Partner for a dividend or other distribution to its stockholders of some or all of its portion of such distribution of cash pursuant to Section 5.02.

“Partnership Representative” has the meaning set forth in Section 10.05(a).

“Partnership Unit” means a fractional, undivided share of the Partnership Interests of all Partners issued hereunder, and includes Class A Units, Class B Units, LTIP Units (including the Master LTIP Unit) and any other class or series of Partnership Units that may be established after the date hereof. The number of Partnership Units outstanding and the Percentage Interests represented by such Partnership Units, if any, are set forth on Schedule A hereto, as it may be amended or restated from time to time. The ownership of Partnership Units may be evidenced by a certificate in a form approved by the General Partner.

“Pass-Through Election” has the meaning set forth in Section 10.05(a)(ii).

“Percentage Interest” means, with respect to any Partner, the fraction (expressed as a percentage) determined by dividing (a) the number of Partnership Units of that Partner by (b) the sum of the number of Partnership Units of all Partners. The Partnership Units taken into account may be limited to one or more classes of Partnership Units, as the context so requires.

“Person” means any individual or Entity.

“Precontribution Gain” has the meaning set forth in Section 5.01(f)(iii).

“Profits Interest Catch-Up Distributions” has the meaning set forth in Section 5.02(c)(iii).

“Profits Interest Distribution Limitation” has the meaning set forth in Section 5.02(c)(i).

“Property” means any property or other investment in which the Partnership, directly or indirectly, holds an ownership interest.

“Redemption Shares” has the meaning set forth in Section 8.06(a) hereof.

“Redeeming Limited Partner” has the meaning provided in Section 8.04(a).

“Registration Statement” has the meaning set forth in Section 8.06(a).

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

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

“REIT Expenses” means (a) costs and expenses relating to the formation and continuity of existence and operation of the General Partner and any Subsidiaries thereof (which Subsidiaries shall, for purposes hereof, be included within the definition of the General Partner), including taxes, fees and assessments associated therewith, any and all costs, expenses or fees payable to any director, officer or employee of the General Partner, and reasonable expenses incurred to maintain the General Partner’s qualification as a REIT, (b) costs and expenses relating to any public offering and registration, or private offering, of securities by the General Partner, and all statements, reports, fees and expenses incidental thereto, including, without limitation, underwriting discounts and selling commissions applicable to any such offering of securities, and any costs and expenses associated with any claims made by any holders of such securities or any underwriters or placement agents thereof, (c) costs and expenses associated with any repurchase of any securities by the General Partner, (d) costs and expenses associated with the preparation and filing of any periodic or other reports and communications by the General Partner under federal, state or local laws or regulations, including filings with the Commission, (e) costs and expenses associated with compliance by the General Partner with laws, rules and regulations promulgated by any regulatory body, including the Commission and any securities exchange, (f) costs and expenses associated with compensation of the employees of the General Partner (including, without limitation, health, vision, dental, disability and life insurance benefits), (g) costs and expenses associated with any 401(k) plan, incentive plan, bonus plan or other plan providing for compensation for the employees of the General Partner, (h) costs and expenses incurred by the General Partner relating to any issuing or redemption of Partnership Interests and (i) all other operating or administrative costs of the General Partner incurred in the ordinary course of its business on behalf of or in connection with the Partnership.

“REIT Requirements” has the meaning set forth in Section 6.01(a)(xxiv).

“REIT Share” means one share of common stock of the General Partner (or Successor Entity, as the case may be). REIT Shares may be issued in one or more classes or series in accordance with the terms of the Charter. In the event there is more than one class or series of REIT Shares, the term “REIT Shares” shall, as the context requires, be deemed to refer to the class or series of REIT Shares that correspond to the class or series of Partnership Units for which the reference to REIT Shares is made. As of the date of this Agreement the General Partner has two classes of common stock designated as: “Class A Common Stock” and “Class B Common Stock.” When used with reference to Class A Units, the term “REIT Shares” refers to shares of Class A Common Stock unless the context requires otherwise as described in the recitals.

“REIT Shares Amount” means the number of REIT Shares equal to the product of (X) the number of Class A Units offered for redemption by a Redeeming Limited Partner, multiplied by (Y) the Conversion Factor effective on the Specified Redemption Date; provided, that in the event the General Partner issues to all holders of REIT Shares rights, options, warrants or convertible or exchangeable securities entitling the holders of REIT Shares to subscribe for or purchase additional REIT Shares, or any other securities or property (collectively, the “Rights”), and such Rights have not expired at the Specified Redemption Date, then the REIT Shares Amount shall also include such Rights issuable to a holder of the REIT Shares Amount on the record date fixed for purposes of determining the holders of REIT Shares entitled to Rights.

“Restriction Notice” has the meaning set forth in Section 8.04(f).

“Revised Partnership Audit Procedures” has the meaning set forth in Section 10.05(a).

“Rights” has the meaning set forth in the definition of “REIT Shares Amount” contained herein.

“Rule 144” means Rule 144 under the Securities Act, as such rule may be amended from time to time, or any similar successor rule that may be promulgated by the Commission.

“S-3 Eligible Date” has the meaning set forth in Section 8.06(a).

“Safe Harbor” has the meaning set forth in Section 10.05(e).

“Safe Harbor Election” has the meaning set forth in Section 10.05(e).

“Safe Harbor Interest” has the meaning set forth in Section 10.05(e).

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

“Separate Registration Rights Agreement” has the meaning set forth in Section 8.06.

“Special Limited Partner” means the Person identified on Schedule A as holding the Special Limited Partner Interest, which shall cause such Person to be a limited partner of the Partnership and recognized as such under applicable Delaware law, but not a “Limited Partner” within the meaning of this Agreement.

“Special Limited Partner Interest” means the interest of the Special Limited Partner in the Partnership representing its right as the holder of an interest in distributions described in Sections 5.02(b)(i)(A) and 5.02(b)(i)(B)(3) (and any corresponding allocations of income, gain, loss and deduction under this Agreement).

“Specified Redemption Date” means the first Business Day that is at least 60 calendar days after the receipt by the General Partner of a Notice of Redemption.

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

“Subsidiary Partnership” means any partnership or limited liability company in which the General Partner, the Partnership or a wholly owned subsidiary of the General Partner or the Partnership owns a partnership or limited liability company interest.

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

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

“Survivor” has the meaning set forth in Section 7.02(b).

“Tax Items” has the meaning set forth in Section 5.01(f)(i).

“Tax Liability” means (i) any amount required to be withheld by the Partnership with respect to a Partner and paid over to any taxing authority as a result of any allocation or distribution of income to a Partner or any other transaction, (b) amounts for which the Partnership is liable under Section 1446(f)(4) of the Code, or (c) any amount attributable to an actual or imputed underpayment of taxes under the Revised Partnership Audit Procedures imposed on any current or former Partner’s share of the Partnership’s gross or net income and gains (or items thereof), and, in each case, in any such case, any interest, penalties or additions to tax in respect thereof.

“Tax Matters Partner” means the “tax matters partner” as such terms is defined in Section 6231(a)(7) of the Code as in effect prior to the Budget Act.

“Trading Day” means a day on which the principal national securities exchange on which a security is listed or admitted to trading is open for the transaction of business or, if a security is not listed or admitted to trading on any national securities exchange, shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

“Transaction” has the meaning set forth in Section 7.02(a).

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

“TRS” means a taxable REIT subsidiary (as defined in Section 856(l) of the Code) of the General Partner.

“Unvested LTIP Units” has the meaning set forth in Section 13.01(c)(i) hereof.

“Valuation Threshold” means, in respect of each Class B Unit and LTIP Unit, the total amount available for distribution under Section 5.02(a) or Section 5.02(b), including by operation of Section 5.06, as of the date that Class B Unit or LTIP Unit was issued if the Partnership were to liquidate completely and, in connection with such liquidation, (i) its assets sold for cash equal to their respective fair market values, as determined in the reasonable discretion of the General Partner, (ii) all Partnership liabilities were satisfied (limited with respect to each nonrecourse liability to the fair market value of the assets securing such liability), (iii) each Partner were to pay its share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain and the amount, if any, and without duplication, that the Partner would be obligated to contribute to the capital of the Partnership, all computed immediately prior to the hypothetical sale of assets, and (iv) the net assets of the Partnership were distributed in accordance with Section 5.02(b) to the Partners immediately after making such allocation; provided, however, that the Valuation Threshold in respect of a Partnership Unit shall not be less than zero dollars ($0). Notwithstanding the foregoing, the General Partner may, in its good faith discretion, adjust the Valuation Threshold with respect to any Partnership Unit to reflect any changes in the capitalization of the Partnership, or distributions from the Partnership under Section 5.01(a) or Section 5.02(b), after the grant of the Partnership Unit.

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

“Vested LTIP Units” has the meaning set forth in Section 13.01(c)(i) hereof.

ARTICLE II
FORMATION OF PARTNERSHIP

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

2.02          Name. The Name of the Partnership shall be “New York City Operating Partnership, L.P.” and the Partnership’s business may be conducted under any other name or names deemed advisable by the General Partner, including the name of the General Partner or any Affiliate thereof. The words “Limited Partnership,” “LP,” “L.P.” or “Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purposes of complying with the laws of any jurisdiction that so requires. The General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Partners of such change in the next regular communication by the Partnership to the Partners. Notwithstanding any provision in this Agreement and without the consent of any Limited Partner or other Person, the General Partner may amend this Agreement and the Certificate of Limited Partnership of the Partnership to reflect any change in the name of the Partnership.

2.03          Registered Office and Agent; Principal Office. The address of the registered office of the Partnership in the State of Delaware is located at Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808, and the registered agent for service of process on the Partnership in the State of Delaware at such address is the Corporation Service Company, a Delaware corporation. The General Partner may, from time to time, designate a new registered agent and/or registered office for the Partnership and, notwithstanding any provision in this Agreement, may amend this Agreement and the Certificate of Limited Partnership of the Partnership to reflect such designation without the consent of the Limited Partners or any other Person. The principal office of the Partnership is located at: c/o New York City REIT, Inc., 650 Fifth Avenue, 30th Floor, New York, New York 10019 or such other place as the General Partner may from time to time designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places as the General Partner deems necessary or desirable.

2.04         Term and Dissolution.

(a)          The term of the Partnership shall continue in full force and effect until the Partnership is dissolved and its affairs are wound up upon the first to occur of any of the following events:

(i)            the occurrence of an Event of Bankruptcy as to a General Partner or the dissolution, death, removal or withdrawal of a General Partner or any other event that results in the General Partner ceasing to be a general partner of the Partnership under the Act unless (A) the business of the Partnership is continued pursuant to Section 7.04(b) hereof, or (B) at the time of the occurrence of such event there is at least one remaining general partner of the Partnership who is hereby authorized to and does carry on the business of the Partnership;

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

(iii)          the redemption of all Limited Partnership Interests, unless the General Partner determines to continue the Partnership by the admission of one or more additional Limited Partners effective as of such redemption;

(iv)          the election in writing by the General Partner that the Partnership should be dissolved;

(v)           at any time there are no limited partners of the Partnership, unless the business of the Partnership is continued in accordance with the Act; or

(vi)          the entry of a decree of judicial dissolution of the Partnership under Section 17-802 of the Act.

(b)          Upon dissolution of the Partnership (unless the business of the Partnership is continued pursuant to Section 7.04(b) hereof), the General Partner (or, if dissolution of the Partnership should occur by reason of Section 2.04(a)(i) or the General Partner is unable to act as liquidator, a liquidating trustee of the Partnership or other representative designated by a Majority in Interest) shall proceed to wind up the affairs of the Partnership, liquidate the Partnership’s assets and apply and distribute the proceeds thereof in accordance with Section 5.06 hereof. Notwithstanding the foregoing, the General Partner or the liquidating trustee, as the case may be, may, subject to the Act, either (i) defer liquidation of, or withhold from distribution for a reasonable time, any assets of the Partnership (including those necessary to satisfy the Partnership’s debts and obligations), or (ii) distribute the assets to the Partners in kind.

(c)          The Partnership shall terminate when (i) all of the assets of the Partnership, after payment of or due provision for all debts, liabilities and obligations of the Partnership shall have been distributed to the Partners in the manner provided for in this Agreement and (ii) the Certificate of Limited Partnership of the Partnership shall have been canceled in the manner required by the Act.

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

2.06          Certificates Describing Partnership Units. The Partnership Interests shall not be evidenced by certificates unless requested by a Partner. At the request of a Partner, the General Partner, at its option, may issue a certificate evidencing such Partner’s Partnership Interests, including the class or series and number of Partnership Units owned and the Percentage Interest represented by such Partnership Units as of the date of such certificate. Any such certificate (i) shall be in form and substance as determined by the General Partner, (ii) shall not be negotiable and (iii) shall bear a legend to the following effect:

THIS CERTIFICATE IS NOT NEGOTIABLE. THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY AND TRANSFERABLE ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF NEW YORK CITY Operating Partnership, L.P., AS AMENDED, SUPPLEMENTED OR RESTATED FROM TIME TO TIME.

Each certificate evidencing Partnership Interests shall be executed by manual or facsimile signature of the General Partner on behalf of the Partnership. The Partnership shall maintain books for the purpose of registering the transfer of Partnership Interests. In connection with a Partner’s transfer in accordance with this Agreement of any Partnership Interests, the certificate(s) evidencing the Partnership Interests, if any, shall be delivered to the Partnership for cancellation, and the Partnership shall thereupon issue a new certificate to the transferee evidencing the Partnership Interests that were transferred and, if applicable, the Partnership shall issue a new certificate to the transferor evidencing any Partnership Interests registered in the name of the transferor that were not transferred.

Each Partnership Interest shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) the corresponding provisions of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995.

ARTICLE III
BUSINESS OF THE PARTNERSHIP

The purpose and nature of the business to be conducted by the Partnership is (i) to conduct any business that may be lawfully conducted by a limited partnership organized pursuant to the Act, (ii) to enter into any partnership, joint venture or other similar arrangement for the purpose of engaging in any of the foregoing or the ownership and disposition of interests in any entity engaged in any of the foregoing and (iii) to do anything necessary or incidental to the foregoing; provided, however, that any business to be conducted by the Partnership shall be limited to and conducted in such a manner as to permit the General Partner at all times to qualify as a REIT, unless the General Partner otherwise ceases to, or the Board of Directors determines that the General Partner shall no longer, qualify as a REIT. In connection with the foregoing, and without limiting the General Partner’s right in its sole and absolute discretion to cease qualifying as a REIT, the Partners acknowledge that the General Partner has elected REIT status and the General Partner’s continued qualification as a REIT and the avoidance of income and excise taxes on the General Partner inure to the benefit of all the Partners and not solely to the General Partner. Notwithstanding the foregoing, the Partners agree that the General Partner may terminate or revoke its status as a REIT under the Code at any time. The General Partner shall also be empowered to do any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” taxable as a corporation for purposes of Section 7704 of the Code.

ARTICLE IV
CAPITAL CONTRIBUTIONS AND ACCOUNTS

4.01          Capital Contributions. The General Partner and each Limited Partner has made (or shall be deemed to have made) a Capital Contribution to the Partnership in exchange for the Partnership Units set forth opposite such Partner’s name on Schedule A hereto, as it may be amended or restated from time to time by the General Partner to the extent necessary to reflect accurately sales, exchanges or other Transfers, redemptions, Capital Contributions, the issuance of additional Partnership Units or similar events having an effect on a Partner’s ownership of Partnership Units.

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

(a)           Issuances of Additional Partnership Units.

(i)            General. As of the effective date of this Agreement, the Partnership shall have three classes of Partnership Units, entitled “Class A Units,” “Class B Units” and “LTIP Units” respectively. The Class B Units and LTIP Units shall have the same rights, privileges and preferences as the Class A Units, except as set forth in Articles XII and XIII hereof. Notwithstanding any provision of this Agreement, the General Partner is hereby authorized to cause the Partnership to issue such additional Partnership Interests, in the form of Partnership Units, for any Partnership purpose at any time or from time to time to the Partners (including the General Partner and/or any Limited Partner) or to other Persons, and admit such Persons as additional general partners of the Partnership pursuant to Section 7.03 or additional Limited Partners pursuant to this Section 4.02, for such consideration, or in connection with the performance of past, present or future services to the Partnership, and on such terms and conditions as shall be established by the General Partner in its sole and absolute discretion, all without the approval of any Limited Partners or any other Person. Notwithstanding any provision of this Agreement, a Person shall be deemed admitted to the Partnership as an additional Limited Partner upon the written consent of the General Partner and the execution of a counterpart to this Agreement by such Person. The General Partner’s determination that consideration is adequate shall be conclusive insofar as the adequacy of consideration relates to whether the Partnership Units are validly issued and fully paid. Notwithstanding any provision of this Agreement, any additional Partnership Units issued thereby may be issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers, preferences and duties, including rights, powers, preferences and duties senior and superior to the then-outstanding Partnership Units held by the Limited Partners, all as shall be determined by the General Partner in its sole and absolute discretion and without the approval of any Limited Partner or other Person, including, without limitation, (i) the allocations of items of Partnership income, gain, loss, deduction and credit to each such class or series of Partnership Units; (ii) the right of each such class or series of Partnership Units to share in Partnership distributions; (iii) the rights of each such class or series of Partnership Units upon dissolution and liquidation of the Partnership; and (iv) the right, if any, of the holder of each such class or series of Partnership Units to vote on Partnership matters; provided, however, that no additional Partnership Units shall be issued to the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) unless:

(1)            (A) the additional Partnership Units are issued in connection with an issuance of REIT Shares or other interests in the General Partner, which shares or interests have designations, preferences and other rights, all such that the economic interests are substantially similar to the designations, preferences and other rights of the additional Partnership Units issued to the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) by the Partnership in accordance with this Section 4.02 and (B) the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) shall make a Capital Contribution to the Partnership in an amount equal to the consideration received by the General Partner from the issuance of such REIT Shares or other interests in the General Partner;

(2)            (A) the additional Partnership Units are issued in connection with an issuance of REIT Shares or other interests in the General Partner pursuant to a taxable share dividend declared by the General Partner, which shares or interests have designations, preferences and other rights, all such that the economic interests are substantially similar to the designations, preferences and other rights of the additional Partnership Units issued to the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) by the Partnership in accordance with this Section 4.02, (B) if the General Partner allows the holders of REIT Shares to elect whether to receive such dividend in REIT Shares, other interests of the General Partner or cash, the Partnership will give the Limited Partners (excluding the General Partner or any direct or indirect Subsidiary of the General Partner) the same election to elect to receive (I) Partnership Units or cash or, (II) at the election of the General Partner, REIT Shares or cash, and (C) if the Partnership issues additional Partnership Units pursuant to this Section 4.02(a)(i)(2), then an amount of income equal to the value of the Partnership Units received will be allocated to those holders of Class A Units that elect to receive additional Partnership Units;

(3)            the additional Partnership Units are issued in exchange for property owned by the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) with a fair market value, as determined by the General Partner, in good faith, equal to the value of the Partnership Units; or

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

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

Notwithstanding any provision in this Agreement, the General Partner may amend this Agreement in any manner in connection with the creation, authorization and/or issuance of any additional Partnership Interests, all without the approval of the Limited Partners or any other Person.

(ii)            Upon Issuance of Additional Securities. The General Partner shall not issue any additional REIT Shares (other than REIT Shares issued in connection with an exchange pursuant to Section 8.04 hereof or a taxable share dividend as described in Section 4.02(a)(i)(2) hereof) or Rights (collectively, “Additional Securities”) other than to all holders of REIT Shares, unless (A) the General Partner shall cause the Partnership to issue to the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) Partnership Units or Rights having designations, preferences and other rights, all such that the economic interests are substantially similar to those of the Additional Securities, and (B) the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) contributes the proceeds from the issuance of such Additional Securities and from any exercise of Rights contained in such Additional Securities to the Partnership. Without limiting the foregoing, the General Partner is expressly authorized to issue Additional Securities for less than fair market value, and the General Partner is authorized to cause the Partnership to issue to the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) corresponding Partnership Units, so long as (x) the General Partner concludes in good faith that such issuance is in the best interests of the Partnership and (y) the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) contributes all proceeds from such issuance to the Partnership, including without limitation, the issuance of REIT Shares and corresponding Partnership Units pursuant to a share purchase plan providing for purchases of REIT Shares at a discount from fair market value or pursuant to awards issued in accordance with the terms of any Equity Plan, including options that have an exercise price that is less than the fair market value of the REIT Shares, either at the time of issuance or at the time of exercise, and restricted or other share awards approved by the Board of Directors. For example, in the event the General Partner issues REIT Shares for a cash purchase price and the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) contributes all of the proceeds of such issuance to the Partnership as required hereunder, the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) shall be issued a number of additional Partnership Units equal to the product of (A) the number of such REIT Shares issued by the General Partner, the proceeds of which were so contributed, divided by (B) the Conversion Factor in effect on the date of such contribution.

(b)            Certain Contributions of Proceeds of Issuance of REIT Shares. In connection with any and all issuances of REIT Shares, the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) shall make Capital Contributions to the Partnership of the proceeds therefrom, provided, that if the proceeds actually received and contributed by the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) are less than the gross proceeds of such issuance as a result of any underwriter’s discount, commissions, placement fees or other expenses paid or incurred in connection with such issuance, then the General Partner (or any direct or indirect wholly owned Subsidiary of the General Partner) shall make a Capital Contribution to the Partnership constituting the sum of (i) such net proceeds and (ii) an intangible asset in an amount equal to the capitalized costs of the General Partner relating to such issuance of REIT Shares or other interests in the General Partner.

(c)            Redemptions or Repurchases of Shares. If the General Partner shall redeem or repurchase shares of any class of its shares of common stock, the purchase price thereof and all costs incurred in connection with such redemption or repurchase shall be reimbursed to the General Partner by the Partnership pursuant to Section 6.05 hereof and the General Partner shall cause the Partnership to redeem or repurchase an equivalent number of Partnership Units of the appropriate class or series held by the General Partner (which, in the case of REIT Shares, shall be a number equal to the quotient of the number of such REIT Shares divided by the Conversion Factor) in the manner provided in Section 6.10 hereof.

(d)          Equity Plans. Notwithstanding anything in this Agreement to the contrary, if at any time or from time to time:

(i)            restricted REIT Shares are issued in accordance with the terms of any Equity Plan, the General Partner shall: (A) be deemed to have contributed to the Partnership as a Capital Contribution an amount equal to the Value of a REIT Share multiplied by the number of restricted REIT Shares issued by the General Partner to the recipient of such restricted REIT Shares; and (B) cause the Partnership to issue to the General Partner a number of Class A Units equal to the number of restricted REIT Shares delivered by the General Partner to such recipient of restricted REIT Shares divided by the Conversion Factor, which Class A Units shall be subject to the same or substantially similar restrictions and other conditions (including forfeiture) imposed on the restricted REIT Shares including restrictions as to the payment of distributions, if any;

(ii)            options granted in accordance with the terms of any Equity Plan are exercised, the General Partner shall: (A) as soon as practicable after such exercise, contribute to the Partnership as a Capital Contribution an amount equal to the exercise price paid to the General Partner by such exercising party in connection with the exercise of the options; (B) be deemed to have contributed to the Partnership as a Capital Contribution an amount equal to the excess of the Value of a REIT Share (as of the Business Day immediately preceding the date on which the purchase of the REIT Shares by such exercising party is consummated) over the amount per REIT Share contributed in respect of the exercise of such options pursuant to clause (A) above multiplied by the number of REIT Shares delivered by the General Partner to such exercising party; and (C) cause the Partnership to issue to the General Partner a number of Class A Units equal to the number of REIT Shares delivered by the General Partner to such exercising party divided by the Conversion Factor; and

(iii)            REIT Shares are issued to or acquired by a Participant in any Equity Plan in connection with stock appreciation rights, restricted stock units or any other stock-based awards granted to such Participant in accordance with the terms of such Equity Plan, the General Partner shall: (A) contribute to the Partnership as a Capital Contribution any amount paid to the General Partner by such Participant in connection with the receipt of such REIT Shares; (B) be deemed to have contributed to the Partnership as a Capital Contribution an amount equal to the excess of the Value of a REIT Share (as of the Business Day immediately preceding the date on which the REIT Shares are issued to or acquired by such Participant) over the amount per REIT Share contributed pursuant to clause (A) above multiplied by the number of REIT Shares delivered by the General Partner to such Participant; and (C) cause the Partnership to issue to the General Partner a number of Class A Units equal to the number of REIT Shares delivered by the General Partner to such Participant divided by the Conversion Factor.

4.03         Additional Funding. If the General Partner determines that it is in the best interests of the Partnership to provide for additional Partnership funds (“Additional Funds”) for any Partnership purpose, the General Partner may (a) cause the Partnership to obtain such funds from outside borrowings, or (b) elect to have the General Partner or any of its Affiliates provide such Additional Funds to the Partnership through loans or otherwise. The General Partner shall not issue any debt securities or notes or otherwise obtain funds from outside borrowings unless the General Partner lends to the Partnership (i) the proceeds of, or consideration received for, such debt securities, notes or outside borrowings on the same terms and conditions, including interest rate and repayment schedule, as shall be applicable with respect to or incurred in connection with the issuance of such debt securities or notes or in connection with otherwise obtaining funds from outside borrowings, and (ii) the proceeds of, or consideration received from, any subsequent exercise, exchange or conversion thereof (if applicable).

4.04         Capital Accounts. A separate Capital Account shall be established and maintained for each Partner.

4.05         Percentage Interests. If the number of outstanding Class A Units, Class B Units, LTIP Units or other class or series of Partnership Units increases or decreases during a taxable year, each Partner’s Percentage Interest shall be adjusted by the General Partner effective as of the effective date of each such increase or decrease to a percentage equal to the number of Class A Units, Class B Units, LTIP Units or other class or series of Partnership Units held by such Partner divided by the aggregate number of Class A Units, Class B Units, LTIP Units or other class or series of Partnership Units, as applicable, outstanding after giving effect to such increase or decrease. If the Partners’ Percentage Interests are adjusted pursuant to this Section 4.05, the Net Income and Net Loss for the taxable year in which the adjustment occurs shall be allocated between the part of the year ending on the effective date of such adjustment and the part of the year beginning on the following day either (i) as if the taxable year had ended on the date of the adjustment or (ii) based on the number of days of the taxable year without regard to the results of Partnership activities in the respective portions of such taxable year; provided, however, that the General Partner may apply a different method if required by applicable law. The General Partner, in its sole and absolute discretion, shall determine which method shall be used to allocate Net Income and Net Loss for the taxable year in which the adjustment occurs. The allocation of Net Income and Net Loss for the earlier part of the year shall be based on the Percentage Interests before adjustment, and the allocation of Net Income and Net Loss for the later part shall be based on the adjusted Percentage Interests.

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

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

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

ARTICLE V
NET INCOME AND NET LOSS; DISTRIBUTIONS

5.01         Allocations.

(a)            Allocations of Net Income and Net Loss. Except as otherwise provided in this Agreement, after giving effect to the special allocations in Sections 5.01(c) and 5.01(d), Net Income, Net Loss, and, to the extent necessary and without duplication, individual items thereof, shall be allocated among the Partners in a manner such that the Capital Account of each Partner, immediately after making such allocation, is, as nearly as possible, equal proportionately to (i) the distributions that would be made to such Partner pursuant to Section 5.06 if (A) the Partnership were dissolved, its affairs wound up and its assets sold for cash equal to their Gross Asset Value, as determined in the reasonable discretion of the General Partner, (B) all Partnership liabilities were satisfied (limited with respect to each nonrecourse liability to the Gross Asset Value of the assets securing such liability), and (C) the net assets of the Partnership were distributed in accordance with Section 5.06 to the Partners immediately after making such allocation, minus (ii) such Partner’s share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain and the amount, if any and without duplication, that the Partner would be obligated to contribute to the capital of the Partnership, all computed immediately prior to the hypothetical sale of assets

(b)            [Reserved]

(c)            Special Allocations

(i)            Special Allocations Regarding Class B Units. Notwithstanding any other provisions of this Sections 5.01, after giving effect to the regulatory allocations in Section 5.01(d) but prior to any allocations under Section 5.01(a), Net Property Gain and, to the extent necessary, individual items of gain thereof, shall be allocated to the Partners holding Class B Units until their Class B Economic Capital Account Balances are equal to (A) the Class A Unit Economic Balance, multiplied by (B) the number of their Class B Units; provided, that no such Net Property Gain and, to the extent necessary, individual items of income and gain comprising Net Property Gain of the Partnership, will be allocated with respect to any particular Class B Unit unless and to the extent that the Class A Unit Economic Balance exceeds the Class A Unit Economic Balance in existence at the time such Class B Unit was issued. Any allocations made pursuant to the first sentence of this Section 5.01(c)(i) shall be made among the holders of Class B Units in proportion to the amounts required to be allocated to each under this Section 5.01(c)(i). The parties agree that the intent of this Section 5.01(c)(i) is to make the Capital Account balance associated with each Class B Unit to be economically equivalent to the Capital Account balance associated with the Class A Units outstanding (on a per-unit basis), but only if and to the extent that the Capital Account balance associated with the Class A Units outstanding, without regard to the allocations under this Section 5.01(c), has increased on a per-unit basis since the issuance of the relevant Class B Unit.

(ii)            Special Allocations Regarding the Special Limited Partner Interest. Notwithstanding any other provisions of this Sections 5.01, after giving effect to the regulatory allocations in Section 5.01(d) and the special allocations in Section 5.01(c)(i), but prior to any allocations under Section 5.01(a), Net Property Gain and, to the extent necessary, individual items of gain thereof, shall be allocated to the Special Limited Partner until the Special Limited Partner has received aggregate allocations of income for all fiscal years equal to the Listing Amount.

(iii)            Special Allocations Regarding LTIP Units. Notwithstanding any other provisions of this Sections 5.01, after giving effect to the regulatory allocations in Section 5.01(d) and the special allocations in Sections 5.01(c)(i) and 5.01(c)(ii), but prior to any allocations under Section 5.01(a), Net Property Gain and, to the extent necessary, individual items of gain thereof, shall be allocated to the LTIP Unitholders until their LTIP Economic Capital Account Balances are equal to (i) the Class A Unit Economic Balance, multiplied by (ii) the number of their LTIP Units; provided that no such Net Property Gain and, to the extent necessary, individual items of income and gain comprising Net Property Gain of the Partnership, will be allocated with respect to any particular LTIP Unit unless and to the extent that the Class A Unit Economic Balance exceeds the Class A Unit Economic Balance in existence at the time such LTIP Unit was issued. Any allocations made pursuant to the first sentence of this Section 5.01(c)(iii) shall be made among the LTIP Unitholders in proportion to the amounts required to be allocated to each under this Section 5.01(c)(iii). The parties agree that the intent of this Section 5.01(c)(iii) is to make the Capital Account balance associated with each LTIP Unit to be economically equivalent to the Capital Account balance associated with the Class A Units outstanding (on a per-unit basis), but only if and to the extent that the Capital Account balance associated with the Class A Units outstanding, without regard to the allocations under this Section 5.01(c), has increased on a per-unit basis since the issuance of the relevant LTIP Unit.

(d)           Regulatory Allocations.

(i)            Minimum Gain Chargeback (Nonrecourse Liabilities). Except as otherwise provided in Section 1.704-2(f) of the Regulations, if there is a net decrease in Partnership Minimum Gain for any Partnership fiscal year, each Partner shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Partner’s share of the net decrease in Partnership Minimum Gain determined in accordance with Section 1.704-2(g) of the Regulations. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and (j)(2) of the Regulations. This Section 5.01(d)(i) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith. Allocations pursuant to this Section 5.01(d)(i) shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant hereto.

(ii)            Partner Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any fiscal year, each Partner who has a share of the Partner Nonrecourse Debt Minimum Gain attributable to that Partner Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to that Partner’s share of the net decrease in the Partner Nonrecourse Debt Minimum Gain to the extent and in the manner required by Section 1.704-2(i) of the Regulations. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and (j)(2) of the Regulations. This Section 5.01(d)(ii) is intended to comply with the minimum gain chargeback requirement with respect to Partner Nonrecourse Debt contained in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith. Allocations pursuant to this Section 5.01(d)(ii) shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant hereto.

(iii)            Qualified Income Offset. If a Partner unexpectedly receives any adjustments, allocations or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, and such Partner has an Adjusted Capital Account Deficit, items of Partnership income (including gross income) and gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate the Adjusted Capital Account Deficit as quickly as possible as required by the Regulations. This Section 5.01(d)(iii) is intended to constitute a “qualified income offset” under Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.

(iv)            Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or other applicable period shall be allocated to the Partners in accordance with their respective Percentage Interests.

(v)            Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any fiscal year or other applicable period with respect to a Partner Nonrecourse Debt shall be specially allocated to the Partner that bears the economic risk of loss for such Partner Nonrecourse Debt to which those Partner Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i)(1) of the Regulations.

(vi)            Section 754 Adjustment. To the extent an adjustment to the adjusted tax basis of any asset of the Partnership pursuant to Section 734(b) of the Code or Section 743(b) of the Code is required, pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations, to be taken into account in determining Capital Accounts, 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 among the Partners in a manner consistent with the manner in which each of their respective Capital Accounts are required to be adjusted pursuant to such section of the Regulations.

(vii)            Capital Account Deficits. If any Partner has an Adjusted Capital Account Deficit at the end of any fiscal year or other applicable period which is in excess of the amount such Partner is obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), such Partner shall be specially allocated items of Partnership income and gain in the amount of such excess as quickly as possible, provided, that an allocation pursuant to this Section 5.01(d)(vii) shall be made only if and to the extent that such Partner would have an Adjusted Capital Account Deficit in excess of such amount after all other allocations provided for under this Agreement have been made as if Section 5.01(d)(iii) and this Section 5.01(d)(vii) were not in this Agreement.

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

(f)            Tax Allocations.

(i)            Items of Income or Loss. Except as is otherwise provided in this Section 5.01, an allocation of Net Income, Net Loss, or any items thereof to a Partner shall be treated as an allocation to such Partner of the same share of each item of income, gain, loss, deduction and item of tax-exempt income or Section 705(a)(2)(B) expenditure (or item treated as such expenditure pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations) (“Tax Items”) that is taken into account in computing Net Income or Net Loss.

(ii)            Section 1245/1250 Recapture. Subject to Section 5.01(f)(iii) below, if any portion of gain from the sale of Partnership assets is treated as gain which is ordinary income by virtue of the application of Sections 1245 or 1250 of the Code (“Affected Gain”), then such Affected Gain shall, to the extent possible, be allocated among the Partners in the same proportion that the depreciation and amortization deductions giving rise to the Affected Gain were allocated. This Section 5.01(f)(ii) shall not alter the amount of Net Income (or items thereof) allocated among the Partners, but merely the character of such Net Income (or items thereof). For purposes hereof, in order to determine the proportionate allocations of depreciation and amortization deductions for each fiscal year or other applicable period, such deductions shall be deemed allocated on the same basis as Net Income or Net Loss for such respective period.

(iii)            Precontribution Gain, Revaluations. With respect to any Contributed Property, the Partnership shall use any permissible method contained in the Regulations promulgated under Section 704(c) of the Code selected by the General Partner, in its sole discretion, to take into account any variation between the adjusted basis of such asset and the fair market value of such asset as of the time of the contribution (“Precontribution Gain”). Each Partner hereby agrees to report income, gain, loss and deduction on such Partner’s U.S. federal income tax return in a manner consistent with the method used by the Partnership. If any asset has a Gross Asset Value which is different from the Partnership’s adjusted basis for such asset for U.S. federal income tax purposes because the Partnership has revalued such asset pursuant to Section 1.704-1(b)(2)(iv)(f) of the Regulations, the allocations of Tax Items shall be made in accordance with the principles of Section 704(c) of the Code and the Regulations and the methods of allocation promulgated thereunder. The intent of this Section 5.01(f)(iii) is that each Partner who contributed to the capital of the Partnership a Contributed Property will bear, through reduced allocations of depreciation, increased allocations of gain or other items, the tax detriments associated with any Precontribution Gain. This Section 5.01(f)(iii) is to be interpreted consistently with such intent.

(iv)            Excess Nonrecourse Liability Safe Harbor. Pursuant to Section 1.752-3(a)(3) of the Regulations, solely for purposes of determining each Partner’s proportionate share of the “excess nonrecourse liabilities” of the Partnership (within the meaning of Section 1.752-3(a)(3) of the Regulations), the Partners’ respective interests in Partnership profits shall be determined under any permissible method reasonably determined by the General Partner; provided, however, that each Partner who has contributed an asset to the Partnership shall be allocated, to the extent possible, a share of “excess nonrecourse liabilities” of the Partnership which results in such Partner being allocated nonrecourse liabilities in an amount which is at least equal to the amount of income required to be allocated to such Partner pursuant to Section 704(c) of the Code and the Regulations promulgated thereunder (the “Liability Shortfall”). If there is an insufficient amount of nonrecourse liabilities to be able to allocate to each Partner nonrecourse liabilities equal to the Liability Shortfall, nonrecourse liabilities shall be allocated to each Partner in pro rata in accordance with each such Partner’s Liability Shortfall.

5.02         Distribution of Cash.

(a)           Cash Available for Distribution. Subject to the other provisions of this Article V, the General Partner shall cause the Partnership to distribute Cash Available for Distribution, at such times and in such amounts as are, subject to the terms and conditions of this Agreement, determined by the General Partner in its sole and absolute discretion, to the Partners who are Partners on the Partnership Record Date with respect to such quarter (or other distribution period), as follows:

(i)            first, subject to Section 5.02(c) and Section 13.01(c)(iv), 100% to the Partners holding Partnership Units (including Vested LTIP Units and Unvested LTIP Units) until the aggregate amount distributed under this Section 5.02(a)(i) is equal to (x) the per-share distribution on the related record date established by the General Partner for a dividend or other distribution to its stockholders in respect of REIT Shares, multiplied by (y) the number of Partnership Units, pro rata and pari passu in proportion to their respective Percentage Interests; provided, however, that solely for the purpose of determining the number of Partnership Units and the related Percentage Interests under this Section 5.02(a)(i), the number of LTIP Units held by the Partners with respect to which the LTIP Unit Distribution Participation Date has not occurred prior to the applicable Partnership Record Date shall be divided by 10; and

(ii)            thereafter, subject to the obligation to make Catch-Up Distributions under Section 5.02(a)(iii) and Section 5.02(c), 100% to the Partners holding Class A Units, Class B Units and LTIP Units, pro rata and pari passu in proportion to their respective Percentage Interests; provided, however that Net Operating Income distributed pursuant to this Section 5.02(a)(ii) shall not be subject to the limitations in Section 5.02(c).

(iii)            Notwithstanding anything to the contrary in this Agreement, prior to making any distributions under Section 5.02(a)(ii), any LTIP Unitholder who received distributions under Section 5.02(a)(i) in respect of an LTIP Unit with respect to which the LTIP Unit Distribution Participation Date had not yet occurred prior to the applicable Partnership Record Date will be entitled to receive distributions pursuant to this Section 5.02(a)(iii) in respect of that LTIP Unit following the Determination Date (any such distribution, a “Catch-Up Distribution”). Catch-Up Distributions will be made by the Partnership in respect of any such LTIP Units, pro rata, in proportion to their respective unreturned Catch-Up Distributions until such amounts have been reduced to zero. The Catch-Up Distribution for any such LTIP Unit will be equal to the sum of (A) the difference between (1) the cumulative distributions paid in respect of a Class A Unit that was issued and outstanding as of the date such LTIP Unit was issued, after the date such LTIP Unit was issued through the Determination Date, minus (2) the aggregate distributions paid with respect to that LTIP Unit under Section 5.02(a)(i), plus (B) the cumulative distributions paid to a Class A Unit under Section 5.02(a)(ii) in respect of Partnership Record Dates during the period beginning on the date such LTIP Unit was issued and ending on the Determination Date. The Catch-Up Distributions shall be adjusted as necessary to reflect any adjustment pursuant to Section 13.01(a) in connection with an Adjustment Event or otherwise that occurred during that period following the date such LTIP Unit was issued and on or prior to the Determination Date.

(b)           Net Sales Proceeds. Subject to the other provisions of this Article V, the General Partner shall cause the Partnership to distribute Net Sales Proceeds, at such times and in such amounts as are, subject to the terms and conditions of this Agreement, determined by the General Partner in its sole and absolute discretion, to the Partners who are Partners on the Partnership Record Date with respect to such quarter (or other distribution period):

(i)           (A) 15% to the Special Limited Partner, and (B) 85% to the Partners holding Class A Units, Class B Units or LTIP Units pro rata and pari passu in proportion to each such Partner’s respective Percentage Interest with respect to such Class A Units, Class B Units or LTIP Units; provided, that:

(1)            to the extent the Average Class B Economic Capital Account Balance of a holder of Class B Units is less than the Class A Unit Economic Balance, the Percentage Interest of such Partner holding Class B Units with respect to such Class B Units shall be reduced for purposes of determining its proportionate share of distributions pursuant to this Section 5.02(b) to equal such Partner’s Percentage Interest with respect to its Class B Units multiplied by a fraction, the numerator of which is such Partner’s Average Class B Economic Capital Account Balance, and the denominator of which is the Class A Unit Economic Balance;

(2)            to the extent the Average LTIP Economic Capital Account Balance of a holder of LTIP Units is less than the Class A Unit Economic Balance, the Percentage Interest of such Partner holding LTIP Units with respect to such LTIP Units shall be reduced for purposes of determining its proportionate share of distributions pursuant to this Section 5.02(b) to equal such Partner’s Percentage Interest with respect to its LTIP Units multiplied by a fraction, the numerator of which is such Partner’s Average LTIP Economic Capital Account Balance, and the denominator of which is the Class A Unit Economic Balance; and

(3)            the aggregate amount of distributions of Net Sales Proceeds to the Special Limited Partner pursuant to clause (A) shall not exceed the Listing Amount, after which 100% of Net Sales Proceeds will be distributed pursuant to Section 5.02(b)(i)(B).

For the avoidance of doubt, any decrease in the Percentage Interest of a Partner with respect to its Class B Units or LTIP Units shall result in a corresponding increase in the Percentage Interests of Partners with respect to their Class A Units, their Class B Units (and LTIP Units to the extent such LTIP Units are eligible for conversion pursuant to Section 13.02(b) but have not been converted).

(c)           Limitation on Distributions on Class B Units and LTIP Units. It is the intention of the parties to this Agreement that distributions to any Partner in respect of its Class B Units and LTIP Units shall be limited to the extent necessary so that such Partnership Units constitute a profits interest for all U.S. federal income tax purposes as set forth in Section 13.05 and Section 12.05(e), respectively. Accordingly, and notwithstanding anything to the contrary in this Agreement, a Partner’s entitlement to cumulative distributions under Article V shall be appropriately limited so that the Class B Units and LTIP Units qualify as profits interests.

(i)            Profits Interest Distribution Limitation. A Partner shall only participate in distributions under Article V in respect of any Class B Unit or LTIP Unit to the extent that in respect of a distribution date, on the related Partnership Record Date, either (x) the Partnership has Net Operating Income, or (y) the net value of the Partnership, plus any prior distributions under Section 5.02(b), equals or exceeds the Valuation Threshold for that Class B Unit or LTIP Unit (the limitation on distributions described in this Section 5.02(b)(ii)(1), the “Profits Interest Distribution Limitation”).

(ii)            Reallocation of Limited Distributions. Cash Available for Distribution or Net Sales Proceeds that otherwise would have been distributed to a Limited Partner in respect of Class B Unit or LTIP Unit but for the Profits Interest Distribution Limitation shall, instead, be distributed to the other Limited Partners in respect of other Partnership Units in accordance with Section 5.02(a) or Section 5.02(b)(i), respectively (including by operation of Section 5.06), but solely to the extent that distributions in respect of those Partnership Units are not subject to the Profits Interest Distribution Limitation.

(iii)            Profits Interest Catch-Up Distributions. If one or more Class B Units or LTIP Units had been subject to the Profits Interest Distribution Limitation and, after taking into account the Profits Interest Distribution Limitation, such Partnership Units are no longer so limited, then, prior to making any further distributions under Section 5.02(b) to any Persons who received distributions under Section 5.02(b) in respect of those Class B Units or LTIP Units, all distributions pursuant to Section 5.02(b) that otherwise would have been made to such Persons shall instead be made to the Limited Partner(s) in respect of the Class B Units or LTIP Units that were subject to the Profits Interest Distribution Limitation until the aggregate amount distributed to each such Limited Partner under this Section 5.02(c)(iii) equals the aggregate amount that would have been distributed to each such Limited Partner had such Limited Partner’s respective Class B Unit or LTIP Unit been issued with a Profits Interest Threshold equal to zero (the “Profits Interest Catch-Up Distributions”), in proportion to their respective Profits Interest Catch-Up Distributions.

(iv)            Authority to Make Adjustments. The General Partner shall have the authority to make such adjustments to distributions pursuant to Article V (and corresponding allocations under Section 5.01) as it determines in good faith are necessary to effectuate the intent of this Section 5.02(c).

(d)           Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law including, without limitation, pursuant to Sections 1441, 1442, 1445, 1446, 1471 or 1472 of the Code and, without duplication of Section 10.05(a), to pay any taxes arising under the Revised Partnership Audit Procedures, including any “imputed underpayment” within the meaning of Section 6225 of the Code of the Partnership as a result of an adjustment with respect to any Partnership item, including interest or penalties with respect to any such adjustment (and any corresponding amounts for state or local tax purposes). Any Tax Liability in respect of a Partner shall constitute a loan by the Partnership to such Partner, except to the extent (i) the Partnership withholds the Tax Liability from a distribution that would otherwise be made to that Partner (or its assignee); or (ii) the General Partner determines, in its sole and absolute discretion, that the Tax Liability may be satisfied out of the available funds of the Partnership that, but for that Tax Liability, would be distributed to that Partner (or its assignee) (such loaned amount, a “Partnership Loan”). Any Tax Liabilities described in the foregoing clauses (i) or (ii) shall be treated as having been distributed to the related Partner (or its assignee) under this Agreement. For the avoidance of doubt, assessments under the Revised Partnership Audit Procedures shall (x) be treated as expenditures of the Partnership described in Section 705(a)(2)(B) of the Code, (y) be specially allocated to the Partners to whom such amounts are attributable, as reasonably determined in good faith by the General Partner, and (z) reduce the amounts otherwise distributable to such Partners under this Agreement, as if such amounts were distributed to them, as reasonably determined in good faith by the General Partner. A Partner and the Special Limited Partner shall repay a Partnership Loan upon the demand of the Partnership or, alternatively, through withholding by the Partnership with respect to subsequent distributions to the applicable Partner, the Special Limited Partner, or assignee of such Partner or the Special Limited Partner. In the event that a Limited Partner or the Special Limited Partner fails to pay any amount owed to the Partnership with respect to the Partnership Loan within 15 days after demand for payment thereof is made by the Partnership on the Limited Partner or the Special Limited Partner, as applicable, the General Partner, in its sole and absolute discretion, may elect to make the payment to the Partnership on behalf of such Defaulting Limited Partner. In such event, on the date of payment, the General Partner shall be deemed to have extended a General Partner Loan to the Defaulting Limited Partner in the amount of the payment made by the General Partner and the General Partner shall succeed to all rights and remedies of the Partnership against the Defaulting Limited Partner as to that amount. Without limitation, the General Partner shall have the right to receive any distributions that otherwise would be made by the Partnership to the Defaulting Limited Partner until such time as the General Partner Loan has been paid in full, and any such distributions so received by the General Partner shall be treated as having been received by the Defaulting Limited Partner and immediately paid to the General Partner. In addition to all other remedies that the Partnership may be entitled to pursue, in the event that a Limited Partner fails to pay any amount when due pursuant to this Section 5.02(d), the Partnership may thereafter, at any time prior to the Limited Partner’s payment in full of such amount (plus any accrued interest), elect to redeem Partnership Units held by such Limited Partner, in accordance with the procedures set forth in Section 8.04 with the valuation date being the date the Partnership elects to redeem such Partnership Units, in an amount sufficient to pay any or all of such amount. In the event that proceeds to the Partnership are reduced on account of taxes withheld at the source or the Partnership incurs a liability and such taxes (or a portion thereof) are imposed on or with respect to one or more, but not all, of the Partners or if the rate of tax varies depending on the attributes of specific Partners or to whom the corresponding income is allocated, the amount of the reduction in the Partnership’s net proceeds shall be borne by and apportioned among the relevant Partners and treated as if it were paid by the Partnership as a withholding obligation with respect to such Partners in accordance with such apportionment.

Any amounts treated as a Partnership Loan or a General Partner Loan pursuant to this Section 5.02(d) shall bear interest at the lesser of (i) 400 basis points above the highest base rate or prime rate of interest, as published from time to time in The Wall Street Journal, or (ii) the maximum lawful rate of interest on such obligation, such interest to accrue from the date the Partnership or the General Partner, as applicable, is deemed to extend the loan until such loan is repaid in full.

(e)            Notwithstanding anything herein to the contrary, in accordance with Section 736 of the Code, so long as the Special Limited Partner is entitled to distributions pursuant to the Listing Note and has not contributed its Special Limited Partner Interest in accordance with Section 8.05, the Special Limited Partner shall continue to be treated as a partner of the Partnership in respect of its Special Limited Partner Interest until the Partnership has satisfied its obligations with respect to the Listing Note.

(f)            In no event may a Partner receive a distribution of cash with respect to a Partnership Unit if such Partner is entitled to receive a cash dividend or other distribution as the holder of record of a REIT Share for which all or part of such Partnership Unit has been or is being redeemed prior to the applicable record date.

5.03         REIT Distribution Requirements. The General Partner shall use its reasonable best efforts to cause the Partnership to distribute amounts sufficient to enable the General Partner to pay distributions to its stockholders that will allow the General Partner to (i) meet its distribution requirement for qualification as a REIT as set forth in Section 857 of the Code and (ii) avoid any U.S. federal income or excise tax liability imposed by the Code, other than to the extent the General Partner elects to retain and pay income tax on its net capital gain; provided, however, the General Partner shall not be bound to comply with this covenant to the extent any distributions required to be made in order to satisfy the REIT Requirements would violate the Act or other applicable law or contravene the terms of any notes, mortgages or other types of debt obligations to which the Partnership may be subject in conjunction with borrowed funds.

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

5.05        Limitations on Distributions. Notwithstanding any of the provisions of this Agreement, no Partner shall have the right to receive, and the Partnership and the General Partner shall not have the right to make, a distribution that violates the Act or other applicable law.

5.06        Distributions Upon Liquidation.

(a)            Upon liquidation of the Partnership, after the satisfaction of all the debts and obligations of the Partnership, to the extent permitted by law, whether by payment or the making of reasonable provision for payment thereof, any remaining assets of the Partnership shall be distributed, subject to Section 5.07(b), to all Partners (including the Special Limited Partner) in accordance with Section 5.02(a) and Section 5.02(b).

(b)            For purposes of Section 5.06(a), the Capital Account of each Partner (including the Special Limited Partner) shall be determined after making all adjustments in accordance with Sections 5.01, 5.02 and 5.07(b) resulting from Partnership operations and from all sales and dispositions of all or any part of the Partnership’s assets.

(c)            Any distributions pursuant to this Section 5.06 shall be made within a reasonable time as determined by the General Partner in its sole discretion. To the extent deemed advisable by the General Partner, appropriate arrangements (including the use of a liquidating trust) may be made to assure that adequate funds are available to satisfy any contingent debts or obligations of the Partnership.

(d)            If any Partner 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), such Partner 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. This deficit restoration obligation is intended to comply with Section 1.704-1(b)(2)(ii)(b)(3) of the Regulations and shall be satisfied before the later to occur of (x) the end of the taxable year in which the Partnership is liquidated, or (y) ninety (90) days after the date of the liquidation of the Partnership, which amount shall be paid to creditors of the Partnership or, if the amount contributed exceeds the amount due creditors, shall be distributed to the Partners with positive Capital Account balances.

5.07         Substantial Economic Effect / Savings Clause.

(a)            It is the intent of the Partners (including the Special Limited Partner) that the allocations of Net Income, Net Loss, and items thereof under the Agreement have “substantial economic effect” (or be consistent with the Partners’ and the Special Limited Partner’s interests in the Partnership in the case of the allocation of losses attributable to nonrecourse debt) within the meaning of Section 704(b) of the Code as interpreted by the Regulations promulgated pursuant thereto. Article V and other relevant provisions of this Agreement shall be interpreted in a manner consistent with such intent.

(b)            Notwithstanding anything to the contrary in this Agreement, it is the intent of the Partners (including the Special Limited Partner) that the allocation provisions of Section 5.01 produce final Capital Account balances of the Partners (including the Special Limited Partner) equal to the amount such Partners would receive with respect to their Class A Units, Class B Units, LTIP Units or the Special Limited Partner Interest pursuant to Section 5.02(b). To the extent the allocation provisions of Section 5.01 would fail to produce such final Capital Account balances, (y) such provisions shall be amended by the General Partner if and to the extent necessary to produce such result and (z) Net Income, Net Loss, and, to the extent necessary, individual items of income, gain, loss and deduction, of the Partnership for prior open years shall be reallocated by the General Partner, in its sole and absolute discretion, among the Partners (including the Special Limited Partner) to the extent it is not possible to achieve such result with allocations of Net Income, Net Loss, and, to the extent necessary, individual items of income, gain, loss and deduction, of the Partnership for the current year and future years. This Section 5.07(b) shall control notwithstanding any reallocation or adjustment of taxable Net Income, Net Loss, and, to the extent necessary, individual items of income, gain, loss and deduction, of the Partnership by the IRS or any other taxing authority. The General Partner shall have the authority to amend this Agreement without the consent of the Limited Partners or the Special Limited Partner, as it reasonably considers advisable, to make the allocations and adjustments described in this Section 5.07(b).

ARTICLE VI
RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER

6.01        Management of the Partnership.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xxi)          subject to Section 11.02, to merge, consolidate or combine the Partnership with or into another Person;

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

(xxiii)        to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the General Partner deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Partnership and to possess and enjoy all of the rights and powers of a general partner as provided by the Act; and

(xxiv)       to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the General Partner deems necessary or appropriate such that the General Partner shall continue to satisfy the requirements for qualification as a REIT under the Code and Regulations (“REIT Requirements”) and avoid any U.S. federal income or excise tax liability; provided, however, the General Partner shall not be bound to comply with this covenant to the extent any distributions required to be made in order to satisfy the REIT Requirements would violate the Act or other applicable law or contravene the terms of any notes, mortgages or other types of debt obligations to which the Partnership may be subject in conjunction with borrowed funds.

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

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

6.03         Indemnification and Exculpation of Indemnitees.

(a)            To the fullest extent permitted by law, the Partnership shall indemnify an Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership as set forth in this Agreement in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. The parties hereto agree, that the termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 6.03(a). The parties hereto agree, that the termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee acted in a manner contrary to that specified in this Section 6.03(a). Any indemnification pursuant to this Section 6.03 shall be made only out of the assets of the Partnership.

(b)            The Partnership shall reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in this Section 6.03 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.

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

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

(e)            For purposes of this Section 6.03, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.03; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is not opposed to the best interests of the Partnership.

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

(g)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.03 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.

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

(i)            Any amendment, modification or repeal of this Section 6.03 or any provision hereof shall be prospective only and shall not in any way affect the indemnification of an Indemnitee by the Partnership under this Section 6.03 as in effect immediately prior to such amendment, modification or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when claims relating to such matters may arise or be asserted.

6.04        Liability of the General Partner.

(a)            Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Partnership or any Partners for losses sustained or liabilities incurred as a result of errors in judgment or mistakes of fact or law or of any act or omission if any such party acted in good faith. Notwithstanding any provision of this Agreement or otherwise applicable provision of law or equity, the General Partner shall not be in breach of any duty (fiduciary or otherwise) that the General Partner may owe to the Limited Partners or the Partnership or any other Persons bound by this Agreement provided the General Partner, acting in good faith, abides by the terms of this Agreement.

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

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

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

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

6.05         Partnership Obligations.

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

(b)            All Administrative Expenses shall be obligations of the Partnership, and the General Partner shall be entitled to reimbursement by the Partnership for any expenditure (including Administrative Expenses) incurred on behalf of the Partnership that shall be made other than out of the funds of the Partnership.

6.06         Outside Activities. Subject to Section 6.08 hereof, the Charter and any agreements entered into by the General Partner or its Affiliates with the Partnership or a Subsidiary, any officer, director, employee, agent, trustee, Affiliate or stockholders of the General Partner and the General Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities substantially similar or identical to those of the Partnership, and the doctrine of corporate opportunity or any analogous doctrine shall not apply to such business interest or activities. Neither the Partnership nor any of the Limited Partners shall have any rights by virtue of this Agreement in any such business ventures, interest or activities. None of the Limited Partners nor any other Person bound by this Agreement shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any such business ventures, interests or activities, and the General Partner, (i) shall have no duty or obligation (fiduciary or otherwise) pursuant to this Agreement to offer any interest in any such business ventures, interests and activities to the Partnership or any Limited Partner, even if such opportunity is of a character that, if presented to the Partnership or any Limited Partner, could be taken by such Person, and (ii) shall not be liable to the Partnership or to the Limited Partners for breach of any fiduciary or other duty existing at law, in equity or otherwise by reason of the fact that the General Partner pursues or acquires for, or directs such business ventures, interests or activities to another Person or does not communicate such opportunity or information to the Partnership.

6.07         Employment or Retention of Affiliates.

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

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

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

6.08         General Partner Activities. The General Partner agrees that, generally, all business activities of the General Partner, including activities pertaining to the acquisition, development, ownership of or investment in single tenant freestanding commercial real estate and related assets, shall be conducted through the Partnership or one or more Subsidiary Partnerships.

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

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

ARTICLE VII
CHANGES IN GENERAL PARTNER

7.01         Transfer of the General Partner’s Partnership Interest.

(a)            The General Partner shall not transfer all or any portion of its General Partner Interests, and the General Partner shall not withdraw as General Partner, except as provided in or in connection with a transaction contemplated by Section 7.01(c) hereof.

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

(c)            Notwithstanding anything in this Section 7.01, the General Partner may transfer all or any portion of its General Partner Interest to any wholly owned Subsidiary of the General Partner that is (i) a state law corporation or is eligible to make, and has validly made, an election pursuant to Section 301.7701-3 of the Regulations to be treated as an association taxable as a corporation for U.S. federal income tax purposes, (ii) a TRS, or (iii) an entity that is wholly owned by the General Partner and treated as disregarded for U.S. federal income tax purposes, and following a transfer of all of its General Partner Interest, may withdraw as General Partner. In the event that the General Partner transfers its entire General Partner Interest and the transferee is admitted to the Partnership as a substitute General Partner in accordance with this Agreement, such transferee shall be deemed admitted to the Partnership as a General Partner immediately prior to the transfer and such transferee shall continue the business of the Partnership without dissolution.

7.02         Merger of General Partner.

(a)            Except as otherwise provided in Section 7.02(b) or (c) hereof, the General Partner shall not engage in any merger, consolidation or other combination with or into another Person or sale of all or substantially all of its assets (other than in connection with a change in the General Partner’s state of incorporation or organizational form), in each case which results in a Change of Control of the General Partner (a “Transaction”), unless at least one of the following conditions is met:

(i)            the consent of a Majority in Interest (other than the Percentage Interest held by the General Partner or any Subsidiary of the General Partner) is obtained;

(ii)            as a result of such Transaction, all Limited Partners will receive, or have the right to receive, for each Partnership Unit held by such Limited Partners an amount of cash, securities or other property equal in value to the product of the Conversion Factor and the greatest amount of cash, securities or other property paid in the Transaction to a holder of one REIT Share in consideration of one REIT Share, provided, that if, in connection with such Transaction, a purchase, tender or exchange offer (“Offer”) shall have been made to and accepted by the holders of more than 50% of the outstanding REIT Shares, each holder of Partnership Units (other than the General Partner and any Subsidiary of the General Partner) shall be given the option to exchange its Partnership Units for the greatest amount of cash, securities or other property that such Limited Partner would have received had it (A) exercised its Class A Unit Redemption Right pursuant to Section 8.04 hereof and (B) sold, tendered or exchanged pursuant to the Offer the REIT Shares received upon exercise of the Class A Unit Redemption Right immediately prior to the expiration of the Offer; or

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

(b)            Notwithstanding Section 7.02(a) hereof, the General Partner may merge with or into or consolidate with another entity if immediately after such merger or consolidation (i) substantially all of the assets of the successor or surviving entity (the “Survivor”), other than Partnership Units held by the General Partner, are contributed, directly or indirectly, to the Partnership as a Capital Contribution in exchange for Partnership Units with a fair market value equal to the value of the assets so contributed as determined by the Survivor in good faith and (ii) the Survivor expressly agrees to assume all obligations of the General Partner hereunder. Notwithstanding any provision of this Agreement and without the consent of any other person, upon such contribution and assumption, (i) for all purposes of this Agreement, if the General Partner is not the Survivor, the Survivor, shall be deemed to be the “General Partner” hereunder and shall be deemed to be admitted as the general partner of the Partnership, upon its execution of a counterpart to this Agreement, effective simultaneously with the merger or consolidation, (ii) the Survivor shall continue the business of the Partnership without dissolution, and (iii) the Survivor shall have the right and duty to amend this Agreement as set forth in this Section 7.02(b) or in any other manner, if applicable, to reflect the change in the general partner of the Partnership. The Survivor shall in good faith arrive at a new method for the calculation of the Cash Amount, the REIT Shares Amount and Conversion Factor for a Partnership Unit after any such merger or consolidation so as to approximate the existing method for such calculation as closely as reasonably possible. Such calculation shall take into account, among other things, the kind and amount of securities, cash and other property that was receivable upon such merger or consolidation by a holder of REIT Shares or options, warrants or other rights relating thereto, and which a holder of Partnership Units could have acquired had such Partnership Units been exchanged immediately prior to such merger or consolidation. Such amendment to this Agreement shall provide for adjustment to such method of calculation, which shall be as nearly equivalent as may be practicable to the adjustments provided for with respect to the Conversion Factor. The Survivor also shall in good faith modify the definition of REIT Shares and make such amendments to Section 8.04 hereof so as to approximate the existing rights and obligations set forth in Section 8.04 hereof as closely as reasonably possible. The above provisions of this Section 7.02(b) shall similarly apply to successive mergers or consolidations permitted hereunder.

Notwithstanding anything in this Section 7.02, the General Partner may engage in a transaction required by law or by the rules of any national securities exchange or over-the-counter interdealer quotation system on which the REIT Shares are listed or traded.

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

(a)            the Person to be admitted as a substitute or additional General Partner shall have accepted and agreed to be bound by all the terms and provisions of this Agreement by executing a counterpart hereof, and an amendment to the Certificate of Limited Partnership of the Partnership evidencing the admission of such Person as a General Partner shall have been filed with the office of the Secretary of State of the State of Delaware;

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

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

7.04         Effect of Bankruptcy, Withdrawal, Death or Dissolution of General Partner.

(a)            Upon the occurrence of an Event of Bankruptcy as to the General Partner (and its removal pursuant to Section 7.05(a) hereof) or the withdrawal, removal or dissolution of the General Partner or any other event that results in the General Partner ceasing to be a general partner of the Partnership under the Act, the Partnership shall be dissolved and its affairs wound up unless the business of the Partnership is continued pursuant to Section 7.04(b) hereof. Notwithstanding anything in this Agreement to the contrary, any successor to the General Partner by merger or consolidation in compliance with Section 7.02(b) shall, without further act of any Person, be the General Partner hereunder, and such merger or consolidation shall not constitute a transfer for purposes of this Agreement and the Partnership shall continue without dissolution.

(b)            Following the occurrence of an Event of Bankruptcy as to the General Partner (and its removal pursuant to Section 7.05(a) hereof) or the withdrawal, removal or dissolution of the General Partner or any other event that resulting the General Partner ceasing to be a general partner of the Partnership under the Act, the Partnership shall not be dissolved or wound up if the Limited Partners, within 90 days after such occurrence, elect to continue the business of the Partnership for the balance of the term specified in Section 2.04 hereof by selecting effective as of such occurrence, subject to Section 7.03 hereof in writing or vote, a substitute General Partner by consent of a Majority in Interest. Any substitute General Partner selected by the Limited Partners in accordance with this Section 7.05(b) and admitted to the Partnership in accordance with Section 7.03, shall be deemed admitted to the Partnership effective simultaneously with the occurrence of the event that caused the General Partner to cease to be a general partner of the Partnership. If the Limited Partners elect to continue the business of the Partnership and admit a substitute General Partner, the relationship with the Partners and of any Person who has acquired an interest of a Partner in the Partnership shall be governed by this Agreement.

7.05         Removal of General Partner.

(a)            Upon the occurrence of an Event of Bankruptcy as to, or the dissolution of, the General Partner, the General Partner shall be deemed to be removed automatically. To the fullest extent permitted by law, the Limited Partners may not remove the General Partner, with or without cause.

(b)            If the General Partner has been removed pursuant to this Section 7.05 and the Partnership is continued pursuant to Section 7.04 hereof, the General Partner shall promptly transfer and assign its General Partner Interest in the Partnership to the substitute General Partner approved by a Majority in Interest in accordance with Section 7.04(b) hereof and otherwise be admitted to the Partnership in accordance with Section 7.03 hereof. At the time of assignment, the removed General Partner shall be entitled to receive from the substitute General Partner the fair market value of the General Partner Interest of such removed General Partner as reduced by any damages caused to the Partnership by such General Partner. Such fair market value shall be determined by an appraiser mutually agreed upon by the General Partner and a Majority in Interest within ten days following the removal of the General Partner. In the event that the parties are unable to agree upon an appraiser, the removed General Partner and a Majority in Interest each shall select an appraiser. Each such appraiser shall complete an appraisal of the fair market value of the removed General Partner’s General Partner Interest within 30 days of the General Partner’s removal, and the fair market value of the removed General Partner’s General Partner Interest shall be the average of the two appraisals; provided, however, that if the higher appraisal exceeds the lower appraisal by more than 20% of the amount of the lower appraisal, the two appraisers, no later than 40 days after the removal of the General Partner, shall select a third appraiser who shall complete an appraisal of the fair market value of the removed General Partner’s General Partner Interest no later than 60 days after the removal of the General Partner. In such case, the fair market value of the removed General Partner’s General Partner Interest shall be the average of the two appraisals closest in value.

(c)            The General Partner Interest of a removed General Partner, during the time after default until transfer under Section 7.05(b) hereof, shall be converted to that of a special Limited Partner; provided, however, such removed General Partner shall not have any rights to participate in the management and affairs of the Partnership, and shall not be entitled to any portion of the income, expense, profit, gain or loss allocations or cash distributions allocable or payable, as the case may be, to the Limited Partners. Instead, such removed General Partner shall receive and be entitled only to retain distributions or allocations of such items that it would have been entitled to receive in its capacity as General Partner, until the transfer is effective pursuant to Section 7.05(b) hereof.

(d)            Notwithstanding any other provision of this Agreement, for so long as the General Partner is treated as a REIT, to the fullest extent permitted by law, the General Partner shall not be removed unless (a) the General Partner’s economic interest in the Partnership shall be simultaneously transferred to another entity that is either (i) not an Affiliate of the General Partner or (ii) a TRS or (b) such removal would not otherwise result in the Partnership having only one partner for U.S. federal income tax purposes.

(e)            All Partners shall have given and hereby do give such consents, shall take such actions and shall execute such documents as shall be legally necessary and sufficient to effect all the foregoing provisions of this Section 7.05.

ARTICLE VIII
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS

8.01        Management of the Partnership. The Limited Partners (other than the General Partner, any of its Affiliates or related parties or any officer, director, employee, agent or trustee of the General Partner, the Partnership of any of their Affiliates or related parties, in their capacity as such) shall not participate in the management or control (within the meaning of the Act) of Partnership business nor shall they transact any business for the Partnership, nor shall they have the power to sign for or bind the Partnership, such powers being vested solely and exclusively in the General Partner. Notwithstanding anything to the contrary contained in this Agreement, none of the actions taken by any of the Limited Partners hereunder shall constitute participation in the control of the business of the Partnership within the meaning of the Act.

8.02        Power of Attorney. Each Limited Partner and the Special Limited Partner hereby irrevocably appoints the General Partner its true and lawful attorney-in-fact, who may act for each Limited Partner and in its name, place and stead, and for its use and benefit, to sign, acknowledge, swear to, deliver, file or record, at the appropriate public offices, any and all documents, certificates and instruments as may be deemed necessary or desirable by the General Partner to carry out fully the provisions of this Agreement and the Act in accordance with their terms, including duly adopted amendments hereto, which power of attorney is coupled with an interest and shall survive and not be affected by the subsequent death, dissolution or legal incapacity of the Limited Partner, or the transfer by the Limited Partner of any part or all of its Partnership Interest. This power of attorney may be exercised by such attorney-in-fact for all Limited Partners (or any of them) by a single signature of the General Partner acting as attorney-in-fact with or without listing all of the Limited Partners executing an instrument.

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

8.04        Class A Unit Redemption Right.

(a)            Subject to Sections 8.04(b), (c), (d), (e), (f) and (g) hereof, the penultimate sentence of this Section 8.04(a), and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Class A Units held by them, each Limited Partner shall have the right (the “Class A Unit Redemption Right”) to require the Partnership to redeem on a Specified Redemption Date all or a portion of the Class A Units held by such Limited Partner at a redemption price equal to and in the form of the Cash Amount to be paid by the Partnership, provided, that, subject to Section 13.02(a), such Class A Units (including, for the avoidance of doubt, any Class A Units issued to such Limited Partners as a result of any merger, consolidation or other business combination or reorganization to which the Partnership and/or the General Partner is a party) shall have been outstanding for at least one year (or such lesser time as determined by the General Partner in its sole and absolute discretion), which period shall include the period that Partnership Units (including, for the avoidance of doubt, Class B Units, LTIP Units and the Master LTIP Unit) that were converted into such Class A Units were held, and subject to any restriction agreed to in writing between the Redeeming Limited Partner and the General Partner. The Class A Unit Redemption Right shall be exercised pursuant to a Notice of Exercise of Redemption Right in substantially the form attached hereto as Exhibit A delivered to the Partnership (with a copy to the General Partner) by the Limited Partner exercising the Class A Unit Redemption Right (the “Redeeming Limited Partner”); provided, however, that the Partnership shall not be obligated to satisfy such Class A Unit Redemption Right if the General Partner elects to purchase the Class A Units subject to the Notice of Redemption; and provided, further, that no Limited Partner may deliver more than two Notices of Redemption during any calendar year. A Limited Partner may not exercise the Class A Unit Redemption Right for less than one thousand (1,000) Class A Units or, if such Limited Partner holds less than one thousand (1,000) Class A Units, all of the Class A Units held by such Limited Partner. The Redeeming Limited Partner shall have no right, with respect to any Class A Units so redeemed, to receive any distribution paid with respect to Class A Units if the record date for such distribution is on or after the Specified Redemption Date.

(b)            Notwithstanding the provisions of Section 8.04(a) hereof, a Limited Partner that exercises the Class A Unit Redemption Right shall be deemed to have offered to sell the Class A Units described in the Notice of Redemption to the General Partner, and the General Partner may, in its sole and absolute discretion, elect to purchase directly and acquire such Class A Units by paying to the Redeeming Limited Partner either the Cash Amount or the REIT Shares Amount, as elected by the General Partner (in its sole and absolute discretion), on the Specified Redemption Date, whereupon the General Partner shall acquire the Class A Units offered for redemption by the Redeeming Limited Partner and shall be treated for all purposes of this Agreement as the owner of such Class A Units. If the General Partner shall elect to exercise its right to purchase Class A Units under this Section 8.04(b) with respect to a Notice of Redemption, it shall so notify the Redeeming Limited Partner within five business days after the receipt by the General Partner of such Notice of Redemption.

In the event the General Partner shall exercise its right to purchase Class A Units with respect to the exercise of a Class A Unit Redemption Right, the Partnership shall have no obligation to pay any amount to the Redeeming Limited Partner with respect to such Redeeming Limited Partner’s exercise of such Class A Unit Redemption Right, and each of the Redeeming Limited Partner, the Partnership and the General Partner shall treat the transaction between the General Partner and the Redeeming Limited Partner for U.S. federal income tax purposes as a sale of the Redeeming Limited Partner’s Class A Units to the General Partner. Each Redeeming Limited Partner agrees to execute such documents, or provide such information, as the General Partner may reasonably require in connection with the issuance of REIT Shares upon exercise of the Class A Unit Redemption Right, including, if applicable, the certificate in the form set forth in Exhibit E.

(c)            Notwithstanding the provisions of Section 8.04(a) and 8.04(b) hereof, a Limited Partner shall not be entitled to exercise the Class A Unit Redemption Right if the delivery of REIT Shares to such Limited Partner on the Specified Redemption Date by the General Partner pursuant to Section 8.04(b) hereof (regardless of whether or not the General Partner would in fact exercise its rights under Section 8.04(b) hereof) would (i) result in such Limited Partner or any other Person owning, directly or indirectly, REIT Shares in excess of the Aggregate Share Ownership Limit or any Excepted Holder Limit (each as defined in Charter) and calculated in accordance therewith, except as provided in the Charter, (ii) result in REIT Shares being owned by fewer than 100 persons (determined without reference to any rules of attribution), (iii) result in the General Partner being “closely held” within the meaning of Section 856(h) of the Code, (iv) cause the General Partner to own, actually or constructively, 10% or more of the ownership interests in a tenant (other than a TRS) of the General Partner’s, the Partnership’s or a Subsidiary Partnership’s real property, within the meaning of Section 856(d)(2)(B) of the Code, (v) otherwise cause the General Partner to fail to qualify as a REIT, or (vi) cause the acquisition of REIT Shares by such Limited Partner to be “integrated” with any other distribution of REIT Shares or Class A Units for purposes of complying with the registration provisions of the Securities Act. The General Partner, in its sole and absolute discretion and without the consent of any other Partner or Person, may waive the restriction on redemption set forth in this Section 8.04(c).

(d)            Any Cash Amount to be paid to a Redeeming Limited Partner pursuant to this Section 8.04 shall be paid on the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 90 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. Any REIT Share Amount to be paid to a Redeeming Limited Partner pursuant to this Section 8.04 shall be paid on the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 days to the extent required for the General Partner to cause additional REIT Shares to be issued. Notwithstanding the foregoing, the General Partner agrees to use its reasonable best efforts to cause the closing of the acquisition of redeemed Class A Units hereunder to occur as quickly as reasonably possible.

(e)            Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines to be necessary or appropriate to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law that apply upon a Redeeming Limited Partner’s exercise of the Class A Unit Redemption Right. If a Redeeming Limited Partner believes that it is exempt from such withholding upon the exercise of the Class A Unit Redemption Right, such Partner must furnish the General Partner with a FIRPTA Certificate in substantially the form attached hereto as Exhibit B-1 or Exhibit B-2 and any other documentation reasonably requested by the General Partner. If the Partnership or the General Partner is required to withhold and pay over to any taxing authority any amount upon a Redeeming Limited Partner’s exercise of the Class A Unit Redemption Right and if the Class A Unit Redemption Amount equals or exceeds the Tax Liability, the Tax Liability shall be treated as an amount received by such Partner in redemption of its Class A Units. If, however, the Class A Unit Redemption Amount is less than the Tax Liability, the Redeeming Limited Partner shall not receive any portion of the Class A Unit Redemption Amount, the Class A Unit Redemption Amount shall be treated as an amount received by such Partner in redemption of its Class A Units, and the Partner shall contribute the excess of the Tax Liability over the Class A Unit Redemption Amount to the Partnership before the Partnership is required to pay over such excess to a taxing authority.

(f)            Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Class A Unit Redemption Rights as and if determined necessary in the reasonable discretion of the General Partner (which determination may include obtaining advice or an opinion of outside tax counsel) to ensure that the Partnership does not constitute a “publicly traded partnership” under Section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner shall give prompt written notice thereof (a “Restriction Notice”) to each of the Limited Partners, which notice shall state that such restrictions are desirable in order to avoid the Partnership being treated as a “publicly traded partnership” under Section 7704 of the Code and may include the advice or an opinion of outside tax counsel to such effect.

8.05        Exchange of Special Limited Partner Interest.

(a)            On and after such time as the Listing Amount is determined, the Special Limited Partner shall have the right, but not the obligation, to contribute the entire Special Limited Partner Interest to the Partnership in exchange for Class A Units in a transaction intended to qualify as a contribution of property pursuant to Section 721 of the Code. The Special Limited Partner shall provide written notice to the General Partner of its intention to contribute the Special Limited Partner Interest at least ten (10) days prior to the date on which the contribution is to occur. The maximum number of Class A Units issuable upon a contribution of the entire Special Limited Partner Interest shall be equal to the quotient of (i) the difference of (X) the Listing Amount minus (Y) the amount of any distributions made by the Partnership to the Special Limited Partner under Section 5.02(b) prior to the date of the contribution; divided by (ii) the product of (A) in the case of a Listing or an Asset Sale that is a Liquidity Event, the Value of one REIT Share on the date of the contribution, or in the case of a Merger, the Market Value of one REIT Share pursuant to the terms of the applicable transaction document, multiplied by (B) the Conversion Factor. Only a whole number of Class A Units will be issuable upon a contribution of the entire Special Limited Partner Interest. The Special Limited Partner covenants and agrees with the Partnership that the Special Limited Partner Interest shall be free and clear of all liens at the time of contribution pursuant to this Section 8.05. The contribution of all or a portion of the Special Limited Partner Interest shall occur automatically after the close of business on the applicable date of contribution, as of which time the Special Limited Partner shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of the number of Class A Units issuable upon such contribution.

(b)            Class A Units issuable upon a contribution of the Special Limited Partner Interest as set forth in this Section 8.05 shall be redeemable for cash or, at the option of the General Partner, for REIT Shares pursuant to Section 8.04; provided, that such Class A Units (including, for the avoidance of doubt, any Class A Units issued to the Special Limited Partner as a result of any merger, consolidation or other business combination or reorganization to which the Partnership or the General Partner is a party) shall have been outstanding for at least three years (or such lesser time as determined by the General Partner in its sole and absolute discretion), which period shall include the period that the Special Limited Partner held the Special Limited Partner Interest prior to its conversion to Class A Units pursuant to Section 8.05(a) and for the avoidance of doubt shall be in lieu of any holding period required by Section 8.04(a).

8.06         Registration. Subject to the terms of any agreement between the General Partner and a Limited Partner with respect to Class A Units held by such Limited Partner that includes provisions relating to registration rights (each a “Separate Registration Rights Agreement”):

(a)            Shelf Registration of REIT Shares. Following the Listing Date, or, if the General Partner is not eligible to use a registration statement on Form S-3 for the registration of securities under the Securities Act on the Listing Date, the date on which the General Partner becomes so eligible (the “S-3 Eligible Date”), the General Partner shall, upon written request of any Limited Partner and within a reasonable period of time thereafter, file with the Commission a shelf registration statement under Rule 415 of the Securities Act (or any similar rule that may be adopted by the Commission) or a prospectus supplement to the prospectus contained in an existing shelf registration statement (a “Registration Statement”), covering (i) the issuance of REIT Shares issuable upon redemption of the Class A Units held by such Limited Partner (including the Class B Unit Shares, “Redemption Shares”) and/or (ii) the resale of Redemption Shares by the holder thereof; provided, however, that the General Partner shall be required to file only two Registration Statements in any 12-month period and any Limited Partner that makes a request pursuant to this sentence shall also provide to the General Partner, on a timely basis, all information regarding such Limited Partner and any proposed distribution of Redemption Shares required by the rules and regulations of the Commission and all other information reasonably requested by the General Partner. In connection therewith, the General Partner will:

(1)            use its reasonable best efforts to have any Registration Statement declared effective and cause the Registration Statement to be continuously effective until all Redemption Shares covered thereby (i) have been sold or transferred by the holders thereof to another Person pursuant to an effective registration statement, (ii) have been sold by holders thereof to another Person pursuant to the provisions of Rule 144, (iii) may be sold pursuant to Rule 144, or (iv) have been otherwise transferred in a transaction that would constitute a sale under the Securities Act and, in each case, the Redemption Shares may be resold without volume, manner of sale or other restrictions or conditions without subsequent registration under the Securities Act;

(2)            furnish to each holder of Redemption Shares such number of copies of prospectuses, and supplements or amendments thereto, and such other documents as such holder reasonably requests;

(3)            register or qualify the Redemption Shares covered by the Registration Statement under the securities or blue sky laws of such jurisdictions within the United States as any holder of Redemption Shares shall reasonably request, and do such other reasonable acts and things as may be required of it to enable such holders to consummate the sale or other disposition in such jurisdictions of the Redemption Shares; provided, however, that the General Partner shall not be required to (i) qualify as a foreign corporation or consent to a general or unlimited service or process in any jurisdictions in which it would not otherwise be required to be qualified or so consent or (ii) qualify as a dealer in securities; and

(4)            otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission.

The General Partner further agrees to supplement or make amendments to each Registration Statement, if required by the rules, regulations or instructions applicable to the registration form utilized by the General Partner or by the Securities Act or rules and regulations thereunder for such Registration Statement. Each Limited Partner agrees to furnish to the General Partner, upon request, such information with respect to the Limited Partner as may be required to complete and file the Registration Statement.

In connection with and as a condition to the General Partner’s obligations with respect to the filing of a Registration Statement pursuant to this Section 8.06, each Limited Partner agrees with the General Partner that:

(x)            it will not offer or sell its Redemption Shares until (A) such Redemption Shares have been included in a Registration Statement and (B) it has received copies of a prospectus, and any supplement or amendment thereto, as contemplated by Section 8.06(a) hereof, and receives notice that the Registration Statement covering such Redemption Shares, or any post-effective amendment thereto, has been declared effective by the Commission;

(y)            if the General Partner determines in its good faith judgment, after consultation with counsel, that the use of the Registration Statement, including any post-effective amendment thereto, or the use of any prospectus contained in such Registration Statement would require the disclosure of important information that the General Partner has a bona fide business purpose for preserving as confidential or the disclosure of which would impede the General Partner’s ability to consummate a significant transaction, or if the General Partner has otherwise imposed a black-out for the release of earnings or otherwise, upon written notice of such determination by the General Partner, the rights of each Limited Partner to offer, sell or distribute its Redemption Shares pursuant to such Registration Statement or prospectus or to require the General Partner to take action with respect to the registration or sale of any Redemption Shares pursuant to a Registration Statement (including any action contemplated by this Section 8.06) will be suspended until the date upon which the General Partner notifies such Limited Partner in writing (which notice shall be deemed sufficient if given through the issuance of a press release) that suspension of such rights for the grounds set forth in this paragraph is no longer necessary; provided, however, that the General Partner may not suspend such rights for an aggregate period of more than 90 days in any 12-month period; and

(z)            in the case of the registration of any underwritten equity offering proposed by the General Partner (other than any registration by the General Partner (A) on Form S-8, or a successor or substantially similar form, of an employee share option, share purchase or compensation plan or of securities issued or issuable pursuant to any such plan or (B) on Form S-3, or a successor or substantially similar form, of a dividend reinvestment plan), each Limited Partner will agree, if requested in writing by the managing underwriter or underwriters administering such offering, not to effect any offer, sale or distribution of any REIT Shares (or any option or right to acquire REIT Shares) during the period commencing on the tenth day prior to the expected effective date (which date shall be stated in such notice) of the registration statement covering such underwritten primary equity offering or, if such offering shall be a “take-down” from an effective shelf registration statement, the tenth day prior to the expected commencement date (which date shall be stated in such notice) of such offering, and ending on the date specified by such managing underwriter in such written request to the Limited Partners; provided, however, that no Limited Partner shall be required to agree not to effect any offer, sale or distribution of REIT Shares for a period of time that is longer than the greater of 90 days or the period of time for which any senior executive of the General Partner is required so to agree in connection with such offering. Nothing in this paragraph shall be read to limit the ability of any Limited Partner to redeem its Class A Units in accordance with the terms of this Agreement.

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

(c)            Registration Not Required. Notwithstanding Section 8.06(a), the General Partner shall not be required to file or maintain the effectiveness of a Registration Statement relating to Redemption Shares after the first date upon which, in the opinion of counsel to the General Partner, all of the Redemption Shares covered thereby could be sold by the holders thereof pursuant to Rule 144 under the Securities Act, or any successor rule thereto.

(d)            Allocation of Expenses. The Partnership shall pay all expenses in connection with the Registration Statement, including without limitation (i) all expenses incident to filings with the Financial Industry Regulatory Authority, Inc., (ii) registration fees, (iii) printing expenses, (iv) accounting and legal fees and expenses, except to the extent holders of Redemption Shares elect to engage accountants or attorneys in addition to the accountants and attorneys engaged by the General Partner or the Partnership, which fees and expenses for such accountants or attorneys shall be for the account of the holders of the Redemption Shares, (v) accounting expenses incident to or required by any such registration or qualification and (vi) expenses of complying with the securities or blue sky laws of any jurisdictions in connection with such registration or qualification; provided, however, neither the Partnership nor the General Partner shall be liable for (A) any discounts or commissions to any underwriter or broker attributable to the sale of Redemption Shares, or (B) any fees or expenses incurred by holders of Redemption Shares in connection with such registration that, according to the written instructions of any regulatory authority, the Partnership or the General Partner is not permitted to pay.

(e)           Indemnification.

(i)            In connection with any Registration Statement, to the fullest extent permitted by law, the General Partner and the Partnership agree to indemnify each holder of Class A Units or Redemption Shares covered by the Registration Statement, the holder’s partners, members, shareholders, officers, directors, employees, representatives, agents, managers, advisors and Affiliates, each Person, if any, who controls the holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the partners, members, shareholders, officers, directors, employees, representatives, agents, managers, advisors and Affiliates of each such controlling Person, against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) caused by any untrue, or alleged untrue, statement of a material fact contained in the Registration Statement, including any preliminary prospectus or prospectus contained therein (as amended or supplemented if the General Partner shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission, to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by any untrue statement, alleged untrue statement, omission, or alleged omission based upon information furnished to the General Partner by such holder or on such holder’s behalf for use in such Registration Statement. The General Partner and each officer, director and controlling Person of the General Partner and the Partnership shall be indemnified by each holder of Class A Units or Redemption Shares covered by the Registration Statement for all such losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) caused by any untrue, or alleged untrue, statement or any omission, or alleged omission, based upon information furnished to the General Partner or the Partnership by such holder or on such holder’s behalf for use in such Registration Statement.

(ii)            Promptly upon receipt by a party indemnified under this Section 8.06(e) of notice of the commencement of any action against such indemnified party in respect of which indemnity or reimbursement may be sought against any indemnifying party under this Section 8.06(e), such indemnified party shall notify the indemnifying party in writing of the commencement of such action, but the failure to so notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 8.06(e) unless such failure shall materially adversely affect the defense of such action. In case notice of commencement of any such action shall be given to the indemnifying party as above provided, the indemnifying party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the reasonable fees and expenses of such counsel (other than reasonable costs of investigation) shall be paid by the indemnified party unless (i) the indemnifying party agrees to pay the same, (ii) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct (in which case the indemnified party shall have the right to separate counsel and the indemnifying party shall pay the reasonable fees and expenses of such separate counsel, provided, that the indemnifying party shall not be liable for more than one separate counsel). No indemnifying party shall be liable to any indemnified party for any settlement entered into without its consent.

(f)            Contribution.

(i)            If for any reason the indemnification provisions contemplated by Section 8.06(e) hereof are either unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to therein, then the party that would otherwise be required to provide indemnification or the indemnifying party (in either case, for purposes of this Section 8.06(f), the “Indemnifying Party”) in respect of such losses, claims, damages, liabilities and expenses shall contribute to the amount paid or payable by the party that would otherwise be entitled to indemnification or the indemnified party (in either case, for purposes of this Section 8.06(f), the “Indemnified Party”) as a result of such losses, claims, damages, liabilities or expenses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Party, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact related to information supplied by the Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party.

(ii)            The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8.06(f) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person determined to have committed a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

(iii)            The contribution provided for in this Section 8.06(f) shall survive the termination of this Agreement and shall remain in full force and effect regardless of any investigation made by or on behalf of any Indemnified Party.

(g)           Conflict. With respect to any Limited Partner, in the event of a conflict between the provisions of this Section 8.06 and any Separate Registration Rights Agreement, the provisions of the Separate Registration Rights Agreement shall control.

ARTICLE IX
TRANSFERS OF PARTNERSHIP INTERESTS

9.01         Purchase for Investment.

(a)            Each Limited Partner, by its signature below or by its subsequent admission to the Partnership, hereby represents and warrants to the General Partner and to the Partnership that the acquisition of such Limited Partner’s Partnership Units is made for investment purposes only and not with a view to the resale or distribution of such Partnership Units.

(b)            Subject to the provisions of Section 9.02 hereof, each Limited Partner agrees that such Limited Partner will not Transfer such Limited Partner’s Partnership Units or any fraction thereof, whether voluntarily or by operation of law or at judicial sale or otherwise, to any Person who does not make the representations and warranties to the General Partner set forth in Section 9.01(a) hereof.

9.02         Restrictions on Transfer of Partnership Units.

(a)            Subject to the other provisions of this Section 9.02, to the fullest extent permitted by law, no Limited Partner may offer, sell, assign, hypothecate, pledge or otherwise transfer all or any portion of such Limited Partner’s Partnership Units, or any of such Limited Partner’s economic rights as a Limited Partner, whether voluntarily or by operation of law or at judicial sale or otherwise (collectively, a “Transfer”) without the consent of the General Partner, which consent may be granted or withheld in its sole and absolute discretion. The General Partner may require, as a condition of any Transfer to which it consents, that the transferor assume all costs incurred by the Partnership in connection therewith.

(b)            No Limited Partner may withdraw from the Partnership other than as a result of a permitted Transfer (i.e., a Transfer consented to as contemplated by clause (a) above or clause (c) below or a Transfer pursuant to Section 9.05 hereof) of all of such Limited Partner’s Partnership Units pursuant to this Article IX or pursuant to a redemption of all of such Limited Partner’s Class A Units pursuant to Section 8.04 hereof. Upon the permitted Transfer or redemption of all of a Limited Partner’s Class A Units, such Limited Partner shall cease to be a Limited Partner.

(c)            Subject to Sections 9.02(d), (e) and (f) hereof, a Limited Partner may Transfer, with the consent of the General Partner, all or a portion of such Limited Partner’s Partnership Units to (i) such Limited Partner’s parent or parent’s spouse, (ii) such Limited Partner’s spouse, (iii) such Limited Partner’s natural or adopted descendant or descendants, (iv) such Limited Partner’s spouse of such Limited Partner’s descendant, (v) such Limited Partner’s brother or sister, (vi) a trust created by such Limited Partner for the primary benefit of such Limited Partner and/or any such Person(s) described in (i) through (v) above, of which trust such Limited Partner or any such Person(s) or bank or other commercial entity in the business of acting as a fiduciary in its ordinary course of business and having an equity capitalization of at least $100,000,000 is a trustee, (vii) a corporation, partnership or limited liability company controlled by a Person or Persons named in (i) through (v) above, or (viii) if the Limited Partner is an entity, its beneficial owners.

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

(e)            No Transfer by a Limited Partner of its Partnership Units, in whole or in part, may be made to any Person if the General Partner determines, in its commercially reasonable discretion, that (i) such Transfer would result in the Partnership being treated as an association taxable as a corporation, (ii) it would adversely affect the ability of the General Partner to continue to qualify as a REIT or subject the General Partner to any additional taxes under Section 857, Section 4981 or any other provision of the Code or (iii) such Transfer is effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code; provided, that if the General Partner secures an opinion of qualified United States tax counsel that the Partnership would, if such Transfer were completed, satisfy one or more provisions under Section 7704 of the Code and the Regulations promulgated thereunder such that the Partnership would not be treated as a “publicly traded partnership” for U.S. federal income tax purposes, then such Transfer shall not be prohibited by this Section 9.02(e).

(f)            To the fullest extent permitted by law, any purported Transfer in contravention of any of the provisions of this Article IX shall be void ab initio and ineffectual and shall not be binding upon, or recognized by, the General Partner or the Partnership.

(g)            Prior to the consummation of any Transfer under this Article IX, the transferor and/or the transferee shall deliver to the General Partner such opinions, certificates and other documents as the General Partner shall request in connection with such Transfer, which, for the avoidance of doubt, shall include such forms, documentation, proof of payment or other certifications as reasonably required by the General Partner to determine that the transferor and the transferee have complied with Section 1446(f) of the Code (ignoring for this purpose, Section 1446(f)(4) of the Code), and any similar provision of state, local, or non-U.S. law, and the transferor and the transferee shall have agreed to be jointly and severally liable for all taxes (including interest, penalties, and additional amounts thereon) under Section 1446(f) of the Code incurred by the Partnership in connection with such Transfer.

(h)            Notwithstanding anything to the contrary contained in this Section 9.02, the Advisors Limited Partner and the Special Limited Partner, respectively, may Transfer any of its Class A Units to its direct and indirect Members (as defined, respectively, in the limited liability company agreement of the Advisors Limited Partner, dated December 18, 2013, by and among the signatories thereto, as amended from time to time or the limited liability company agreement of the Special Limited Partner, dated December 18, 2013, by and among the signatories thereto, as amended from time to time), without the consent of the General Partner.

(i)            The Partners hereby acknowledge and agree that a Partner who holds Class B Units or LTIP Units shall not Transfer such Class B Units or LTIP Units other than, and subject to any restriction on the transfer of Class B Units contained in Article XII or any restriction on the transfer of LTIP Units contained in Article XIII or the terms of an applicable OPP Agreement, (i) pursuant to Section 9.02(c) hereof, (ii) by operation of law to the estate of a Partner who held such LTIP Units immediately prior to his or her death or (iii) to the Partnership or the General Partner.

9.03         Admission of Substitute Limited Partner.

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

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

(ii)           The assignee shall have delivered a letter containing the representation set forth in Section 9.01(a) hereof and the representations and warranties set forth in Section 9.01(b) hereof.

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

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

(v)           The assignee shall have paid or reimbursed, and shall hold harmless the General Partner and the Partnership for, all legal fees and other expenses of the Partnership and the General Partner and filing and publication costs in connection with its substitution as a Limited Partner, including any applicable transfer taxes or withholding taxes.

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

(b)            For the purpose of allocating Net Income and Net Loss and distributing cash received by the Partnership, a Substitute Limited Partner shall be treated as having become, and appearing in the records of the Partnership as, a Limited Partner on the later of the date specified in the transfer documents or the date on which the General Partner has received all necessary instruments of transfer and substitution.

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

9.04         Rights of Assignees of Partnership Units.

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

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

9.05         Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner. To the fullest extent permitted by law, the occurrence of an Event of Bankruptcy as to a Limited Partner, the death of a Limited Partner or a final adjudication that a Limited Partner is incompetent (which term shall include, but not be limited to, insanity) shall not, in and of itself, cause the termination or dissolution of the Partnership, and the business of the Partnership shall continue, and such Limited Partner’s personal representative (as defined in the Act) shall have the rights of such Limited Partner for the purpose of settling or managing such Limited Partner’s estate property and such power as the bankrupt, deceased or incompetent Limited Partner possessed to assign all or any part of such Limited Partner’s Partnership Units and to join with the assignee in satisfying conditions precedent to the admission of the assignee as a Substitute Limited Partner.

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

ARTICLE X
BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS

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

10.02       Custody of Partnership Funds; Bank Accounts.

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

(b)            All deposits and other funds not needed in the operation of the business of the Partnership may be invested by the General Partner. The funds of the Partnership shall not be commingled with the funds of any other Person except for such commingling as may necessarily result from an investment in those investment companies permitted by this Section 10.02(b).

10.03       Fiscal and Taxable Year. The fiscal and taxable year of the Partnership shall be the calendar year unless otherwise required by the Code.

10.04      Annual Tax Information and Report. Within ninety (90) days after the end of each taxable year of the Partnership, the General Partner shall use all reasonable efforts to cause the Partnership to furnish to each Person who was a Limited Partner at any time during such year and the Special Limited Partner the tax information necessary for a Limited Partner or the Special Limited Partner, as applicable, to file such tax returns as shall be reasonably required by law.

10.05       Tax Matters Partner/Partnership Representative; Tax Elections; Special Basis Adjustments.

(a)            The General Partner shall be the Tax Matters Partner of the Partnership for U.S. federal income tax purposes with respect to taxable periods ending on or before December 31, 2017. With respect to all subsequent taxable periods, the General Partner or its designee shall be the partnership representative and the “designated individual” for purposes of Section 6223 of the Code and the Regulations promulgated thereunder (collectively, the “Partnership Representative”), and shall represent the Partnership in any disputes, controversies, or proceedings with the IRS or with any state, local or non-U.S. taxing authority. The Tax Matters Partner or the Partnership Representative, as applicable, shall have the right to retain professional assistance in respect of any audit of the Partnership by the IRS and all out-of-pocket expenses and fees incurred by the Tax Matters Partner or the Partnership Representative, as applicable, on behalf of the Partnership in performing its duties as such shall constitute Partnership expenses. The Tax Matters Partner shall have the right and obligation to take all actions authorized by the Code (prior to amendment by the Revised Partnership Audit Procedures). The Partnership Representative shall have the right and obligation to take all actions authorized by the Code and the revised partnership audit procedures and any Regulations or other administrative guidance promulgated in connection therewith (the “Revised Partnership Audit Procedures”):

(i)            In the event the Tax Matters Partner receives notice of a final Partnership adjustment under Section 6223(a)(2) of the Code (as in effect prior to the Budget Act), the Tax Matters Partner shall either (i) file a court petition for judicial review of such final adjustment within the period provided under Section 6226(a) of the Code (as in effect prior to the Budget Act), a copy of which petition shall be mailed to all Limited Partners and the Special Limited Partner on the date such petition is filed, or (ii) mail a written notice to all Limited Partners and the Special Limited Partner, within such period, that describes the Tax Matters Partner’s reasons for determining not to file such a petition.

(ii)            The Partnership Representative shall, subject to the provisions in this Section 10.05(a)(ii), be entitled to take such actions on behalf of the Partnership in any and all proceedings with the IRS and any other such taxing authority as it reasonably determines to be appropriate and any decision made by the Partnership Representative shall be binding on all Partners. The Partners agree to take such actions as may be required to effect the designation of the General Partner or its designee as the Partnership Representative, cooperate in good faith to timely provide information reasonably requested by the Partnership Representative as needed to comply with the Revised Partnership Audit Procedures, including, without limitation, to make (and take full advantage of) any elections available to the Partnership or to determine whether any imputed underpayment amount may be modified pursuant to Section 6225(c) of the Code. Each Partner shall provide to the Partnership upon request such information or forms that the Partnership Representative may reasonably request with respect to the Partnership’s compliance with applicable tax laws. Each Partner hereby agrees to take any and all actions, and to furnish any and all information, requested by the Partnership Representative to minimize any tax liability that would otherwise be imposed on the Partnership under Section 6225 of the Code, or any successor provision, including (if requested by the Partnership Representative) by (i) filing amended tax returns to take into account any adjustment to the amount of any item of income, gain, loss, deduction, or credit of the Partnership, or of any Partner’s distributive share thereof, and (ii) providing the Partnership with any information necessary for the Partnership to (A) establish the amount of any tax liability resulting from any such adjustment, and (B) elect (in accordance with Section 6226 of the Code, or any successor provision) for each Partner to take any such adjustment into account directly. Any tax liability, interest, or penalties imposed on the Partnership pursuant to Section 6225 of the Code and allocable to the Partners or former Partners (as determined by the Partnership Representative in its sole discretion) shall be a Tax Liability, and treated as a deemed distribution or loan to the applicable Partners or former Partners (as determined by the Partnership Representative in its sole discretion) to the same extent as set forth in Section 5.02(d). The Partnership Representative shall have no liability arising out of its performance of its duties as the Partnership Representative hereunder, and the Partnership shall indemnify, defend and hold the Partnership Representative harmless from and against any loss, liability, damage, cost or expense (including reasonable attorneys’ fees and costs) sustained or incurred as a result of its acting as Partnership Representative hereunder, provided that the foregoing shall not insulate the Partnership Representative from liability for any action constituting fraud, gross negligence, misappropriate of funds or an intentional breach of this Agreement. The provisions contained in this Section 10.05(a)(ii) and Section 5.02(d) shall survive the liquidation, termination and dissolution of the Partnership and the withdrawal of any Partner or the transfer of any Partner’s interest in the Partnership. With respect to all taxable years to which the Revised Partnership Audit Procedures apply to the Partnership, the Partnership Representative may, to the extent permitted by law, make an election (a “Pass-Through Election”) under Code Section 6226 with respect to any imputed underpayment of the Partnership, and furnish any adjustment statements to the Partners and to the IRS as required under the Revised Partnership Audit Procedures. In addition to all other remedies that the Partnership may be entitled to pursue, in the event that a Limited Partner fails to pay any amount when due pursuant to this Section 10.05(a), the Partnership may thereafter, at any time prior to the Partner’s payment in full of such amount (plus any accrued interest), elect, if applicable, to redeem Partnership Units held by such Partner, in accordance with the procedures set forth in Section 8.04 with the valuation date being the date the Partnership elects to redeem such Partnership Units, in an amount sufficient to pay any or all of such amount. In the event that proceeds to the Partnership are reduced on account of taxes withheld at the source or the Partnership incurs a liability and such taxes (or a portion thereof) are imposed on or with respect to one or more, but not all, of the Partners or if the rate of tax varies depending on the attributes of specific Partners or to whom the corresponding income is allocated, the amount of the reduction in the Partnership’s net proceeds shall be borne by and apportioned among the relevant Partners and treated as if it were paid by the Partnership as a withholding obligation with respect to such Partners in accordance with such apportionment.

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

(c)            In the event of a transfer of all or any part of the Partnership Interest of any Partner, the Partnership, at the option of the General Partner, may elect pursuant to Section 754 of the Code to adjust the basis of the Properties. Notwithstanding anything contained in Article V of this Agreement, any adjustments made pursuant to Section 754 shall affect only the successor in interest to the transferring Partner and in no event shall be taken into account in establishing, maintaining or computing Capital Accounts for the other Partners for any purpose under this Agreement unless an adjustment to Capital Accounts is permitted under the Regulations promulgated under Section 704 of the Code. Each Partner will furnish the Partnership with all information necessary to give effect to such election.

(d)            In the event that the General Partner shall be removed or replaced pursuant to any provision of this Agreement, the successor to the General Partner shall assume the obligations of this Section 10.05.

(e)            The Partners, intending to be legally bound, hereby authorize the Partnership to make an election (the “Safe Harbor Election”) to have the “liquidation value” safe harbor provided in Proposed Treasury Regulation § 1.83-3(1) and the Proposed Revenue Procedure set forth in Internal Revenue Service Notice 2005-43, as such safe harbor may be modified when such proposed guidance is issued in final form or as amended by subsequently issued guidance (the “Safe Harbor”), apply to any interest in the Partnership transferred to a service provider while the Safe Harbor Election remains effective, to the extent such interest meets the Safe Harbor requirements (collectively, such interests are referred to as “Safe Harbor Interests”). The General Partner is authorized and directed to execute and file the Safe Harbor Election on behalf of the Partnership and the Partners. The Partnership and the Partners (including any Person to whom an interest in the Partnership is transferred in connection with the performance of services) hereby agree to comply with all requirements of the Safe Harbor (including forfeiture allocations) with respect to all Safe Harbor Interests and to prepare and file all U.S. federal income tax returns reporting the tax consequences of the issuance and vesting of Safe Harbor Interests consistent with such final Safe Harbor guidance. The Partnership is also authorized to take such actions as are necessary to achieve, under the Safe Harbor, the effect that the election and compliance with all requirements of the Safe Harbor referred to above would be intended to achieve under Proposed Treasury Regulation § 1.83-3, including amending this Agreement.

10.06      Reports to Limited Partners.

(a)            If the General Partner is required to furnish an annual report to its stockholders containing financial statements of the General Partner, the General Partner will, at the same time and in the same manner, furnish such annual report to each Limited Partner and the Special Limited Partner.

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

ARTICLE XI
AMENDMENT OF AGREEMENT; MERGER

11.01      Amendment of Agreement.

(a)            Except as otherwise provided herein, the General Partner’s written consent shall be required for any amendment to this Agreement. Except as otherwise provided herein, the General Partner, without the consent of the Limited Partners, the Special Limited Partner or any other Person, may amend this Agreement in any respect; provided, however, that the following amendments shall require the written consent of a Majority in Interest:

(i)            any amendment affecting the operation of the Conversion Factor or the Class A Unit Redemption Right (except as otherwise provided herein) in a manner that adversely affects the Limited Partners or the Special Limited Partner in any material respect;

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

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

(iv)            any amendment that would impose on the Limited Partners or the Special Limited Partner any obligation to make additional Capital Contributions to the Partnership;

(v)            any amendment that would modify the limited liability of a Limited Partner or the Special Limited Partner in a manner that adversely affects the Limited Partner or Special Limited Partner; or

(vi)            any amendment to this Article XI.

(b)            Notwithstanding Section 11.01(a) hereof, this Agreement shall not be amended without the consent of the Special Limited Partner if such amendment would adversely affect the Special Limited Partner.

11.02       Merger of Partnership.

Notwithstanding any provision of this Agreement, the General Partner, without the consent of the Limited Partners, the Special Limited Partner or any other Person, may (i) merge or consolidate the Partnership with or into any other domestic or foreign partnership, limited partnership, limited liability company, corporation or other Person or (ii) sell all or substantially all of the assets of the Partnership in a transaction pursuant to Section 7.02(a) or (b) hereof and may amend this Agreement in any manner or adopt a new limited partnership agreement for the Partnership in connection with any such transaction consistent with the provisions of this Article XI.

ARTICLE XII
CLASS B UNITS

12.01       Designation and Number.

(a)            A series of Partnership Units in the Partnership, designated as the “Class B Units,” is hereby established. Except as set forth in Article V and this Article XII, Class B Units shall have the same rights, privileges and preferences as the Class A Units. Subject to the provisions of this Article XII and the special provisions of Section 5.01(c)(i), Class B Units shall be treated as Partnership Units, with all of the rights, privileges and obligations attendant thereto.

(b)            It is intended that the Partnership shall maintain at all times a one-to-one correspondence between Class B Units and Class A Units for conversion and other purposes. If an Adjustment Event occurs, then the General Partner shall make a corresponding adjustment to the Class B Units to maintain a one-for-one conversion and economic equivalence ratio between Class A Units and Class B Units. If more than one Adjustment Event occurs, the adjustment to the Class B Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously. If the Partnership takes an action affecting the Class A Units other than actions specifically described in the definition of Adjustment Events and, in the opinion of the General Partner such action would require an adjustment to the Class B Units to maintain the one-to-one correspondence described above, the General Partner shall have the right to make such adjustment to the Class B Units, to the extent permitted by law, in such manner and at such time as the General Partner, in its sole discretion, may determine to be appropriate under the circumstances. If an adjustment is made to the Class B Units as herein provided, the Partnership shall promptly file in the books and records of the Partnership an officer’s certificate setting forth such adjustment and a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after the filing of such certificate, the Partnership shall mail a notice to each holder of Class B Units setting forth the adjustment to his, her or its Class B Units and the effective date of such adjustment.

12.02      Special Provisions. For the avoidance of doubt, Class B Units shall be subject to the following special provisions:

(a)            Distributions. The holders of Class B Units shall be entitled to (i) current distributions of Cash Available for Distribution pursuant to Section 5.02(a), (ii) distributions, if any, of Net Sales Proceeds pursuant to Section 5.02(b), and (iii) distributions in liquidation of the Partnership pursuant to Section 5.06.

(b)            Allocations. Holders of Class B Units shall be entitled to certain special allocations of Net Property Gain under Section 5.01(c)(i). Except in connection with Net Property Gain, holders of Class B Units shall be allocated Net Income under 5.01(a) no greater than the amount of distributions in respect of Net Income made pursuant to Section 5.02(a) and Section 5.06.

(c)            Redemption. The Class A Unit Redemption Right provided to Limited Partners under Section 8.04 hereof shall not apply with respect to Class B Units unless and until the Class B Units are converted to Class A Units as provided in Section 12.04.

12.03      Voting.

(a)            Holders of Class B Units shall (x) have the same voting rights as the Limited Partners, with the Class B Units voting as a single class with the Class A Units and having one vote per Class B Unit; and (y) have the additional voting rights that are expressly set forth below. So long as any Class B Units remain outstanding, the Partnership shall not, without the affirmative vote of the holders of at least a majority of the Class B Units outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting separately as a class), amend, alter or repeal, whether by merger, consolidation or otherwise, the provisions of this Agreement applicable to Class B Units so as to materially and adversely affect any right, privilege or voting power of the Class B Units or the holders of Class B Units as such, unless such amendment, alteration, or repeal affects equally, ratably and proportionately the rights, privileges and voting powers of the Limited Partners; but subject, in any event, to the following provisions:

(i)            With respect to any Class A Unit Transaction, so long as the Class B Units are treated in accordance with Section 12.04(d) hereof, the consummation of such Class A Unit Transaction shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the Class B Units or the holders of Class B Units as such; and

(ii)            Any creation or issuance of any Partnership Units or of any class or series of Partnership Interest including additional Class A Units or Class B Units whether ranking senior to, junior to, or on a parity with the Class B Units with respect to distributions and the distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the Class B Units or the holders of Class B Units as such.

(b)            The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required, all outstanding Class B Units shall have been converted into Class A Units.

12.04      Conversion of Class B Units.

(a)            Conversion. At such time as the Class B Economic Capital Account Balance attributable to a Class B Unit is equal to the Class A Unit Economic Balance, each such balance determined on a per unit basis as of the effective date of conversion (the “Class B Conversion Date”), such Class B Unit shall automatically convert into one fully paid and non-assessable Class A Unit, giving effect to all adjustments (if any) made pursuant to Section 12.01 hereof; provided, that a Class B Unit shall not be convertible into a Class A Unit if the Class B Economic Capital Account Balance attributable to such Class B Unit is negative. Each holder of Class B Units covenants and agrees with the Partnership that all Class B Units to be converted pursuant to this Section 12.04 shall be free and clear of all liens. The conversion of Class B Units shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such holder of Class B Units, as of which time such holder of Class B Units shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of the number of Class A Units issuable upon such conversion. For purposes of determining the Class B Economic Capital Account Balance attributable to a Class B Unit, allocations pursuant to Section 5.01(c)(i) shall be made in such a manner so as to allow the greatest number of Class B Units to convert pursuant to this Section 12.04 at any time.

(b)            Adjustment to Gross Asset Value.

(i)            The General Partner shall provide the holders of Class B Units the opportunity but not the obligation to make Capital Contributions to the Partnership in exchange for Class A Units in order to cause an adjustment to the Gross Asset Value of the Partnership’s assets within the meaning of paragraph (b)(i) of the definition of Gross Asset Value up to two (2) times each fiscal year including if the Partnership or the General Partner shall be a party to any Class A Unit Transaction; provided, that the General Partner shall give each holder of Class B Units written notice of such Class A Unit Transaction at least thirty (30) days prior to entering into any definitive agreement pursuant to which the Class A Unit Transaction would be consummated.

(ii)            For purposes of clause (i) of this Section 12.04(b), the value of each Class A Unit issued in order to cause an adjustment to the Gross Asset Value of the Partnership’s assets shall be an amount equal to the product of (y) the Value of one REIT Share as of the date the holder of Class B Units makes a Capital Contribution to the Partnership multiplied by (z) the Conversion Factor.

(iii)            For the avoidance of doubt, the issuance of Class B Units shall be treated as an event allowing for an adjustment to the Gross Asset Value of the Partnership’s assets within the meaning of paragraph (b)(iv) of the definition of Gross Asset Value.

(c)            Impact of Conversion for Purposes of Section 5.01(c)(i). For purposes of making future allocations under Section 5.01(c)(i), the portion of the Class B Economic Capital Account Balance of the applicable holder of Class B Units that is treated as attributable to his, her or its Class B Units shall be reduced, as of the date of conversion, by the product of the number of Class B Units converted and the Class A Unit Economic Balance.

(d)            Class A Unit Transactions. Immediately prior to or concurrent with a Class A Unit Transaction, the maximum number of Class B Units then eligible for conversion (in accordance with the provisions of Section 12.04(a)) shall automatically be converted into an equal number of Class A Units, giving effect to all adjustments (if any) made pursuant to Section 12.01 hereof, taking into account any allocations that occur in connection with the Class A Unit Transaction or that would occur in connection with the Class A Unit Transaction if the assets of the Partnership were sold at the Class A Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Class A Unit Transaction (in which case the Conversion Date shall be the effective date of the Class A Unit Transaction). In anticipation of such Class A Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each holder of Class B Units to be afforded the right to receive in connection with such Class A Unit Transaction in consideration for the Class A Units into which his, her or its Class B Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Class A Unit Transaction by a holder of the same number of Class A Units, assuming such holder of Class A Units is not a Person with which the Partnership consolidated or into which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Class A Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Class A Unit Transaction, prior to such Class A Unit Transaction the General Partner shall give prompt written notice to each holder of Class B Units of such election, and shall use commercially reasonable efforts to afford the holders of Class B Units the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each Class B Unit held by such holder into Class A Units in connection with such Class A Unit Transaction. If a holder of Class B Units fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each Class B Unit held by him, her or it (or by any of his, her or its transferees) the same kind and amount of consideration that a holder of a Class A Unit would receive if such Class A Unit holder failed to make such an election. The Partnership shall use commercially reasonable effort to cause the terms of any Class A Unit Transaction to be consistent with the provisions of this Section 12.04(d) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any holders of Class B Units whose Class B Units will not be converted into Class A Units in connection with the Class A Unit Transaction that will (i) contain provisions enabling the holders of Class B Units that remain outstanding after such Class A Unit Transaction to convert their Class B Units into securities as comparable as reasonably possible under the circumstances to the Class A Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in this Agreement for the benefit of the holders of Class B Units.

12.05      Profits Interests.

(a)            Class B Units are intended to qualify as a “profits interest” in the Partnership issued to a new or existing Partner in a partner capacity for services performed or to be performed to or for the benefit of the Partnership within the meaning of Rev. Proc. 93-27, 1993-2 C.B. 343, and Rev. Proc. 2001-43, 2001-2 C.B. 191, the Code, the Regulations, and other future guidance provided by the IRS with respect thereto, and the allocations under Section 5.01(c)(i) shall be interpreted in a manner that is consistent therewith.

(b)            The Partners agree that the General Partner shall make a Safe Harbor Election (as provided in Section 10.05(e)), on behalf of itself and all Partners, to have the Safe Harbor apply irrevocably with respect to Class B Units transferred in connection with the performance of services by a Partner in a partner capacity. The Safe Harbor Election shall be effective as of the date of issuance of such Class B Units. If such election is made, (i) the Partnership and each Partner agree to comply with all requirements of the Safe Harbor with respect to all interests in the Partnership transferred in connection with the performance of services by a Partner in a partner capacity, whether such Partner was admitted as a Partner or as the transferee of a previous Partner, and (ii) the General Partner shall cause the Partnership to comply with all record-keeping requirements and other administrative requirements with respect to the Safe Harbor as shall be required by proposed or final regulations relating thereto.

(c)            The Partners agree that if a Safe Harbor Election is made by the General Partner, (A) each Class B Unit issued hereunder is a Safe Harbor Interest, (B) each Class B Unit represents a profits interest received for services rendered or to be rendered to or for the benefit of the Partnership by such holder of Class B Units in his, her or its capacity as a Partner or in anticipation of becoming a Partner, and (C) the fair market value of each Class B Unit issued by the Partnership upon receipt by such holder of Class B Units as of the date of issuance is zero (plus the amount, if any, of any Capital Contributions made to the Partnership by such holder of Class B Units in connection with the issuance of such Class B Unit), representing the liquidation value of such interest upon receipt (with such valuation being consented to and hereby approved by all Partners).

(d)            Each Partner, by signing this Agreement or by accepting such transfer, hereby agrees (A) to comply with all requirements of any Safe Harbor Election made by the General Partner with respect to each holder of Class B Units’ Safe Harbor Interest, (B) that each holder of Class B Units shall take into account of all items of income, gain, loss, deduction and credit associated with its Class B Units as if they were fully vested in computing its U.S. federal income tax liability for the entire period during which it holds the Class B Units, (C) that neither the Partnership nor any Partner shall claim a deduction (as wages, compensation or otherwise) for the fair market value of such Class B Units issued to a holder of such Class B Units, either at the time of grant of the Class B Units or at the time the Class B Units becomes substantially vested, and (D) that to the extent that such profits interest is forfeited after the date hereof, the Partnership shall make special forfeiture allocations of gross items of income, deduction or loss (including, as may be permitted by or under Regulations (or other rules promulgated) to be adopted, notional items of income, deduction or loss) in accordance with the Regulations to be adopted under Sections 704(b) and 83 of the Code.

(e)            The General Partner shall file or cause the Partnership to file all returns, reports and other documentation as may be required, as reasonably determined by the General Partner, to perfect and maintain any Safe Harbor Election made by the General Partner with respect to granting of each holder of Class B Units’ Safe Harbor Interest.

(f)            The General Partner is hereby authorized and empowered, without further vote or action of the Partners, to amend this Agreement to the extent necessary or helpful in accordance with the advice of Partnership tax counsel or accountants to sustain the Partnership’s position that (A) it has complied with the Safe Harbor requirements in order to provide for a Safe Harbor Election and it has ability to maintain the same, or (B) the issuance of the Class B Units is not a taxable event with respect to the holders of Class B Units, and the General Partner shall have the authority to execute any such amendment by and on behalf of each Partner pursuant to the power of attorney granted by this Agreement. Any undertaking by any Partner necessary or desirable to (A) enable or preserve a Safe Harbor Election or (B) otherwise to prevent the issuance of Class B Units from being a taxable event with respect to the holders of Class B Units may be reflected in such amendments and, to the extent so reflected, shall be binding on each Partner.

(g)            Each Partner agrees to cooperate with the General Partner to perfect and maintain any Safe Harbor Election, and to timely execute and deliver any documentation with respect thereto reasonably requested by the General Partner, at the expense of the Partnership.

(h)            No Transfer of any interest in the Partnership by a Partner shall be effective unless prior to such Transfer, the assignee or intended recipient of such interest shall have agreed in writing to be bound by the provisions of Section 10.05(e) and this Section 12.05, in a form reasonably satisfactory to the General Partner.

(i)            The provisions of this Section 12.05 shall apply regardless of whether or not a holder of Class B Units files an election pursuant to Section 83(b) of the Code.

(j)            The General Partner may amend this Section 12.05 as it deems necessary or appropriate to maximize the tax benefit of the issuance of Class B Units to any holder of Class B Units if there are changes in the law or Regulations concerning the issuance of partnership interests for services.

ARTICLE XIII
LTIP UNITS

13.01       LTIP Units.

(a)            Issuance of LTIP Units. Pursuant to an OPP Agreement or otherwise, the General Partner may, from time to time, issue LTIP Units to Persons who have provided, or will provide, services to the Partnership or the General Partner for such consideration (if any) as the General Partner may determine to be appropriate, and admit such Persons as Limited Partners. Subject to the following provisions of this Section 13.01 and the special provisions of Sections 13.02 and 5.01(c)(iii) hereof, LTIP Units shall be treated as Partnership Units, with all of the rights, privileges and obligations attendant thereto. For purposes of computing the Partners’ Percentage Interests, other than with respect to the Master LTIP Unit, LTIP Unitholders shall be treated as holders of Class A Units and LTIP Units shall be treated as Class A Units. It is intended that the Partnership shall maintain at all times a one-to-one correspondence between LTIP Units, other than the Master LTIP Unit, and Class A Units for conversion, distribution and other purposes, including without limitation complying with the following procedures:

(i)            If an Adjustment Event occurs, then the General Partner shall make a corresponding adjustment to the LTIP Units to maintain a one-for-one conversion and economic equivalence ratio between Class A Units and LTIP Units. If more than one Adjustment Event occurs, the adjustment to the LTIP Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously.

(ii)            If the Partnership takes an action affecting the Class A Units other than actions specifically described in the definition of Adjustment Events and, in the opinion of the General Partner such action would require an adjustment to the LTIP Units to maintain the one-to-one correspondence described above, the General Partner shall have the right to make such adjustment to the LTIP Units, to the extent permitted by law and by any OPP Agreement, in such manner and at such time as the General Partner, in its sole discretion, may determine to be appropriate under the circumstances.

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

(b)            Priority. Subject to the provisions of this Section 13.01 and the special provisions of Sections 13.02 and 5.01(c)(iii), the LTIP Units shall rank pari passu with the Class A Units as to the payment of regular and special periodic or other distributions and, subject to Section 5.06 hereof, distribution of assets upon liquidation, dissolution or winding up. As to the payment of distributions upon liquidation, dissolution or winding up, any class or series of Class A Units or Partnership Interests which by its terms specifies that it shall rank junior to, on a parity with, or senior to the Class A Units shall also rank junior to, or pari passu with, or senior to, respectively, the LTIP Units.

(c)            Special Provisions. For the avoidance of doubt, LTIP Units shall be subject to the following special provisions:

(i)            LTIP Awards. LTIP Units may, in the sole discretion of the General Partner, be issued subject to vesting, forfeiture and additional restrictions on transfers pursuant to the terms of an OPP Agreement. The terms of any OPP Agreement may be modified by the General Partner from time to time in its sole discretion, subject to any restrictions on amendment imposed by the relevant OPP Agreement pursuant to which such LTIP Award was issued. LTIP Units that have vested under the terms of an OPP Agreement are referred to as “Vested LTIP Units”; all other LTIP Units shall be treated as “Unvested LTIP Units.”

(ii)            Forfeiture. Unless otherwise specified in the OPP Agreement, upon the occurrence of any event specified in a OPP Agreement as resulting in either the right of the Partnership or the General Partner to repurchase LTIP Units at a specified purchase price or some other forfeiture of any LTIP Units, if the Partnership or the General Partner exercises such right of repurchase or forfeiture in accordance with the applicable OPP Agreement, the relevant LTIP Units shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purpose. Unless otherwise specified in the OPP Agreement, no consideration or other payment shall be due with respect to any LTIP Units that have been forfeited, other than any distributions declared with respect to a Partnership Record Date prior to the effective date of the forfeiture. In connection with any repurchase or forfeiture of LTIP Units, the LTIP Economic Capital Account Balance of the LTIP Unitholder with respect to remaining LTIP Units, if any, shall be reduced by the amount, if any, by which it exceeds the target balance contemplated by Section 5.01(c)(iii), with respect to such remaining LTIP Units.

(iii)            Allocations. LTIP Unitholders shall be entitled to certain special allocations of Net Property Gain under Sections 5.01(c)(iii). Except in connection with Net Property Gain, LTIP Unitholders shall be allocated Net Income under Section 5.01(a) no greater than the amount of distributions made pursuant to Section 5.02(a) and Section 5.06.

(iv)            Distributions. The LTIP Unitholders shall be entitled to (A) current distributions of Cash Available for Distribution pursuant to Section 5.02(a), (B) distributions, if any, of Net Sales Proceeds pursuant to Section 5.02(b), and (C) distributions in liquidation of the Partnership pursuant to Section 5.06. Notwithstanding the prior sentence, because, in order to facilitate the award granted under the 2020 Advisor OPP Agreement, the Master LTIP Unit will convert into a number of LTIP Units equal to the LTIP Award Number on the Effective Date based on information that cannot be known until the day prior to the Effective Date, and, therefore, the LTIP Award Number and the amount of Cash Available for Distribution otherwise distributable pursuant to Section 5.02(a)(i) prior to the Effective Date with respect to such LTIP Units cannot be determined until the Effective Date, the Partnership shall make distributions pursuant to Section 5.02(a)(i) only to the holders of Class A Units or Class B Units with a Partnership Record Date during the period between the Listing Date and the Effective Date, and, promptly following the Effective Date, the Partnership shall distribute to the LTIP Unitholders the amount that would have been distributed to the LTIP Unitholders pursuant to Section 5.02(a)(i)  during the period between the Listing Date and the Effective Date if a number of LTIP Units equal to the LTIP Award Number had been held by such LTIP Unitholders at all times during such period.

(v)            Redemption. The Class A Unit Redemption Right provided to Limited Partners under Section 8.04 hereof shall not apply with respect to LTIP Units unless and until the LTIP Units are converted to Class A Units as provided in Section 13.01(c)(vi) below and Section 13.02.

(vi)            Conversion.

(1)            Vested LTIP Units are eligible to be converted into Class A Units in accordance with Section 13.02.

(2)            The Master LTIP Unit shall convert on the Effective Date into a number of LTIP Units equal to the LTIP Award Number. This conversion shall occur automatically prior to the opening of business on the Effective Date without any action on the part of the LTIP Unitholder, as of which time the LTIP Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the Effective Date of the number of LTIP Units issuable upon such conversion.

(vii)            Legend. Any certificate evidencing an LTIP Unit shall bear an appropriate legend indicating that additional terms, conditions and restrictions on transfer, including without limitation any set forth in an OPP Agreement, apply to the LTIP Unit.

(d)            Voting. LTIP Unitholders shall (a) have the same voting rights as the Limited Partners, with the LTIP Units voting as a single class with the Class A Units and having one vote per LTIP Unit; and (b) have the additional voting rights that are expressly set forth below. So long as any LTIP Units remain outstanding, the Partnership shall not, without the affirmative vote of the holders of at least a majority of the LTIP Units outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting separately as a class), amend, alter or repeal, whether by merger, consolidation or otherwise, the provisions of this Agreement applicable to LTIP Units so as to materially and adversely affect any right, privilege or voting power of the LTIP Units or the LTIP Unitholders as such, unless such amendment, alteration, or repeal affects equally, ratably and proportionately the rights, privileges and voting powers of the Limited Partners; but subject, in any event, to the following provisions:

(i)            With respect to any Class A Unit Transaction, so long as the LTIP Units are treated in accordance with Section 13.02(f), the consummation of such Class A Unit Transaction shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the LTIP Units or the LTIP Unitholders as such; and

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

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

(e)            Liquidation Value of LTIP Units upon Issuance, and Safe Harbor Election.

(i)            LTIP Units are intended to qualify as a “profits interest” in the Partnership issued to a new or existing Partner in a partner capacity for services performed or to be performed to or for the benefit of the Partnership within the meaning of Rev. Proc. 93-27, 1993-2 C.B. 343, and Rev. Proc. 2001-43, 2001-2 C.B. 191, the Code, the Regulations, and other future guidance provided by the IRS with respect thereto, and the allocations under Section 5.01(c)(iv) shall be interpreted in a manner that is consistent therewith.

(ii)            The Partners agree that the General Partner shall make a Safe Harbor Election (as provided in Section 10.05(e)), on behalf of itself and all Partners, to have the Safe Harbor apply irrevocably with respect to LTIP Units transferred in connection with the performance of services by a Partner in a partner capacity. The Safe Harbor Election shall be effective as of the date of issuance of such LTIP Units. If such election is made, (A) the Partnership and each Partner agree to comply with all requirements of the Safe Harbor with respect to all interests in the Partnership transferred in connection with the performance of services by a Partner in a partner capacity, whether such Partner was admitted as a Partner or as the transferee of a previous Partner, and (B) the General Partner shall cause the Partnership to comply with all record-keeping requirements and other administrative requirements with respect to the Safe Harbor as shall be required by proposed or final regulations relating thereto.

(iii)            The Partners agree that if a Safe Harbor Election is made by the General Partner, (A) each LTIP Unit issued hereunder is a Safe Harbor Interest, (B) each LTIP Unit represents a profits interest received for services rendered or to be rendered to or for the benefit of the Partnership by the LTIP Unitholder in his or her capacity as a Partner or in anticipation of becoming a Partner, and (C) the fair market value of each LTIP Unit issued by the Partnership upon receipt by the LTIP Unitholder as of the date of issuance is zero (plus the amount, if any, of any Capital Contributions made to the Partnership by such LTIP Unitholder in connection with the issuance of such LTIP Unit), representing the liquidation value of such interest upon receipt (with such valuation being consented to and hereby approved by all Partners).

(iv)            Each Partner, by signing this Agreement or by accepting such transfer, hereby agrees (A) to comply with all requirements of any Safe Harbor Election made by the General Partner with respect to each LTIP Unitholder’s Safe Harbor Interest, (B) that each LTIP Unitholder shall take into account of all items of income, gain, loss, deduction and credit associated with its LTIP Units as if they were fully vested in computing its U.S. federal income tax liability for the entire period during which it holds the LTIP Units, (C) that neither the Partnership nor any Partner shall claim a deduction (as wages, compensation or otherwise) for the fair market value of such LTIP Units issued to a holder of such LTIP Units, either at the time of grant of the LTIP Units or at the time the LTIP Units become substantially vested, and (D) that to the extent that such profits interest is forfeited after the date hereof, the Partnership shall make special forfeiture allocations of gross items of income, deduction or loss (including, as may be permitted by or under Regulations (or other rules promulgated) to be adopted, notional items of income, deduction or loss) in accordance with the Regulations to be adopted under Sections 704(b) and 83 of the Code.

(v)            The General Partner shall file or cause the Partnership to file all returns, reports and other documentation as may be required, as reasonably determined by the General Partner, to perfect and maintain any Safe Harbor Election made by the General Partner with respect to granting of each LTIP Unitholder’s Safe Harbor Interest.

(vi)            The General Partner is hereby authorized and empowered, without further vote or action of the Partners, to amend this Agreement to the extent necessary or helpful in accordance with the advice of Partnership tax counsel or accountants to sustain the Partnership’s position that (A) it has complied with the Safe Harbor requirements in order to provide for a Safe Harbor Election and it has ability to maintain the same, or (B) the issuance of the LTIP Units is not a taxable event with respect to the LTIP Unitholders, and the General Partner shall have the authority to execute any such amendment by and on behalf of each Partner pursuant to the power of attorney granted by this Agreement. Any undertaking by any Partner necessary or desirable to (A) enable or preserve a Safe Harbor Election or (B) otherwise to prevent the issuance of LTIP Units to LTIP Unitholders from being a taxable event may be reflected in such amendments and, to the extent so reflected, shall be binding on each Partner.

(vii)            Each Partner agrees to cooperate with the General Partner to perfect and maintain any Safe Harbor Election, and to timely execute and deliver any documentation with respect thereto reasonably requested by the General Partner, at the expense of the Partnership.

(viii)            No Transfer of any interest in the Partnership by a Partner shall be effective unless prior to such Transfer, the assignee or intended recipient of such interest shall have agreed in writing to be bound by the provisions of Section 10.05(e) and this Section 13.01(e), in a form reasonably satisfactory to the General Partner.

(ix)            The provisions of this Section 13.01(e) shall apply regardless of whether or not an LTIP Unitholder files an election pursuant to Section 83(b) of the Code.

(x)            The General Partner may amend this Section 13.01(e) as it deems necessary or appropriate to maximize the tax benefit of the issuance of LTIP Units to any LTIP Unitholder if there are changes in the law or Regulations concerning the issuance of partnership interests for services.

13.02      Conversion of LTIP Units.

(a)            Conversion Right. Subject to Section 13.02(b), an LTIP Unitholder shall have the right (the “LTIP Conversion Right”), at his or her option, at any time to convert all or a portion of his or her Vested LTIP Units into Class A Units; provided, however, that a holder may not exercise the LTIP Conversion Right for less than one thousand (1,000) Vested LTIP Units or, if such holder holds less than one thousand Vested LTIP Units, all of the Vested LTIP Units held by such holder. LTIP Unitholders shall not have the right to convert Unvested LTIP Units into Class A Units until they become Vested LTIP Units; provided, however, that when an LTIP Unitholder is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such LTIP Unitholder may give the Partnership an LTIP Conversion Notice conditioned upon and effective as of the time of vesting and such LTIP Conversion Notice, unless subsequently revoked by the LTIP Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Class A Units. If the Vested LTIP Units became vested in connection with a termination of Advisors Limited Partner’s service as advisor to the General Partner, the holding period referred to in Section 8.04(a) shall not apply with respect to such Vested LTIP Units or the Partnership Units into which they are convertible. In all cases, the conversion of any LTIP Units into Class A Units shall be subject to the conditions and procedures set forth in this Section 13.02.

(b)            Exercise by an LTIP Unitholder. A holder of Vested LTIP Units may convert such LTIP Units into an equal number of fully paid and non-assessable Class A Units, giving effect to all adjustments (if any) made pursuant to Section 13.01 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the LTIP Economic Capital Account Balance of such Limited Partner, divided by (y) the Class A Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). In order to exercise his or her LTIP Conversion Right, an LTIP Unitholder shall deliver a notice (an “LTIP Conversion Notice”) in the form attached as Exhibit C to the Agreement (with a copy to the General Partner) not less than ten nor more than 60 days prior to a date (the “LTIP Conversion Date”) specified in such LTIP Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Unitholders notice of a proposed or upcoming Class A Unit Transaction at least 30 days prior to the effective date of such Class A Unit Transaction, then LTIP Unitholders shall have the right to deliver an LTIP Conversion Notice until the earlier of (x) the tenth day after such notice from the General Partner of a Class A Unit Transaction or (y) the third business day immediately preceding the effective date of such Class A Unit Transaction. An LTIP Conversion Notice shall be provided in the manner provided in Section 14.01 hereof. Each LTIP Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 13.02(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP Units may deliver a Notice of Redemption pursuant to Section 8.04(a) hereof relating to those Class A Units that will be issued to such holder upon conversion of such LTIP Units into Class A Units in advance of the LTIP Conversion Date; provided, however, that the redemption of such Class A Units by the Partnership shall in no event take place until after the LTIP Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Unitholder in a position where, if he or she so wishes, the Class A Units into which his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Class A Units under Section 8.04(b) hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to him or her simultaneously with the conversion of his or her Vested LTIP Units into Class A Units. The General Partner and LTIP Unitholder shall reasonably cooperate with each other to coordinate the timing of the events described in the foregoing sentence.

(c)            Forced Conversion. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Unitholder to be converted (a “Forced Conversion”) into an equal number of Class A Units, giving effect to all adjustments (if any) made pursuant to Section 13.01 hereof; provided, however, that the Partnership may not cause Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Unitholder pursuant to Section 13.02(b) hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit D to the applicable LTIP Unitholder not less than ten nor more than 60 days prior to the LTIP Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 14.01 hereof.

(d)            Completion of Conversion. A conversion of Vested LTIP Units for which the holder thereof has given an LTIP Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable LTIP Conversion Date without any action on the part of such LTIP Unitholder, as of which time such LTIP Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of the number of Class A Units issuable upon such conversion.

(e)            Impact of Conversion for Purposes of Section 5.01(c)(iii). For purposes of making future allocations under Section 5.01(c)(iii) hereof and applying the Capital Account Limitation, the portion of the LTIP Economic Capital Account Balance of the applicable LTIP Unitholder shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Class A Unit Economic Balance.

(f)            Class A Unit Transactions. If the Partnership or the General Partner shall be a party to any Class A Unit Transaction, then the General Partner shall, immediately prior to the Class A Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Class A Unit Transaction or that would occur in connection with the Class A Unit Transaction if the assets of the Partnership were sold at the Class A Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Class A Unit Transaction (in which case the LTIP Conversion Date shall be the effective date of the Class A Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Class A Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Unitholder to be afforded the right to receive in connection with such Class A Unit Transaction in consideration for the Class A Units into which his or her LTIP Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Class A Unit Transaction by a holder of the same number of Class A Units, assuming such holder of Class A Units is not a Constituent Person, or an affiliate of a Constituent Person. In the event that holders of Class A Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Class A Unit Transaction, prior to such Class A Unit Transaction the General Partner shall give prompt written notice to each LTIP Unitholder of such election, and shall use commercially reasonable efforts to afford the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each LTIP Unit held by such holder into Class A Units in connection with such Class A Unit Transaction. If an LTIP Unitholder fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each LTIP Unit held him or her (or by any of his or her transferees) the same kind and amount of consideration that a holder of a Class A Unit would receive if such Class A Unit holder failed to make such an election. Subject to the rights of the Partnership and the General Partner under any OPP Agreement, the Partnership shall use commercially reasonable effort to cause the terms of any Class A Unit Transaction to be consistent with the provisions of this Section 13.02(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Unitholders whose LTIP Units will not be converted into Class A Units in connection with the Class A Unit Transaction that will (i) contain provisions enabling the holders of LTIP Units that remain outstanding after such Class A Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to the Class A Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in this Agreement for the benefit of the LTIP Unitholders.

ARTICLE XIV
GENERAL PROVISIONS

14.01            Notices. All communications required or permitted under this Agreement shall be in writing and shall be deemed to have been given when delivered personally or upon deposit in the United States mail, registered, postage prepaid return receipt requested, to the Partners and the Special Limited Partner at the addresses set forth in Schedule A attached hereto, as it may be amended or restated from time to time; provided, however, that any Partner and the Special Limited Partner may specify a different address by notifying the General Partner in writing of such different address. Notices to the General Partner and the Partnership shall be delivered at or mailed to the Partnership’s office address set forth in Section 2.03 hereof. The General Partner and the Partnership may specify a different address by notifying the Limited Partners and the Special Limited Partner in writing of such different address.

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

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

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

14.05            Entire Agreement. This Agreement and exhibits attached hereto constitute the entire Agreement of the Partners and supersede all prior written agreements and prior and contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. In furtherance of the foregoing, the Partners and the Special Limited Partner acknowledge that the Original Agreement is hereby superseded in its entirety and this Agreement amends and restates any prior agreement of limited partnership of the Partnership.

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

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

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

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

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the undersigned has affixed its signature to this Amended and Restated Agreement of Limited Partnership, as of the 18th day of August, 2020.

[Signature Page to Amended and Restated Agreement of Limited Partnership]

EXHIBIT A
NOTICE OF EXERCISE OF CLASS A UNIT REDEMPTION RIGHT

In accordance with Section 8.04 of the Amended and Restated Agreement of Limited Partnership (as amended, the “Agreement”) of New York City Operating Partnership, L.P. (the “Partnership”), the undersigned hereby irrevocably (i) presents for redemption ___________ Class A Units in the Partnership in accordance with the terms of the Agreement and the Class A Unit Redemption Right referred to in Section 8.04 thereof, (ii) surrenders such Class A Units and all right, title and interest therein and (iii) directs that the Cash Amount or REIT Shares Amount (as defined in the Agreement) as determined by the Partnership, or the General Partner (if the General Partner assumes the Partnership’s obligation pursuant to Section 8.04(b) of the Agreement), deliverable upon exercise of the Class A Unit Redemption Right be delivered to the address specified below, and if REIT Shares (as defined in the Agreement) are to be delivered, such REIT Shares be registered or placed in the name(s) and at the address(es) specified below.

Dated: __________ ___, ___
Name of Limited Partner:

If REIT Shares are to be issued, issue to:
Please insert social security or identifying number:
Name:

EXHIBIT B-1
CERTIFICATION OF NON-FOREIGN STATUS
(FOR REDEEMING PARTNERS THAT ARE ENTITIES)

Under Section 1445(e) of the Internal Revenue Code of 1986, as amended (the “Code”), in the event of a disposition by a non-U.S. person of a partnership interest in a partnership in which (i) 50% or more of the value of the gross assets consists of United States real property interests (“USRPIs”), as defined in Section 897(c) of the Code, and (ii) 90% or more of the value of the gross assets consists of USRPIs, cash, and cash equivalents, the transferee will be required to withhold 10% of the amount realized by the non-U.S. person upon the disposition. For U.S. federal income tax purposes (including Section 1445 of the Code), the owner of a disregarded entity (which has legal title to a partnership interest under local law) will be the transferor of the property and not the disregarded entity. To inform New York City REIT, Inc. (the “General Partner”) and New York City Operating Partnership, L.P. (the “Partnership”) that no withholding is required with respect to the redemption by ___________ (“Partner”) of its Class A Units in the Partnership, the undersigned hereby certifies the following on behalf of Partner:

Under penalties of perjury, I declare that I have examined this certification and, to the best of my knowledge and belief, it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of Partner.

PARTNER:

EXHIBIT B-2
CERTIFICATION OF NON-FOREIGN STATUS
(FOR REDEEMING PARTNERS THAT ARE INDIVIDUALS)

Under Section 1445(e) of the Internal Revenue Code of 1986, as amended (the “Code”), in the event of a disposition by a non-U.S. person of a partnership interest in a partnership in which (i) 50% or more of the value of the gross assets consists of United States real property interests (“USRPIs”), as defined in Section 897(c) of the Code, and (ii) 90% or more of the value of the gross assets consists of USRPIs, cash, and cash equivalents, the transferee will be required to withhold 10% of the amount realized by the non-U.S. person upon the disposition. To inform New York City REIT, Inc. (the “General Partner”) and New York City Operating Partnership, L.P. (the “Partnership”) that no withholding is required with respect to my redemption of my Class A Units in the Partnership, I, ____________, hereby certify the following:

Under penalties of perjury, I declare that I have examined this certification and, to the best of my knowledge and belief, it is true, correct, and complete.

EXHIBIT C

NOTICE OF ELECTION BY PARTNER TO CONVERT
LTIP UNITS INTO CLASS A UNITS

The undersigned holder of LTIP Units hereby irrevocably (i) elects to convert the number of LTIP Units in New York City Operating Partnership, L.P. (the “Partnership”) set forth below into Class A Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended; and (ii) directs that any cash in lieu of Class A Units that may be deliverable upon such conversion be delivered to the address specified below. The undersigned hereby represents, warrants, and certifies that the undersigned (a) has title to such LTIP Units, free and clear of the rights or interests of any other person or entity other than the Partnership; (b) has the full right, power, and authority to cause the conversion of such LTIP Units as provided herein; and (c) has obtained the consent to or approval of all persons or entities, if any, having the right to consent or approve such conversion.

Number of LTIP Units to be Converted: __________________

Date of this Notice: __________________

EXHIBIT D

NOTICE OF ELECTION BY PARTNERSHIP TO FORCE CONVERSION OF
LTIP UNITS INTO CLASS A UNITS

New York City Operating Partnership, L.P. (the “Partnership”) hereby irrevocably elects to cause the number of LTIP Units held by the holder of LTIP Units set forth below to be converted into Class A Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.

Name of Holder:

Number of LTIP Units to be Converted: __________________

Date of this Notice: __________________

EXHIBIT E-1

CERTIFICATION OF NON-FOREIGN STATUS

(FOR REDEEMING PARTNERS THAT ARE ENTITIES)

Section 1446(f)(1) of the Internal Revenue Code of 1986, as amended (the “Code”), provides that, subject to certain exceptions, if any portion of the gain on any disposition of an interest in a partnership would be treated under section 864(c)(8) of the Code as effectively connected with the conduct of a trade or business within the United States, the transferee shall be required to deduct and withhold a tax equal to 10% of the amount realized on the disposition. Section 1446(f)(2) of the Code and section 6.01 of IRS Notice 2018-29 provides an exception to this withholding requirement with respect to a disposition of a partnership interest if the transferor furnishes to the transferee an affidavit by the transferor stating, under penalty of perjury, the transferor’s U.S. taxpayer identification number (“TIN”) and that the transferor is not a foreign person. For U.S. federal income tax purposes (including Section 1446 of the Code), the owner of a disregarded entity (which has legal title to a partnership interest under local law) will be the transferor of the property and not the disregarded entity.

To inform New York City REIT, Inc. (the “General Partner”) and New York City Operating Partnership, L.P. (the “Partnership”) that no withholding is required under section 1446(f) of the Code with respect to the redemption by _________________ (“Partner”) of its Class A Units in the Partnership, the undersigned hereby certifies the following on behalf of Partner:

Under penalties of perjury, I declare that I have examined this certification and, to the best of my knowledge and belief, it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Partner.

EXHIBIT E-2

CERTIFICATION OF NON-FOREIGN STATUS

(FOR REDEEMING PARTNERS THAT ARE INDIVIDUALS)

Section 1446(f)(1) of the Internal Revenue Code of 1986, as amended (the “Code”), provides that, subject to certain exceptions, if any portion of the gain on any disposition of an interest in a partnership would be treated under section 864(c)(8) of the Code as effectively connected with the conduct of a trade or business within the United States, the transferee shall be required to deduct and withhold a tax equal to 10% of the amount realized on the disposition. Section 1446(f)(2) of the Code and section 6.01 of IRS Notice 2018-29 provides an exception to this withholding requirement with respect to a disposition of a partnership interest if the transferor furnishes to the transferee an affidavit by the transferor stating, under penalty of perjury, the transferor’s U.S. taxpayer identification number (“TIN”) and that the transferor is not a foreign person.

To inform New York City REIT, Inc. (the “General Partner”) and New York City Operating Partnership, L.P. (the “Partnership”) that no withholding is required under section 1446(f) of the Code with respect to my redemption of my Class A Units in the Partnership, I hereby certify the following:

Under penalties of perjury, I declare that I have examined this certification and, to the best of my knowledge, and belief it is true, correct and complete.

Exhibit 4.2 

NEW YORK CITY REIT, INC.

and

COMPUTERSHARE TRUST COMPANY, N.A.

(Rights Agent)

Amended and Restated Rights Agreement

Dated as of August 17, 2020 

AMENDED AND RESTATED
RIGHTS AGREEMENT

This Amended and Restated Rights Agreement (as amended, supplemented or otherwise modified from time to time, this “Agreement”), dated as of August 17, 2020, is made between New York City REIT, Inc., a Maryland corporation (the “Company”), and Computershare Trust Company, N.A., a federally chartered trust company (the “Rights Agent”).

WHEREAS, the Company and the Rights Agent previously entered into that certain Rights Agreement, dated as of May 18, 2020 (the “Original Agreement”).

WHEREAS, the Company’s shares of Class A Common Stock, par value $0.01 per share (“Class A Common Stock”), will commence trading on the New York Stock Exchange, Inc. on August 18, 2020.

WHEREAS, the Company has not declared any dividend of rights or issued any rights under the Original Agreement.

WHEREAS, pursuant to Section 27 of the Original Agreement and in connection with the listing of the Company’s shares of Class A Common Stock, the Company and the Rights Agent desire to amend and restate the Original Agreement in its entirety with this Agreement to, among other things, increase the thresholds set forth in Section 1.1 under the definition of “Acquiring Person” to 4.9% and change the “Final Expiration Date” to August 16, 2021, each as contemplated by the Original Agreement.

WHEREAS, the Board of Directors of the Company has (a) adopted resolutions classifying and designating 15,000 shares of preferred stock, par value $0.01 per share, of the Company as shares of “Series A Preferred Stock,” (b) authorized a dividend of one Class A right (a “Class A Right”) for and on each share of Class A Common Stock and one Class B right (a “Class B Right,” and together with the Class A Rights, the “Rights”) for and on each share of the Company’s Class B Common Stock, par value $0.01 per share (“Class B Common Stock,” and together with the Class A Common Stock, the “Common Stock”) that will be declared on August 18, 2020 and be payable, in each case, to holders of record of Common Stock at the Close of Business (as defined below) on August 28, 2020 (the “Record Date”), (c) authorized the issuance of one Class A Right (subject to adjustment) with respect to (A) each additional share of Class A Common Stock issued by the Company between the Record Date and the earliest of (i) the Close of Business on the Distribution Date, (ii) the Close of Business on the Redemption Date or (iii) the Close of Business on the Final Expiration Date (as all are defined below), and (B) additional shares of Class A Common Stock that shall become outstanding after the Distribution Date as provided in Section 22 of this Agreement and (d) authorized the issuance of one Class B Right (subject to adjustment) with respect to each additional share of Class B Common Stock issued by the Company between the Record Date and the earliest of (i) the Close of Business on the Distribution Date, (ii) the Close of Business on the Redemption Date or (iii) the Close of Business on the Final Expiration Date, each Right initially representing the right to purchase one one-thousandth (subject to adjustment) of a Preferred Share (as defined below), subject to adjustment, upon the terms and subject to the conditions below.

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties agree as follows:

1.1            “Acquiring Person” means any Person (other than an Exempt Person or a Passive Investor) who or which, together with all Affiliates and Associates of the Person, is or becomes on or after the Close of Business on the date on which this Agreement is executed the Beneficial Owner of 4.9% or more of the shares of Common Stock then outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of the Company or any Subsidiary of the Company or the Company’s advisor, New York City Advisors, LLC (the “Advisor”), (iv) any entity or trustee holding (or acting in a fiduciary capacity in respect of) shares of Common Stock for or pursuant to the terms of any employee benefit plan or for the purpose of funding any plan or funding other employee benefits for employees of the Company, any Subsidiary of the Company or the Advisor, (v) any Person who has been permitted by the Board of Directors, or a committee thereof, to Beneficially Own 4.9% or more of the shares of Common Stock then outstanding by means of a written waiver or agreement, provided, that (x) the Person does not Beneficially Own shares of Common Stock above the permitted percentage and complies in all material respects with the terms and the conditions of the waiver or agreement, and (y) the waiver or agreement remains in full force and effect, and (vi) any Person who or which, at the Close of Business on the date on which this Agreement is executed, is a Beneficial Owner of 4.9% or more of the shares of Common Stock then outstanding, other than a Person who or which is not an Affiliate or Associate of the Beneficial Owner at the Close of Business on the date on which this Agreement is executed and who or which subsequently becomes an Affiliate or Associate of the Beneficial Owner without the prior written approval of the Board of Directors (a “Grandfathered Stockholder”); provided, however, that if a Grandfathered Stockholder becomes, after the Close of Business on the date on which this Agreement is executed, the Beneficial Owner of any additional shares of Common Stock (in the case of any Person in clause (v), any additional shares of Common Stock above the percentage permitted by the Board of Directors, or a committee thereof) (other than shares of Common Stock acquired solely as a result of corporate action of the Company not caused, directly or indirectly, by the Person) at any time such that the Grandfathered Stockholder is or thereby becomes the Beneficial Owner of 4.9% or more of the shares of Common Stock then outstanding (or any other percentage as would otherwise result in the Person becoming an Acquiring Person), then the Grandfathered Stockholder shall be deemed an Acquiring Person; provided, further, that upon the first decrease of a Grandfathered Stockholder’s Beneficial Ownership below 4.9%, the Grandfathered Stockholder shall no longer be considered a Grandfathered Stockholder and this clause (vi) shall have no further force or effect with respect to the Grandfathered Stockholder; and provided, further, that for the purposes of calculating an Acquiring Person’s Beneficial Ownership percentage, shares of Common Stock that the Acquiring Person, its Affiliate(s) or Associate(s) acquire(s) or attempt(s) to acquire in violation of Section 5.7 of the Charter, even if transferred to a trust, shall be included in the numerator for purposes of the calculation and deemed as Beneficially Owned by the Acquiring Person or its Affiliate(s) or Associate(s).

Notwithstanding the foregoing, no Person shall become an Acquiring Person as the result of the Company acquiring shares of Common Stock by repurchase, tender or otherwise which, by reducing the number of shares outstanding, increases the proportionate number of shares of Common Stock Beneficially Owned by the Person to 4.9% or more of the then outstanding shares of Common Stock (or any other percentage as would otherwise result in the Person becoming an Acquiring Person); provided, however, that if a Person would, but for the provisions of this paragraph, become an Acquiring Person by reason of an acquisition of shares of Common Stock by the Company and shall, after the share acquisition by the Company, become the Beneficial Owner of any additional shares of Common Stock at any time such that the Person is or thereby becomes the Beneficial Owner of 4.9% or more of the shares of Common Stock then outstanding (or any other percentage as would otherwise result in the Person becoming an Acquiring Person) (other than shares of Common Stock acquired solely as a result of corporate action of the Company not caused, directly or indirectly, by the Person), then the Person shall be deemed to be an Acquiring Person.

Notwithstanding the foregoing paragraphs of this Section 1.1, if the Board of Directors, or a committee thereof, determines that a Person who would otherwise be an Acquiring Person, has become an Acquiring Person inadvertently (including, without limitation, because (A) the Person establishes that it was unaware that it Beneficially Owned that number of shares of Common Stock that would otherwise cause the Person to be an “Acquiring Person” or (B) the Person establishes that it was aware of the extent of its Beneficial Ownership of shares of Common Stock but had no actual knowledge of the consequences of its Beneficial Ownership under this Agreement) and without any intention of obtaining, changing or influencing control of the Company, and the Person divests as promptly as practicable, as determined by the Board of Directors, or a committee thereof, a sufficient number of shares of Common Stock so that the Person would no longer be an Acquiring Person, then the Person shall not be deemed to have become an Acquiring Person for any purpose of this Agreement. Notwithstanding the foregoing, if a bona fide swaps or derivatives dealer who would otherwise be an “Acquiring Person” has become an Acquiring Person as a result of its actions in the ordinary course of its business that the Board of Directors, or a committee thereof, determines, in its sole discretion, were taken without the intent or effect of evading or assisting any other Person to evade the purposes and intent of this Agreement, or otherwise seeking to control or influence the management or policies of the Company, then, and unless and until the Board of Directors shall otherwise determine, the Person shall not be deemed to be an “Acquiring Person” for any purpose of this Agreement.

1.2            A Person shall be deemed to be “Acting in Concert” with another Person if the Person acts (whether or not pursuant to an express agreement, arrangement or understanding) in concert or in parallel with another Person, or towards a common goal with another Person, relating to (i) acquiring, holding, voting or disposing of voting securities of the Company or (ii) changing or influencing the control of the Company or in connection with or as a participant in any transaction having that purpose or effect, where (x) each Person knows of the other Person’s conduct or intent and (y) at least one additional factor supports a determination by the Board of Directors that the Persons intended to act in concert or in parallel, including, without limitation, exchanging information, attending meetings, conducting discussions, or making or soliciting invitations to act in concert or in parallel. A Person who is Acting in Concert with another Person shall also be deemed to be Acting in Concert with any third Person who is also Acting in Concert with the other Person. Notwithstanding the foregoing, no Person shall be deemed to be Acting in Concert with another Person solely as a result of (i) making or receiving a solicitation of, or granting or receiving, revocable proxies or consents given in response to a public proxy or consent solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by means of a proxy or solicitation statement filed on Schedule 14A, or (ii) soliciting or being solicited for, or tendering or receiving tenders of securities in a public tender or exchange offer made pursuant to, and in accordance with, Section 14(d) of the Exchange Act by means of a tender offer statement filed on Schedule TO.

1.3            “Adjustment Shares” shall have the meaning set forth in Section 11.1.2 hereof.

1.4            “Affiliate” shall mean a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.

1.5            “Associate” shall mean, when used to indicate a relationship with any Person, (i) any corporation or organization (other than the registrant or a majority-owned subsidiary of the Person) of which the Person is an officer or partner or is, directly or indirectly, the Beneficial Owner of 4.9% or more of any class of equity securities, (ii) any trust or other estate in which the Person has a substantial beneficial interest or as to which the Person serves as trustee or in a similar fiduciary capacity, and (iii) any relative or spouse of the Person, or any relative of the spouse, who has the same home as the Person or who is a director or officer of the Person or any of its parents or subsidiaries.

1.6            A Person shall be deemed the “Beneficial Owner” of, shall be deemed to have “Beneficial Ownership” of and shall be deemed to “Beneficially Own” any securities:

1.6.1            which the Person or any of the Person’s Affiliates or Associates beneficially owns, directly or indirectly, within the meaning of Rule 13d-3 of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement;

1.6.2            which the Person or any of the Person’s Affiliates or Associates has (i) the right or the obligation to acquire (whether the right is exercisable, or the obligation is required to be performed, immediately or only after the passage of time or upon the satisfaction of conditions) pursuant to any agreement, arrangement or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), written or otherwise, or upon the exercise of conversion rights, exchange rights, rights (other than the Rights), warrants or options, or otherwise; provided, however, that a Person shall not be deemed to be the Beneficial Owner of, or to Beneficially Own, (w) securities tendered pursuant to a tender or exchange offer made pursuant to, and in accordance with, the applicable rules and regulations promulgated under the Exchange Act by or on behalf of the Person or any of the Person’s Affiliates or Associates until the tendered securities are accepted for purchase or exchange, (x) securities which the Person has a right to acquire upon the exercise of Rights at any time prior to the time that any Person becomes an Acquiring Person, (y) securities issuable upon the exercise of Rights from and after the time that any other Person becomes an Acquiring Person if the Rights were acquired by the first Person or any of the first Person’s Affiliates or Associates prior to the Distribution Date or pursuant to Section 3.1 or Section 22 hereof (“Original Rights”) or pursuant to Section 11.9 or Section 11.14 with respect to an adjustment to Original Rights, or (z) securities which the Person or any of the Person’s Affiliates or Associates may acquire, does or do acquire or may be deemed to have the right to acquire, pursuant to any merger or other acquisition agreement between the Company and the Person (or one or more of the Person’s Affiliates or Associates) if the acquisition agreement has been approved by the Board of Directors prior to the Person’s becoming an Acquiring Person; or (ii) the right to vote pursuant to any agreement, arrangement or understanding; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own, any security if the agreement, arrangement or understanding to vote the security (A) arises solely from a revocable proxy or consent given to the Person in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations promulgated under the Exchange Act and (B) is not also then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report);

1.6.3            which are Beneficially Owned, directly or indirectly, by any other Person (or any Affiliate or Associate of the other Person) with which the first Person or any of the first Person’s Affiliates or Associates or any other Person (or any Affiliate or Associate of the other Person) with whom the first Person (or any Affiliates or Associates of the first Person) is Acting in Concert, has any agreement, arrangement or understanding, whether or not in writing, for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in clause (ii) of Section 1.6.2) or disposing of any voting securities of the Company; and

1.6.4            which are the subject of, or the reference securities for, or that underlie, any Derivative Interest of the Person or any of the Person’s Affiliates or Associates, with the number of shares of Common Stock deemed Beneficially Owned being the notional or other number of shares of Common Stock specified in the documents evidencing the Derivative Interest as being subject to be acquired upon the exercise or settlement of the Derivative Interest or as the basis upon which the value or settlement amount of the Derivative Interest is to be calculated in whole or in part or, if the number of shares of Common Stock is not specified in the applicable documents, or as determined by the Board of Directors; provided, that a Unitholder shall not be deemed the Beneficial Owner of, or to Beneficially Own, securities which may be issued to the Unitholder upon redemption of the Unitholder’s Partnership Units pursuant to the terms and conditions of the Operating Partnership Agreement, unless the Unitholder actually receives the securities in exchange therefor.

Notwithstanding anything in this definition of Beneficial Owner to the contrary, the phrase “then outstanding,” when used with reference to a Person’s beneficial ownership of securities of the Company, means the number of securities then issued and outstanding together with the number of securities not then actually issued and outstanding which the Person would be deemed to beneficially own hereunder, but the number of securities not outstanding that the Person is otherwise deemed to beneficially own for purposes of this Agreement shall not be included for the purpose of computing the percentage of the outstanding securities beneficially owned by any other Person (unless the other Person is also deemed to beneficially own for purposes of this Agreement the securities not outstanding).

1.7            “Board of Directors” means the members of the Company’s board of directors.

1.8            “Book Entry” shall mean an uncertificated share of Common Stock registered in book entry form by notation in accounts reflecting the ownership of the shares of Common Stock.

1.9            “Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in the state of New York are authorized or obligated by law or executive order to close.

1.10            “Bylaws” means the Company’s Amended and Restated Bylaws, dated as of August 13, 2018, as amended or restated from time to time.

1.11            “Cash Consideration” means the “Cash Amount” as defined in the Operating Partnership Agreement.

1.12            “Charter” means the charter of the Company.

1.13            “Class A Common Stock” has the meaning set forth in the recitals to this Agreement.

1.14            “Class A Right” has the meaning set forth in the recitals to this Agreement.

1.15            “Class B Common Stock” has the meaning set forth in the recitals to this Agreement.

1.16            “Class B Right” has the meaning set forth in the recitals to this Agreement.

1.17            “Close of Business” means 5:00 p.m., New York time, on any given date; provided, however, that if the applicable date is not a Business Day, it means 5:00 p.m., New York time, on the next succeeding Business Day.

1.18            “Common Stock” has the meaning set forth in the recitals to this Agreement, except that “Common Stock” when used with reference to any Person other than the Company shall mean the capital stock (or equity interest) with the greatest voting power of such other Person or, if such other Person is a Subsidiary of another Person, the Person or Persons which ultimately control such first-mentioned Person.

1.19            “Common Stock Equivalents” has the meaning set forth in Section 11.1.3.

1.20            “Company” has the meaning set forth in the introductory paragraph of this Agreement.

1.21            “Continuing Director” means any member of the Board of Directors (while the Person is a member of the Board of Directors) who is not an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or a representative or nominee of an Acquiring Person or of any Affiliate or Associate of an Acquiring Person, and who either (i) was a member of the Board of Directors immediately prior to the date of this Agreement or (ii) on or subsequent to the date of this Agreement became a member of the Board and whose nomination for election or election to the Board of Directors is recommended or approved by a majority of the Continuing Directors.

1.22            “Conversion Factor” has the meaning ascribed to it in the Operating Partnership Agreement.

1.23            “Current Per Share Market Price” has the meaning set forth in Sections 11.4.1 and 11.4.2.

1.24            “Current Value” has the meaning set forth in Section 11.1.3.

1.25            “Derivative Interest” shall mean any derivative securities (as defined under Rule 16a-1 under the Exchange Act) that increase in value as the value of the underlying equity increases, including, but not limited to, a long convertible security, a long call option and a short put option position, in each case, regardless of whether (x) the interest conveys any voting rights in the underlying security, (y) the interest is required to be, or is capable of being, settled through delivery of the underlying security or (z) transactions hedge the economic effect of the interest.

1.26            “Distribution Date” has the meaning set forth in Section 3.1.

1.27            “Earning Power” has the meaning set forth in Section 13.4.

1.28            “Equivalent Preferred Shares” has the meaning set forth in Section 11.2.

1.29            “Exchange Act” means the Securities Exchange Act of 1934, as amended.

1.30            “Exchange Property” has the meaning set forth in Section 24.6.

1.31            “Exchange Ratio” has the meaning set forth in Section 24.1.

1.32            “Exchange Recipients” has the meaning set forth in Section 24.6.

1.33            “Exempt Person” shall mean any Person that the Board of Directors, or a committee thereof, determines is exempt from this Agreement; provided that no Person shall qualify as an Exempt Person unless the determination is made, prior to the time any Person becomes an Acquiring Person; provided further that any Person will cease to be an Exempt Person if the Board of Directors, or a committee thereof, makes a contrary determination with respect to the Person.

1.34            “Expiration Date” has the meaning set forth in Section 7.1.

1.35            “Final Expiration Date” means the date upon which the Rights expire, which is August 16, 2021, unless the Rights are previously redeemed, exchanged or terminated. The Rights Agent will not be deemed to have any knowledge of the Final Expiration Date unless and until it has been notified that the Final Expiration Date has occurred.

1.36            “Independent Directors” shall mean members of the Board who are not officers of the Company or any of its Subsidiaries and who are not Acquiring Persons or representatives, nominees, Affiliates or Associates of Acquiring Persons.

1.37            “MGCL” means the Maryland General Corporation Law.

1.38            “NASDAQ” means The NASDAQ Stock Market LLC.

1.39            “NYSE” means the New York Stock Exchange, Inc.

1.40            “Operating Partnership” means New York City Operating Partnership, L.P., a Delaware limited partnership.

1.41            “Operating Partnership Agreement” means the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, to be entered into effective as of the date on which the shares of Class A Common Stock are listed on the NYSE, as amended from time to time.

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

1.43            “Ownership Statements” means, with respect to any Book Entry share of Common Stock, current ownership statements issued to the record holders thereof in lieu of a certificate representing the shares of Common Stock.

1.44            “Partnership Unit” has the meaning set forth in Section 3.4 hereof.

1.45            “Partnership Unit Redemption Rights” means the rights that a Unitholder has to require the Operating Partnership to redeem from time to time part or all of the Unitholder’s Partnership Units for the consideration set forth in the Operating Partnership Agreement.

1.46            “Passive Investor” shall mean a Person, excluding any Person who makes a tender offer, mini or otherwise, who (i) is the Beneficial Owner of shares of Common Stock and either (a) has a Schedule 13G on file with the Securities and Exchange Commission pursuant to the requirements of Rule 13d-1(b) or (c) under the Exchange Act with respect to its holdings (and does not subsequently convert such filing to a Schedule 13D) or (b) has a Schedule 13D on file with the Securities and Exchange Commission and either has stated in its filing that it has no plan or proposal that relates to or would result in any of the actions or events set forth in Item 4 of Schedule 13D or otherwise has no intent to seek control of the Company or has certified to the Company that it has no such plan, proposal or intent (other than by voting the shares of the Common Stock over which such Person has voting power), (ii) acquires Beneficial Ownership of shares of Common Stock pursuant to trading activities undertaken in the ordinary course of the Person’s business and not with the purpose or the effect, either alone or Acting in Concert with any Person, of exercising the power to direct or cause the direction of the management and policies of the Company or of otherwise changing or influencing the control of the Company, nor in connection with or as a participant in any transaction having such purpose or effect, including any transaction subject to Rule 13d-3(b) of the Exchange Act, and (iii) in the case of clause (i)(b) only, does not amend either its Schedule 13D on file or its certification to the Company in a manner inconsistent with its representation that it has no plan or proposal that relates to or would result in any of the actions or events set forth in Item 4 of Schedule 13D or otherwise has no intent to seek control of the Company (other than by voting the shares of Common Stock over which such Person has voting power). For the avoidance of any doubt, in the event a Person ceases to be a Passive Investor, the Person will be an “Acquiring Person” if the Person, together with its Affiliates and Associates, Beneficial Ownership exceeds the threshold set forth in Section 1.1 above regardless of whether the Person acquired shares of Common Stock while the Person was a Passive Investor.

1.47            “Permitted Offer” shall mean a tender or exchange offer that is for all outstanding shares of Common Stock at a price and on terms determined, prior to the purchase of shares under such tender or exchange offer, by at least a majority of the Board of Directors, to be (i) fair to the Company’s stockholders and not inadequate (taking into account all factors that such Board of Directors deems relevant, including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (ii) otherwise in the best interests of the Company.

1.48            “Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business trust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or otherwise) of the applicable entity.

1.49            “Preferred Shares” means shares of Series A Preferred Stock, par value $0.01 per share, of the Company having the rights and preferences set forth in the form of Articles Supplementary set forth as Exhibit A hereto, as the same may be amended from time to time.

1.50            “Preferred Stock” means Series A Preferred Stock, par value $0.01 per share, of the Company.

1.53            “Redemption Date” has the meaning set forth in Section 23.2.

1.54            “Redemption Price” has the meaning set forth in Section 23.1.

1.55            “REIT” shall mean a real estate investment trust under the Internal Revenue Code of 1986, as amended.

1.56            “Rights” has the meaning set forth in the recitals to this Agreement. “Rights” when used in connection with Rights outstanding after the Close of Business on the Distribution Date shall refer to the Class A Rights.

1.57            “Right Certificate” means a certificate representing a Right in substantially the form of Exhibit B hereto.

1.58            “Rights Agent” has the meaning set forth in the introductory paragraph of this Agreement.

1.59            “Section 11.1.2 Event” has the meaning set forth in Section 11.1.2 hereof.

1.60            “Section 13 Event” means any event described in Section 13.1 hereof.

1.61            “Section 23.1 Event” means the event described in Section 23.3 hereof.

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

1.63            “Share Consideration” means the “REIT Shares Amount” as defined in the Operating Partnership Agreement.

1.64            “Spread” has the meaning set forth in Section 11.1.3.

1.65            “Stock Acquisition Date” means the earlier of (i) the date of the public announcement (which, for purposes of this definition, shall include, without limitation, a report filed pursuant to Section 13(d) of the Exchange Act) by the Company or a Person that results in the Person being an Acquiring Person hereunder or (ii) the date that a majority of the Board of Directors shall become aware of the existence of an Acquiring Person.

1.66            “Subsidiary” of any Person means any corporation or other entity of which securities or other ownership interest having ordinary voting power sufficient to elect a majority of the board of directors or other person or body performing similar functions are beneficially owned, directly or indirectly, by the Person and any corporation or other entity that is otherwise controlled by the Person.

1.67            “Summary of Rights” means the Summary of Rights to Purchase Preferred Shares in substantially the form of Exhibit C hereto.

1.68            “Trading Day” means a day on which the principal national securities exchange on which a security is listed or admitted to trading is open for the transaction of business or, if a security is not listed or admitted to trading on any national securities exchange, a Business Day.

1.69            “Triggering Event” shall mean any Section 11.1.2 Event or any Section 13 Event.

1.70            “Unitholders” has the meaning set forth in Section 3.4 hereof.

1.71            “Vested LTIP Units” has the meaning set forth in the Operating Partnership Agreement.

2.            Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as agent for the Company in accordance with the express terms and conditions hereof (and no implied terms or conditions), and the Rights Agent hereby accepts the Company’s appointment. The Company may from time to time appoint any co-Rights Agents as it may deem necessary or desirable, upon ten (10) calendar days’ prior written notice to the Rights Agent. In the event the Company appoints one or more co-Rights Agents, the respective duties of the Rights Agent and any co-Rights Agents under the provisions of this Agreement shall be as the Company shall reasonably determine and the Company shall notify in writing, the Rights Agent and any co-Rights Agent of their respective duties. The Rights Agent shall have no duty to supervise, and shall in no event be liable for, the acts or omissions of any co-Rights Agent.

3.            Issue of Right Certificates.

3.1            Until the earlier of (i) the Close of Business on the tenth (10^th) Business Day after the Stock Acquisition Date or, in the event the Board of Directors determines on or before the tenth (10^th) Business Day to effect an exchange in accordance with Section 24 and determines in accordance with Section 24.6 that a later date is advisable, then the later date determined by the Board or (ii) the Close of Business on the tenth (10^th) Business Day (or a later date as may be determined by action of the Board of Directors prior to any Person becoming an Acquiring Person) after the date of the commencement (determined in accordance with Rule 14d-2(a) under the Exchange Act) by any Person (other than the Company, any Subsidiary of the Company, an Exempt Person, any employee benefit plan of the Company, any Subsidiary of the Company or of the Advisor, or any entity or trustee holding (or acting in a fiduciary capacity in respect of) shares of Common Stock for or pursuant to the terms of any such benefit plan or for the purpose of funding any such plan or funding other employee benefits for employees of the Company, any Subsidiary of the Company or the Advisor) of, or of the first public announcement of the intention of any Person (other than any of the Persons referred to in the preceding parenthetical) to commence, a tender or exchange offer (which intention to commence remains in effect for five (5) Business Days after announcement), the consummation of which would result in any Person becoming an Acquiring Person (including any date which is after the date of this Agreement and prior to the issuance of the Rights; the earliest date being herein referred to as the “Distribution Date,” provided, however, that the Distribution Date shall in no event be prior to the Record Date; provided, further, that the Board of Directors may determine to delay the occurrence of the Distribution Date until the Board of Directors determines based on the advice of counsel that the exercise or exercisability of the Right would not result in the Company failing to qualify as a REIT), (x) the Class A Rights will be represented (subject to the provisions of Section 3.2) by the certificates for shares of Class A Common Stock (or by Book Entry shares of Class A Common Stock) registered in the names of the holders thereof (which certificates shall also be deemed to be Right Certificates) and not by separate Right Certificates, (y) the Class B Rights will be represented (subject to the provisions of Section 3.2) by the certificates for shares of Class B Common Stock (or by Book Entry shares of Class B Common Stock) registered in the names of the holders thereof (which certificates shall also be deemed to be Right Certificates) and not by separate Right Certificates, and (z) the Rights Certificates and the right to receive Right Certificates will be transferable only in connection with the transfer of the underlying shares of Common Stock. Any conversion of a share of Class B Common Stock into a share of Class A Common Stock pursuant to the Charter after the Record Date and before the Distribution Date shall cause the attached Class B Right to be cancelled and retired so that the holder shall not be entitled to exercise any Class B Rights associated with the Class B Common Stock and a Class A Right will be issued for the newly issued share of Class A Common Stock. On the Distribution Date, any and all outstanding shares of Class B Common Stock shall, automatically and without any action on the part of the holder thereof, convert into an equal number of shares of Class A Common Stock in accordance with the Charter and each Class B Right attached to each share of Class B Common Stock shall be cancelled and retired so that the holder shall not be entitled to exercise any Class B Rights associated with the Class B Common Stock and a Class A Right will be issued for each newly issued Class A Common Stock. As soon as practicable after the Distribution Date, the Company will prepare and execute, and, at the request of the Company, the Rights Agent will countersign, and the Company will send or cause to be sent (and the Rights Agent will, if so requested and provided with all necessary information and documents, will, at the expense of the Company, send) by first-class, insured, postage-prepaid mail, to each record holder of Class A Common Stock as of the Close of Business on the Distribution Date (other than any Acquiring Person or any Associate or Affiliate of an Acquiring Person), after taking into effect the conversion of Class B Common Stock into Class A Common Stock, at the address of each record holder shown on the records of the Company, a Right Certificate, in substantially the form of Exhibit B hereto, representing one Class A Right for each share of Class A Common Stock so held, subject to adjustment as provided herein; provided, however, that notwithstanding anything to the contrary herein, the Company may choose to use book entry in lieu of physical certificates, in which case “Rights Certificates” shall be deemed to mean the uncertificated book entry representing the related Rights. In the event that an adjustment in the number of Class A Rights per share of Class A Common Stock has been made pursuant to Section 11.9 hereof, at the time of distribution of the Rights Certificates, the Company shall make the necessary and appropriate rounding adjustments (in accordance with Section 14.1 hereof) so that Rights Certificates representing only whole numbers of Class A Rights are distributed and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be represented solely by the Right Certificates. The Company shall promptly notify the Rights Agent in writing upon the occurrence of the Distribution Date. Until the written notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date has not occurred.

3.2            After the Record Date, or as soon as practicable thereafter, and before the Expiration Date, the Company will (directly or, at the expense of the Company, through the Rights Agent or its transfer agent if the Rights Agent or transfer agent is so directed by the Company and provided with all necessary information and documents) make available a copy of the Summary of Rights to any Rights holder who so requests. With respect to certificates representing shares of Common Stock (or Book Entry shares of Common Stock) outstanding as of the Record Date, until the Distribution Date, the Rights will be represented by these certificates (or such Book Entry shares of Common Stock) registered in the names of the holders thereof together with the Summary of Rights. Until the Distribution Date (or if earlier, the Expiration Date), the surrender for transfer of any certificate representing shares of Common Stock (or the transfer of any Book Entry Common Stock) outstanding on the Record Date, with or without a copy of the Summary of Rights, shall also constitute the transfer of the Rights associated with the shares of Common Stock represented thereby. With respect to Book Entry shares of Common Stock outstanding as of the Record Date, until the Distribution Date, the Rights shall be represented by the balances indicated in the Book Entry account system of the transfer agent for Common Stock.

3.3            If certificates for shares of Common Stock are issued (including, without limitation, shares of Common Stock acquired by the Company as noted in this Section 3.3) after the Record Date but prior to the earliest of (i) the Close of Business on the Distribution Date, (ii) the Redemption Date or (iii) the Close of Business on the Final Expiration Date, these certificates shall have impressed on, printed on, written on or otherwise affixed to them, in addition to any legend required by the MGCL, Charter or Bylaws, a legend in substantially the following form:

This certificate also represents and entitles the holder hereof to certain Rights as set forth in an Amended and Restated Rights Agreement between New York City REIT, Inc. and Computershare Trust Company, N.A., as Rights Agent (or any successor Rights Agent), dated as of August 17, 2020, as it may from time to time be amended or supplemented pursuant to its terms (the “Rights Agreement”), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of New York City REIT, Inc. Under certain circumstances, as set forth in the Rights Agreement, the Rights will be represented by separate certificates and will no longer be represented by this certificate. New York City REIT, Inc. will mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a written request therefor. Under certain circumstances, as set forth in the Rights Agreement, Rights that are or were acquired or Beneficially Owned (as defined in the Rights Agreement) by any Person (as defined in the Rights Agreement) who becomes an Acquiring Person (as defined in the Rights Agreement) or an Associate or Affiliate (each as defined in the Rights Agreement) thereof, among others, become null and void and will no longer be transferable.

With respect to any Book Entry shares of Common Stock, the foregoing legend shall be included in the Ownership Statement in respect of the Common Stock or in a notice to the record holder of these shares in accordance with applicable law. With respect to certificates containing the foregoing legend, or any Ownership Statement or notice containing the foregoing legend delivered to holders of Book Entry shares of Common Stock, until the earliest of the Distribution Date, the Redemption Date or the Final Expiration Date, the Rights associated with the Common Stock represented by the certificates or Book Entry shares of Common Stock shall be represented by the certificates or Book Entry shares of Common Stock (including any Ownership Statement) alone, and the surrender for transfer of any such certificate or the transfer of any Book Entry shares of Common Stock shall also constitute the transfer of the Rights associated with the Common Stock represented thereby. If the Company purchases or acquires any shares of Common Stock after the Record Date but prior to the Close of Business on the Distribution Date, any Rights associated with these shares of Common Stock shall be deemed canceled and retired so that the Company shall not be entitled to exercise any Rights associated with the shares of Common Stock which are no longer outstanding.

Notwithstanding this Section 3.3, neither the omission of a legend nor the failure to deliver the notice of legend required hereby shall affect the enforceability of any part of this Agreement or the rights of any holder of the Rights.

3.4            Prior to the Distribution Date, holders (other than the Company) (“Unitholders”) of partnership units of the Operating Partnership designated as “Class A Units” (“Partnership Units”) shall not be deemed as holding any Rights solely by reason of the Unitholders holding any Partnership Unit. On the Distribution Date, proper provision shall be made by the Company in order to provide each Unitholder with the number of Class A Rights, represented by Right Certificates, as would be issued to the applicable Unitholder as if (i) the Unitholder had exercised its Partnership Unit Redemption Rights with respect to all Partnership Units held by the Unitholder immediately prior to the Distribution Date and (ii) the Company had elected to satisfy the Partnership Unit Redemption Rights by paying the Unitholder the Share Consideration (rather than the Cash Consideration) (applying a Conversion Factor unaffected by the issuance, exercise or exchange of any Rights) immediately prior to the Distribution Date pursuant to the terms and conditions of the Partnership Agreement. Each Unitholder shall thereafter have all of the rights, privileges, benefits and obligations with respect to the Class A Rights as are provided for herein with respect to holders of Class A Common Stock.

4.1            The Right Certificates (and the forms of election to purchase Preferred Shares and of assignment to be printed on the reverse thereof) shall be substantially the same as set forth on Exhibit B hereto and may have any marks of identification or designation and any legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement (but which do not affect the rights, duties, liabilities or responsibilities of the Rights Agent), or as may be required to comply with any applicable law or with any applicable rule or regulation made pursuant thereto or with any applicable rule or regulation of any stock exchange or quotation system on which the Rights may from time to time be listed or the Financial Industry Regulatory Authority, or to conform to usage. Subject to the other provisions of this Agreement, the Right Certificates, whenever distributed, shall be dated as of the Record Date and shall entitle the holders thereof to purchase the number of one one-thousandths of a Preferred Share as shall be set forth therein at the Purchase Price, but the amount and type of securities issuable upon exercise and payment of the Purchase Price shall be subject to adjustment as provided herein.

4.2            Any Rights Certificate issued pursuant to Section 3.1 or Section 22 hereof that represents Rights which are null and void pursuant to Section 7.6 hereof and any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer, exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence, shall contain (to the extent feasible) the following legend:

The Rights represented by this Rights Certificate are or were beneficially owned by a Person who was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement). Accordingly, this Rights Certificate and the Rights represented hereby are null and void in the circumstances specified in Section 7.6 of the Rights Agreement.

The provisions of Section 7.6 hereof shall be operative whether or not the foregoing legend is contained on any Rights Certificate.

5.            Countersignature and Registration. The Right Certificates shall be executed on behalf of the Company by the chief executive officer or the chief financial officer of the Company or by any person authorized thereby, either manually or by facsimile signature; and shall be attested by the secretary or any assistant secretary of the Company or the treasurer or any assistant treasurer of the Company, either manually or by facsimile signature. The Right Certificates shall be countersigned by the Rights Agent and shall not be valid for any purpose unless so countersigned, either manually or by facsimile. If any officer of the Company who shall have executed or attested any of the Right Certificates shall cease to be an officer of the Company before countersignature by the Rights Agent and issuance and delivery by the Company, the Right Certificates nevertheless may be countersigned by the Rights Agent and issued and delivered by the Company with the same force and effect as though the Person who signed the Right Certificates had not ceased to be an officer of the Company. Any Right Certificate may be executed or attested on behalf of the Company by any Person who, at the actual date of the execution or attestation of the Right Certificate, is a proper officer of the Company to execute or attest the Right Certificate, even if at the date of the execution of this Agreement the Person was not a proper officer.

Following the Distribution Date, and receipt by the Rights Agent of written notice to that effect and other relevant and necessary information referred to in Section 3.1, the Rights Agent will keep or cause to be kept, at its principal office, books for registration of the transfer of the Right Certificates issued hereunder. These books shall show the names and addresses of the respective holders of the Right Certificates, the number of Rights represented on its face by each of the Right Certificates, and the date of issuance of each of the Right Certificates.

6.1            Subject to the provisions of Section 14, at any time after the Close of Business on the Distribution Date, and prior to the earlier of the Redemption Date or the Close of Business on the Final Expiration Date, any Right Certificate (other than a Right Certificate representing Rights that have become null and void pursuant to Section 7.6 or that have been exchanged pursuant to Section 24) may be transferred, split up, combined or exchanged for another Right Certificate, entitling the registered holder to purchase a like number of Preferred Shares (or, following a Triggering Event, shares of Class A Common Stock, other securities, cash or other assets, as the case may be) as the Right Certificate surrendered theretofore entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Right Certificate shall make a request in writing delivered to the Rights Agent, and shall surrender the Right Certificate to be transferred, split up, combined or exchanged at the office of the Rights Agent designated for such purpose accompanied by signature guarantee (a “Signature Guarantee”) from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association, and any other reasonable evidence of authority that may be reasonably required by the Rights Agent. Thereupon, the Rights Agent shall countersign and deliver to the Person entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested. The Company may require payment of a sum sufficient for any tax or charge that may be imposed in connection with any transfer, split-up, combination or exchange of Right Certificates. If and to the extent the Company does require payment of any taxes or charges, the Company shall give the Rights Agent prompt written notice thereof and the Rights Agent shall not have any duty to deliver any Rights Certificate unless and until the Rights Agent is satisfied that the required payments have been made, and the Rights Agent shall forward any sum collected by it to the Company or to a Person or Persons specified by the Company in a written notice. The Rights Agent shall have no duty or obligation to take any action with respect to a Rights holder under any Section of this Agreement which requires the payment by the Rights holder of applicable taxes and charges unless and until the Rights Agent is reasonably satisfied that the required taxes and charges have been paid.

6.2            Subject to the provisions of Section 14, at any time after the Close of Business on the Distribution Date, and prior to the earlier of the Redemption Date or the Close of Business on the Final Expiration Date, upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them, and, at the Company’s or Rights Agent’s request, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto, and, in case of mutilation, upon surrender to the Rights Agent and cancellation of the Right Certificate, the Company will make and deliver a new Right Certificate of like tenor to the Rights Agent for delivery to the registered holder in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.

6.3            Notwithstanding any other provisions hereof, the Company and the Rights Agent may amend this Rights Agreement to provide for uncertificated Rights in addition to or in place of Rights represented by Rights Certificates, to the extent permitted by applicable law.

7.1            Except as otherwise provided herein, the Rights shall become exercisable on the Distribution Date, and thereafter the registered holder of any Right Certificate (other than a holder whose Rights have become null and void pursuant to Section 7.6 or have been exchanged pursuant to Section 24) may, subject to Section 11.1.2 and except as otherwise provided herein, exercise the Rights represented thereby, in whole or in part, at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Purchase Price for each one one-thousandth of a Preferred Share represented by a Right that is exercised and an amount equal to any applicable tax or charge required to be paid pursuant to Section 9.3, prior to the time (the “Expiration Date”) that is the earliest of (i) the Close of Business on the Final Expiration Date, (ii) the time at which the Rights are redeemed pursuant to Section 23, (iii) the time at which the Rights are exchanged pursuant to Section 24 or (iv) the Closing of any merger or other acquisition transaction involving the Company pursuant to an agreement described in Section 13.3 at which time the Rights are terminated.

7.2            The purchase price to be paid upon the exercise of each Right to purchase one one-thousandth of a Preferred Share represented by a Right shall initially be $55.00 (the “Purchase Price”) and shall be payable in lawful money of the United States of America in accordance with Section 7.3. Each Right shall initially entitle the holder to acquire one one-thousandth of a Preferred Share upon exercise of the Right. The Purchase Price and the number of Preferred Shares or other securities for which a Right is exercisable shall be subject to adjustment from time to time as provided in Sections 11 and 13.

7.3            Except as otherwise provided herein, upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase properly completed and duly executed, accompanied by a Signature Guarantee and payment of the Purchase Price for the number of Rights exercised and an amount equal to any applicable tax or charge required to be paid by the holder of the applicable Right Certificate in accordance with Section 9.3 by cash, certified check, cashier’s check or money order payable to the order of the Company, the Rights Agent shall thereupon promptly (i)(A) requisition from any transfer agent of the Preferred Shares (or make available, if the Rights Agent is the transfer agent for the shares) certificates for the number of Preferred Shares to be purchased (or, in the case of Book Entry Shares or other uncertificated securities, requisition from a transfer agent a notice setting forth the number of shares or other securities to be purchased for which registration will be made on the stock transfer books of the Company), and the Company hereby irrevocably authorizes its transfer agent to comply with all such requests, or (B) requisition from any depositary agent for the Preferred Shares depositary receipts representing the number of Preferred Shares to be purchased (in which case certificates for the Preferred Shares represented by the depositary receipts shall be deposited by the transfer agent with the depositary agent), and the Company hereby directs the depositary agent to comply with such request; (ii) when necessary to comply with this Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Preferred Shares in accordance with Section 14; (iii) after receipt of the certificates or depositary receipts, cause the same to be delivered to the registered holder of the applicable Right Certificate or, upon the order of the registered holder, in the name or names as may be designated by the holder; and (iv) when necessary to comply with this Agreement, after receipt, deliver cash to the registered holder of the applicable Right Certificate or, upon the order of the registered holder, the Person or Persons as may be designated by the holder. The Company reserves the right to require that, upon any exercise of Rights, a number of Rights be exercised so that only whole Preferred Shares would be issued.

7.4            Except as otherwise provided herein, if the registered holder of any Right Certificate shall exercise less than all the Rights represented thereby, a new Right Certificate representing Rights equivalent to the exercisable Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of the Right Certificate or to the holder’s duly authorized assigns, subject to the provisions of Section 14.

7.5            Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported transfer or exercise of Rights as set forth in Section 6 or this Section 7 unless the registered holder shall have (i) properly completed and signed the certificate contained in the form of assignment or form of election to purchase set forth on the reverse side of the Right Certificate surrendered for transfer or exercise, (ii) tendered the Purchase Price (and an amount equal to any applicable transfer tax required to be paid by the holder of such Right Certificate in accordance with Section 9) to the Company in the manner set forth in Section 7.3 and (iii) provided any additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company and the Rights Agent shall reasonably request.

7.6            Notwithstanding anything in this Agreement to the contrary, from and after a Person becomes an Acquiring Person, any Rights that are or were acquired or Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any Associate or Affiliate thereof) who becomes a transferee after the Acquiring Person became such, or (iii) a transferee of an Acquiring Person (or of any Associate or Affiliate thereof) who becomes a transferee prior to or concurrently with the Acquiring Person’s becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights, (B) a transfer which the Continuing Directors have determined, within one hundred and eighty (180) days for limiting the power of future directors to vote in this regard following a Section 23.1 Event, by a majority of the Continuing Directors, or if such determination is not made until after such period expires, by a majority of the Board, is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7.6 or (C) a transfer pursuant to Section 5.7 of the Charter to a trust, shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 7.6 and Section 4.2 hereof are complied with, but the Company and the Rights Agent shall have no liability to any holder of Rights Certificates or other Person as a result of the Company’s failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. For the avoidance of any doubt, on and after the Distribution Date, any Right, the exercise or exchange of which would cause a Person to become an Acquiring Person, shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise.

8.           Cancellation and Destruction of Right Certificates. All Right Certificates surrendered for the purpose of exercise, transfer, split-up, combination or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Rights Agent for cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right Certificate representing Rights purchased or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all canceled Right Certificates to the Company, or shall, at the written request of the Company, destroy the canceled Right Certificates, and in such case shall deliver a certificate of destruction thereof to the Company.

9.1            The Company covenants and agrees that at all times prior to the occurrence of a Section 11.1.2 Event, it will cause to be kept available out of its authorized and unissued Preferred Shares, or any authorized and unissued Preferred Shares, the number of Preferred Shares that will be sufficient to permit the exercise in full of all outstanding Rights and, after the occurrence of a Section 11.1.2 Event, shall, to the extent reasonably practicable, keep available a sufficient number of shares of Class A Common Stock (or other securities) that may be required to permit the exercise in full of the Rights pursuant to this Agreement.

9.2            The Company shall take all action as may be reasonably necessary to ensure that all Preferred Shares (or other securities of the Company) delivered upon exercise of Rights shall, at the time of delivery of the certificates (or by Book Entry) for the Preferred Shares (or other securities of the Company), subject to payment of the Purchase Price, be duly and validly authorized and issued and fully paid and non-assessable shares.

9.3          The Company shall pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the issuance or delivery of the Right Certificates or the issuance and delivery of any certificates or depository receipts or entries in the Book Entry account system of the transfer agent for any Preferred Shares (or other securities of the Company) upon the exercise of Rights. The Company shall not, however, be required to pay any transfer tax or charges which may be payable in respect of any transfer or delivery of Right Certificates to a Person other than, or the issuance or delivery of certificates or depositary receipts for the Preferred Shares (or other securities of the Company) in a name other than that of, the registered holder of the Right Certificate representing Rights surrendered for exercise, and shall not be required to issue or deliver any certificates or depositary receipts for Preferred Shares (or other securities of the Company) upon the exercise of any Rights until any required tax or charge shall have been paid (any required tax or charge being payable by the holder of the Right Certificate at the time of surrender) or until it has been established to the Company’s or Rights Agent’s reasonable satisfaction that no transfer tax or charge is due.

9.4          So long as the Preferred Shares (and, after the occurrence of a Section 11.1.2 Event, shares of Class A Common Stock or any other securities) issuable upon the exercise of the Rights are listed on any national securities exchange, the Company shall use its best efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed on an exchange upon official notice of issuance upon exercise of the Rights.

9.5          The Company shall use all reasonable efforts to: (i) file, as soon as practicable following the earliest date after the first occurrence of a Section 11.1.2 Event in which the consideration to be delivered by the Company upon exercise of the Rights has been determined in accordance with this Agreement, a registration statement under the Securities Act with respect to the Rights and the securities issuable upon exercise of the Rights on an appropriate form, (ii) cause the registration statement to become effective as soon as practicable after filing the registration statement, (iii) cause the registration statement to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until the earlier of (A) the date as of which the Rights are no longer exercisable for securities or (B) the Expiration Date.  The Company will also take any action as may be appropriate under, or to ensure compliance with, the securities or “blue sky” laws of the various jurisdictions in connection with the exercise of the Rights.  The Company may, acting by resolution of the Board of Directors, temporarily suspend, for a period of time not to exceed ninety (90) days after the date set forth in clause (i) of the first sentence of this Section 9.5, the exercise of the Rights in order to prepare and file the registration statement stating that exercise of the Rights has been temporarily suspended, as well as a public announcement at the time the suspension is no longer in effect.  In addition, if the Company shall determine that a registration statement is required in other circumstances following the Distribution Date, the Company may similarly temporarily suspend exercise of the Rights until such time as a registration statement has been declared effective.  Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be exercised in any jurisdiction if the requisite qualification in the applicable jurisdiction shall not have been obtained, the exercise thereof shall not otherwise be permitted under applicable law or a registration statement shall not have been declared effective.

10.         Preferred Shares Record Date. Each Person in whose name any certificate or entry in the Book Entry account system of the transfer agent for the Preferred Shares is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of the Preferred Shares (or other securities of the Company) represented thereby on, and the certificate (or Book Entry) shall be dated, the date upon which the Right Certificate representing the Rights was duly surrendered and payment of the Purchase Price (and any applicable taxes and charges) was made; provided, however, that, if the date of surrender and payment is a date upon which the Preferred Shares transfer books of the Company are closed, the Person shall be deemed to have become the record holder of the Preferred Shares on, and the certificate shall be dated, the next succeeding Business Day on which the Preferred Shares transfer books of the Company are open. Prior to the exercise of the Rights represented thereby, the holder of a Right Certificate shall not be entitled to any rights of a holder of Preferred Shares for which the Rights shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions, or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein.

11.1        General. The Purchase Price, the number of Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.

11.1.1            In the event the Company shall at any time after the date of this Agreement (i) declare a dividend on the Preferred Shares payable in Preferred Shares, (ii) subdivide the outstanding Preferred Shares into a larger number of Preferred Shares, (iii) combine the outstanding Preferred Shares into a smaller number of Preferred Shares or (iv) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11.1 and Section 7.6, the Purchase Price in effect, and the number and kind of shares of capital stock issuable upon the exercise of each Right, after the record date for the dividend or the effective date of the subdivision, combination or reclassification, as applicable, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if the Right had been exercised immediately prior to such date and at a time when the Preferred Shares transfer books of the Company were open, the holder would have owned upon exercise of the Right and been entitled to receive by virtue of the dividend, subdivision, combination or reclassification, as applicable; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section 11.1.1 and Section 11.1.2 hereof, the adjustment provided for in this Section 11.1.1 shall be in addition to, and shall be made prior to any adjustment required pursuant to Section 11.1.2 hereof.

11.1.2            Subject to Section 7.6 and Section 24, in the event any Person becomes an Acquiring Person (other than by means of a Permitted Offer or a Section 13 Event) and the Board of Directors authorizes the Company to issue Rights Certificates under Section 3.1 (the “Section 11.1.2 Event”), then, each holder of a Right (except as provided below and in Section 7.6 hereof) shall thereafter have a right to receive (subject to the last sentence of Section 23.1 hereof), upon exercise thereof at a price equal to the then current Purchase Price, in accordance with the terms of this Agreement and in lieu of a number of one one-thousandths of a Preferred Share, a number of shares of Class A Common Stock equal to the result obtained by (x) multiplying the then current Purchase Price by the number of one one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11.1.2 Event, and (y) dividing that product (which, following the first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the then Current Per Share Market Price of the shares of Class A Common Stock (determined pursuant to Section 11.4) on the date of the first occurrence (the number of shares of stock being referred to as the “Adjustment Shares”); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11.1.2.

11.1.3            In the event that the number of shares of Class A Common Stock authorized by the Charter (as the same may be amended and restated from time to time) but not outstanding or reserved for issuance for purposes other than exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing Section 11.1.2 and the Board of Directors determines not to amend the Charter to authorize additional shares of Class A Common Stock, the Company, acting by resolution of the Board of Directors, shall, to the extent permitted by applicable law and any material agreements then in effect to which the Company is a party, (A) determine the value of the Adjustment Shares issuable upon the exercise of a Right in accordance with the foregoing Section 11.1.2 (the “Current Value”) and the amount by which it exceeds the Purchase Price attributable to each Right (the excess being referred to as the “Spread”), and (B) with respect to each Right (other than Rights that have become void pursuant to Section 7.6), make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in Purchase Price, (3) shares of Class A Common Stock, (4) equity securities of the Company other than shares of Class A Common Stock (including, without limitation, Preferred Shares or units of Preferred Shares which the Board of Directors has deemed to have essentially the same value or economic rights as shares of Class A Common Stock (“Common Stock Equivalents”), (5) debt securities of the Company, (6) other assets or (7) any combination of any or all of the foregoing which, when added to the value of the shares of Class A Common Stock issued upon exercise of the Right, have an aggregate value equal to the Current Value (less the amount of any reduction in the Purchase Price), where the aggregate value has been determined by the Board of Directors; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11.1.2 Event and (y) the date on which the Company’s right of redemption pursuant to Section 23.1 hereof, as the date may be amended by Section 27 hereof, expires, then the Company shall be obligated to deliver, to the extent permitted by applicable law and any material agreements then in effect to which the Company is a party, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Class A Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread.

11.2        If the Board of Directors fixes a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them (for a period expiring within forty-five (45) calendar days after the record date) to subscribe for or purchase Preferred Shares, or shares having the same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred Shares”), or securities convertible into Preferred Shares or Equivalent Preferred Shares at a price per Preferred Share or Equivalent Preferred Share (or having a conversion price per share, if a security convertible into Preferred Shares or Equivalent Preferred Shares) less than the then Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4.2) on the record date, the Purchase Price to be in effect after the record date shall be adjusted by multiplying the Purchase Price in effect immediately prior to the record date by a fraction, (i) the numerator of which shall be (A) the number of Preferred Shares outstanding on the record date plus (B) the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares or Equivalent Preferred Shares to be offered (or the aggregate initial conversion price of the convertible securities to be offered) would purchase at the then Current Per Share Market Price and (ii) the denominator of which shall be (A) the number of Preferred Shares outstanding on the record date plus (B) the number of additional Preferred Shares or Equivalent Preferred Shares to be offered for subscription or purchase (or into which the convertible securities to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent. Preferred Shares owned by or held for the account of the Company or any Subsidiary of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever a record date is fixed. If such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price that would then be in effect if the record date had not been fixed.

11.3        If the Board of Directors fixes a record date for the making of a distribution to all holders of the Preferred Shares (including any distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a regular quarterly cash dividend or a dividend payable in Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11.2), the Purchase Price to be in effect after the record date shall be determined by multiplying the Purchase Price in effect immediately prior to the record date by a fraction, (i) the numerator of which shall be the then Current Per Share Market Price of the Preferred Shares (as determined pursuant to Section 11.4.2) on the record date, less the fair market value (as determined by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the assets or evidences of indebtedness to be distributed or of such subscription rights or warrants applicable to one Preferred Share and (ii) the denominator of which shall be the then Current Per Share Market Price of the Preferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. These adjustments shall be made successively whenever a record date is fixed. If a distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price that would then be in effect if the record date had not been fixed.

11.4        Current Per Share Market Price.

11.4.1            Except as otherwise provided herein, for the purpose of any computation hereunder, the “Current Per Share Market Price” of any security (a “Security” for the purpose of this Section 11.4.1) on any date shall be deemed to be the average of the daily closing prices per share of the Security for the thirty (30) consecutive Trading Days immediately prior to but not including such date; provided, however, that if the Current Per Share Market Price of the Security is determined during a period (i) following the announcement by the issuer of the Security of (A) a dividend or distribution on the Security payable in shares of the Security or other securities convertible into shares of the Security, or (B) any subdivision, combination or reclassification of the Security of other securities convertible into the Security, and (ii) prior to the expiration of thirty (30) Trading Days after (but not including) the ex-dividend date for a dividend or distribution, or the record date for a subdivision, combination or reclassification, then, and in each case, the Current Per Share Market Price shall be appropriately adjusted to reflect the current market price per share equivalent of the Security. The closing price for each day shall be the last sale price, regular way, or, in case no sale takes place on the applicable day, the average of the closing bid and asked prices, regular way, in either case as reported by the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the NYSE or NASDAQ or, if the Security is not listed or admitted to trading on the NYSE or NASDAQ, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high and low asked prices in the over-the-counter market as reported by any system then in use, or, if not so quoted, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors. If no market maker is making a market in the Security, the fair value of the Security on the applicable date as determined by the Board of Directors shall be used.

11.4.2            For the purpose of any computation hereunder, the “Current Per Share Market Price” of the Preferred Shares, if the Preferred Shares are publicly traded, shall be determined in accordance with the method set forth in Section 11.4.1. If the Preferred Shares are not publicly traded, the “Current Per Share Market Price” of the Preferred Shares shall be conclusively deemed to be the Current Per Share Market Price of the shares of Class A Common Stock as determined pursuant to Section 11.4.1 (appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof) multiplied by one thousand. If neither the shares of Class A Common Stock nor the Preferred Shares are publicly held or so listed or traded, “Current Per Share Market Price” means the fair value per share as determined by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent.

11.5        Notwithstanding anything herein to the contrary, no adjustment in the Purchase Price shall be required unless an adjustment would require an increase or decrease of at least 1% in the Purchase Price; provided, however, that any adjustments which by reason of this Section 11.5 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest one ten-millionth of a Preferred Share or one ten-thousandth of any other share or security as the case may be. Notwithstanding the first sentence of this Section 11.5, any adjustment required by this Section 11 shall be made no later than the earlier of (i) three years from the date of the transaction which requires an adjustment and (ii) the date of the expiration of the right to exercise any Rights.

11.6        If, as a result of an adjustment made pursuant to Section 11.1 or Section 13.1, the holder of any Right thereafter exercised shall become entitled to receive any shares of capital stock of the Company other than Preferred Shares, the Purchase Price and number of any other shares so receivable upon exercise of any Right shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Shares contained in Sections 11.1, 11.2, 11.3, 11.5, 11.8, 11.9, 11.10, 11.11, 11.12, 11.13 and the provisions of Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares shall apply on like terms to any other shares; provided, however, that the Company shall not be liable for its inability to keep available for issuance upon exercise of the Rights pursuant to Section 11.1.2 a number of shares of Class A Common Stock greater than the number then authorized by the Charter but not outstanding or reserved for any other purpose.

11.7        All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of one one-thousandths of a Preferred Share purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.

11.8        Unless the Company exercises its election as provided in Section 11.9, upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11.2 and 11.3, each Right outstanding immediately prior to the making of any adjustment shall thereafter constitute the right to purchase, at the adjusted Purchase Price, that number of one one-thousandths of a Preferred Share (calculated to the nearest one ten-millionth of a Preferred Share) obtained by (i) multiplying the number of one one-thousandths of a Preferred Share into which the Right is exercisable immediately prior to this adjustment by the Purchase Price in effect immediately prior to adjusting the Purchase Price and (ii) dividing the product by the Purchase Price in effect immediately after adjusting the Purchase Price.

11.9        The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights in substitution for any adjustment in the number of one one-thousandths of a Preferred Share issuable upon the exercise of a Right. Each of the Rights outstanding after adjusting the number of Rights shall be exercisable for the number of one one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the adjustment. Each Right held of record prior to adjusting the number of Rights shall become that number of Rights (calculated to the nearest one hundred-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement of its election to adjust the number of Rights (with written notice thereof to the Rights Agent), indicating the record date for the adjustment and, if known at the time, the amount of the adjustment to be made. The record date may be the date on which the Purchase Price is adjusted or any day thereafter but, if the Right Certificates have been distributed, shall be at least ten (10) days after the date of the public announcement. If Right Certificates have been distributed, upon each adjustment of the number of Rights pursuant to this Section 11.9, the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights on the applicable record date Right Certificates representing, subject to Section 14, the additional Rights to which these holders shall be entitled as a result of the adjustment or, at the option of the Company, shall cause to be distributed to the holders of record in substitution and replacement for the Right Certificates held by these holders prior to the date of adjustment, and upon surrender thereof if required by the Company, new Right Certificates representing all the Rights to which these holders shall be entitled after the adjustment. Right Certificates to be so distributed shall be issued, executed and delivered by the Company, and countersigned and delivered by the Rights Agent, in the manner provided for herein and shall be registered in the names of the holders of record of Rights on the record date specified in the public announcement.

11.10      Irrespective of any adjustment or change in the Purchase Price or the number of one one-thousandths of a Preferred Share issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price and the number of one one-thousandths of a Preferred Share which were expressed in the initial Right Certificates issued hereunder.

11.11      Before taking any action that would cause an adjustment reducing the Purchase Price below the then par value of the fraction of Preferred Shares or other shares of capital stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and non-assessable Preferred Shares or any other shares at the adjusted Purchase Price.

11.12      If this Section 11 requires that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer (with notice thereof to the Rights Agent), until the occurrence of the specified event, issuing to the holder of any Right exercised after the record date of the number of one one-thousandths of a Preferred Share and other capital stock or securities of the Company, if any, issuable upon the exercise over and above the number of one one-thousandths of a Preferred Share and other capital stock or securities of the Company, if any, issuable upon the exercise on the basis of the Purchase Price in effect prior to the adjustment; provided, however, that the Company shall deliver to the applicable holder a due bill or other appropriate instrument evidencing the holder’s right to receive additional securities upon the occurrence of the event requiring an adjustment.

11.13      Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to make any adjustments in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that the Board of Directors, in its sole discretion, shall determine to be advisable in order that any (i) combination, consolidation or subdivision of the Preferred Shares, (ii) issuance wholly for cash of any Preferred Shares at less than the Current Per Share Market Price, (iii) issuance wholly for cash of Preferred Shares or securities which by their terms are convertible into or exchangeable for Preferred Shares, (iv) dividends on Preferred Shares payable in Preferred Shares, or (v) issuance of any rights, options or warrants referred to in Section 11.2 made by the Company after the date of this Agreement to holders of its Preferred Shares shall not be taxable to these stockholders.

11.14      If, at any time after the date of this Agreement and prior to the Distribution Date, the Company (i) declares or pays any dividend on the shares of Common Stock payable in shares of Common Stock or (ii) effects a subdivision, combination or consolidation of the shares of Common Stock (by reclassification or otherwise other than by payment of dividends in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then (i) the number of one one-thousandths of a Preferred Share purchasable after the applicable event upon exercise of each Right shall be determined by multiplying the number of one one-thousandths of a Preferred Share so purchasable immediately prior to the applicable event by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately before the applicable event and the denominator of which is the number of shares of Common Stock outstanding immediately after the applicable event, and (ii) each share of Common Stock outstanding immediately after the applicable event shall have issued with respect to it that number of Rights which each share of Common Stock outstanding immediately prior to the applicable event had issued with respect to it. The adjustments provided for in this Section 11.14 shall be made successively whenever a dividend is declared or paid or a subdivision, combination or consolidation is effected. If an event occurs that would require an adjustment under Section 11.1.2 and this Section 11.14, the adjustment provided in this Section 11.14 shall be in addition and prior to any adjustment required pursuant to Section 11.1.2.

12.         Certificate of Adjustment. Whenever an adjustment is made as provided in Section 11 or Section 13, the Company shall promptly (i) prepare a certificate setting forth the adjustment and a brief statement of the facts accounting for the adjustment in reasonable detail, (ii) file with the Rights Agent and with each transfer agent for the Common Stock and the Preferred Stock, as applicable, a copy of the certificate, and (iii) if the adjustment occurs following a Distribution Date, mail a brief summary thereof to each holder of a Right Certificate in accordance with Section 25 (if so required under Section 25) and Section 26. Notwithstanding the foregoing sentence, the failure of the Company to make a certification or give notice shall not affect the validity of an adjustment or the force or effect of the requirement for an adjustment. The Rights Agent shall be fully protected in relying on any certificate of adjustment and on any adjustment therein contained and shall not be obligated or responsible for calculating any adjustment, nor shall the Rights Agent be deemed to have any liability therefor or knowledge of any adjustment, unless and until it shall have received the applicable certificate.

13.1        If, at any time after a Stock Acquisition Date, (i) the Company consolidates with, or merges with and into, any other Person; (ii) any Person consolidates with the Company, or merges with and into the Company, and the Company is the continuing or surviving corporation of the transaction and, in connection with the transaction, all or part of the shares of Common Stock are or will be changed into or exchanged for stock or other securities of any other Person (or the Company) or cash or any other property; or (iii) the Company sells or otherwise transfers (or one or more of its Subsidiaries sell or otherwise transfer), in one or more transactions, assets or Earning Power aggregating 50% or more of the assets or Earning Power of the Company and its Subsidiaries (taken as a whole) to any other Person other than the Company or one or more of its wholly owned Subsidiaries (each of the foregoing events, a “Section 13 Event”), then, upon the first occurrence of any Section 13 Events, proper provision shall be made so that (A) each holder of a Right (except for Rights which have become null and void pursuant to Section 7.6) shall thereafter have the right to receive, upon the exercise of a Right, at a price equal to the then current Purchase Price, in accordance with the terms of this Agreement and in lieu of Preferred Shares, the number of shares of Common Stock of such other Person (including the Company as successor thereto or as the surviving corporation) equal to the result obtained by (1) multiplying the then current Purchase Price by the number of one one-thousandths of a Preferred Share for which a Right is exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section 11.1.2 Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the number of such one one-thousandths of a share for which a Right was exercisable prior to the occurrence of a Section 11.1.2 Event by the Purchase Price in effect prior to the occurrence of a Section 11.1.2 Event), and (2) dividing that product (which, following the occurrence of a Section 13 Event, shall be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by fifty percent (50%) of the then Current Per Share Market Price of the shares of Common Stock of the other Person (determined pursuant to Section 11.4.1 hereof) on the date of consummation of such Section 13 Event; (B) the issuer of the shares of Common Stock shall thereafter be liable for, and shall assume, by virtue of the Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement; (C) the term “Company” shall thereafter be deemed to refer to the issuer of the shares of Common Stock; and (D) the issuer shall take steps in connection with the consummation of the applicable transaction as may be necessary to ensure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to the Common Stock thereafter deliverable upon the exercise of the Rights; provided that, upon the subsequent occurrence of any consolidation, merger, sale or transfer of assets or other extraordinary transaction in respect of the issuer, each holder of a Right shall thereupon be entitled to receive, upon exercise of a Right and payment of the Purchase Price as provided in this Section 13.1, cash, shares, rights, warrants and other property which the holder would have been entitled to receive had the holder, at the time of the applicable transaction, owned shares of Common Stock of the issuer receivable upon the exercise of a Right pursuant to this Section 13.1, and the issuer shall take all steps (including, but not limited to, reservation of shares of stock) necessary to permit the subsequent exercise of the Rights in accordance with the terms hereof for cash, shares, rights, warrants and other property.

13.2        The Company shall not consummate any consolidation, merger, sale or transfer unless prior thereto the Company and the issuer of the shares of Common Stock shall have executed and delivered to the Rights Agent a supplemental agreement providing for the issuer’s compliance with this Section 13. The Company shall not enter into any transaction of the kind referred to in this Section 13 if, at the time of the applicable transaction, there are any rights, warrants, instruments or securities outstanding or any agreements or arrangements which, as a result of the consummation of the applicable transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights. The provisions of this Section 13 shall apply to successive mergers, consolidations or sales or other transfers. In the event that a Section 13 Event shall occur at any time after the occurrence of a Section 11.1.2 Event, the Rights that have not theretofore been exercised shall thereafter become exercisable in the manner described in Section 13.1.

13.3        Notwithstanding anything contained herein to the contrary, in the event of any merger or other acquisition transaction involving the Company pursuant to a merger or other acquisition agreement between the Company and any Person (or one or more of the Person’s Affiliates or Associates) which agreement has been approved by the Board of Directors prior to any Person becoming an Acquiring Person, this Agreement and the rights of holders of Rights hereunder shall be terminated in accordance with Section 7.1.

13.4        For purposes hereof, the “Earning Power” of the Company and its Subsidiaries shall be determined in good faith by the Board of Directors on the basis of the operating earnings of each business operated by the Company and its Subsidiaries during the three fiscal years preceding the date of determination (or, in the case of any business not operated by the Company or any of its Subsidiaries during three full fiscal years preceding the date of determination, during the period the applicable business was operated by the Company or any of its Subsidiaries).

14.1        The Company shall not be required to issue fractions of Rights or to distribute Right Certificates which represent fractional Rights. In lieu of issuing fractional Rights, the Company has the option to pay to each registered holder of the Right Certificates with regard to which the fractional Rights would otherwise be issuable an amount in cash equal to the same fraction of the current market value of a whole Right. For the purposes of this Section 14.1, the current market value of a whole Right shall be the closing price (as determined in accordance with Section 11.4) of the Rights for the Trading Day immediately prior to the date on which the fractional Rights would have been otherwise issuable.

14.2        The Company shall not be required to issue fractions of shares of its stock upon the exercise of the Rights or to distribute certificates which represent fractional shares (other than, in each case with respect to Preferred Shares or Equivalent Preferred Shares, fractions which are integral multiples of one one-thousandth of a Preferred Share or an Equivalent Preferred Share, as the case may be). Fractions of Preferred Shares or Equivalent Preferred Shares in integral multiples of one one-thousandth of a Preferred Share or a Equivalent Preferred Share, as applicable, may, at the election of the Company, be represented by depositary receipts, pursuant to an agreement between the Company and a depositary selected by the Company; provided that the agreement shall provide that the holders of depositary receipts shall have all the rights, privileges and preferences to which they are entitled as Beneficial Owners of the Preferred Shares or Equivalent Preferred Shares represented by the depositary receipts. In lieu of fractional shares, the Company has the option to pay to each registered holder of Right Certificates at the time the Rights are exercised or exchanged as herein provided an amount in cash equal to the same fraction of the current market value of a share of its stock. For the purposes of this Section 14.2, the current market value of a share of stock shall be the closing price (as determined in accordance with Section 11.4.1) of the applicable share of stock for the Trading Day immediately prior to the date of exercise or exchange.

14.3        [Reserved]

14.4        The holder of a Right by the acceptance of the Right expressly waives any right to receive fractional Rights or fractional shares upon exercise of a Right (except as provided in this Section 14).

14.5        Whenever a payment for fractional Rights or fractional shares is to be made by the Rights Agent, the Company shall (i) promptly prepare and deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related to the payments and the prices or formulas utilized in calculating the payments, and (ii) provide sufficient monies to the Rights Agent in the form of fully collected funds to make the payments. The Rights Agent shall be fully protected in relying upon the Company’s certificate and shall have no duty with respect to, and shall not be deemed to have knowledge of any payment for fractional Rights or fractional shares under any Section of this Agreement relating to the payment of fractional Rights or fractional shares unless and until the Rights Agent shall have received the certificate and sufficient monies.

15.         Rights of Action. All rights of action in respect of this Agreement, excepting the rights of action given to the Rights Agent under Section 18, are vested in the respective registered holders of the Rights. Any holder of Right may, without the consent of the Rights Agent or of the holder of any other Right, on the holder’s own behalf and for the holder’s own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, the holder’s right to exercise the Rights represented by the Right Certificate in the manner provided in the Right Certificate and in this Agreement. Without limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that holders of Rights would not have an adequate remedy at law for any breach by the Company of this Agreement and will be entitled to specific performance of the obligations under, and injunctive relief against any actual or threatened violation by the Company of its obligations under this Agreement.

16.         Agreement of Right Holders. Every holder of a Right, by accepting the same, consents and agrees with the Company and the Rights Agent and with every other holder of a Right that:

16.1        prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of the shares of Common Stock;

16.2        after the Distribution Date, the Rights are transferable only on the registry books maintained by the Rights Agent if the Rights Certificate representing the Rights is surrendered at office of the Rights Agent designated for such purpose accompanied by a Signature Guarantee, duly endorsed or accompanied by a proper instrument of transfer; and

16.3        the Company and the Rights Agent may deem and treat the Person in whose name the Right Certificate (or, prior to the Distribution Date, the associated Common Stock certificate or Book Entry shares in respect of Common Stock) is registered as the absolute owner thereof and of the Rights represented thereby (notwithstanding any notations of ownership or writing on the Right Certificates or the associated Common Stock certificate (or Ownership Statements or notices provided to holders of Book Entry shares of Common Stock) made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent, subject to Section 7.5 hereof, shall be affected by any notice to the contrary.

16.4        notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have any liability to any holder of a Right or other Person as a result of the inability of the Company or the Rights Agent to perform any of its or their obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree, judgment or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of an obligation; provided, however, that the Company must use its best efforts to have any order, decree, judgment or ruling lifted or otherwise overturned as soon as practicable.

17.         Right Holder Not Deemed a Stockholder. No holder, as such, of any Right shall be entitled to vote or receive dividends, or be deemed for any purpose the holder of the Preferred Stock, Common Stock or any other securities of the Company that may at any time be issuable on the exercise or exchange of the Rights represented thereby, nor shall anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, to give or withhold consent to any corporate action, to receive notice of meetings or other actions affecting stockholders (except as provided in Section 25), or to receive dividends or subscription rights, or otherwise, until the Rights represented by the Right Certificate shall have been exercised or exchanged in accordance with the provisions hereof.

18.         Concerning the Rights Agent. The Company shall pay to the Rights Agent reasonable compensation for all services rendered by it hereunder in accordance with a mutually agreed upon fee schedule and, from time to time, on demand of the Rights Agent, reimburse the Rights Agent for its reasonable expenses and counsel fees and other disbursements incurred in the preparation, delivery, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder. The Company shall also indemnify the Rights Agent for, and hold it harmless against, any and all loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including, without limitation, the reasonable fees and expenses of legal counsel) that may be paid, incurred or suffered by it, or which it may become subject, without gross negligence, bad faith or willful misconduct on the part of the Rights Agent (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction), for any action taken, suffered, or omitted to be taken by the Rights Agent in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the costs and expenses of defending against any claim or liability arising therefrom, directly or indirectly, or enforcing its rights hereunder; provided, however, that the Rights Agent shall not settle or dispose of any claims in a manner that affects the Company’s rights or interests without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed.

The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it in connection with its administration of this Agreement in reliance upon any Right Certificate or certificate for shares of Preferred Stock, Common Stock or any other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or other paper or document believed in the absence of bad faith by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged by the proper Person or Persons, or otherwise upon the advice of counsel as set forth in Section 20 hereof. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive written notice thereof hereunder, but for which it has not received a written notice, and the Rights Agent shall be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received a written notice.

19.         Merger or Consolidation or Change of Name of Rights Agent. Any entity into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any entity resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any entity succeeding to the shareholder service business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such entity would be eligible for appointment as a successor Rights Agent under the provisions of Section 21. If, at the time the successor Rights Agent shall succeed to the agency created by this Agreement, any of the Right Certificates shall have been countersigned but not delivered, any successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates so countersigned. If, at that time, any of the Right Certificates shall not have been countersigned, any successor Rights Agent may countersign the Right Certificates either in the name of the predecessor Rights Agent or in the name of the successor Rights Agent. In all such cases such Right Certificates shall have the full force provided in the Right Certificates and in this Agreement.

If, at any time, the name of the Rights Agent changes and any of the Right Certificates have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Right Certificates so countersigned. If, at that time, any of the Right Certificates have not been countersigned, the Rights Agent may countersign such Right Certificates either in its prior name or in its changed name. In all such cases such Right Certificates shall have the full force provided in the Right Certificates and in this Agreement.

The provisions of Section 18, this Section 19 and Section 20 below shall survive the termination of this Agreement, the resignation, replacement or removal of the Rights Agent and the exercise, termination and the expiration of the Rights. In no event shall the Rights Agent be liable for special, punitive, incidental, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of the action; and the Company shall indemnify the Rights Agent and hold it harmless to the fullest extent permitted by law against any loss, liability or expense incurred as a result of third party claims for special, punitive, incidental, indirect or consequential loss or damages of any kind whatsoever.

20.         Duties of Rights Agent. The Rights Agent undertakes the duties and obligations expressly set forth in this Agreement (and no implied duties or obligations). The Rights Agent shall perform those duties and obligations upon the following terms and conditions, by all of which the Company and the holders of Right Certificates, by their acceptance thereof, shall be bound:

20.1        The Rights Agent may consult with legal counsel selected by it (who may be outside legal counsel for the Rights Agent or the Company), and the advice or opinion of legal counsel shall be full and complete authorization and protection to the Rights Agent and the Rights Agent will have no liability for or in respect of any action taken, suffered or omitted to be taken by it in the absence of bad faith and in accordance with the advice or opinion of legal counsel.

20.2        Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including the identity of any Acquiring Person and the determination of Current Per Share Market Price) be proved or established by the Company prior to taking, suffering, or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof is specifically prescribed herein) may be deemed to be conclusively proved and established by a certificate signed by the chief executive officer or the chief financial officer of the Company or by any person authorized thereby and delivered to the Rights Agent, and the certificate shall be full and complete authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it, in the absence of bad faith, under the provisions of this Agreement in reliance upon the certificate.

20.3        The Rights Agent shall be liable to the Company and any other Person hereunder only for its own gross negligence, bad faith or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final judgment of a court of competent jurisdiction). Any liability of the Rights Agent under this Agreement shall be limited to the amount of annual fees (not including reimbursed expenses) paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought.

20.4        The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Right Certificates (except as to its countersignature thereof) or be required to verify the same. All such statements and recitals are and shall be deemed to have been made by the Company only.

20.5        The Rights Agent shall not have any liability for nor be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except its countersignature thereof); nor shall it be liable or responsible for any breach by the Company of any covenant or failure by the Company to satisfy any condition contained in this Agreement or in any Right Certificate; nor shall it be responsible for any adjustment required under the provisions of Sections 11 or 13 or for the manner, method or amount of any adjustment or the ascertaining of the existence of facts that would require any adjustment (except with respect to the exercise of Rights represented by Right Certificates after receipt of a certificate furnished pursuant to Section 12 describing the adjustment); nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Preferred Shares or other securities to be issued pursuant to this Agreement or any Right Certificate or as to whether any Preferred Shares or other securities will, when so issued, be validly authorized and issued, fully paid, and non-assessable.

20.6        The Company shall perform, execute, acknowledge and deliver, or cause to be performed, executed, acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.

20.7        The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder and certificates delivered pursuant to any provision hereof from the chief executive officer or chief financial officer, and to apply to these officers for advice or instructions in connection with its duties. The Rights Agent shall not be liable for any action taken or suffered to be taken by it, in the absence of bad faith, in accordance with instructions of any such officer and such advice or instruction shall be full authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken or suffered or omitted to be taken by it, in the absence of bad faith, in accordance with advice or instructions of any such officer or for any delay in acting while waiting for those instructions.

20.8        Subject to applicable law, rules and regulations, the Rights Agent and any stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company, or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company, or otherwise act as fully and freely as though it were not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company or for any other legal entity.

20.9        The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself (through its directors, officers and employees) or by or through its attorneys or agents. The Rights Agent shall not be answerable or accountable for any act, default, neglect, or misconduct of any of its attorneys or agents or for any loss to the Company resulting from any act, default, neglect or misconduct, absent gross negligence, willful misconduct or bad faith (each as determined by a final judgment of a court of competent jurisdiction) in the selection and continued employment of its attorneys or agents.

20.10      No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.

20.11      The Rights Agent shall not be required to take notice or be deemed to have notice of any fact, event or determination (including, without limitation, any dates or events defined in this Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Agreement unless and until the Rights Agent shall be specifically notified in writing by the Company of such fact, event or determination.

20.12      The Rights Agent shall have no responsibility to the Company, any holders of Rights, any holders of shares of Common Stock or any other Person for interest or earnings on any moneys held by the Rights Agent pursuant to this Agreement.

20.13      In the event the Rights Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Rights Agent hereunder, the Rights Agent shall promptly notify the Company thereof, and the Rights Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to Company, the holder of any Rights Certificate or Book-Entry shares or any other Person for refraining from taking such action, unless the Rights Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of Rights Agent.

20.14      The Rights Agent shall act hereunder solely as agent for the Company. The Rights Agent shall not assume any obligations or relationship of agency or trust with any of the owners or holders of the Rights or Common Stock or Preferred Stock.

20.15      The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an "eligible guarantor institution" that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable "signature guarantee program" or insurance program in addition to, or in substitution for, the foregoing; or (b) any related law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.

21.         Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Agreement upon thirty (30) days’ prior notice in writing mailed to the Company and, in the event that the Rights Agent or one of its Affiliates is not also the transfer agent for the Company, to each transfer agent of Common Stock and Preferred Stock by registered or certified mail. In the event the transfer agency relationship in effect between the Company and the Rights Agent terminates, the Rights Agent will be deemed to have resigned automatically and be discharged from its duties under this Agreement as of the effective date of termination, and the Company shall be responsible for sending any required notice. The Company may remove the Rights Agent or any successor Rights Agent upon thirty (30) days’ prior notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of Common Stock and Preferred Stock by registered or certified mail, and, after the Distribution Date, to the holders of the Right Certificates by first class mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to appoint a successor within a period of thirty (30) days after giving notice of removal or after it has been notified in writing of the Rights Agent’s resignation or incapacity by the resigning or incapacitated Rights Agent, then the registered holder of any Right Certificate (who shall, with the notice, submit the holder’s Right Certificate for inspection by the Company) may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by a court, shall be a Person organized and doing business under the laws of the United States or of any state of the United States, in good standing, which is authorized under the applicable laws to exercise corporate trust or stock transfer powers, is subject to supervision or examination by federal or state authority, and has, along with its Affiliates, at the time of its appointment as Rights Agent a combined capital and surplus of at least $50 million. After appointment, the successor Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed, and the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, and shall execute and deliver any further assurance, conveyance, act or deed necessary for the purpose, but such predecessor Rights Agent shall not be required to make any additional expenditure or assume any additional liability in connection with the foregoing. Not later than the effective date of any appointment, the Company shall file notice thereof in writing with the predecessor Rights Agent and each transfer agent of Common Stock and Preferred Stock, and, after the Distribution Date, mail a notice in writing to the registered holders of the Rights. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.

22.         Issuance of New Right Certificates. Notwithstanding any of the provisions of this Agreement or of the Right Certificates to the contrary, the Company may, at its option, issue new Right Certificates representing Rights in such form as may be approved by its Board of Directors to reflect any adjustment or change in the Purchase Price and the number or kind or class of shares or other securities or property purchasable under the Right Certificates made in accordance with the provisions of this Agreement. In addition, in connection with the issuance or sale of Class A Common Stock following the Distribution Date and prior to the earlier of the Redemption Date and the Close of Business on the Final Expiration Date, the Company may, with respect to shares of Class A Common Stock so issued or sold (i) pursuant to the exercise of stock options; (ii) under any employee plan or arrangement; (iii) upon the exercise, conversion or exchange of securities, notes or debentures issued by the Company, or (iv) pursuant to a contractual obligation of the Company, in each case existing prior to the Distribution Date, issue Right Certificates representing the appropriate number of Rights in connection with such issuance or sale; provided, however, that (i) no Right Certificate shall be issued if, and to the extent that, the Company shall be advised by counsel that the issuance would create a significant risk of material adverse tax consequences to the Company or the Person to whom the Right Certificate would be issued or would create a significant risk of or result in such options’ or employee plans’ or arrangements’ failing to qualify for otherwise available special tax treatment, (ii) no Right Certificate shall be issued if, and to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof and (iii) no Right Certificate shall be issued to an Acquiring Person or an Affiliate or Associate of an Acquiring Person.

23.1        The Board of Directors may, at its option, at any time prior to the earlier of (i) the Close of Business on the fifth (5^th) Business Day following the Distribution Date, or (ii) the Final Expiration Date, redeem all but not less than all of the then outstanding Rights at a redemption price of $0.000001 per one one-thousandths of a Preferred Share represented by a Right, as appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (the “Redemption Price”). The redemption of the Rights by the Company may be made effective at any time, on any basis and subject to any conditions as the Board of Directors in its sole discretion may establish. The Company may, at its option, pay the Redemption Price in cash, shares of Class A Common Stock (based on the Current Per Share Market Price at the time of redemption as determined pursuant to Section 11.4 hereof) or any other form of consideration deemed appropriate by the Board of Directors. Notwithstanding anything contained in this Agreement to the contrary, the Rights shall not be exercisable after the first occurrence of a Section 11.1.2 Event until such time as the Company's right of redemption set forth in the first sentence of this Section 23.1 has expired.

23.2        Immediately upon the action of the Board of Directors (with, if required, the concurrence of a majority of the Continuing Directors) ordering the redemption of the Rights pursuant to Section 23.1 (or at a later time as the Board of Directors may establish for the effectiveness of the redemption) (the “Redemption Date”), evidence of which shall have been filed with the Rights Agent, and without any further action and without any notice, the right to exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price for each Right so held. Promptly after the action of the Board ordering the redemption of the Rights, the Company shall give notice of redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such notice to all such holders at each holder’s last address as it appears upon the registry books of the Rights Agent or, prior to the Distribution Date, the registry books for the Common Stock; provided, however, that failure to give, or any defect in, any notice shall not affect the validity of the redemption. Any notice that is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which the payment of the Redemption Price will be made. With respect to each holder of Rights, the Redemption Price shall be rounded to the nearest cent for the aggregate Rights held by the holder.

23.3        Notwithstanding the provisions of Section 23.1 hereof, in the event that a majority of the Board of Directors does not consist of Continuing Directors (the first occurrence of such an event referred to herein as a “Section 23.1 Event”), then for a period of one hundred and eighty (180) days following the Section 23.1 Event, the Rights shall not be redeemed unless there are Continuing Directors and a majority of the Continuing Directors concur with the Board’s decision to redeem the Rights.

24.1        The Company may, at its option, upon authorization of the Board of Directors, at any time after a Person becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights (excluding Rights that have become null and void pursuant to Section 7.6) for shares of Class A Common Stock at an exchange ratio of one share of Class A Common Stock per one one-thousandth of a Preferred Share represented by a Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (the “Exchange Ratio”). Notwithstanding the foregoing, to the extent prohibited by Maryland law, the Board of Directors shall not be empowered to authorize an exchange at any time after an Acquiring Person becomes the Beneficial Owner of a majority of the shares of Common Stock then outstanding. From and after the occurrence of a Section 13 Event, any Rights that theretofore have not been exchanged pursuant to this Section 24 shall thereafter be exercisable only in accordance with Section 13 and may not be exchanged pursuant to this Section 24. The Board of Directors may provide that the exchange of the Rights by the Company may be made effective at a time, on any basis and with any terms and conditions as the Board of Directors in its sole discretion may establish.

24.2        Immediately upon effectiveness of the action of the Board of Directors authorizing the exchange of any Rights pursuant to Section 24.1, and without any further action and without any notice, the right to exercise the Rights so exchanged shall terminate and the only right thereafter of a holder shall be to receive a number of shares of Class A Common Stock equal to the number of the Rights held by the holder which are exchanged multiplied by the Exchange Ratio. The Company shall promptly give public notice of any exchange (as well as prompt written notice thereof to the Rights Agent); provided, however, that the failure to give, or any defect in, an exchange notice shall not affect the validity of the exchange. The Company promptly shall mail a notice of any exchange to all of the holders of the Rights so exchanged at their last addresses as they appear upon the registry books of the Rights Agent. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each notice of exchange will state the method by which the exchange of the shares of Class A Common Stock for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other than Rights which have become null and void pursuant to the provisions of Section 7.6) held by each holder of Rights.

24.3        In any exchange pursuant to this Section 24, the Board of Directors may provide, at its option, that the Company may substitute Preferred Shares or Common Stock Equivalents for shares of Class A Common Stock exchangeable for Rights, at the initial rate of one one-thousandth of a Preferred Share (or an appropriate number of Common Stock Equivalents) for each share of Class A Common Stock, as appropriately adjusted to reflect adjustments in the voting rights of the Preferred Shares pursuant to the terms thereof, so that the fraction of a Preferred Share delivered in lieu of each share of Class A Common Stock shall have the same voting rights as one share of Class A Common Stock.

24.4        If there shall not be sufficient shares of Class A Common Stock, Preferred Stock or Common Stock Equivalents authorized but unissued to permit any exchange of Rights as contemplated in accordance with this Section 24, the Company shall take all action as may be necessary to authorize additional shares of Class A Common Stock, Preferred Stock or Common Stock Equivalents for issuance upon exchange of the Rights.

24.5        The Company shall not be required to issue fractions of shares of Class A Common Stock or to distribute certificates which represent fractional shares of Class A Common Stock. In lieu of issuing fractional shares of Class A Common Stock, the Company may instead pay to the registered holders of the Rights with regard to which fractional shares of Class A Common Stock would otherwise be issuable an amount in cash equal to the same fraction of the current per share market value of a whole share of Class A Common Stock. For the purposes of this Section 24.5, the current per share market value of a whole share of Class A Common Stock shall be the closing price of a share of Class A Common Stock (as determined pursuant to the second sentence of Section 11.4.1) for the Trading Day immediately prior to the date of exchange pursuant to this Section 24.

24.6        Notwithstanding anything in this Section 24 to the contrary, the exchange of the Rights may be made effective at a time, on any basis and with any terms and conditions as the Board of Directors in its sole discretion may establish. Without limiting the preceding sentence, the Board of Directors may (i) in lieu of issuing shares of Class A Common Stock or any other securities contemplated by this Section 24 to the Persons entitled thereto in connection with the exchange (the Persons, the “Exchange Recipients,” and the shares of Class A Common Stock and other securities, together with any dividends or distributions made on the shares of Class A Common Stock or other securities, the “Exchange Property”) issue, transfer or deposit the Exchange Property to or into a trust or other entity that may hold the Exchange Property for the benefit of the Exchange Recipients (provided that the trust or other entity may not be controlled by the Company or any of its Affiliates or Associates and provided further that the trustee or similar fiduciary of the trust or other entity will attempt to distribute the Exchange Property to the Exchange Recipients as promptly as practicable), (ii) permit the trust or other entity to exercise all of the rights that a stockholder of record would possess with respect to any shares deposited in the trust or other entity and (iii) impose any procedures necessary to verify that the Exchange Recipients are not Acquiring Persons or Affiliates or Associates of Acquiring Persons as of any time periods established by the Board of Directors or the trust or other entity. In the event the Board of Directors determines to issue, transfer or deposit the Exchange Property to or into a trust or other entity, all stockholders entitled to receive shares pursuant to the exchange shall be entitled to receive such shares (and any dividends or other distributions made thereon after the date on which such shares are deposited in the trust or other entity) only from the trust or other entity and solely upon compliance with the relevant terms and provisions of any agreement between the Company and the trust or other entity. In the event the Board of Directors determines, before the Distribution Date, to effect an exchange, the Board of Directors may delay the occurrence of the Distribution Date to a time as the Board of Directors deems advisable.

25.1        If the Company shall after the Distribution Date propose (i) to pay any dividend payable in stock of any class to the holders of its Preferred Shares or to make any other distribution to the holders of its Preferred Shares (other than a regular quarterly cash dividend); (ii) to offer to the holders of its Preferred Shares rights or warrants to subscribe for or to purchase any additional Preferred Shares or shares of stock of any class or any other securities, rights or options; (iii) to effect any reclassification of its Preferred Shares (other than a reclassification involving only the subdivision of outstanding Preferred Shares); (iv) to effect any consolidation or merger into or with any other Person, or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of 50% or more of the assets or Earning Power of the Company and its Subsidiaries (taken as a whole) to any other Person; (v) to effect the liquidation, dissolution or winding up of the Company; or (vi) to declare or pay any dividend on the shares of Class A Common Stock payable in shares of Class A Common Stock, or to effect a subdivision, combination or consolidation of the shares of Class A Common Stock (by reclassification or otherwise than by payment of dividends in shares of Class A Common Stock), then, in each case, the Company shall give to the Rights Agent and to each holder of a Right, in accordance with Section 26, a notice of the proposed action, which shall specify the record date for the purposes of a stock dividend, or distribution of rights or warrants, or the date on which a reclassification, consolidation, merger, sale, transfer, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of the Class A Common Stock or Preferred Stock or both, if any date is to be fixed, and the notice shall be so given, in the case of any action covered by clause (i) or (ii) above, at least ten (10) days prior to the record date for determining holders of the Preferred Shares and, in the case of any action covered by clauses (iii) to (vi) above, at least ten (10) days prior to the date of the taking of the proposed action or the date of participation therein by the holders of the Class A Common Stock or Preferred Stock or both, whichever shall be the earlier. The failure to give notice required by this Section 25.1 or any defect therein shall not affect the legality or validity of the action taken by the Company or the vote upon any such action.

25.2        In case any Section 11.1.2 Event shall occur, then (i) the Company shall as soon as practicable thereafter give to each holder of a Rights Certificate, in accordance with Section 26 hereof, a notice of the occurrence of the event, which notice shall specify the event and the consequences of the event to holders of Rights under Section 11.1.2 hereof and (ii) all references in the preceding paragraph to Preferred Shares shall be deemed thereafter to refer to shares of Class A Common Stock or, if applicable, other securities.

26.         Notices. Notices or demands authorized by this Agreement to be given or made by the Rights Agent or by the holder of any Right Certificate to or on the Company shall be in writing and shall be sufficiently given or made if sent by overnight delivery service or first-class mail, postage prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows:

New York City REIT, Inc.

650 Fifth Avenue – 30th Floor

New York, NY 10019

Attention: Legal Department

Copy to:

Proskauer Rose LLP

70 West Madison #3800

Chicago, Illinois 60602

Attn: Michael J. Choate, Esq.

Subject to the provisions of Section 21, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the Rights Agent shall be in writing and shall be deemed given upon receipt and shall be sufficiently given or made if sent by overnight delivery service or registered or certified mail addressed (until another address is filed in writing with the Company) as follows:

Computershare Trust Company, N.A.

150 Royall Street

Canton, Massachusetts 02021

Attention: Legal Department

Notices or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to a holder of any Right shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed to the holder at the address of the holder as shown on the registry books of the Company.

27.         Supplements and Amendments. The Company may from time to time, and the Rights Agent shall if the Company so directs, supplement or amend this Agreement without the approval of any holders of Rights in order to cure any ambiguity, to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, or to make any change to or delete any provision hereof or to adopt any other provisions with respect to the Rights which the Company may deem necessary or desirable; provided, however, that, from and after the Distribution Date, this Agreement shall not be amended or supplemented in any manner which would adversely affect the interests of the holders of Rights (other than an Acquiring Person and its Affiliates and Associates). Without limiting the foregoing, the Company may at any time prior to any Person becoming an Acquiring Person amend this Agreement to lower the thresholds set forth in Section 1.1 to not less than 4.0% (the Reduced Threshold); provided, further, that no Person who, at the time of the amendment setting a Reduced Threshold, Beneficially Owns a number of shares of Common Stock equal to or greater than the Reduced Threshold shall become an Acquiring Person unless such Person shall, after the public announcement of the Reduced Threshold, increase its Beneficial Ownership of the then outstanding shares of Common Stock (other than as a result of an acquisition of shares of Common Stock by the Company) to an amount equal to or greater than the greater of (x) the Reduced Threshold or (y) the sum of (i) the lowest Beneficial Ownership of such Person as a percentage of the outstanding shares of Common Stock as of any date on or after the date of the public announcement of such Reduced Threshold plus (ii) 0.001%. Any supplement or amendment authorized by this Section 27 will be evidenced by a writing signed by the Company and the Rights Agent. Upon the delivery of a certificate from the chief executive officer or chief financial officer that states that the proposed supplement or amendment is in compliance with the terms of this Section 27, an authorized signatory of the Rights Agent shall execute such supplement or amendment; provided, however, that notwithstanding anything in this Agreement to the contrary, no supplement, modification or amendment will be effective without the execution of such supplement or amendment by the Rights Agent and the Rights Agent shall have no duty to execute such supplement, amendment or modification to this Agreement that it has determined would adversely affect its own rights, duties, obligations or immunities under this Agreement.

28.         Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective successors and assigns hereunder.

29.         Benefits of This Agreement. Nothing in this Agreement shall be construed to give to any Person or entity other than the Company, the Rights Agent and the registered holders of the Rights (and, if prior to the Distribution Date, the holders of Common Stock and, if on the Distribution Date, the Unitholders) any legal or equitable right, remedy or claim under this Agreement. This Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Rights (and, if prior to the Distribution Date, the holders of Common Stock and, if on the Distribution Date, the Unitholders).

30.         Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, null and void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated; provided, that if any excluded terms, provisions, covenants or restrictions shall materially and adversely affect the rights, immunities, liabilities, duties, responsibilities or obligations of the Rights Agent, the Rights Agent shall be entitled to resign upon ten (10) Business Days’ written notice to the Company.

31.         Governing Law. This Agreement and each Right Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Maryland and for all purposes shall be governed by and construed in accordance with the laws of such state applicable to contracts to be made and performed entirely within such state, except that the rights, duties, immunities and obligations of the Rights Agent shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within the State of New York.

32.         Counterparts. This Agreement may be executed in any number of counterparts, and each counterparts shall for all purposes be deemed to be an original, and all counterparts shall together constitute but one and the same instrument. A signature to this Agreement transmitted electronically shall have the same authority, effect and enforceability as an original signature.

33.         Descriptive Headings. Descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.

34.         Administration. Without limiting any of the rights, duties, immunities and obligations of the Rights Agent, the Board of Directors shall have the exclusive power and authority to administer and interpret the provisions of this Agreement and to exercise all rights and powers specifically granted to the Board of Directors or the Company or as may be necessary or advisable in the administration of this Agreement. Without limiting any of the rights, duties, immunities and obligations of the Rights Agent, all such actions, calculations, determinations and interpretations which are done or made by the Board of Directors in good faith shall be final, conclusive and binding on the Company, the Rights Agent, holders of the Rights and all other parties and shall not subject the Board of Directors to any liability to the holders of the Rights. The Rights Agent shall always be entitled to assume that the Board of Directors acted in good faith and shall be fully protected and incur no liability in reliance thereon.

35.         Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent will not have any liability for not performing, or a delay in the performance of, any act, duty, obligation or responsibility by reason of any occurrence beyond the reasonable control of the Rights Agent (including, without limitation, any act or provision of any present or future law or regulation or government authority, any act of God, pandemic, epidemic, war, civil or military disobedience or disorder, riot, terrorism, fire, earthquake, storm, flood, strike, work stoppage or similar occurrence).

36.         REIT Status. Notwithstanding anything in this Agreement to the contrary, no Right shall be exercisable if the exercise or exercisability of the Right could, in the judgment of the Board of Directors based on the advice of counsel, result in the Company failing to qualify as a REIT.

37.         Further Assurance by Company. The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.