Exhibit 3.1

NEW KRC CORP.

ARTICLES OF AMENDMENT AND RESTATEMENT

THIS IS TO CERTIFY THAT:

FIRST:                 New KRC Corp., a Maryland corporation (the “Corporation”), desires to restate its charter as currently in effect.

SECOND:            The following provisions and Exhibits A and B are all the provisions of the charter currently in effect.

ARTICLE I

The name of the corporation shall be New KRC Corp. (the “Corporation”).

ARTICLE II

The name of the corporation’s registered agent is The Corporation Trust Incorporated, whose address is 2405 York Road, Suite 201, Timonium, Maryland 21093. The address of the principal office of the Corporation in the State of Maryland is c/o The Corporation Trust Incorporated, 2405 York Road, Suite 201, Timonium, Maryland 21093.

ARTICLE III

The purposes for which the Corporation is formed are to engage in any lawful act or activity (including, without limitation or obligation, engaging in business as a real estate investment trust under the Internal Revenue Code of 1986, as amended, or any successor statute (the “Code”)) for which corporations may be organized under the general laws of the State of Maryland, as amended. For purposes of these Articles, “REIT” means a real estate investment trust under Sections 856 through 860 of the Code.

ARTICLE IV

A.          The total number of shares of all classes of stock that the Corporation shall have authority to issue is one billion one hundred forty-one million one hundred thousand (1,141,100,000) shares, consisting of seven hundred fifty million (750,000,000) shares of Common Stock, $0.01 par value per share (the “Common Stock”), three hundred eighty four million forty six thousand (384,046,000) shares of Excess Stock, $0.01 par value per share (the “Excess Stock”), seven million twelve thousand one hundred forty (7,012,140) shares of Preferred Stock, $1.00 par value per share (the “Preferred Stock”), ten thousand three hundred fifty (10,350) shares of 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share (“Class L Redeemable Preferred Stock”), ten thousand three hundred fifty (10,350) shares of Class L Excess Preferred Stock, $1.00 par value per share (“Class L Excess Preferred Stock”), ten thousand five hundred eighty (10,580) shares of 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share (“Class M Redeemable Preferred Stock”) and ten thousand five hundred eighty (10,580) shares of Class M Excess Preferred Stock, $1.00 par value per share (“Class M Excess Preferred Stock”). The aggregate par value of all authorized shares having a par value is eighteen million three hundred ninety-four thousand four hundred sixty dollars ($18,394,460). 

B.           Common Stock.

1.           Dividend Rights. Subject to the preferential dividend rights, if any, of the Preferred Stock as may be determined by the Board of Directors of the Corporation pursuant to paragraph D of this Article IV, the holders of shares of the Common Stock shall be entitled to receive such dividends as may be authorized and declared by the Board of Directors of the Corporation.

2.           Rights Upon Liquidation. Subject to the preferential rights, if any, of the Excess Preferred Stock and of the Preferred Stock, if any, as may be determined by the Board of Directors of the Corporation pursuant to paragraph D of this Article IV, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of the Common Stock shall be entitled to receive, ratably with each other holder of shares of Common Stock and Excess Stock, that portion of the assets of the Corporation available for distribution to its stockholders as the number of shares of Common Stock held by such holder bears to the total number of shares of Common Stock and Excess Stock then outstanding.

3.           Voting Rights. The holders of shares of the Common Stock shall be entitled to vote on all matters at all meetings of the stockholders of the Corporation, and shall be entitled to one vote for each share of the Common Stock entitled to vote at such meeting, voting together with the holders of shares of the Preferred Stock who are entitled to vote (except as otherwise may be determined by the Board of Directors pursuant to paragraph D of this Article IV).

4.           Restriction on Transfer to Preserve Tax Benefit; Exchange For Excess Shares.

(a)       Definitions. For the purpose of paragraphs B and C of this Article IV, the following terms shall have the following meanings:

“Acquisition Option Agreements” shall mean those certain Acquisition Option Agreements between the Corporation and its subsidiaries and KC Holdings, Inc., a Delaware corporation, and its subsidiaries relating to the option by the Corporation and its subsidiaries and KC Holdings, Inc. and its subsidiaries to acquire certain real estate properties, as those agreements may be amended from time to time.

“Beneficial Ownership” shall mean ownership of shares of Common Stock or Excess Stock by a Person who would be treated as an owner of such shares of Common Stock or Excess Stock either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B). The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings. 

“Beneficiary” shall mean the beneficiary of the Trust as determined pursuant to subparagraph C(5) of this Article IV.

“Board of Directors” shall mean the Board of Directors of the Corporation.

“Common Equity Stock” shall mean stock that is either Common Stock or Excess Stock.

“Constructive Ownership” shall mean ownership of Common Stock or Excess Stock by a Person who would be treated as an owner of such shares of Common Stock or Excess Stock either directly or constructively through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.

“Existing Holder” shall mean (i) any Person who is the Beneficial Owner of Common Stock in excess of the Ownership Limit both immediately before and after the Initial Public Offering, so long as, but only so long as, such Person Beneficially Owns Common Stock in excess of the Ownership Limit and (ii) any Person (other than another existing Holder) to whom an Existing Holder Transfers Beneficial Ownership of Common Stock causing such transferee to Beneficially Own Common Stock in excess of the Ownership Limit.

“Existing Holder Limit” (i) for any Existing Holder who is an Existing Holder by virtue of clause (i) of the definition thereof, shall mean, initially, the percentage of the outstanding shares of Common Equity Stock Beneficially Owned by such Existing Holder on the date of the Initial Public Offering, and after any adjustment pursuant to subparagraph B(4)(i) of this Article IV, shall mean such percentage of the outstanding shares of Common Equity Stock as so adjusted; and (ii) for any Existing Holder who becomes an Existing Holder by virtue of clause (ii) of the definition thereof, shall mean, initially, the percentage of the value of the outstanding shares of Common Equity Stock Beneficially Owned by such Existing Holder at the time that such Existing Holder becomes an Existing Holder, and after any adjustment pursuant to subparagraph B(4)(i) of this Article IV, shall mean such percentage of the Outstanding Common Equity Stock as so adjusted. From the date of the Initial Public Offering and prior to the Restriction Termination Date, the Secretary of the Corporation shall maintain and, upon request, make available to each Existing Holder, a schedule which sets forth the then current Existing Holder Limits for each Existing Holder.

“Initial Public Offering” means the issuance of shares of Common Stock pursuant to the merger of Kimco Realty Corporation with KRC Merger Sub Corp.

“Market Price” shall mean the last reported sales price reported on the New York Stock Exchange for Common Stock on the trading day immediately preceding the relevant date, or if the Common Stock is not then traded on the New York Stock Exchange, the last reported sales price of the Common Stock on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over which the Common Stock may be traded, or if the Common Stock is not then traded over any exchange or quotation system, then the market price of the Common Stock on the relevant date as determined in good faith by the Board of Directors. 

“Ownership Limit” shall initially mean 9.8% in value of the outstanding shares of Common Equity Stock of the Corporation, and after any adjustment as set forth in subparagraph B(4)(j) of this Article IV, shall mean such greater percentage (but not more than 9.8%) of the outstanding shares of Common Equity Stock as so adjusted.

“Person” shall mean an individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended; but does not include an underwriter which participates in a public offering of the Common Stock for a period of 25 days following the purchase by such underwriter of the Common Stock provided that the ownership of Common Stock by such underwriter would not result in the Company being “closely held” within the meaning of Section 856(b) of the Code or otherwise result in the Company failing to qualify as a REIT.

“Purported Beneficial Transferee” shall mean, with respect to any purported Transfer which results in Excess Stock, the purported beneficial transferee for whom the Purported Record Transferee would have acquired shares of Common Stock, if such Transfer had been valid under subparagraph B(4)(b) of this Article IV.

“Purported Record Transferee” shall mean, with respect to any purported Transfer which results in Excess Stock, any record holder of the Common Equity Stock if such Transfer had been valid under subparagraph B(4)(b) of this Article IV.

“REIT” shall mean a real estate investment trust under Section 856 of the Code.

“Restriction Termination Date” shall mean the first day after the date of the Initial Public Offering on which the Board of Directors determines that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT.

“Transfer” shall mean any sale, transfer, gift, assignment, devise or other disposition of Common Equity Stock (including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Common Equity Stock or (ii) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Common Equity Stock), whether voluntary or involuntary, whether of record or beneficially and whether by operation of law or otherwise.

“Trust” shall mean the trust created pursuant to subparagraph C(1) of this Article IV. 

“Trustee” shall mean the Corporation as trustee for the Trust, and any successor trustee appointed by the Corporation.

(b)      Restriction on Transfers.

(i)         Except as provided in subparagraph B(4)(1) of this Article IV, from the date of the Initial Public Offering and prior to the Restriction Termination Date, no Person (other than an Existing Holder) shall Beneficially Own shares of Common Stock in excess of the Ownership Limit, no Existing Holder shall Beneficially Own shares of Common Stock in excess of the Existing Holder Limit for such Existing Holder and no Person shall Constructively Own shares of Common Stock in excess of 9.8% in value of the outstanding Common Equity Stock.

(ii)        Except as provided in subparagraph B(4)(1) of this Article IV, from the date of the Initial Public Offering and prior to the Restriction Termination Date, any Transfer that, if effective, would result in any Person (other than an Existing Holder) Beneficially Owning Common Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such shares of Common Stock which would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such shares of Common Stock.

(iii)       Except as provided in subparagraph B(4)(1) of this Article IV, from the date of the Initial Public Offering and prior to the Restriction Termination Date, any Transfer that, if effective, would result in any Existing Holder Beneficially Owning Common Stock in excess of the applicable Existing Holder Limit shall be void ab initio as to the Transfer of such shares of Common Stock which would be otherwise Beneficially Owned by such Existing Holder in excess of the applicable Existing Holder Limit; and such Existing Holder shall acquire no rights in such shares of Common Stock.

(iv)       Except as provided in subparagraph B(4)(1) of this Article IV, from the date of the Initial Public Offering and prior to the Restriction Termination Date, any Transfer that, if effective, would result in any Person Constructively Owning Common Stock in excess of 9.8% in value of the outstanding shares of Common Equity Stock shall be void ab initio as to the Transfer of such shares of Common Stock which would be otherwise Constructively Owned by such person in excess of such amount; and the intended transferee shall acquire no rights in such shares of Common Stock.

(v)        Except as provided in subparagraph B(4)(1) of this Article IV, from the date of the Initial Public Offering and prior to the Restriction Termination Date, any Transfer that, if effective, would result in the Common Stock being Beneficially Owned by less than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the Transfer of such shares of Common Stock which would be otherwise Beneficially Owned by the transferee; and the intended transferee shall acquire no rights in such shares of Common Stock. 

(vi)       From the date of the Initial Public Offering and prior to the Restriction Termination Date, any Transfer that, if effective, would result in the Corporation being “closely held” within the meaning of the Section 856(h) of the Code shall be void ab initio as to the Transfer of the shares of Common Stock which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code; and the intended transferee shall acquire no rights in such shares of Common Stock.

(c)      Exchange For Excess Stock.

(i)         If, notwithstanding the other provisions contained in this Article IV, at any time after the date of the Initial Public Offering and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Corporation such that any Person would Beneficially Own Common Stock in excess of the applicable Ownership Limit or Existing Holder Limit, then, except as otherwise provided in subparagraph B(4)(1)(i), such shares of Common Stock in excess of such Ownership Limit or Existing Holder Limit (rounded up to the nearest whole share) shall be automatically exchanged for an equal number of shares of Excess Stock. Such exchange shall be effective as of the close of business on the business day prior to the date of the Transfer or change in capital structure.

(ii)        If, notwithstanding the other provisions contained in this Article IV, at any time after the date of the Initial Public Offering and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Corporation such that any Person Constructively Owns shares of Common Stock in excess of 9.8% in value of the outstanding shares of Common Equity Stock, then, except as otherwise provided in subparagraph B(4)(1)(ii), such shares of Common Stock in excess of such amount (rounded up to the nearest whole share) shall be automatically exchanged for an equal number of shares of Excess Stock. Such exchange shall be effective as of the close of business on the business day prior to the date of the Transfer.

(iii)       If, notwithstanding the other provisions contained in this Article IV, at any time after the date of the Initial Public Offering and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Corporation which, if effective, would cause the Corporation to become “closely held” within the meaning of Section 856(h) of the Code, then the shares of Common Stock being Transferred which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code (rounded up to the nearest whole share) shall be automatically exchanged for an equal number of shares of Excess Stock. Such exchange shall be effective as of the close of business on the business day prior to the date of the Transfer.

(d)      Remedies For Breach. If the Board of Directors or its designees shall at any time determine in good faith that a Transfer has taken place in violation of subparagraph B(4)(b) of this Article IV or that a Person intends to acquire or has attempted to acquire beneficial ownership (determined without reference to any rules of attribution), Beneficial Ownership or Constructive Ownership of any shares of stock of the Corporation in violation of subparagraph B(4)(b) of this Article IV, the Board of Directors or its designees shall take such action as it deems advisable to refuse to give effect or to prevent such Transfer, including, but not limited to, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer; provided, however, that any Transfers or attempted Transfers in violation of subparagraphs B(4)(b)(ii) through (iv) or subparagraph B(4)(b)(vi) of this Article IV shall automatically result in the exchange described in subparagraph B(4)(c), irrespective of any action (or non-action) by the Board of Directors. 

(e)      Notice of Restricted Transfer. Any Person who acquires or attempts to acquire shares in violation of subparagraph B(4) of this Article IV, or any Person who is a transferee such that Excess Stock results under subparagraph B(4)(c) of this Article IV, shall immediately given written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the Corporation’s status as a REIT.

(f)     Owners Required To Provide Information. From the date of the Initial Public Offering and until the Restriction Termination Date:

(i)         every Beneficial Owner of more than 5% (or such other percentage, between ½ of 1% and 5%, as provided in the Income Tax Regulations promulgated under the Code) of the outstanding shares of Common Equity Stock of the Corporation shall, within 30 days after January 1 of each year, give written notice to the Corporation stating the name and address of such Beneficial Owner, the number of shares Beneficially Owned, and a description of how such shares are held. Each such Beneficial Owner shall provide to the Corporation such additional information as the Corporation may request in order to determine the effect, if any, of such Beneficial Ownership on the Corporation’s status as a REIT.

(ii)        each Person who is a Beneficial Owner or Constructive Owner of shares of Common Stock and each Person (including the shareholder of record) who is holding shares of Common Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT.

(g)      Remedies Not Limited. Nothing contained in this Article IV shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.

(h)      Ambiguity. In the case of an ambiguity in the application of any of the provisions of subparagraph B(4) of this Article IV, including any definition contained in subparagraph B(4)(a), the Board of Directors shall have the power to determine the application of the provisions of this subparagraph B(4) with respect to any situation based on the facts known to it. 

(i)      Modification of Existing Holder Limits. Subject to the 9.8% ownership limit set forth in subparagraph B(4)(b)(i), the Existing Holder Limits may be modified as follows:

(i)          Subject to the limitations provided in subparagraph B(4)(k), any Existing Holder may transfer shares of Common Stock to a Person who is already an Existing Holder up to the number of shares of Common Stock Beneficially Owned by such transferor Existing Holder in excess of the Ownership Limit. Any such Transfer will decrease the Existing Holder Limit for such transferor Existing Holder and increase the Existing Holder Limit for such transferee Existing Holder by the percentage of the outstanding Common Equity Stock so Transferred. The transferor Existing Holder shall give the Board of Directors prior written notice of any such Transfer.

(ii)         Upon any exercise of any option pursuant to the Acquisition Option Agreements, the Existing Holder Limits for each affected Existing Holder shall be increased, pro rata in accordance with the number of shares to be received among such Existing Holders, to the maximum extent possible under subparagraph B(4)(k) to permit the Beneficial Ownership of the shares of Common Stock issuable upon such exercise.

(iii)        Subject to the limitations provided in subparagraph B(4)(k), the Board of Directors may grant stock options which result in Beneficial Ownership of shares of Common Stock by an Existing Holder pursuant to a stock option plan approved by the stockholders of the Corporation. Any such grant shall increase the Existing Holder Limit for the affected Existing Holder to the maximum extent possible under subparagraph B(4)(k) to permit the Beneficial Ownership of the shares of Common Stock issuable upon the exercise of such stock option.

(iv)        The Board of Directors may reduce the Existing Holder Limit for any Existing Holder, with the written consent of such Existing Holder, after any Transfer permitted in this subparagraph B(4) by such Existing Holder to a Person other than an Existing Holder or after the lapse (without exercise) of a stock option described in subparagraph B(4)(i)(iii).

(j)       Modification of Ownership Limit. Subject to the limitations provided in subparagraph B(4)(k), the Board of Directors may from time to time increase the Ownership Limit.

(k)      Limitations on Modifications.

(i)          Neither the Ownership Limit nor any Existing Holder Limit may be increased (nor may any additional Existing Holder Limit be created) if, after giving effect to such increase (or creation), five Beneficial Owners of Common Stock (including all of the then Existing Holders) Beneficially Own, in the aggregate, more than 49.6% in value of the outstanding shares of Common Equity Stock.

(ii)         Prior to the modification of any Existing Holder Limit or Ownership Limit pursuant to subparagraphs B(4)(i) or B(4)(j) of this Article IV, the Board of Directors may require such opinions of counsel, affidavits, undertakings or agreements as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT. 

(iii)        No Existing Holder Limit shall be reduced to a percentage which is less than the Ownership Limit.

(iv)        The Ownership Limit may not be increased to a percentage which is greater than 9.8%.

(l)       Exceptions.

(i)          The Board of Directors, with a ruling from the Internal Revenue Service or an opinion of counsel, may exempt a Person from the Ownership Limits or the Existing Holder Limits, as the case may be, if such Person is not an individual for purposes of Section 542(a)(2) of the Code and the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain that no individual’s Beneficial Ownership of such Common Stock will violate the Ownership Limit or the applicable Existing Holder Limit, as the case may be, and agrees that any violation or attempted violation will result in such Common Stock being exchanged for Excess Shares in accordance with subparagraph B(4)(c) of this Article IV.

(ii)         The Board of Directors, with a ruling from the Internal Revenue Service or an opinion of counsel, may exempt a Person from the limitation on a Person Constructively Owning shares of Common Stock in excess of 9.8% of the outstanding shares of Common Equity Stock, if such Person does not and agrees that it will not own, directly or constructively (by virtue of the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code), more than a 9.8% interest (as set forth in Section 856(d)(2)(B)) in a tenant of the Corporation and the Corporation obtains such representations and undertakings from such Person as are reasonably necessary to ascertain this fact and agrees that any violation or attempted violation will result in such shares of Common Stock in excess of 9.8% of the outstanding shares of Common Equity Stock being exchanged for Excess Shares in accordance with subparagraph B(4)(c) of this Article IV.

(m)       NYSE Settlement. Nothing in this charter shall preclude the settlement of any transaction entered into through the facilities of the New York Stock Exchange, Inc.

5.            Legend.           Each certificate for Common Stock shall bear the following legend:

“The shares of Common Stock represented by this certificate are subject to restrictions on transfer for the purpose of maintenance of the Corporation’s status as a real estate investment trust under the Internal Revenue Code of 1986, as amended. No Person may Beneficially Own shares of Common Stock in excess of 9.8% (or such greater percentage as may be determined by the Board of Directors of the Corporation) in value of the outstanding shares of Common Equity Stock of the Corporation (unless such Person is an Existing Holder) and no Person may Constructively Own shares of Common Stock in excess of 9.8% in value of the outstanding Common Equity Stock of the Corporation. Any Person who attempts to Beneficially Own or Constructively Own shares of Common Stock in excess of the above limitations must immediately notify the Corporation. All capitalized terms in this legend have the meanings defined in the charter of the Corporation, a copy of which, including the restrictions on transfer, will be sent without charge to each stockholder who so requests. If the restrictions on transfer are violated, the shares of Common Stock represented hereby may be automatically exchanged for shares of Excess Stock which will be held in trust by the Corporation.” 

6.            Severability. If any provision of this Article IV or any application of any such provision is determined to be invalid by any Federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provisions shall be affected only to the extent necessary to comply with the determination of such court.

C.           Excess Stock.

1.            Ownership in Trust. Upon any purported Transfer that results in shares of Excess Stock pursuant to subparagraph B(4)(c) of this Article IV, such Excess Stock shall be deemed to have been transferred to the Corporation, as Trustee of a Trust for the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in such Excess Stock may later be transferred pursuant to subparagraph C(5). Shares of Excess Stock so held in trust shall be issued and outstanding stock of the Corporation. The Purported Record Transferee shall have no rights in such Excess Stock except the right to designate a transferee of such Excess Stock upon the terms specified in subparagraph C(5) of this Article IV. The Purported Beneficial Transferee shall have no rights in such Excess Stock except as provided in subparagraph C(5).

2.            Dividend Rights. Holders of shares of Excess Stock shall not be entitled to any dividends or distributions (except as provided in subparagraph C(3) of this Article IV). Any dividend or distribution paid prior to the discovery by the Corporation that the shares of Common Stock have been exchanged for Excess Stock shall be repaid to the Corporation upon demand.

3.            Rights Upon Liquidation. Subject to the preferential rights of the Preferred Stock, if any, as may be determined by the Board of Directors of the Corporation pursuant to paragraph D of this Article IV, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of Excess Stock shall be entitled to receive, ratably with each other holder of shares of Common Stock and Excess Stock, that portion of the assets of the Corporation available for distribution to its stockholders as the number of shares of the Excess Stock held by such holder bears to the total number of shares of Common Stock and Excess Stock then outstanding. The Corporation, as holder of the Excess Stock in trust, or if the Corporation shall have been dissolved, any trustee appointed by the Corporation prior to its dissolution, shall distribute ratably to the Beneficiaries of the Trust, when determined, any such assets received in respect of the Excess Stock in any liquidation, dissolution or winding up of, or any distribution of the assets of the Corporation. 

4.           Voting Rights. The holder of shares of Excess Stock shall not be entitled to vote on any matter.

5.           Restrictions on Transfer; Designation of Beneficiary. (a) Shares of Excess Stock shall not be transferrable. The Purported Record Transferee may freely designate a Beneficiary of an interest in the Trust (representing the number of shares of Excess Stock held by the Trust attributable to the purported Transfer that resulted in the shares of Excess Stock), if (i) the shares of Excess Stock held in the Trust would not be Excess Stock in the hands of such Beneficiary and (ii) the Purported Beneficial Transferee does not receive a price for designating such Beneficiary that reflects a price per share for such Excess Stock that exceeds (x) the price per share such Purported Beneficial Transferee paid for the shares of Common Stock in the purported Transfer that resulted in shares of Excess Stock, or (y) if the Purported Beneficial Transferee did not give value for such Excess Shares (through a gift, devise or other transaction), a price per share equal to the Market Price on the date of the purported Transfer that resulted in shares of Excess Stock. Upon such transfer of an interest in the Trustee, the corresponding shares of Excess Stock in the Trust shall be automatically exchanged for an equal number of shares of Common Stock and such shares of Common Stock shall be transferred of record to the transferee of the interest in the Trust if such shares of Common Stock would not be Excess Stock in the hands of such transferee. Prior to any transfer of any interest in the Trust, the Purported Record Transferee must give advance notice to the Corporation of the intended transfer and the Corporation must have waived in writing its purchase rights under subparagraph C(6) of this Article IV.

(b)       Notwithstanding the foregoing, if a Purported Beneficial Transferee receives a price for designating a Beneficiary of an interest in the Trust that exceeds the amounts allowable under subparagraph C(5)(a) of this Article IV, such Purported Beneficial Transferee shall pay, or cause such Beneficiary to pay, such excess to the Corporation.

6.           Purchase Right in Excess Stock. Shares of Excess Stock shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that created such Excess Stock (or, in the case of a devise or gift, the Market Price at the time of such devise or gift) and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer for a period of ninety days after the later of (i) the date of the Transfer which resulted in such Excess Shares and (ii) the date the Board of Directors determines in good faith that a Transfer resulted in Excess Shares has occurred, if the Corporation does not receive a notice of such Transfer pursuant to subparagraph B(4)(a) of this Article IV.

D.           Preferred Stock. The Board of Directors is hereby expressly vested with authority to provide for the issuance of the shares of Preferred Stock in one or more classes or one or more series, with such preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications, or terms or conditions of redemption, if any, as shall be stated and expressed in the resolution or resolutions providing for such shares adopted by the Board of Directors under the Maryland General Corporation Law. Except as otherwise provided by law, the holders of the Preferred Stock of the Corporation shall only have such voting rights as are provided for or expressed in the resolutions of the Board of Directors relating to such Preferred Stock adopted pursuant to the authority contained in the charter of the Corporation. 

E.            Extraordinary Actions. Notwithstanding any provision of law permitting or requiring any action to be taken or approved by the affirmative vote of stockholders entitled to cast a greater number of votes, any such action shall be effective and valid only if declared advisable by the Board of Directors and taken or approved by the affirmative vote of stockholders entitled to cast a majority of all the votes entitled to be cast on the matter.

ARTICLE V

The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. The Corporation shall have a board of eight (8) directors, unless the number is increased or decreased in accordance with the Bylaws of the Corporation. However, the number of directors shall never be less than the minimum number required by Maryland General Corporation Law. The directors are:

Milton Cooper 

David B. Henry 

Richard G. Dooley 

Philip E. Coviello 

Joe Grills 

F. Patrick Hughes 

Frank Lourenso 

Richard B. Saltzman

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the Bylaws of the Corporation.

ARTICLE VI

The election of directors of the Corporation need not be by written ballot unless the Bylaws of the Corporation shall so provide.

ARTICLE VII

The Board of Directors shall use its reasonable best efforts to cause the Corporation and the stockholders to qualify for federal income tax treatment in accordance with Sections 856 through 860 of the Code. In furtherance of the foregoing, the Board of Directors shall use its reasonable best efforts to take such actions as are necessary, and may take such actions as in its sole judgment and discretion are desirable, to preserve the status of the Corporation as a REIT; provided, however, that if the Board of Directors determines that it is no longer in the best interests of the Corporation for it to continue to qualify as a REIT, the Board of Directors may revoke or otherwise terminate the Corporation’s REIT election. 

ARTICLE VIII

To the maximum extent that Maryland law in effect from time to time permits limitation of the liability of directors and officers, no director or officer of the Corporation shall be liable to the Corporation or its stockholders for money damages. Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the charter or Bylaws inconsistent with this Article, shall apply to or affect in any respect the applicability of the preceding sentence with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.

ARTICLE IX

The Corporation shall have the power, to the maximum extent permitted by Maryland law in effect from time to time, to obligate itself to indemnify, and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (i) any individual who is a present or former director or officer of the Corporation or (ii) any individual who, while a director of the Corporation and at the request of the Corporation, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The Corporation shall have the power, with the approval of its Board of Directors, to provide such indemnification to a person who served a predecessor of the Corporation in any of the capacities described in (i) or (ii) above and to any employee or agent of the Corporation or a predecessor of the Corporation.

ARTICLE X

The Corporation reserves the right from time to time to make any amendment to its charter, now or hereafter authorized by law, including any amendment altering the terms or contract rights, as expressly set forth in this charter, of any outstanding shares of stock. All rights and powers conferred by the charter of the Corporation on stockholders, directors and officers are granted subject to this reservation.

ARTICLE XI

No holder of shares of stock of any class shall have any preemptive right to subscribe or to purchase any additional shares of any class, or any bonds or convertible securities of any nature; provided, however, that the Board of Directors may, in authorizing the issuance of shares of stock of any class or series, confer any preemptive right that the Board of Directors may deem advisable in connection with such issuance. 

ARTICLE XII

The Board of Directors may authorize the issuance from time to time of shares of its stock of any class or series whether now or hereafter authorized, or securities convertible into shares of its stock of any class or series, whether now or hereafter authorized, for such consideration as the Board of Directors may deem advisable, subject to such restrictions or limitations, if any, as may be set forth in the charter or Bylaws of the Corporation or in the general laws of the State of Maryland.

THIRD: The foregoing amendment to and restatement of the charter as hereinabove set forth have been duly advised by the Board of Directors and approved by the stockholders of the Corporation as required by law.

FOURTH: The current address of the principal office of the Corporation is set forth in Article II of the foregoing amendment and restatement of the charter.

FIFTH: The name and address of the Corporation’s current resident agent is as set forth in Article II of the foregoing amendment and restatement of the charter.

SIXTH: The number of directors of the Corporation and the names of those currently in office are as set forth in Article V of the foregoing amendment and restatement of the charter.

SEVENTH: The total number of shares of stock which the Corporation had authority to issue immediately prior to this amendment and restatement was 100,000 shares of Common Stock, $0.01 par value per share. The aggregate par value of all shares of stock having par value was $1,000.

EIGHTH: The total number of shares of stock which the Corporation has authority to issue pursuant to the foregoing amendment and restatement of the charter is one billion one hundred forty-one million one hundred thousand (1,141,100,000) shares, consisting of seven hundred fifty million (750,000,000) shares of Common Stock, $0.01 par value per share, three hundred eighty four million forty six thousand (384,046,000) shares of Excess Stock, $0.01 par value per share, seven million twelve thousand one hundred forty (7,012,140) shares of Preferred Stock, $1.00 par value per share, ten thousand three hundred fifty (10,350) shares of 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share, ten thousand three hundred fifty (10,350) shares of Class L Excess Preferred Stock, $1.00 par value per share, ten thousand five hundred eighty (10,580) shares of 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share, and ten thousand five hundred eighty (10,580) shares of Class M Excess Preferred Stock, $1.00 par value per share. The aggregate par value of all authorized shares having a par value is eighteen million three hundred ninety-four thousand four hundred sixty dollars ($18,394,460). 

NINTH: The undersigned Executive Vice President, Chief Financial Officer and Treasurer acknowledges these Articles of Amendment and Restatement to be the act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned Executive Vice President, Chief Financial Officer and Treasurer acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

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IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment and Restatement of the Corporation to be signed in its name and on its behalf by its Executive Vice President, Chief Financial Officer and Treasurer and attested to by its Assistant Secretary on this 27th day of December, 2022.

EXHBIT A 

CLASS L PREFERRED STOCK

In accordance with Article IV.D. of the charter of the Corporation (the “Charter”), 10,350 shares (the “Shares”) of Preferred Stock are classified as 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share (“Class L Preferred Stock”), and 10,350 shares (the “Class L Excess Shares”) of Preferred Stock are classified as Class L Excess Preferred Stock, $1.00 par value per share (“Class L Excess Preferred Stock”), each with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications, and terms and conditions of redemption set forth below:

5.125% Class L Cumulative Redeemable Preferred Stock

A.          Certain Definitions.

Unless the context otherwise requires, the terms defined in this paragraph (A) shall have, for all purposes of the provisions of the Charter in respect of the Preferred Equity Stock, the meanings herein specified (with terms defined in the singular having comparable meanings when used in the plural).

Aggregate Stock Ownership Limit. The term “Aggregate Stock Ownership Limit” shall mean not more than 9.8% of the value of the outstanding shares of Capital Stock of the Corporation.

Beneficial Ownership. The term “Beneficial Ownership” shall mean ownership of stock by a Person who is or would be treated as an owner of stock either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. In addition, “Beneficial Ownership” shall include ownership of Capital Stock by a Person who meets any one of its tests for beneficial ownership as set forth under Rule 13d-3 of the Securities Exchange Act of 1934, as amended. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings.

Beneficiary. The term “Beneficiary” shall mean the beneficiary of the Trust as determined pursuant to subparagraph (11)(d)(1) of paragraph (F) below.

Business Day. The term “Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.

Capital Gains Amount. The term “Capital Gains Amount” shall have the meaning set forth in subparagraph (7) of paragraph (B) below. 

Capital Stock. The term “Capital Stock” shall mean all classes of series of stock of the Corporation, including, without limitation, Common Equity, Class L Preferred Stock and Class M Preferred Stock.

Class M Preferred Stock. The term “Class M Preferred Stock” shall mean the 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Corporation.

Code. The term “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

Common Equity. The term “Common Equity” shall mean all shares now or hereafter authorized of any class of common stock of the Corporation, including the Common Stock, and any other stock of the Corporation, howsoever designated, authorized after the Initial Issue Date, which has the right (subject always to prior rights of any class or series of preferred stock) to participate in the distribution of the assets and earnings of the Corporation without limit as to per share amount.

Common Stock. The term “Common Stock” shall mean the common stock, $.01 par value per share, of the Corporation.

Constructive Ownership. The term “Constructive Ownership” shall mean ownership of Class L Preferred Stock or Class L Excess Preferred Stock by a Person who is or would be treated as an owner of such Class L Preferred Stock or Class L Excess Preferred Stock either directly or constructively through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.

Depositary Shares. The term “Depositary Shares” shall mean the Depositary Shares each representing a one-one thousandth (1/1000) fractional interest in a share of Class L Preferred Stock.

Dividends. The term “Dividends” shall have the meaning set forth in subparagraph (7) of paragraph (B) below.

Dividend Payment Date. The term “Dividend Payment Date” shall have the meaning set forth in subparagraph (2) of paragraph (B) below.

Dividend Period. The term “Dividend Period” with respect to a share of Class L Preferred Stock shall mean the period from, and including, January 15, 2023 to, but excluding, the first Dividend Payment Date and thereafter, each quarterly period from, and including, the Dividend Payment Date commencing such period to, but excluding, the succeeding Dividend Payment Date.

Individual. The term “Individual” shall mean an individual, trust qualified under Section 401(a) or 501(c)(17) of the Code, a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, or a private foundation within the meaning of Section 509(a) of the Code, provided that a trust described in Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code shall be excluded from this definition. 

Initial Issue Date. The term “Initial Issue Date” shall mean the date that shares of Class L Preferred Stock are first issued by the Corporation.

IRS. The term “IRS” means the United States Internal Revenue Service.

Junior Stock. The term “Junior Stock” shall mean, as the case may be, (i) the Common Equity and any other class or series of stock of the Corporation which is not entitled to receive any dividends in any Dividend Period unless all dividends required to have been paid or declared and set apart for payment on the Class L Preferred Stock shall have been so paid or declared and set apart for payment or (ii) the Common Equity and any other class or series of stock of the Corporation, which is not entitled to receive any assets upon liquidation, dissolution or winding up of the affairs of the Corporation until the Class L Preferred Stock shall have received the entire amount to which such Class L Preferred Stock is entitled upon such liquidation, dissolution or winding up.

Liquidation Preference. The term “Liquidation Preference” shall mean $25,000.00 per share of Class L Preferred Stock.

Market Price. The term “Market Price” shall mean the price of the Class L Preferred Stock (i) as determined by multiplying by one thousand the last reported sales price of the Depositary Shares reported on the NYSE on the trading day immediately preceding the relevant date or, (ii) if the Depositary Shares are not then traded on the NYSE, as determined by multiplying by one thousand the last reported sales price of the Depositary Shares on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over which the Depositary Shares may be traded or, (iii) if the Depositary Shares are not then traded over any exchange or quotation system, as determined in good faith by the Board of Directors.

Notice. The term “Notice” shall have the meaning set forth in subparagraph (4) of paragraph (D) below.

NYSE. The term “NYSE” shall mean New York Stock Exchange, Inc., including any successor thereto.

Ownership Limit. The term “Ownership Limit” shall mean not more than 9.8% of the outstanding shares of Preferred Equity Stock.

Parity Stock. The term “Parity Stock” shall mean, as the case may be, (i) any class or series of stock of the Corporation which is entitled to receive payment of dividends on a parity with the Class L Preferred Stock or (ii) any class or series of stock of the Corporation which is entitled to receive assets upon liquidation, dissolution or winding up of the affairs of the Corporation on a parity with the Class L Preferred Stock. The term “Parity Stock” shall include, without limitation, the Class M Preferred Stock. 

Person. The term “Person” shall mean an Individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity; but does not include an underwriter which participates in a public offering of the Class L Preferred Stock or any interest therein, provided that such ownership by such underwriter would not result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or otherwise result in the Corporation failing to qualify as a REIT.

Preferred Equity Stock. The term “Preferred Equity Stock” shall mean shares of stock that are either Class L Preferred Stock or Class L Excess Preferred Stock.

Purported Beneficial Transferee. The term “Purported Beneficial Transferee” shall mean, with respect to any purported Transfer or other event which results in Class L Excess Preferred Stock, the purported beneficial transferee or owner for whom the Purported Record Transferee would have acquired or owned shares of Class L Preferred Stock if such Transfer or ownership had been valid under subparagraph (1) of paragraph (F) below.

Purported Record Transferee. The term “Purported Record Transferee” shall mean, with respect to any purported Transfer or other event which results in Class L Excess Preferred Stock, the record holder of the Preferred Equity Stock if such Transfer or ownership had been valid under subparagraph (1) of paragraph (F) below.

Record Date. The term “Record Date” shall mean the date designated by the Board of Directors at the time a dividend is authorized as the date for determining stockholders entitled to payment of the dividend; provided, however, that such Record Date shall be the first day of the calendar month in which the applicable Dividend Payment Date falls or such other date designated by the Board of Directors that is not more than thirty (30) days nor less than ten (10) days prior to such Dividend Payment Date.

Redemption Date. The term “Redemption Date” shall have the meaning set forth in subparagraph (2) of paragraph (D) below.

Redemption Price. The term “Redemption Price” shall mean a price per share equal to $25,000.00 plus accrued and unpaid dividends thereon, if any, to, but excluding, the Redemption Date, and as adjusted in subparagraph (2) of paragraph (D) below.

REIT. The term “REIT” shall mean a real estate investment trust under Section 856 of the Code.

Senior Stock. The term “Senior Stock” shall mean, as the case may be, (i) any class or series of stock of the Corporation created after the Initial Issue Date in accordance with subparagraph (1) of paragraph (E) ranking senior to the Class L Preferred Stock in respect of the right to receive dividends or (ii) any class or series of stock of the Corporation created after the Initial Issue Date in accordance with subparagraph (1) of paragraph (E) ranking senior to the Class L Preferred Stock in respect of the right to participate in any distribution upon liquidation, dissolution or winding up of the affairs of the Corporation. 

Total Dividends. The term “Total Dividends” shall have the meaning set forth in subparagraph (7) of paragraph (B) below.

Transfer. The term “Transfer” shall mean any sale, transfer, gift, assignment, devise or other disposition of Preferred Equity Stock or Depositary Shares, including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Preferred Equity Stock or Depositary Shares or (ii) the sale, transfer, assignment or other disposition of any securities (or rights convertible into or exchangeable for Preferred Equity Stock or Depositary Shares), whether voluntary or involuntary, whether of record or Beneficially or Constructively (including but not limited to transfers of interests in other entities which result in changes in Beneficial or Constructive Ownership of Preferred Equity Stock or Depositary Shares), and whether by operation of law or otherwise.

Trust. The term “Trust” shall mean the trust created pursuant to subparagraph (11)(a) of paragraph (F).

Trustee. The term “Trustee” shall mean the Corporation as trustee for the Trust, and any successor trustee appointed by the Corporation. 

B.       Dividends.

1.       The record holders of Class L Preferred Stock shall be entitled to receive dividends, when, as and if authorized by the Board of Directors and declared by the Corporation, out of funds legally available for payment of dividends. Such dividends shall be payable by the Corporation in cash at the rate of 5.125% per annum of the Liquidation Preference.

2.       Dividends on each outstanding share of Class L Preferred Stock shall accrue as set and be cumulative from, and including, January 15, 2023. Dividends shall be payable quarterly in arrears when, as and if authorized by the Board of Directors and declared by the Corporation on January 15, April 15, July 15 and October 15 of each year, commencing on April 15, 2023 (each, a “Dividend Payment Date”). If any Dividend Payment Date occurs on a day that is not a Business Day, any accrued dividends otherwise payable on such Dividend Payment Date shall be paid on the next succeeding Business Day. The amount of dividends payable for each Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends shall be paid to the holders of record of the Class L Preferred Stock as their names shall appear on the stock transfer records of the Corporation at the close of business on the Record Date for such dividends. Dividends in respect of any past Dividend Periods that are in arrears may be declared and paid at any time to holders of record on the Record Date therefor. Any dividend payment made on shares of Class L Preferred Stock shall be first credited against the earliest accrued but unpaid dividend due with respect to the Class L Preferred Stock which remains payable.

3.       If any shares of Class L Preferred Stock are outstanding, no full dividends shall be declared or paid or set apart for payment on any Parity Stock or Junior Stock for any period unless full cumulative dividends have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the dividends on the Parity Stock or Junior Stock are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class L Preferred Stock for all past Dividend Periods. When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class L Preferred Stock and any Parity Stock, all dividends declared upon the shares of the Class L Preferred Stock and any such Parity Stock shall be declared pro rata so that the amount of dividends declared per share on the Class L Preferred Stock and all other such Parity Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of the Class L Preferred Stock and all other such Parity Stock bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Class L Preferred Stock which may be in arrears.

4.       Except as provided in subparagraph (3) of this paragraph (B), unless full cumulative dividends on the Class L Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods, no dividends (other than in the form of Common Stock or other Junior Stock) shall be declared or paid or set apart for payment or other distribution shall be declared or made upon any Junior Stock or Parity Stock or any excess stock nor shall any Junior Stock or Parity Stock or any excess stock be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Stock or Parity Stock or any excess stock) by the Corporation (except by conversion into or exchange for Junior Stock). 

5.       Notwithstanding anything contained herein to the contrary, no dividends on shares of Class L Preferred Stock shall be authorized by the Board of Directors or declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibits such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or to the extent such declaration or payment shall be restricted or prohibited by law.

6.       Notwithstanding anything contained herein to the contrary, dividends on the Class L Preferred Stock will accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of the dividends and whether or not the dividends are authorized or declared. Accrued but unpaid dividends on the Class L Preferred Stock will not bear interest.

7.       If, for any taxable year, the Corporation elects to designate as “capital gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) (the “Dividends”) paid or made available for the year to holders of all classes of stock (the “Total Dividends”) then, except as required by law, the portion of the Capital Gains Amount that shall be allocable to holders of the Class L Preferred Stock shall be the amount that the aggregate Dividends paid or made available to the holders of the Class L Preferred Stock for the year bears to the Total Dividends.

C.      Distributions Upon Liquidation, Dissolution or Winding Up.

1.       Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, subject to the prior preferences and other rights of any Senior Stock as to the distribution of assets upon liquidation, dissolution or winding up of the affairs of the Corporation, but before any distribution or payment shall be made to the holders of any Junior Stock or any excess stock, the holders of Class L Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its stockholders liquidating distributions in cash or property at its fair market value as determined by the Board of Directors in the amount of the Liquidation Preference plus an amount equal to all accrued and unpaid dividends to, but excluding, the date of such liquidation, dissolution or winding up. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Class L Preferred Stock will have no right or claim to any of the remaining assets of the Corporation and shall not be entitled to any other distribution in the event of liquidation, dissolution or winding up of the affairs of the Corporation. 

2.       In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the legally available assets of the Corporation are insufficient to pay the amount of the Liquidation Preference plus an amount equal to all accrued and unpaid dividends on the Class L Preferred Stock and the corresponding amounts payable on Parity Stock upon any such liquidation, dissolution or winding up, then the holders of the Class L Preferred Stock and the holders of such Parity Stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they otherwise would be respectively entitled. Neither the consolidation or merger of the Corporation into or with another entity or entities nor the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation to another corporation or any other entity, individually or as part of a series of transactions, shall be deemed a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of this paragraph (C).

D.     Redemption by the Corporation.

1.       The Class L Preferred Stock may be redeemed for cash, in whole or from time to time in part, on any date on or after the Initial Issue Date at the option of the Corporation at the Redemption Price.

2.       Each date fixed for redemption pursuant to subparagraph (1) of this paragraph (D) is called a “Redemption Date.” If the Redemption Date is after the Record Date and before the related Dividend Payment Date, the dividend payable on such Dividend Payment Date shall be paid to the holder in whose name the Class L Preferred Stock to be redeemed is registered at the close of business on such Record Date notwithstanding the redemption thereof between such Record Date and the related Dividend Payment Date or the Corporation’s default in the payment of the dividend due, and the Redemption Price shall not include the amount of such dividend payable on such Dividend Payment Date.

3.       In case of redemption of less than all shares of Class L Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation pro rata from the holders of record of such shares in proportion to the number of shares held by such holders (with adjustments to avoid redemption of fractional shares) or by any other equitable method prescribed by the Board of Directors that will not result in the issuance of any Class L Excess Preferred Stock.

4.       In order to exercise its redemption option, the Corporation shall give written notice (“Notice”) of such redemption to each holder of record of the shares of Class L Preferred Stock to be redeemed not less than 30 days or more than 60 days prior to the Redemption Date. The Notice will be mailed by the Corporation, postage prepaid, addressed to the respective holders of record of the Class L Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. The notice of redemption may be contingent on the occurrence of a future event. No failure to give such Notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any shares of Class L Preferred Stock, except as to any holder to whom the Corporation has failed to give Notice or except as to any holder to whom Notice was defective. In addition to any information required by law or by the applicable rules of any exchange upon which Class L Preferred Stock may be listed or admitted to trading, such Notice shall state: (i) the Redemption Date; (ii) the Redemption Price; (iii) the number of shares of Class L Preferred Stock to be redeemed and, if less than all shares held by the particular holder are to be redeemed, the number of such shares to be redeemed from such holder; (iv) the place or places where certificates for such shares are to be surrendered for payment of the Redemption Price; and (v) that dividends on the shares to be redeemed will cease to accrue on the Redemption Date. 

5.       Notice having been mailed in accordance with subparagraph (4) of this paragraph (D), from and after the Redemption Date (unless the Corporation shall fail to make available an amount of cash necessary to pay the Redemption Price), (i) except as otherwise provided herein, dividends on the shares of Class L Preferred Stock so called for redemption shall cease to accrue, (ii) said shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Class L Preferred Stock of the Corporation shall cease (except the rights to receive the Redemption Price in cash). The Corporation’s obligation to provide cash in accordance with the preceding sentence shall be deemed fulfilled if, on or before the Redemption Date, the Corporation shall deposit with a bank or trust company (which may be an affiliate of the Corporation), cash necessary for such redemption, in trust, with irrevocable instructions that such cash be applied to the redemption of the shares of Class L Preferred Stock so called for redemption. In this case, the Corporation’s Notice shall (i) specify the office of such bank or trust company as the place of payment of the Redemption Price and (ii) call upon respective holders of record of the Class L Preferred Stock to surrender certificates for such shares, on the Redemption Date fixed in the Notice, for payment of the Redemption Price. No interest shall accrue for the benefit of any holder of shares of Class L Preferred Stock to be redeemed on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of two years from the Redemption Date shall revert to the general funds of the Corporation, after which reversion, the holders of such shares so called for redemption shall look only to the general funds of the Corporation for the payment of such cash.

6.       As promptly as practicable after the surrender of the certificates for any such shares of Class L Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and if the Notice shall so state) in accordance with said Notice, the Corporation (or the related bank or trust company, if applicable) shall pay to the applicable holders the Redemption Price in cash (without interest thereon). In the event of the redemption of less than all shares of Class L Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation pro rata from the holders of record of such shares in proportion to the number of shares held by such holders (with adjustments to avoid redemption of fractional shares) or by any other equitable method determined by the Board of Directors that will not result in the issuance of any Class L Excess Preferred Stock. If fewer than all the shares of Class L Preferred Stock represented by any certificate are redeemed, then new certificates representing the unredeemed shares of Class L Preferred Stock shall be issued without cost to the holder thereof.

7.       Unless full cumulative dividends on all outstanding shares of Class L Preferred Stock shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods, (i) no shares of any Class L Preferred Stock shall be redeemed, unless all outstanding shares of Class L Preferred Stock are simultaneously redeemed and (ii) the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Class L Preferred Stock (except by conversion into or exchange for Junior Stock); provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of Class L Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Class L Preferred Stock. 

8.       All shares of Class L Preferred Stock redeemed pursuant to this paragraph (D) shall be retired and shall be reclassified as authorized and unissued shares of Preferred Stock, without designation as to class or series, and may thereafter be reissued as shares of any class or series of Preferred Stock.

E.      Voting Rights.

1.       The holders of record of shares of Class L Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this paragraph (E) or as required by applicable law. So long as any shares of Class L Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds (2/3) of the shares of the Class L Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (such Class L Preferred Stock voting separately as a class): (i) authorize or create, or increase the authorized or issued amount of, any class or series of Senior Stock, or reclassify any authorized stock into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any Senior Stock; or (ii) amend, alter or repeal the provisions of the Charter, whether by merger, consolidation or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Class L Preferred Stock; except that (1) with respect to the occurrence of any of the events described in (ii) above, so long as the Class L Preferred Stock remains outstanding with the terms of the Class L Preferred Stock materially unchanged or is converted into a security in another entity with the terms materially unchanged, the occurrence of such event will not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of the Class L Preferred Stock and (2) (A) any increase in the amount of the authorized shares of Class L Preferred Stock or the authorization or issuance of any Parity Stock or Junior Stock or (B) any increase in the number of authorized shares of Class L Preferred Stock or Parity Stock or Junior Stock shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers.

2.       If and whenever dividends payable on Class L Preferred Stock shall be in arrears for six (6) or more Dividend Periods, whether or not consecutive, then the holders of Class L Preferred Stock (voting together as a class with Parity Stock upon which like voting rights have been conferred and are exercisable as provided in subparagraph (5) of this paragraph (E)) shall be entitled at the next annual meeting of the stockholders or at any special meeting of stockholders called for the purpose of electing directors to elect two (2) additional directors. Upon election, such directors shall become directors of the Corporation and the authorized number of directors of the Corporation shall thereupon be automatically increased by two.

3.       Whenever the voting right described in subparagraph (2) of this paragraph (E) shall have vested, such right may be exercised initially either at a special meeting of the holders of Class L Preferred Stock and any Parity Stock entitled to vote as provided in subparagraph (5) of this paragraph (E), called as hereinafter provided, or at any annual meeting of stockholders held for the purpose of electing directors and, thereafter, at such annual meetings or by the written consent of the holders of Class L Preferred Stock and any such Parity Stock. Such right of the holders of Class L Preferred Stock to elect directors together with the holders of any such Parity Stock may be exercised until all dividends to which the holders of Class L Preferred Stock shall have been entitled for (i) all previous Dividend Periods and (ii) the current Dividend Period shall have been paid in full, at which time the right of the holders of Class L Preferred Stock to elect directors together with holders of any such Parity Stock shall cease, the term of such directors previously elected shall thereupon terminate, and the authorized number of directors of the Corporation shall thereupon return to the number of authorized directors otherwise in effect, but subject always to the same provisions for the renewal and divestment of such special voting rights in the case of any such future dividend default or defaults. 

4.       At any time when the voting right described in subparagraph (2) of this paragraph (E) shall have vested in the holders of Class L Preferred Stock and if such right shall not already have been initially exercised, a proper officer of the Corporation shall, upon the written request of any holder of record of Class L Preferred Stock then outstanding, addressed to the Secretary of the Corporation, call a special meeting of holders of Class L Preferred Stock together with the holders of any Parity Stock entitled to vote as provided in subparagraph (5) of this paragraph (E). Such meeting shall be held on the earliest practicable date upon the notice required for annual meetings of stockholders at the place for holding annual meetings of stockholders of the Corporation or, if none, at a place designated by the Secretary of the Corporation. If such meeting shall not be called by a proper officer of the Corporation within thirty (30) days after the personal service of such written request upon the Secretary of the Corporation, or within thirty (30) days after mailing the same within the United States, by registered mail, addressed to the Secretary of the Corporation at its principal office (such mailing to be evidenced by the registry receipt issued by the postal authorities), then the holders of record of ten percent (10%) of the shares of Class L Preferred Stock then outstanding may designate in writing a holder of Class L Preferred Stock to call such meeting at the expense of the Corporation, and such meeting may be called by such person so designated upon the notice required for annual meetings of stockholders and shall be held at the place for holding annual meetings of the Corporation or, if none, at a place designated by such holder. Any holder of Class L Preferred Stock that would be entitled to vote at such meeting shall have access to the stock transfer records of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to the provisions of this paragraph (E). Notwithstanding the provisions of this paragraph (E), however, no such special meeting shall be called if any such request is received less than ninety (90) days before the date fixed for the next ensuing annual or special meeting of stockholders.

5.       If, at any time when the holders of Class L Preferred Stock are entitled to elect directors pursuant to the foregoing provisions of this paragraph (E), the holders of any one or more classes or series of Parity Stock are entitled to elect one or more directors by reason of any default or event specified in the Charter, as in effect at the time, and if the terms for such classes or series of Parity Stock so provide, then the voting rights of the Class L Preferred Stock and the one or more classes or series of Parity Stock then entitled to vote shall be combined (with each having a number of votes proportional to the aggregate liquidation preference of its outstanding shares). In such case, the holders of Class L Preferred Stock and of all such classes or series of Parity Stock then entitled to so vote, voting together as a class, shall elect such directors. If the holders of any such classes or series of Parity Stock have elected such directors prior to the happening of the default or event providing for the election of directors by the holders of Class L Preferred Stock, or prior to a written request for the holding of a special meeting being received by the Secretary of the Corporation as elsewhere required in subparagraph (4) of paragraph (E) above, then a new election shall be held with all such classes or series of Parity Stock and the Class L Preferred Stock voting together as a single class for such director(s), resulting in the termination of the term of such previously elected director(s) upon the election of such new director(s). If the holders of any such classes or series of Parity Stock are entitled to elect two directors, the Class L Preferred Stock shall not participate in the election of more than two such directors, and such directors whose terms first expire shall be deemed to be the directors elected by the holders of Class L Preferred Stock; provided, that if at the expiration of such terms the holders of Class L Preferred Stock are entitled to vote in the election of directors pursuant to the provisions of this paragraph (E), then the Secretary of the Corporation shall call a meeting (which meeting may be the annual meeting or a special meeting of stockholders referred to in subparagraph (3) of this paragraph (E)) of holders of Class L Preferred Stock for the purpose of electing replacement directors (in accordance with the provisions of this paragraph (E)) to be held at or prior to the time of expiration of the expiring terms referred to above. 

6.       If and for so long as the shares of Class L Preferred Stock are represented by Depositary Shares in accordance with paragraph (J) hereof, then in any matter in which the Class L Preferred Stock is entitled to vote (as expressly provided herein), including any action by written consent, each share of Class L Preferred Stock shall be entitled to one thousand (1000) votes, each of which one thousand (1000) votes may be directed separately by the holder thereof (or by any proxy or proxies of such holder). With respect to each share of Class L Preferred Stock, the holder thereof may designate up to one thousand (1000) proxies, with each such proxy having the right to vote a whole number of votes (totaling one thousand (1000) votes per share of Class L Preferred Stock).

7.       Notwithstanding anything contained herein to the contrary, the foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which the vote would otherwise be required shall be effected, all outstanding shares of Class L Preferred Stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect the redemption.

F.       Restrictions on Ownership to Preserve Tax Benefit; Conversion of Class L Excess Preferred Stock; and Terms of Class L Excess Preferred Stock.

1.       Restriction on Ownership and Transfer.

a.       Except as provided in subparagraph (8) of this paragraph (F), no Person shall Beneficially Own or Constructively Own Class L Preferred Stock in excess of the Ownership Limit;

b.       Except as provided in subparagraph (8) of this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) that, if effective, would result in any Person Beneficially Owning Class L Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Class L Preferred Stock which would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Class L Preferred Stock; 

c.       Except as provided in subparagraph (8) of this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) that, if effective, would result in any Person Constructively Owning Class L Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Class L Preferred Stock which would be otherwise Constructively Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Class L Preferred Stock; and

d.       Notwithstanding any other provisions contained in this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) or other event that, if effective, would result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or would otherwise result in the Corporation failing to qualify as a REIT (including, but not limited to, a Transfer or other event that would result in the Corporation owning (directly or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code) shall be void ab initio as to the Transfer of the Class L Preferred Stock or other event which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code or would otherwise result in the Corporation failing to qualify as a REIT; and the intended transferee or owner or Constructive or Beneficial Owner shall acquire or retain no rights in such Class L Preferred Stock.

2.       Conversion into Class L Excess Preferred Stock. If, notwithstanding the other provisions contained in this paragraph (F), at any time after the Initial Issue Date, there is a purported Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE), change in the capital structure of the Corporation or other event such that one or more of the restrictions on ownership and transfer described in subparagraph (1) of this paragraph (F), above have been violated, then the Class L Preferred Stock being Transferred (or in the case of an event other than a Transfer, the Class L Preferred Stock owned or Constructively Owned or Beneficially Owned or, if the next sentence applies, the Class L Preferred Stock identified in the next sentence) which would cause one or more of the restrictions on ownership or transfer to be violated (rounded up to the nearest whole share) shall be automatically converted into an equal number of shares of Class L Excess Preferred Stock. If at any time of such purported Transfer any of the shares of the Class L Preferred Stock are then owned by a depositary to permit the trading of beneficial interests in fractional shares of Class L Preferred Stock, then shares of Class L Preferred Stock that shall be converted to Class L Excess Preferred Stock shall be first taken from any Class L Preferred Stock that is not in such depositary that is Beneficially Owned or Constructively Owned by the Person whose Beneficial Ownership or Constructive Ownership would otherwise violate the restrictions of subparagraph (1) of this paragraph (F) prior to converting any shares in such depositary. Any conversion pursuant to this subparagraph shall be effective as of the close of business on the Business Day prior to the date of such Transfer or other event. 

3.       Remedies for Breach. If the Board of Directors or its designees shall at any time determine in good faith that a Transfer or other event has taken place in violation of subparagraph (1) of this paragraph (F) or that a Person intends to acquire, has attempted to acquire or may acquire direct ownership, beneficial ownership (determined without reference to any rules of attribution), Beneficial Ownership or Constructive Ownership of any shares of the Corporation in violation of subparagraph (1) of this paragraph (F), the Board of Directors or its designees shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including, but not limited to, causing the Corporation to purchase such shares upon the terms and conditions specified by the Board of Directors in its sole discretion, refusing to give effect to such Transfer or other event on the books of the Corporation or instituting proceedings to enjoin such Transfer or other event; provided, however, that any Transfer (or, in the case of events other than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in violation of subparagraph (1) of this paragraph (F) shall automatically result in the conversion described in subparagraph (2), irrespective of any action (or non-action) by the Board of Directors.

4.       Notice of Restricted Transfer. Any Person who acquires or attempts to acquire Class L Preferred Stock or other securities in violation of subparagraph (1) of this paragraph (F), or any Person who owns or will own Class L Excess Preferred Stock as a result of an event under subparagraph (2) of this paragraph (F), shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer or attempted Transfer or other event on the Corporation’s status as a REIT.

5.       Owners Required to Provide Information. From and after the Initial Issue Date, each Person who is a beneficial owner or Beneficial Owner or Constructive Owner of Class L Preferred Stock and each Person (including the stockholder of record) who is holding Class L Preferred Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT.

6.       Remedies Not Limited. Nothing contained in this paragraph (F) (but subject to subparagraph (12) of this paragraph (F)) shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.

7.       Ambiguity. In the case of an ambiguity in the application of any of the provisions of this paragraph (F), including any definition contained in paragraph (A), the Board of Directors shall have the power to determine the application of the provisions of this paragraph (F) with respect to any situation based on the facts known to it (subject, however, to the provisions of paragraph (12) of this paragraph (F)).

8.       Exceptions.

a.       Subject to subparagraph (1)(d) of this paragraph (F), the Board of Directors, in its sole discretion, with the advice of the Corporation’s tax counsel, may exempt (prospectively or retroactively) a Person from the limitation on a Person Beneficially Owning shares of Class L Preferred Stock in violation of subparagraphs (1)(a) or (1)(b) of this paragraph (F) if the Board of Directors determines that such exemption will not cause any Individual’s Beneficial Ownership of shares of Capital Stock to violate the Aggregate Stock Ownership Limit and that such exemption will not cause the Corporation to fail to qualify as a REIT under the Code. 

b.       Subject to subparagraph (1)(d) of this paragraph (F), the Board of Directors, in its sole discretion, with advice of the Corporation’s tax counsel, may exempt (prospectively or retroactively) a Person from the limitation on a Person Constructively Owning Class L Preferred Stock in violation of subparagraphs (1)(a) or (1)(c) of this paragraph (F) if the Board of Directors determines that such ownership would not cause the Corporation to fail to qualify as a REIT under the Code.

c.       Prior to granting any exception pursuant to subparagraph (8)(a) or (8)(b) of this paragraph (F), the Board of Directors may (i) require such Person to make certain representations or undertakings or to agree that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in this paragraph F) will result in such Class L Preferred Stock being converted to Excess Class L Preferred Stock and transferred to a Trust in accordance with subparagraphs (2) and (11) of this paragraph (F) and/or (ii) require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors, in its sole discretion as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT; provided, however, that obtaining such representations or undertakings, or a favorable ruling or opinion, shall not be required for the Board of Directors to grant an exception hereunder.

9.       Legend. Each certificate for Class L Preferred Stock shall bear substantially the following legend:

“The Corporation will furnish to any stockholder, on request and without charge, a full statement of the information required by Section 2-211(b) of the Corporations and Associations Article of the Annotated Code of Maryland with respect to the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemptions of the stock of each class which the Corporation has authority to issue and, if the Corporation is authorized to issue any preferred or special class in series, (i) the differences in the relative rights and preferences between the shares of each series to the extent set, and (ii) the authority of the Board of Directors to set such rights and preferences of subsequent series. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the charter of the Corporation (the “Charter”), a copy of which will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office.”

“The securities represented by this certificate are subject to restrictions on ownership for the purpose of the Corporation’s maintenance of its status as a real estate investment trust under the Internal Revenue Code of 1986, as amended. Except as otherwise provided pursuant to the Charter of the Corporation, no Person may Beneficially Own or Constructively Own shares of Class L Preferred Stock in excess of 9.8% of the outstanding shares of Preferred Equity Stock. Any Person who attempts to Beneficially Own or Constructively Own shares of Class L Preferred Stock in excess of the above limitation must immediately notify the Corporation. All capitalized terms in this legend have the meanings defined in the Charter of the Corporation, a copy of which, including the restrictions on transfer, will be sent to any stockholder on request and without charge. Transfers in violation of the restrictions described above shall be void ab initio. Notwithstanding the foregoing, if the restrictions on ownership and transfer are violated, the securities represented hereby will be designated and treated as shares of Class L Excess Preferred Stock which will be held in trust by the Corporation. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the Charter, a copy of which, including the restrictions on transfer, will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office.” 

10.     Severability. If any provision of this paragraph (F) or any application of any such provision is determined to be invalid by any federal or state court having jurisdiction, the validity of the remaining provisions shall not be affected and other applications of such provision shall be affected only to the extent necessary to comply with the determination of such court.

11.     Class L Excess Preferred Stock.

a.       Ownership in Trust. Upon any purported Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) or other event that results in the issuance of Class L Excess Preferred Stock pursuant to subparagraph (2) of this paragraph (F), such Class L Excess Preferred Stock shall be deemed to have been transferred to the Corporation, as Trustee of a Trust for the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in such Class L Excess Preferred Stock may later be transferred pursuant to subparagraph (11)(d) of this paragraph (F). Class L Excess Preferred Stock so held in trust shall be issued and outstanding shares of stock of the Corporation. The Purported Record Transferee shall have no rights in such Class L Excess Preferred Stock except the right to designate a transferee of such Class L Excess Preferred Stock upon the terms specified in subparagraph (11)(d) of this paragraph (F). The Purported Beneficial Transferee shall have no rights in such Class L Excess Preferred Stock except as provided in subparagraph (11)(d) of this paragraph (F).

b.       Dividend Rights. Class L Excess Preferred Stock shall not be entitled to any dividends or other distribution (except as provided in subparagraph (11)(c) of this paragraph (F)). Any dividend or distribution paid prior to the discovery by the Corporation that shares of Class L Preferred Stock have been converted into Class L Excess Preferred Stock shall be repaid to the Corporation upon demand.

c.       Rights Upon Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of Class L Excess Preferred Stock shall be entitled to receive, ratably with each other holder of shares of Preferred Equity Stock, that portion of the assets of the Corporation available for distribution to the holders of shares of Preferred Equity Stock as the number of shares of Class L Excess Preferred Stock held by such holder bears to the total number of shares of Preferred Equity Stock then outstanding. The Corporation, as holder of the Class L Excess Preferred Stock in trust, or if the Corporation shall have been dissolved, any trustee appointed by the Corporation prior to its dissolution, shall distribute ratably to the Beneficiaries of the Trust, when and if determined in accordance with subparagraph (11)(d) of this paragraph (F), any such assets received in respect of the Class L Excess Preferred Stock in any liquidation, dissolution or winding up of, or any distribution of, the assets of the Corporation. 

d.       Restrictions on Transfer; Designation of Beneficiary.

(1)           Shares of Class L Excess Preferred Stock shall not be transferable. Subject to the last sentence of this clause (1), the Purported Record Transferee may freely designate a Beneficiary of an interest in the Trust (representing the number of shares of Class L Excess Preferred Stock held by the Trust attributable to a purported Transfer that resulted in the issuance of Class L Excess Preferred Stock), if (i) the Class L Excess Preferred Stock held in the Trust would not be Class L Excess Preferred Stock in the hands of such Beneficiary and (ii) the Purported Beneficial Transferee does not receive a price from such Beneficiary that reflects a price per share for such Class L Excess Preferred Stock that exceeds (x) the price per share such Purported Beneficial Transferee paid for the Class L Preferred Stock in the purported Transfer that resulted in the issuance of Class L Excess Preferred Stock, or (y) if the Transfer or other event that resulted in the issuance of Class L Excess Preferred Stock was not a transaction in which the Purported Beneficial Transferee gave full value for such Class L Excess Preferred Stock, a price per share equal to the Market Price on the date of the purported Transfer or other event that resulted in the issuance of Class L Excess Preferred Stock. Upon such transfer of an interest in the Trust, the corresponding shares of Class L Excess Preferred Stock in the Trust shall be automatically exchanged for an equal number of shares of Class L Preferred Stock and such Class L Preferred Stock shall be transferred of record to the transferee of the interest in the Trust if such Class L Preferred Stock would not be Class L Excess Preferred Stock in the hands of such transferee. Prior to any transfer of any interest in the Trust, the Purported Record Transferee must give advance notice to the Corporation of the intended transfer and the Corporation must have waived in writing its purchase rights under subparagraph (11)(f) of this paragraph (F).

(2)           Notwithstanding the foregoing, if a Purported Beneficial Transferee receives a price for designating a Beneficiary of an interest in the Trust that exceeds the amounts allowable under subparagraph (11)(d)(1) of this paragraph (F), such Purported Beneficial Transferee shall pay, or cause such Beneficiary to pay, such excess to the Corporation.

e.       Voting and Notice Rights. The holders of shares of Class L Excess Preferred Stock shall have no voting rights and shall have no rights to receive notice of any meetings. The holders of shares of Class L Excess Preferred Stock shall not be considered for purpose of determining a quorum.

f.       Purchase Rights in Class L Excess Preferred Stock. Notwithstanding the provisions of subparagraph (11)(d) of this paragraph (F), shares of Class L Excess Preferred Stock shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that required the issuance of such Class L Excess Preferred Stock (or, if the Transfer or other event that resulted in the issuance of Class L Excess Preferred Stock was not a transaction in which the Purported Beneficial Transferee gave full value for such Class L Excess Preferred Stock, a price per share equal to the Market Price on the date of the purported Transfer or other event that resulted in the issuance of Class L Excess Preferred Stock) and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer for a period of ninety (90) days after the later of (i) the date of the Transfer or other event which resulted in the issuance of such shares of Class L Excess Preferred Stock and (ii) the date the Board of Directors determines in good faith that a Transfer or other event resulting in the issuance of shares of Class L Excess Preferred Stock has occurred, if the Corporation does not receive a notice of such Transfer or other event pursuant to subparagraph (4) of this paragraph (F). The Corporation may appoint a special trustee of the Trust for the purpose of consummating the purchase of Class L Excess Preferred Stock by the Corporation. In the event that the Corporation’s actions cause a reduction in the number of shares of Class L Preferred Stock outstanding and such reduction results in the issuance of Class L Excess Preferred Stock, the Corporation is required to exercise its option to repurchase such shares of Class L Excess Preferred Stock if the Beneficial Owner notifies the Corporation that it is unable to sell its rights to such Class L Excess Preferred Stock. 

12.      Settlement. Nothing in this paragraph (F) shall preclude the settlement of any transaction entered into through facilities of the NYSE.

G.       Exclusion of Other Rights.

Without prejudice to any contractual obligations existing from time to time between the holders of the Class L Preferred Stock and the Corporation, the shares of Class L Preferred Stock shall not have any rights granted to or imposed thereupon, including as to dividends, preferences, conversion rights or voting rights, other than those specifically set forth in the Charter (including these Articles Supplementary), nor shall the shares of Class L Preferred Stock have preemptive or subscription rights. The Class L Preferred Stock has no stated maturity and is not subject to any sinking fund or mandatory redemption.

H.       Headings of Subdivisions.

The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

I.        Severability of Provisions.

If any preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class L Preferred Stock set forth in the Charter are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class L Preferred Stock set forth in the Charter which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect, and no preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class L Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein. 

J.       Registration as Depositary Shares.

Shares of Class L Preferred Stock shall be registered in the form of Depositary Shares representing a one-one thousandth fractional interest in a share of Class L Preferred Stock (“Depositary Shares”) on, and subject to, such terms and conditions as may be provided for in any agreement binding upon the Corporation (whether directly or through merger with any other corporation). 

EXHIBIT B 

CLASS M PREFERRED STOCK

In accordance with Article IV.D. of the charter of the Corporation (the “Charter”), 10,580 shares (the “Shares”) of Preferred Stock are classified as 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share (“Class M Preferred Stock”), and 10,580 shares (the “Class M Excess Shares”) of Preferred Stock are classified as Class M Excess Preferred Stock, $1.00 par value per share (“Class M Excess Preferred Stock”), each with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications, and terms and conditions of redemption set forth below:

5.25% Class M Cumulative Redeemable Preferred Stock

A.          Certain Definitions.

Unless the context otherwise requires, the terms defined in this paragraph (A) shall have, for all purposes of the provisions of the Charter in respect of the Preferred Equity Stock, the meanings herein specified (with terms defined in the singular having comparable meanings when used in the plural).

Aggregate Stock Ownership Limit. The term “Aggregate Stock Ownership Limit” shall mean not more than 9.8% of the value of the outstanding shares of Capital Stock of the Corporation.

Beneficial Ownership. The term “Beneficial Ownership” shall mean ownership of stock by a Person who is or would be treated as an owner of stock either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. In addition, “Beneficial Ownership” shall include ownership of Capital Stock by a Person who meets any one of its tests for beneficial ownership as set forth under Rule 13d-3 of the Securities Exchange Act of 1934, as amended. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings.

Beneficiary. The term “Beneficiary” shall mean the beneficiary of the Trust as determined pursuant to subparagraph (11)(d)(1) of paragraph (F) below.

Business Day. The term “Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.

Capital Gains Amount. The term “Capital Gains Amount” shall have the meaning set forth in subparagraph (7) of paragraph (B) below. 

Capital Stock. The term “Capital Stock” shall mean all classes of series of stock of the Corporation, including, without limitation, Common Equity, Class L Preferred Stock and Class M Preferred Stock.

Class L Preferred Stock. The term “Class L Preferred Stock” shall mean the 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Corporation.

Code. The term “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

Common Equity. The term “Common Equity” shall mean all shares now or hereafter authorized of any class of common stock of the Corporation, including the Common Stock, and any other stock of the Corporation, howsoever designated, authorized after the Initial Issue Date, which has the right (subject always to prior rights of any class or series of preferred stock) to participate in the distribution of the assets and earnings of the Corporation without limit as to per share amount.

Common Stock. The term “Common Stock” shall mean the common stock, $.01 par value per share, of the Corporation.

Constructive Ownership. The term “Constructive Ownership” shall mean ownership of Class M Preferred Stock or Class M Excess Preferred Stock by a Person who is or would be treated as an owner of such Class M Preferred Stock or Class M Excess Preferred Stock either directly or constructively through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.

Depositary Shares. The term “Depositary Shares” shall mean the Depositary Shares each representing a one-one thousandth (1/1000) fractional interest in a share of Class M Preferred Stock.

Dividends. The term “Dividends” shall have the meaning set forth in subparagraph (7) of paragraph (B) below.

Dividend Payment Date. The term “Dividend Payment Date” shall have the meaning set forth in subparagraph (2) of paragraph (B) below.

Dividend Period. The term “Dividend Period” with respect to a share of Class M Preferred Stock shall mean the period from, and including, January 15, 2023 to, but excluding, the first Dividend Payment Date and thereafter, each quarterly period from, and including, the Dividend Payment Date commencing such period to, but excluding, the succeeding Dividend Payment Date.

Individual. The term “Individual” shall mean an individual, trust qualified under Section 401(a) or 501(c)(17) of the Code, a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, or a private foundation within the meaning of Section 509(a) of the Code, provided that a trust described in Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code shall be excluded from this definition. 

Initial Issue Date. The term “Initial Issue Date” shall mean the date that shares of Class M Preferred Stock are first issued by the Corporation.

IRS. The term “IRS” means the United States Internal Revenue Service.

Junior Stock. The term “Junior Stock” shall mean, as the case may be, (i) the Common Equity and any other class or series of stock of the Corporation which is not entitled to receive any dividends in any Dividend Period unless all dividends required to have been paid or declared and set apart for payment on the Class M Preferred Stock shall have been so paid or declared and set apart for payment or (ii) the Common Equity and any other class or series of stock of the Corporation, which is not entitled to receive any assets upon liquidation, dissolution or winding up of the affairs of the Corporation until the Class M Preferred Stock shall have received the entire amount to which such Class M Preferred Stock is entitled upon such liquidation, dissolution or winding up.

Liquidation Preference. The term “Liquidation Preference” shall mean $25,000.00 per share of Class M Preferred Stock.

Market Price. The term “Market Price” shall mean the price of the Class M Preferred Stock (i) as determined by multiplying by one thousand the last reported sales price of the Depositary Shares reported on the NYSE on the trading day immediately preceding the relevant date or, (ii) if the Depositary Shares are not then traded on the NYSE, as determined by multiplying by one thousand the last reported sales price of the Depositary Shares on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over which the Depositary Shares may be traded or, (iii) if the Depositary Shares are not then traded over any exchange or quotation system, as determined in good faith by the Board of Directors.

Notice. The term “Notice” shall have the meaning set forth in subparagraph (4) of paragraph (D) below.

NYSE. The term “NYSE” shall mean New York Stock Exchange, Inc., including any successor thereto.

Ownership Limit. The term “Ownership Limit” shall mean not more than 9.8% of the outstanding shares of Preferred Equity Stock.

Parity Stock. The term “Parity Stock” shall mean, as the case may be, (i) any class or series of stock of the Corporation which is entitled to receive payment of dividends on a parity with the Class M Preferred Stock or (ii) any class or series of stock of the Corporation which is entitled to receive assets upon liquidation, dissolution or winding up of the affairs of the Corporation on a parity with the Class M Preferred Stock. The term “Parity Stock” shall include, without limitation, the Class L Preferred Stock. 

Person. The term “Person” shall mean an Individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity; but does not include an underwriter which participates in a public offering of the Class M Preferred Stock or any interest therein, provided that such ownership by such underwriter would not result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or otherwise result in the Corporation failing to qualify as a REIT.

Preferred Equity Stock. The term “Preferred Equity Stock” shall mean shares of stock that are either Class M Preferred Stock or Class M Excess Preferred Stock.

Purported Beneficial Transferee. The term “Purported Beneficial Transferee” shall mean, with respect to any purported Transfer or other event which results in Class M Excess Preferred Stock, the purported beneficial transferee or owner for whom the Purported Record Transferee would have acquired or owned shares of Class M Preferred Stock if such Transfer or ownership had been valid under subparagraph (1) of paragraph (F) below.

Purported Record Transferee. The term “Purported Record Transferee” shall mean, with respect to any purported Transfer or other event which results in Class M Excess Preferred Stock, the record holder of the Preferred Equity Stock if such Transfer or ownership had been valid under subparagraph (1) of paragraph (F) below.

Record Date. The term “Record Date” shall mean the date designated by the Board of Directors at the time a dividend is authorized as the date for determining stockholders entitled to payment of the dividend; provided, however, that such Record Date shall be the first day of the calendar month in which the applicable Dividend Payment Date falls or such other date designated by the Board of Directors that is not more than thirty (30) days nor less than ten (10) days prior to such Dividend Payment Date.

Redemption Date. The term “Redemption Date” shall have the meaning set forth in subparagraph (2) of paragraph (D) below.

Redemption Price. The term “Redemption Price” shall mean a price per share equal to $25,000.00 plus accrued and unpaid dividends thereon, if any, to, but excluding, the Redemption Date, and as adjusted in subparagraph (2) of paragraph (D) below.

REIT. The term “REIT” shall mean a real estate investment trust under Section 856 of the Code.

Senior Stock. The term “Senior Stock” shall mean, as the case may be, (i) any class or series of stock of the Corporation created after the Initial Issue Date in accordance with subparagraph (1) of paragraph (E) ranking senior to the Class M Preferred Stock in respect of the right to receive dividends or (ii) any class or series of stock of the Corporation created after the Initial Issue Date in accordance with subparagraph (1) of paragraph (E) ranking senior to the Class M Preferred Stock in respect of the right to participate in any distribution upon liquidation, dissolution or winding up of the affairs of the Corporation. 

Total Dividends. The term “Total Dividends” shall have the meaning set forth in subparagraph (7) of paragraph (B) below.

Transfer. The term “Transfer” shall mean any sale, transfer, gift, assignment, devise or other disposition of Preferred Equity Stock or Depositary Shares, including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Preferred Equity Stock or Depositary Shares or (ii) the sale, transfer, assignment or other disposition of any securities (or rights convertible into or exchangeable for Preferred Equity Stock or Depositary Shares), whether voluntary or involuntary, whether of record or Beneficially or Constructively (including but not limited to transfers of interests in other entities which result in changes in Beneficial or Constructive Ownership of Preferred Equity Stock or Depositary Shares), and whether by operation of law or otherwise.

Trust. The term “Trust” shall mean the trust created pursuant to subparagraph (11)(a) of paragraph (F).

Trustee. The term “Trustee” shall mean the Corporation as trustee for the Trust, and any successor trustee appointed by the Corporation. 

B.       Dividends.

1.       The record holders of Class M Preferred Stock shall be entitled to receive dividends, when, as and if authorized by the Board of Directors and declared by the Corporation, out of funds legally available for payment of dividends. Such dividends shall be payable by the Corporation in cash at the rate of 5.25% per annum of the Liquidation Preference.

2.       Dividends on each outstanding share of Class M Preferred Stock shall accrue as set and be cumulative from, and including, January 15, 2023. Dividends shall be payable quarterly in arrears when, as and if authorized by the Board of Directors and declared by the Corporation on January 15, April 15, July 15 and October 15 of each year, commencing on April 15, 2023 (each, a “Dividend Payment Date”). If any Dividend Payment Date occurs on a day that is not a Business Day, any accrued dividends otherwise payable on such Dividend Payment Date shall be paid on the next succeeding Business Day. The amount of dividends payable for each Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends shall be paid to the holders of record of the Class M Preferred Stock as their names shall appear on the stock transfer records of the Corporation at the close of business on the Record Date for such dividends. Dividends in respect of any past Dividend Periods that are in arrears may be declared and paid at any time to holders of record on the Record Date therefor. Any dividend payment made on shares of Class M Preferred Stock shall be first credited against the earliest accrued but unpaid dividend due with respect to the Class M Preferred Stock which remains payable.

3.       If any shares of Class M Preferred Stock are outstanding, no full dividends shall be declared or paid or set apart for payment on any Parity Stock or Junior Stock for any period unless full cumulative dividends have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the dividends on the Parity Stock or Junior Stock are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M Preferred Stock for all past Dividend Periods. When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M Preferred Stock and any Parity Stock, all dividends declared upon the shares of the Class M Preferred Stock and any such Parity Stock shall be declared pro rata so that the amount of dividends declared per share on the Class M Preferred Stock and all other such Parity Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of the Class M Preferred Stock and all other such Parity Stock bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Class M Preferred Stock which may be in arrears.

4.       Except as provided in subparagraph (3) of this paragraph (B), unless full cumulative dividends on the Class M Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods, no dividends (other than in the form of Common Stock or other Junior Stock) shall be declared or paid or set apart for payment or other distribution shall be declared or made upon any Junior Stock or Parity Stock or any excess stock nor shall any Junior Stock or Parity Stock or any excess stock be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Stock or Parity Stock or any excess stock) by the Corporation (except by conversion into or exchange for Junior Stock). 

5.       Notwithstanding anything contained herein to the contrary, no dividends on shares of Class M Preferred Stock shall be authorized by the Board of Directors or declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibits such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or to the extent such declaration or payment shall be restricted or prohibited by law.

6.       Notwithstanding anything contained herein to the contrary, dividends on the Class M Preferred Stock will accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of the dividends and whether or not the dividends are authorized or declared. Accrued but unpaid dividends on the Class M Preferred Stock will not bear interest.

7.       If, for any taxable year, the Corporation elects to designate as “capital gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) (the “Dividends”) paid or made available for the year to holders of all classes of stock (the “Total Dividends”) then, except as required by law, the portion of the Capital Gains Amount that shall be allocable to holders of the Class M Preferred Stock shall be the amount that the aggregate Dividends paid or made available to the holders of the Class M Preferred Stock for the year bears to the Total Dividends.

C.      Distributions Upon Liquidation, Dissolution or Winding Up.

1.       Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, subject to the prior preferences and other rights of any Senior Stock as to the distribution of assets upon liquidation, dissolution or winding up of the affairs of the Corporation, but before any distribution or payment shall be made to the holders of any Junior Stock or any excess stock, the holders of Class M Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its stockholders liquidating distributions in cash or property at its fair market value as determined by the Board of Directors in the amount of the Liquidation Preference plus an amount equal to all accrued and unpaid dividends to, but excluding, the date of such liquidation, dissolution or winding up. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Class M Preferred Stock will have no right or claim to any of the remaining assets of the Corporation and shall not be entitled to any other distribution in the event of liquidation, dissolution or winding up of the affairs of the Corporation.

2.       In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the legally available assets of the Corporation are insufficient to pay the amount of the Liquidation Preference plus an amount equal to all accrued and unpaid dividends on the Class M Preferred Stock and the corresponding amounts payable on Parity Stock upon any such liquidation, dissolution or winding up, then the holders of the Class M Preferred Stock and the holders of such Parity Stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they otherwise would be respectively entitled. Neither the consolidation or merger of the Corporation into or with another entity or entities nor the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation to another corporation or any other entity, individually or as part of a series of transactions, shall be deemed a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of this paragraph (C). 

D.      Redemption by the Corporation.

1.       The Class M Preferred Stock may be redeemed for cash, in whole or from time to time in part, on any date on or after the Initial Issue Date at the option of the Corporation at the Redemption Price.

2.       Each date fixed for redemption pursuant to subparagraph (1) of this paragraph (D) is called a “Redemption Date.” If the Redemption Date is after the Record Date and before the related Dividend Payment Date, the dividend payable on such Dividend Payment Date shall be paid to the holder in whose name the Class M Preferred Stock to be redeemed is registered at the close of business on such Record Date notwithstanding the redemption thereof between such Record Date and the related Dividend Payment Date or the Corporation’s default in the payment of the dividend due, and the Redemption Price shall not include the amount of such dividend payable on such Dividend Payment Date.

3.       In case of redemption of less than all shares of Class M Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation by lot (as nearly as practicable without creating fractional shares) or by any other equitable method prescribed by the Board of Directors that will not result in the issuance of any Class M Excess Preferred Stock.

4.       In order to exercise its redemption option, the Corporation shall give written notice (“Notice”) of such redemption to each holder of record of the shares of Class M Preferred Stock to be redeemed not less than 30 days or more than 60 days prior to the Redemption Date. The Notice will be mailed by the Corporation, postage prepaid, addressed to the respective holders of record of the Class M Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. The notice of redemption may be contingent on the occurrence of a future event. No failure to give such Notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any shares of Class M Preferred Stock, except as to any holder to whom the Corporation has failed to give Notice or except as to any holder to whom Notice was defective. In addition to any information required by law or by the applicable rules of any exchange upon which Class M Preferred Stock may be listed or admitted to trading, such Notice shall state: (i) the Redemption Date; (ii) the Redemption Price; (iii) the number of shares of Class M Preferred Stock to be redeemed and, if less than all shares held by the particular holder are to be redeemed, the number of such shares to be redeemed from such holder; (iv) the place or places where certificates for such shares are to be surrendered for payment of the Redemption Price; and (v) that dividends on the shares to be redeemed will cease to accrue on the Redemption Date. 

5.       Notice having been mailed in accordance with subparagraph (4) of this paragraph (D), from and after the Redemption Date (unless the Corporation shall fail to make available an amount of cash necessary to pay the Redemption Price), (i) except as otherwise provided herein, dividends on the shares of Class M Preferred Stock so called for redemption shall cease to accrue, (ii) said shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Class M Preferred Stock of the Corporation shall cease (except the rights to receive the Redemption Price in cash). The Corporation’s obligation to provide cash in accordance with the preceding sentence shall be deemed fulfilled if, on or before the Redemption Date, the Corporation shall deposit with a bank or trust company (which may be an affiliate of the Corporation), cash necessary for such redemption, in trust, with irrevocable instructions that such cash be applied to the redemption of the shares of Class M Preferred Stock so called for redemption. In this case, the Corporation’s Notice shall (i) specify the office of such bank or trust company as the place of payment of the Redemption Price and (ii) call upon respective holders of record of the Class M Preferred Stock to surrender certificates for such shares, on the Redemption Date fixed in the Notice, for payment of the Redemption Price. No interest shall accrue for the benefit of any holder of shares of Class M Preferred Stock to be redeemed on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of two years from the Redemption Date shall revert to the general funds of the Corporation, after which reversion, the holders of such shares so called for redemption shall look only to the general funds of the Corporation for the payment of such cash.

6.       As promptly as practicable after the surrender of the certificates for any such shares of Class M Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and if the Notice shall so state) in accordance with said Notice, the Corporation (or the related bank or trust company, if applicable) shall pay to the applicable holders the Redemption Price in cash (without interest thereon). In the event of the redemption of less than all shares of Class M Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation by lot (as nearly as practicable without creating fractional shares) or by any other equitable method determined by the Board of Directors that will not result in the issuance of any Class M Excess Preferred Stock. If fewer than all the shares of Class M Preferred Stock represented by any certificate are redeemed, then new certificates representing the unredeemed shares of Class M Preferred Stock shall be issued without cost to the holder thereof.

7.       Unless full cumulative dividends on all outstanding shares of Class M Preferred Stock shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods, (i) no shares of any Class M Preferred Stock shall be redeemed, unless all outstanding shares of Class M Preferred Stock are simultaneously redeemed and (ii) the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Class M Preferred Stock (except by conversion into or exchange for Junior Stock); provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of Class M Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Class M Preferred Stock. 

8.       All shares of Class M Preferred Stock redeemed pursuant to this paragraph (D) shall be retired and shall be reclassified as authorized and unissued shares of Preferred Stock, without designation as to class or series, and may thereafter be reissued as shares of any class or series of Preferred Stock.

E.       Voting Rights.

1.       The holders of record of shares of Class M Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this paragraph (E) or as required by applicable law. So long as any shares of Class M Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds (2/3) of the shares of the Class M Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (such Class M Preferred Stock voting separately as a class): (i) authorize or create, or increase the authorized or issued amount of, any class or series of Senior Stock, or reclassify any authorized stock into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any Senior Stock; or (ii) amend, alter or repeal the provisions of the Charter, whether by merger, consolidation or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Class M Preferred Stock; except that (1) with respect to the occurrence of any of the events described in (ii) above, so long as the Class M Preferred Stock remains outstanding with the terms of the Class M Preferred Stock materially unchanged or is converted into a security in another entity with the terms materially unchanged, the occurrence of such event will not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of the Class M Preferred Stock and (2) (A) any increase in the amount of the authorized shares of Class M Preferred Stock or the authorization or issuance of any Parity Stock or Junior Stock or (B) any increase in the number of authorized shares of Class M Preferred Stock or Parity Stock or Junior Stock shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers.

2.       If and whenever dividends payable on Class M Preferred Stock shall be in arrears for six (6) or more Dividend Periods, whether or not consecutive, then the holders of Class M Preferred Stock (voting together as a class with Parity Stock upon which like voting rights have been conferred and are exercisable as provided in subparagraph (5) of this paragraph (E)) shall be entitled at the next annual meeting of the stockholders or at any special meeting of stockholders called for the purpose of electing directors to elect two (2) additional directors. Upon election, such directors shall become directors of the Corporation and the authorized number of directors of the Corporation shall thereupon be automatically increased by two.

3.       Whenever the voting right described in subparagraph (2) of this paragraph (E) shall have vested, such right may be exercised initially either at a special meeting of the holders of Class M Preferred Stock and any Parity Stock entitled to vote as provided in subparagraph (5) of this paragraph (E), called as hereinafter provided, or at any annual meeting of stockholders held for the purpose of electing directors and, thereafter, at such annual meetings or by the written consent of the holders of Class M Preferred Stock and any such Parity Stock. Such right of the holders of Class M Preferred Stock to elect directors together with the holders of any such Parity Stock may be exercised until all dividends to which the holders of Class M Preferred Stock shall have been entitled for (i) all previous Dividend Periods and (ii) the current Dividend Period shall have been paid in full, at which time the right of the holders of Class M Preferred Stock to elect directors together with holders of any such Parity Stock shall cease, the term of such directors previously elected shall thereupon terminate, and the authorized number of directors of the Corporation shall thereupon return to the number of authorized directors otherwise in effect, but subject always to the same provisions for the renewal and divestment of such special voting rights in the case of any such future dividend default or defaults. 

4.       At any time when the voting right described in subparagraph (2) of this paragraph (E) shall have vested in the holders of Class M Preferred Stock and if such right shall not already have been initially exercised, a proper officer of the Corporation shall, upon the written request of any holder of record of Class M Preferred Stock then outstanding, addressed to the Secretary of the Corporation, call a special meeting of holders of Class M Preferred Stock together with the holders of any Parity Stock entitled to vote as provided in subparagraph (5) of this paragraph (E). Such meeting shall be held on the earliest practicable date upon the notice required for annual meetings of stockholders at the place for holding annual meetings of stockholders of the Corporation or, if none, at a place designated by the Secretary of the Corporation. If such meeting shall not be called by a proper officer of the Corporation within thirty (30) days after the personal service of such written request upon the Secretary of the Corporation, or within thirty (30) days after mailing the same within the United States, by registered mail, addressed to the Secretary of the Corporation at its principal office (such mailing to be evidenced by the registry receipt issued by the postal authorities), then the holders of record of ten percent (10%) of the shares of Class M Preferred Stock then outstanding may designate in writing a holder of Class M Preferred Stock to call such meeting at the expense of the Corporation, and such meeting may be called by such person so designated upon the notice required for annual meetings of stockholders and shall be held at the place for holding annual meetings of the Corporation or, if none, at a place designated by such holder. Any holder of Class M Preferred Stock that would be entitled to vote at such meeting shall have access to the stock transfer records of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to the provisions of this paragraph (E). Notwithstanding the provisions of this paragraph (E), however, no such special meeting shall be called if any such request is received less than ninety (90) days before the date fixed for the next ensuing annual or special meeting of stockholders.

5.       If, at any time when the holders of Class M Preferred Stock are entitled to elect directors pursuant to the foregoing provisions of this paragraph (E), the holders of any one or more classes or series of Parity Stock are entitled to elect one or more directors by reason of any default or event specified in the Charter, as in effect at the time, and if the terms for such classes or series of Parity Stock so provide, then the voting rights of the Class M Preferred Stock and the one or more classes or series of Parity Stock then entitled to vote shall be combined (with each having a number of votes proportional to the aggregate liquidation preference of its outstanding shares). In such case, the holders of Class M Preferred Stock and of all such classes or series of Parity Stock then entitled to so vote, voting together as a class, shall elect such directors. If the holders of any such classes or series of Parity Stock have elected such directors prior to the happening of the default or event providing for the election of directors by the holders of Class M Preferred Stock, or prior to a written request for the holding of a special meeting being received by the Secretary of the Corporation as elsewhere required in subparagraph (4) of paragraph (E) above, then a new election shall be held with all such classes or series of Parity Stock and the Class M Preferred Stock voting together as a single class for such director(s), resulting in the termination of the term of such previously elected director(s) upon the election of such new director(s). If the holders of any such classes or series of Parity Stock are entitled to elect two directors, the Class M Preferred Stock shall not participate in the election of more than two such directors, and such directors whose terms first expire shall be deemed to be the directors elected by the holders of Class M Preferred Stock; provided, that if at the expiration of such terms the holders of Class M Preferred Stock are entitled to vote in the election of directors pursuant to the provisions of this paragraph (E), then the Secretary of the Corporation shall call a meeting (which meeting may be the annual meeting or a special meeting of stockholders referred to in subparagraph (3) of this paragraph (E)) of holders of Class M Preferred Stock for the purpose of electing replacement directors (in accordance with the provisions of this paragraph (E)) to be held at or prior to the time of expiration of the expiring terms referred to above. 

6.       If and for so long as the shares of Class M Preferred Stock are represented by Depositary Shares in accordance with paragraph (J) hereof, then in any matter in which the Class M Preferred Stock is entitled to vote (as expressly provided herein), including any action by written consent, each share of Class M Preferred Stock shall be entitled to one thousand (1000) votes, each of which one thousand (1000) votes may be directed separately by the holder thereof (or by any proxy or proxies of such holder). With respect to each share of Class M Preferred Stock, the holder thereof may designate up to one thousand (1000) proxies, with each such proxy having the right to vote a whole number of votes (totaling one thousand (1000) votes per share of Class M Preferred Stock).

7.       Notwithstanding anything contained herein to the contrary, the foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which the vote would otherwise be required shall be effected, all outstanding shares of Class M Preferred Stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect the redemption.

F.       Restrictions on Ownership to Preserve Tax Benefit; Conversion of Class M Excess Preferred Stock; and Terms of Class M Excess Preferred Stock.

1.       Restriction on Ownership and Transfer.

a.       Except as provided in subparagraph (8) of this paragraph (F), no Person shall Beneficially Own or Constructively Own Class M Preferred Stock in excess of the Ownership Limit;

b.       Except as provided in subparagraph (8) of this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) that, if effective, would result in any Person Beneficially Owning Class M Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Class M Preferred Stock which would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Class M Preferred Stock; 

c.       Except as provided in subparagraph (8) of this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) that, if effective, would result in any Person Constructively Owning Class M Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Class M Preferred Stock which would be otherwise Constructively Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Class M Preferred Stock; and

d.       Notwithstanding any other provisions contained in this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) or other event that, if effective, would result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or would otherwise result in the Corporation failing to qualify as a REIT (including, but not limited to, a Transfer or other event that would result in the Corporation owning (directly or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code) shall be void ab initio as to the Transfer of the Class M Preferred Stock or other event which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code or would otherwise result in the Corporation failing to qualify as a REIT; and the intended transferee or owner or Constructive or Beneficial Owner shall acquire or retain no rights in such Class M Preferred Stock.

2.       Conversion into Class M Excess Preferred Stock. If, notwithstanding the other provisions contained in this paragraph (F), at any time after the Initial Issue Date, there is a purported Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE), change in the capital structure of the Corporation or other event such that one or more of the restrictions on ownership and transfer described in subparagraph (1) of this paragraph (F), above have been violated, then the Class M Preferred Stock being Transferred (or in the case of an event other than a Transfer, the Class M Preferred Stock owned or Constructively Owned or Beneficially Owned or, if the next sentence applies, the Class M Preferred Stock identified in the next sentence) which would cause one or more of the restrictions on ownership or transfer to be violated (rounded up to the nearest whole share) shall be automatically converted into an equal number of shares of Class M Excess Preferred Stock. If at any time of such purported Transfer any of the shares of the Class M Preferred Stock are then owned by a depositary to permit the trading of beneficial interests in fractional shares of Class M Preferred Stock, then shares of Class M Preferred Stock that shall be converted to Class M Excess Preferred Stock shall be first taken from any Class M Preferred Stock that is not in such depositary that is Beneficially Owned or Constructively Owned by the Person whose Beneficial Ownership or Constructive Ownership would otherwise violate the restrictions of subparagraph (1) of this paragraph (F) prior to converting any shares in such depositary. Any conversion pursuant to this subparagraph shall be effective as of the close of business on the Business Day prior to the date of such Transfer or other event.

3.       Remedies for Breach. If the Board of Directors or its designees shall at any time determine in good faith that a Transfer or other event has taken place in violation of subparagraph (1) of this paragraph (F) or that a Person intends to acquire, has attempted to acquire or may acquire direct ownership, beneficial ownership (determined without reference to any rules of attribution), Beneficial Ownership or Constructive Ownership of any shares of the Corporation in violation of subparagraph (1) of this paragraph (F), the Board of Directors or its designees shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including, but not limited to, causing the Corporation to purchase such shares upon the terms and conditions specified by the Board of Directors in its sole discretion, refusing to give effect to such Transfer or other event on the books of the Corporation or instituting proceedings to enjoin such Transfer or other event; provided, however, that any Transfer (or, in the case of events other than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in violation of subparagraph (1) of this paragraph (F) shall automatically result in the conversion described in subparagraph (2), irrespective of any action (or non-action) by the Board of Directors. 

4.       Notice of Restricted Transfer. Any Person who acquires or attempts to acquire Class M Preferred Stock or other securities in violation of subparagraph (1) of this paragraph (F), or any Person who owns or will own Class M Excess Preferred Stock as a result of an event under subparagraph (2) of this paragraph (F), shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer or attempted Transfer or other event on the Corporation’s status as a REIT.

5.       Owners Required to Provide Information. From and after the Initial Issue Date, each Person who is a beneficial owner or Beneficial Owner or Constructive Owner of Class M Preferred Stock and each Person (including the stockholder of record) who is holding Class M Preferred Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT.

6.       Remedies Not Limited. Nothing contained in this paragraph (F) (but subject to subparagraph (12) of this paragraph (F)) shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.

7.       Ambiguity. In the case of an ambiguity in the application of any of the provisions of this paragraph (F), including any definition contained in paragraph (A), the Board of Directors shall have the power to determine the application of the provisions of this paragraph (F) with respect to any situation based on the facts known to it (subject, however, to the provisions of paragraph (12) of this paragraph (F)).

8.       Exceptions.

a.       Subject to subparagraph (1)(d) of this paragraph (F), the Board of Directors, in its sole discretion, with the advice of the Corporation’s tax counsel, may exempt (prospectively or retroactively) a Person from the limitation on a Person Beneficially Owning shares of Class M Preferred Stock in violation of subparagraphs (1)(a) or (1)(b) of this paragraph (F) if the Board of Directors determines that such exemption will not cause any Individual’s Beneficial Ownership of shares of Capital Stock to violate the Aggregate Stock Ownership Limit and that such exemption will not cause the Corporation to fail to qualify as a REIT under the Code. 

b.       Subject to subparagraph (1)(d) of this paragraph (F), the Board of Directors, in its sole discretion, with advice of the Corporation’s tax counsel, may exempt (prospectively or retroactively) a Person from the limitation on a Person Constructively Owning Class M Preferred Stock in violation of subparagraphs (1)(a) or (1)(c) of this paragraph (F) if the Board of Directors determines that such ownership would not cause the Corporation to fail to qualify as a REIT under the Code.

c.       Prior to granting any exception pursuant to subparagraph (8)(a) or (8)(b) of this paragraph (F), the Board of Directors may (i) require such Person to make certain representations or undertakings or to agree that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in this paragraph F) will result in such Class M Preferred Stock being converted to Excess Class M Preferred Stock and transferred to a Trust in accordance with subparagraphs (2) and (11) of this paragraph (F) and/or (ii) require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors, in its sole discretion as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT; provided, however, that obtaining such representations or undertakings, or a favorable ruling or opinion, shall not be required for the Board of Directors to grant an exception hereunder.

9.       Legend. Each certificate for Class M Preferred Stock shall bear substantially the following legend:

“The Corporation will furnish to any stockholder, on request and without charge, a full statement of the information required by Section 2-211(b) of the Corporations and Associations Article of the Annotated Code of Maryland with respect to the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemptions of the stock of each class which the Corporation has authority to issue and, if the Corporation is authorized to issue any preferred or special class in series, (i) the differences in the relative rights and preferences between the shares of each series to the extent set, and (ii) the authority of the Board of Directors to set such rights and preferences of subsequent series. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the charter of the Corporation (the “Charter”), a copy of which will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office.”

“The securities represented by this certificate are subject to restrictions on ownership for the purpose of the Corporation’s maintenance of its status as a real estate investment trust under the Internal Revenue Code of 1986, as amended. Except as otherwise provided pursuant to the Charter of the Corporation, no Person may Beneficially Own or Constructively Own shares of Class M Preferred Stock in excess of 9.8% of the outstanding shares of Preferred Equity Stock. Any Person who attempts to Beneficially Own or Constructively Own shares of Class M Preferred Stock in excess of the above limitation must immediately notify the Corporation. All capitalized terms in this legend have the meanings defined in the Charter of the Corporation, a copy of which, including the restrictions on transfer, will be sent to any stockholder on request and without charge. Transfers in violation of the restrictions described above shall be void ab initio. Notwithstanding the foregoing, if the restrictions on ownership and transfer are violated, the securities represented hereby will be designated and treated as shares of Class M Excess Preferred Stock which will be held in trust by the Corporation. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the Charter, a copy of which, including the restrictions on transfer, will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office.” 

10.     Severability. If any provision of this paragraph (F) or any application of any such provision is determined to be invalid by any federal or state court having jurisdiction, the validity of the remaining provisions shall not be affected and other applications of such provision shall be affected only to the extent necessary to comply with the determination of such court.

11.     Class M Excess Preferred Stock.

a.       Ownership in Trust. Upon any purported Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) or other event that results in the issuance of Class M Excess Preferred Stock pursuant to subparagraph (2) of this paragraph (F), such Class M Excess Preferred Stock shall be deemed to have been transferred to the Corporation, as Trustee of a Trust for the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in such Class M Excess Preferred Stock may later be transferred pursuant to subparagraph (11)(d) of this paragraph (F). Class M Excess Preferred Stock so held in trust shall be issued and outstanding shares of stock of the Corporation. The Purported Record Transferee shall have no rights in such Class M Excess Preferred Stock except the right to designate a transferee of such Class M Excess Preferred Stock upon the terms specified in subparagraph (11)(d) of this paragraph (F). The Purported Beneficial Transferee shall have no rights in such Class M Excess Preferred Stock except as provided in subparagraph (11)(d) of this paragraph (F).

b.       Dividend Rights. Class M Excess Preferred Stock shall not be entitled to any dividends or other distribution (except as provided in subparagraph (11)(c) of this paragraph (F)). Any dividend or distribution paid prior to the discovery by the Corporation that shares of Class M Preferred Stock have been converted into Class M Excess Preferred Stock shall be repaid to the Corporation upon demand.

c.       Rights Upon Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of Class M Excess Preferred Stock shall be entitled to receive, ratably with each other holder of shares of Preferred Equity Stock, that portion of the assets of the Corporation available for distribution to the holders of shares of Preferred Equity Stock as the number of shares of Class M Excess Preferred Stock held by such holder bears to the total number of shares of Preferred Equity Stock then outstanding. The Corporation, as holder of the Class M Excess Preferred Stock in trust, or if the Corporation shall have been dissolved, any trustee appointed by the Corporation prior to its dissolution, shall distribute ratably to the Beneficiaries of the Trust, when and if determined in accordance with subparagraph (11)(d) of this paragraph (F), any such assets received in respect of the Class M Excess Preferred Stock in any liquidation, dissolution or winding up of, or any distribution of, the assets of the Corporation. 

d.       Restrictions on Transfer; Designation of Beneficiary.

(1)           Shares of Class M Excess Preferred Stock shall not be transferable. Subject to the last sentence of this clause (1), the Purported Record Transferee may freely designate a Beneficiary of an interest in the Trust (representing the number of shares of Class M Excess Preferred Stock held by the Trust attributable to a purported Transfer that resulted in the issuance of Class M Excess Preferred Stock), if (i) the Class M Excess Preferred Stock held in the Trust would not be Class M Excess Preferred Stock in the hands of such Beneficiary and (ii) the Purported Beneficial Transferee does not receive a price from such Beneficiary that reflects a price per share for such Class M Excess Preferred Stock that exceeds (x) the price per share such Purported Beneficial Transferee paid for the Class M Preferred Stock in the purported Transfer that resulted in the issuance of Class M Excess Preferred Stock, or (y) if the Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock was not a transaction in which the Purported Beneficial Transferee gave full value for such Class M Excess Preferred Stock, a price per share equal to the Market Price on the date of the purported Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock. Upon such transfer of an interest in the Trust, the corresponding shares of Class M Excess Preferred Stock in the Trust shall be automatically exchanged for an equal number of shares of Class M Preferred Stock and such Class M Preferred Stock shall be transferred of record to the transferee of the interest in the Trust if such Class M Preferred Stock would not be Class M Excess Preferred Stock in the hands of such transferee. Prior to any transfer of any interest in the Trust, the Purported Record Transferee must give advance notice to the Corporation of the intended transfer and the Corporation must have waived in writing its purchase rights under subparagraph (11)(f) of this paragraph (F).

(2)           Notwithstanding the foregoing, if a Purported Beneficial Transferee receives a price for designating a Beneficiary of an interest in the Trust that exceeds the amounts allowable under subparagraph (11)(d)(1) of this paragraph (F), such Purported Beneficial Transferee shall pay, or cause such Beneficiary to pay, such excess to the Corporation.

e.       Voting and Notice Rights. The holders of shares of Class M Excess Preferred Stock shall have no voting rights and shall have no rights to receive notice of any meetings. The holders of shares of Class M Excess Preferred Stock shall not be considered for purpose of determining a quorum.

f.        Purchase Rights in Class M Excess Preferred Stock. Notwithstanding the provisions of subparagraph (11)(d) of this paragraph (F), shares of Class M Excess Preferred Stock shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that required the issuance of such Class M Excess Preferred Stock (or, if the Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock was not a transaction in which the Purported Beneficial Transferee gave full value for such Class M Excess Preferred Stock, a price per share equal to the Market Price on the date of the purported Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock) and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer for a period of ninety (90) days after the later of (i) the date of the Transfer or other event which resulted in the issuance of such shares of Class M Excess Preferred Stock and (ii) the date the Board of Directors determines in good faith that a Transfer or other event resulting in the issuance of shares of Class M Excess Preferred Stock has occurred, if the Corporation does not receive a notice of such Transfer or other event pursuant to subparagraph (4) of this paragraph (F). The Corporation may appoint a special trustee of the Trust for the purpose of consummating the purchase of Class M Excess Preferred Stock by the Corporation. In the event that the Corporation’s actions cause a reduction in the number of shares of Class M Preferred Stock outstanding and such reduction results in the issuance of Class M Excess Preferred Stock, the Corporation is required to exercise its option to repurchase such shares of Class M Excess Preferred Stock if the Beneficial Owner notifies the Corporation that it is unable to sell its rights to such Class M Excess Preferred Stock. 

12.     Settlement. Nothing in this paragraph (F) shall preclude the settlement of any transaction entered into through facilities of the NYSE.

G.       Exclusion of Other Rights.

Without prejudice to any contractual obligations existing from time to time between the holders of the Class M Preferred Stock and the Corporation, the shares of Class M Preferred Stock shall not have any rights granted to or imposed thereupon, including as to dividends, preferences, conversion rights or voting rights, other than those specifically set forth in the Charter (including these Articles Supplementary), nor shall the shares of Class M Preferred Stock have preemptive or subscription rights. The Class M Preferred Stock has no stated maturity and is not subject to any sinking fund or mandatory redemption.

H.      Headings of Subdivisions.

The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

I.        Severability of Provisions.

If any preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class M Preferred Stock set forth in the Charter are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class M Preferred Stock set forth in the Charter which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect, and no preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class M Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein. 

J.       Registration as Depositary Shares.

Shares of Class M Preferred Stock shall be registered in the form of Depositary Shares representing a one-one thousandth fractional interest in a share of Class M Preferred Stock (“Depositary Shares”) on, and subject to, such terms and conditions as may be provided for in any agreement binding upon the Corporation (whether directly or through merger with any other corporation).

Exhibit 3.2

NEW KRC CORP.

Exhibit 3.3

ARTICLES OF MERGER

MERGING

KRC MERGER SUB CORP.

(a Maryland corporation)

WITH AND INTO

KIMCO REALTY CORPORATION

(a Maryland corporation)

December 29, 2022

KRC Merger Sub Corp., a Maryland corporation (the “Merging Company”), and Kimco Realty Corporation, a Maryland corporation (the “Surviving Corporation”), hereby certify to the State Department of Assessments and Taxation of Maryland that:

FIRST:            The Merging Company and the Corporation have agreed that the Merging Company shall be merged (the “Merger”) with and into the Surviving Corporation on the terms and conditions set forth herein and in that certain Agreement and Plan of Merger, dated as of December 15, 2022 (the “Merger Agreement”), by and among the Corporation, New KRC, Corp., a Maryland corporation (“Holdco”), and the Merging Company.

SECOND:      The Surviving Corporation shall survive the Merger as a corporation organized and existing under the laws of the State of Maryland

THIRD:          The Merging Company is a Maryland corporation incorporated under the laws of the State of Maryland. The principal office of the Merging Company in the State of Maryland is located in Baltimore County. The Merging Company owns no interest in land located in the State of Maryland.

FOURTH:      The Surviving Corporation is a Maryland corporation incorporated under the laws of the State of Maryland. The principal office in Maryland of the Surviving Corporation is located in Baltimore County.

FIFTH:          The total number of shares of all classes and series of stock which the Merging Company has the authority to issue is 1,000 shares, $0.01 par value per share, all of one class.

SIXTH:         The total number of shares of all classes and series of stock which the Surviving Corporation has the authority to issue is 1,141,100,000 shares, consisting of 750,000,000 shares of common stock, $0.01 par value per share (the “Surviving Corporation Common Stock”), 384,046,000 shares of excess stock, $0.01 par value per share (the “Surviving Corporation Excess Stock”), 7,012,140 shares of preferred stock, $1.00 par value per share (the “Surviving Corporation Undesignated Preferred Stock”), 10,350 shares of 5.125% Class L cumulative redeemable preferred stock, $1.00 par value per share (the “Class L Preferred Stock”), 10,350 shares of Class L excess preferred stock, $1.00 par value per share (the “Class L Excess Preferred Stock”), 10,580 shares of 5.25% Class M cumulative redeemable preferred stock, $1.00 par value per share (the “Class M Preferred Stock”), and 10,580 shares of Class M excess preferred stock, $1.00 par value per share (the “Class M Excess Preferred Stock” and together with the Surviving Corporation Undesignated Preferred Stock, the Class L Preferred Stock, the Class L Excess Preferred Stock and the Class M Preferred Stock, the “Surviving Corporation Preferred Stock”). The aggregate par value of all shares of all classes and series of stock of the Surviving Corporation having a par value is $18,394,460. These Articles of Merger do not change the total authorized shares of stock of the Surviving Corporation.

SEVENTH:    At the Effective Time, the Merging Company shall be merged with and into the Surviving Corporation; and, thereupon, the Surviving Corporation shall possess any and all purposes and powers of the Merging Company; and all leases, licenses, property, rights, privileges and powers of whatever nature and description of the Merging Company shall be transferred to, vested in and devolved upon the Surviving Corporation, without further act or deed, and all of the debts, liabilities, duties and obligations of the Merging Company will become the debts, liabilities, duties and obligations of the Surviving Corporation. At the Effective Time,

(a)   Each share of stock of Merging Company issued and outstanding immediately prior to the Effective Time shall automatically convert, on a one-for-one basis, into one share of Surviving Corporation Common Stock;

(b)   Each share of Surviving Corporation Common Stock, Surviving Corporation Excess Stock and Surviving Corporation Preferred Stock issued and outstanding immediately prior to the Effective Time shall automatically convert, on a one-for-one basis, into one equivalent share of stock of Holdco, as applicable, as provided for in Section 1.7 of the Merger Agreement.

EIGHTH:     The terms and conditions of the transaction set forth in these Articles of Merger were duly advised, authorized and approved by the Surviving Corporation in the manner and by the vote required by the laws of the State of Maryland and the charter and the bylaws of the Surviving Corporation, as follows, the board of directors of the Surviving Corporation, adopted resolutions at a duly called meeting of the board of directors at which a quorum of the members of the board of directors was present, approving the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, and pursuant to Section 3-106.2(b) of the Maryland General Corporation Law (“MGCL”), the approval of the Surviving Corporation’s stockholder is not required.

NINTH:       The terms and conditions of the transaction set forth in these Articles of Merger were duly advised, authorized and approved by the Merging Company in the manner and by the vote required by the laws of the State of Maryland and the charter and the bylaws of the Merging Company, as follows, the board of directors of the Merging Company, adopted resolutions at a duly called meeting of the board of directors at which a quorum of the members of the board of directors was present, and the sole stockholder of the Merging Company adopted resolutions by written consent in lieu of a meeting, approving the Merger, on the terms and subject to the conditions set forth in the Merger Agreement.

TENTH:         In accordance with Section 2-605 of the MGCL, the charter of the Surviving Corporation is hereby amended, as of the Effective Time, to change the name of the Surviving Corporation to the following:

KRC Interim Corp.

ELEVENTH:  The Merger shall become effective at 12:01 a.m, Eastern Time, on January 1, 2023 (the “Effective Time”).

TWELFTH:   Each of the undersigned acknowledges these Articles of Merger to be the act of the entity on whose behalf that person has signed, and further, as to all matters or facts required to be verified under oath, each of the undersigned acknowledges that to the best of that person’s knowledge, information and belief, these matters and facts relating to the entity on whose behalf that person has signed are true in all material respects and that this statement is made under the penalties of perjury. 

[SIGNATURES APPEAR ON FOLLOWING PAGE]

IN WITNESS WHEREOF, these Articles of Merger have been duly executed by the parties hereto as of the date first written above.

[Signature Page – Merger Sub / Kimco Realty Corporation Articles of Merger]

Exhibit 3.4

STATE OF DELAWARE

CERTIFICATE OF FORMATION

OF

KIMCO REALTY OP, LLC

This Certificate of Formation of Kimco Realty OP, LLC is being executed by the undersigned for the purpose of forming a limited liability company under the Limited Liability Company Act of the State of Delaware.

(signature page follows)

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Kimco Realty OP, LLC this 3rd day of January, 2023.

Exhibit 3.5 

LIMITED LIABILITY COMPANY AGREEMENT
OF
KIMCO REALTY OP, LLC
a Delaware limited liability company

THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.

dated as of January 3, 2023

TABLE OF CONTENTS

LIMITED LIABILITY COMPANY AGREEMENT
OF KIMCO REALTY OP, LLC

THIS LIMITED LIABILITY COMPANY AGREEMENT OF KIMCO REALTY OP, LLC (the “Company”), dated as of January 3, 2023, (the “Effective Date”), is made and entered into by and among KIMCO REALTY CORPORATION, a Maryland corporation (“Kimco”), as the Managing Member, and the Persons from time to time party hereto, as members.

WHEREAS, on January 1, 2023, pursuant to Section 3-106.2 of the MGCL, KRC Merger Sub Corp., a Maryland corporation (“Merger Sub”) and indirect subsidiary of KRC Interim Corp. (f/k/a/ Kimco Realty Corporation), a Maryland corporation and the predecessor to the Company (“Predecessor”), merged (the “Merger”) with and into the Predecessor, with the Predecessor being the surviving entity (the “Surviving Company”), pursuant to the terms of the Agreement and Plan of Merger, dated December 15, 2022, by and among the Predecessor, Kimco and Merger Sub, so that as a result of the Merger the Predecessor became a direct wholly-owned subsidiary of Kimco.

WHEREAS, Kimco filed a certificate of conversion of the Predecessor, with the Secretary of the State of Delaware and State Department of Assessments and Taxation of Maryland, and a certificate of formation was filed for the Company with the Secretary of State of the State of Delaware, on January 2, 2023, to convert Predecessor into the Company, a limited liability company organized pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.), as amended from time to time (the “Act”), and change its name to “Kimco Realty OP, LLC” (the “Conversion”);

WHEREAS, on or prior to January 3, 2023, all necessary action, corporate and otherwise, was taken by the Predecessor, including the Board of Directors of the Predecessor, to (i) authorize the Conversion and (ii) approve this Agreement;

WHEREAS, in accordance with Section 18-214 of the Act, the Predecessor was converted to a Delaware limited liability company on January 3, 2023, by the filing in the office of the Secretary of State a Certificate of Conversion to Limited Liability Company (the “Certificate of Conversion”) and a Certificate of Formation (the “Certificate of Formation”);

WHEREAS, in accordance with Section 18-214 of the Act, the Company shall constitute a continuation of the existence of the Predecessor in the form of a Delaware limited liability company and, for all purposes of the laws of the State of Delaware, the Company shall be deemed to be the same entity as the Predecessor;

WHEREAS, pursuant to this Agreement, Kimco, the sole stockholder of the Predecessor immediately following the Merger, was admitted to the Company as the sole member following the Conversion; and

WHEREAS, the Members (as hereinafter defined) of the Company desire to enter into this Agreement (as hereinafter defined) effective as of the Effective Date.

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

ARTICLE 1
DEFINED TERMS

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

“Act” means the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.), as it may be amended from time to time, and any successor to such statute.

“Actions” has the meaning set forth in Section 7.7 hereof.

“Additional Funds” has the meaning set forth in Section 4.3(a) hereof.

“Additional Member” means a Person who is admitted to the Company as a Member pursuant to the Act and Section 4.2 and Section 12.2 hereof and who is shown as such on the Member Registry.

“Adjusted Capital Account” means, with respect to any Member, the balance in such Member’s Capital Account as of the end of the relevant Fiscal Year or other applicable period, after giving effect to the following adjustments:

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

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Adjusted Capital Account as of the end of the relevant Fiscal Year or other applicable period.

“Adjustment Event” has the meaning set forth in Section 16.3 hereof.

“Adjustment Factor” means 1.0; provided, however, that in the event that:

Notwithstanding the foregoing, no adjustments to the Adjustment Factor will be made for any class or series of Membership Interests to the extent that the Company makes or effects any correlative distribution or payment to all of the Members holding Membership Interests of such class or series, or effects any correlative split or reverse split in respect of Membership Interests of such class or series. Any adjustments to the Adjustment Factor shall become effective immediately after such event, retroactive to the record date, if any, for such event (or, if later, the date Distributed Rights become exercisable). For illustrative purposes, examples of adjustments to the Adjustment Factor are set forth on Exhibit A attached hereto.

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

“Agreement” means this Limited Liability Company Agreement of Kimco Realty OP, LLC as now or hereafter amended, restated, modified, supplemented or replaced (including any Membership Unit Designations).

“Applicable Percentage” has the meaning set forth in Section 15.1(b) hereof.

“Appraisal” means, with respect to any assets, the written opinion of an independent third party experienced in the valuation of similar assets, selected by the Managing Member. Such opinion may be in the form of an opinion by such independent third party that the value for such property or asset as set by the Managing Member is fair, from a financial point of view, to the Company.

“Assignee” means a Person to whom a Membership Interest has been Transferred in a manner permitted under this Agreement, but who has not become a Substituted Member, and who has the rights set forth in Section 11.5 hereof.

“Available Cash” means, with respect to any period for which such calculation is being made,

Notwithstanding the foregoing, Available Cash shall not include (a) any cash received or reductions in reserves, or take into account any disbursements made, or reserves established, after dissolution and the commencement of the liquidation and winding up of the Company or (b) any Capital Contributions, whenever received or any payments, expenditures or investments made with such Capital Contributions.

“Board of Directors” means the Board of Directors of the Managing Member.

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York, New York are authorized by law to close.

“Capital Account” means, with respect to any Member, the capital account maintained by the Managing Member for such Member on the Member Registry maintained by the Company in accordance with the following provisions:

“Capital Account Limitation” means, with respect to a Holder of LTIP Units, (x) the Economic Capital Account Balance of such Holder, to the extent attributable to such Holder’s ownership of LTIP Units, divided by (y) the Common Unit Economic Balance, in each case as determined as of the effective date of conversion.

“Capital Contribution” means, with respect to any Member, the amount of money and the initial Gross Asset Value of any Contributed Property that such Member contributes or is deemed to contribute pursuant to Article 4 hereof.

“Capital Share” means a share of any class or series of stock of the Managing Member now or hereafter authorized other than a REIT Share or an Excess Share.

“Cash Amount” means an amount of cash equal to the product of (a) the Value of a REIT Share and (b) the REIT Shares Amount determined as of the applicable Valuation Date.

“Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware, as amended from time to time in accordance with the terms hereof and the Act.

“Charity” means an entity described in Section 501(c)(3) of the Code or any trust all the beneficiaries of which are such entities.

“Charter” means the charter of the Managing Member, within the meaning of Section 1-101 of the Maryland General Corporation Law.

“Class L Articles Supplementary” means the terms of the REIT Class L Preferred Shares of the Managing Member, as set forth in Exhibit A of the Charter.

“Class L Preferred Capital” means a Capital Account balance equal to the product of (i) the number of Class L Preferred Units then held by the Managing Member multiplied by (ii) the sum of $25,000.00, any Preferred Distribution Shortfall per Class L Preferred Unit and any accrued and unpaid distribution per Class L Preferred Unit for the current distribution period (and, for the avoidance of doubt, at the time of issuance of the Class L Preferred Units, the initial Class L Preferred Capital shall include an amount equal to the prorated portion of the then-current distribution period for the REIT Class L Preferred Shares).

“Class L Preferred Unit Distribution Payment Date” shall have the meaning set forth in Section 17.2(a).

“Class L Preferred Units” shall have the meaning set forth in Section 17.1.

“Class L Priority Return” shall mean an amount equal to 5.125% per annum on the stated value of $25,000.00 per Class L Preferred Unit, commencing on the date of original issuance of the Class L Preferred Units. For any partial quarterly period, the amount of the Class L Priority Return shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.

“Class M Articles Supplementary” means the terms of the REIT Class M Preferred Shares of the Managing Member, as set forth in Exhibit B of the Charter.

“Class M Preferred Capital” means a Capital Account balance equal to the product of (i) the number of Class M Preferred Units then held by the Managing Member multiplied by (ii) the sum of $25,000.00, any Preferred Distribution Shortfall per Class M Preferred Unit and any accrued and unpaid distribution per Class M Preferred Unit for the current distribution period (and, for the avoidance of doubt, at the time of issuance of the Class M Preferred Units, the initial Class M Preferred Capital shall include an amount equal to the prorated portion of the then-current distribution period for the REIT Class M Preferred Shares).

“Class M Preferred Unit Distribution Payment Date” shall have the meaning set forth in Section 18.2(a).

“Class M Preferred Units” shall have the meaning set forth in Section 18.1.

“Class M Priority Return” shall mean an amount equal to 5.25% per annum on the stated value of $25,000.00 per Class M Preferred Unit, commencing on the date of original issuance of the Class M Preferred Units. For any partial quarterly period, the amount of the Class M Priority Return shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.

“Closing Price” has the meaning set forth in the definition of “Value.”

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

“Common Unit” means a fractional, undivided share of the Membership Interests of all Members issued pursuant to Sections 4.1 and 4.2 hereof, but does not include any Preferred Unit, LTIP Unit or any other Membership Unit specified in a Membership Unit Designation as being other than a Common Unit.

“Common Unit Economic Balance” means (i) the Capital Account balance of the Managing Member, plus the amount of the Managing Member’s share of any Member Minimum Gain or Company Minimum Gain, in either case to the extent attributable to the Managing Member’s ownership of Common Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under Section 6.2(d) hereof, divided by (ii) the number of the Managing Member’s Common Units.

“Company” has the meaning set forth in the preamble.

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

“Company Record Date” means the record date established by the Managing Member for the purpose of determining the Members entitled to notice of or to vote at any meeting of Members or to consent to any matter, or to receive any distribution or the allotment of any other rights, or in order to make a determination of Members for any other proper purpose, which, in the case of a distribution of Available Cash pursuant to Section 5.1 hereof, shall, absent a contrary determination by the Managing Member, be the same as the record date established by the Managing Member for a distribution to its stockholders of some or all of its portion of such distribution.

“Company Representative” has the meaning set forth in Section 10.3(a) hereof.

“Consent” means the consent to, approval of, or vote in favor of a proposed action by a Member given in accordance with Article 14 hereof. The terms “Consented” and “Consenting” have correlative meanings.

“Consent of the Managing Member” means the Consent of the Managing Member, which Consent, except as otherwise specifically required by this Agreement, may be obtained prior to or after the taking of any action for which it is required by this Agreement and may be given or withheld by the Managing Member in its sole and absolute discretion.

“Consent of the Non-Managing Members” means the Consent of a Majority in Interest of the Non-Managing Members, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld by each Non-Managing Member in its sole and absolute discretion.

“Consent of the Members” means the Consent of the Managing Member and the Consent of a Majority in Interest of the Members, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld by the Managing Member or the Members in their sole and absolute discretion; provided, however, that, if any such action affects only certain classes or series of Membership Interests, “Consent of the Members” means the Consent of the Managing Member and the Consent of a Majority in Interest of the Members of the affected classes or series of Membership Interests.

“Constituent Person” has the meaning set forth in Section 16.9(f) hereof.

“Contributed Property” means each Property or other asset, in such form as may be permitted by the Act, but excluding cash, contributed or deemed contributed to the Company.

“Controlled Entity” means, as to any Member, (a) any corporation more than fifty percent (50%) of the outstanding voting stock of which is owned by such Member or such Member’s Family Members or Affiliates, (b) any trust, whether or not revocable, of which such Member or such Member’s Family Members or Affiliates are the sole beneficiaries, (c) any partnership of which such Member or its Affiliates are the managing partners and in which such Member, such Member’s Family Members or Affiliates hold partnership interests representing at least twenty-five percent (25%) of such partnership’s capital and profits and (d) any limited liability company of which such Member or its Affiliates are the managers and in which such Member, such Member’s Family Members or Affiliates hold membership interests representing at least twenty-five percent (25%) of such limited liability company’s capital and profits.

“Conversion Date” has the meaning set forth in Section 16.9(b) hereof.

“Conversion Notice” has the meaning set forth in Section 16.9(b) hereof.

“Conversion Right” has the meaning set forth in Section 16.9(a) hereof.

“Cut-Off Date” means the thirtieth (30th) Business Day after the Managing Member’s receipt of a Notice of Redemption.

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

“Delaware Courts” has the meaning set forth in Section 15.9(b) hereof.

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

“Designated Individual” has the meaning set forth in Section 10.3(a) hereof.

“Disregarded Entity” means, with respect to any Person, (i) any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of such Person, (ii) any entity treated as a disregarded entity for federal income tax purposes with respect to such Person, or (iii) any grantor trust if the sole owner of the assets of such trust for federal income tax purposes is such Person.

“Distributed Right” has the meaning set forth in the definition of “Adjustment Factor.”

“Economic Capital Account Balance” means, with respect to a Holder of LTIP Units, its Capital Account balance, plus the amount of its share of any Member Minimum Gain or Company Minimum Gain, in either case to the extent attributable to its ownership of LTIP Units.

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

“Equity Plan” means any stock, unit or equity purchase plan, restricted stock, unit or equity plan or other similar equity compensation plan as of the date hereof or hereafter adopted by the Company or the Managing Member, including the Plan.

“Excess Share” means a share of any class or series of stock of the Managing Member now or hereafter authorized that is designated as a share of “Excess Stock” or as “Excess Preferred Stock” of any class or series pursuant to the Charter.

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

“Family Members” means, as to a Person that is an individual, such Person’s spouse, ancestors, descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters, nieces and nephews and inter vivos or testamentary trusts (whether revocable or irrevocable) of which only such Person and his or her spouse, ancestors, descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters and nieces and nephews are beneficiaries.

“Final Adjustment” has the meaning set forth in Section 10.3(b)(ii) hereof.

“Fiscal Year” means the fiscal year of the Company, which shall be the tax year of the Company. The tax year shall be the calendar year unless otherwise required by the Code.

“Forced Conversion” has the meaning set forth in Section 16.9(c) hereof.

“Forced Conversion Notice” has the meaning set forth in Section 16.9(c) hereof.

“Funding Debt” means any Debt incurred by or on behalf of the Managing Member for the purpose of providing funds to the Company.

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

“Hart-Scott-Rodino Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Holder” means either (a) a Member or (b) an Assignee owning a Membership Interest.

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

“Indemnitee” means (a) (i) the Managing Member, the Company Representative or the Designated Individual or (ii) each present or former director of the Managing Member or officer of the Company or the Managing Member and (b) such other Persons (including Affiliates or employees of the Managing Member or the Company) as the Company may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.

“Initial Holding Period” means, respect to any Common Units held by a Qualifying Party or any of their successors-in-interest, a period ending on the day before the first fourteen-month anniversary of such date that the Qualifying Party first became a Holder of such Common Units; provided, however, that the Managing Member may, in its sole and absolute discretion, by written agreement with a Qualifying Party or any such successor-in-interest, shorten or lengthen the Initial Holding Period applicable to any Common Units, held by a Qualifying Party and/or its successors-in-interest to a period of shorter or longer than fourteen (14) months. For sake of clarity, as applied to a Common Unit that is issued upon conversion of an LTIP Unit pursuant to Section 16.9 (and subject to the proviso in the immediately preceding sentence, if applicable), the Initial Holding Period of such Common Unit shall end on the day before the first fourteen-month anniversary of the date that the underlying LTIP Unit was first issued.

“IRS” means the United States Internal Revenue Service.

“Junior Units” means Membership Units representing any class or series of Membership Interest ranking, as to distributions or voluntary or involuntary liquidation, dissolution or winding-up of the Company, junior to the Class L Preferred Units or the Class M Preferred Units.

“Liquidating Event” has the meaning set forth in Section 13.1 hereof.

“Liquidating Gains” means any net gain realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Company (including upon the occurrence of any Liquidating Event or Terminating Capital Transaction), including but not limited to net gain realized in connection with an adjustment to the Gross Asset Value of Company assets under the definition of Gross Asset Value in Section 1 of this Agreement.

“Liquidator” has the meaning set forth in Section 13.2(a) hereof.

“LTIP Unit Agreement” means any written agreement(s) between the Company and any recipient of LTIP Units evidencing the terms and conditions of any LTIP Units, including any vesting, forfeiture and other terms and conditions as may apply to such LTIP Units, consistent with the terms hereof and of the Plan (or other applicable Equity Plan governing such LTIP Units).

“LTIP Unit Distribution Payment Date” has the meaning set forth in Section 16.4(c) hereof.

“LTIP Units” means the Membership Units designated as such having the rights, powers, privileges, restrictions, qualifications and limitations set forth herein and in the Plan. LTIP Units can be issued in one or more classes, or one or more series of any such classes bearing such relationship to one another as to allocations, distributions, and other rights as the Managing Member shall determine in its sole and absolute discretion subject to Delaware law and this Agreement.

“Majority in Interest of the Non-Managing Members” means the Non-Managing Members holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all Non-Managing Members entitled to Consent to or withhold Consent from a proposed action.

“Majority in Interest of the Members” means Members holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all Members entitled to Consent to or withhold Consent from a proposed action.

“Managing Member” means Kimco and its successors and assigns as a Managing Member of the Company, in each case, that is admitted from time to time to the Company as a Managing Member, and has not ceased to be a Managing Member, pursuant to the Act and this Agreement, in such Person’s capacity as a Managing Member of the Company.

“Managing Member Interest” means the entire Membership Interest held by a Managing Member hereof, which Membership Interest may be expressed as a number of Common Units, Preferred Units or any other Membership Units.

“Market Price” has the meaning set forth in the definition of “Value.”

“Member” means any Person that is admitted from time to time to the Company as a Member, and has not ceased to be a Member pursuant to the Act and this Agreement, of the Company, including any Substituted Member or Additional Member or the Managing Member, in such Person’s capacity as a Member of the Company.

“Member Interest” means a Membership Interest of a Member, other than the Managing Member, in the Company representing a fractional part of the Membership Interests of all Members, other than the Managing Member, and includes any and all benefits to which the holder of such a Membership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Member Interest may be expressed as a number of Common Units, Preferred Units or other Membership Units.

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

“Member Nonrecourse Debt” has the meaning set forth in Regulations Section 1.704-2(b)(4) applicable to the term “partner nonrecourse debt.”

“Member Nonrecourse Deductions” has the meaning set forth in Regulations Section 1.704-2(i)(1) for the term “partner nonrecourse deductions,” and the amount of Member Nonrecourse Deductions with respect to a Member Nonrecourse Debt for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2) applicable to the term “partner nonrecourse deductions”.

“Member Registry” means the registry maintained by the Managing Member in the books and records of the Company.

“Membership Equivalent Units” has the meaning set forth in Section 4.7(a) hereof.

“Membership Interest” means an ownership interest in the Company held by either a Member or a Managing Member and includes any and all benefits to which the holder of such a Membership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. There may be one or more classes or series of Membership Interests. A Membership Interest may be expressed as a number of Common Units, Preferred Units or other Membership Units; however, notwithstanding that the Managing Member and any Member may have different rights and privileges as specified in this Agreement (including differences in rights and privileges with respect to their Membership Interests), the Membership Interest held by the Managing Member or any other Member and designated as being of a particular class or series shall not be deemed to be a separate class or series of Membership Interest from a Membership Interest having the same designation as to class and series that is held by any other Member solely because such Membership Interest is held by the Managing Member or other Member having different rights and privileges as specified under this Agreement.

“Membership Unit” means a Common Unit, a Preferred Unit, a LTIP Unit or any other unit of the fractional, undivided share of the Membership Interests that the Managing Member has authorized pursuant to Section 4.2 hereof.

“Membership Unit Designation” shall have the meaning set forth in Section 4.2(a) hereof.

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

“New Securities” means (a) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase REIT Shares or Preferred Shares, excluding grants under any Equity Plan, or (b) any Debt issued by the Managing Member or any subsidiary of the Managing Member that provides any of the rights described in clause (a).

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

“Nonrecourse Liability” has the meaning set forth in Regulations Sections 1.704-2(b)(3) and 1.752-1(a)(2).

“Non-Managing Members” means Members other than (i) the Managing Member or (ii) any Member fifty percent (50%) or more of whose equity is owned, directly or indirectly, by the Managing Member.

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

“Optionee” means a Person to whom a stock option is granted under any Equity Plan.

“Ownership Limit” means the restriction or restrictions on the ownership and transfer of stock of the Managing Member imposed under the Charter.

“Parity Preferred Unit” means any class or series of Membership Interests of the Company now or hereafter authorized, issued or outstanding expressly designated by the Company to rank on a parity with the Class L Preferred Units and the Class M Preferred Units with respect to distributions or rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Company, or both, as the context may require.

“Percentage Interest” means, with respect to each Member, the fraction, expressed as a percentage, the numerator of which is the aggregate number of Membership Units of all classes and series held by such Member and the denominator of which is the total number of Membership Units of all classes and series held by all Members; provided, however, that, to the extent applicable in context, the term “Percentage Interest” means, with respect to a Member, the fraction, expressed as a percentage, the numerator of which is the aggregate number of Membership Units of a specified class or series (or specified group of classes and/or series) held by such Member and the denominator of which is the total number of Membership Units of such specified class or series (or specified group of classes and/or series) held by all Members.

“Performance LTIP Units” shall mean LTIP Units that vest in whole or in part based on the attainment of performance-vesting conditions.

“Performance Unit Sharing Percentage” shall mean 10%.

“Permitted Transfer” has the meaning set forth in Section 11.3(a) hereof.

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

“Plan” means the 2020 Equity Participation Plan, as amended and/or restated from time to time, or any successor plan to such plan.

“Pledge” has the meaning set forth in Section 11.3(a) hereof.

“Preferred Distribution Shortfall” means, with respect to any Membership Interests that are entitled to any preference in distributions of Available Cash pursuant to this Agreement, the aggregate amount of the required distributions for such outstanding Membership Interests for all prior distribution periods minus the aggregate amount of the distributions made with respect to such outstanding Membership Interests pursuant to this Agreement.

“Preferred Share” means a share of stock of the Managing Member of any class or series now or hereafter authorized or reclassified that has dividend rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the REIT Shares.

“Preferred Unit” means a fractional, undivided share of the Membership Interests of a particular class or series that the Managing Member has authorized pursuant to Section 4.2 hereof that has distribution rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the Common Units, including Class L Preferred Units and Class M Preferred Units.

“Properties” means any assets and property of the Company such as, but not limited to, interests in real property and personal property, including, without limitation, fee interests, interests in ground leases, easements and rights of way, interests in limited liability companies, joint ventures or partnerships, interests in mortgages, and Debt instruments as the Company may hold from time to time and “Property” means any one such asset or property.

“Proposed Section 83 Safe Harbor Regulation” has the meaning set forth in Section 16.11 hereof.

“Publicly Traded” means listed or admitted to trading on the New York Stock Exchange, the NASDAQ Stock Market, or any nationally or internationally recognized stock exchange or any successor to any of the foregoing.

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

“Qualifying Party” means (a) a Member, (b) an Assignee or (c) a Person, including a lending institution as the pledgee of a Pledge, who is the transferee of a Member Interest in a Permitted Transfer; provided, however, that a Qualifying Party shall not include the Managing Member.

“Redemption” has the meaning set forth in Section 15.1(a) hereof.

“Regulations” means the income tax regulations under the Code, whether such regulations are in proposed, temporary or final form, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“Regulatory Allocations” has the meaning set forth in Section 6.4(a)(viii) hereof.

“REIT” means a real estate investment trust qualifying under Code Section 856.

“REIT Member” means (a) the Managing Member or any Affiliate of the Managing Member to the extent such person has in place an election to qualify as a REIT and (b) any Disregarded Entity with respect to any such Person.

“REIT Payment” has the meaning set forth in Section 15.12 hereof.

“REIT Requirements” has the meaning set forth in Section 5.1 hereof.

“REIT Share” means a share of common stock of the Managing Member, $0.01 par value per share, but shall not include any class or series of the Managing Member’s common stock classified after the date of this Agreement; provided, however that if (i) the shares of common stock of the Managing Member are at any time not Publicly Traded, and (ii) the shares of common stock (or other comparable equity securities) of an entity that owns, directly or indirectly, all of the common stock of the Managing Member are Publicly Traded, the term “REIT Share” shall refer to the common stock (or other comparable equity securities) of such entity that is Publicly Traded.

“REIT Shares Amount” means a number of REIT Shares equal to the product of (a) the number of Tendered Units and (b) the Adjustment Factor; provided, however, that, in the event that the Managing Member issues to all holders of REIT Shares as of a certain record date rights, options, warrants or convertible or exchangeable securities entitling the Managing Member’s stockholders to subscribe for or purchase REIT Shares, or any other securities or property (collectively, the “Rights”), with the record date for such Rights issuance falling within the period starting on the date of the Notice of Redemption and ending on the day immediately preceding the Specified Redemption Date, which Rights will not be distributed before the relevant Specified Redemption Date, then the REIT Shares Amount shall also include such Rights that a holder of that number of REIT Shares would be entitled to receive, expressed, where relevant hereunder, in a number of REIT Shares determined by the Managing Member.

“REIT Class L Preferred Share” means a share of 5.125 % Class L Cumulative Redeemable Preferred Stock, par value $1.00 per share, liquidation preference $25,000.00 per share, of the Managing Member, with such rights, priorities and preferences as shall be designated by the Board of Directors in accordance with the Charter.

“REIT Class M Preferred Share” means a share of 5.25% Class M Cumulative Redeemable Preferred Stock, par value $1.00 per share, liquidation preference $25,000.00 per share, of the Managing Member, with such rights, priorities and preferences as shall be designated by the Board of Directors in accordance with the Charter.

“Related Party” means, with respect to any Person, any other Person to whom ownership of shares of the Managing Member’s stock by the first such Person would be attributed under Code Section 544 (as modified by Code Section 856(h)(1)(B)) or Code Section 318(a) (as modified by Code Section 856(d)(5)).

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

“Safe Harbors” has the meaning set forth in Section 11.3(c) hereof.

“SEC” means the Securities and Exchange Commission.

“Section 83 Safe Harbor” has the meaning set forth in Section 16.11 hereof.

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

“Special Redemption” has the meaning set forth in Section 15.1(a) hereof.

“Specified Redemption Date” means the thirtieth (30th) Business Day after the receipt by the Managing Member of a Notice of Redemption; provided, however, that no Specified Redemption Date shall occur during the Initial Holding Period with respect to any Common Units (except pursuant to a Special Redemption).

“Subsidiary” means, with respect to any Person, any corporation or other entity of which a majority of (a) the voting power of the voting equity securities or (b) the outstanding equity interests is owned, directly or indirectly, by such Person; provided, however, that, with respect to the Company, “Subsidiary” means solely a partnership or limited liability company (taxed, for federal income tax purposes, as a partnership or as a Disregarded Entity and not as an association or publicly traded partnership taxable as a corporation) of which the Company is a partner or member or any “taxable REIT subsidiary” (within the meaning of Code Section 856(l)) of the Managing Member in which the Company owns shares of stock, unless the ownership of shares of stock of a corporation or other entity (other than a “taxable REIT subsidiary”) will not jeopardize the Managing Member’s status as a REIT or any Managing Member Affiliate’s status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or “taxable REIT subsidiary,” in which event the term “Subsidiary” shall include such corporation or other entity.

“Substituted Member” means a Person who is admitted as a Member to the Company pursuant to the Act and (a) Section 11.4 hereof or (b) pursuant to any Membership Unit Designation.

“Surviving Company” has the meaning set forth in Section 11.2(b)(ii) hereof.

“Tax Items” has the meaning set forth in Section 6.5(a) hereof.

“Tendered Units” has the meaning set forth in Section 15.1(a) hereof.

“Tendering Party” has the meaning set forth in Section 15.1(a) hereof.

“Terminating Capital Transaction” means any sale or other disposition of all or substantially all of the assets of the Company or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Company, in any case, not in the ordinary course of the Company’s business.

“Termination Transaction” has the meaning set forth in Section 11.2(b) hereof.

“Transfer” means any sale, assignment, bequest, conveyance, devise, gift (outright or in trust), Pledge, encumbrance, hypothecation, mortgage, exchange, transfer or other disposition or act of alienation, whether voluntary, involuntary or by operation of law; provided, however, that when the term is used in Article 11 hereof, except as otherwise expressly provided, “Transfer” does not include (a) any Redemption of Common Units by the Company, or acquisition of Tendered Units by the Managing Member, pursuant to Section 15.1, (b) any conversion of LTIP Units into Common Units pursuant to Section 16.9 hereof or (c) any conversion, redemption, exchange or acquisition by the Managing Member of Class L Preferred Units, Class M Preferred Units or other Membership Equivalent Units pursuant to Section 4.7 or any Membership Unit Designation. The terms “Transferred” and “Transferring” have correlative meanings.

“Valuation Date” means the date of receipt by the Managing Member of a Notice of Redemption pursuant to Section 15.1 herein, or such other date as specified herein, or, if such date is not a Business Day, the immediately preceding Business Day.

“Value” means, on any Valuation Date with respect to a REIT Share, the average of the daily Market Prices for ten (10) consecutive trading days immediately preceding the Valuation Date (except that, with respect to any REIT Share underlying any stock option, Value shall mean the term “Fair Market Value” or term of similar import set forth in the Equity Plan under which such stock option was granted). The term “Market Price” on any date means, with respect to any class or series of outstanding REIT Shares, the Closing Price for such REIT Shares on such date. The “Closing Price” on any date means the last sale price for such REIT Shares, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such REIT Shares, in either case as reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such REIT Shares are listed or admitted to trading or, if such REIT Shares are 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 bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or, if such system is no longer in use, the principal other automated quotation system that may then be in use or, if such REIT Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such REIT Shares selected by the Board of Directors or, in the event that no trading price is available for such REIT Shares, the fair market value of the REIT Shares, as determined by the Board of Directors. Notwithstanding the foregoing, the Managing Member, in its reasonable discretion, may use the “Market Price” as defined in the Class L Articles Supplementary or the Class M Articles Supplementary, as applicable (or such other price for the REIT Shares that was used to determine the number of REIT Shares issued upon the conversion of REIT Class L Preferred Shares or REIT Class M Preferred Shares, as applicable, into REIT Shares) for purposes of making the determinations of “Gross Asset Value” in connection with the conversion of the Class L Preferred Units or Class M Preferred Units pursuant to Section 4.7(a).

In the event that the REIT Shares Amount includes Rights that a holder of REIT Shares would be entitled to receive, then the Value of such Rights shall be determined by the Managing Member on the basis of such quotations and other information as it considers appropriate.

“Vested LTIP Units” has the meaning set forth in Section 16.2(a) hereof.

“Vesting Agreement” has the meaning set forth in Section 16.2(a) hereof.

ARTICLE 2
ORGANIZATIONAL MATTERS

Section 2.1            Formation. Effective at the effective time of the Conversion under the Act and immediately following the Merger, (i) the charter and the Bylaws of the Predecessor, shall be and hereby are replaced and superseded in their entirety by the Certificate of Formation and this Agreement in respect of all periods beginning on or after the effective time of the Conversion, (ii) the sole stockholder of the Predecessor converted all of the issued and outstanding capital stock of the Predecessor into all of the limited liability company interests in the Company, (iii) all of the capital stock in the Predecessor issued and outstanding immediately prior to the effective time of the Conversion shall be and hereby is canceled on the books and records of the Predecessor and (iv) the Managing Member, the sole stockholder of the Predecessor, was admitted to the Company as the sole member of the Company. Glenn Cohen is hereby designated as an authorized person within the meaning of the Act, and has executed, delivered and filed the Certificate of Conversion and Certificate of Formation with the Office of the Secretary of State. Upon the filing of the Certificate of Conversion and Certificate of Formation, his powers as an “authorized person” ceased, and the Managing Member thereupon became a designated “authorized person” within the meaning of the Act. The Managing Member hereby ratifies, confirms and approves the Certificate of Conversion and Certificate of Formation and all actions taken by Glenn Cohen, in his capacity as an authorized person within the meaning of the Act. The Managing Member shall do, and continue to do, all other things that are required or advisable to maintain the Company as a limited liability company existing pursuant to the laws of the State of Delaware. The Managing Member shall execute, deliver and file any other certificates (and any amendment and/or restatements thereof) required to be filed under the Act or necessary for the Company to qualify to do business in any jurisdiction in which the Company may wish to conduct business. The Company is a limited liability company organized pursuant to the provisions of the Act and 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 Members and the administration and termination of the Company shall be governed by the Act. The Membership Interest of each Member shall be personal property for all purposes.

Section 2.2            Name. The name of the Company is “Kimco Realty OP, LLC”. The Company’s business may be conducted under any other name or names deemed advisable by the Managing Member, including the name of the Managing Member or any Affiliate thereof. The Managing Member in its sole and absolute discretion may change the name of the Company at any time and from time to time.

Section 2.3           Principal Office and Resident Agent; Principal Executive Office. The address of the registered office of the Company in the State of Delaware as of the date hereof is c/o 1209 N Orange St., Wilmington, Delaware 19801, and the registered agent for service of process on the Company in the State of Delaware at such registered office as of the date hereof is The Corporation Trust Company. The Managing Member may, from time to time, designate a new registered agent and/or registered office for the Company and, notwithstanding any provision in this Agreement, may amend this Agreement and the Certificate to reflect such designation without the Consent of the Members or any other Person. The principal office of the Company shall be 500 North Broadway, Suite 201, Jericho, New York 11753, or such other place as the Managing Member may from time to time designate by notice to the Members. The Company may maintain offices at such other place or places within or outside the State of Delaware as the Managing Member may from time to time designate.

Section 2.4            Power of Attorney.

(a)           Each Member and Assignee hereby irrevocably constitutes and appoints the Managing Member, any Liquidator, and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:

(i)             execute, swear to, seal, acknowledge, deliver, file and record in the appropriate public offices: (A) all certificates, documents and other instruments (including, without limitation, this Agreement and the Certificate and all amendments, supplements or restatements thereof) that the Managing Member or the Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Company as a limited liability company in the State of Delaware and in all other jurisdictions in which the Company may conduct business or own property; (B) all instruments that the Managing Member or any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (C) all conveyances and other instruments or documents that the Managing Member or the Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Company pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (D) all conveyances and other instruments or documents that the Managing Member or the Liquidator deems appropriate or necessary to reflect the distribution or exchange of assets of the Company pursuant to the terms of this Agreement; (E) all instruments relating to the admission, acceptance, withdrawal, removal or substitution of any Member pursuant to the terms of this Agreement or the Capital Contribution of any Member; and (F) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges relating to Membership Interests; and

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

Nothing contained herein shall be construed as authorizing the Managing Member or any Liquidator to amend this Agreement except in accordance with Section 14.2 hereof or as may be otherwise expressly provided for in this Agreement.

(b)           The foregoing power of attorney is hereby declared to be irrevocable and a special power coupled with an interest, in recognition of the fact that each of the Members and Assignees will be relying upon the power of the Managing Member or the Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Company, and it shall survive and not be affected by the subsequent Incapacity of any Member or Assignee and the Transfer of all or any portion of such Person’s Membership Interest and shall extend to such Person’s heirs, successors, assigns and personal representatives. Each such Member and Assignee hereby agrees to be bound by any representation made by the Managing Member or the Liquidator, acting in good faith pursuant to such power of attorney; and, to the fullest extent permitted by law, each such Member and Assignee hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Managing Member or the Liquidator, taken in good faith under such power of attorney. Each Member and Assignee shall execute and deliver to the Managing Member or the Liquidator, within fifteen (15) days after receipt of the Managing Member’s or the Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the Managing Member or the Liquidator (as the case may be) deems necessary to effectuate this Agreement and the purposes of the Company. Notwithstanding anything else set forth in this Section 2.4(b), no Member shall incur any personal liability for any action of the Managing Member or the Liquidator taken under such power of attorney.

Section 2.5            Term. The term of the Company commenced on January 3, 2023, and shall continue indefinitely unless the Company is dissolved sooner pursuant to the provisions of Article 13 hereof or as otherwise provided by law.

Section 2.6            Membership Interests Are Securities. All Membership Interests shall be securities within the meaning of, and governed by Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.

ARTICLE 3
PURPOSE

Section 3.1            Purpose and Business. The purpose and nature of the Company is to conduct any business, enterprise or activity permitted by or under the Act, whether directly or through one or more partnerships, joint ventures, Subsidiaries, business trusts, limited liability companies or similar arrangements.

Section 3.2           Powers. The Company shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Company including, without limitation, full power and authority, directly or through its ownership interest in other entities, to enter into, perform and carry out contracts of any kind, to borrow and lend money and to issue evidence of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien, to acquire, own, manage, improve and develop real property and lease, sell, transfer and dispose of real property.

Section 3.3           Nature of Relationship of Members. The Company shall be a limited liability company formed pursuant to the Act, and this Agreement shall not be deemed to create a venture or partnership between or among the Members or any other Persons with respect to any activities whatsoever. Except as otherwise provided in this Agreement, no Member shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Company, its properties or any other Member. No Member, in its capacity as a Member under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Member, nor shall the Company be responsible or liable for any indebtedness or obligation of any Member, incurred either before or after the execution and delivery of this Agreement by such Member, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to, and as limited by, the terms of this Agreement and the Act.

Section 3.4            Representations and Warranties by the Members.

(a)           Each Member that is an individual (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or a Substituted Member) represents and warrants to, and covenants with, each other Member that (i) the consummation of the transactions contemplated by this Agreement to be performed by such Member will not result in a breach or violation of, or a default under, any material agreement by which such Member or any of such Member’s property is bound, or any statute, regulation, order or other law to which such Member is subject, (ii) if five percent (5%) or more (by value) of the Company’s interests are or will be owned by such Member within the meaning of Code Section 7704(d)(3), such Member does not, and for so long as it is a Member will not, own, directly or indirectly, (A) stock of any corporation that is a tenant of (I) the Managing Member or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity of which the Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member or (B) an interest in the assets or net profits of any non-corporate tenant of (I) the Managing Member or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity of which the Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member, (iii) such Member has the legal capacity to enter into this Agreement and perform such Member’s obligations hereunder, and (iv) this Agreement is binding upon, and enforceable against, such Member in accordance with its terms. Notwithstanding the foregoing, a Member that is an individual shall not be subject to the ownership restrictions set forth in clause (ii) of the immediately preceding sentence to the extent such Member obtains the written Consent of the Managing Member prior to violating any such restrictions, which consent the Managing Member may give or withhold in its sole and absolute discretion. Each Member that is an individual shall also represent and warrant to the Company that such Member is neither a “foreign person” within the meaning of Code Section 1445(f) nor a foreign partner within the meaning of Code Section 1446(e).

(b)           Each Member that is not an individual (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or a Substituted Member) represents and warrants to, and covenants with, each other Member that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), managing member(s), member(s), committee(s), trustee(s), beneficiaries, directors and/or stockholder(s) (as the case may be) as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, charter or bylaws (as the case may be) any material agreement by which such Member or any of such Member’s properties or any of its partners, members, beneficiaries, trustees or stockholders (as the case may be) is or are bound, or any statute, regulation, order or other law to which such Member or any of its partners, members, trustees, beneficiaries or stockholders (as the case may be) is or are subject, (iii) if five percent (5%) or more (by value) of the Company’s interests are or will be owned by such Member within the meaning of Code Section 7704(d)(3), such Member does not, and for so long as it is a Member will not, own, directly or indirectly, (A) stock of any corporation that is a tenant of (I) the Managing Member or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity of which the Managing Member, any Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member or (B) an interest in the assets or net profits of any non-corporate tenant of (I) the Managing Member, or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity for which the Managing Member, any Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member, and (iv) this Agreement is binding upon, and enforceable against, such Member in accordance with its terms. Notwithstanding the foregoing, a Member that is not an individual shall not be subject to the ownership restrictions set forth in clause (iii) of the immediately preceding sentence to the extent such Member obtains the written Consent of the Managing Member prior to violating any such restrictions, which consent the Managing Member may give or withhold in its sole and absolute discretion. Each Member that is not an individual shall also represent and warrant to the Company that such Member is neither a “foreign person” within the meaning of Code Section 1445(f) nor a foreign partner within the meaning of Code Section 1446(e).

(c)           Each Member (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or Substituted Member) represents, warrants and agrees that (i) it has acquired and continues to hold its interest in the Company for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances in violation of applicable laws and (ii) it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Company in what it understands to be a highly speculative and illiquid investment.

(d)           The representations and warranties contained in Sections 3.4(a), 3.4(b) and 3.4(c) hereof shall survive the execution and delivery of this Agreement by each Member (and, in the case of an Additional Member or a Substituted Member, the admission of such Additional Member or Substituted Member as a Member in the Company) and the dissolution, liquidation and termination of the Company.

(e)           Each Member (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or Substituted Member) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Company or the Managing Member have been made by any Member or any employee or representative or Affiliate of any Member, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Member shall not constitute any representation or warranty of any kind or nature, express or implied.

(f)            Notwithstanding the foregoing, the Managing Member may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4(a), 3.4(b) and 3.4(c) above as applicable to any Member (including, without limitation any Additional Member or Substituted Member or any transferee of either), provided that such representations and warranties, as modified, shall be set forth in either (i) a Membership Unit Designation applicable to the Membership Units held by such Member or (ii) a separate writing addressed to the Company and the Managing Member.

ARTICLE 4
CAPITAL CONTRIBUTIONS

Section 4.1           Capital Contributions of the Members. The Members have heretofore made or are deemed to have made Capital Contributions to the Company. Except as provided by law or in Section 4.2, 4.3, or 10.4 hereof, the Members shall have no obligation or, except with the prior Consent of the Managing Member, right to make any additional Capital Contributions or loans to the Company. The Managing Member shall cause to be maintained in the principal business office of the Company, or such other place as may be determined by the Managing Member, the Member Registry of the Company, which shall include, among other things, a register containing the name, address, and number, class and series of Membership Units of each Member, and such other information as the Managing Member may deem necessary or desirable. The Member Registry shall not be part of this Agreement. The Managing Member shall from time to time update the Member Registry as necessary to accurately reflect the information therein, including as a result of any sales, exchanges or other Transfers, or any redemptions, issuances or similar events involving Membership Units. Any reference in this Agreement to the Member Registry shall be deemed a reference to the Member Registry as in effect from time to time. Subject to the terms of this Agreement, the Managing Member may take any action authorized hereunder in respect of the Member Registry without any need to obtain the consent or approval of any other Member. No action of any Member shall be required to amend or update the Member Registry. Except as required by law, no Member shall be entitled to receive a copy of the information set forth in the Member Registry relating to any Member other than itself.

Section 4.2            Issuances of Additional Membership Interests. Subject to the rights of any Holder of any Membership Interest set forth in a Membership Unit Designation:

(a)           General. Subject to the terms of this Agreement, including Section 4.2(c), below, the Managing Member is hereby authorized to cause the Company to issue additional Membership Interests, in the form of Membership Units, for any Company purpose, at any time or from time to time, to the Members (including the Managing Member) or to other Persons, and to admit such Persons as Additional Members, for such consideration and on such terms and conditions as shall be established by the Managing Member in its sole and absolute discretion, all without the approval of any Member or any other Person. Without limiting the foregoing, the Managing Member is expressly authorized to cause the Company to issue Membership Units (i) upon the conversion, redemption or exchange of any Debt, Membership Units, or other securities issued by the Company, (ii) for less than fair market value, (iii) for no consideration, (iv) in connection with any merger of any other Person into the Company or any other Subsidiary of the Managing Member or (v) upon the contribution of property or assets to the Company. Any additional Membership Interests may be issued in one or more classes or series, or one or more series of any of such classes, with such designations, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption (including, without limitation, terms that may be senior or otherwise entitled to preference over existing Membership Units) as shall be determined by the Managing Member, in its sole and absolute discretion without the approval of any Member or any other Person, and set forth in this Agreement or a written document thereafter attached to and made an exhibit to this Agreement, which exhibit shall be an amendment to this Agreement and shall be incorporated herein by this reference (each, a “Membership Unit Designation”), without the approval of any Member or any other Person. Without limiting the generality of the foregoing, the Managing Member shall have authority to specify: (A) the allocations of items of Company income, gain, loss, deduction and credit to each such class or series of Membership Interests; (B) the right of each such class or series of Membership Interests to share (on a pari passu, junior or preferred basis) in Company distributions; (C) the rights of each such class or series of Membership Interests upon dissolution and liquidation of the Company; (D) the voting rights, if any, of each such class or series of Membership Interests; and (E) the conversion, redemption or exchange rights applicable to each such class or series of Membership Interests. Except as expressly set forth in any Membership Unit Designation, a Membership Interest of any class or series other than a Common Unit shall not entitle the holder thereof to vote on, or consent to, any matter. Upon the issuance of any additional Membership Interest, the Managing Member shall update the Member Registry and the books and records of the Company as appropriate to reflect such issuance.

(b)           Issuances of LTIP Units. Without limiting the generality of the foregoing, from time to time, the Managing Member is hereby authorized to issue LTIP Units to Persons providing services to or for the benefit of the Company for such consideration or for no consideration as the Managing Member may determine to be appropriate and on such terms and conditions as shall be established by the Managing Member, and admit such Persons as Members. Except to the extent a Capital Contribution is made with respect to an LTIP Unit or as otherwise determined by the Managing Member, each LTIP Unit is intended to qualify as a “profits interest” in the Company within the meaning of the Code, the Regulations, and any published guidance by the IRS with respect thereto. Except as may be provided from time to time by the Managing Member, LTIP Units shall have the terms set forth in Article 16.

(c)           Issuances to the Managing Member. No additional Membership Units shall be issued to the Managing Member unless (i) the additional Membership Units are issued to all Members holding Common Units in proportion to their respective Percentage Interests in Common Units, (ii) (A) the additional Membership Units are (I) Common Units issued in connection with an issuance of REIT Shares, or (II) Membership Equivalent Units (other than Common Units) issued in connection with an issuance of Preferred Shares, New Securities or other interests in the Managing Member (other than REIT Shares), and (B) the Managing Member contributes to the Company the cash proceeds or other consideration received in connection with the issuance of such REIT Shares, Preferred Shares, New Securities or other interests in the Managing Member; (iii) the additional Membership Units are issued upon the conversion, redemption or exchange of Debt, Membership Units or other securities issued by the Company or (iv) the additional Membership Units are issued pursuant to Section 4.3(b), Section 4.3(e), Section 4.4 or Section 4.5.

(d)           No Preemptive Rights. Except as expressly provided in this Agreement or in any Membership Unit Designation, no Person, including, without limitation, any Member or Assignee, shall have any preemptive, preferential, participation or similar right or rights to subscribe for or acquire any Membership Interest.

Section 4.3            Additional Funds and Capital Contributions.

(a)           General. The Managing Member may, at any time and from time to time, determine that the Company requires additional funds (“Additional Funds”) for the acquisition or development of additional Properties, for the redemption of Membership Units or for such other purposes as the Managing Member may determine, in its sole and absolute discretion. Additional Funds may be obtained by the Company, at the election of the Managing Member, in any manner provided in, and in accordance with, the terms of this Section 4.3 without the approval of any Member or any other Person.

(b)           Additional Capital Contributions. The Managing Member, on behalf of the Company, may obtain any Additional Funds by accepting Capital Contributions from any Members or other Persons. In connection with any such Capital Contribution (of cash or property), the Managing Member is hereby authorized to cause the Company from time to time to issue additional Membership Units (as set forth in Section 4.2 above) in consideration therefor.

(c)           Loans by Third Parties. The Managing Member, on behalf of the Company, may obtain any Additional Funds by causing the Company to incur Debt to any Person (other than to the Managing Member (but, for this purpose, disregarding any Debt that may be deemed incurred to the Managing Member by virtue of clause (c) of the definition of Debt)) upon such terms as the Managing Member determines appropriate, including making such Debt convertible, redeemable or exchangeable for Membership Units or REIT Shares; provided, however, that the Company shall not incur any such Debt if any Member would be personally liable for the repayment of such Debt (unless such Member otherwise agrees).

(d)           Managing Member Loans. The Managing Member, on behalf of the Company, may obtain any Additional Funds by causing the Company to incur Debt to the Managing Member if (i) such Debt is, to the extent permitted by law, on substantially the same terms and conditions as to interest rate and repayment schedule (but, for avoidance of doubt, such Debt may have differing conversion, redemption, repurchase and exchange rights) as Funding Debt incurred by the Managing Member, the net proceeds of which are loaned to the Company to provide such Additional Funds, or (ii) such Debt is on terms and conditions no less favorable to the Company than would be available to the Company from any third party; provided, however, that the Company shall not incur any such Debt if any Member would be personally liable for the repayment of such Debt (unless such Member otherwise agrees).

(e)           Issuance of Securities by the Managing Member. The Managing Member shall not issue any additional REIT Shares, Capital Shares or New Securities unless the Managing Member contributes the cash proceeds or other consideration received from the issuance of such additional REIT Shares, Capital Shares or New Securities (as the case may be) and from the exercise of the rights contained in any such additional Capital Shares or New Securities to the Company in exchange for (x) in the case of an issuance of REIT Shares, Common Units, or (y) in the case of an issuance of Capital Shares or New Securities, Membership Equivalent Units; provided, however, that notwithstanding the foregoing, the Managing Member may issue REIT Shares, Capital Shares or New Securities (i) pursuant to Section 4.4 or Section 15.1(b) hereof, (ii) pursuant to a dividend or distribution (including any stock split) of REIT Shares, Capital Shares or New Securities to holders of REIT Shares, Capital Shares or New Securities (as the case may be), (iii) upon a conversion, redemption or exchange of Capital Shares, (iv) upon a conversion, redemption, exchange or exercise of New Securities, or (v) in connection with an acquisition by the Managing Member of outstanding Membership Units or of any property or other asset to be owned, directly or indirectly, by the Managing Member. In the event of any issuance of additional REIT Shares, Capital Shares or New Securities by the Managing Member, and the contribution, if applicable, to the Company, by the Managing Member, of the cash proceeds or other consideration received from such issuance (or property acquired with such proceeds), if any, if the cash proceeds actually received by the Managing Member are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid or incurred in connection with such issuance, then the Managing Member shall be deemed to have made a Capital Contribution to the Company in the amount equal to the sum of the cash proceeds of such issuance plus the amount of such underwriter’s discount and other expenses paid by the Managing Member (which discount and expense shall be treated as an expense for the benefit of the Company for purposes of Section 7.4). In the event that the Managing Member issues any additional REIT Shares, Capital Shares or New Securities and contributes the cash proceeds or other consideration received from the issuance thereof to the Company, the Company is expressly authorized to issue a number of Common Units or Membership Equivalent Units to the Managing Member equal to the number of REIT Shares, Capital Shares or New Securities so issued, divided by the Adjustment Factor then in effect, in accordance with this Section 4.3(e) without any further act, approval or vote of any Member or any other Persons.

Section 4.4           Equity Incentive Plans. Nothing in this Agreement shall be construed or applied to preclude or restrain the Managing Member or the Company from adopting, modifying or terminating equity incentive plans for the benefit of employees, directors, consultants or other business associates or service providers of the Managing Member, the Company or any of their Affiliates or from issuing REIT Shares, Capital Shares or New Securities pursuant to any such plans. The Managing Member may implement such plans and any actions taken under such plans (such as the grant or exercise of options to acquire REIT Shares, or the issuance of restricted REIT Shares), whether taken with respect to or by an employee or other service provider of the Managing Member, the Company or its Subsidiaries, in a manner determined by the Managing Member, which may be set forth in plan implementation guidelines that the Managing Member may establish or amend from time to time. The Members acknowledge and agree that, in the event that any such plan is adopted, modified or terminated by the Managing Member, amendments to this Agreement may become necessary or advisable and shall not require approval or Consent of any other Member. The Company is expressly authorized to issue Membership Units (a) in accordance with the terms of any such equity incentive plans or plan implementation guidelines or (b) in an amount equal to the number of REIT Shares, Capital Shares or New Securities issued pursuant to any such equity incentive plans, divided, if applicable, by the Adjustment Factor then in effect, without any further act, approval or vote of any Member or any other Persons.

Section 4.5           Dividend Reinvestment Plan, Cash Option Purchase Plan, Equity Incentive Plan or Other Plan. Except as may otherwise be provided in this Article 4, all amounts received or deemed received by the Managing Member in respect of any dividend reinvestment plan, cash option purchase plan, equity incentive or other equity or subscription plan or agreement, either (a) shall be utilized by the Managing Member to effect open market purchases of REIT Shares, or (b) if the Managing Member elects instead to issue new REIT Shares with respect to such amounts, shall be contributed by the Managing Member to the Company in exchange for additional Common Units. Upon such contribution, the Company will issue to the Managing Member a number of Common Units equal to the quotient of (i) the new REIT Shares so issued, divided by (ii) the Adjustment Factor then in effect.

Section 4.6            No Interest; No Return. No Member shall be entitled to interest on its Capital Contribution or on such Member’s Capital Account. Except as provided herein or by law, no Member shall have any right to demand or receive the return of its Capital Contribution from the Company.

Section 4.7            Conversion or Redemption of Capital Shares.

(a)           Conversion of Capital Shares. If, at any time, any of the Capital Shares are converted into REIT Shares, in whole or in part, then a number of Membership Units with preferences, conversion and other rights, restrictions (other than restrictions on transfer), rights and limitations as to dividends and other distributions, qualifications and terms and conditions of redemption that are substantially the same as the preferences, conversion and other rights, restrictions (other than restrictions on transfer), rights and limitations as to distributions, qualifications and terms and conditions of redemption as those of such Capital Shares (“Membership Equivalent Units”) or, in the case of conversion rights and terms and conditions of redemption, consistent with this Section 4.7 (for the avoidance of doubt, Membership Equivalent Units need not have voting rights, conversion rights, terms and conditions of redemption or restrictions on transfer that are substantially similar to the corresponding Capital Shares) equal to the number of Capital Shares so converted shall automatically be converted into a number of Common Units equal to the quotient of (i) the number of REIT Shares issued upon such conversion divided by (ii) the Adjustment Factor then in effect, and the Member Registry shall be adjusted to reflect such conversion.

(b)           Redemption or Repurchase of Capital Shares or REIT Shares. Except as otherwise provided in Section 4.7(c) or in Section 7.4(c), if, at any time, any Capital Shares are redeemed or otherwise repurchased (whether by exercise of a put or call, automatically or by means of another arrangement) by the Managing Member, the Company shall, immediately prior to such redemption or repurchase of Capital Shares, redeem an equal number of Membership Equivalent Units held by the Managing Member upon the same terms and for the same price per Membership Equivalent Unit as such Capital Shares are redeemed or repurchased. Except as otherwise provided in Section 4.7(c) or in Section 7.4(c), if, at any time, any REIT Shares are redeemed or otherwise repurchased by the Managing Member, the Company shall, immediately prior to such redemption or repurchase of REIT Shares, redeem or repurchase a number of Common Units held by the Managing Member equal to the quotient of (i) the REIT Shares so redeemed or repurchased, divided by (ii) the Adjustment Factor then in effect, such redemption or repurchase to be upon the same terms and for the same price per Common Unit (after giving effect to application of the Adjustment Factor) as such REIT Shares are redeemed or otherwise repurchased. Notwithstanding the foregoing, the provisions of this Section 4.7(b) shall not apply in the event that such repurchase of REIT Shares is paired with a stock split or stock dividend such that after giving effect to such repurchase and subsequent stock split or stock dividend there shall be outstanding an equal number of REIT Shares as were outstanding prior to such repurchase and subsequent stock split or stock dividend.

(c)           If the Managing Member acquires any Excess Shares as trustee for the exclusive benefit of one or more beneficiaries pursuant to Article IV, Section B.4 of the Charter, Section F of Exhibit A of the Charter, or Section F of Exhibit B, of the Charter, or any successor provision thereto or comparable provision with respect to any other class or series of Capital Shares, the Company shall, immediately prior to such acquisition of Excess Shares, designate a number of Common Units (if such Excess Shares resulted from the conversion of REIT Shares) or Membership Equivalent Units (if such Excess Shares resulted from the conversion of Capital Shares) equal to the number of such Excess Shares, and, if applicable, divided by the Adjustment Factor then in effect, as “Excess Units” of a class and/or series corresponding to such Excess Shares. Notwithstanding anything to the contrary in this Agreement, for the duration of the period that such Membership Equivalent Units are designated as Excess Units, such Membership Equivalent Units shall not be entitled to any dividends or distributions from the Company, other than the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Managing Member. If the Managing Member repurchases any Excess Shares held in such trust pursuant to the Charter, the Company shall, immediately prior to such repurchase of Excess Shares, repurchase a number of Excess Units (of the corresponding class and/or series) held by the Managing Member equal to the number of Excess Shares so repurchased (divided, in the case of common Excess Shares, by the Adjustment Factor then in effect), such repurchase to be upon the same terms and for the same price per Excess Unit (after giving effect to application of the Adjustment Factor, if applicable) as such Excess Shares are repurchased. If the Excess Shares cease to be Excess Shares, the Company shall, immediately prior to such event, designate an equal number of Excess Units as Common Units (multiplied by the Adjustment Factor then in effect) or Membership Equivalent Units, as applicable.

Section 4.8           Other Contribution Provisions. In the event that any Member is admitted to the Company and is given a Capital Account in exchange for services rendered to the Company, such transaction shall be treated by the Company and the affected Member as if the Company had compensated such partner in cash and such Member had contributed the cash that the Member would have received to the capital of the Company. In addition, with the Consent of the Managing Member, one or more Members may enter into contribution agreements with the Company which have the effect of providing a guarantee of certain obligations of the Company (and/or a wholly-owned Subsidiary of the Company).

ARTICLE 5
DISTRIBUTIONS

Section 5.1           Requirement and Characterization of Distributions. Subject to the rights of any Holder of any Membership Interest set forth in Article 17 or Article 18 of this Agreement, or any Membership Unit Designation, the Managing Member may cause the Company to distribute such amounts, at such times, as the Managing Member may, in its sole and absolute discretion, determine, to the Holders as of any Company Record Date: (a) first, with respect to any Membership Units that are entitled to any preference in distribution, in accordance with the rights of Holders of such class(es) of Membership Units (and, within each such class, among the Holders of each such class, pro rata in proportion to their respective Percentage Interests of such class on such Company Record Date); and (b) second, with respect to any Membership Units that are not entitled to any preference in distribution, in accordance with the rights of Holders of such class(es) of Membership Units, as applicable (and, within each such class, among the Holders of each such class, pro rata in proportion to their respective Percentage Interests of such class on such Company Record Date). Distributions payable with respect to any Membership Units, other than any Membership Units issued to the Managing Member in connection with the issuance of REIT Shares by the Managing Member, that were not outstanding during the entire quarterly period in respect of which any distribution is made, shall be prorated based on the portion of the period that such Membership Units were outstanding. The Managing Member shall make such reasonable efforts, as determined by it in its sole and absolute discretion and consistent with the Managing Member’s qualification as a REIT, to cause the Company to distribute sufficient amounts to enable the Managing Member, for so long as the Managing Member has determined to qualify as a REIT, to pay stockholder dividends that will (i) satisfy the requirements for qualifying as a REIT under the Code and Regulations (the “REIT Requirements”) and (ii) except to the extent otherwise determined by the Managing Member, eliminate any U.S. federal income or excise tax liability of the Managing Member, except to the extent that a distribution pursuant to clause (ii) would prevent the Company from making a distribution to the Holders of Class L Preferred Units in accordance with Article 17 or Class M Preferred Units in accordance with Article 18. The Members acknowledge that the Charter provides that the Board of Directors shall use its reasonable best efforts to cause the Managing Member and the stockholders to qualify for federal income tax treatment in accordance with Sections 856 through 860 of the Code, and that, in furtherance of the foregoing, the Board of Directors shall use its reasonable best efforts to take such actions as are necessary, and may take such actions as in its sole judgment and discretion are desirable, to preserve the status of the Managing Member as a REIT; provided, however, that if the Board of Directors determines that it is no longer in the best interests of the Managing Member for it to continue to qualify as a REIT, the Board of Directors may revoke or otherwise terminate the Managing Member’s REIT election. Notwithstanding anything in the foregoing to the contrary, a Holder of LTIP Units will only be entitled to distributions with respect to an LTIP Unit as set forth in Article 16 hereof and in making distributions pursuant to this Section 5.1, the Managing Member of the Company shall take into account the provisions of Section 16.4 hereof.

Section 5.2           Distributions in Kind. Except as expressly provided herein, no right is given to any Holder to demand and receive property other than cash as provided in this Agreement. The Managing Member may determine, in its sole and absolute discretion, to make a distribution in kind of Company assets to the Holders, and such assets shall be distributed in such a fashion as to ensure that the fair market value is distributed and allocated in accordance with Articles 5, 6 and 13 hereof; provided, however, that the Managing Member shall not make a distribution in kind to any Holder unless the Holder has been given 90 days prior written notice of such distribution.

Section 5.3           Amounts Withheld. All amounts withheld pursuant to the Code or any provisions of any state, local or non-United States tax law and Section 10.4 hereof with respect to any allocation, payment or distribution to any Holder shall be treated as amounts paid or distributed to such Holder pursuant to Section 5.1 hereof for all purposes under this Agreement.

Section 5.4            Distributions upon Liquidation. Notwithstanding the other provisions of this Article 5, net proceeds from a Terminating Capital Transaction, and any other amounts distributed after the occurrence of a Liquidating Event, shall be distributed to the Holders in accordance with Section 13.2 hereof.

Section 5.5           Distributions to Reflect Additional Membership Units. In the event that the Company issues additional Membership Units pursuant to the provisions of Article 4 hereof, subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member is authorized to make such revisions to this Article 5 and to Articles 6, 11 and 12 hereof as it determines are necessary or desirable to reflect the issuance of such additional Membership Units, including, without limitation, making preferential distributions to Holders of certain classes of Membership Units.

Section 5.6            Restricted Distributions. Notwithstanding any provision to the contrary contained in this Agreement, neither the Company nor the Managing Member, on behalf of the Company, shall make a distribution to any Holder if such distribution would violate the Act or other applicable law.

ARTICLE 6
ALLOCATIONS

Section 6.1            Timing and Amount of Allocations of Net Income and Net Loss. Net Income and Net Loss of the Company shall be determined and allocated with respect to each Fiscal Year as of the end of each such year, provided that the Managing Member may in its discretion allocate Net Income and Net Loss for a shorter period as of the end of such period (and, for purposes of this Article 6, references to the term “Fiscal Year” may include such shorter periods). Except as otherwise provided in this Article 6, and subject to Section 11.6(c) hereof, an allocation to a Holder of a share of Net Income or Net Loss shall be treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing Net Income or Net Loss.

Section 6.2            General Allocations. Except as otherwise provided in this Article 6 and Section 11.6(c) hereof, Net Income and Net Loss for any Fiscal Year shall be allocated to each of the Holders as follows:

(a)           Net Income.

(i)             First, 100% to the Managing Member in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to the Managing Member pursuant to clause (iv) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to the Managing Member pursuant to this clause (i) for all prior Fiscal Years;

(ii)            Second, 100% to each Holder (other than the Managing Member) in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to each such Holder pursuant to clause (iii) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to such Holder pursuant to this clause (ii) for all prior Fiscal Years;

(iii)          Third, 100% to the Managing Member in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to the Managing Member pursuant to clause (ii) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to the Managing Member pursuant to this clause (iii) for all prior Fiscal Years;

(iv)          Fourth, 100% to the Managing Member in an amount equal to the sum of (A) the excess of the cumulative Class L Priority Return on the Class L Preferred Units to the last day of the current Fiscal Year or to the date of redemption or conversion of the Class L Preferred Units, to the extent such Class L Preferred Units are redeemed or converted during such year, over the cumulative Net Income allocated to the Managing Member pursuant to this subclause (A) of this clause (iv) for all prior Fiscal Years, and (B) the excess of the cumulative Class M Priority Return on the Class M Preferred Units to the last day of the current Fiscal Year or to the date of redemption or conversion of the Class M Preferred Units, to the extent such Class M Preferred Units are redeemed or converted during such year, over the cumulative Net Income allocated to the Managing Member pursuant to this subclause (B) of this clause (iv) for all prior Fiscal Years, provided however that notwithstanding subclauses (A)-(B) of this clause (iv), in connection with any conversion of any such Membership Units, the Managing Member shall be permitted to make allocations of income with respect to such Membership Units and the Common Units issued upon such conversion that are consistent with the distributions payable with respect to such Membership Units and Common Units;

(v)           Fifth, 100% to each Holder in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to each such Holder pursuant to clause (i) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to such Holder pursuant to this clause (v) for all prior Fiscal Year; and

(vi)          Sixth, 100% to the Holders of Common Units in accordance with their respective Percentage Interests in the Common Units.

To the extent the allocations of Net Income set forth above in any paragraph of this Section 6.2(a) are not sufficient to entirely satisfy the allocation set forth in such paragraph, such allocation shall be made in proportion to the total amount that would have been allocated pursuant to such paragraph without regard to such shortfall. In making allocations pursuant to this Section 6.2(a) and Section 6.2(b), the Managing Member of the Company shall take into account the provisions of Section 16.5 hereof.

(b)           Net Losses.

(i)            First, 100% to the Holders of Common Units in accordance with their respective Percentage Interests in the Common Units (to the extent consistent with this clause (i)) until the Adjusted Capital Account (ignoring for this purpose any amounts a Holder is obligated to contribute to the capital of the Company or is deemed obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2) and ignoring the Managing Member’s Class L Preferred Capital and Class M Preferred Capital) of all such Holders is zero;

(ii)           Second, 100% to the Managing Member (ignoring for this purpose any amounts the Managing Member is obligated to contribute to the capital of the Company or is deemed obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)), until the Adjusted Capital Account (as so modified) of the Managing Member is zero;

(iii)          Third, 100% to the Holders (other than the Managing Member) to the extent of, and in proportion to, the positive balance (if any) in their Adjusted Capital Accounts; and

(iv)          Fourth, 100% to the Managing Member.

(c)           Allocations to Reflect Issuance of Additional Membership Interests. In the event that the Company issues additional Membership Interests to the Managing Member or any Additional Member pursuant to Article 4 hereof, subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member is authorized to make such revisions to this Article 6 or to Articles 12 and 13 hereof as it determines are necessary or desirable to reflect the terms of the issuance of such additional Membership Interests, including making preferential allocations to certain classes of Membership Interests.

(d)           Special Allocations with Respect to LTIP Units. In the event that Liquidating Gains are allocated under this Section 6.2(d), Net Income allocable under Section 6.2(a) and any Net Losses allocable under Section 6.2(b) shall be recomputed without regard to the Liquidating Gains so allocated. After giving effect to the special allocations set forth in Section 6.4(a) hereof, and notwithstanding the provisions of Sections 6.2(a) and 6.2(b) above, any Liquidating Gains shall first be allocated to the Holders of LTIP Units until the Economic Capital Account Balances of such Holders, to the extent attributable to their ownership of LTIP Units, are equal to (i) the Common Unit Economic Balance, multiplied by (ii) the number of their LTIP Units. Any such allocations shall be made among the Holders of LTIP Units in proportion to the amounts required to be allocated to each under this Section 6.2(d). The parties agree that the intent of this Section 6.2(d) is to make the Capital Account balances of the Holders of LTIP Units with respect to their LTIP Units economically equivalent to the Capital Account balance of the Managing Member with respect to its Common Units.

Section 6.3            Additional Allocation Provisions. Notwithstanding the foregoing provisions of this Article 6:

(a)           Special Allocations Upon Liquidation. In the event that the Company disposes of all or substantially all of its assets in a transaction that will lead to a liquidation of the Company pursuant to Article 13 hereof, then: (i) any Liquidating Gains shall first be allocated to the Managing Member in an amount equal to the sum of the Class L Preferred Capital and the Class M Preferred Capital, and then, thereafter, each Holder of LTIP Units in accordance with Section 6.2(d); and (ii) any Net Income or Net Loss realized in connection with such transaction and thereafter (recomputed without regard to the Liquidating Gains allocated pursuant to clause (i) above) shall be specially allocated for such Fiscal Year (and to the extent permitted by Section 761(c) of the Code, for the immediately preceding Fiscal Year) among the Holders as required so as to cause liquidating distributions pursuant to Section 13.2(a)(iv) hereof to be made in the same amounts and proportions as would have resulted had such distributions instead been made pursuant to Article 5 hereof. In addition, if there is an adjustment to the Gross Asset Value of the assets of the Company pursuant to paragraph (b) of the definition of Gross Asset Value, allocations of Net Income or Net Loss arising from such adjustment shall be allocated in the same manner as described in the prior sentence.

(b)           Offsetting Allocations. Notwithstanding the provisions of Sections 6.1, 6.2(a) and 6.2(b), but subject to Sections 6.3 and 6.4, in the event Net Income or items thereof are being allocated to a Member to offset prior Net Loss or items thereof which have been allocated to such Member (including any allocations of Net Income or items thereof pursuant to Section 6.3(a)), the Managing Member shall attempt to allocate such offsetting Net Income or items thereof which are of the same or similar character (including without limitation Section 704(b) book items versus tax items) to the original allocations with respect to such Member.

Section 6.4            Regulatory Allocation Provisions. Notwithstanding the foregoing provisions of this Article 6:

(a)           Regulatory Allocations.

(i)            Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding the provisions of Section 6.2 hereof, or any other provision of this Article 6, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Holder shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Company Minimum Gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.4(a)(i) is intended to qualify as a “minimum gain chargeback” within the meaning of Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.

(ii)           Member Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(i)(4) or in Section 6.4(a)(i) hereof, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Holder who has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.4(a)(ii) is intended to qualify as a “chargeback of partner nonrecourse debt minimum gain” within the meaning of Regulations Section 1.704-2(i) and shall be interpreted consistently therewith.

(iii)          Nonrecourse Deductions and Member Nonrecourse Deductions. Any Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Holders in accordance with their respective Percentage Interests with respect to Common Units. Any Member Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Holder(s) who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable, in accordance with Regulations Section 1.704-2(i).

(iv)          Qualified Income Offset. If any Holder unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to such Holder in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of such Holder as quickly as possible, provided that an allocation pursuant to this Section 6.4(a)(iv) shall be made if and only to the extent that such Holder would have an Adjusted Capital Account Deficit after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.4(a)(iv) were not in the Agreement. It is intended that this Section 6.4(a)(iv) qualify and be construed as a “qualified income offset” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

(v)           Gross Income Allocation. In the event that any Holder has a deficit Capital Account at the end of any Fiscal Year that is in excess of the sum of (1) the amount (if any) that such Holder is obligated to restore to the Company upon complete liquidation of such Holder’s Membership Interest (including, the Holder’s interest in outstanding Preferred Units and other Membership Units) and (2) the amount that such Holder is deemed to be obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be specially allocated items of Company income and gain in the amount of such excess to eliminate such deficit as quickly as possible, provided that an allocation pursuant to this Section 6.4(a)(v) shall be made if and only to the extent that such Holder would have a deficit Capital Account in excess of such sum after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.4(a)(v) and Section 6.4(a)(iv) hereof were not in the Agreement.

(vi)          Limitation on Allocation of Net Loss. To the extent that any allocation of Net Loss would cause or increase an Adjusted Capital Account Deficit as to any Holder, such allocation of Net Loss shall be reallocated (x) first, among the other Holders of Common Units in accordance with their respective Percentage Interests with respect to Common Units and (y) thereafter, among the Holders of other classes of Membership Units as determined by the Managing Member, subject to the limitations of this Section 6.4(a)(vi).

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

(viii)        Curative Allocations. The allocations set forth in Sections 6.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) hereof (the “Regulatory Allocations”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Sections 6.1 and 6.2 hereof, the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Holders so that to the extent possible without violating the requirements giving rise to the Regulatory Allocations, the net amount of such allocations of other items and the Regulatory Allocations to each Holder shall be equal to the net amount that would have been allocated to each such Holder if the Regulatory Allocations had not occurred.

(ix)           Forfeiture Allocations. Upon a forfeiture of any Unvested LTIP Units by any Member, gross items of income, gain, loss or deduction shall be allocated to such Member if and to the extent required by final Regulations promulgated after the Effective Date to ensure that allocations made with respect to all unvested Membership Interests are recognized under Code Section 704(b).

(x)            LTIP Units. For purposes of the allocations set forth in this Section 6.4, each issued and outstanding LTIP Unit will be treated as one outstanding Common Unit; provided, however, that for purposes of determining Percentage Interests with respect to Common Units, each unvested Performance LTIP Unit will be treated as a fraction of one outstanding Common Unit equal to one Common Unit multiplied by the Performance Unit Sharing Percentage.

(b)           Allocation of Excess Nonrecourse Liabilities. For purposes of determining a Holder’s proportional share of the “excess nonrecourse liabilities” of the Company within the meaning of Regulations Section 1.752-3(a)(3), each Holder’s respective interest in Company profits shall be equal to such Holder’s Percentage Interest with respect to Common Units, except as otherwise determined by the Managing Member.

Section 6.5            Tax Allocations.

(a)           In General. Except as otherwise provided in this Section 6.5, for income tax purposes under the Code and the Regulations, each Company item of income, gain, loss and deduction (collectively, “Tax Items”) shall be allocated among the Holders in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Sections 6.2 and 6.3 hereof.

(b)           Section 704(c) Allocations. Notwithstanding Section 6.5(a) hereof, Tax Items with respect to Property that is contributed to the Company with an initial Gross Asset Value that varies from its basis in the hands of the contributing Member immediately preceding the date of contribution shall be allocated among the Holders for income tax purposes pursuant to Regulations promulgated under Code Section 704(c) so as to take into account such variation. The Company shall account for such variation under any method approved under Code Section 704(c) and the applicable Regulations as chosen by the Managing Member. In the event that the Gross Asset Value of any Company asset is adjusted pursuant to subsection (b) of the definition of “Gross Asset Value” (provided in Article 1 hereof), subsequent allocations of Tax Items with respect to such asset shall take account of the variation, if any, between the adjusted basis of such asset and its Gross Asset Value in the same manner as under Code Section 704(c) and the applicable Regulations and using the method chosen by the Managing Member. Allocations pursuant to this Section 6.5(b) are solely for purposes of federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Income, Net Loss, or any other items or distributions pursuant to any provision of this Agreement.

ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS

Section 7.1           Management.

(a)           Except as otherwise expressly provided in this Agreement, including in any Membership Unit Designation, all management powers over the business and affairs of the Company are and shall be exclusively vested in the Managing Member, and no Member shall have any right to participate in or exercise control or management power over the business and affairs of the Company. No Managing Member may be removed by the Members, with or without cause, except with the Consent of the Managing Member. In addition to the powers now or hereafter granted a managing member of a limited liability company under applicable law or that are granted to the Managing Member under any other provision of this Agreement, the Managing Member, subject to the other provisions hereof including, without limitation, Section 3.2 and Section 7.3, and the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, shall have full and exclusive power and authority, without the consent or approval of any Member, to do or authorize all things deemed necessary or desirable by it to conduct the business and affairs of the Company, to exercise or direct the exercise of all of the powers of the Company and a managing member under the Act and this Agreement and to effectuate the purposes of the Company including, without limitation:

(i)            the making of any expenditures, the lending or borrowing of money or selling of assets (including, without limitation, making prepayments on loans and borrowing money to permit the Company to make distributions to the Holders in such amounts as will permit the Managing Member to prevent the imposition of any federal income tax on the Managing Member (including, for this purpose, any excise tax pursuant to Code Section 4981), to make distributions to its stockholders and payments to any taxing authority sufficient to permit the Managing Member to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust, pledge or other lien or encumbrance on the Company’s assets) and the incurring of any obligations to conduct the activities of the Company;

(ii)           the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Company;

(iii)          the taking of any and all acts to ensure that the Company will not be classified as a “publicly traded partnership” under Code Section 7704;

(iv)          subject to Section 11.2 hereof, the acquisition, sale, transfer, exchange or other disposition of any, all or substantially all of the assets (including the goodwill) of the Company (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Company) or the merger, division, consolidation, reorganization or other combination of the Company with or into another entity;

(v)           the mortgage, pledge, encumbrance or hypothecation of any assets of the Company, the assignment of any assets of the Company in trust for creditors or on the promise of the assignee to pay the debts of the Company, the use of the assets of the Company (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms that the Managing Member sees fit, including, without limitation, the financing of the operations and activities of the Managing Member, the Company or any of the Company’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Managing Member and/or the Company’s Subsidiaries) and the repayment of obligations of the Company, its Subsidiaries and any other Person in which the Company has an equity investment, and the making of capital contributions to and equity investments in the Company’s Subsidiaries;

(vi)          the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;

(vii)         the negotiation, execution and performance of any contracts, including leases (including ground leases), easements, management agreements, rights of way and other property-related agreements, conveyances or other instruments to conduct the Company’s operations or implement the Managing Member’s powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation, as applicable, out of the Company’s assets;

(viii)        the distribution of Company cash or other Company assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Company, and the collection and receipt of revenues, rents and income of the Company;

(ix)           the selection and dismissal of employees of the Company (if any) (including, without limitation, employees having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Company and the determination of their compensation and other terms of employment or hiring;

(x)            the maintenance of such insurance (including, without limitation, directors’ and officers’ insurance) for the benefit of the Company and the Members (including, without limitation, the Managing Member);

(xi)           the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnership, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which the Managing Member has an equity investment from time to time);

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

(xiii)         the undertaking of any action in connection with the Company’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Company to such Persons);

(xiv)        the determination of the fair market value of any Company property distributed in kind using such reasonable method of valuation as the Managing Member may adopt; provided, however, that such methods are otherwise consistent with the requirements of this Agreement;

(xv)         the enforcement of any rights against any Member pursuant to representations, warranties, covenants and indemnities relating to such Member’s contribution of property or assets to the Company;

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

(xvii)       the exercise of any of the powers of the Managing Member enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Company or any other Person in which the Company has a direct or indirect interest, or jointly with any such Subsidiary or other Person;

(xviii)      an election to acquire Tendered Units in exchange for REIT Shares;

(xix)         the exercise of any of the powers of the Managing Member enumerated in this Agreement on behalf of any Person in which the Company does not have an interest, pursuant to contractual or other arrangements with such Person;

(xx)          the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, confessions of judgment or any other legal instruments or agreements in writing;

(xxi)         the issuance of additional Membership Units in connection with Capital Contributions by Additional Members and additional Capital Contributions by Members pursuant to Article 4 hereof;

(xxii)        an election to dissolve the Company pursuant to Section 13.1(b) hereof;

(xxiii)       the distribution of cash to acquire Common Units held by a Member in connection with a Redemption under Section 15.1 hereof;

(xxiv)       the maintenance of the Member Registry from time to time to reflect accurately at all times the Membership Units, Capital Contributions and Percentage Interests of the Members as the same are adjusted from time to time to reflect redemptions, Capital Contributions, the issuance or transfer of Membership Units, the admission of any Additional Member or any Substituted Member or otherwise, which shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in the Member Registry otherwise is authorized by this Agreement; and

(xxv)        the registration of any class of securities of the Company under the Securities Act or the Exchange Act, and the listing of any debt securities of the Company on any exchange.

(b)           Each of the Members agrees that, except as provided in Section 7.3 hereof and subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member is authorized to execute and deliver any affidavit, agreement, certificate, consent, instrument, notice, power of attorney, waiver or other writing or document in the name and on behalf of the Company and to otherwise exercise any power of the Managing Member under this Agreement and the Act on behalf of the Company without any further act, approval or vote of the Members or any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the Managing Member to the contrary, the taking of any action or the execution of any such document or writing by an officer of the Managing Member, in the name and on behalf of the Managing Member, in its capacity as the Managing Member of the Company, shall conclusively evidence (i) the approval thereof by the Managing Member, in its capacity as the Managing Member of the Company, (ii) the Managing Member’s determination that such action, document or writing is necessary, advisable, appropriate, desirable or prudent to conduct the business and affairs of the Company, exercise the powers of the Company under this Agreement and the Act or effectuate the purposes of the Company, or any other determination by the Managing Member required by this Agreement in connection with the taking of such action or execution of such document or writing, and (iii) the authority of such officer with respect thereto.

(c)           At all times from and after the date hereof, the Managing Member may cause the Company to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.

(d)           At all times from and after the date hereof, the Managing Member may cause the Company to establish and maintain working capital and other reserves in such amounts as the Managing Member, in its sole and absolute discretion, determines from time to time.

(e)           The determination as to any of the following matters, made by or at the direction of the Managing Member consistent with this Agreement and the Act, shall be final and conclusive and shall be binding upon the Company and every Member: the amount of assets at any time available for distribution or the redemption of Common Units; the amount and timing of any distribution; any determination to redeem Tendered Units; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any Member’s Capital Account, Adjusted Capital Account or Adjusted Capital Account Deficit; the amount of Net Income, Net Loss or Depreciation for any period; any special allocations of Net Income or Net Loss pursuant to Sections 6.2(c), 6.2(d), 6.3, 6.4, 6.5 or 16.5; the Gross Asset Value of any Company asset; the Value of any REIT Share; the timing and amount of any adjustment to the Adjustment Factor; any adjustment to the number of outstanding LTIP Units pursuant to Section 16.3; the timing, number and redemption or repurchase price of the redemption or repurchase of any Membership Units pursuant to Section 4.7(b); any interpretation of the rights, powers and duties of any class or series of Membership Interest; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Company or of any Membership Interest; the number of authorized or outstanding Membership Units of any class or series; any matter relating to the acquisition, holding and disposition of any assets by the Company; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Managing Member.

Section 7.2           Certificate of Formation. The Managing Member, as the designated “authorized person” within the meaning of the Act, may file amendments to and restatements of the Certificate and do all the things to maintain the Company as a limited liability company under the laws of the State of Delaware and each other state, the District of Columbia or any other jurisdiction, in which the Company may elect to do business or own property. Subject to the terms of Section 8.5(a) hereof, the Managing Member shall not be required, before or after filing, to deliver or mail a copy of the Certificate or any amendment thereto to any Member. The Managing Member shall use all reasonable efforts to cause to be filed such other certificates or documents for the formation, continuation, qualification and operation of a limited liability company in the State of Delaware and any other state, or the District of Columbia or other jurisdiction, in which the Company may elect to do business or own property.

Section 7.3           Restrictions on Managing Member’s Authority.

(a)           The Managing Member may not, in its capacity as the Managing Member, for or on behalf of the Company:

(i)            take any action that would make it impossible to carry on the ordinary business of the Company, except as otherwise provided in this Agreement or with the Consent of the Non-Managing Members;

(ii)           enter into any contract, mortgage, loan or other agreement that, in the absence of any default by the Managing Member of its obligations thereunder, expressly prohibits or restricts (A) the Managing Member or the Company from performing its specific obligations under Section 15.1 hereof in full or (B) a Member from exercising its rights under Section 15.1 hereof to effect a Redemption in full, except, in either case, (x) with the Consent of each Non-Managing Member affected by the prohibition or restriction or (y) in connection with or as a result of a Termination Transaction that, in accordance with Section 11.2(b)(i) and/or (ii), does not require the Consent of the Non-Managing Members.

(b)           Notwithstanding Section 14.2 hereof but subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member shall have the power, without the Consent of the Members or the consent or approval of any Member or any other Person, to amend this Agreement as may be required to facilitate or implement any of the following purposes:

(i)            to add to the obligations of the Managing Member or surrender any right or power granted to the Managing Member or any Affiliate of the Managing Member for the benefit of the Members;

(ii)           to reflect the admission, substitution or withdrawal of Members, the Transfer of any Membership Interest, the termination of the Company in accordance with this Agreement, or the adjustment of outstanding LTIP Units as contemplated by Section 16.3, and to update the Member Registry in connection with such admission, substitution, withdrawal, Transfer or adjustment;

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

(iv)          to set forth or amend the rights, powers and duties of the Holders of any additional Membership Interests issued pursuant to Article 4 (including any changes contemplated by Section 5.5 above);

(v)           to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state court or agency or contained in federal or state law or the listing standards of any securities exchange upon which the Managing Member’s securities are then listed or admitted for trading;

(vi)          (A) to reflect such changes as are reasonably necessary or appropriate for the Managing Member to maintain its status as a REIT or to satisfy the REIT Requirements or (B) to reflect the Transfer of all or any part of a Membership Interest among the Managing Member and any Disregarded Entity with respect to the Managing Member;

(vii)         to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article VI or the manner in which Capital Accounts are adjusted, computed, or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law);

(viii)        to reflect the issuance of additional Membership Interests in accordance with Section 4.2;

(ix)           as contemplated by the last sentence of Section 4.4;

(x)            to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Company or the Managing Member and which does not violate Section 7.3(d); and

(xi)           to effect or facilitate a Termination Transaction that, in accordance with Section 11.2(b)(i) and/or (ii), does not require the Consent of the Non-Managing Members and, if the Company is the Surviving Company in any Termination Transaction, to modify Section 15.1 or any related definitions to provide that the holders of interests in such Surviving Company have rights that are consistent with Section 11.2B(ii).

(c)           Notwithstanding Sections 7.3(b) (other than as set forth below in this Section 7.3(c)) and 14.2 hereof, this Agreement shall not be amended, and no action may be taken by the Managing Member, without the Consent of each Member adversely affected thereby, if such amendment or action would (i) adversely modify in any material respect the limited liability of a Member, (ii) alter the rights of any Member to receive the distributions to which such Member is entitled pursuant to Article 5 or Section 13.2(a)(iv) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2, 5.5, 7.3(b) (including clause (xi) thereof) and Article 6 hereof), (iii) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 15.1 hereof, or amend or modify any related definitions (except, in any case, as permitted pursuant to clause (xi) of Section 7.3(b) hereof), (iv) alter or modify Section 11.2 hereof (except as permitted pursuant to clause (xi) of Section 7.3(b) hereof), (v) subject to Section 7.8(i), remove the powers and restrictions related to REIT Requirements or permitting the Managing Member to avoid paying tax under Code Sections 857 or 4981 contained in Sections 7.1 and 7.3, or (vi) amend this Section 7.3(d) (except as permitted pursuant to clause (xi) of Section 7.3(b) hereof). Further, no amendment may alter the restrictions on the Managing Member’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Member shall be effective as to that Member, notwithstanding the absence of such consent by any other Member.

Section 7.4            Reimbursement of the Managing Member.

(a)           The Managing Member shall not be compensated for its services as Managing Member of the Company except as provided in this Agreement (including the provisions of Articles 5 and 6 hereof regarding distributions, payments and allocations to which the Managing Member may be entitled in its capacity as the Managing Member).

(b)           Subject to Sections 7.4(d) and 15.12 hereof, the Company shall be responsible for and shall pay all expenses relating to the Company’s and the Managing Member’s organization and the ownership of each of their assets and operations. The Managing Member is hereby authorized to pay compensation for accounting, administrative, legal, technical, management and other services rendered to the Company. The Company shall be liable for, and shall reimburse the Managing Member, on a monthly basis, or such other basis as the Managing Member may determine in its sole and absolute discretion, for all sums expended in connection with the Company’s business, including, without limitation, (i) expenses relating to the ownership of interests in and management and operation of, or for the benefit of, the Company, (ii) compensation of officers and employees, including, without limitation, payments under future compensation plans, of the Managing Member or the Company that may provide for stock units, or phantom stock, pursuant to which employees of the Managing Member or the Company will receive payments based upon dividends on or the value of REIT Shares, (iii) director fees and expenses of the Managing Member or its Affiliates, (iv) any expenses (other than the purchase price) incurred by the Managing Member in connection with the redemption or other repurchase of its Capital Shares or the purchase by the Managing Member of any outstanding Membership Units, (v) all costs and expenses of the Managing Member in connection with the preparation of reports and other distributions to its stockholders and any regulatory or governmental authorities or agencies and, as applicable, all costs and expenses of the Managing Member as a reporting company (including, without limitation, costs of filings with the SEC), (vi) all costs and expenses of the Managing Member in connection with its operation as a REIT, and (vii) all costs and expenses of the Managing Member in connection with the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests and financing or refinancing of any type related to the Company or its assets or activities; provided, however, that the amount of any reimbursement shall be reduced by any interest earned by the Managing Member with respect to bank accounts or other instruments or accounts held by it on behalf of the Company as permitted pursuant to Section 7.5 hereof. The Members acknowledge that all such expenses of the Managing Member are deemed to be for the benefit of the Company. Such reimbursements shall be in addition to any reimbursement of the Managing Member as a result of indemnification pursuant to Section 7.7 hereof.

(c)           If the Managing Member shall elect to purchase from its stockholders Capital Shares for the purpose of delivering such Capital Shares to satisfy an obligation under any dividend reinvestment program adopted by the Managing Member, any employee stock purchase plan adopted by the Managing Member or any similar obligation or arrangement undertaken by the Managing Member in the future, in lieu of the treatment specified in Section 4.7(b), the purchase price paid by the Managing Member for such Capital Shares shall be considered expenses of the Company and shall be advanced to the Managing Member or reimbursed to the Managing Member, subject to the condition that: (i) if such REIT Shares subsequently are sold by the Managing Member, the Managing Member shall pay or cause to be paid to the Company any proceeds received by the Managing Member for such REIT Shares (which sales proceeds shall include the amount of dividends reinvested under any dividend reinvestment or similar program; provided, that a transfer of REIT Shares for Membership Units pursuant to Section 15.1 would not be considered a sale for such purposes); and (ii) if such REIT Shares are not retransferred by the Managing Member within 30 days after the purchase thereof, or the Managing Member otherwise determines not to retransfer such REIT Shares, the Managing Member shall cause the Company to redeem a number of Membership Units determined in accordance with Section 4.7(b), as adjusted, (x) pursuant to Section 7.5 (in the event the Managing Member acquires material assets, other than on behalf of the Company) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse stock splits and combinations, distributions of rights, warrants or options, and distributions of evidences of indebtedness or assets relating to assets not received by the Managing Member pursuant to a pro rata distribution by the Company (in which case such advancement or reimbursement of expenses shall be treated as having been made as a distribution in redemption of such number of Membership Units held by the Managing Member).

(d)           To the extent practicable, Company expenses shall be billed directly to and paid by the Company and, subject to Section 15.12 hereof, if and to the extent any reimbursements to the Managing Member or any of its Affiliates by the Company pursuant to this Section 7.4 constitute gross income to such Person (as opposed to the repayment of advances made by such Person on behalf of the Company), such amounts shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Members’ Capital Accounts.

Section 7.5           Outside Activities of the Managing Member. Without the Consent of the Members, not to be unreasonably withheld, conditioned or delayed, the Managing Member shall not directly or indirectly enter into or conduct any business, other than in connection with, (a) the ownership, acquisition and disposition of Membership Interests, (b) the management of the business and affairs of the Company, (c) the operation of the Managing Member as a reporting company with a class (or classes) of securities registered under the Exchange Act, (d) its operations as a REIT, (e) the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, (f) financing or refinancing of any type related to the Company or its assets or activities, and (g) such activities as are incidental thereto; provided, however, that, except as otherwise provided herein, any funds raised by the Managing Member pursuant to the preceding clauses (e) and (f) shall be made available to the Company, whether as Capital Contributions, loans or otherwise, as appropriate, and, provided, further, that the Managing Member may, in its sole and absolute discretion, from time to time directly or indirectly hold or acquire assets or conduct property, leasing, construction or other management services or employee-related activities in its own name or otherwise other than through the Company so long as the Managing Member takes commercially reasonable measures to ensure that the economic benefits and burdens of such Property , services or activities are otherwise vested in the Company, through assignment, mortgage loan or otherwise or, if it is not commercially reasonable to vest such economic interests in the Company, the Members shall negotiate in good faith to amend this Agreement, including, without limitation, the definition of “Adjustment Factor,” to reflect such activities and the direct ownership of assets by the Managing Member. Nothing contained herein shall be deemed to prohibit the Managing Member from executing guarantees of Company debt. The Managing Member and all Disregarded Entities with respect to the Managing Member, taken as a group, shall not own any assets or take title to assets (other than temporarily in connection with an acquisition prior to contributing such assets to the Company) other than (i) interests in Disregarded Entities with respect to the Managing Member, (ii) Membership Interests as the Managing Member, (iii) a minority interest in any Subsidiary of the Company that the Managing Member holds to maintain such Subsidiary’s status as a partnership for federal income tax purposes or otherwise, and (iv) such cash and cash equivalents, bank accounts or similar instruments or accounts as such group deems reasonably necessary, taking into account Section 7.1(d) hereof and the requirements necessary for the Managing Member to qualify as a REIT and for the Managing Member to carry out its responsibilities contemplated under this Agreement and the Charter. Any Membership Interests acquired by the Managing Member, whether pursuant to the exercise by a Member of its right to Redemption, or otherwise, shall be automatically converted into a Managing Member Interest comprised of an identical number of Membership Units with the same terms as the class or series so acquired. Any Affiliates of the Managing Member may acquire Member Interests and shall, except as expressly provided in this Agreement, be entitled to exercise all rights of a Member relating to such Member Interests.

Section 7.6            Transactions with Affiliates.

(a)           The Company may lend or contribute funds to, and borrow funds from, Persons in which the Company has an equity investment, and such Persons may borrow funds from, and lend or contribute funds to, the Company, on terms and conditions established in the sole and absolute discretion of the Managing Member. The foregoing authority shall not create any right or benefit in favor of any Person.

(b)           Except as provided in Section 7.5 hereof, the Company may transfer assets to joint ventures, limited liability companies, partnerships, corporations, business trusts or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions consistent with this Agreement and applicable law.

(c)           The Managing Member and its Affiliates may sell, transfer or convey any property to, or purchase any property from, the Company, directly or indirectly, on terms and conditions established by the Managing Member in its sole and absolute discretion.

(d)           The Managing Member, in its sole and absolute discretion and without the approval of the Members or any of them or any other Persons, may propose and adopt (on behalf of the Company or its Subsidiaries) employee benefit plans (including without limitation plans that contemplate the issuance of LTIP Units) funded by the Company or its Subsidiaries for the benefit of employees of the Managing Member, the Company, Subsidiaries of the Company or any Affiliate of any of them in respect of services performed, directly or indirectly, for the benefit of the Managing Member, the Company or any of the Company’s Subsidiaries.

Section 7.7            Indemnification.

(a)           To the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, the Company shall indemnify, and shall pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any Indemnitee who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an Indemnitee. The rights to indemnification and advance of expenses provided by this Section 7.7 shall vest immediately upon any Indemnitee becoming an Indemnitee.

Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including, without limitation, any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Managing Member is hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. It is the intention of this Section 7.7(a) that the Company indemnify each Indemnitee to the fullest extent permitted by law and this Agreement. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 7.7(a). The termination of any proceeding by conviction of an Indemnitee or upon a plea of nolo contendere or its equivalent by an Indemnitee, or an entry of an order of probation against an Indemnitee prior to judgment, does not create a presumption that such Indemnitee acted in a manner contrary to that specified in this Section 7.7(a) with respect to the subject matter of such proceeding. Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Company, and neither the Managing Member nor any other Holder shall have any obligation to contribute to the capital of the Company or otherwise provide funds to enable the Company to fund its obligations under this Section 7.7.

(b)           The Company’s obligation to indemnify or advance expenses hereunder to any Indemnitee shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from any other Person, including the Managing Member or from any insurance policy or policies.

(c)           The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to which such Indemnitee is indemnified.

(d)           The Company may, but shall not be obligated to, purchase and maintain insurance, on behalf of any of the Indemnitees and such other Persons as the Managing Member shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Company’s activities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

(e)           Any liabilities which an Indemnitee incurs as a result of acting on behalf of the Company or the Managing Member (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the IRS, penalties assessed by the U.S. Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities or judgments or fines under this Section 7.7, unless such liabilities arise as a result of (i) an act or omission of such Indemnitee that was material to the matter giving rise to the Action and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) in the case of any criminal proceeding, an act or omission that such Indemnitee had reasonable cause to believe was unlawful, or (iii) any transaction in which such Indemnitee actually received an improper personal benefit in violation or breach of any provision of this Agreement.

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

(g)           An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.

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

(i)            It is the intent of the parties that any amounts paid by the Company to the Managing Member pursuant to this Section 7.7 shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Members’ Capital Accounts.

Section 7.8            Duties and Liability of the Managing Member.

(a)           To the maximum extent permitted under the Act, the only duties that the Managing Member owes to the Company, any Member or any other Person (including any creditor of any Member or assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. To the fullest extent permitted by law, the Managing Member, in its capacity as such, shall have no other duty, fiduciary or otherwise, to the Company, any Member or any other Person (including any creditor of any Member or any assignee of Membership Interest). The provisions of this Agreement other than this Section 7.8 shall create contractual obligations of the Managing Member only, and no such provision shall be interpreted to expand the fiduciary duties of the Managing Member under the Act as modified by this Agreement. To the fullest extent permitted by law, the provisions of this Section 7.8, to the extent they restrict or modify the duties and liabilities of the Managing Member or any other Person under the Act or otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities. The Managing Member is entitled to a presumption that any act or failure to act on the part of the Managing Member, and any decision or determination made by the Managing Member, is presumed to satisfy the duties of the Managing Member, whether under this Agreement or otherwise existing at law or in equity, and no act or failure to act by the Managing Member, or decision or determination made by the Managing Member (whether with respect to a change of control of the Company or otherwise) shall be subject to any duty, standard of conduct, burden of proof or scrutiny, whether at law or in equity, other than as set forth in this Section 7.8.

(b)           The Members agree that (i) the Managing Member is acting for the benefit of the Company, the Members and the Managing Member’s stockholders collectively and (ii) notwithstanding any duty otherwise existing at law or equity, in the event of a conflict between the interests of the Company or any Member, on the one hand, and the separate interests of the Managing Member or its stockholders, on the other hand, the Managing Member may give priority to the separate interests of the Managing Member or the stockholders of the Managing Member (including, without limitation, with respect to tax consequences to Members, Assignees or the Managing Member’s stockholders), and, in the event of such a conflict, any action or failure to act on the part of the Managing Member (or the Managing Member’s directors, officers or agents) that gives priority to the separate interests of the Managing Member or its stockholders that does not result in a violation of the contract rights of the Members under this Agreement does not violate any other duty owed by the Managing Member to the Company and/or the Members.

(c)           Subject to its obligations and duties as Managing Member set forth in this Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.

(d)           Any obligation or liability whatsoever of the Managing Member which may arise at any time under this Agreement or any other instrument, transaction, or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the Managing Member or the Company only. No such obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, any of the Managing Member’s directors, stockholders, officers, employees, or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise. Notwithstanding anything to the contrary set forth in this Agreement, and to the fullest extent permitted by law, none of the directors or officers of the Managing Member shall be directly liable or accountable in damages or otherwise to the Company, any Members, or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission or by reason of their service as such. This Agreement is executed by the officers of the Managing Member solely as officers of the same and not in their own individual capacities.

(e)           Notwithstanding anything herein to the contrary and to the fullest extent permitted by law, except for liability for fraud, willful misconduct or gross negligence on the part of the Managing Member, or pursuant to any express indemnities given to the Company by the Managing Member pursuant to any other written instrument, the Managing Member shall not have any personal liability whatsoever, to the Company or to the other Members, for any action or omission taken in its capacity as the Managing Member or for the debts or liabilities of the Company or the Company’s obligations hereunder, except pursuant to Section 15.1 or as expressly required by the Act. Without limitation of the foregoing, and except for liability for fraud, willful misconduct or gross negligence, or pursuant to Section 15.1 or any such express indemnity, no property or assets of the Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Member(s) and arising out of, or in connection with, this Agreement.

(f)            To the extent that, under applicable law, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, to the fullest extent permitted by law, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement. In accordance with and subject to Section 18-1101(c) of the Act, the provisions of this Agreement, to the extent that they restrict or modify the duties and liabilities of the Managing Member under the Act or otherwise existing under applicable law, are agreed by the Members to operate as an express limitation of any such duties and liabilities and to replace such other duties and liabilities of such Managing Member and further acknowledged and agreed that such provisions are fundamental elements to the agreement of the Members and the Managing Member to enter into this Agreement and without such provisions the Members and the Managing Member would not have entered into this Agreement.

(g)           Whenever in this Agreement the Managing Member is permitted or required to make a decision in its “sole and absolute discretion,” “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Managing Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest or factors affecting the Company or the Members or any of them, and any such decision or determination made by the Managing Member that does not consider such interests or factors affecting the Company of the Members, or any of them, that does not result in a violation of the contract rights of the Members under this Agreement or any other duty owed by the Managing Member to the Company and/or the Members pursuant to express terms of this Agreement. If any question should arise with respect to the operation of the Company, which is not otherwise specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the Managing Member is hereby authorized to make a final determination with respect to any such question and to interpret this Agreement in such a manner as it shall deem, in its sole discretion, to be fair and equitable, and its determination and interpretations so made shall be final and binding on all parties. The Managing Member’s “sole and absolute discretion,” “sole discretion” and “discretion” under this Agreement shall be exercised consistently with good faith reliance on the provisions of this Agreement and the obligation of good faith and fair dealing under the Act (as modified by the Agreement).

(h)           The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. In performing its duties under this Agreement, the Managing Member shall be entitled to rely on the provisions of this Agreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any subsidiary of the Company, prepared or presented by any officer, employee or agent of the Managing Member, any agent of the Company or any such subsidiary, or by any lawyer, certified public accountant, appraiser or other person engaged by the Managing Member, the Company or any such subsidiary as to any matter within such person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such information, opinion, report or statement.

(i)            No director, officer or agent of the Managing Member shall have any duties directly to the Company or any Member. No director, officer or agent of the Managing Member shall be directly liable to the Company or any Member for money damages by reason of their service as such.

(j)            Notwithstanding any other provision of this Agreement or the Act, any action of the Managing Member on behalf of the Company or any decision of the Managing Member to refrain from acting on behalf of the Company, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the Managing Member to continue to qualify as a REIT, (ii) for the Managing Member otherwise to satisfy the REIT Requirements, (iii) for the Managing Member to avoid incurring any taxes under Code Section 857 or Code Section 4981, or (iv) for any Managing Member Affiliate to continue to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or a “taxable REIT subsidiary” (within the meaning of Code Section 856(l)), is expressly authorized under this Agreement and is deemed approved by all of the Members.

(k)           Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s and its officers’ and directors’ liability to the Company and the Members under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

(l)            In exercising its authority under this Agreement and subject to Section 7.8(b), the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (or not taken) by it. The Managing Member and the Company shall not have liability to a Member under any circumstances as a result of any tax liability incurred by such Member as a result of an action (or inaction) by the Managing Member pursuant to its authority under this Agreement.

Section 7.9           Title to Company Assets. Title to Company assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively with other Members or Persons, shall have any ownership interest in such Company assets or any portion thereof. Title to any or all of the Company assets may be held in the name of the Company, the Managing Member or one or more nominees, as the Managing Member may determine, including Affiliates of the Managing Member. The Managing Member hereby declares and warrants that any Company assets for which legal title is held in the name of the Managing Member or any nominee or Affiliate of the Managing Member shall be held by the Managing Member or such nominee or Affiliate for the use and benefit of the Company in accordance with the provisions of this Agreement. All Membership assets shall be recorded as the property of the Company in its books and records, irrespective of the name in which legal title to such Company assets is held.

Section 7.10         Reliance by Third Parties. Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Company shall be entitled to assume that the Managing Member has full power and authority, without the consent or approval of any other Member, or Person, to encumber, sell or otherwise use in any manner any and all assets of the Company and to enter into any contracts on behalf of the Company, and take any and all actions on behalf of the Company, and such Person shall be entitled to deal with the Managing Member as if it were the Company’s sole party in interest, both legally and beneficially. To the fullest extent permitted by law, each Member hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the Managing Member in connection with any such dealing. In no event shall any Person dealing with the Managing Member or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expediency of any act or action of the Managing Member or its representatives. Each and every certificate, document or other instrument executed on behalf of the Company by the Managing Member or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Company and (c) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Company.

ARTICLE 8
RIGHTS AND OBLIGATIONS OF Non-Managing MEMBERS

Section 8.1           Duties; Limitation of Liability. To the maximum extent permitted under the Act, except as set forth in Section 7.8 with respect to the Managing Member, the only duties that a Member owes to the Company, any Member or any other Person (including any creditor of any Member or assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. To the fullest extent permitted by law, no Member, other than the Managing Member, in its capacity as such, shall have any other duty, fiduciary or otherwise, to the Company, any Member or any other Person (including any creditor of any Member or any assignee of Membership Interest). The provisions of this Agreement other than this Section 8.1 shall create contractual obligations of the Members only, and no such provision shall be interpreted to expand, modify or impose fiduciary duties of the Members set forth in this Agreement. To the fullest extent permitted by law, the provisions of this Section 8.1, to the extent they restrict or modify the duties and liabilities of the Members or any other Person under the Act or otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities. No Non-Managing Member shall have any liability under this Agreement except for intentional harm or gross negligence on the part of such Non-Managing Member or as expressly provided in this Agreement (including, without limitation, Section 10.4 hereof) or under the Act.

Section 8.2           Management of Business. Subject to the rights and powers of the Managing Member hereunder, no Member or Assignee (other than the Managing Member, any of its Affiliates or any officer, director, member, employee, partner, agent or trustee of the Managing Member, the Company or any of their Affiliates, in their capacity as such) shall take part in the operations, management or control (within the meaning of the Act) of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company. The transaction of any such business by the Managing Member, any of its Affiliates or any officer, director, member, employee, partner, agent, representative, or trustee of the Managing Member, the Company or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the liability of the Members or Assignees under this Agreement.

Section 8.3           Outside Activities of Members. Subject to any agreements entered into pursuant to Section 7.6 hereof and any other agreements entered into by a Member (other than the Managing Member) or any of its Affiliates with the Managing Member, the Company or a Subsidiary (including, without limitation, any employment agreement), any Member (other than the Managing Member) and any Assignee, officer, director, employee, agent, trustee, Affiliate, member or stockholder of any Member (other than the Managing Member) shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company, including business interests and activities that are in direct or indirect competition with the Company or that are enhanced by the activities of the Company notwithstanding any duty otherwise existing at law or in equity. Neither the Company nor any Member (other than the Managing Member) shall have any rights by virtue of this Agreement in any business ventures of any Member (other than the Managing Member) or Assignee. Subject to such agreements, none of the Members (other than the Managing Member) nor any other Person shall have any rights by virtue of this Agreement or the Company relationship established hereby in any business ventures of any other Person (other than the Managing Member), and such Person shall have no obligation pursuant to this Agreement, subject to Section 7.6 hereof and any other agreements entered into by a Member (other than the Managing Member) or its Affiliates with the Managing Member, the Company or a Subsidiary, to offer any interest in any such business ventures to the Company, any Member (other than the Managing Member), or any such other Person, even if such opportunity is of a character that, if presented to the Company, any Member (other than the Managing Member) or such other Person, could be taken by such Person. In deciding whether to take any actions in such capacity, the Members (other than the Managing Member) and their respective Affiliates shall be under no obligation to consider the separate interests of the Company or its subsidiaries and to the maximum extent permitted by applicable law shall have no fiduciary duties or similar obligations to the Company or any other Members (other than the Managing Member), or to any subsidiary of the Company, and, to the fullest extent permitted by law, shall not be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the other Members (other than the Managing Member) in connection with such acts except for liability for fraud, willful misconduct or gross negligence.

Section 8.4           Return of Capital. Except pursuant to the rights of Redemption set forth in Section 15.1 hereof or in Article 17 or Article 18 of this Agreement or any Membership Unit Designation, no Member shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent of distributions made pursuant to this Agreement or upon dissolution of the Company as provided herein. Except to the extent provided in Article 5 and Article 6 hereof or otherwise expressly provided in this Agreement or in any Membership Unit Designation, no Member or Assignee shall have priority over any other Member or Assignee either as to the return of Capital Contributions or as to profits, losses or distributions.

Section 8.5            Rights of Members Relating to the Company.

(a)           In addition to other rights provided by this Agreement or by the Act, and except as limited by Section 8.5(c) hereof, the Managing Member shall deliver to each Member a copy of any information mailed or electronically delivered to all of the common stockholders of the Managing Member as soon as practicable after such mailing.

(b)           The Company shall notify any Member that is a Qualifying Party, on request, of the then current Adjustment Factor and any change made to the Adjustment Factor shall be set forth in the quarterly report required by Section 9.3(b) hereof immediately following the date such change becomes effective.

(c)           Notwithstanding any other provision of this Section 8.5, the Managing Member may keep confidential from the Members (or any of them), for such period of time as the Managing Member determines in its sole and absolute discretion to be reasonable, any information that (i) the Managing Member believes to be in the nature of trade secrets or other information the disclosure of which the Managing Member believes is not in the best interests of the Company or the Managing Member or (ii) the Company or the Managing Member is required by law or by agreement to keep confidential.

(d)           Upon written request by any Member, the Managing Member shall cause the ownership of Membership Units by such Member to be evidenced by a certificate for units in such form as the Managing Member may determine with respect to any class of Membership Units issued from time to time under this Agreement. Any officer of the Managing Member may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Company alleged to have been lost, destroyed, stolen or mutilated, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, destroyed, stolen or mutilated. Unless otherwise determined by an officer of the Managing Member, the owner of such lost, destroyed, stolen or mutilated certificate or certificates, or such owner’s legal representative, shall be required, as a condition precedent to the issuance of a new certificate or certificates, to give the Company a bond in such sums as the Managing Member may direct as indemnity against any claim that may be made against the Company.

Section 8.6           Company Right to Call Common Units. Notwithstanding any other provision of this Agreement: (i) on and after the date on which the aggregate Percentage Interests of the Common Units held by Members (other than the Managing Member) are less than one percent (1%) of the outstanding Common Units, the Company shall have the right, but not the obligation, from time to time and at any time to redeem any and all outstanding Common Units and (ii) at any time the Percentage Interest of the Common Units held by a Member is less than one half of a percent (0.5%) of the outstanding Common Units, the Company shall have the right, but not the obligation, from time to time and at any time to redeem all outstanding Common Units owned by such Member, in each case by treating any such Holder thereof as a Tendering Party who has delivered a Notice of Redemption pursuant to Section 15.1 hereof for the amount of Common Units to be specified by the Managing Member, by notice to such Holder that the Company has elected to exercise its rights under this Section 8.6. Such notice given by the Company to a Holder pursuant to this Section 8.6 shall be treated as if it were a Notice of Redemption delivered to the Managing Member by such Holder. For purposes of this Section 8.6, (a) the Managing Member may treat any Holder (whether or not otherwise a Qualifying Party) as a Qualifying Party that is a Tendering Party and (b) the provisions of Sections 15.1(f)(ii) and 15.1(f)(iii) hereof shall not apply, but the remainder of Section 15.1 hereof shall apply, mutatis mutandis.

ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS

Section 9.1            Records and Accounting.

(a)           The Managing Member shall keep or cause to be kept at the principal place of business of the Company those records and documents, if any, required to be maintained by the Act and any other books and records deemed by the Managing Member to be appropriate with respect to the Company’s business, including, without limitation, all books and records necessary to provide to the Members any information, lists and copies of documents required to be provided pursuant to Section 8.5(a), Section 9.3 or Article 13 hereof. Any records maintained by or on behalf of the Company in the regular course of its business may be kept on any information storage device, provided that the records so maintained are convertible into clearly legible written form within a reasonable period of time.

(b)           The books of the Company shall be maintained, for financial and tax reporting purposes, on an accrual basis in accordance with generally accepted accounting principles, or on such other basis as the Managing Member determines to be necessary or appropriate. To the extent permitted by sound accounting practices and principles, the Company and the Managing Member may operate with integrated or consolidated accounting records, operations and principles.

Section 9.2            Fiscal Year. For purposes of this Agreement, the fiscal year of the Company shall be the Fiscal Year.

Section 9.3            Reports.

(a)           As soon as practicable, but in no event later than one hundred five (105) days after the close of each Fiscal Year, the Managing Member shall cause to be mailed to each Member of record as of the close of the Fiscal Year, financial statements of the Company, or of the Managing Member if such statements are prepared solely on a consolidated basis with the Managing Member, for such Fiscal Year, presented in accordance with generally accepted accounting principles, such statements to be audited by a nationally recognized firm of independent public accountants selected by the Managing Member.

(b)           As soon as practicable, but in no event later than sixty (60) days after the close of each calendar quarter (except the last calendar quarter of each year), the Managing Member shall cause to be mailed to each Member of record as of the last day of the calendar quarter, a report containing unaudited financial statements of the Company for such calendar quarter, or of the Managing Member if such statements are prepared solely on a consolidated basis with the Managing Member, and such other information as may be required by applicable law or regulation or as the Managing Member determines to be appropriate.

(c)           The Managing Member shall have satisfied its obligations under Section 9.3(a) and Section 9.3(b) by either (i) to the Managing Member or the Company being subject to periodic reporting requirements under the Exchange Act, and filing the quarterly and annual reports required thereunder within the time periods provided for the filing of such reports, including any permitted extensions, or (ii) posting or making available the reports required by this Section 9.3 on the website maintained from time to time by the Company or the Managing Member.

Section 9.4            Waiver of Statutory Inspection Rights. To the fullest extent permitted by law, each Member hereby waives any current or future rights Members may have under Section 18-305 of the Act (and similar rights under other applicable law) to inspect, or make copies and extracts from, the Company’s stock ledger, any list of its stockholders, or any other books and records of the Company or any of its affiliates or subsidiaries, in Member’s capacity as a holder of stock, shares, units, options, or any other equity instrument.

ARTICLE 10
TAX MATTERS

Section 10.1         Preparation of Tax Returns. The Managing Member shall arrange for the preparation and timely filing of all returns with respect to Company income, gains, deductions, losses and other items required of the Company for federal and state income tax purposes and shall use all reasonable efforts to furnish, within ninety (90) days of the close of each taxable year or as soon as reasonably practicable thereafter, the tax information reasonably required by Members for federal and state income tax and any other tax reporting purposes. The Members shall promptly provide the Managing Member with such information relating to the Contributed Properties as is readily available to the Members, including tax basis and other relevant information, as may be reasonably requested by the Managing Member from time to time.

Section 10.2        Tax Elections. Except as otherwise provided herein, the Managing Member shall, in its sole and absolute discretion, determine whether to cause the Company to make any available election pursuant to the Code, including, but not limited to, the election under Code Section 754. The Managing Member shall have the right to cause the Company to seek to revoke any such election (including, without limitation, any election under Code Section 754) upon the Managing Member’s determination in its sole and absolute discretion that such revocation is in the best interests of the Members.

Section 10.3         Company Representative.

(a)           The Managing Member shall be the “partnership representative” of the Company under Code Section 6223 for federal income tax purposes (the “Company Representative”). The Company Representative shall receive no compensation for its services. All third-party costs and expenses incurred by the Company Representative in performing its duties as such (including legal and accounting fees and expenses) shall be borne by the Company in addition to any reimbursement pursuant to Section 7.4 hereof. Nothing herein shall be construed to restrict the Company from engaging an accounting firm to assist the Company Representative in discharging its duties hereunder. The Managing Member shall appoint an individual (the “Designated Individual”) through whom the Company Representative will act in accordance with Regulations Section 301.6223-1 and any other applicable IRS guidance. The Designated Individual is authorized to take any action the Company Representative is authorized to take under this Agreement.

(b)           The Company Representative is authorized, but not required:

(i)            to enter into any settlement with the IRS with respect to any administrative or judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes (such administrative proceedings being referred to as a “tax audit” and such judicial proceedings being referred to as “judicial review”), and in the settlement agreement the Company Representative may expressly state that such agreement shall bind all Members;

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

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

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

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

(vi)          to make an election under Code Section 6226; and

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

The taking of any action and the incurring of any expense by the Company Representative in connection with any such proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the Company Representative and the provisions relating to indemnification of the Managing Member set forth in Section 7.7 hereof shall be fully applicable to the Company Representative in its capacity as such.

Section 10.4         Withholding. Each Member hereby authorizes the Company to withhold from or pay on behalf of or with respect to such Member any amount of federal, state, local or foreign taxes that the Managing Member determines the Company is required to withhold or pay with respect to any amount distributable or allocable to such Member pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Company pursuant to Code Section 1441, Code Section 1442, Code Section 1445, Code Section 1446 or Code Section 6225. Any amount withheld with respect to a Member pursuant to this Section 10.4 shall be treated as paid or distributed, as applicable, to such Member for all purposes under this Agreement. Any amount paid on behalf of or with respect to a Member, in excess of any such withheld amount, shall constitute a loan by the Company to such Member, which loan shall be repaid by such Member within thirty (30) days after the affected Member receives written notice from the Managing Member that such payment must be made, provided that the Member shall not be required to repay such deemed loan if either (a) the Company withholds such payment from a distribution that would otherwise be made to the Member or (b) the Managing Member determines, in its sole and absolute discretion, that such payment may be satisfied out of the Available Cash of the Company that would, but for such payment, be distributed to the Member. Any amounts payable by a Member hereunder shall bear interest at the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate) from the date such amount is due (i.e., thirty (30) days after the Member receives written notice of such amount) until such amount is paid in full.

Section 10.5         Organizational Expenses. The Managing Member may cause the Company to elect to deduct expenses, if any, incurred by it in organizing the Company ratably over a 180-month period as provided in Section 709 of the Code.

Section 10.6        Membership Provisions. The Members acknowledge that, as of the date of this Agreement, the Company is a Disregarded Entity of the Managing Member for U.S. federal income tax purposes and will remain disregarded until such time as a Person other than the Managing Member or a Disregarded Entity thereof acquires an equity interest in the Company, at which point the Company would become a partnership for U.S. federal income tax purposes. Accordingly, notwithstanding anything to the contrary in this Agreement, the provisions of this Agreement that (i) relate to the maintenance of Capital Accounts, (ii) reference or apply the provisions of Subchapter K of the Code, or (iii) otherwise are, in the Managing Member’s determination, not relevant to the Company for so long as it is a Disregarded Entity shall, in each case, apply only if and to the extent the Company becomes a partnership for U.S. federal income tax purposes.

Section 10.7         Survival. Each Member’s obligations and the Company’s rights under this Article X shall survive the dissolution, liquidation, and winding up of the Company.

ARTICLE 11
MEMBER TRANSFERS AND WITHDRAWALS

Section 11.1         Transfer.

(a)           No part of the interest of a Member shall be subject to the claims of any creditor, to any spouse for alimony or support, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement.

(b)           No Membership Interest shall be Transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article 11. To the fullest extent permitted by law, any Transfer or purported Transfer of a Membership Interest not made in accordance with this Article 11 shall be void.

(c)           No Transfer of any Membership Interest may be made to a lender to the Company or any Person who is related (within the meaning of Section 1.752-4(b) of the Regulations) to any lender to the Company whose loan constitutes a Nonrecourse Liability, without the Consent of the Managing Member; provided, however, that, as a condition to such Consent, the lender may be required to enter into an arrangement with the Company and the Managing Member to redeem or exchange for the REIT Shares Amount any Membership Units in which a security interest is held by such lender simultaneously with the time at which such lender would be deemed to be a partner in the Company for purposes of allocating liabilities to such lender under Section 752 of the Code (provided that, for purpose of calculating the REIT Shares Amount in this Section 11.1(c), “Tendered Units” shall mean all such Membership Units in which a security interest is held by such lender).