Exhibit 10.1

E XECUTION V ERSION

 

 

LIMITED PARTNERSHIP AGREEMENT

OF

TEXMARK TIMBER TREASURY, L.P.

Dated as of July 6, 2018

 

 

TABLE OF CONTENTS

 

				Page
ARTICLE 1 FORMATION AND ORGANIZATION					2
Section 1.1.		Formation			2
Section 1.2.		Basic Rights of Partners			2
Section 1.3.		Name			2
Section 1.4.		Term			2
Section 1.5.		Business			2
Section 1.6.		Principal Place of Business; Registered Office and Agent			2
Section 1.7.		Certificated Interests			3
Section 1.8.		Currency			3
ARTICLE 2 CAPITAL CONTRIBUTIONS; EXPENSES					3
Section 2.1.		Capital Contributions			3
Section 2.2.		Treatment of Defaulting Partner			6
Section 2.3.		Return of or on Capital Contributions			9
Section 2.4.		Return of Distributions			9
Section 2.5.		Fees and Expenses			9
Section 2.6.		Partnership Interests			11
Section 2.7.		No Additional Partners or Issuances			11
Section 2.8.		Sole Benefit			11
Section 2.9.		Waiver of Certain Rights			12
ARTICLE 3 DISTRIBUTIONS					12
Section 3.1.		Timing; Working Capital Reserves; Notice			12
Section 3.2.		Distributions with Respect to Shortfall Return Interests			12
Section 3.3.		Distributions with Respect to Preferred Return Interests			12
Section 3.4.		Distributions with Respect to Common Return Interests			12
Section 3.5.		Distributions of Remaining Distributable Cash Flow			13
Section 3.6.		Disposition of Cash Proceeds from Subsidiary REIT			13
Section 3.7.		Form of Distributions			14
ARTICLE 4 MANAGEMENT OF PARTNERSHIP					14
Section 4.1.		Management of the Partnership			14
Section 4.2.		Partnership Board			15
Section 4.3.		Composition of the Board			15
Section 4.4.		Resignation, Removal and Replacement of Board Members; Transfers of Appointment Rights			18
Section 4.5.		Meetings of the Board			18
Section 4.6.		Action of the Board Without a Meeting			20
Section 4.7.		Compensation of Board Members			20
Section 4.8.		Actions of the Partners			20
Section 4.9.		Operations of the Partnership and the Subsidiary REIT			20
Section 4.10.		Major Decisions			22

Section 4.11.		Annual Budget			24
Section 4.12.		Transactions with Affiliates			26
Section 4.13.		Removal of the General Partner			27
Section 4.14.		Leverage			28
Section 4.15.		Property Sale Right of First Opportunity			28
Section 4.16.		Forced Sale			30
Section 4.17.		No U.S. Trade of Business; Commercial Activity			30
Section 4.18.		Permitted HBU Sales			30
Section 4.19.		No Direct Ownership of Property, Real Estate Assets or Timber			30
Section 4.20.		Disposition of Subsidiary REIT Units			30
Section 4.21.		Amendment of Subsidiary REIT Agreement			31
Section 4.22.		Disposition of Property or Real Estate Assets			31
ARTICLE 5 TRANSFERS OF PARTNERSHIP INTERESTS					31
Section 5.1.		Transfers			31
Section 5.2.		Admission of Transferees as Substituted Partners			37
Section 5.3.		Right of First Offer			38
Section 5.4.		Tag-Along Right			40
Section 5.5.		Preemptive Rights			42
Section 5.6.		Call Right on Preferred Partners			43
Section 5.7.		Permitted Financing Transaction			45
Section 5.8.		Pledging of Partnership Interests			45
ARTICLE 6 RIGHTS AND DUTIES OF PARTNERS					46
Section 6.1.		Relationship of Partners			46
Section 6.2.		Limitation of Authority			47
Section 6.3.		Other Activities			47
Section 6.4.		Confidentiality			48
Section 6.5.		Limitation of Liability of Partners and Affiliates			49
Section 6.6.		ERISA Status			49
ARTICLE 7 LIABILITY; INDEMNIFICATION					49
Section 7.1.		Liability of the Indemnified Parties			49
Section 7.2.		Indemnification by the Partnership			50
ARTICLE 8 FINANCIAL AND ACCOUNTING MATTERS					52
Section 8.1.		Books and Records			52
Section 8.2.		Audit and Reporting			53
Section 8.3.		Valuations			55
ARTICLE 9 TAX AND REGULATORY MATTERS					56
Section 9.1.		Taxation as Partnership			56
Section 9.2.		Capital Accounts; Tax Allocations			56
Section 9.3.		Partnership Representative			56
Section 9.4.		Tax Returns			57
Section 9.5.		Tax Advances and Obligations			58
Section 9.6.		Limitation of Liability of Partners and Affiliates			60

 

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ARTICLE 10 TERMINATION; DISSOLUTION AND WINDING UP					60
Section 10.1.		Termination			60
Section 10.2.		Effect of Termination			60
Section 10.3.		Survival			61
Section 10.4.		Dissolution of the Partnership			61
Section 10.5.		No Partition			62
ARTICLE 11 NOTICES					62
Section 11.1.		Notices			62
Section 11.2.		Change of Address			62
ARTICLE 12 MISCELLANEOUS					63
Section 12.1.		Entire Agreement			63
Section 12.2.		Amendments			63
Section 12.3.		Governing Law; Jurisdiction			64
Section 12.4.		Successors and Assigns			64
Section 12.5.		No Third Party Beneficiaries			64
Section 12.6.		Severability			65
Section 12.7.		Enforceability			65
Section 12.8.		No Waiver			65
Section 12.9.		Captions			65
Section 12.10.		Further Assurances			65
Section 12.11.		Counterparts			65
Section 12.12.		PDF Signature			66
Section 12.13.		Time of the Essence			66
Section 12.14.		Usury Savings			66
Section 12.15.		Waiver; Privilege			66

EXHIBITS AND SCHEDULES

 

 

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LIMITED PARTNERSHIP AGREEMENT

OF

TEXMARK TIMBER TREASURY, L.P.

This LIMITED PARTNERSHIP AGREEMENT (this “ Agreement ”) of TexMark Timber Treasury, L.P., a Delaware limited partnership (the “ Partnership ”), is dated effective as of July 6, 2018 (the “ Effective Date ”) and is made by and among, Triple T GP, LLC, a Delaware limited liability company, as general partner (the “ General Partner ”), Creek Pine Holdings, LLC, a Delaware limited liability company, as limited partner (“ CTT Partner ” and, together with the General Partner, the “ Common Partners ”), each of IMC RRIF C US Inc., a Canadian corporation, IMC RRIF M US Inc., a Canadian corporation, IMC RRIF PS US Inc., a Canadian corporation, IMC RRIF T US Inc., a Canadian corporation, IMC RRIF WS US Inc., a Canadian corporation, IMC RRIF H US Inc., a Canadian corporation, and bcIMC (WCBAF REKYN) Investment Corporation, a Canadian corporation, as limited partner (each, a “ BCI Partner ” and, collectively, “ BCI Partners ”), Caddo TIG Newco L.P., a Delaware limited partnership, as limited partner (“ TIG Partner ”), Caddo Investors Holdings 1 LLC, a Delaware limited liability company, as limited partner (“ Medley Partner ”), Highland Floating Rate Opportunities Fund, NexPoint Strategic Opportunities Fund, and NexPoint Real Estate Strategies Fund, as limited partner (each, a “ Highland Partner ” and, collectively, “ Highland Partners ”) and JAWS Capital, LP, a Delaware limited partnership (“ JAWS Partner ” and, together with Medley Partner, BCI Partners, TIG Partner and Highland Partners, the “ Preferred Partners ” and, together with the Common Partners, the “ Partners ”). Exhibit A sets forth the definitions of capitalized words and phrases used in this Agreement as well as rules for interpreting other words and phrases.

RECITALS:

WHEREAS, the Partnership was formed as a limited partnership under and pursuant to the provisions of the Act, pursuant to the filing of the Certificate of Limited Partnership of the Partnership (the “ Certificate ”), as filed in the office of the Secretary of State of the State of Delaware on May 29, 2018 (the “ Formation Date ”);

WHEREAS, the Partnership was formed to invest in Creek Pine REIT, LLC, a Delaware limited liability company that will elect to be classified as a corporation and taxed as a REIT under the Code (the “ Subsidiary REIT ”);

WHEREAS, the Partnership and the Subsidiary REIT were formed to acquire one hundred percent (100%) of the ownership interests of Crown Pine Timber 1, L.P., which owns (directly and indirectly) approximately 1.1 million acres of timberland in east Texas (the “ Property ”), pursuant to that certain Crown Pine Purchase Agreement, dated as of May 14, 2018 (the “ Crown Pine Purchase Agreement ”), by and among Crown Pine Parent, L.P., Crown Pine REIT, Inc., CPT1 LLC, Crown Pine Timber 1, L.P. and Creek Pine Holdings, LLC (the “ Acquisition ”); and

WHEREAS, the parties hereto desire to operate the Partnership as a limited partnership under the Act and to set forth their respective rights and obligations vis-à-vis the Partnership.

NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Partners agree to the following terms and conditions:

ARTICLE 1

FORMATION AND ORGANIZATION

Section 1.1. Formation . The Partnership was formed as a limited partnership on the Formation Date by the filing of the Certificate with the office of the Secretary of State of the State of Delaware under and pursuant to the applicable provisions of the Act. For all purposes hereunder, the General Partner shall be considered the sole “general partner” of the Partnership within the meaning of Section 17-101(5) of the Act.

Section 1.2. Basic Rights of Partners . The Partners hereby enter into this Agreement to set forth certain rights and obligations of the Partners, the procedures for managing and operating the Partnership and related matters. The Partners intend and agree that this Agreement is for all purposes the “partnership agreement” of the Partnership as defined in the Act. Except to the extent otherwise provided in this Agreement, (a) the rights and obligations (i) of the Partnership and the Partners and (ii) between and among the Partners and (b) the management, operation, termination and dissolution of the Partnership, in each case, shall be governed by the provisions of the Act.

Section 1.3. Name . The business of the Partnership shall be conducted under the name “TexMark Timber Treasury, L.P.” or such other name as the General Partner may hereafter determine; provided , that any such other name shall not include any Partner’s name or any variation thereof without such Partner’s prior written consent.

Section 1.4. Term . The term of the Partnership (the “ Term ”) commenced on the Formation Date and shall continue (unless the Partnership is sooner dissolved, liquidated and terminated as provided herein) until the tenth (10th) anniversary of the Effective Date.

Section 1.5. Business . The business of the Partnership is to, through one or more Subsidiaries, (a) acquire, own, manage, finance, develop and hold for investment and ultimately dispose of or otherwise invest in or engage in activities related to investment in the Property or such other Real Estate Assets as may be acquired by the Partnership or its Subsidiaries; (b) acquire, own, hold for investment and ultimately dispose of general and limited partner interests, limited liability company member interests (including the Subsidiary REIT Units) and stock, warrants, options or other equity and debt interests in entities, and exercise all rights and powers granted to the owner of any such interests; (c) engage in any and all other activities relating to, and compatible with, the purposes set forth herein; and (d) take such other actions, or do such other things, as are 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 Partnership.

Section 1.6. Principal Place of Business; Registered Office and Agent . The principal place of business of the Partnership shall be located at 702 N. Temple Dr., Diboll, TX 75941, or such other place or places as the General Partner may hereafter from time to time designate. The registered office of the Partnership in the State of Delaware, and the registered agent for service of process on the Partnership at such registered office, shall be as set forth in the Certificate, as amended from time to time.

 

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Section 1.7. Certificated Interests .

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

(b) The Partnership Interests in the Partnership shall be evidenced by certificates in the form of Exhibit H and each such certificate shall be executed by the General Partner on behalf of the Partnership.

(c) The Partnership shall maintain books for the purpose of registering the Transfer of Partnership Interests in the Partnership. Subject to compliance with Article 5 , a Transfer of a Partnership Interest in the Partnership shall be effected by the Partnership registering the Transfer upon delivery of an endorsed certificate representing the interest being Transferred.

(d) Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the UCC, such provision of Article 8 of the UCC shall control.

Section 1.8. Currency . All Capital Contributions to the Partnership and cash distributions made by the Partnership shall be made in Dollars and the books and records of the Partnership will be maintained in Dollars for all reporting purposes.

ARTICLE 2

CAPITAL CONTRIBUTIONS; EXPENSES

Section 2.1. Capital Contributions .

(a) Capital Contributions . Upon the execution of this Agreement, each Partner shall be deemed to have contributed on the Effective Date to the Partnership the Capital Contributions set forth opposite such Partner’s name on Exhibit B as of the date indicated thereon. Such Capital Contributions have been made to fund $925,866,142 for the purchase price for the Acquisition (the “ Purchase Price ”), and an additional amount to fund costs associated with the closing of the Acquisition (the “ Closing ”), debt origination fees and a pre-funding of Expenses of the Partnership.

 

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(b) Additional Capital Contributions Regarding Cumulative Net Shortfall . The Partners acknowledge that the Capital Contributions made on the Effective Date to the Partnership include an additional amount that is intended to cover, among other items, certain shortfalls in Net Operating Income of the Subsidiary REIT and its Subsidiaries and to cover the payment of the Asset Management Fee (as such term is defined in the Asset Management Agreement), in each case, for each Fiscal Quarter as shown on Exhibit C-1 attached hereto. If, as of the end of any given Fiscal Quarter on or after the fourth full Fiscal Quarter following the Effective Date, the Partnership generates a Cumulative Net Shortfall that is less than zero ($0), any such Cumulative Net Shortfall shall be funded as follows:

(i) First, by deducting from the Opening Bank Balance an amount equal to the lesser of (x) the absolute value of the Cumulative Net Shortfall and (y) the Opening Bank Balance (the amount, if any, by which the absolute value of the Cumulative Net Shortfall exceeds the Opening Bank Balance, the “ Cumulative Net Shortfall, Post-Bank, Pre-AM Fee Deferral Amount ”);

(ii) Second, any Asset Management Fee due and payable, with respect to such Fiscal Quarter, shall be deferred in an amount equal to the lesser of (x) the absolute value of such Cumulative Net Shortfall, Post-Bank, Pre-AM Fee Deferral Amount for such Fiscal Quarter and (y) the Asset Management Fee due and owing for such Fiscal Quarter (the amount as determined pursuant to clause (x) or clause (y), as applicable, plus any additional amounts of Asset Management Fees deferred with respect to such Fiscal Quarter pursuant to Section  4.3(c) , the “ Deferred Asset Management Fees ”), which Deferred Asset Management Fees shall not bear interest or other penalty. Any Deferred Asset Management Fees shall continue to be deferred until the earlier of (i) the liquidation of the Partnership, (ii) termination of the Agreement in accordance with its terms and (iii) any Fiscal Quarter in which the Cumulative Net Surplus is greater than zero ($0); provided , that the Partnership shall pay the lesser of (1) the Cumulative Net Surplus and (2) the Deferred Asset Management Fees Balance, in each case, only until the Deferred Asset Management Fees Balance is reduced to zero ($0) (any such amount of Deferred Asset Management Fees paid in accordance with this proviso, with respect to any Fiscal Quarter, the “ Recovered Asset Management Fees ”);

(iii) Third, if the amount of the Cumulative Net Shortfall is not funded in full by actions taken pursuant to clauses (i) and (ii) above, then, at the option of the Common Partners, the Common Partners may make additional Capital Contributions to the Partnership to fund the amount of the remaining Cumulative Net Shortfall;

(iv) Fourth, if the amount of the Cumulative Net Shortfall is not funded in full by actions taken pursuant to clauses (i), (ii) and (iii) above, then, at the option of each Preferred Partner, a Preferred Partner may make additional Capital Contributions (“ Shortfall Contributions ”) to the Partnership to fund the amount of the remaining Cumulative Net Shortfall, which Shortfall Contributions shall not reduce the funding Partners’ respective Remaining Capital Commitments (it being understood that the Partnership shall deliver, or shall cause to be delivered, any such Shortfall Contributions to the Subsidiary REIT as a “Shortfall Contribution” (as such term is defined in the Subsidiary REIT Agreement)). Shortfall Contributions shall be made on a pro rata basis based on the Preferred Partners’ relative Percentage Interests; provided , that, to the extent any Preferred Partner elects not to fund their pro rata portion, the other Preferred Partners that elected to fund their pro rata portion shall be offered the opportunity to fund the remaining Shortfall Contributions needed to fund the full amount of the remaining Cumulative Net Shortfall as set forth below; and

 

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(v) Fifth, if the amount of the Cumulative Net Shortfall is not funded in full by actions taken pursuant to clauses (i), (ii), (iii) and (iv) above, then, at the option of the Common Partners, the Common Partners may make additional Capital Contributions to the Partnership to fund the amount of the remaining Cumulative Net Shortfall.

An example calculation of Cumulative Net Shortfall is set forth on Exhibit C-3 . The General Partner shall cause any Cumulative Net Shortfall amounts funded by the Partners pursuant to this Section  2.1(b) to be funded by the Partnership to the Subsidiary REIT in accordance with Section 2.1 of the Subsidiary REIT Agreement.

(c) Shortfall Notices . The General Partner (x) may, at its option, provide notice to the Partners of any forecasted Cumulative Net Shortfall for a Fiscal Quarter that is not able to be funded from the Pre-Funded Expense Account (as such term is defined in the Subsidiary REIT Agreement) for such Fiscal Quarter if the General Partner becomes aware of the possibility of such Cumulative Net Shortfall and (y) shall, forty-five (45) days following the end of each Fiscal Quarter, provide notice to the Partners of any actual Cumulative Net Shortfall during such Fiscal Quarter (each notice delivered under clause (x) or (y), a “ Shortfall Notice ”). Each Shortfall Notice shall include (1) the total Cumulative Net Shortfall (or forecasted Cumulative Net Shortfall, as the case may be) and the applicable Fiscal Quarter, (2) the amount of Asset Management Fees to be deferred pursuant to Section  2.1(b)(i) and (ii) in respect thereof, (3) the amount of any additional Capital Contribution being made by the Common Partners pursuant to Section  2.1(b)(iii) in respect thereof, and (4) the remaining amount of the Cumulative Net Shortfall after giving effect to funding pursuant to Section  2.1(b)(i) , Section  2.1(b)(ii) and Section  2.1(b)(iii) , as applicable. For the avoidance of doubt, any Asset Management Fees deferred, Capital Contributions made by the Common Partners or use of or any diminution of the Opening Bank Balance or Ending Bank Balance, as applicable, pursuant to Section  2.1(b) or Section  4.3(c) shall be considered to occur with respect to the applicable Fiscal Quarter, notwithstanding that they may be made following the end of such Fiscal Quarter.

(d) Offering Period for Shortfall Contributions . The Preferred Partners shall then have ten (10) Business Days following the date of such Shortfall Notice with respect to Section  2.1(b)(iv) (the “ Initial Offering Period ”) to elect whether to provide their share of Capital Contributions pursuant to Section  2.1(b)(iv) to fund such remaining Cumulative Net Shortfall. To the extent that any Preferred Partner elects not to fund their pro rata portion of the remaining Cumulative Net Shortfall, the General Partner shall provide a re-offer notice to the other Preferred Partners that elected to fund their pro rata portion of the applicable Shortfall Contribution, and such other Preferred Partners shall have the right to fund all or a portion of such remainder (based on the amount of such remainder that each such Preferred Partner elected to purchase relative to all electing Preferred Partners) within five (5) Business Days after receipt of such re-offer notice (the “ Additional Offering Period ”). Any failure by a Preferred Partner to make an election within the relevant time periods set forth in this Section  2.1(d) shall be deemed to be an election not to fund any portion of the remaining Cumulative Net Shortfall under Section  2.1(b)(iv) and the relevant Shortfall Notice. Following the end of the Initial Offering Period or, if applicable, the Additional Offering Period, the General Partner shall be permitted to issue a Capital Call Notice pursuant to Section  2.1(e) in respect of the amounts elected to be funded under Section  2.1(b)(iv) . Following the end of the Additional Offering Period, if total funding after giving effect to funding pursuant to Section  2.1(b)(i) , Section  2.1(b)(ii) , Section  2.1(b)(iii) and Section  2.1(b)(iv) is insufficient to fund the Cumulative Net Shortfall, the Common Partners may (but shall not be required to) make additional Capital Contributions under Section  2.1(b)(v) to the Partnership to fund the amount of the remaining Cumulative Net Shortfall.

 

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(e) Capital Call Notices . With respect to each Capital Contribution that a Partner elects to make pursuant to Section  2.1(b)(iii) or Section  2.1(b)(iv) , the General Partner shall issue a written capital call notice (a “ Capital Call Notice ”) to each applicable Partner setting forth the following information: (i) the total amount of capital to be contributed by the Partners; (ii) the amount that such Partner must contribute in respect of such Capital Call Notice, noting the provision of this Agreement under which such amount is being called; (iii) the purpose for such Capital Contribution; and (iv) the date on which such Capital Contribution must be made, which date (1) shall be a Business Day and (2) shall not be less than ten (10) Business Days following the date of such Capital Call Notice. To the extent there exists a Cumulative Net Shortfall for a Fiscal Quarter and the General Partner does not provide a Shortfall Notice to the other Partners as required by clause (y) of Section  2.1(c) within sixty (60) days following the end of such Fiscal Quarter, a majority of the Board Members appointed by the Preferred Partners may direct the General Partner to issue (or may otherwise cause to be issued) such Shortfall Notice (and the corresponding re-offer notice pursuant to Section  2.1(d) , as applicable), as well as any Capital Call Notice contemplated by this Section  2.1(e) , in respect of such Cumulative Net Shortfall.

Section 2.2. Treatment of Defaulting Partner .

(a) Default . If any Partner fails to fund any Capital Contribution that a Partner elects to make pursuant to Section  2.1(b)(iii) , Section  2.1(b)(iv) or Section  2.2(b) , within the period set forth in the applicable Capital Call Notice, such Partner shall be considered a “ Defaulting Partner ” but only to the extent such Partner has received a subsequent Failure to Fund Notice and has not funded its share of the applicable Capital Contribution within three (3) Business Days of receipt of such Failure to Fund Notice. Other than as set forth in the immediately preceding sentence, a Partner that has become a Defaulting Partner shall not be entitled to any additional grace period in which to cure the default and pay its required Capital Contribution. The portion of such Capital Contribution that such Defaulting Partner was required to make and did not actually fund is referred to herein as the “ Unfunded Amount .”

(b) Remedies Generally . Unfunded Amounts may be funded as follows:

(i) First, each Preferred Partner that fully funded its required Capital Contribution that is not an Affiliate of the Defaulting Partner (each, a “ Contributing Partner ”) shall have the right (without obligation), within thirty (30) days from notice from the General Partner of an outstanding Unfunded Amount, to elect to make, with respect to an Unfunded Amount that relates to a failure to fund under Section  2.1(b)(iii) or Section  2.1(b)(iv) , a Capital Contribution of all or a portion of the payment of the Unfunded Amount (any such amount contributed under (x) or (y), a “ Replacement Contribution ”) to the Partnership to fund such Unfunded Amount, which Replacement Contributions shall not reduce the Contributing Partners’ respective Remaining Capital Commitments. If more than one Contributing Partner elects to make a Replacement Contribution pursuant to this Section  2.2(b)(i) , such Contributing Partners will fund up to their pro rata share, based on the Preferred Partners’ relative Percentage Interests (taking into account only

 

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the Capital Contributions of the participating Preferred Partners), of such Replacement Contribution, in an aggregate collective amount equal to the Unfunded Amount. If only one Contributing Partner elects to make a Replacement Contribution, the electing Contributing Partner shall fund the Replacement Contribution in the applicable amount proposed by such Partner for the Replacement Contribution. Any failure to make an election within the relevant time period set forth in this Section  2.2(b)(i) shall be deemed to be an election not to make a Replacement Contribution in respect of the applicable Unfunded Amount under the relevant notice. To the extent that all of the Preferred Partners do not elect to make Replacement Contributions pursuant to the preceding sentences of this Section  2.2(b)(i) , the General Partner will offer the Preferred Partners who elected to make Replacement Contributions, within five (5) days of the expiration of the 30-day period above, the option to make the remainder of the Replacement Contributions (based on the amount of such remainder offered relative to the other such participating Preferred Partners) within ten (10) Business Days after receipt of such offer.

(ii) Second, if no Preferred Partner elects to fund a Replacement Contribution in respect of such outstanding Unfunded Amount pursuant to Section  2.2(b)(i) or the aggregate amounts funded in connection with such Replacement Contributions are less than the Unfunded Amount, if none of the Common Partners is the Defaulting Partner or an Affiliate thereof, the Common Partners shall have the right (without obligation) to make a Replacement Contribution to the Partnership or to permit a third party to make a Replacement Contribution to the Partnership to fund the remaining amount of the Unfunded Amount, which Replacement Contribution shall not reduce the Common Partners’ Remaining Capital Commitments (without the need for approval as a Major Decision).

(c) Default Date and Default Period . The day that a Partner becomes a Defaulting Partner is referred to herein as the “ Default Date .” The Defaulting Partner shall be deemed to have cured the default at such time as if Replacement Contributions were made in respect of such default pursuant to Section  2.2(b)(i) or Section  2.2(b)(ii) , if (i) each Contributing Partner actually receives from the Defaulting Partner full repayment of any Replacement Contributions made by such Contributing Partner; and (ii) each Contributing Partner actually receives from the Defaulting Partner (A) an amount of interest equal to ten and one-quarter percent (10.25%) per annum, compounded on the last day of each calendar year, on such Contributing Partner’s Replacement Contributions, and (B) an amount of interest equal to twenty percent (20%) per annum over the Reference Rate, compounded on the last day of each calendar year, on such Contributing Partner’s Replacement Contributions, in each case, for the Default Period taking into account the amount of Replacement Contributions remaining unpaid on each day of such period (such amounts payable under this clause (ii) of this Section  2.2(c) , the “ Default Return ”; the applicable date of repayment under clause (i) and (ii) of this Section  2.2(c) , the “ Cure Date ”; and the period from the Default Date until the Cure Date (if applicable), the “ Default Period ”).

(d) Action for Breach of Contract . The rights and remedies provided for in this Section  2.2 shall be in addition to, and not in limitation of, any other rights available to the non-Defaulting Partners or the Partnership under this Agreement or at law or in equity. In addition, neither such Defaulting Partner nor any other Partner shall be relieved of its obligation to make any Capital Contributions then or thereafter due. The Partnership shall have the right to immediately institute legal action against the Defaulting Partner for monies due to the Partnership under this Agreement, plus all costs and attorneys’ fees reasonably incurred by the Partnership in the institution and prosecution of such action.

 

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(e) Termination of Rights . During the Default Period, if applicable, (i) if the Common Partners are the Defaulting Partners, then the Common Partners shall not be entitled to exercise the rights set forth under Section  4.15 , (ii) a Defaulting Partner and its Affiliates shall not be entitled to participate in the right of first offer under Section  5.3 or the tag-along rights under Section  5.4 , (iii) a Defaulting Partner and its Affiliates shall not be entitled to participate in any Shortfall Contribution, and (iv) a Defaulting Partner and its Affiliates shall forfeit to the Partnership (for the account of the Contributing Partners in repayment of the Replacement Contributions made thereby in respect of such Defaulting Partner and the Default Return thereon) and shall not be entitled to participate in any distribution with respect to Shortfall Return Interests, Preferred Return Interests, Common Return Interests or Residual Interests. The Partnership shall distribute to the Contributing Partners, pro rata in proportion to their relative Replacement Contributions in respect of such Defaulting Partner, any amounts otherwise distributable to the Defaulting Partner which have been forfeited under clause (iv) of this Section  2.2(e) .

(f) Matters Relating to Default .

(i) Notwithstanding the foregoing provision of this Section  2.2 , in the event that the General Partner or any Affiliate thereof is the Defaulting Partner, then, for purposes of the application of this Section  2.2 , any action to be taken or determination to be made by the General Partner pursuant to this Section  2.2 shall instead be taken or made by a Person to be designated by a majority of the Board Members appointed by the Preferred Partners.

(ii) During the Default Period, (1) the Defaulting Partner and its Affiliates shall not be entitled to participate in any vote, consent or decision of the Partners that is required or permitted pursuant to this Agreement or the Act, including for purposes of amendments of this Agreement, and any such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Partner, and its then-current Board Members shall not be entitled to take any action in such capacity and shall not be counted towards quorum requirements, (2) the Defaulting Partner and its Affiliates shall not be entitled to appoint Board Members pursuant to Section  4.3 , and (3) any actions taken by the Board while a Partner which has rights to appoint one or more Board Members is a Defaulting Partner shall be taken by the Board as if each Board Member appointed by such Partner were not a Board Member.

(iii) Notwithstanding any provision herein to the contrary, if the General Partner, CTT Partner or any of their respective Affiliates acquires any Preferred Interests from any of the Preferred Partners, then such Party shall not be entitled to vote with respect to such Preferred Interests hereunder or to designate any Board Members with respect to such Preferred Interests.

(g) Remedies Reasonable . Each Partner acknowledges and agrees that the remedies described in this Section  2.2 bear a reasonable relationship to the damages that the Partners estimate may be suffered by the Partnership and the non-Defaulting Partners by reason of the failure of a Defaulting Partner to make a required Capital Contribution in accordance with Section  2.1 and that the election of any or all of the above-described remedies is not unreasonable under the circumstances existing as of the date hereof. The election to pursue any remedy

 

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provided in this Section  2.2 shall not be a waiver or limitation of the right to pursue an additional or different remedy available hereunder or of law or equity with respect to any subsequent default. Each Partner specifically agrees that it shall not have any legal cause of action against any non-Defaulting Partner or any Board Member appointed by a non-Defaulting Partner on account of its good faith selection of or failure to select any one or more remedies.

Section 2.3. Return of or on Capital Contributions . Except as expressly provided in this Agreement, (a) no Partner shall receive any return or distribution of its Capital Contributions, (b) no Partner shall receive any interest or other return on or with respect to its Capital Contributions and (c) no Partner shall be entitled to withdraw any part of its Capital Contributions.

Section 2.4. Return of Distributions .

(a) Except as required by the Act or other applicable Law, or in the case of manifest error in calculation, no Partner shall be required to repay to the Partnership, any Partner or any creditor of the Partnership all or any part of the distributions (including liquidating distributions) made to such Partner pursuant to this Agreement.

(b) If, notwithstanding anything to the contrary contained herein, it is determined under the Act or other applicable Law that any Partner has received a distribution which is required to be returned to or for the account of the Partnership or any creditor of the Partnership, then the obligation of such Partner to return all or any part of a distribution made to such Partner shall be the obligation of such Partner and not of any other Partner; provided , that to the extent any Partner is required by the Act or other applicable Law to return to the Partnership any distributions made to it and does so, such Partner shall, to the maximum extent permitted by Law, have a right of contribution from each other Partner similarly liable to return distributions made to it under the Act or other applicable Law to the extent that such Partner has returned a greater percentage of the total distributions made to it and so required to be returned by it than the percentage of the total distributions made to such other Partner and so required to be returned by it.

(c) Any amount returned by a Partner pursuant to this Section  2.4 shall not be treated as a Capital Contribution for purposes of this Agreement, but shall be treated as if such returned amount was not previously distributed to such Partner; provided , that such returned amount shall not be treated as accruing a return hereunder while such amounts were held by the Partner.

Section 2.5. Fees and Expenses .

(a) The Partnership shall bear all reasonable fees, costs and expenses incurred by the Partnership, the General Partner (in its capacity as such) or other Persons authorized by the General Partner to act on the Partnership’s behalf relating to the activities and operations of the Partnership that are permitted to be incurred in accordance with this Agreement (“ Expenses ”), whether such costs and expenses were incurred prior to or following the Effective Date, including:

(i) all costs and expenses incurred in connection with the formation of the Partnership;

 

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(ii) taxes of the Partnership, fees, costs and expenses of auditors, appraisers, counsel and other advisors of the Partnership, insurance costs of the Partnership and litigation costs and indemnity expenses of the Partnership, to the extent not allocated to one or more Partners pursuant to Section  9.5(a) ;

(iii) administrative expenses related to the operation of the Partnership, including the fees and expenses of accountants, lawyers and other professionals incurred in connection with the Partnership’s annual audit, financial reporting, legal opinions and tax return preparation, as well as expenses associated with the distribution of reports and Capital Call Notices to the Partners and expenses associated with valuations of the Property and other Business Assets as required by this Agreement, including the fees and expenses of any independent appraiser;

(iv) interest expenses, brokerage commissions and other investment costs incurred by or on behalf of the Partnership;

(v) costs of travel and travel-related expenses with respect to the business of the Partnership; provided , that the cost of airfare shall not exceed commercial fares and, for the avoidance of doubt, shall not include costs associated with first-class, private or chartered air travel;

(vi) subject to Section  2.5(d) , all taxes and license fees levied against the Partnership or its assets or operations;

(vii) insurance costs incurred in connection with the operation of the business of the Partnership and its Subsidiaries; and

(viii) amounts to be contributed or advanced to any Subsidiary for the purpose of such entity paying any cost of the type described in the foregoing clauses (i) through (vii).

(b) To the extent any Expenses are paid by the General Partner or other Persons (including the Asset Manager) authorized to act on the Partnership’s behalf by the General Partner, such Expenses shall be reimbursed by the Partnership (or one of its Subsidiaries, as appropriate).

(c) In addition to the foregoing, the Partnership (or its Subsidiaries, as applicable) shall bear as Expenses, and shall reimburse the Partners for such Expenses, all reasonable third party legal and due diligence costs and expenses incurred by the Partners in connection with their investment in the Partnership in each case prior to the Closing (including, for the avoidance of doubt, amounts payable by CTT or its Affiliates to certain potential investors in the Partnership).

(d) Notwithstanding Section  2.5(a) and Section  2.5(b) , the General Partner and its Affiliates shall bear the costs and expenses incurred by such Persons in providing for their normal operating overhead, salaries of their employees, rent, utilities, expenses of office furniture, computers and other office equipment and other expenses incurred in maintaining their place of business (collectively, “ Administrative Expenses ”), and neither the General Partner nor any of its Affiliates shall be entitled to reimbursement from the Partnership or any of its Subsidiaries for any Administrative Expenses.

 

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Section 2.6. Partnership Interests Partnership Interests shall be issued by the Partnership to the Partners in the classes and with such rights as are set forth in this Section  2.6 . Shortfall Return Interests . Upon the execution and delivery of this Agreement, the Partnership shall be authorized to, but shall issue no, “ Shortfall Return Interests ”. The Partnership shall issue Shortfall Return Interests to any Preferred Partner that makes a Shortfall Contribution in proportion to the amount of Shortfall Contributions made by such Preferred Partner (relative to other Preferred Partners). Upon the issuance by the Partnership of any Shortfall Return Interests to the Preferred Partners, the Partnership shall cause the Subsidiary REIT to issue to the Partnership a number of Shortfall Return Units (as such term is defined in the Subsidiary REIT Agreement) equal to the aggregate cash consideration paid by such Preferred Partners in consideration of such Shortfall Return Interests. In addition to the rights provided under this Agreement with respect to any Partnership Interests, Shortfall Return Interests shall entitle the holder thereof to the distributions provided in Section  3.2 hereof.

(b) Preferred Return Interests . Upon the execution and delivery of this Agreement, the Partnership shall issue to the Preferred Partners such number of “ Preferred Return Interests ” as are provided on Exhibit B . In addition to the rights provided under this Agreement with respect to any Partnership Interests, Preferred Return Interests shall entitle the holder thereof to the distributions provided in Section  3.3 hereof.

(c) Common Return Interests . Upon the execution and delivery of this Agreement, the Partnership shall issue to the Common Partners such number of “ Common Return Interests ” as are provided on Exhibit B . In addition to the rights provided under this Agreement with respect to any Partnership Interests, Common Return Interests shall entitle the holder thereof to the distributions provided in Section  3.4 hereof.

(d) Residual Interests . Upon the execution and delivery of this Agreement, the Partnership shall issue to the Partners such number of “ Residual Interests ”as are provided on Exhibit B . Such Residual Interests shall either be classified as “ Residual Interests (Preferred) ” or “ Residual Interests (Common) ”. Residual Interests shall entitle the holder thereof to the distributions provided in Section  3.5 hereof.

Section 2.7. No Additional Partners or Issuances . Except as provided in Article 5 , no additional Partners shall be admitted to the Partnership and no additional Partnership Interests shall be created or issued.

Section 2.8. Sole Benefit . Except as stated in this Agreement or as otherwise agreed by all of the Partners, no Partner shall be required or permitted to make any additional Capital Contribution or loan to the Partnership or the Partners with respect to the Partnership. It is expressly acknowledged and agreed that the provisions of this Agreement relating to the rights and obligations of the Partners to make any Capital Contributions or to make any loans to any Partner are for the sole benefit of the Partnership and the Partners and may not be exercised on behalf of the Partners or the Partnership or invoked or enforced for any other purpose by any other Person, including by any creditor of the Partnership or trustee in a bankruptcy proceeding.

 

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Section 2.9. Waiver of Certain Rights . The Partners have (a) no right under Section 17-602 of the Act (in the case of the General Partner) or Section 17-603 of the Act (in the case of the Partners other than the General Partner) or otherwise to withdraw or resign and receive the fair value of their Partnership Interests and (b) no right to demand or receive any distribution from the Partnership in any form other than cash and in accordance with the provisions of this Agreement concerning distributions.

ARTICLE 3

DISTRIBUTIONS

Section 3.1. Timing; Working Capital Reserves; Notice .

(a) No later than forty-five (45) days following the end of each Fiscal Quarter, the General Partner shall cause the Partnership to make distributions with respect to all Shortfall Return Interests, Preferred Return Interests, Common Return Interests and Residual Interests with respect to such Fiscal Quarter as provided in this Article 3 . With respect to any Capital Event, the General Partner shall use commercially reasonable efforts to make distributions with respect to all Shortfall Return Interests, Preferred Return Interests, Common Return Interests and Residual Interests representing Capital Event Proceeds with respect to such Capital Event within forty-five (45) days after receipt of such Capital Event Proceeds as provided in this Article 3 .

(b) In connection with any distribution being made pursuant to this Article 3 , the General Partner shall deliver written notice to the Preferred Partners reasonably in advance thereof providing a calculation of the amounts being distributed pursuant to each section and subsection of this Article 3 .

(c) The distributions pursuant to this Article 3 with respect to any Fiscal Quarter or any Capital Event shall be made in the following order of priority: (i) Shortfall Return Interests, (ii) Preferred Return Interests, (iii) Common Return Interests and (iv) Residual Interests.

Section 3.2. Distributions with Respect to Shortfall Return Interests . Distributions of cash shall be made to the Preferred Partners pro rata based on relative Shortfall Return Interests and on the basis of and solely to the extent of cash distributions actually paid to the Partnership with respect to the Shortfall Return Units (if any).

Section 3.3. Distributions with Respect to Preferred Return Interests . Distributions of cash shall be made to the Preferred Partners pro rata based on relative Preferred Return Interests and on the basis of and solely to the extent of cash distributions actually paid to the Partnership with respect to the Preferred Return Units (as such term is defined in the Subsidiary REIT Agreement).

Section 3.4. Distributions with Respect to Common Return Interests . Distributions of cash shall be made to the Common Partners pro rata based on relative Common Return Interests and on the basis of and solely to the extent of cash distributions actually paid to the Partnership with respect to the Common Return Units (as such term is defined in the Subsidiary REIT Agreement).

 

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Section 3.5. Distributions of Remaining Distributable Cash Flow .

(a) The Partnership shall distribute such distributions actually paid to the Partnership with respect to Residual Units (“ Remaining Distributable Cash Flow ”), as provided in this Section  3.5 ; provided , however , that to the extent distributions are actually paid to the Partnership pursuant to Section 3.2(a) of the Subsidiary REIT Agreement such amounts shall be retained by the Partnership for purposes of paying expenses and not distributed to the Partners.

(b) Remaining Distributable Cash Flow shall be allocated into two categories: (i) “ Early Satisfaction Amounts ” and (ii) “ Subsequent Satisfaction Amounts .” This allocation will be made pro rata based on the aggregate amount debited from the Initial Preferred Distribution Balance at the Subsidiary REIT (x) in the case of the Early Satisfaction Amounts, amounts debited or deemed debited from the Initial Preferred Distribution Balance at the Subsidiary REIT on a Distribution Date occurring on or prior to the second (2nd) anniversary of the Effective Date, if any, and (y) in the case of the Subsequent Satisfaction Amounts, amounts debited or deemed debited from the Initial Preferred Distribution Balance at the Subsidiary REIT on a Distribution Date occurring after the second (2nd) anniversary of the Effective Date, if any. Following such allocation, the Early Satisfaction Amounts and the Subsequent Satisfaction Amounts shall be distributed as follows:

(i) Early Satisfaction Amounts shall be distributed (1) twenty percent (20%) with respect to the Residual Interests (Preferred), pro rata among the Preferred Partners based on the Preferred Partners’ relative Percentage Interests, and (2) eighty percent (80%) with respect to the Residual Interests (Common), pro rata among the Common Partners based on the Common Partners’ relative Percentage Interests.

(ii) Subsequent Satisfaction Amounts shall be distributed:

(1) First, (A) seventy percent (70%) with respect to the Residual Interests (Preferred), pro rata among the Preferred Partners based on the Preferred Partners’ relative Percentage Interests, and (B) thirty percent (30%) with respect to the Residual Interests (Common), pro rata among the Common Partners based on the Common Partners’ relative Percentage Interests, until the balance of the Additional Preferred Return Account at the Subsidiary REIT is reduced to zero ($0); and

(2) Thereafter, (A) fifty percent (50%) with respect to the Residual Interests (Preferred), pro rata among the Preferred Partners based on the Preferred Partners’ relative Percentage Interests, and (B) fifty percent (50%) with respect to the Residual Interests (Common), pro rata based on the Common Partners’ relative Percentage Interests.

Exhibit J sets forth illustrative calculations of distributions with respect to Shortfall Return Interests, Preferred Return Interests, Common Return Interests and Residual Interests pursuant to the provisions of this Article 3 .

Section 3.6. Disposition of Cash Proceeds from Subsidiary REIT . Cash proceeds from the disposition of any of the Partnership’s interests in the Subsidiary REIT shall be distributed as if such amounts had been distributed by the Subsidiary REIT in accordance with the Subsidiary REIT Agreement. Cash available for distribution from any other source shall be distributed in a manner determined by the Board as a Major Decision.

 

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Section 3.7. Form of Distributions . No Partner has any right to demand and receive any distribution from the Partnership in any form other than money, nor shall any Partner be required to accept any distribution from the Partnership in any form other than money. No Partner shall be obligated to accept any in-kind distributions without that Partner’s written consent. Any Partner(s) to whom the General Partner makes an in-kind distribution shall be deemed to have been distributed an amount equal to the amount agreed upon by the receiving Partner and the General Partner (and approved by the Board) as the fair value of the property distributed (after any indebtedness assumed or to which the distributed property is subject). Any in-kind distribution shall require that the unanimous prior written consent of all Board Members. Notwithstanding anything to the contrary contained herein, the Partnership shall not make any distribution if such distribution would (i) violate the Act or other applicable Law or (ii) violate the terms of any credit agreement, pledge, hypothecation or other collateral or security agreement to which the Partnership (or any Subsidiary of the Partnership) is a party or bound by, including the Senior Credit Documents (each, an “ Indebtedness Document ”), so long, in the case of each Indebtedness Document other than the Senior Credit Documents, as such Indebtedness Document has been entered into in accordance with the terms of this Agreement.

ARTICLE 4

MANAGEMENT OF PARTNERSHIP

Section 4.1. Management of the Partnership .

(a) Authority of the General Partner.

(i) Subject to Section  4.2 , the management, control, operation and policy of the Partnership are vested exclusively in the General Partner, which is authorized and empowered on behalf and in the name of the Partnership to carry out any and all of the objects and purposes of the Partnership and to perform all acts and enter into and perform all contracts and other undertakings, consistent with the provisions of this Agreement and in conformity with the Annual Budget and other terms and conditions of this Agreement, that the General Partner may in its discretion deem necessary, advisable or incidental thereto.

(ii) The General Partner shall at all times perform its duties and responsibilities in compliance with all applicable Laws and this Agreement. To the maximum extent permitted by applicable law, the General Partner may delegate to any Affiliate or third party all or any of the powers, rights, privileges, duties and discretion vested in it under and subject to this Agreement and the Act, and such delegation may be made, in all cases subject to this Agreement and the Act, upon such terms and conditions as the General Partner may determine in its discretion.

(iii) The Subsidiary REIT has entered into the Asset Management Agreement, pursuant to which the duties and obligations set forth therein and in Section  4.12(a) shall be performed by the Asset Manager.

 

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(b) Restrictions on Management . Except as otherwise specifically provided herein, no Partner (other than the General Partner in its capacity as the general partner of the Partnership), employee or other agent of the Partnership will participate in the management of the Partnership or have any control over the Partnership business or have any right or authority to act for or to bind the Partnership or to incur any expenditure on behalf of the Partnership. Except for the authority expressly granted to any Partner in this Agreement, and subject to the Board’s rights under this Agreement, no Partner, employee or other agent of the Partnership shall have any authority to bind or act for the Partnership or any other Partner in carrying on their respective businesses or activities.

Section 4.2. Partnership Board .

(a) Notwithstanding anything to the contrary set forth in Section  4.1 , the General Partner may not act on behalf or in the name of the Partnership without the consent of the board of the partnership (the “ Board ”) as provided herein.

(b) The sole duty of each Board Member to the Partnership and to the Partners shall be to comply in good faith with the terms of this Agreement in a manner that does not constitute fraud, misappropriation, gross negligence or willful misconduct. It is the express intention of the Partners that the provisions of this Agreement, to the extent that they restrict or eliminate the duties of the Board Members to the Partnership or to any Partners otherwise existing at law or in equity, replace such other duties and liabilities; provided , that the foregoing shall not restrict the implied covenants of good faith and fair dealing.

Section 4.3. Composition of the Board .

(a) The Board shall initially be composed of seven (7) individuals, and shall include three (3) individuals to be appointed by the CTT Partner, one (1) individual to be appointed by BCI Partners, one (1) individual to be appointed by Medley Partner, one (1) individual to be appointed by TIG Partner, and one (1) individual to appointed by Highland Partners. Each individual so appointed is referred to herein as a “ Board Member ”. The initial Board Members shall be Jerry Barag, Brian Davis and Todd Reitz (each appointed by CTT Partner), Sameer Jinnah (appointed by BCI Partners), James Frank (appointed by Medley Partner), Gerrity Lansing (appointed by TIG Partner), and James Dondero (appointed by Highland Partners). Other than instances in which the Board is operating under the Alternative Voting System, each Board Member appointed by (i) CTT Partner shall have one and two-thirds votes, (ii) BCI Partners shall have one (1) vote, (iii) Medley Partner shall have one (1) vote, (iv) TIG Partner shall have one (1) vote, and (v) Highland Partners shall have one (1) vote, in each case, on each matter before the Board. The rights of the Partners to appoint Board Members pursuant to this Section  4.3(a) are subject to Section  2.2(f) . Each Board Member shall hold office until his or her successor is appointed, or until his or her earlier resignation or removal, in each case in accordance with Section  4.4 . Each Board Member shall be an individual. Upon written notice to the other Board Members, the Board Member appointed by any BCI Partner may send an alternative representative on its behalf to meetings of the Board, which representative shall have full ability to vote on behalf of such Board Member appointed by such BCI Partner at such meetings.

 

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(b) Notwithstanding anything in this Agreement to the contrary (other than Section  4.3(c) ), the Alternative Voting System shall permanently become effective upon delivery by a majority of the Board Members appointed by the Preferred Partners of a written notice delivered within ninety days (90) days of the earliest to occur of any of the following events:

(i) the fifth (5th) anniversary of the Effective Date, unless pursuant to Section  10.4(b) the winding up of the Partnership is postponed;

(ii) a Liquidity Event has occurred;

(iii) on or after the end of the fourth full Fiscal Quarter following the Effective Date, the occurrence of any three consecutive Fiscal Quarters in which the sum of the amount of the Quarterly Net Shortfall for (x) each of the three full Fiscal Quarters immediately preceding such Fiscal Quarter and (y) such Fiscal Quarter is, in the aggregate, equal to an amount that is less than zero ($0), which occurrence has not been cured pursuant to Section  2.1(b)(i) , Section  2.1(b)(ii) , Section  2.1(b)(iii) or Section  4.3(c) ; and

(iv) the removal of the General Partner as the general partner of the Partnership pursuant to Section  4.13 .

An example calculation of the Quarterly Net Shortfall (and related definitions) is attached as Exhibit C-3 .

(c) For purposes of this Section  4.3 , if, with respect to any Fiscal Quarter, the Cumulative Net Shortfall is greater than zero ($0) and the Quarterly Net Shortfall is less than zero ($0), the Common Partners may by, written notice to the Partnership on or prior to forty-five (45) days following the end of such Fiscal Quarter, cure such Quarterly Net Shortfall by taking any or all of the actions listed in this Section  4.3(c) :

(i) at the option of the Common Partners, the Common Partners may elect to deduct from the Opening Bank Balance an amount equal to the lesser of (x) the absolute value of such Quarterly Net Shortfall or (y) the Opening Bank Balance;

(ii) at the option of the Common Partners, the Common Partners may elect to defer any Asset Management Fee due and payable with respect to such Fiscal Quarter in an amount equal to the lesser of (x) the absolute value of such Quarterly Net Shortfall and (y) the Asset Management Fee due and owing for such Fiscal Quarter; and/or

(iii) at the option of the Common Partners, the Common Partners may make additional Capital Contributions to the Partnership to fund any remaining amount of the Quarterly Net Shortfall.

(d) The Partnership, as holder of the Subsidiary REIT Units, shall cause the Board Members to be appointed or elected from time to time as necessary as members of the board of managers of the Subsidiary REIT (the “ Subsidiary REIT Board ”), including any changes in the composition of the Board Members in respect of any appointment, resignation or removal made in accordance with the terms hereof. Notwithstanding anything herein to the contrary (including Section  4.10 ), the Subsidiary REIT Board shall have the sole and exclusive authority to manage the operations of the Subsidiary REIT and its Subsidiaries and it shall not be in breach or contravention of this Agreement if the Subsidiary REIT or any of its Subsidiaries takes any action (or fail to take any action) approved by the Subsidiary REIT Board in accordance with the Subsidiary REIT Agreement.

 

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(e) The Partnership (and/or its Subsidiaries, as applicable) shall maintain, at the expense of the Partnership, directors and officers liability insurance with limits and deductibles, and other terms applicable thereto, covering the Partnership, the Board and the Subsidiary REIT Board, as approved by the Board as a Major Decision.

(f) Each Partner that has the right hereunder to appoint a Board Member and so long as that right is in effect shall be entitled to designate one (1) individual (each a “ Board Observer ”) to attend and participate in, strictly as non-voting observers, any meeting of the Board, either in person or by telephone conference. The Partnership shall provide any Board Observer with written notice of each meeting of the Board at the same time and in the same manner as notice is provided to the Board Members. Any Board Observer shall be entitled to receive all written materials and other written information (including minutes of all Board meetings) provided to the Board in connection with such meeting at the same time such materials and information are provided to the Board and prompt notice of any action taken by written consent of the Board; provided , that, notwithstanding anything herein to the contrary, the Partnership may withhold any documents, materials or other information from, or exclude from any meetings of the Board (or portions thereof), any Board Observer if the Board determines on the advice of counsel that access to such information or attendance at such meeting would, or may be reasonably likely to, adversely affect the attorney-client privilege between the Partnership and its counsel to preserve the confidentiality of the Partnership’s trade secrets, know-how or other confidential information of or relating to the Partnership that would give such Board Observer an unfair competitive advantage. Each Board Observer shall be an individual, but need not be a Partner or officer or an employee, consultant, independent contractor or agent of the applicable Partner.

(g) In the event that any Preferred Partner (a “ Transferring Preferred Partner ”) Transfers, in one or in a series of related transactions, a portion of its Initial Holdings on a basis that is not pro rata with all other Preferred Partners, resulting in the remaining Initial Holdings of such Transferring Preferred Partner being equal to or less than 75% of the remaining Initial Holdings of the Preferred Partner with the largest remaining Initial Holdings, then the Transferring Preferred Partner shall lose its right to appoint a Board Member; provided , however , that if immediately after such Transfer another Preferred Partner owns a smaller percentage of the outstanding Preferred Interests than such Transferring Preferred Partner and such other Preferred Partner has the right to appoint a Board Member, then such Transferring Preferred Partner shall retain its right to appoint a Board Member pursuant to Section  4.3 . Notwithstanding anything herein to the contrary, unless otherwise agreed by all Board Members, the total number of the Board Members designated by the Preferred Partners shall not be greater than four (4). For the avoidance of doubt, at any time that the numbers of Board Members designated by the Preferred Partners is reduced to two (2), then any applicable provisions of this Agreement requiring the consent of a majority of the Board Members designated by the Preferred Partners shall continue in full force and effect and any applicable decision shall require the consent of both such Board Members designated by the Preferred Partners.

 

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(h) If the individual appointed by [***] is not [***] (or any appointed successor as approved pursuant to this Section  4.3 ), such individual shall be subject to the approval of a majority of the other Board Members appointed by the Preferred Partners. Such other Board Members shall work in good faith with [***] to agree on an individual proposed by [***] acceptable to such other Board Members to replace [***] (or any approved successor as approved pursuant to this Section  4.3 ); provided , that if the parties cannot reach agreement on such individual within ninety (90) days, [***] shall lose its right under Section  4.3 to appoint a Board Member.

Section 4.4. Resignation, Removal and Replacement of Board Members; Transfers of Appointment Rights

(a) Any Board Member may resign from office at any time by giving written notice to the Partnership. The resignation of any Board Member shall take effect upon the Partnership’s receipt of such notice or at such later time as shall be specified in the notice. Unless otherwise specified in the notice, the acceptance of the resignation shall not be necessary to make the resignation effective. The resignation of a Board Member who is also a Partner shall not affect such Person’s rights as a Partner.

(b) A Board Member shall be removed from office automatically upon his or her death. A Board Member may be removed from office with or without cause by the Partner(s) who appointed the Board Member. Additionally, at such time as any Partner no longer holds a Partnership Interest in the Partnership, there shall be a deemed delivery of notice of removal of the Board Members appointed by the former Partner.

(c) Any vacancy occurring on the Board may be filled only by an appointment by the Partner who appointed the Board Member formerly filling such vacancy.

(d) In connection with any Transfer to a Transferee permitted pursuant to this Agreement, each transferring Preferred Partner that is entitled to appoint a Board Member hereunder shall be permitted to transfer its rights to appoint Board Members pursuant to this Article 4 so long as the Transferee, after giving effect to any proportionate Transfers of the Percentage Interests made by all the Preferred Partners, would own at least 75% of the Initial Holdings of the Preferred Partner with the largest Initial Holdings.

Section 4.5. Meetings of the Board

(a) The Board shall meet on the schedule as determined by the Board from time to time. Unless otherwise determined by the Board, the Board shall meet at least quarterly on a schedule to be determined by the Board and the agenda for each such meeting shall include substantive review and discussion of the financial and operating condition of the Partnership and other relevant strategic matters pertaining to the Partnership. Subject to Section  2.2(f) , any Board Member shall have the power to call special meetings of the Board. A special meeting of the Board shall be held on the date and at the time set by the party calling the special meeting. All meetings of the Board shall be held at the principal office of the Partnership or at such other place as may be designated by the Board. If approved by the Board, individuals who are not Board Members or Board Observers may be invited to observe or participate in meetings of the Board

Portions of the exhibit, indicated by the mark “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

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in an advisory, non-voting capacity. Board Members may participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting. The Board Members appointed by the Preferred Partners may request reasonably in advance that a meeting of the Board be held with the individual presence of the Board ( i.e. , other than by conference telephone or other communications equipment by which such persons participating in the meeting can hear each other at the same time), and the General Partner and the Board Members appointed by the CTT Partner shall cause such meeting to be scheduled promptly and have the Board Members appointed by the CTT Partner in attendance in such manner.

(b) No notice is required of regular Board meetings held in accordance with such schedule as may be established by the Board from time to time. It shall be sufficient notice to a Board Member of a special meeting to send notice by overnight courier or e-mail at least ten (10) Business Days before the meeting addressed to such Board Member at his or her usual or last known business or residence address or e-mail address, as applicable, or to give notice in person or by telephone at least ten (10) Business Days before the special meeting. Notice of a special meeting need not be given to any Board Member if a written waiver of notice, executed by him or her before, after or at the special meeting, is filed with the records of the meeting, or to any Board Member who attends the special meeting without protesting prior thereto or at its commencement the lack of notice to him or her. Neither notice of a special meeting nor a waiver of a notice need specify the purposes of the special meeting. Notice of any special meeting shall be deemed to be delivered, given and received (i) on the date of receipt if delivered personally or by telephone, (ii) on the next day if delivered by overnight courier or (iii) on the date of transmission if transmitted by e-mail.

(c) Subject to Section  2.2(f) , all Board Members appointed by CTT Partner and a majority of the Board Members appointed by the Preferred Partners shall be present in person (by telephone conference or by other communications equipment if all persons participating in the meeting can hear each other at the same time as described under Section  4.5(a) ) or by proxy at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting; provided , that, if the Board is operating under the Alternative Voting System, the presence of a majority of the Board Members appointed by the Preferred Partners shall constitute a quorum. If such quorum shall not be present at any meeting of the Board, the Board Members present shall adjourn the meeting and promptly give notice of when it will be reconvened. Action or consent of the Board for purposes of this Agreement shall require the affirmative vote of Board Members holding at least a majority of the votes entitled to be cast by all Board Members, or such other vote as is otherwise set forth under this Agreement (including with respect to Major Decisions).

(d) Subject to Section  2.2(f) , each Board Member may vote either in person or by a proxy which such Board Member has duly executed in writing. No proxy shall be valid after one (1) year from the date of its execution unless a longer period is expressly provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A Board Member may revoke any proxy which is not irrevocable by attending the relevant meeting and voting in person or by filing an instrument in writing revoking the proxy, or another duly executed proxy bearing a later date, with the Partnership. Participation in a meeting by proxy in accordance with this Section  4.5(d) shall constitute presence in person at the meeting.

 

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(e) The Board may adopt procedures and methods designed to permit the business of the Partnership to proceed in an orderly and prompt manner, notwithstanding the necessity of Board approvals required hereunder.

(f) The Chairman of the Board shall be appointed by the Board. The Chairman shall preside at all meetings of Partners and the Board at which he or she is present and perform such other duties as from time to time may be assigned to him or her by the Board.

(g) Except to the extent otherwise set forth in this Agreement (including Section  4.10 ), action or consent requiring approval or action by the Board Members appointed by the Preferred Partners for purposes of this Agreement shall require the affirmative vote of Board Members appointed by the Preferred Partners holding at least a majority of the votes entitled to be cast by all Board Members appointed by the Preferred Partners. Any action required or permitted to be taken by the Board Members appointed by the Preferred Partners may be taken without a meeting, without prior notice and without a vote, if consented to in writing by all Board Members appointed by the Preferred Partners.

Section 4.6. Action of the Board Without a Meeting . Any action required or permitted to be taken by the Board may be taken without a meeting, without prior notice and without a vote, if consented to in writing by all Board Members.

Section 4.7. Compensation of Board Members . Board Members shall not receive any compensation or other remuneration from the Partnership for their services to the Partnership as Board Members; provided , that the Partnership shall reimburse Board Members for reasonable travel and other expenses incurred in connection with meetings or other functions of the Board.

Section 4.8. Actions of the Partners . Any action required or permitted to be taken by the Partners may be taken without a meeting, without prior notice and without a vote, if consented to in writing by the Partners required to achieve consent of the Partners for such action by applicable law or under this Agreement.

Section 4.9. Operations of the Partnership and the Subsidiary REIT .

(a) The Partnership will conduct all of its revenue-producing activities and own the Property through the Subsidiary REIT other than de minimis administrative activities of the General Partner or except as unanimously approved by the Board. The General Partner shall cause Alston & Bird, LLP (or other nationally recognized tax counsel acceptable to the Preferred Partners) to deliver a written opinion, dated as of the date of this Agreement, and substantially in the form as set forth on Exhibit L , concluding (subject to customary assumptions, qualifications and representations) that the Subsidiary REIT will be organized in conformity with the requirements for qualification as a REIT under the Code and its proposed method of operations will enable it to meet the requirements for qualification and taxation as a REIT under the Code. The General Partner shall use reasonable best efforts to enforce Section  5.1(f) to ensure that the Partnership’s ownership of the Subsidiary REIT will not cause the Parent REIT to fail to qualify as a REIT for federal income tax purposes. All Capital Contributions received by the Partnership

 

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will be promptly contributed to the Subsidiary REIT to the extent not used to fund expenses of the Partnership or held in cash as reserves for such expenses. For the sake of clarity and notwithstanding anything to the contrary in this Agreement, the Subsidiary REIT will be managed by the Subsidiary REIT Board within the meaning of Section 856(a)(1) of the Code and no right under this Agreement shall be interpreted in a manner that interferes with such requirement. Notwithstanding anything herein to the contrary, the Partners acknowledge that the Partnership’s only power to manage the affairs of the Subsidiary REIT will consist of its right, as the holder of the Subsidiary REIT Units, to elect the members of the Subsidiary REIT Board in accordance with Section  4.3(b) . Each Partner agrees to provide such reasonably requested information as is reasonably determined to be necessary by the Partnership and the Subsidiary REIT (in consultation with their tax advisors) in order to maintain the Subsidiary REIT’s compliance with the REIT Requirements, to determine whether the Subsidiary REIT is a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4)(B) of the Code, and to ensure compliance with the transfer restrictions contained in Section  5.1(f) hereof.

(b) Upon request by any Partner, the General Partner will provide any information in its possession requested by such Partner relating to whether the Subsidiary REIT is a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4)(B) of the Code.

(c) The Partners acknowledge that the CTT Partner is indirectly owned by an entity (the “ Parent REIT ”) that is taxed as a REIT and that the assets and income of the Partnership will affect the Parent REIT’s qualification to be taxed as a REIT. For so long as the CTT Partner or an Affiliate thereof is a Partner, the General Partner shall operate the Partnership so as to avoid (i) generating gross income that would not be qualifying income for purposes of Sections 856(c)(2) and 856(c)(3) of the Code (other than interest income on reserves), (ii) generating gains from “prohibited transactions” within the meaning of Section 857(b)(6) of the Code or (iii) acquiring assets that would not be qualifying assets for purposes of Section 856(c)(4)(A) of the Code.

(d) The Partnership and the Partners agree that it would be desirable that the Subsidiary REIT qualify as of the date hereof as a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4)(B) of the Code (a “ D-REIT ”). Further to such intention, the Partnership shall use commercially reasonable efforts to establish and document the Subsidiary REIT’s status as a D-REIT at all relevant times. In the event that the Partnership determines that the Subsidiary REIT does not qualify as a D-REIT or, upon a contemplated change of direct or indirect ownership of Partnership Interests (pursuant to a permitted assignment under Section  5.1(b) or otherwise), would cease to so qualify, the Partnership shall provide prompt notice of such actual or anticipated change to the Partners. The Partners and the Partnership agree that upon receipt of such notice from the Partnership, they will use commercially reasonable efforts and cooperate in good faith to permit the Partners to restructure the ownership of their Partnership Interests so as to mitigate any adverse tax impact of such change on the Partners or their direct or indirect owners. For the avoidance of doubt, such commercially reasonable efforts shall be deemed to include consent and cooperation in allowing a Preferred Partner to Transfer its Partnership Interest to an Affiliate or a continuing Preferred Partner prior to the time the Subsidiary REIT would otherwise cease to qualify as a D-REIT; provided , that such Transfer would not cause the Subsidiary REIT to cease to qualify as a REIT (as determined by the General Partner in its reasonable discretion).

 

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Section 4.10. Major Decisions . The following are major decisions with respect to the Partnership (“ Major Decisions ”) that require the approval of a majority of the total votes of all Board Members entitled to vote on such matters; provided , that such majority shall include a majority of the Board Members appointed by the Preferred Partners voting on such matter:

(a) Causing the Partnership to acquire any additional Business Asset or Real Estate Asset (other than the Property), except as otherwise provided for in any approved Annual Budget and except for assets being acquired for less than $100,000 individually or $250,000 in the aggregate with any related transactions.

(b) Executing and delivering any guaranty, indemnity or similar agreement on behalf of the Partnership or any of its Subsidiaries other than (x) in connection with the Senior Credit Documents and (y) with respect to indemnities only, any indemnity which would not reasonably be expected to result in material liability to the Partnership that is entered into in the ordinary course of business of the Partnership.

(c) Entering into, amending or modifying any swap, hedge, collar, other interest rate protection agreement or other derivative instrument or agreement.

(d) Creating any liens or encumbrances on all or a portion of the Property or any other Business Asset, other than (i) those related to any permitted Indebtedness and (ii) any Permitted Encumbrances, and approving the form of any documentation in respect thereof    (including any amendment or modification of any such documentation), other than in connection with the Senior Credit Documents.

(e) Establishing reserves, determining reserve levels or making any distributions from any such reserves pursuant to Section  10.4(a)(ii) .

(f) Entering into any agreement by the Partnership with the General Partner, the Asset Manager or any Affiliate thereof (each a “ Related Party Agreement ”) other than pursuant to Section  4.15 or amending or modifying any agreement set forth in Section  4.15 .

(g) Issuing ownership interests in the Partnership or its Subsidiaries or any admission of any partner of the Partnership after the Effective Date, other than the issuance of Partnership Interests to the Partners or pursuant to a Transfer of Partnership Interests, in each case, that is permitted pursuant to this Agreement (including Article 5 ).

(h) Formation of any new Subsidiary of the Partnership (including entering into any joint venture with one or more third parties) other than formation of wholly-owned Subsidiaries of the Partnership to the extent necessary to consummate the Acquisition.

(i) Paying, compromising, litigating, arbitrating or otherwise amending any claim or demand of or against the Partnership or any of its Subsidiaries where the amount of the individual claim or demand exceeds $100,000 and the claim or demand is not an ordinary course claim or demand related to payables or receivables, other than where the Partnership’s insurance carrier, in accordance with terms of the Partnership’s insurance policy, is prosecuting or defending the claim or demand and has not disputed any portion of the claim or demand.

 

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(j) Approving any settlement of a claim subject to indemnification pursuant to Section  7.2(e) .

(k) Taking any action or a series of related actions or refraining from taking or approving any action or a series of related actions relating to remediation of hazardous substances that is estimated by the Partnership to cost the Partnership in excess of $100,000 as a result of a single underlying event, other than to obtain studies and reports and conduct (or arrange for) evaluations and analyses thereof if there is a reasonable basis to believe that such assets have been affected by hazardous substances.

(l) (i) Dissolving, liquidating, or reorganizing the Partnership or any of its Subsidiaries (other than the Subsidiary REIT or its Subsidiaries), (ii) merging, consolidating or otherwise selling all or substantially all of the interests in, or all of the assets of, the Partnership or any of its Subsidiaries (other than the Subsidiary REIT or its Subsidiaries), or (iii) filing any voluntary bankruptcy petition for the Partnership or any of its Subsidiaries (other than the Subsidiary REIT or its Subsidiaries), or seeking the protection of any other federal or state bankruptcy or insolvency law or debtor relief statute.

(m) Appointing Liquidators pursuant to Section  10.4 .

(n) Amendment or modification of this Agreement (other than in accordance with Section  12.2 ), the Subsidiary REIT Agreement or any other governing documents of the Partnership or its Subsidiaries except to the extent necessary to consummate the Acquisition.

(o) The Partnership (i) directly employing any Person or (ii) entering into any collective bargaining agreement or similar agreement.

(p) Making any change in the accounting principles of the Partnership or its Subsidiaries (other than the Subsidiary REIT and its Subsidiaries) or making, revoking or failing to make any material Tax election or determination (including, without limitation, any determination to allocate any income, gain, loss or deductions in respect of the Preferred Return Interests, or to treat the return thereon as a guaranteed payment, other than as set forth in Section 1.3(f) of Exhibit D).

(q) Selecting or determining any insurance plans, carriers or coverages to be purchased and maintained by or on behalf of the Partnership, or in respect of the Property or any other Business Asset, including with respect to directors and officers liability insurance under Section  4.3(e) .

(r) Hiring counsel, professional advisors, accountants or sales brokers on behalf of the Partnership when the expected expenditure would exceed $50,000 in a calendar year.

(s) Hiring or changing the independent auditors of the financial statements of the Partnerships.

 

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(t) Waiving any obligation of any Partner under Section  6.4 .

(u) Making adjustments to Gross Asset Values in the circumstances set forth in the definition of such term.

(v) Changing the state of the principal place of business of the Partnership.

(w) Permitting any Transfer by the Partnership of any equity securities issued by the Subsidiary REIT other than in connection with the Senior Credit Documents.

(x) Taking any of the foregoing actions, matters or decisions described in this Section  4.10 taken by a Subsidiary of the Partnership which would constitute a Major Decision if taken by the Partnership.

The enumeration of the foregoing rights shall not diminish or affect the existence or exercise of other rights expressly granted to the General Partner under this Agreement. Notwithstanding the immediately preceding sentence, the General Partner shall not, and shall not cause the Partnership or any Subsidiary of the Partnership, as applicable, to take any of the actions listed in this Section  4.10 , unless such action has been previously approved by the Board pursuant to this Section  4.10 ; provided , however , that the General Partner may take such actions as reasonable and necessary with respect to emergency situations to protect the health, safety and welfare of people or property; provided , that the General Partner promptly gives notice to the Board Members of such emergency actions (and any related emergency expenditures). The General Partner shall implement fully each Major Decision approved in accordance with the terms of this Agreement, and may take such action or actions as necessary or desirable as determined by the General Partner to implement any Major Decision approved pursuant to this Section  4.10 , which actions may be taken as General Partner, including exercising the voting rights of the Partnership as the holder of the Subsidiary REIT Units, so long as such action or actions are consistent with such approval, and are not otherwise restricted under this Agreement. Notwithstanding anything herein to the contrary, to the extent that any of the Major Decisions is specifically set forth or described in an Annual Budget approved in accordance with this Agreement and enumerated as a Major Decision therein, the approval of such Annual Budget shall constitute prior approval of such Major Decision for purposes of this Section  4.10 and no additional approval or consent with respect to such Major Decision shall be required.

Section 4.11. Annual Budget .

(a) The initial Annual Budget for the remainder of calendar year 2018 for the period beginning on the Effective Date and ending on December 31, 2018, including the related variances, is attached hereto as Exhibit C-1 (the “ Initial Annual Budget ”). For each Fiscal Year thereafter, the General Partner shall be responsible for preparing and submitting to the Board for approval as a Major Decision a proposed updated Annual Budget, including the related variances. “ Annual Budget ” means a budget approved in accordance with this Agreement. The Annual Budget shall be prepared by the General Partner in accordance with the Budget Development Protocols (including the preparation of the back-up materials on the timetable set forth therein) set forth in Exhibit C-2 . The Annual Budget for each Fiscal Year shall be prepared with the same detail and line items as set forth in the Initial Annual Budget and such other detail as Board

 

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Members appointed by the Preferred Partners may reasonably request. In connection with the review of a proposed Annual Budget, the Board Members appointed by the Preferred Partners may reasonably request additional information regarding the materials supporting the proposed Annual Budget or such other information as is necessary or desirable to enable review of such proposed Annual Budget, and the General Partner shall provide such requested information. The Board Members appointed by the Preferred Partners shall consent to or reject the proposed Annual Budget, or request additional information, within ten (10) Business Days following (i) receipt of such proposed Annual Budget or (ii) receipt of all additional information that is, in the determination of the Board Members appointed by the Preferred Partners, necessary or desirable to enable review of such proposed Annual Budget. The Annual Budget shall be prepared and submitted annually by the General Partner no later than December 10, 2018 for the next Fiscal Year and thereafter by December 10 of each year with respect to the following Fiscal Year. The Annual Budget for each Fiscal Year shall include the projected use of the Pre-Funded Expense Account, including as shown on Exhibit C-1 for the four Fiscal Quarters comprising such Fiscal Year. In connection with the submission of the Annual Budget, the General Partner shall also prepare and submit to the Board an annual business plan for the Partnership and its Subsidiaries including a responsible five-year forecast for the Partnership’s operations including the operating metrics set forth in Exhibit C-4 . The Board Members appointed by the Preferred Partners, or their designated representative, shall be provided reasonable access to all information, data, reports, models, and analyses relied on in developing the Annual Plan (including, for the avoidance of doubt, all financial and silvicultural assumptions, constraints, supporting stand level data, merchantable timber volumes, pre-merchantable acres by species and age class, and acres by land classification).

(b) The General Partner shall manage the business of the Partnership and its Subsidiaries in accordance with the approved Annual Budget and shall at all times act in a manner consistent with the Annual Budget; provided , however , that the General Partner may in its discretion expend funds for Non-Controllable Expenses not otherwise reflected in the Annual Budget. In implementing the Annual Budget, the General Partner may in its discretion vary material line items in the applicable Annual Budget within the applicable variances provided therein (such variances being referred to herein as “ Allowable Variances ”).

(c) In the event the General Partner is unable to obtain the approval of the Board of any Annual Budget prior to the intended period for such Annual Budget, then a “ Budget Impasse ” shall be deemed to exist, until such time as such Annual Budget is approved in accordance with this Agreement. During any Budget Impasse, the General Partner shall operate and cause to be operated the Partnership and its Subsidiaries, and the Property, in accordance with the most recently approved Annual Budget, except, in each case, that (i) the General Partner may make or cause to be made any expenditure not contemplated by such Annual Budget which is (1) an emergency expenditure to protect the health, safety and welfare of people or property (in which event the General Partner shall notify the Partners immediately), (2) an expenditure to satisfy (A) any outstanding taxes and related fees, costs and expenses, (B) any obligations for interest, principal, escrows, fees and expenses due under the Senior Credit Documents and any other indebtedness approved as required under this Agreement or (C) premiums for insurance required under this Agreement, the Asset Management Agreement, any Senior Credit Document, any loan document relating to indebtedness approved as required under this Agreement or any other contract to which the Partnership or any of its Subsidiaries is a party that are entered into in

 

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accordance with this Agreement or (3) an expenditure to satisfy an obligation of the Partnership that is due and owing under any of the Wood Supply Agreements, seedling agreements or other agreements previously approved as Major Decisions (such expenses, “ Non-Controllable Expenses ”), and (ii) the General Partner acting alone shall otherwise have no authority to make any other expenditure without the approval of the Board as a Major Decision, as applicable.

(d) If, at a time when the Alternative Voting System is not effective, either (i) the Board is in good faith unable to make any decision in respect of a Major Decision or (ii) there are two attempts (including any adjournment) to have a special meeting called for the purpose of discussing a Major Decision where quorum is not obtained, and if such failure continues for five (5) days after the date of the meeting called to discuss the approval (or in the event of the second quorum failure, the date of such second quorum failure), then the Board Members shall be deemed to be deadlocked in the matter in question (each, a “ Deadlock ”). In the event of any Deadlock involving a Major Decision, such Deadlock shall result in no resolution in respect of such decision until such time as the Board agrees regarding such decision.

Section 4.12. Transactions with Affiliates .

(a) Retention as Asset Manager . As of the date hereof, the parties hereto acknowledge and agree that CatchMark TRS Creek Management, LLC (the “ Asset Manager ”) and the Subsidiary REIT have entered into an asset management agreement with respect to the Property in the form attached hereto as Exhibit H (the “ Asset Management Agreement ”).

(b) Exercise of Rights under Related Party Agreements . The Board Members appointed by the Preferred Partners, acting without the consent or approval of any other Board Member or any Partner, shall have the sole and exclusive right and authority to direct the General Partner, acting on behalf of the Partnership and its Subsidiaries, to take any of the following actions on the part of the Partnership or its Subsidiaries, all at the expense of the Partnership or the applicable Subsidiary, with respect to the Asset Management Agreement and any other Related Party Agreement, in each case, in accordance with the terms of such Related Party Agreement: (i) implement, enforce or take any termination or other enforcement action that arises under any Related Party Agreement, in each case in accordance with such Related Party Agreement; (ii) make any approval, consent, decision or waiver under or in connection with any Related Party Agreement or take any other action by or on behalf of the Partnership or any Subsidiary under or in connection with any Related Party Agreement; (iii) give notice of default or termination in accordance with terms of such Related Party Agreement; (iv) terminate all Related Party Agreements in accordance with the terms of the applicable Related Party Agreement upon notice to the other parties thereto and, subject to Major Decisions, replace it with an agreement with another Person who is not an Affiliate of any Partner; (v) enforce the provisions of any Related Party Agreement against the other parties thereto by all appropriate methods, including the commencement of legal or other proceedings against such parties; or (vi) enter into any amendment or modification of any provision or right arising under any Related Party Agreement. Neither the Partnership nor any Subsidiary shall, nor shall the General Partner acting on behalf of the Partnership, enter into any Related Party Agreement (x) without the prior written consent of a majority of the Board Members appointed by the Preferred Partners and (y) unless such Related Party Agreement specifically acknowledges the rights of the Board Members appointed by the Preferred Partners under this Section  4.12(b) , and the General Partner shall cause any Related Party Agreement with the General Partner (or its Affiliate) to so provide.

 

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(c) Technical Forestry Advisory Services Agreement . The parties hereto acknowledge that, as of the date hereof, the Partnership and TTG Forestry Services, LLC have entered into that certain Technical Forestry Advisory Services Agreement in the form attached hereto as Exhibit I (the “ Technical Forestry Advisory Services Agreement ”). In accordance with the Technical Forestry Advisory Services Agreement, the Partnership hereby appoints TTG Forestry Services, LLC as the technical forestry advisor of the Partnership to manage certain activities related to timberland interests, subject to the terms and conditions of the Technical Forestry Advisory Services Agreement.

Section 4.13. Removal of the General Partner . The Partners shall have the right to remove the General Partner as provided in this Section  4.13 .

(a) At any time, a majority of the Board Members appointed by the Preferred Partners may, by Notice to the General Partner, remove the General Partner for Cause (which Notice shall specify the alleged event of Cause). In connection with a removal for Cause under this Section  4.13 , the Asset Management Agreement shall, pursuant to its terms, be immediately and automatically terminated concurrently with the effectiveness of such removal hereunder. Upon the exercise of such removal right, (i) the General Partner shall cease to have the powers and authorities granted to it as a general partner under this Agreement and (ii) the Board (as adjusted pursuant to Section  4.3(b) ) shall have the power and authority to propose and unilaterally approve all actions which would otherwise constitute Major Decisions without the necessity for obtaining any consent or approval of the former General Partner or any Affiliate of the General Partner (or its Board Members), including hiring a replacement to serve as the General Partner. The foregoing notwithstanding, the former General Partner shall continue to have all other obligations and rights of a Partner hereunder, including the obligation to fund any required capital calls, and nothing contained in this Section  4.13 shall relieve the former General Partner from any liabilities of, or obligations to, the Partnership or any creditor thereof, or to any Partner, in each case, incurred or arising on or prior to the effective date of the removal of the former General Partner, and the former General Partner shall remain liable for the same until the expiration of the applicable statute of limitations.

(b) In the event of a removal of the General Partner pursuant to this Section  4.13 , the distributions to be made to the Common Partners under Section  3.5 shall be reduced by twenty-five percent (25%), and any distributions to which the Common Partners remain entitled to under this Agreement shall be subject to being held by the Partnership as a reasonable reserve for damages finally adjudicated against the Partnership and/or the other Partners to the extent caused by the former General Partner.

(c) Upon removal of the General Partner pursuant to this Section  4.13 , the removed General Partner and its Affiliates shall cause all its appointees to the Subsidiary REIT Board and any other Subsidiary of the Partnership to resign.

 

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Section 4.14. Leverage .

(a) The General Partner is authorized to cause the Subsidiaries (other than the Subsidiary REIT and its Subsidiaries) of the Partnership to assume, enter into or guarantee Indebtedness in accordance with the leverage policy set forth in this Section  4.14 . Any such Indebtedness, and the documentation in respect thereof, shall be subject to review and approval by the Board as a Major Decision pursuant to Section  4.10 .

(b) Without limiting the foregoing, in connection with any financing or refinancing of Indebtedness, other than in respect to the Senior Credit Documents, the General Partner shall not cause the Subsidiaries of the Partnership to assume, enter into or guarantee Indebtedness unless the documentation in respect thereof contains an option exercisable by the Preferred Partners to purchase the obligations thereunder at par upon (i) the acceleration of any obligations under the Indebtedness, (ii) certain events of default that continue for a period of time, in each case, designated by the Preferred Partners in connection with the negotiation of the Indebtedness, or (iii) the commencement of any voluntary or involuntary bankruptcy or insolvency proceeding under the applicable Indebtedness, subject to usual and customary terms and conditions for second lien credit facilities, as determined by the Board Members appointed by the Preferred Partners. The Board Members appointed by the Preferred Partners shall have the right to review and approve any documentation in respect of the foregoing rights.

Section 4.15. Property Sale Right of First Opportunity .

(a) The Partners acknowledge that any election by or on behalf of the Partnership (which, for purposes of this Section  4.15 , shall be deemed to include the Subsidiary REIT and its Subsidiaries) to list, offer to sell or sell or otherwise dispose of all or a portion of the Property (any such sale, a “ Proposed Sale ”) or other Real Estate Asset (the “ Designated Real Property ”) shall be subject to approval as a Major Decision as set forth in Section  4.10 . In connection with any Proposed Sale, so long as the General Partner has not been removed for Cause as the general partner hereunder and does not constitute a Defaulting Partner hereunder, the Common Partners or any designated Affiliate thereof (collectively, the “ Common Partner Related Parties ”) shall have the option for ten (10) calendar days from the date on which a determination has been made to pursue a Proposed Sale of Designated Real Property (the “ Exercise Period ”) to present an initial offer to the Board Members appointed by the Preferred Partners to acquire such Designated Real Property (the “ Right of First Offer ”) at a purchase price no less than the most recently appraised value thereof and in accordance with this Section  4.15 ; provided , that, if such most recently appraised value for all or a portion of the Designated Real Property was completed on a date that is more than three (3) months from the expiration of the Exercise Period, or if the Board Members appointed by the Preferred Partners otherwise request, the Partnership shall cause new appraisals of such Designated Real Property to be completed by a Qualified Appraiser in connection with the Right of First Offer process hereunder. The Common Partner Related Party may exercise its Right of First Offer in its sole discretion by delivery of a written offer to the Board Members appointed by the Preferred Partners (the “ Offer Notice ”) within the Exercise Period. The Offer Notice shall include the proposed purchase price (which shall not be less than the most recently appraised value of the Designated Real Property), the proposed transaction structure, the assumption of any related indebtedness, if applicable, and the other material terms and conditions of the proposed acquisition as determined by the Common Partner Related Party (the “ Common Partner Offer ”). The Board Members appointed by the Preferred Partners may accept or reject the Common Partner Offer on behalf of the Partnership in its sole discretion within thirty (30) calendar days of its receipt of the Offer Notice by delivering

 

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written notice thereof to the Common Partner Related Party. If the Board Members appointed by the Preferred Partners accept the Common Partner Offer on behalf of the Partnership, the Common Partner Related Party will acquire the Designated Real Property, at the price and on the other terms and conditions set forth in the applicable Common Partner Offer.

(b) If, in connection with a Proposed Sale, no Common Partner Offer is made with respect to the Designated Real Property, the Board Members appointed by the Preferred Partners reject any Common Partner Offer or the Common Partner Related Parties are not otherwise entitled to a Right of First Offer, the Partnership shall institute a marketing process in order to offer for sale the Designated Real Property. For so long as General Partner has not been removed for Cause pursuant to Section  4.13 hereunder and does not constitute a Defaulting Partner hereunder, the Common Partner Related Parties will be entitled to participate as a potential purchaser in such marketing process; provided , that, to the extent any Common Partner Related Party elects to participate in such marketing process, the Board Members appointed by the Preferred Partners will have the authority to conduct such marketing process on behalf of the Partnership in lieu of the General Partner, and the Common Partner Related Party will not be entitled to accept or review any purchase offers or receive any other information in respect thereof, and the Board Members appointed by the Preferred Partners shall have the right to cause the Partnership to effect any resulting sale on behalf of the Partnership and its Subsidiaries (without the approval of any other Person, including the Board Members appointed by CTT Partner). The Common Partner Related Parties shall give written notice to the Board Members appointed by the Preferred Partners within ten (10) calendar days of the Partnership’s election to institute any such marketing process in respect of a Designated Real Property and, immediately upon delivery of such notice, the General Partner shall no longer have the authority to conduct such marketing process on behalf of the Partnership.

(c) The Person conducting any such marketing process in respect of a Designated Real Property on behalf of the Partnership is referred to herein as the “ Real Property Advisor .” To the extent that the Common Partner Related Parties elect to participate in any such process, the Common Partners nevertheless agrees to actively assist the Real Property Advisor in marketing the Designated Real Property to third parties. In connection therewith, the Common Partners will, among other things, (a) prepare and provide all customary financial and other information as reasonably requested by the Real Property Advisor with respect to the Common Partners and the Designated Real Property, including but not limited to financial projections, budgets and related financial information, (b) at reasonable times to be mutually agreed upon by the Common Partners and the Real Property Advisor, and upon reasonable prior notice, conduct property tours and cruises and make available to prospective purchasers relevant members of the Common Partners’ senior management and advisors, and (c) assist the Real Property Advisor in the preparation of customary marketing materials to be used in connection with the sale of the Designated Real Property.

(d) If the Partnership is in the process of dissolution pursuant to Section  10.4 , the Common Partner Related Parties’ Right of First Offer under Section  4.15(a) and right to participate as a potential purchaser in the marketing process pursuant to Section  4.15(b) shall not apply. For the avoidance of doubt, the Common Partner Related Parties shall continue to assist in marketing Designated Real Property to third parties pursuant to Section  4.15(c) . For the avoidance of doubt, this Section  4.15(d) shall not limit the ability of the Common Partner Related Parties to participate as a purchaser of the assets of the Partnership and its Subsidiaries upon (and subject to) the dissolution of the Partnership.

 

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Section 4.16. Forced Sale . Notwithstanding anything herein to the contrary, the Board Members appointed by the Preferred Partners (without the approval of any other Person, including the Board Members appointed by CTT Partner) shall have the right, at any time following the date that is six (6) months prior to the fifth (5th) anniversary of the Effective Date, to direct the General Partner to cause the Partnership and its Subsidiaries (including the Subsidiary REIT and its Subsidiaries for all purposes under this Section  4.16 ) to list or offer to sell the Property and all other Real Estate Assets; provided , that if the Alternative Voting System is in effect at such time, then the Board Members appointed by the Preferred Partners (without the approval of any other Person, including the Board Members appointed by CTT Partner) may appoint a Person other than the General Partner to cause the Partnership and its Subsidiaries to list or offer to sell the Property and all other Real Estate Assets and to manage all aspects of the offering and sale process. Upon any such exercise of the right hereunder, any marketing process and resulting sale shall be subject to the terms of Section  4.15(a) , Section  4.15(b) and Section  4.15(c) ; provided , that, notwithstanding anything herein to the contrary, the Board Members appointed by the Preferred Partners shall have the right to conduct such marketing process and effect any resulting sale on behalf of the Partnership and its Subsidiaries (without the approval of any other Person, including the Board Members appointed by CTT Partner).

Section 4.17. No U.S. Trade of Business; Commercial Activity . Further to Section  1.5 and Section  4.9 , the Partnership and the General Partner shall use commercially reasonable efforts to conduct the Partnership’s affairs so as to ensure that (a) it is not, and is not deemed to be, engaged in “commercial activity” (as defined in Treasury Regulations Section 1.892-4T issued under the Code, as such regulations may be amended from time to time and, to extent that a taxpayer may rely upon them, any applicable proposed Treasury Regulations) and (b) it does not have, and is not deemed to have, a trade or business within the United States, in each case for U.S. federal income tax purposes at any time during the taxable year (for the avoidance of doubt, determined without regard to the application of Section 897 of the Code).

Section 4.18. Permitted HBU Sales . Notwithstanding anything herein to the contrary, it is acknowledged and agreed that the Subsidiary REIT may engage in Permitted HBU Sales (as such term is defined in the Subsidiary REIT Agreement), in accordance with Section 4.10 of the Subsidiary REIT Agreement.

Section 4.19. No Direct Ownership of Property, Real Estate Assets or Timber . Without the unanimous consent of the Board, the Partnership shall not acquire, own or dispose of the Property or any Real Estate Assets or conduct any HBU Sales (subject to Section  4.18 ) (or acquire, own or dispose of any other assets generating gain described in Sections 631(b), 631(c) or 897(a) of the Code) other than by or through sales of interests in or an acquisition, ownership or disposition (as applicable) conducted by of one or more Subsidiaries classified as corporations for U.S. federal income tax purposes, including for the avoidance of doubt, any REIT.

Section 4.20. Disposition of Subsidiary REIT Units . Notwithstanding anything herein to the contrary other than Section  5.6 , Section  5.7 and Section  5.8 , without the unanimous consent of the Board, the Partnership shall not Transfer to any third party any Subsidiary REIT Units.

 

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Section 4.21. Amendment of Subsidiary REIT Agreement . Notwithstanding anything herein to the contrary, the General Partner shall not have the authority to amend the Subsidiary REIT Agreement except with the written approval in writing by (x) a majority of the Percentage Interest of the Partners holding Common Interest and (y) a majority of the Percentage Interest of the Partners holding Preferred Interest.

Section 4.22. Disposition of Property or Real Estate Assets . If the Partnership directs a forced sale pursuant to Section  4.15 , or a Liquidator determines to conduct a sale of the Property or Real Estate Assets pursuant to Section  10.4 , the Partnership shall provide reasonable notice and cooperation to a Partner in order to enable the Partner to restructure its ownership of Partnership Interests so as to mitigate any adverse tax impact of the liquidation of the Property or Real Estate Assets on the Partner or its direct or indirect owners.

ARTICLE 5

TRANSFERS OF PARTNERSHIP INTERESTS

Section 5.1. Transfers .

(a) Restrictions on Transfer . No Partner shall, directly or indirectly, sell, assign, pledge, hypothecate, transfer by gift, exchange or otherwise dispose of or encumber all or any portion of its Partnership Interests by operation of law or otherwise (all of the foregoing being referred to hereinafter as a “ Transfer ”), except in accordance with this Section  5.1 or Section  5.8 . Any Transfer and the rights of the Transferee (as hereinafter defined) with respect to the Transferred Partnership Interest shall be subject to Section  5.2 . Any Transfer made in contravention of this Agreement shall be null and void and the transferee shall receive no right, title or interest in or to any Partnership Interest as a result of such Transfer made in violation of this Agreement. In addition, any Transfer otherwise permitted by this Agreement shall be null and void unless (i) in respect of a Transfer of a direct Partnership Interest, the permitted transferee (the “ Transferee ”) agrees to adopt and be bound by the terms of this Agreement and other relevant documents as if the Transferee had been an original party hereto, (ii) the Transfer would not result in any violation of, or trigger any change of control provisions with respect to, Indebtedness Documents of the Partnership or its Subsidiaries, (iii) the Transferee completes reasonable “know your customer” requirements of the lenders to the Partnership and its Subsidiaries and (iv) the Transfer would not result in any violation of Section  5.1(f) . The parties acknowledge that a direct or indirect Transfer of the ownership interests in CatchMark Timber Trust, Inc. (“ CTT ”) or a Transfer of the direct or indirect ownership interests in any vehicle Controlled, managed or advised by BCI Partners, Medley Partner, TIG Partner, Highland Partners, JAWS Partner or any of their respective Affiliates, other than the vehicle that holds interests in the Partnership, shall not constitute a Transfer for purposes of this Agreement. For the avoidance of doubt, Transfers among BCI Partners or to or among Affiliates of BCI or Affiliates of the BCI Partners in accordance with the terms of this Agreement shall be permitted Affiliate Transfers under Section  5.1(b) of this Agreement.

 

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(b) Permitted Transfers . A Partner may Transfer all or any portion of its Partnership Interest (x) to an Affiliate of such Partner; provided , such Transfer shall be permitted only to the extent such entity continues to be an Affiliate of such Partner; provided , further , that, in respect of a Transfer to an Affiliate of the Common Partners, such Affiliate is directly or indirectly wholly owned by CTT, or (y) to a third party purchaser; provided , that any proposed Transfer pursuant to this clause (y) (A) by any Partner shall be subject to a requirement that the Partner proposing to sell its Partnership Interests first offer such Partnership Interests to the other Partners pursuant to Section  5.3 and (B) by any Preferred Partner shall be subject to the right of the other Preferred Partners to participate in such sale pursuant to Section  5.4 ; provided , further , that to the fullest extent permitted by Law, notwithstanding anything herein to the contrary, unless in the case of clause (ii)(2) of this Section  5.1(b) is waived by the General Partner in its discretion, any Transfer shall be null and void if such Transfer:

(i) may require filing a registration statement under the Securities Act or would otherwise violate any federal or state securities or Blue Sky laws (including any investment suitability standards) or regulations applicable to the Partnership or the Partnership Interests;

(ii) is to a Transferee that:

(1) is not a “qualified purchaser” as that term is defined in Section 2(a)(51)(A) of the Investment Company Act, as certified or established to the reasonable satisfaction of the Partnership;

(2) is a competitor of the Common Partners listed on Exhibit G ; provided, that the restrictions set forth in this Section  5.1(b)(ii)(2) shall not apply if, as of the date of such Transfer, (x) a Liquidity Event has occurred and continues to be occurring as of such date, (y) a majority of the Board Members appointed by the Preferred Partners (acting without the consent of any other Board Members) has the right to terminate the Asset Management Agreement or to remove the Asset Manager in accordance with the terms of the Asset Management Agreement or (z) on or after the end of the fourth full Fiscal Quarter following the Effective Date, the occurrence of any three consecutive Fiscal Quarters in which the sum of the amount of the Quarterly Net Shortfall for (i) each of the three full Fiscal Quarters immediately preceding such Fiscal Quarter and (ii) such Fiscal Quarter is, in the aggregate, equal to an amount that is less than zero ($0), which occurrence has not been cured pursuant to Section  2.1(b)(i) , Section  2.1(b)(ii) , Section  2.1(b)(iii) or Section  4.3(c) ;

(3) is named on an OFAC List, is a prohibited country, territory, Person, organization, or entity under any economic sanctions program administered or maintained by OFAC or otherwise is a prohibited party under any Law of the U.S. federal government, any state government or any political subdivision thereof;

(4) to the extent the applicable Partnership Interest related to a Remaining Capital Commitment, is not able to reasonably satisfy the Common Partners of the ability of the Transferee to fund such Remaining Capital Commitment; provided , that the Common Partners shall be deemed satisfied if the Transferee is a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act;

(5) does not provide such information and documentation as the General Partner shall reasonably require, including, in the case of a non-US Transferor, certification that the Transferee has satisfied any obligations under Section 1446(f) of the Code;

 

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(iii) could constitute a non-exempt prohibited transaction under the Plan Asset Regulations or could cause any portion of the assets of the Partnership to be considered Plan Assets or to become subject to the provisions of ERISA or Similar Law, or could subject the Common Partners to regulation under ERISA;

(iv) may cause the Partnership to cease to be classified as a partnership for federal or state income tax purposes;

(v) may cause the Partnership to become a “publicly traded partnership” as such term is defined in Section 469(k)(2) or Section 7704(b) of the Code;

(vi) may cause the Partnership to fail to meet the “private placement” safe harbor or any other safe harbor from treatment as a “publicly traded partnership” selected by the Common Partners, as described in Treasury Regulations 1.7704-1(h); or

(vii) may cause the Subsidiary REIT to no longer qualify as a REIT, would violate Section 5.1(f) or would subject the Subsidiary REIT to any additional taxes under Section 857 or Section 4981 of the Code;

provided , that, if, as a result of any Transfer (in one or in a series of related transactions) by any of the Common Partners or their Affiliates in accordance with this Section  5.1(b) , the General Partner, CTT Partner, the Asset Manager or any Affiliate thereof that (directly or indirectly) holds equity interests in the Partnership undergoes a Change of Control, then a majority of the Board Members appointed by the Preferred Partners may, by written consent, determine to remove the General Partner as the general partner hereunder.

(c) Successors to a Partner . If a Partner becomes bankrupt, the trustee or receiver of the estate shall have all of the rights of such Partner solely for the purpose of settling the estate and such power as the bankrupt Partner possessed to Transfer all or any part of the Partnership Interest and to join with the Transferee thereof in satisfying conditions precedent to such Transferee becoming a substituted Partner. The Bankruptcy of a Partner in and of itself shall not dissolve the Partnership or cause any successor to such Partner to become a substituted Partner.

(d) Recognition of Transfer . The Partnership will not be obligated to recognize for any purpose any Transfer of any Partnership Interest unless (i) there shall have been filed with the Partnership a duly executed and acknowledged counterpart of the instrument making such Transfer signed by both the Transferring Preferred Partner and the Transferee and such instrument evidences, inter alia , the written acceptance by the Transferee of all of the terms and provisions of this Agreement and represents that such Transfer was made in accordance with all applicable Law (including investment suitability standards) and (ii) such a Transfer is permitted under this Article 5 . Irrespective of whether or not any successor to a Partner or a purported Transferee of a Partner’s Partnership Interest hereunder provides the aforesaid instruments, any such Person shall be bound by the terms and provisions of this Agreement. As a condition to any voluntary Transfer of a Partnership Interest, the General Partner may require that the Transferring Preferred Partner or the Transferee of the Partnership Interest or their respective representatives provide to the Partnership information that is reasonably requested by counsel to the Partnership to enable such counsel to determine that such Transfer is not prohibited by this Article 5 .

 

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(e) Continued Obligations . In no event shall a permitted Transfer be deemed to relieve the Partners who Transfer their Partnership Interests from their obligations and liabilities under this Agreement, including their obligations with respect to Capital Contributions (including Remaining Capital Commitments), except obligations that first arise from and after the date that a Partner Transfers its Partnership Interests and the permitted Transferee becomes a substituted Partner in accordance with Section  5.2 . Subject to the preceding sentence, if all or a portion of the Partnership Interests of a Partner is Transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Commitment Percentage of the Transferring Preferred Partner to the extent it relates to the Transferred Partnership Interests. If all or a portion of the Partnership Interests of a Partner is Transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Percentage Interest of the Transferring Preferred Partner to the extent it relates to the Transferred Partnership Interests.

(f) REIT Protections . In the event of any conflict between this Section  5.1(f) and any other provision of this Agreement (other than Section  5.8 ), this Section  5.1(f) shall control.

(i) Restrictions on Transfer .

(1) Until the Restriction Termination Date, any purported Transfer that, if effective, would prevent the Subsidiary REIT from meeting any of the REIT income requirements under Section 856(c) of the Code shall be void ab initio as to the Transfer of the Partnership Interests that would prevent such income from so qualifying, and the intended transferee shall acquire no rights in such Partnership Interests.

(2) Until the Restriction Termination Date, any Transfer that, if effective, would result in the Subsidiary REIT being “closely held” within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of the Partnership Interests which would cause such result, and the intended transferee shall acquire no rights in such Partnership Interests.

(ii) Excess Interests .

(1) If, notwithstanding the other provisions contained in this Section  5.1(f) , at any time, until the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Partnership (as a result of a direct or indirect transfer or otherwise) which, if effective, would cause the Subsidiary REIT to become “closely held” within the meaning of Section 856(h) of the Code or otherwise fail to qualify as a REIT, then the Partnership Interests that are the subject of such Transfer or other event which would cause the Subsidiary REIT to fail such requirement shall constitute “ Excess Interests ” and shall be treated as provided in this Section  5.1(f) . Such designation and treatment shall be effective as of the close of business on the Business Day prior to the date of the purported Transfer or change in capital structure.

 

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(2) If, at any time prior to the Restriction Termination Date, notwithstanding the other provisions contained in this Section  5.1(f) , there is an event (a “ Prohibited Owner Event ”) which would result in the disqualification of the Subsidiary REIT as a REIT by virtue of Beneficial Ownership or Constructive Ownership of units of the Subsidiary REIT, then Partnership Interests which result in such disqualification shall be automatically exchanged for an equal number of Excess Interests to the extent necessary to avoid such disqualification. Such exchange shall be effective as of the close of business on the Business Day prior to the date of the Prohibited Owner Event. In determining which Partnership Interests are exchanged, Partnership Interests owned directly or indirectly by any Person who caused the Prohibited Owner Event to occur (such Person, a “ Purported Record Transferee ”) shall be exchanged before any Partnership Interests not so held are exchanged. If similarly situated Persons exist, such exchange shall be pro rata .

(iii) Prevention of Transfer . If the Partnership shall at any time determine in good faith that a Transfer has taken place in violation of Section  5.1(f)(i) or that a Person intends to acquire or has attempted to acquire beneficial ownership (determined without reference to any rules of attribution) or Beneficial Ownership of any Partnership Interests in violation of Section  5.1(f)(i) , the Partnership shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer, including, but not limited to, refusing to give effect to such Transfer on the books of the Partnership or instituting proceedings to enjoin such Transfer; provided , however , that any Transfers or attempted Transfers in violation of Section  5.1(f)(i) shall automatically result in the designation and treatment described in Section  5.1(f)(ii) , irrespective of any action (or non-action) by the Partnership.

(iv) Notice to the Partnership . Any Person who acquires or attempts to acquire Partnership Interests in violation of Section  5.1(f)(i) , or any Person who is a transferee such that Excess Interests result under Section  5.1(f)(ii) , shall immediately give written notice or, in the event of a proposed or attempted Transfer, shall give at least fifteen (15) days prior written notice to the Partnership of such event and shall provide to the Partnership such other information as the Partnership may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the status of the Subsidiary REIT as a REIT.

(v) Information for Partnership . Until the Restriction Termination Date, each Partner hereby covenants that it shall, upon request, provide the Partnership with all information, certifications, representations and covenants reasonably requested by the Partnership (x) to ensure or ascertain the qualification of the Subsidiary REIT as a REIT, (y) to determine the status of the Subsidiary REIT as a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4)(B) of the Code and (z) to determine compliance with the ownership limits and covenants set forth in this Section  5.1(f) .

(vi) Other Action by Partnership . Nothing contained in this Article 5 (other than Section  5.8 ) shall limit the authority of the Partnership to take such other action as it deems necessary or advisable to protect the Partnership and the interests of their respective members by preservation of the Subsidiary REIT’s status as a REIT.

(vii) Ambiguities . In the case of an ambiguity in the application of any of the provisions of this Section  5.1(f) , including any definitions used therein, the Board shall have the power to interpret and determine the application of the provisions of this Section  5.1(f) with respect to any situation based on the facts known to the Board.

 

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(viii) Trust for Excess Interests . Upon any purported Transfer that results in Excess Interests pursuant to Section  5.1(f)(ii) , such Excess Interests shall be deemed to have been transferred to the Excess Interests Trustee, as trustee of the Excess Interests Trust for the exclusive benefit of the Charitable Beneficiary. Excess Interests so held in trust shall be issued and outstanding Partnership Interests. The Purported Record Transferee shall have no rights in such Excess Interests except as provided in Section  5.1(f)(ix) .

(ix) Distributions on Excess Interests . Any distributions (whether as periodic distributions, distributions upon liquidation, dissolution or winding-up or otherwise) on Excess Interests shall be paid to the Excess Interests Trust for the benefit of the Charitable Beneficiary. Upon liquidation, dissolution or winding-up, the Purported Record Transferee shall receive the lesser of (i) the amount of any distribution made upon liquidation, dissolution or winding-up or (ii) the price paid by the Purported Record Transferee for the Membership Interests, or if the Purported Record Transferee did not give value for the Membership Interests, the Excess Interests Price of the Partnership Interests on the day of the event causing the Partnership Interests to be held in trust. Any such distribution paid to the Purported Record Transferee in excess of the amount provided in the preceding sentence prior to the discovery by the Partnership that the Partnership Interests with respect to which the distribution was made had been exchanged for Excess Interests shall be repaid by the Purported Record Transferee to the Excess Interests Trust for the benefit of the Charitable Beneficiary.

(x) Voting of Excess Interests . The Excess Interests Trustee shall be entitled to vote the Excess Interests for the benefit of the Charitable Beneficiary on any matter. Subject to Delaware law, any vote taken by a Purported Record Transferee prior to the discovery by the Partnership that the Excess Interests were held in trust shall be rescinded ab initio . The owner of the Excess Interests shall be deemed to have given an irrevocable proxy to the Excess Interests Trustee to vote the Excess Interests for the benefit of the Charitable Beneficiary.

(xi) Non-Transferability of Excess Interests . Excess Interests shall be transferable only as provided in this Section  5.1(f)(xi) . At the direction of the Partnership, the Excess Interests Trustee shall Transfer the Partnership Interests held in the Excess Interests Trust to a Person whose ownership of the Partnership Interests will not violate, and for whom such Transfer would not be wholly or partially void pursuant to, Section  5.1(f)(i) . Such Transfer shall be made within sixty (60) calendar days after the latest of (i) the date of the Transfer which resulted in such Excess Interests and (ii) the date the Board determines in good faith that a Transfer resulting in Excess Interests has occurred, if the Partnership does not receive a notice of such Transfer pursuant to Section  5.1(f)(iv) . If such a Transfer is made, the interest of the Charitable Beneficiary shall terminate and proceeds of the sale shall be payable to the Purported Record Transferee and to the Charitable Beneficiary. The Purported Record Transferee shall receive the lesser of the price paid by the Purported Record Transferee for the Partnership Interests or, if the Purported Record Transferee did not give value for the Partnership Interests, the Excess Interests Price of the Partnership Interests on the day of the event causing the Partnership Interests to be held in trust, and the price received by the Excess Interests Trust from the sale or other disposition of the Partnership Interests. Any proceeds in excess of the amount payable to the Purported Record Transferee shall be paid to the Charitable Beneficiary. It is expressly understood that the Purported Record Transferee may enforce the provisions of this Section  5.1(f)(xi) against the Charitable Beneficiary.

 

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(xii) Unenforceability . If any of the foregoing restrictions on Transfer of Excess Interests is determined to be void, invalid or unenforceable by any court of competent jurisdiction, then the Purported Record Transferee may be deemed, at the option of the Partnership, to have acted as an agent of the Partnership in acquiring such Excess Interests and to hold such Excess Interests on behalf of the Partnership.

(xiii) Representation . Each of the Partners represents that, as of the date of its acquisition of a Partnership Interest, no Individual with a direct or indirect interest in such Partner will Beneficially Own more than 9.8% of the Partnership and will immediately advise the General Partner if and when such representation is no longer true. For these purposes, the term “ Individual ” means an individual, 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, or a private foundation within the meaning of Section 501(a) of the Code; provided , that, except as set forth in Section 856(h)(3)(A)(ii) of the Code, 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.

Section 5.2. Admission of Transferees as Substituted Partners .

(a) Requirements for Admission . No Transferee of a Partner’s Partnership Interest, whether or not such Transfer is permitted under Section  5.1 , shall be entitled to become a substituted Partner unless:

(i) The Transferee shall have agreed in writing to be bound by and shall have accepted, adopted and approved in writing all of the terms and provisions of this Agreement, as the same may have been amended, and executed a power of attorney similar to the power of attorney granted in this Agreement; and

(ii) The Transferee shall pay or obligate itself to pay all reasonable expenses incurred in connection with his admission as a substituted Partner.

(b) Effect of Transfer . If a Partner Transfers all of its Partnership Interest in accordance with the provisions of this Article 5 , it shall cease to be a partner of the Partnership as of the date that such Transfer is given effect by the Partnership in accordance with the terms of this Article 5 . A purported Transfer of a Partnership Interest not in accordance with the provisions of this Article 5 shall not be given effect for any purpose.

(c) Rights of Transferee . Any Person who is a permitted Transferee of any of the Partnership Interest of a Partner in accordance with the terms of this Article 5 , but who does not become a substituted Partner shall be entitled to all the rights of an Transferee of a Partnership interest under the Act, including the right to receive distributions from the Partnership and the share of net profits, gain, net losses, loss and any special allocated items attributable to the Partnership Interest Transferred to such Person, but shall not be deemed to be the owner of a Partnership Interest for any other purpose under this Agreement. In the event any such Person desires to make a further Transfer of any such Partnership Interests, such Person shall be subject to all the provisions of this Article 5 to the same extent and in the same manner as a Partner.

 

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(d) Notification of Transfer . If a Partner Transfers or exchanges all or any portion of its Partnership Interest, it must notify the Partnership of such Transfer or exchange. Such notification must be in writing and must be given within fifteen (15) days after the Transfer or exchange. Such notification must include the names and addresses of the transferor and transferee, the taxpayer identification numbers of the transferor and the transferee, the date of the Transfer or exchange and any other information required by the Partnership.

Section 5.3. Right of First Offer . If any Partner (the “ Offering Partner ”) should desire to Transfer all or a portion of its Partnership Interest to any Person other than an Affiliate of such Partner as permitted by Section  5.1(b)(x) , then the other Partners (the “ Offeree Partners ”) shall have a right of first offer as follows:

(a) Offer . The Offering Partner shall submit to the Offeree Partners a binding written offer (the “ Offer ”) to sell to the Offeree Partners the portion of its Partnership Interest proposed to be Transferred (the “ Offered Interest ”), which shall be designated by the Initial Liquidation Value thereof if a Preferred Interest (or, in respect of an Offered Interest other than a Preferred Interest, Capital Contributions relating thereto). The Offer shall include the cash price of the Offered Interest and any other terms of the proposed Transfer. Each Offeree Partner that is a Preferred Partner may provide a written notice (an “ Offer Acceptance Notice ”) to the Partnership within fifteen (15) Business Days after receipt of the Offer, specifying all or a portion of such Offeree Partner’s pro rata share of the Offered Interest, based on its Percentage Interest relative to the Percentage Interests of all Offeree Partners that are Preferred Partners, that such Offeree Partner wishes to purchase on the terms of the Offer. To the extent that all Offeree Partners that are Preferred Partners do not elect to purchase their full pro rata share of the Offered Interest pursuant to the immediately preceding sentence, the remainder of the Offered Interest will be re-offered within five (5) Business Days to Offeree Partners that are Preferred Partners who elected to purchase their full pro rata share, and such Offeree Partners that are Preferred Partners shall have the right to purchase all or a portion of such remainder (based on the amount of such remainder that each such Offeree Partner offers to purchase relative to the other such electing Offeree Partners) within ten (10) Business Days after receipt of such re-offer. To the extent that the Offeree Partners that are Preferred Partners do not elect to purchase all of the Offered Interest pursuant to the preceding sentence, the remainder of the Offered Interest will be re-offered to Offeree Partners that are not Preferred Partners (and including, for the avoidance of doubt, the Common Partners) (a “ Secondary Re-offer ”). Each Offeree Partner that is not a Preferred Partner may provide an Offer Acceptance Notice to the Partnership within one (1) day after receipt of the Secondary Re-offer, specifying all or a portion of such Offeree Partner’s pro rata share of the Offered Interest, based on its Percentage Interest relative to the Percentage Interests of all Offeree Partners that are not Preferred Partners, that such Offeree Partner wishes to purchase on the terms of the Offer. Any failure to make an election within the relevant time periods set forth herein shall be deemed to be an election not to purchase any portion of the Offered Interest under the relevant Offer, re-offer or Secondary Re-offer.

(i) If the Offeree Partners elect to purchase the entire Offered Interest pursuant to the Offer Acceptance Notices (including the re-offer responses, if applicable), then the accepting Offeree Partners shall be required to purchase the entire Offered Interest in the amounts determined by the process described above.

 

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(ii) If the Offeree Partners do not elect to purchase the entire Offered Interest, then, subject to compliance with the other terms of this Agreement, the Offering Partner shall be free to sell the entire Offered Interest to any Person at a price equal to or in excess of ninety-five percent (95%) of the price set forth in the Offer, during a period of one hundred and eighty (180) days after the date of the Offer; provided , that, to the extent that the Common Partners provided an Offer Acceptance Notice specifying their desire to purchase a portion, but not all, of the Offered Interest, the Offering Partner shall use good faith efforts to request that the proposed purchase of such Offered Interest permit the Common Partners to participate in the purchase up to the amount of the Offered Interest specified in such Offer Acceptance Notice; provided , that the Offeree Partner shall have no obligation to allow the Common Partners to participate in the purchase of the Offered Interest if (A) the proposed purchaser of the Offered Interest declines to permit the Common Partners to so participate, or (B) such participation would adversely affect the terms (including price) of the proposed purchase. Except for Transfers to an Affiliate of such Partner, any subsequent Transfer by the Offering Partner, or any Transfer by the Offering Partner after such one hundred and eighty (180) day period must comply with this Section  5.3 with a new Offer.

(b) Closing .

(i) Closing Date . The closing of the sale of the Offered Interest to the Offeree Partner(s) pursuant to this Section  5.3 shall be held on the date designated by the Offering Partner that is no later than sixty (60) days after the delivery of the Offer. The purchase price shall be paid by wire transfer of immediately available federal funds. The closing of the sale of the Offered Interest to the Offeree Partner(s) pursuant to this Section  5.3 shall be on an “as is” and “where is” basis with no representations or warranties other than a representation from the Offering Partner that (1) it owns the Offered Interest being transferred free and clean of all liens, claims or encumbrances, other than liens that have been approved by the Partners pursuant to this Agreement, (2) it has full right and authority to sell the Offered Interest and that the sale has been duly authorized, (3) the assignment document has been duly authorized, executed and delivered, (4) the consummation of the transactions contemplated thereby will not violate the terms of any agreement to which the Offering Partner is a party, or any order, judgment or decree applicable to the Offering Partner, including this Agreement, and (5) no consent, approval or authorization of or designation, declaration or filing with, any governmental authority or other Person is required on the part of the Offering Partner in connection with the consummation of the transactions contemplated hereby or, if required, has been obtained.

(ii) Required Documents . Prior to or at the closing of the sale of the Offered Interest to the Offeree Partner(s) pursuant to this Section  5.3 , the Offering Partner shall supply to the Offeree Partner(s) all documents customarily required (or reasonably required by the Offeree Partner(s)) to make a good and sufficient conveyance of the Offered Interest to the Offeree Partner(s), which documents shall be in form and substance reasonably satisfactory to the Offeree Partner(s) and the Offering Partner.

 

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(iii) Conditions Precedent to Closing . The obligation of the Offeree Partner(s) to pay the purchase price in connection with a sale of the Offered Interest pursuant to this Section  5.3 shall be conditioned upon the Offered Interest being transferred free and clear of all liens, claims and encumbrances, other than permitted liens, claims and encumbrances that were waived by the Offeree Partner(s) and deducted in determining the applicable price of the Offered Interest and permitted liens, claims and encumbrances securing indebtedness of the Partnership or its Subsidiaries. This condition is for the sole benefit of the Offeree Partner(s) and may be waived by the Offeree Partner(s) in whole or in part in each of their sole discretion.

(iv) Brokerage . No brokerage fees or commissions shall be payable by the Partnership in connection with any purchase pursuant to this, and each Partner shall indemnify and hold harmless the Partnership and the other Partners from and against any such claims made based upon the actions of such Partner, including any fees and expenses in defending any such claims.

(c) Termination of Rights and Obligations . Upon the effective date of any transfer of the Offered Interest pursuant to this Section  5.3 , the Offering Partner’s rights and obligations under this Agreement shall terminate with respect to such transferred portion of the Offered Interest, except as to indemnity rights or obligations of such Partner under this Agreement attributable to acts or events occurring prior to the effective date of such transfer. For the avoidance of doubt, a purchaser of any Preferred Interest that is transferred pursuant to this Section  5.3 shall be entitled to all future distributions made in respect of such Preferred Interest, including those in excess of the Initial Liquidation Value of such Preferred Interest pursuant to Section  3.3 and Section  3.5 .

(d) Notice Requirements . To the extent the notices delivered pursuant to this Section  5.3 are sent by e-mail, a confirmatory notice shall be sent immediately thereafter by overnight courier or first-class mail, postage prepaid, pursuant to Section  11.1 .

(e) Defaults .

(i) If an Offeree Partner should default in its obligation to purchase its portion of the Offered Interest it agreed to in an Offer Acceptance Notice in accordance with this Section  5.3 , such defaulting Offeree Partner shall not be entitled to participate in the right of first offer in respect of any future Offered Interests offered in accordance with this Section  5.3 .

(ii) If the Offering Partner should default in its obligation to sell all or a portion of the Offered Interest in accordance with this Section  5.3 , any other transfer of such Offered Interest shall be null and void and the Offeree Partner(s) shall be entitled to seek specific performance of the Offering Partner’s obligations under this Section  5.3 , the Partners hereby acknowledging and agreeing that other remedies at law for breach of the obligations of the Offering Partner under this Section  5.3 would be inadequate.

The rights and remedies provided for in this Section  5.3(e) shall be in addition to, and not in limitation of, any other rights available to the non-defaulting participants at law or in equity.

Section 5.4. Tag-Along Right . If (i) any Preferred Partner (the “ Tag-Along Offering Partner ”) desires to Transfer all or any portion of its Preferred Interest to any Person other than an Affiliate of such Partner as permitted by Section  5.1(b)(x) and (ii) the Offeree Partners that are Preferred Partners did not accept the Offer to purchase the entire Offered Interest proposed to be sold by the Tag-Along Offering Partner (as the Offering Partner) pursuant to Section  5.3 , then, if the Tag-Along Offering Partner proposes to Transfer all or a portion of the Offered Interest (the “ Tag-Along Interest ”) to a third party or the Common Partners pursuant to Section  5.3(a)(ii) (a “ Tag-Along Transfer ”), then:

 

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(a) Offer; Tag-Along Right . The Tag-Along Offering Partner shall provide written notice to the other Preferred Partners other than any Offeree Partners that are purchasing Offered Interests pursuant to Section  5.3 (the “ Tag-Along Notice ”) setting forth (i) the material terms and conditions, including consideration, pursuant to which such Tag-Along Offering Partner proposes to make such Tag-Along Transfer (the “ Tag-Along Terms ”) and (ii) the identity of the third party or the Common Partners (the “ Tag-Along Purchaser ”) to whom it proposes to make such Tag-Along Transfer. Subject to Section  5.4(c) , each Preferred Partner other than any Offeree Partners that are purchasing Offered Interests pursuant to Section  5.3 shall have the right to Transfer to the proposed transferee its pro rata share of the Tag-Along Interest for the same form and amount of consideration and on the same terms and conditions as the Tag-Along Offering Partner (the “ Tag-Along Right ”).

(b) Response . Within ten (10) days after delivery of a Tag-Along Notice, each other Preferred Partner (other than any Offeree Partners that are purchasing Offered Interests pursuant to Section  5.3 ) shall give written notice to the Tag-Along Offering Partner stating whether it wishes to exercise the Tag-Along Right and to sell its pro rata share of the Tag-Along Interest in the Tag-Along Transfer on the Tag-Along Terms. Any Preferred Partner electing to sell its Preferred Interest pursuant to this Section  5.4 (a “ Tag-Along Seller ”) (i) shall be bound to sell to the Tag-Along Purchaser on the Tag-Along Terms and (ii) shall take all actions reasonably necessary to do so, including executing a contract of sale (which contract shall be no more onerous to the Tag-Along Seller(s) than the contract of sale executed by the Tag-Along Offering Partner). Notwithstanding the foregoing, in order to be entitled to exercise its right to sell its Preferred Interest in the Tag-Along Transfer pursuant to this Section  5.4 , each Tag-Along Seller, if requested by the Tag-Along Offering Partner or the Tag-Along Purchaser, (x) shall agree to the same covenants as the Tag-Along Offering Partner agrees to in connection with the Tag-Along Transfer to the extent applicable, (y) shall be obligated to join on a pro rata (but not joint and several) basis (based on the proceeds received by such Tag-Along Seller compared with the proceeds received by the Tag-Along Offering Partner and all Tag-Along Seller(s) in connection with the Tag-Along Transfer) in any indemnification that the Tag-Along Offering Partner agrees to provide in connection with the Tag-Along Transfer (other than in connection with obligations that relate to a particular Partner such as representations and warranties concerning itself for which each Partner shall agree to be solely responsible), and (z) shall make such representations and warranties (on a several, but not joint basis) as the Tag-Along Offering Partner shall make in connection with the Tag-Along Transfer, except that any representations or warranties made by the Tag-Along Offering Partner concerning itself and the Tag-Along Interest to be sold by it in connection with such Transfer shall only be made by a Tag-Along Seller with respect to itself and its share of such Tag-Along Interest. Each Tag-Along Seller shall be responsible for funding its proportionate share of any adjustment in purchase price or escrow arrangements in connection with the Tag-Along Transfer and for its proportionate share of any withdrawals from any such escrow, including any such withdrawals that are made with respect to claims arising out of agreements, covenants, representations, warranties or other provisions relating to the Tag-Along Transfer.

 

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(c) Closing . The Tag-Along Offering Partner shall be permitted (but not required) to consummate the Tag-Along Transfer within one hundred and eighty (180) days following the end of the ten (10) day period described in Section  5.4(b) (and the period described in Section  5.3(a)(ii) shall be extended such that it expires on the same date as the period under this Section  5.4(c) ), but only if the Tag-Along Purchaser(s) acquire the “ Allocable Share ” of the Preferred Interest of each Tag-Along Seller in exchange for the Allocable Share of the total consideration (net of the aggregate expenses incurred by the Tag-Along Offering Partner in the Tag-Along Transfer) paid by the Tag-Along Purchasers. The “ Allocable Share ” of the Tag-Along Offering Partner and each Tag-Along Seller will equal (i) the Preferred Interests that the Tag-Along Purchaser(s) are to acquire multiplied by (ii) a fraction, the numerator of which is its Percentage Interest and the denominator of which is the aggregate Percentage Interest of the Tag-Along Offering Partner and all Tag-Along Sellers.

(d) Notice Requirements . To the extent the notices delivered pursuant to this Section  5.4 are sent by e-mail, a confirmatory notice shall be sent immediately thereafter by overnight courier or first-class mail, postage prepaid, pursuant to Section  11.1 .

Section 5.5. Preemptive Rights . The Partnership and its Subsidiaries shall not issue (an “ Issuance ”) debt interests (other than the Senior Credit Debt and other senior Indebtedness that is secured by the assets of and/or the equity interests of the Partnership) or equity interests in the Partnership or its Subsidiaries (including the Subsidiary REIT), other than (a) the issuance of Partnership Interests to the Partners or pursuant to a transfer of Partnership Interests, in each case, that is permitted pursuant to this Agreement (including Article 5 ), (b) the issuance of Subsidiary REIT Units to the Partnership and the issuance of the Subsidiary REIT Preferred Units, (c) any issuance of ownership interests in a Subsidiary so long as all of the ownership interests in such Subsidiary remain directly or indirectly wholly owned (other than the Subsidiary REIT Preferred Units) by the Partnership following such issuance or (d) the incurrence of Indebtedness under a credit facility otherwise permitted pursuant to this Agreement, to any Person with designations, preferences or relative, economic, participating, optional or other special rights, powers or duties that are preferential to the Preferred Interests, without offering to the Preferred Partners the opportunity to purchase any such debt or equity interests. The General Partner shall notify each Preferred Partner in writing of the proposed Issuance (the “ Issuance Notice ”) and grant to each such Preferred Partner the right (the “ Preemptive Rights ”) to subscribe for and purchase its pro rata share, based on the Preferred Partners’ relative Percentage Interests, of the preferential debt or equity interests to be issued in the proposed Issuance at the same price and upon the same terms and conditions to be issued in the proposed Issuance. In order to exercise the preemptive rights granted to it pursuant to this Section  5.5 , a Preferred Partner must deliver notice of its election to purchase such preferential debt or equity interests to the General Partner within fifteen (15) Business Days of receipt of the Issuance Notice. A failure to deliver such notice by a Preferred Partner will constitute a waiver by such Preferred Partner of its preemptive rights under this Section  5.5 with respect to the applicable Issuance. To the extent that all of the Preferred Partners do not elect to exercise their Preemptive Rights pursuant to the preceding sentences of this Section  5.5 , the remainder of the debt or equity interests subject to the Issuance will be re-offered to the Preferred Partners who elected to exercise their Preemptive Rights within five (5) days of the expiration of the period to deliver notice of an election, and such Preferred Partners shall have the right to purchase all or a portion of such remainder (based on the amount of such remainder offered relative to the other such electing Preferred Partners) within ten (10) Business Days after receipt of such re-offer. For the avoidance of doubt, the Common Partners shall not have Preemptive Rights in accordance with this Section  5.5 .

 

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Section 5.6. Call Right on Preferred Partners .

(a) Notwithstanding anything herein to the contrary (including Section  4.10 , Section  5.3 , Section  5.4 and Section  5.5 ), the Common Partners shall have the right (but not the obligation) to purchase (or have purchased) all of the outstanding Preferred Interest (and not a portion thereof), including rights in future distributions of Remaining Distributable Cash Flow pursuant to Section  3.5 (each, a “ Remaining Interest ”) by paying cash (or having paid cash) to each Preferred Partner in an amount equal to the Purchase Price of the applicable Remaining Interest in accordance with this Section  5.6 (the “ Common Partner Call Right ”). The Common Partners may exercise the Common Partner Call Right with respect to the Remaining Interests by delivering written notice thereof to the Preferred Partners (the “ Common Partners Call Notice ”), and such notice shall represent a binding obligation of the Common Partners to purchase all Remaining Interests of the Preferred Partners; provided, that such right shall only be available if such Common Partners Call Notice is delivered (x) prior to the second (2nd) anniversary of the Effective Date or (y) after the second (2nd) anniversary of the Effective Date if, in the case of this clause (y), the balance of the Initial Preferred Distribution Balance under the Subsidiary REIT Agreement is reduced to zero ($0) on or prior to the second (2nd) anniversary of the Effective Date (including pursuant to Section  5.7 hereof).

(b) The Purchase Price in respect of the Remaining Interests of a Preferred Partner shall be the greater of (i) an amount equal to (A) (1) the applicable multiple set forth on Schedule 5.6(b) of this Agreement determined as of the closing of the sale of the Remaining Interests multiplied by (2) the Initial Liquidation Value of the applicable Preferred Partner’s Preferred Interests as of the Effective Date of this Agreement, less (B) the aggregate amounts previously distributed to the Preferred Partner pursuant to Article 3 (including as a result of the General Partner’s exercise of its rights under Section  5.7 of this Agreement) and (ii) the Appraised Residual Value. The “ Appraised Residual Value ” in respect of a Remaining Interest shall mean the aggregate amount that would be distributed to the Preferred Partner in respect of its Remaining Interest if the Property and the other Business Assets were sold at their Appraised Value and the proceeds therefrom were distributed pursuant to Section  10.4 in a liquidation of the Partnership (with no reserves or other amounts retained by the Partnership). If the Common Partner Call Right is exercised, the Common Partners (on the one hand) and the Preferred Partners holding, in the aggregate, more than fifty percent (50%) of the Preferred Interests (excluding any Defaulting Partners) (on the other hand) shall each appoint a Qualified Appraiser within five (5) calendar days after receipt of the Common Partners Call Notice and shall require each Qualified Appraiser to perform a valuation of the Property and other Business Assets of the Partnership and to provide the gross value thereof in a report furnished to the Partnership and the Preferred Partners no later than thirty (30) calendar days after such appointment. If the valuations of the Property and the other Business Assets set forth in the reports delivered by the Qualified Appraiser designated by the Common Partners and the Qualified Appraiser designated by the Preferred Partners in accordance with this Section  5.6(b) differ by an amount that is less than five percent (5)% of the higher valuation, the average of the two valuations shall be the gross value of the Property and other Business Assets of the Partnership. If the valuations differ by an amount equal to five percent (5)% of the

 

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higher valuation or more, then unless the Common Partners and Preferred Partners holding more than fifty percent (50%) of the Preferred Interests (excluding any Defaulting Partners) agree to a gross value of the Property and the other Business Assets, the initial two Qualified Appraisers shall appoint a third Qualified Appraiser who shall provide its final valuation no later than thirty (30) calendar days after its appointment. After the third Qualified Appraiser has completed its final valuation, the gross value of the Property and the other Business Assets shall be deemed to be equal to the arithmetic average of the two appraisals that are closest together, which deemed gross value shall be binding on the Common Partners and the Preferred Partners as the “ Appraised Value ” of the Property and other Business Assets for purposes of clause (ii) of this Section  5.6(b) .

(c) Closing Date . The closing of the sale of the Remaining Interests to the Common Partners (or a Person designated by the Common Partners) pursuant to this Section  5.6 shall be held on a date designated by the Common Partners that is no later than ten (10) days after the final determination of the Appraised Value of the Property and the other Business Assets. The Purchase Price shall be paid by wire transfer of immediately available federal funds from the Common Partners to each applicable Preferred Partner. The closing of the sale of the Remaining Interests to the Common Partners (or a Person designated by the Common Partners) pursuant to this Section  5.6 shall be on an “as is” and “where is” basis with no representations or warranties other than a representation from the Preferred Partner that (i) it owns the Remaining Interest being transferred free and clean of all liens, claims or encumbrances, other than liens that have been approved by the Partners pursuant to this Agreement, (ii) it has full right and authority to sell the Remaining Interest and that the sale has been duly authorized, (iii) the assignment document has been duly authorized, executed and delivered, (iv) the consummation of the transactions contemplated thereby will not violate the terms of any agreement to which the Preferred Partner is a party, or any order, judgment or decree applicable to the Preferred Partner and (v) no consent, approval or authorization of or designation, declaration or filing with, any governmental authority or other Person is required on the part of the Preferred Partner in connection with the consummation of the transactions contemplated hereby or, if required, has been obtained. In connection with the exercise of the Common Partner Call Right, (x) the Common Partners may structure the Common Partner Call Right as a redemption of the Remaining Interest by the Partnership (including redemption in connection with an equity issuance by the Partnership or a sale of all or part of the Property or other Real Estate Assets by the Partnership to generate cash proceeds necessary to consummate the such transaction; provided , that such redemption or sale results in aggregate proceeds equal to or greater than the Purchase Price as determined in accordance with Section  5.6(b) ) and (y) the Common Partners may only take such actions as are reasonable and necessary on behalf of the Partnership to consummate such transaction.

(d) Termination of Rights and Obligations . Upon the effective date of any purchase of the Remaining Interest pursuant to this Section  5.6 , the Preferred Partner’s rights and obligations under this Agreement shall terminate, except as to indemnity rights or obligations of such Preferred Partner under this Agreement attributable to acts or events occurring prior to the effective date of such transfer.

 

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Section 5.7. Permitted Financing Transaction . Notwithstanding anything herein to the contrary (including Section  3.6 , Section  4.10 (and including obtaining waivers or consents under Indebtedness Documents), Section  5.3 , Section  5.4 and Section  5.5 ), but subject to any consent (if any) required under the Senior Credit Documents, so long as no Alternative Voting System is in place, CTT Partner, in its sole and absolute discretion, may engage (but shall not be obligated to engage) in a transaction or a number of related transactions from time to time on the terms and subject to the conditions set forth in Schedule 5.7 (a “ Permitted Financing Transaction ”) in which the entire net proceeds of such Permitted Financing Transaction are used to make distributions until the balance of each Initial Preferred Distribution Balance under the Subsidiary REIT Agreement is reduced to zero on a Distribution Date occurring on or prior to the third anniversary of the Effective Date. In connection with the consummation of a Permitted Financing Transaction, the General Partner may only take such actions as are reasonable and necessary on behalf of the Partnership to consummate such transaction.

Section 5.8. Pledging of Partnership Interests .

(a) Notwithstanding anything contained in this Agreement to the contrary (including anything in this Article 5 ), the Common Partners and their Affiliates shall be permitted to pledge, hypothecate or otherwise assign as collateral any or all of its direct and indirect Partnership Interests (collectively, the “ Pledged Collateral ”), no matter how characterized, in the Partnership, including, all economic control (including, voting and management), and status rights, privileges and powers as a Partner, all other rights, privileges and powers vested in the Common Partners and their Affiliates under this Agreement and all rights, privileges and powers with regard to the Partnership Interests of the Common Partners or their Affiliates, other equity interests in the Partnership of the Common Partners and their Affiliates and all certificates evidencing or documenting the same, to any lender to the Common Partners or their Affiliates or any agent acting on such lender’s behalf, and any transfer of such Pledged Collateral pursuant to any such lender’s (or agent’s) exercise of remedies in connection with any such pledge, hypothecation or other assignment as collateral shall be permitted under this Agreement with no further action or approval required hereunder.

(b) Notwithstanding anything contained in this Agreement to the contrary (including anything in this Article 5 ), upon a default under financing giving rise to any pledge, hypothecation or other assignment as collateral of the Pledged Collateral:

(i) any lender (or agent) thereunder, shall have the right, as set forth in the applicable credit agreement, pledge, hypothecation or other collateral or security agreement, and without further approval of the Partnership or any other equity holder of the Partnership and without becoming a shareholder, member or partner of the Partnership, as applicable, to exercise the Common Partners’ and their Affiliates’ voting and other consensual rights, as well as any other rights, privileges and powers vested in the Common Partners and their Affiliates under this Agreement; provided , that no lender (or agent) thereunder shall be entitled, without the consent of a majority of the Preferred Interests, to become the general partner hereunder; provided , further , with respect to any Partnership Interests of the General Partner, the foregoing shall not limit the rights of the Board Members appointed by the Preferred Partners to remove such General Partner pursuant to Section  4.13(a) ; and

 

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(ii) without complying with any other procedures set forth in this Agreement, upon the exercise of remedies in connection with the applicable pledge, hypothecation or other assignment as collateral in the form of a sale or other disposition or other Transfer of the Pledged Collateral, (x) the purchaser or other transferee shall become a shareholder, member or partner (as applicable) under this Agreement and shall succeed to all of the Pledged Collateral and shall be bound by all of the obligations, of a member, shareholder or partner (as applicable) under this Agreement without taking any further action on the part of such transferee or any other Person, and (y) following such exercise of remedies, the Common Partners or their Affiliates (as the pledging equity holder) shall cease to be a shareholder, member or partner (as applicable) and shall have no further right, privileges or powers under this Agreement.

(iii) The approval of this Agreement by the Partners shall constitute any necessary approval under the Act to the foregoing provisions of this Section  5.8 . This Section  5.8 may not be amended or otherwise modified so long as the Common Partners’ or their Affiliates’ (or any other equity holder of the Partnership’s) interests in the Partnership are subject to a pledge, hypothecation or other assignment as collateral to any lender to the Common Partners or their Affiliates or any agent acting on such lender’s behalf without the prior written consent of any such lender or agent (or the transferee of any such lender or agent). Each recipient of a pledge, hypothecation or other assignment as collateral of all or any portion of the Common Partners’ (or their Affiliates’) Pledged Collateral shall be a third party beneficiary of the provisions of this Section  5.8 .

(c) The Partnership agrees that in respect of any Indebtedness of the Partnership, it will not assign absolutely to a credit party its right to call Remaining Capital Commitments of a Preferred Partner in such a manner that would result in such credit party becoming the beneficial owner of the Preferred Partner’s obligation to fund Remaining Capital Commitments.

ARTICLE 6

RIGHTS AND DUTIES OF PARTNERS

Section 6.1. Relationship of Partners . Each Partner agrees that, to the fullest extent permitted by the Act and except to the extent expressly stated in this Agreement:

(a) No Partner shall have any fiduciary or other implied duty, responsibility or obligation to the Partnership or any other Partner except as otherwise expressly set forth herein.

(b) Notwithstanding any provision of this Agreement to the contrary (other than Section  4.2(b) ), whenever in this Agreement (x) the consent or approval or any other action of or by any Partner, or any Board Member, is required for the taking of any action by or on behalf of the Partnership or by any other Partner and (y) the terms of this Agreement do not explicitly require that such consent not unreasonably be withheld, such Partner (except the General Partner), or any such Board Member, (1) shall, in determining whether to grant such consent or approval or take such action, be entitled to consider any interests and factors it desires, including its own views, self-interest, objectives and concerns, (2) shall, to the fullest extent permitted by Law, have no duty or obligation to give any consideration to any interest of or factor affecting the

 

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Partnership, any Partner or any other Person and (3) may grant or withhold such consent or approval or take or fail to take such action, in each case, in its sole discretion. It is further acknowledged that the Partners may require certain internal approvals in connection with some or all of such matters. Additionally, except as specifically provided in this Agreement and to the extent allowed by the Act, notwithstanding anything to the contrary contained in the Act, no Partner (except the General Partner) or any Board Member shall have any other obligation or duty to the Partners or any duty either to grant or to withhold any such consent or approval or take or fail to take any such action, and no Partner shall have any claims (whether relating to the fact of such approval or consent being granted or withheld, or such action being or not being taken, or relating to the consequences thereof) by reason of any Partner or any Board Member having failed to consent to or approve any matter that it has the right to consent to or approve, or having taken or failed to take any action that it has the right to take (except for claims against the General Partner for breach of its obligations and duties under this Agreement).

Section 6.2. Limitation of Authority . No Partner shall have authority to bind or act for the Partnership or to incur or assume any obligation on behalf of the Partnership or to act as the agent, representative or attorney-in-fact for the Partnership, except to the extent expressly provided in this Agreement. Except to the extent specifically provided in this Agreement, this Agreement shall not give any Partner the authority to bind or act for any other Partner or to incur or assume any obligation on behalf of any other Partner or to act as the agent, representative or attorney-in-fact for any other Partner. Except to the extent set forth in this Agreement or the Act, a Partner shall not participate in the management or control of the Partnership’s business.

Section 6.3. Other Activities . Except as specifically provided in this Agreement, this Agreement shall not be construed in any manner to preclude the Partners or their respective Affiliates from engaging in any activity whatsoever permitted by applicable Law. Without limiting the foregoing, except as specifically provided in this Agreement, the Partnership and each of the Partners renounces any interest or expectancy of the Partnership and its Subsidiaries in, or in being offered an opportunity to participate in, business opportunities, that are from time to time presented to the Partners, their Affiliates and their Constituent Partners (other than the Partnership and its Subsidiaries), even if the opportunity is one that the Partnership or its Subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such person shall be liable to the Partnership or any of its Subsidiaries for breach of any fiduciary or other duty, as a Partner, director or officer or otherwise, by reason of the fact that such person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Partnership or its Subsidiaries.

(a) The Common Partners shall provide notice to the other Partners promptly following any acquisition of timberland assets by the Common Partners or its Affiliates that are located within 75 road miles of a Specified Delivery Point or any disposition of timberland assets that are located within 75 road miles of a Specified Delivery Point (each timberland asset owned as of the date hereof or purchased thereafter by the Common Partners or their Affiliates within such 75 road mile distance of Specified Delivery Points, a “ Qualified Common Partner Property ”).

 

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(b) The Common Partners shall promptly provide to the other Partners the following quarterly weighted average pricing information regarding each Qualified Common Partner Property for the following products sold (measured by revenue over the immediately preceding twelve (12) months): Pine Pulpwood, Pine Chip and Saw, Pine Sawtimber, Hardwood Pulpwood and Hardwood Sawtimber, unless, in the opinion of third party legal counsel, the provision of such information would be restricted by applicable law (including any Antitrust Laws, if applicable); provided , that Common Partners may aggregate such information so that individual customer information is not disclosed. The Common Partners shall be available to discuss with the other Partners the Qualified Common Partner Properties and any of the information described above.

Section 6.4. Confidentiality .

(a) Each Partner agrees to, and cause its designated Board Members to, keep confidential, and not to make use of (other than for purposes reasonably related to its interest in the Partnership or for purposes of filing such Partner’s tax returns or for other routine matters required by law) or disclose to any Person (other than disclosure to the officers, directors, employees, advisors, representatives, lenders, sellers, investors, prospective investors, prospective Transferees or attorneys of the Partner and its Affiliates or the Partner’s shareholders and agents, and to the officers, directors, employees, advisors and representatives of its shareholders and agents), any information or matter received from or relating to the Partnership and its Subsidiaries, the Partners and Affiliates of the Partners, and their respective affairs and any information or matter related to the Property or other Business Assets; provided , that a Partner may disclose any such information to the extent that (A) such information is or becomes generally available to the public through no act or omission of such Partner, (B) such information otherwise is or becomes known to such Partner other than by disclosure by the Partnership or the Partners or one of their Affiliates; provided , that the source of such information is not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality, or (C) such Partner is required by law to disclose such information (or as may be required in connection with an examination or audit of a Partner by any governmental agency or regulatory body having regulatory jurisdiction over such Partner) and complies with the provisions of Section  6.4(b) . Notwithstanding the foregoing, Partners (and each employee, agent or representative of any Partner) may disclose to any and all Persons, of any kind, the tax treatment and tax structure of an investment in the Partnership and its Subsidiaries and all materials of any kind (including opinions or other tax analyses) that are provided to such Partner relating to such tax treatment or tax structure except to the extent maintaining such confidentiality is necessary to comply with any applicable U.S. federal or state securities laws. Notwithstanding the foregoing, the Partners and the Partnership may disclose to financing sources to such Partners or the Partnership and its Subsidiaries, as appropriate, such information and material as may be reasonably requested by such financing sources; provided , that such financing sources agree to keep such information and material confidential and not to make use of (other than for purposes reasonably related to their financing of such Partner, the Partnership or its Subsidiaries (including any exercise of remedies or in any related legal proceeding) for other routine matters required by law or, with respect to the Senior Lender, as permitted by the Senior Credit Documents) or disclose to any Person (other than disclosure to the officers, directors, employees, advisors, representatives or attorneys of such financing source) such information and material. The foregoing language is not intended to waive any confidentiality obligations otherwise applicable under this Agreement except with respect to the information and materials specifically referenced in the preceding sentence. Upon designating an individual to the Board, each Partner will cause its designee to execute an acknowledgement of such Board member’s confidentiality obligations set forth in this Section  6.4 .

 

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(b) To the extent that a Partner (or an Affiliate thereof or applicable Board Member designated thereby) is requested or required (by oral question or request for information or documents in legal proceedings, regulatory filings, interrogatories, subpoena, civil investigative demand or similar process) to disclose information subject to the confidentiality provisions of this Section  6.4 relating to the Partnership, its Subsidiaries and/or the Property or other Business Assets, such Partner hereby agrees that such Partner (i) shall give prompt notice of such fact to the other Partners so that such other Partners may, if one or more such Partners desire, seek a protective order or other governmental or judicial relief to prevent disclosure of such information; (ii) shall, to the extent practicable, use commercially reasonable efforts to assist the other Partners in taking steps to oppose and prevent the requested disclosure to the extent available under applicable Law; and (iii) agrees to use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the information so disclosed to the extent available under applicable Law. Notwithstanding the foregoing, nothing in this Section  6.4(b) shall require BCI Partners to participate directly in any legal proceedings to oppose requested disclosure.

(c) Any obligation of a Partner pursuant to this Section  6.4 may be waived by the Board as a Major Decision.

Section 6.5. Limitation of Liability of Partners and Affiliates . Except as provided by the Act or other applicable Law and subject to the obligations to make Capital Contributions and to indemnify the Partnership and the other Partners as provided in Article 7 and as otherwise required by this Agreement or by applicable Law, no Partner shall have any personal liability whatsoever in its capacity as a Partner, whether to the Partnership, to any of the Partners or to the creditors of the Partnership, for the debts, liabilities, contracts or other obligations of the Partnership (whether arising in contract, tort or otherwise) or for any of the Partnership’s losses.

Section 6.6. ERISA Status . Each Partner represents and warrants that such Partner is not, and notwithstanding anything to the contrary in this Agreement, such Partner shall not at any point in the future be, a “benefit plan investor” as defined under Section 3(42) of ERISA or regulations promulgated by the U.S. Department of Labor thereunder, at 29 C.F.R. Section 2510.3-101, or otherwise.

ARTICLE 7

LIABILITY; INDEMNIFICATION

Section 7.1. Liability of the Indemnified Parties .

(a) Duty of the General Partner . The General Partner shall act (i) in good faith and (ii) with the level of skill, care, attention and diligence which would reasonably be expected of an experienced, prudent and professional manager performing in a similar capacity in relation to a portfolio of properties and entities of a similar size, purpose and nature as the Property and the Partnership and its Subsidiaries located in the United States. The officers, directors and employees of the General Partner and its Affiliates shall devote such time, effort and skill as may be reasonably necessary for the conduct of the Partnership’s business.

 

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(b) General . Other than any indemnification obligations pursuant to Section  5.3(b)(iv) , no Indemnified Party shall be liable to the Partnership or to any Partner for any act or omission, including any mistake of fact or error in judgment, taken, suffered or made by such Indemnified Party; provided , that such act or omission did not constitute a Bad Act. No Partner shall be liable to the Partnership or any Partner for any action taken by any other Partner. Notwithstanding anything herein to the contrary, the provisions of this Agreement, to the extent that they expressly restrict the duties (including fiduciary duties) and liabilities of an Indemnified Party otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of such Indemnified Party.

(c) Reliance . Other than any indemnification obligations pursuant to Section  5.3(b)(iv) , an Indemnified Party shall incur no liability in acting in good faith upon any signature, certificate or writing believed by such Indemnified Party to be genuine. Each Indemnified Party may act directly or through such Indemnified Party’s agents or attorneys. Each Indemnified Party may consult with counsel, appraisers, engineers, foresters, accountants and other skilled Persons selected by such Indemnified Party, and, other than any indemnification obligations pursuant to Section  5.3(b)(iv) , shall not be liable for anything done, suffered or omitted in good faith in reliance upon the advice of any of such Persons; provided , that such Persons were selected and monitored in good faith. Other than any indemnification obligations pursuant to Section  5.3(b)(iv) , no Indemnified Party shall be liable to the Partnership or any Partner for any error in judgment made in good faith by a Constituent Partner or employee of such Indemnified Party; provided , that such error does not constitute a Bad Act.

(d) Indemnification by the General Partner . Notwithstanding the foregoing, to the fullest extent permitted by applicable Law, the General Partner shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against the Partnership, any of its Subsidiaries and the Indemnified Parties, each of which shall be a third party beneficiary of this Agreement solely for purposes of this Article 7 , from and against any Loss incurred by them as a result of any act or omission of the General Partner that constitutes a Bad Act.

Section 7.2. Indemnification by the Partnership .

(a) To the fullest extent permitted by applicable Law, the Partnership shall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Indemnified Party, each of which shall be a third party beneficiary of this Agreement solely for purposes of this Article 7 , from and against any Loss incurred by them for any act or omission taken or suffered by each Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided , that such Persons were selected and monitored with reasonable care) in connection with the Partnership business, except that there shall be no indemnification for (i) any act or omission of that Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Indemnified Party pursuant to Section  5.3(b)(iv) or the Losses related thereto.

 

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(b) Prior to any Indemnified Party seeking indemnification from the Partnership pursuant to Section  7.2(a) hereof, such Indemnified Party shall seek payment, to the extent readily available, under any insurance policy of the Partnership or its Subsidiaries (or which provides coverage to the Partnership and/or its Subsidiaries), and the General Partner shall reasonably cooperate with any such Indemnified Party in seeking such payment.

(c) To the extent that a Partner provides indemnification to any Indemnified Party affiliated with such Partner with respect to any Loss for which such Indemnified Party otherwise would be entitled to indemnification from the Partnership pursuant to Section  7.2(a) , such Partner shall be entitled to indemnification from the Partnership for such Losses of such Indemnified Party as required hereunder.

(d) Except as otherwise provided herein, the satisfaction of any indemnification obligation pursuant to Section  7.2(a) or Section  7.2(c) hereof shall be from and limited to the Partnership’s assets. No Partner shall have any personal liability on account of the Partnership’s indemnification obligations pursuant to Section  7.2(a) or Section  7.2(c) .

(e) If an Indemnified Party seeks indemnification from the Partnership pursuant to Section  7.2(a) or Section  7.2(c) , it shall provide Notice thereof to the Partnership and shall present to the Partnership any proposed settlement arrangement giving rise to the indemnification obligation under Section  7.2(a) or Section  7.2(c) for the prior written consent of the Board as a Major Decision. The Partnership shall not be liable to indemnify an Indemnified Party for any Loss arising from any such settlement arrangement effected without such prior written consent. If the General Partner receives any Notice from an Indemnified Party under this Section  7.2(e) , the General Partner will promptly deliver a copy of such Notice to the Board.

(f) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section  7.2(a) or Section  7.2(c) shall be advanced by the Partnership prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder. Notwithstanding anything to the contrary in this Section  7.2(f) , the Partnership shall not advance expenses to an Indemnified Party (i) in connection with any action brought by the Partnership to enforce the obligations of a Partner under this Agreement, or in the case of the General Partner, under the Asset Management Agreement or any other Related Party Agreement or (ii) with respect to a proceeding initiated or brought voluntarily by or on behalf of such Indemnified Party and not by way of defense, except with respect to a proceeding brought to establish or enforce a right to indemnification under this Agreement. No indemnification shall be given for expenses in connection with a proceeding brought by the Partnership to the extent the Indemnified Party is found liable on any portion of the claims in such proceeding. The indemnification of any Indemnified Party in respect of its performance of services for the Partnership or any Subsidiary pursuant to property management agreements, leasing agreements or other agreements, including the Asset Management Agreement, shall not permit duplicate recovery by any such Indemnified Party under such agreement(s) and this Agreement.

 

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(g) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a Notice of claim therefor has been received by the Partnership, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.

(h) The indemnification provided by this Article 7 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Partnership, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity.

(i) An Indemnified Party shall not be denied indemnification in whole or in part under this Article 7 because the Indemnified Party had an interest in the transaction with respect to which the indemnification applies, so long as such transaction did not constitute a Bad Act and was otherwise permitted, or not restricted, by the terms of this Agreement.

(j) Any repeal, modification or amendment of any provision of this Article 7 shall not adversely affect any right or protection of any Person existing at the time of such repeal, modification or amendment. The indemnification obligations of the Partnership pursuant to this Article 7 shall survive termination, liquidation, dissolution and winding up of the Partnership, and, for purposes of this Article 7 , the Partnership shall be treated as continuing in existence.

(k) The Partnership shall have the power to purchase and maintain insurance or other financial arrangements on behalf of any Indemnified Party or any other Person who is or was an agent of the Partnership against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person’s status, as applicable, as an Indemnified Party or an agent, whether or not the Partnership would have the power to indemnify such Person against such liability under the provisions of this Article 7 or the Act.

ARTICLE 8

FINANCIAL AND ACCOUNTING MATTERS

Section 8.1. Books and Record s . Proper and complete records and books of account of the business of the Partnership, including a list of the names, addresses and interests of all Partners, shall be maintained at the Partnership’s principal place of business. Except as otherwise expressly provided herein, such records and books of account shall be maintained on a basis that allows the proper preparation of the Partnership’s financial statements and tax returns and shall be kept in United States dollars. Any Partner, or its duly authorized representatives, shall be entitled, for any purpose reasonably related to its interest as a Partner of the Partnership, and subject to Section  6.4 , to a copy of the list of names, addresses and interests of the Partners. Each Partner may, for any reason reasonably related to its interest as a Partner, examine the books of account, records, reports and other papers relating to the Partnership and its Subsidiaries not legally required to be kept confidential or secret, make copies and extracts therefrom at its own expense and discuss the affairs, finances and accounts of the Partnership and its Subsidiaries with the General Partner and the independent public accountants of the Partnership (and by this provision the Partnership authorizes said accountants to discuss with each Partner the finances, accounts and affairs of the Partnership and its Subsidiaries), all during regular business hours. The General Partner shall maintain the records of the Partnership and its Subsidiaries for six (6) years following termination of the Partnership.

 

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Section 8.2. Audit and Reporting .

(a) The General Partner shall prepare and deliver, or cause to be prepared and delivered, to each Partner within forty-five (45) days after the end of each Fiscal Year, a report as of the end of such Fiscal Year prepared in conformity with accounting principles generally accepted in the United States and consistently applied, setting forth (i) a balance sheet of the Partnership (that will include appropriate footnote disclosure) as of the end of such Fiscal Year, (ii) an income statement for such Fiscal Year and (iii) statements of changes in Partners’ capital and changes in financial position. The annual financial statements referred to in this Section  8.2(a) shall be audited by a nationally recognized accounting firm in accordance with generally accepted auditing standards in the United States and consistently applied, and such accounting firm’s report thereon shall accompany the annual financial statements delivered to each Partner; provided , that the General Partner shall endeavor to provide such audited financial statements within the period stated above, but will not be considered to have breached this Section  8.2(a) if it fails to do so; provided , that the General Partner (A) is diligently working to produce audited financial statements within such timeframe or as promptly thereafter as practicable, (B) provides unaudited financial statements within such forty-five (45) day period and (C) provides such audited financial statements as soon as practicable following such date but in any event no later than ninety (90) days after the end of such Fiscal Year.

(b) After the end of each Fiscal Year, the General Partner shall prepare and deliver, or cause to be prepared and delivered, within forty-five (45) days of the close of such Fiscal Year, a report setting forth in sufficient detail such transactions effected by the Partnership during such Fiscal Year as shall enable each Partner to prepare its U.S. federal income tax return and shall mail such report to (i) each Partner and (ii) each former Partner (or its successor or legal representative) who may require such information in preparing its U.S. federal income tax return.

(c) The General Partner shall prepare and deliver, or cause to be prepared and delivered, to the Partners final versions of the following not later than forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year:

(i) An unaudited report setting forth as of the end of such fiscal quarter (i) a balance sheet of the Partnership as of the end of such Fiscal Quarter and (ii) an income statement for such Fiscal Quarter;

(ii) A calculation of the reserves of the Partnership and the amount of (x) Base Available Cash, Net Available Cash and Distributable Cash Flow (as each such term is defined in the Subsidiary REIT Agreement) and (y) Remaining Distributable Cash Flow;

(iii) A narrative describing the condition of the Property and other Business Assets and operations of the Partnership and its Subsidiaries during such Fiscal Quarter;

(iv) A report of any changes in the status of any major service contracts, any material line item variances from the Annual Budget and any litigation or other legal issues involving the Partnership or its Subsidiaries during such Fiscal Quarter; and

(v) A report providing a detailed description of each Permitted HBU Sale consummated during such Fiscal Quarter.

 

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The General Partner shall meet with the Partners on a quarterly basis to discuss the quarterly reporting and such other topics relating to the business of the Partnership and its Subsidiaries as the Partners may reasonably request.

(d) Not later than fifteen (15) Business Days after the end of each calendar month, the General Partner shall prepare and deliver, or cause to be prepared and delivered, to the Partners a “flash report” containing the following: (i) a reconciliation of actual operating results of the Partnership against the Annual Budget for the most recent calendar month and for the entire Fiscal Year through the end of the relevant calendar month; (ii) a report of any changes in the status of any major service contracts, any material line item variances from the Annual Budget and any litigation or other legal issues involving the Partnership or its Subsidiaries during the calendar month; and (iii) a report of the recordable incident rate for employees, agents and contractors for the prior calendar month.

(e) Promptly following the end of each Fiscal Quarter, but in any event no later than forty-five (45) days following the end of each Fiscal Quarter, the General Partner shall provide to the other Partners a report containing the component amounts described in each clause of the definition of Unlevered Cash Flow, along with supporting information. The General Partner shall provide to the other Partners such other information as is reasonably requested by a Partner in respect of the foregoing report and the calculation of components set forth therein.

(f) In addition to the reporting requirements set forth above, the General Partner shall give notice to the Partners of: (i) any items that will otherwise be reportable under Section  8.2(c)(iv) promptly after the General Partner becomes aware of the change, anticipated material variance or litigation or other legal issue, as applicable; (ii) any known or reported non-conformance with applicable state and local regulations and Sustainable Forestry Initiative standards or principles as in effect on the date hereof and as modified from time to time by Sustainable Forestry Initiative Inc.; and (iii) any proposed transaction between the Partnership or its Subsidiaries, on one hand, and any other Person if such transaction would create a potential conflict of interest on the part of the General Partner in causing the Partnership (or such Subsidiaries) to enter into such transaction, or any other occurrence in east Texas or west Louisiana that would reasonably be expected to give rise to a conflict of interest on the part of the General Partner or its Affiliates in connection with the management and operation of the business and affairs of the Partnership and its Subsidiaries.

(g) The General Partner shall provide the Partners information regarding stand-level activity for the Property and any other Real Estate Asset that includes site preparation and treatment, planting method, stock type, planting density, thinning plan, volume removals by product class, and a detailed inventory plan, and shall include the Partners having access to Geographic Information Systems (GIS) data for the Property and any other Real Estate Asset. The General Partner shall prepare, or cause to be prepared, at the Partnership’s expense, such additional financial reports and other information as the Partners may reasonably determine are appropriate. Additionally, each Partner shall be entitled to the same information as may be provided to the other Partners and to any provider of indebtedness to the Partnership or its Subsidiaries.

 

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(h) Promptly following the Closing, the General Partner will develop (or cause to be developed), and submit to the Board and Subsidiary REIT Board for approval, the following operational policies: (i) a comprehensive compliance program with respect to workplace environmental, health and safety, including policies and procedures to be distributed to employees, agents and contractors regarding workplace environmental, health and safety, (ii) a comprehensive program to be used by the General Partner to track, report and manage workplace environmental, health and safety matters, and (iii) a timeline for the Sustainable Forestry Initiative audits and recertification, as appropriate.

(i) Notwithstanding anything herein to the contrary, in the event that the Asset Management Agreement is terminated pursuant to Section 12, Section 13(c) or Section 13(d) thereof, the General Partner shall cease to have any obligations under this Section  8.2 .

Section 8.3. Valuations .

(a) The Fair Value of the Property and other Business Assets of the Partnership and its Subsidiaries shall be determined in accordance with this Section  8.3 (the “ Valuation Policy ”).

(b) The Partnership will obtain third party valuations of each Real Estate Asset from an independent appraisal firm chosen by the General Partner from those listed on Schedule 8.3(B) attached hereto as of September 30 of each calendar year and shall deliver such valuations to the Partners not later than forty-five (45) days after such date each calendar year. The Partnership will obtain third party valuations of each of (i) the Partnership, (ii) the Business Assets and (iii) the Partnership Interests of each Partner from an independent appraisal firm chosen by the Board as a Major Decision as of December 31 of each calendar year and shall deliver such valuations to the Partners not later than sixty (60) days after the end of such calendar year.

(c) The Fair Value of any asset other than the Real Estate Assets shall be determined by the General Partner taking into account factors that it determines to be appropriate in good faith under the circumstances (it being understood that such determination of Fair Value should comply with United States generally accepted accounting principles, as in effect from time to time).

(d) Unless otherwise determined by the General Partner, for purposes of determining the Fair Value of any asset, including any Real Estate Asset, the value of any Indebtedness shall be equal to its principal outstanding amount plus any accrued interest.

(e) Notwithstanding anything herein to the contrary, in the event that the Asset Management Agreement is terminated pursuant to Section 12, Section 13(c) or Section 13(d) thereof, the General Partner shall cease to have any obligations under this Section  8.3 .

 

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ARTICLE 9

TAX AND REGULATORY MATTERS

Section 9.1. Taxation as Partnership . The Partners intend that the Partnership shall be treated as a partnership and that the Partners shall be taxed as partners for U.S. federal, state and local income tax purposes. No Party shall take any action that would result in the Partnership being taxed as a corporation for such purposes. The Partnership shall not file any election pursuant to Treasury Regulations Section 301.7701-3(c) to be treated as an association taxable as a corporation for U.S. federal income tax purposes. The Partnership shall not elect, pursuant to Section 761(a) of the Code, to be excluded from the provisions of Subchapter K of the Code. The Partnership shall prepare and file with the IRS and other necessary taxing authorities all documents, if any, necessary to elect, confirm and maintain its status as a partnership for U.S. federal, state and local income tax purposes.

Section 9.2. Capital Accounts; Tax Allocations .

(a) Exhibit  D attached to this Agreement provides for the maintenance of Capital Accounts for each Partner and the allocation of Net Income and Net Loss and other items of income, gain, loss, expense and credit to the Partners and is incorporated into this Agreement by reference.

(b) No Partner shall be required to pay to the Partnership or to any other Person the amount of any negative balance which may exist from time to time in such Partner’s Capital Account, including at the time of liquidation of the Partnership.

Section 9.3. Partnership Representative .

(a) Partnership Representative . The General Partner is hereby designated as the “partnership representative” of the Partnership for purposes of Section 6223 of the Code and the Treasury Regulations promulgated thereunder (the “ Partnership Representative ”), and all federal, state and local Tax audits and litigation shall be conducted under the direction of the General Partner. The General Partner shall use reasonable efforts to inform each other Partner of all significant matters that may come to its attention in its capacity as Partnership Representative by giving Notice thereof and to forward to each other Partner copies of all significant written communications it may receive in such capacity. The Partnership Representative shall consult with the Preferred Partners before taking any material actions with respect to Tax matters, including actions relating to (i) an IRS examination of the Partnership commenced under Section 6231(a) of the Code, (ii) a request for administrative adjustment filed by the Partnership under Section 6227 of the Code, (iii) the filing of a petition for readjustment under Section 6234 of the Code with respect to a final notice of partnership adjustment, (iv) the appeal of an adverse judicial decision and (v) the compromise, settlement or dismissal of any such proceedings. The Partnership Representative shall not compromise or settle any Tax audit or litigation affecting the Preferred Partners without the consent of the Preferred Partners holding more than fifty percent (50%) of the Preferred Interests (excluding any Defaulting Partners). Any material proposed action, inaction, or election to be taken by the Partnership Representative (including the appointment of a successor Partnership Representative) in its capacity as such, including the election under Section 6226(a)(1) of the Code, shall require the prior written approval of the Preferred Partners holding more than fifty percent (50%) of the Preferred Interests (calculated

 

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excluding any Defaulting Partners). For the avoidance of doubt, the financial burden of any imputed underpayment or other taxes borne by the Partnership shall be treated as a Tax Advance and shall be allocated amongst the Partners (and the Partnership shall be indemnified in respect of such Tax Advances) as provided in Section  9.5 .

(b) State and Local Tax Law . Subject to Section  4.10 , if any state or local Tax Law provides for a Partnership Representative or Person having similar rights, powers, authority or obligations, the General Partner shall also serve in such capacity, subject to the consent procedures described in Section  9.3(a) to the extent applicable. In all other cases, the General Partner shall represent the Partnership in all Tax matters to the extent allowed by Law and to the maximum extent not prohibited by Law, subject to the consent procedures described in Section  9.3(a) to the extent applicable.

(c) Further Cooperation . Each Partner hereby agrees (i) to take such actions as may be required to effect the General Partner’s designation as the Partnership Representative and (ii) to cooperate to provide any information or take such other actions as may be reasonably requested by the General Partner in order to determine whether any “imputed underpayment” of the Partnership within the meaning of Section 6225 of the Code (an “ Imputed Underpayment ”) may be modified in a manner consistent with the guidance issued by the IRS under Section 6225(c) of the Code. A Partner’s obligation to comply with this Section  9.3 shall survive the transfer, assignment or liquidation of such Partner’s interest in the Partnership.

(d) Expenses of the Partnership Representative . Reasonable expenses incurred by the General Partner as the Partnership Representative or in a similar capacity as set forth in this Section  9.3 shall be borne by the Partnership. Such expenses shall include fees of attorneys and other Tax professionals, accountants, appraisers and experts, filing fees and reasonable out-of-pocket costs. For the avoidance of doubt, the incurrence of any such expenses shall not be deemed a Capital Contribution for purposes of this Agreement and any reimbursement thereof by the Partnership shall not be treated as a distribution of the Partnership for purposes of this Agreement.

Section 9.4. Tax Returns .

(a) Subject to Section  9.4(b) , the Partnership shall cause its Tax adviser, at the Partnership’s expense, to prepare and file, prior to the applicable due date (subject to any applicable extensions), all U.S. federal, state and local Tax returns of the Partnership for each year for which such tax returns are required to be filed.

(b) The General Partner shall cause the Partnership to, and shall cause the Partnership indirectly to cause any Subsidiary of the Partnership to, prepare and file any U.S. Tax return of the Partnership or such Subsidiary of the Partnership which is required by applicable Law to be filed.

(c) The General Partner shall prepare, or cause the Partnership’s accounting firm to prepare, and provide to the Partners the following information relating to tax matters, which shall be at the Partnership’s expense:

 

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(i) No later than December 1 of each Fiscal Year (or the first Business Day thereafter), the General Partner shall provide an estimate of the Partnership’s taxable income for such Fiscal Year, together with a state allocation schedule of the Partnership’s taxable income, a schedule of state apportionment factors, depreciation computations and all other information as requested that will enable each Partner to timely prepare its own federal, state, local and non-U.S. tax returns. For the avoidance of doubt, such estimates will be based on January through October of the applicable year. The General Partner shall provide an updated estimate to the Partners by January 25 (or the first Business Day thereafter) following the close of such Fiscal Year.

(ii) No later than forty-five (45) days after the end of each Fiscal Year, the General Partner shall provide Schedule K-1s for such Fiscal Year to the Partners.

(iii) The Partnership agrees to provide promptly to any Partner that so requests any information reasonably available to it and reasonably necessary or helpful to assist a Partner in reducing or eliminating the withholding taxes that may be imposed on it under the Code in connection with a Transfer, including (but not limited to) Sections 1445 or 1446 of the Code. Without limiting the foregoing, the Partnership shall use commercially reasonable efforts to provide (or to cause the Subsidiary REIT to provide) to any Partner that so requests in writing information or evidence maintained pursuant to Section  4.9(d) and reasonably necessary or helpful to establish the Subsidiary REIT’s status as a D-REIT in respect of any tax period (including the percentage of the value of the stock held directly or indirectly by foreign persons at closing or in respect of any tax period).

Section 9.5. Tax Advances and Obligations .

(a) Tax Advances . To the extent the General Partner determines that the Partnership is required by law to withhold or to make tax payments on behalf of or with respect to any Partner and based on the residency, domicile or other tax state of such Partner (including, for the avoidance of doubt, any Tax incurred by the Partnership pursuant to Section 6225 or Section 1446(f) of the Code or FATCA) (“ Tax Advances ”), the General Partner shall withhold such amounts and make such tax payments as so required. For this purpose, the General Partner shall reasonably determine the portion of any Imputed Underpayment attributable to each Partner or former Partner. All Tax Advances made on behalf of a Partner (other than by way of withholding on amounts otherwise distributable) shall, at the option of the General Partner, be promptly paid to the Partnership by the Partner on whose behalf such Tax Advances were made or be repaid by reducing the amount of the current or next succeeding distribution or distributions which would otherwise have been made to such Partner or, if such distributions are not sufficient for that purpose, by so reducing the proceeds of liquidation otherwise payable to such Partner; provided , that (i) if the amount of the next succeeding distribution or distributions or proceeds of liquidation is reduced, such amount shall include an amount to cover interest on the Tax Advance at the lesser of (A) the rate of two percent (2%) per annum over the Reference Rate and (B) the Maximum Rate; provided , that no interest shall be charged unless the Partnership provides written notice to the Partner of the Tax Advance and the Member does not repay such Tax Advance to the Partnership within 10 Business Days of receipt of such notice, (ii) should the General Partner elect to so reduce such distributions or proceeds, the General Partner shall use commercially reasonable efforts to notify the applicable Partner of its intention to do so, and (iii) in the event that a Partner pays any such amounts to the Partnership, such payment shall not constitute a Capital Contribution. Whenever the General Partner makes any such reduction of the proceeds

 

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payable to a Partner pursuant to the preceding sentence for repayment of a Tax Advance by such Partner or a Tax Advance is made by way of withholding on amounts otherwise distributable, for all other purposes of this Agreement, such Partner may be treated as having received all distributions (whether before or upon liquidation) unreduced by the amount of such Tax Advance. If a Tax Advance is required to be made by the Partnership and the General Partner determines that such amount is allocable to the interest in the Partnership of a Person that is at such time a Partner, such Tax Advance shall be treated as being made on behalf of or with respect to such Partner for purposes of this Section  9.5(a) whether or not the tax in question applies to a taxable period of the Partnership during which such Partner held an interest in the Partnership. Unless otherwise agreed to by the General Partner in writing, each Partner shall indemnify and hold harmless the Partnership and the other Partners from and against any liability with respect to Tax Advances required on behalf of or with respect to such Partner. To the extent that any liability with respect to a Tax Advance relates to a former Partner that has withdrawn or sold, assigned, pledged, mortgaged, charged or otherwise transferred all or part of its interest in the Partnership, such former Partner (which in the case of a partial withdrawal, sale, assignment, pledge, mortgage, charge or other transfer shall include a continuing Partner with respect to the portion of its interest in the Partnership so withdrawn, sold, assigned, pledged, mortgaged, charged or transferred) shall indemnify the Partnership for its allocable portion of such liability, unless otherwise agreed to by the General Partner in writing. Each Partner acknowledges that, notwithstanding the withdrawal, sale, assignment, pledge, mortgage, charge, or other transfer of all or any portion of its interest in the Partnership, it may remain liable, pursuant to this Section  9.5(a) , for Tax Advances with respect to its allocable share of income and gain of the Partnership for the Partnership’s taxable years (or portions thereof) prior to such withdrawal, sale, assignment, pledge, mortgage, charge, or other transfer, as applicable (including any such liabilities imposed under Section 6225 of the Code or Section 1446(f) of the Code).

(b) Information and Certifications Regarding Owners . Each Partner shall, or shall cause its underlying beneficial owners or any direct or indirect transferee of its Partnership Interest to, use commercially reasonable efforts to timely deliver to the Partnership any documentation reasonably required to be provided under FATCA (including any newly effective versions of IRS Form W-8 and the documentation required thereunder) or reasonably requested by the Partnership sufficient for the Partnership to comply with its obligations under Sections 1441-1474 of the Code, including FATCA. Each Partner (other than the General Partner or other Partners that are Affiliates of the General Partner) further consents to any necessary or appropriate disclosure or reporting of such information by the General Partner to any governmental or taxing authority.

(c) BCI Partners . If the BCI Partners provide to the Partnership one or more properly executed and completed IRS Forms W-8IMY, W-8EXP and/or W-8BEN-E or any such other applicable documentation claiming the benefit of an exemption or reduction of withholding tax, based on the provision of such tax form, the Partnership and the General Partner, to the extent permitted by law, will take the foreign government status, qualified foreign pension fund status, treaty entitlement status and/or domestic tax status of the BCI Partners into account in determining the amount of withholding taxes to be withheld or imposed. Other than with respect to income classified as gain from the sale or exchange of a United States real property interest described in Section 897(c)(1)(A) of the Code (including as a result of the application of Section 897(h)(1) of the Code, as determined by the General Partner) allocated to a BCI Partner that does not constitute

 

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a qualified foreign pension fund or a domestic entity, the Partnership and the General Partner hereby agree that neither will withhold on any amounts (or any amount in excess of any claimed entitlement to a reduced rate) attributable to the BCI Partners or as a result of the BCI Partners’ interest in the Partnership unless the General Partner has notified the BCI Partners, in writing, as promptly as reasonably practicable after becoming aware that any withholding taxes are likely to be withheld or imposed with respect to any allocation, payment or distribution to the BCI Partners and agrees prior to withholding any amounts in respect of such BCI Partner to use reasonable best efforts to consult with the BCI Partner and to work in good faith with the BCI Partner to minimize any such withholding taxes.

Section 9.6. Limitation of Liability of Partners and Affiliates . Except as provided by the Act or other applicable Law and subject to the obligations to make Capital Contributions and to indemnify the Partnership and the other Partners as provided in Article 7 and as otherwise required by this Agreement or by applicable Law, no Partner shall have any personal liability whatsoever in its capacity as a Partner, whether to the Partnership, to any of the Partners or to the creditors of the Partnership, for the debts, liabilities, contracts or other obligations of the Partnership (whether arising in contract, tort or otherwise) or for any of the Partnership’s losses.

ARTICLE 10

TERMINATION; DISSOLUTION AND WINDING UP

Section 10.1. Termination . Except as otherwise provided, the Term shall continue until the earlier of (i) the termination of the Partnership’s Term as set forth in Section  1.4 , (ii) the date on which the Partnership has disposed of and reduced to cash substantially all of its Business Assets, (iii) the date upon which there are no limited partners of the Partnership, unless the Partnership is continued in accordance with the Act, (iv) the entry of a decree of judicial dissolution of the Partnership under Section 17-802 of the Act and (v) an event of withdrawal of a general partner (including the General Partner) under the Act; provided , however , the Partnership shall not be dissolved or required to be wound up upon an event of withdrawal of a general partner (including the General Partner) described in clause (v) of this Section  10.1 if (A) at the time of such event of withdrawal, there is at least one other general partner of the Partnership who carries on the business of the Partnership (any remaining general partner being hereby authorized to carry on the business of the Partnership) or (B) within ninety (90) days after the occurrence of such event of withdrawal, all remaining partners agree in writing to continue the business of the Partnership and to the appointment, effective as of the date of the event of withdrawal, of one or more additional general partners of the Partnership. The Partnership shall not be dissolved or terminated by reason of the Bankruptcy, removal, withdrawal, dissolution or admission of any Partner (including the General Partner).

Section 10.2. Effect of Termination . Except as agreed otherwise by the Partners, termination of the Term shall be without prejudice to any liability or obligation in respect of any matters, undertakings or conditions which have not been observed or performed by each, or the relevant, Partner prior to termination, or the date on which the relevant Partner ceases to hold any Partnership Interests.

 

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Section 10.3. Survival . This Section  10.3 , and Section  10.4 and Article 11 of this Agreement and all related defined terms shall continue to apply to all Partners after dissolution of the Partnership, and any other provisions of this Agreement to the extent relevant to the interpretation or enforcement of or to give effect to such Section of this Agreement shall continue to apply for an indefinite period.

Section 10.4. Dissolution of the Partnership .

(a) On termination of the Term, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating the Business Assets and satisfying the claims of its creditors and Partners. The General Partner, or if the General Partner has been removed or if the Alternative Voting System is in effect, a liquidator (the General Partner or such liquidator, for purposes hereof, the “ Liquidator ”) as is appointed by the Board as a Major Decision, shall be responsible for overseeing the winding up of the Partnership. The Business Assets shall be liquidated only to the extent determined to be appropriate by the Liquidator or as required under Section  5.7 , and the proceeds thereof shall be applied and distributed by the Liquidator in the following order:

(i) to creditors of the Partnership (including, if applicable, the Partners or any of their Affiliates), to the extent otherwise permitted by law, in satisfaction of liabilities of the Partnership, including any unpaid Deferred Asset Management Fees (unless this Agreement was terminated for Cause) the expenses of the winding-up, liquidation and dissolution of the Partnership (whether by payment or the making of reasonable provision for payment thereof);

(ii) provision for such reserves as the Board deems necessary or desirable (determined as a Major Decision); and

(iii) the remaining proceeds, if any, plus any remaining Business Assets of the Partnership, shall be applied and distributed in accordance with Article 3 . For purposes of the application of this Section  10.4(a)(iii) and determining Capital Accounts on dissolution, all unrealized gains, losses and accrued income and deductions of the Partnership shall be treated as realized and recognized immediately before the date of distribution.

After such distribution, the Liquidator shall execute, acknowledge and cause to be filed articles of dissolution of the Partnership under the Act, at which time the Partnership shall be terminated.

(b) Unless six (6) months prior to the fifth (5th) anniversary of the Effective Date, a majority of the Board Members appointed by the Preferred Partners agree to postpone the winding up of the Partnership, the Liquidator shall take all appropriate actions (including the actions specified in Section  10.4(a) ) to arrange for the orderly termination of the Partnership and liquidation of the Business Assets as of the fifth (5th) anniversary of the Effective Date.

(c) Unless six (6) months prior to the seventh (7th) anniversary of the Effective Date, all of the Preferred Partners agree to postpone the winding up of the Partnership, the Liquidator shall take all appropriate actions (including the actions specified in Section  10.4(a) ) to arrange for the orderly termination of the Partnership and liquidation of the Business Assets as of the seventh (7th) anniversary of the Effective Date.

 

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(d) When arranging for the orderly termination of the Partnership and the liquidation of the Business Assets, the Liquidator shall use commercially reasonable efforts to structure such orderly termination in a manner that takes into account the tax consequences to each of the Partners, including the consequences of structuring the liquidation of the Business Assets as a sale of shares in the Subsidiary REIT.

Section 10.5. No Partition . No Partner has any interest in specific property of the Partnership. Without limiting the foregoing, each Partner irrevocably waives during the term of the Partnership any right that it may have to maintain any action for partition with respect to the property of the Partnership or to require the redemption of its interest in the Partnership. The Partners acknowledge that irreparable damage would be done to the goodwill and reputation of the Partnership if any Partner should bring an action in court to dissolve the Partnership under circumstances where dissolution is not required by Section  10.4 . This Agreement has been drawn carefully to provide fair treatment of all parties and equitable payment in liquidation of the Partnership. Accordingly, except where the Liquidator has failed to liquidate the Partnership as required by Section  10.4 , each Partner hereby waives and renounces such Partner’s right to initiate legal action to seek any partition, the appointment of a receiver or trustee to liquidate the Partnership or to seek a decree of judicial dissolution of the Partnership on the ground that (a) it is not reasonably practicable to carry on the business of the Partnership in conformity with the Act or this Agreement, or (b) dissolution is reasonably necessary for the protection of the rights or interests of the complaining Partner. Damages for breach of this Section  10.5 may be offset against distributions by the Partnership to which such Partner would otherwise be entitled.

ARTICLE 11

NOTICES

Section 11.1. Notices . All notices, requests, demands and other communications hereunder (each, a “ Notice ”) shall be in writing and shall be deemed to have been duly given if sent to a Party at its business address set forth on Exhibit E hereto (and to its designees if written notice specifying the Person and address of such designee is provided to the Person required to give notice). Any notice shall be deemed to have been duly given if personally delivered or sent by certified, registered or overnight mail or courier or by confirmed e-mail, and shall be deemed received, (a) if sent by certified or registered mail, return receipt requested, when actually received, (b) if sent by overnight mail or courier, when actually received, (c) if sent by e-mail, on the date sent; provided , that confirmatory notice is sent immediately thereafter by overnight courier or first-class mail, postage prepaid in respect of notices provided under Section  2.1(e) or Section  5.3 , and (d) if delivered by hand, on the date of receipt.

Section 11.2. Change of Address . A Party may change the person(s) to receive Notices or the address to which Notices hereunder are to be sent to it by giving Notice of such change of address to the Partnership and each other Partner in the manner provided in Section  11.1 .

 

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ARTICLE 12

MISCELLANEOUS

Section 12.1. Entire Agreement . This Agreement, including all Exhibits attached hereto, the Subsidiary REIT Agreement, as well as any and all other written agreement between the Partnership and a Partner, constitute the entire agreement among the Parties pertaining to the subject matter hereof. This Agreement supersedes any prior agreement or understanding among the Parties with respect to the subject matter hereof, but shall not amend, modify, supersede or in any way affect any other agreement or understanding among the Parties or their Affiliates that does not relate to the subject matter hereof.

Section 12.2. Amendments .

(a) Except as otherwise provided in this Section  12.2 , and notwithstanding any contrary provision of the Act, all amendments to this Agreement shall be in writing and shall be approved by (x) a majority of the Percentage Interest of the Partners holding Common Interest and (y) a majority of the Percentage Interest of the Partners holding Preferred Interest; provided , that no amendment of this Agreement shall (x) without the approval of all Partners, (1) amend this Section  12.2(a) , (2) alter the principal purposes of the Partnership, (3) change the status of the Partnership as a partnership for U.S. federal income tax purposes, (4) modify or alter the indemnification obligations of the Partnership under Article 7 hereof, (5) modify the Term (including the related provisions of Section  1.4 and Article 10) or (6) modify any provision of Article 3 , Section  4.1 , Section  4.2 , Section  4.3 , Section  4.4 , Section  4.10 , Section  4.11 or Section  4.16 or any of the defined terms contained therein or (y) without the affirmative vote of the affected Partner, (1) adversely affect the limited liability of a Partner, (2) alter the rights of a Partner under Article 4 or (3) adversely or disproportionately affect the economic terms or governance terms or Partnership Interest of a Partner, including with respect to Net Income, Net Loss, other items or any Partnership distributions.

(b) Except as provided in Section  12.2(a) , the Board, acting by Major Decision, may cause this Agreement to be amended, by causing an instrument of amendment to be executed and giving each Partner notice thereof, without the consent of any Partner:

(i) to satisfy any requirements, conditions, guidelines or opinions contained in any applicable opinion, directive, order, ruling or regulation of any governmental authority (including the U.S. Securities and Exchange Commission, the U.S. Internal Revenue Service, or any other federal or state or non-U.S. governmental agency) or in any applicable statute or law (including any federal or state or non-U.S. statute), compliance with which the Board deems to be in the best interests of the Partnership and the Partners, provided , that the Board reasonably determines that such amendment is not likely to have a material adverse impact on the likelihood that the Partnership will achieve its investment objectives;

(ii) as may be necessary or advisable to comply with any anti-money laundering or anti-terrorist laws, rules, regulations, directives or special measures; and

(iii) to give effect to the admission or withdrawal of any Partner, or the Transfer, sale or redemption of any Partnership Interest, in accordance with the terms hereof.

 

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(c) The General Partner may cause this Agreement to be amended, by causing an instrument of amendment to be executed and giving each Partner notice thereof, without the consent of any Partner, to give effect to the admission or withdrawal of any Partner, or the Transfer, sale or redemption of any Partnership Interest, in each case, in accordance with, and subject to, the terms hereof (including Section  2.2(b)(ii) , Section  4.3 and Section  5.6 ).

(d) The Partnership will provide each Partner with a copy of any amendment to this Agreement made pursuant to this Section  12.2 promptly after such amendment has been made.

Section 12.3. Governing Law; Jurisdiction . This Agreement and all disputes or controversies arising out of or relating to this Agreement or the rights of the Partners and transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware. Each Partner hereby irrevocably consents and agrees that any action, suit or proceeding with respect to this Agreement shall be brought and determined only in the exclusive jurisdiction of the Court of Chancery of the State of Delaware, the courts of the United States of America for the District of Delaware, and appellate courts thereof, and each Party hereby consents to the jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each Partner further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each Partner hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. EACH PARTNER, FOR ITSELF AND ON BEHALF OF ITS AFFILIATES, HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION, LAWSUIT, OR PROCEEDING, WHETHER IN CONTRACT OR IN TORT, RELATING TO ANY DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION DESCRIBED IN THIS AGREEMENT OR TO ANY DISPUTE BETWEEN THE PARTIES (INCLUDING DISPUTES WHICH ALSO INVOLVE OTHER PERSONS).

Section 12.4. Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

Section 12.5. No Third Party Beneficiaries . Subject to Section  7.1(d) , Section  7.2, and Section  5.8 , the provisions of this Agreement are for the sole and exclusive benefit of the Parties and their permitted successors and assigns and shall not be deemed to create any rights for the benefit of any other Person except as specifically provided herein.

 

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Section 12.6. Severability . If any provision of this Agreement or the application of such provision to any Party or circumstance shall be held invalid or unenforceable, the remainder of this Agreement or the application of that provision to another Party or circumstance shall not be affected thereby.

Section 12.7. Enforceability . It is the intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permitted by Law. Accordingly, if any particular paragraph(s), subparagraph(s) or portion(s) of this Agreement shall be held invalid or unenforceable as written or otherwise determined to be too broad to permit the enforcement of such paragraph(s), subparagraph(s) or portion(s) to its fullest extent, then such paragraph(s), subparagraph(s) or portion(s) will be enforced to the maximum extent permitted by Law, and the Parties hereby consent and agree that such scope may be judicially limited or modified accordingly in any proceeding brought to enforce such restriction to the extent necessary to be valid or enforceable. Such modification shall not affect the remaining provisions of this Agreement. To the extent any paragraph(s), subparagraph(s) or portion(s) of this Agreement are found invalid or unenforceable and cannot be modified to be valid or enforceable, then the Agreement shall be construed as if those paragraph(s), subparagraph(s) or portion(s) were deleted, and all remaining terms and provisions shall be enforceable in law or equity in accordance with their terms.

Section 12.8. No Waiver . No waiver by a Party of any default, breach or violation of this Agreement shall be deemed to be a waiver of any other default, breach or violation of any kind or nature, whether or not similar to the default, breach or violation that has been waived, and no failure to enforce a particular provision in one instance shall not be deemed a waiver or modification of rights or preclude the enforcement thereafter. No acceptance of payment or performance by a Party after any such default, breach or violation shall be deemed to be a waiver of any default, breach or violation of this Agreement, whether or not such Party knows of such default, breach or violation at the time it accepts such payment or performance. Subject to any applicable statutes of limitation, no failure or delay on the part of a Party to exercise any right it may have under this Agreement shall prevent its exercise by such Party, and no such failure or delay shall operate as a waiver of any default, breach or violation of this Agreement.

Section 12.9. Captions . The captions and headings used in this Agreement are for convenience only and do not in any way affect, limit, amplify or modify the terms and provisions hereof.

Section 12.10. Further Assurances . Each Partner shall execute and deliver any additional documents and instruments and perform any additional acts that may be reasonably necessary to effectuate and perform the provisions of this Agreement and the transactions contemplated herein.

Section 12.11. Counterparts . This Agreement may be executed in several counterparts. If so executed, each of such counterparts shall be deemed an original for all purposes and all counterparts shall, collectively, constitute one agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart and photocopies may be used.

 

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Section 12.12. PDF Signature . Any Party may deliver its signature to this Agreement, if applicable, or any Notice or other document described in this Agreement or relating to the Partnership by portable document format (PDF) by electronic mail (and in accordance with Article 11 , if applicable) to the proper recipient. Any document signed by a Party by PDF by electronic mail and reasonably believed by the recipient to have been sent by or on behalf of that Party shall (a) be binding upon and fully enforceable against that Party as though it had delivered a manually-signed counterpart to the recipient and (b) be accepted by any court as equivalent to a manually-signed counterpart for purposes of any evidentiary rule, and no Party will object to the effectiveness or validity of such PDF signature.

Section 12.13. Time of the Essence . Time is of the essence in the performance of each and every term of this Agreement.

Section 12.14. Usury Savings . It is intended that any rate of interest provided herein shall never exceed the maximum rate, if any, which may be legally charged (“ Maximum Rate ”), and if the provisions for interest contained in any provision of this Agreement would result in a higher rate than the Maximum Rate, interest shall nevertheless be limited to the Maximum Rate, and any amounts which may be applied toward interest in excess of the Maximum Rate shall be applied to the reduction of principal, or, at the lawfully exercised option of the applicable lender, returned to the applicable borrower.

Section 12.15. Waiver; Privilege . The Partnership has initially selected Alston & Bird LLP (“ Partnership Counsel ”) as legal counsel to the Partnership. Partnership Counsel may also be counsel to the General Partner, the CTT Partner or the Asset Manager, and one or more of their respective Affiliates may be represented by the same counsel. The attorneys, accountants and other experts who perform services for the Partnership may also perform services for the General Partner, the CTT Partner, the Asset Manager and any of their respective Affiliates. The General Partner may, without the consent of any other Partner, execute on behalf of the Partnership and the Partners any consent to the representation of the Partnership, the General Partner, the CTT Partner, the Asset Manager and any of their respective Affiliates that Partnership Counsel may request pursuant to applicable rules of ethics or professional conduct or similar rules in any applicable jurisdiction (“ Rules ”). Each Preferred Partner acknowledges that Partnership Counsel does not represent any Preferred Partner with respect to the Partnership in the absence of a clear and explicit agreement to such effect between the Preferred Partner and Partnership Counsel (and in any case only to the extent specifically set forth in that agreement), and that in the absence of any such agreement Partnership Counsel shall owe no duties to a Preferred Partner with respect to the Partnership, whether or not Partnership Counsel has in the past represented or is currently representing such Preferred Partner with respect to other matters. In the event any dispute or controversy arises between any Preferred Partner and the Partnership, or between any Preferred Partner or the Partnership, on the one hand, and the General Partner (or any of its Affiliates that Partnership Counsel represents), on the other hand, then each Preferred Partner agrees that Partnership Counsel may represent either the Partnership or the General Partner (or its Affiliates), or both, in any such dispute or controversy to the extent permitted by the Rules, and each Preferred Partner hereby consents to such representation. Each Preferred Partner further acknowledges that, whether or not Partnership Counsel has in the past represented such Preferred Partner with respect to other matters, Partnership Counsel has not represented the interests of any Preferred Partner in the preparation and negotiation of this Agreement. In addition, Partnership Counsel does not undertake to monitor the compliance of the General Partner, the CTT Partner, the Asset Manager or their respective Affiliates with the terms set forth in this Agreement or the Asset Management Agreement, nor does Partnership Counsel monitor compliance with applicable laws.

Remainder of page left intentionally blank; signature pages follow.

 

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IN WITNESS WHEREOF, each Party hereby executes this Agreement as of the Effective Date.

 

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]

[Limited Partnership Agreement of TexMark Timber Treasury, L.P.]