Exhibit 10.1

FOURTH AMENDED AND RESTATED ADVISORY AGREEMENT

AMONG

JONES LANG LASALLE INCOME PROPERTY TRUST, INC.,

JLLIPT HOLDINGS LP

AND

LASALLE INVESTMENT MANAGEMENT, INC.

    

TABLE OF CONTENTS

FOURTH AMENDED AND RESTATED ADVISORY AGREEMENT

THIS FOURTH AMENDED AND RESTATED ADVISORY AGREEMENT (this “Agreement”), dated as of October 16, 2019 (the “Effective Date”), is by and among Jones Lang LaSalle Income Property Trust, Inc., a Maryland corporation (the “Company”), JLLIPT Holdings LP, a Delaware limited partnership (the “Operating Partnership”) and LaSalle Investment Management, Inc., a Maryland corporation (the “Advisor” and together with the Company and the Operating Partnership, the “Parties”). Capitalized terms used herein shall have the meanings ascribed to them in Section 1 below.

W I T N E S S E T H

WHEREAS, the Company, the Operating Partnership and the Advisor entered into that certain Third Amended and Restated Advisory Agreement, dated April 1, 2018 (the “Third Amended and Restated Advisory Agreement”), the term of which was initially renewed on May 8, 2018 for a one-year term expiring on June 5, 2019 and further renewed on May 7, 2019 for an additional one-year term expiring on June 5, 2020; and

WHEREAS, the Parties now desire to amend and restate the Third Amended and Restated Advisory Agreement pursuant to the terms hereof.

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the Parties agree as follows:

As used in this Agreement, the following terms have the definitions hereinafter indicated:

Acquisition Expenses. Any and all expenses incurred by the Company, the Operating Partnership, the Advisor, or any of their Affiliates in connection with the selection, acquisition, origination, making or development of any Investments, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option payments on property not acquired, accounting fees and expenses, title insurance premiums, and the costs of performing due diligence.

Advisor. LaSalle Investment Management, Inc., a Maryland corporation, any successor advisor to the Company, the Operating Partnership or any Person to which LaSalle Investment Management, Inc. or any successor advisor subcontracts substantially all of its functions. Notwithstanding the foregoing, a Person hired or retained by LaSalle Investment Management, Inc. to perform sub-advisory or property management and related services for the Company or the Operating Partnership that is not hired or retained to perform substantially all of the functions of LaSalle Investment Management, Inc. with respect to the Company or the Operating Partnership as a whole shall not be deemed to be an Advisor.

Advisory Fee. The fee payable to the Advisor pursuant to Section 10.

Affiliate or Affiliated. With respect to any Person, (i) any Person directly or indirectly owning, controlling or holding, with the power to vote, 10.0% or more of the outstanding voting securities of such other Person; (ii) any Person 10.0% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power to vote, by such other Person; (iii) any Person directly or indirectly

controlling, controlled by or under common control with such other Person; (iv) any executive officer, director, trustee or general partner of such other Person; and (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner.

Affiliated Director. A Director who is also a director, manager, officer or employee of the Advisor or an Affiliate of the Advisor or any corporate parent of an Affiliate.

Articles of Incorporation. The Articles of Incorporation of the Company, as amended from time to time.

Average Invested Assets. For a specified period, the average of the aggregate book value of the assets of the Company invested, directly or indirectly, in Investments before deducting depreciation, bad debts or other non-cash reserves, computed by taking the average of such values at the end of each month during such period.

Board. The board of directors of the Company, as of any particular time.

Business Day. Any day on which the New York Stock Exchange is open for unrestricted trading.

Bylaws. The bylaws of the Company, as the same are in effect from time to time.

Cause. With respect to the termination of this Agreement, fraud, criminal conduct, willful misconduct or willful or negligent breach of fiduciary duty by the Advisor in connection with performing its duties hereunder.

Class A NAV. The portion of the NAV allocable to Class A Shares, calculated pursuant to the Valuation Guidelines.

Class A Shares. Shares of the Company’s $0.01 par value common stock that have been designated as Class A.

Class A Share NAV. The portion of the Company Separate NAV allocable to Class A Shares, calculated pursuant to the Valuation Guidelines.

Class A Stockholders. The registered holders of the Class A Shares.

Class A Unit NAV. The portion of the Operating Partnership NAV allocable to Class A Units, calculated pursuant to the Valuation Guidelines.

Class A Unitholders. The holders of the Class A Units.

Class A Unit. A Unit entitling the holder thereof to the rights of a holder of Class A Units as provided in the Operating Partnership Agreement.

Class A-I NAV. The portion of the NAV allocable to Class A-I Shares, calculated pursuant to the Valuation Guidelines.

Class A-I Shares. Shares of the Company’s $0.01 par value common stock that have been designated as Class A-I.

Class A-I Share NAV. The portion of the Company Separate NAV allocable to Class A-I Shares, calculated pursuant to the Valuation Guidelines.

Class A-I Stockholders. The registered holders of the Class A-I Shares.

Class A-I Unit NAV. The portion of the Operating Partnership NAV allocable to Class A-I Units, calculated pursuant to the Valuation Guidelines.

Class A-I Unitholders. The holders of the Class A-I Units.

Class A-I Unit. A Unit entitling the holder thereof to the rights of a holder of Class A-I Units as provided in the Operating Partnership Agreement.

Class D NAV. The portion of the NAV allocable to Class D Shares, calculated pursuant to the Valuation Guidelines.

Class D Shares. Shares of the Company’s $0.01 par value common stock that have been designated as Class D.

Class D Share NAV. The portion of the Company Separate NAV allocable to Class D Shares, calculated pursuant to the Valuation Guidelines.

Class D Stockholders. The registered holders of the Class D Shares.

Class D Unit NAV. The portion of the Operating Partnership NAV allocable to Class D Units, calculated pursuant to the Valuation Guidelines.

Class D Unitholders. The holders of the Class D Units.

Class D Unit. A Unit entitling the holder thereof to the rights of a holder of Class D Units as provided in the Operating Partnership Agreement.

Class M NAV. The portion of the NAV allocable to Class M Shares, calculated pursuant to the Valuation Guidelines.

Class M Shares. Shares of the Company’s $0.01 par value common stock that have been designated as Class M.

Class M Share NAV. The portion of the Company Separate NAV allocable to Class M Shares, calculated pursuant to the Valuation Guidelines.

Class M Stockholders. The registered holders of the Class M Shares.

Class M Unit NAV. The portion of the Operating Partnership NAV allocable to Class M Units, calculated pursuant to the Valuation Guidelines.

Class M Unitholders. The holders of the Class M Units.

Class M Unit. A Unit entitling the holder thereof to the rights of a holder of Class M Units as provided in the Operating Partnership Agreement.

Class M-I NAV. The portion of the NAV allocable to Class M-I Shares, calculated pursuant to the Valuation Guidelines.

Class M-I Shares. Shares of the Company’s $0.01 par value common stock that have been designated as Class M-I.

Class M-I Share NAV. The portion of the Company Separate NAV allocable to Class M-I Shares, calculated pursuant to the Valuation Guidelines.

Class M-I Stockholders. The registered holders of the Class M-I Shares.

Class M-I Unit NAV. The portion of the Operating Partnership NAV allocable to Class M-I Units, calculated pursuant to the Valuation Guidelines.

Class M-I Unitholders. The holders of the Class M-I Units.

Class M-I Unit. A Unit entitling the holder thereof to the rights of a holder of Class M-I Units as provided in the Operating Partnership Agreement.

Code. Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

Company. Company shall have the meaning set forth in the preamble of this Agreement.

Company Separate Annual Total Return. As further described in Section 10, a portion of the investment return provided to Stockholders, which shall be calculated independently for the Class A Shares, the Class D Shares, the Class A-I Shares, the Class M-I Shares and the Class M Shares, and shall be equal to, for all such Shares outstanding during the calendar year (or such other applicable period), (i) Distributions declared and accrued per Class A Share, Class D Share, Class A-I Share, Class M-I Share or Class M Share over the calendar year (or such other applicable period), but only to the extent such Distributions are Company Separate Distributions, plus (ii) any change in Class A Share NAV per Class A Share, Class A-I Share NAV per Class A-I Share, Class D Share NAV per Class D Share, Class M-I Share NAV per Class M-I Share or Class M Share NAV per Class M Share over the calendar year (or such other applicable period).

Company Separate Distributions. Distributions made by the Company other than Distributions of proceeds received by the Company from the Operating Partnership, the Company’s disposition of Units or other interests in the Operating Partnership or otherwise attributable to the Company’s ownership of Units or other interests in the Operating Partnership; provided, however, that Company Separate Distributions shall include Distributions made by the Company to the extent such Distributions are proceeds from the disposition of Units at a price in excess of the NAV of such Units.

Company Separate NAV. The NAV of the Company other than any NAV attributable to the Company’s ownership of Units or any other interest in the Operating Partnership.

Dealer Manager. LaSalle Investment Management Distributors, LLC, or such other Person or entity selected by the Board to act as the dealer manager for an Offering.

Dealer Manager Fee. The dealer manager fee payable to the Dealer Manager for serving as dealer manager for an Offering as described in the Prospectus or Private Placement Memorandum for such Offering.

Director. A member of the Board.

Distributions. Any distributions of money or other property by the Operating Partnership or Company, as applicable, to owners of Units or Shares, as applicable, including distributions that may constitute a return of capital for federal income tax purposes.

DST Organizational and Offering Expenses. Any and all cumulative costs and expenses incurred by and to be paid from the assets of the Company or any of its subsidiaries, including amounts reimbursable to the Advisor and its Affiliates pursuant and subject to Section 11(b)(ii) hereof, in connection with the formation and qualification of any private offerings of Delaware statutory trust beneficial interests in DST Properties conducted by the Company or any of its subsidiaries and the subsequent marketing and distribution of such securities, including, without limitation, the following: total underwriting and brokerage discounts and commissions (including fees of the underwriters' attorneys), any expense allowance granted by the Company or its subsidiaries to the underwriter (which may include a dealer manager) or any reimbursement of expenses of the underwriter by the Company or its subsidiaries, expenses for printing, engraving, mailing and distributing costs, salaries of employees while engaged in sales activity, telephone and other telecommunications costs, all advertising and marketing expenses (including the costs related to investor and broker-dealer sales meetings), charges of transfer agents, registrars, trustees, escrow holders, depositories, experts, fees, expenses and taxes related to the qualification of the sale of the securities under federal and state laws, including accountants' and attorneys’ fees.

DST Properties. Real properties that meet the following criteria: (i) Delaware statutory trust beneficial interests in such properties have been sold by the Company or any Affiliate or subsidiary of the Company to third-party investors and (ii) such properties are being leased by the Company or any Affiliate from the Delaware statutory trust.

Effective Date. Effective Date shall have the meaning set forth in the Preamble.

Excess Amount. Excess Amount shall have the meaning set forth in Section 13.

Expense Year. Expense Year shall have the meaning set forth in Section 13.

Fixed Component. The non-variable component of the Advisory Fee as described in Section 10(b).

GAAP. Generally accepted accounting principles as in effect in the United States of America from time to time.

Gross Proceeds. The aggregate purchase price of all Shares sold for the account of the Company through all Public Offerings, without deduction for Selling Commissions, volume discounts, any due

diligence expense reimbursement or Organizational and Offering Expenses. For the purpose of computing Gross Proceeds from the sale of any Shares in a Public Offering, the purchase price of any Share for which reduced Selling Commissions are paid to the Dealer Manager or a Participating Broker-Dealer (where net proceeds to the Company are not reduced) shall be deemed to be the full amount of the offering price per such Share pursuant to the Prospectus for such Public Offering without reduction.

Indemnitee. Indemnitee and Indemnitees shall have the meaning set forth in Section 20 herein.

Independent Director. Independent Director shall have the meaning set forth in the Articles of Incorporation.

Independent Valuation Advisor. A firm that is (i) engaged to a substantial degree in the business of conducting appraisals on commercial real estate properties, (ii) not Affiliated with the Advisor and (iii) engaged by the Company with the approval of the Board to appraise the Real Properties pursuant to the Valuation Guidelines.

Investment Company Act. The Investment Company Act of 1940, as amended.

Investment Guidelines. The investment guidelines adopted by the Board, as amended from time to time, pursuant to which the Advisor has discretion to acquire and dispose of Investments for the Company without the prior approval of the Board.

Investments. Any investments by the Company or the Operating Partnership in Real Property and Real Estate Related Assets.

Joint Ventures. The joint venture or partnership arrangements (other than with the Operating Partnership and including in the form of limited liability companies) in which the Company or any of its subsidiaries is a co-venturer, general partner, limited partner or otherwise, which are established to acquire Real Properties.

Loans. Any indebtedness or obligations in respect of borrowed money or evidenced by bonds, notes, debentures, deeds of trust, letters of credit or similar instruments, including mortgages and mezzanine loans.

NASAA REIT Guidelines. The Statement of Policy Regarding Real Estate Investment Trusts published by the North American Securities Administrators Association on May 7, 2007, as may be amended from time to time.

NAV. Net asset value, calculated pursuant to the Valuation Guidelines.

Net Income. For any period, the Company’s total revenues applicable to such period, less the total expenses applicable to such period other than additions to reserves for depreciation, bad debts or other similar non-cash reserves and excluding any gain from the sale of the Company’s assets.

Offering. A Private Placement or Public Offering.

OP Annual Total Return. As further described in Section 10, the investment return provided to Unitholders, which shall be calculated independently for the Class A Units, the Class D Units, the Class A-I Units, the Class M-I Units and the Class M Units, and shall be equal to, for all such Units outstanding during the calendar year (or such other applicable period), (i) Distributions declared and accrued per Class

A Unit, Class D Unit, Class A-I Unit, Class M-I Unit or Class M Unit over the calendar year (or such other applicable period) plus (ii) any change in Class A Unit NAV per Class A Unit, Class A-I Unit NAV per Class A-I Unit, Class D Unit NAV per Class D Unit, Class M-I Unit NAV per Class M-I Unit or Class M Unit NAV per Class M Unit over the calendar year (or such other applicable period).

Operating Partnership. Operating Partnership shall have the meaning set forth in the preamble of this Agreement.

Operating Partnership Agreement. The Limited Partnership Agreement of the Operating Partnership, as amended from time to time.

Operating Partnership NAV. The NAV of the Operating Partnership.

Organizational and Offering Expenses. All expenses incurred by or on behalf of the Company in connection with the preparation, qualification and registration of an Offering, and the subsequent offering and distribution of Shares, whether incurred before or after the date of this Agreement, which may include but are not limited to: total underwriting and brokerage discounts and commissions including fees of the underwriters’ attorneys; expenses for printing, engraving and mailing; salaries of employees while engaged in sales activity; telephone and other telecommunications costs; all advertising and marketing expenses (including the costs related to investor and broker-dealer sales meetings); charges of transfer agents, registrars, trustees, escrow holders, depositories and experts; and fees, expenses and taxes related to the filing, registration and qualification of the sale of the Shares under federal and state laws, including accountants’ and attorneys’ fees and expenses.

Participating Broker-Dealers. Broker-dealers who are members of the Financial Industry Regulatory Authority, Inc., or that are exempt from broker-dealer registration, and who, in either case, have executed participating broker-dealer or other agreements with the Dealer Manager to sell Shares in an Offering.

Performance Component. The variable component of the Advisory Fee as described in Section 10(b).

Person. An individual, corporation, partnership, trust, joint venture, limited liability company or other entity.

Primary Offering. The portion of an Offering other than the Shares offered pursuant to the Company’s distribution reinvestment plan.

Priority Return Percentage. Priority Return Percentage has the meaning set forth in Section 10(c).

Private Placement. An unregistered sale of Shares pursuant to an applicable exemption from the registration requirements of the Securities Act and state securities laws.

Private Placement Memorandum. A memorandum utilized for the purpose of offering and selling Shares in a Private Placement.

Prospectus. A “Prospectus” under Section 2(10) of the Securities Act, including a preliminary Prospectus, an offering circular as described in Rule 253 of the General Rules and Regulations under the Securities Act or, in the case of an intrastate offering, any document by whatever name known, utilized for the purpose of offering and selling securities to the public in a Public Offering.

Public Offering. The public offering of Shares pursuant to a Prospectus.

Real Estate Related Assets. Any investments (other than investments in Real Property), directly or indirectly, by the Company or Operating Partnership, as the case may be, in interests related to real property of whatever nature, including, but not limited to (i) mortgage, mezzanine, bridge and other loans on Real Property, (ii) equity securities or interests in corporations, limited liability companies, partnerships and other joint ventures having an equity interest in real property, real estate investment trusts, ground leases, tenant-in-common interests, participating mortgages, convertible mortgages or other debt instruments convertible into equity interests in real property by the terms thereof, options to purchase real estate, real property purchase-an-leaseback transactions and other transactions and investments with respect to real estate, and (iii) debt securities such as collateralized mortgage backed securities, commercial mortgages and other debt securities.

Real Property. Real property owned from time to time by the Company, the Operating Partnership or a subsidiary thereof, either directly or through Joint Ventures, which consists of (i) land only, (ii) land, including the buildings located thereon, (iii) buildings only or (iv) such investments the Board and the Advisor mutually designate as Real Property to the extent such investments could be classified as Real Property. DST Properties shall also be deemed Real Property for purposes of this definition.

Registration Statement. A registration statement on Form S-11, as may be amended from time to time, of the Company filed with the Securities and Exchange Commission related to the registration of Shares for a Public Offering.

REIT. A “real estate investment trust” under Sections 856 through 860 of the Code or as may be amended.

Related Party. With respect to any Person, any other Person whose ownership of Shares would be attributed to the first such Person under Code Section 544 (as modified by Code Section 856(h)(1)(B)).

Securities Act. The Securities Act of 1933, as amended.

Selling Commission. That percentage of Gross Proceeds from the sale of Shares in an Offering payable to the Dealer Manager and reallowable to Participating Broker-Dealers with respect to Shares sold by them as described in the Prospectus or Private Placement Memorandum for such Offering.

Shares. The Class A Shares, Class D Shares, Class A-I Shares, Class M-I Shares and Class M Shares.

Stockholders. The Class A Stockholders, Class D Stockholders, Class A-I Stockholders, Class M-I Stockholders and Class M Stockholders.

Sub-Advisor. Sub-Advisor and Sub-Advisors shall have the meaning set forth in Section 5.

Termination Date. The date of termination of this Agreement or expiration of this Agreement in the event this Agreement is not renewed for an additional term.

Total Operating Expenses. All costs and expenses paid or incurred by the Company, as determined under GAAP, that are in any way related to the operation of the Company or its business, including the Advisory Fee, but excluding (i) the expenses of raising capital such as Organizational and Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing, registration, and other fees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer and registration of securities, (ii) interest payments, (iii) taxes, (iv) non-cash expenditures such as depreciation, amortization and bad debt reserves, (v) incentive fees paid in compliance with the NASAA REIT Guidelines; (vi) acquisition fees and Acquisition Expenses, (vii) real estate commissions on the sale of Real Property, and (viii) other fees and expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgages or other property (including the costs of foreclosure, insurance premiums, legal services, maintenance, repair, and improvement of property). The definition of “Total Operating Expenses” set forth above is intended to encompass only those expenses which are required to be treated as Total Operating Expenses under the NASAA REIT Guidelines. As a result, and notwithstanding the definition set forth above, any expense of the Company which is not part of Total Operating Expenses under the NASAA REIT Guidelines shall not be treated as part of Total Operating Expenses for purposes hereof.

Unit. A unit of limited partnership interest in the Operating Partnership. The Units are comprised of Class A Units, Class D Units, Class A-I Units, Class M-I Units and Class M Units.

Unitholders. The Class A Unitholders, Class D Unitholders, Class A-I Unitholders, Class M-I Unitholders and Class M Unitholders.

2%/25% Guidelines. 2%/25% Guidelines shall have the meaning set forth in Section 13.

Valuation Guidelines. The valuation guidelines adopted by the Board, as amended from time to time.

The Company and the Operating Partnership hereby appoint the Advisor to serve as their advisor on the terms and conditions set forth in this Agreement, and the Advisor hereby accepts such appointment.

The Advisor undertakes to use its commercially reasonable efforts to manage the day-to-day operations of the Company’s business and the Operating Partnership’s business, present to the Company and the Operating Partnership potential investment opportunities and provide the Company and the Operating Partnership with a continuing and suitable investment program consistent with the investment objectives and policies of the Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Articles of Incorporation, Bylaws and the Operating Partnership Agreement, the Advisor shall, either directly or indirectly by engaging an Affiliate or a third party:

(a)    serve as the Company’s and the Operating Partnership’s investment and financial advisor and provide research and economic and statistical data in connection with the Company’s and the Operating Partnership’s Investments and investment policies;

(b)    provide the daily management for the Company and the Operating Partnership and perform and supervise the various administrative functions reasonably necessary for the management of the Company, including the collection of revenues and the payment of the Company’s debts and obligations; maintenance of appropriate computer services to perform such administrative functions; maintaining the Company’s books and records; and organizing meetings of the Board and the Operating Partnership;

(c)    recommend to the Company and the Operating Partnership the proper allocation of the Company’s Investments between (i) Real Property, (ii) Real Estate Related Assets, and (iii) cash and cash equivalents and other short-term investments;

(d)     consult with the officers and Directors of the Company and assist the Directors in the formulation and implementation of the Company’s financial, investment, valuation and other policies;

(e)    subject to the provisions of Section 4 hereof, (i) to the extent within the Advisor’s authority as set forth in the Investment Guidelines, identify, analyze and complete acquisitions and dispositions of Investments; (ii) to the extent outside the Advisor’s authority as set forth in the Investment Guidelines, identify, analyze and recommend acquisitions and dispositions of Investments to the Board and complete such transactions on behalf of the Company and the Operating Partnership in accordance with the direction of the Board; (iii) structure and negotiate the terms and conditions of transactions pursuant to which acquisitions and dispositions of Investments will be made; (iv) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with, Investments; (v) enter into leases and service contracts for Investments and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Investments; (vi) actively oversee and manage Investments for purposes of meeting the Company’s investment objectives; (vii) select Joint Venture partners, structure corresponding agreements and oversee and monitor these relationships; (viii) oversee Affiliated and non-Affiliated property managers who perform services for the Company; (ix) oversee Affiliated and non-Affiliated Persons with whom the Advisor contracts to perform certain of the services required to be performed under this Agreement; and (x) manage accounting and other record-keeping functions for the Company;

(f)    arrange and secure on behalf of the Company and the Operating Partnership with banks or lenders for Loans to be made to the Company and the Operating Partnership, but in no event in such a way so that the Advisor shall be acting as broker-dealer or underwriter; and provided, further, that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Company or the Operating Partnership;

(g)    monitor the operating performance of the Investments and provide periodic reports with respect thereto to the Board, including comparative information with respect to such operating performance and budgeted or projected operating results;

(h)    from time to time, or at any time reasonably requested by the Directors, make reports to the Directors of its performance of services to the Company and the Operating Partnership under this Agreement, including reports with respect to potential conflicts of interest involving the Advisor or any of its Affiliates;

(i)    calculate, at the end of each Business Day, the Class A NAV, Class A Unit NAV, Class D NAV, Class D Unit NAV, Class A-I NAV, Class A-I Unit NAV, Class M-I NAV, Class M-I Unit NAV, Class M NAV and Class M Unit NAV as provided in the Valuation Guidelines, and in connection therewith, obtain appraisals performed by an Independent Valuation Advisor concerning the value of the Real Properties;

(j)    deliver to, or maintain for a period of time in accordance with the Investment Advisers Act of 1940, as amended and the rules and regulation promulgated thereunder, on behalf of, the Company copies of all appraisals obtained in connection with the investments in any Real Property;

(k)    provide the Company and the Operating Partnership with all necessary cash management services;

(l)    arrange, negotiate, coordinate and manage operations of any Joint Venture interests held by the Company or the Operating Partnership and conduct all matters with any Joint Venture partners;

(m)    communicate on the Company’s or the Operating Partnership’s behalf with the respective holders of any of the Company’s or the Operating Partnership’s equity or debt securities as required to satisfy the reporting and other requirements of any governmental bodies or agencies and to maintain effective relations with such holders, and related thereto provide copy writing, creative management, project management and print production management;

(n)    evaluate and recommend to the Board hedging strategies and modifications thereto in effect and cause the Company and the Operating Partnership to engage in overall hedging strategies consistent with the Company’s status as a REIT and with the Company’s investment policies approved by the Board;

(o)    advise the Company and the Operating Partnership regarding the maintenance of their exemptions from the Investment Company Act and monitor compliance with the requirements for maintaining an exemption from such Act;

(p)    advise the Company regarding the maintenance of the Company’s status as a REIT and monitor compliance with the various REIT qualification tests and other rules set out in the Code and the regulations promulgated thereunder;

(q)    take all necessary actions to enable the Company and the Operating Partnership to make required tax filings and reports, including soliciting Stockholders for required information to the extent provided by the REIT provisions of the Code;

(r)    invest or reinvest any money of the Company or the Operating Partnership (including investing in short-term investments pending investment in long-term Investments, payment of fees, costs and expenses, or payments of distributions to the Stockholders and the Unitholders), and advise the Company and the Operating Partnership as to the Company’s or the Operating Partnership’s respective capital structure and capital raising;

(s)    investigate, select, and, on behalf of the Company and the Operating Partnership, engage and conduct business with such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder, including but not limited to consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, real estate management companies, real estate operating companies, securities investment advisors, mortgagors, and any and all agents for any of the foregoing, including Affiliates of the Advisor, and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services, including, but not limited to, entering into contracts in the name of the Company and the Operating Partnership with any of the foregoing;

(t)    cause the Company and the Operating Partnership to retain qualified accountants and legal counsel, as applicable, to assist in developing appropriate accounting procedures, compliance procedures and testing systems with respect to financial reporting obligations and compliance with the REIT provisions of the Code and to conduct compliance reviews thereto, as required;

(u)    cause the Company and the Operating Partnership to qualify to do business in all applicable jurisdictions and to obtain and maintain all appropriate licenses;

(v)    assist the Company in maintaining the registration of the Shares under federal and state securities laws with respect to any Public Offering and complying with all federal, state and local regulatory requirements applicable to the Company with respect to such Offering and the Company’s business activities (including the Sarbanes-Oxley Act of 2002, as amended), including, with respect to any Public Offering, preparing or causing to be prepared all supplements to the Prospectus, post-effective amendments to the registration statement and financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Securities Act and the Securities Exchange Act of 1934, as amended;

(w)    assist the Company in complying with all federal, state and local regulatory requirements applicable to the Company and its subsidiaries in respect of any private placements of any securities, including but not limited to Delaware statutory trust beneficial interests in DST Properties, including preparing or causing to be prepared private placement memoranda and all supplements thereto; provided, however, that in all private placement memoranda, supplements thereto and any other offering materials, the statements therein shall be made by solely the Company or the applicable subsidiary of the Company and not by the Advisor or any of its other Affiliates;

(x)    take all necessary actions to enable the Company and Operating Partnership to make required tax filings and reports, including soliciting Stockholders for required information to the extent provided by the REIT provisions of the Code;

(y)    handle and resolve all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) in which the Company and the Operating Partnership may be involved or to which the Company and the Operating Partnership may be subject, arising out of the Company’s or the Operating Partnership’s day-to-day operations, subject to such limitations or parameters as may be imposed from time to time by the Board;

(z)    use commercially reasonable efforts to cause expenses incurred by or on behalf of the Company and the Operating Partnership to be reasonable or customary and within any budgeted parameters or expense guidelines set by the Board from time to time;

(aa)    supervise one or more Independent Valuation Advisors and, if and when necessary, recommend to the Board its replacement;

(bb)    in connection with any Offering, assist the Dealer Manager administratively with the selection process, implementation and training of Participating Broker-Dealers and facilitate the ongoing due diligence review of the Company and the Offering conducted by Participating Broker-Dealers;

(cc)    establish and manage ongoing operational and administrative processes for the Company, including engaging and negotiating contract terms with and supervising the performance by vendors of transfer agent services, call center and investor relations services, distribution payment processing,

Stockholder and Unitholder tax reporting, proxy voting, information technology requirements and reporting to Participating Broker-Dealers;

(dd)    develop marketing materials for the Company;

(ee)    assist in permissible public relations activities relating to the Company, including but not limited to the (i) development and administration of press releases, (ii) media relations, (iii) media coverage and by-lined articles, and (iv) subject to principal approval of the Dealer Manager and regulatory approvals, if required, the development and maintenance of a Company website to provide access for investors to financial reporting, financial advisor access to sales materials, and general information relating to the Company, such as filings with the Securities and Exchange Commission and informational presentations;

(ff)    assist in the administration of the Company’s distribution reinvestment plan, Share transfers, Share redemptions and all exception requests;

(gg)    arrange for the provision of data and customary information resources to interested parties such as custodians, trust departments, third-party reporting services and registered investment advisor platforms;

(hh)    provide and administer all back office administrative services that may be required for the day-to-day operations of the Company;

(ii)    perform such other services as may be required from time to time for the management and other activities relating to the Company’s and the Operating Partnership’s respective business and assets as the Board shall reasonably request or the Advisor shall deem appropriate under the particular circumstances; and

(jj)    use commercially reasonable efforts to cause the Company and the Operating Partnership to comply with all applicable laws.

(a)    Pursuant to the terms of this Agreement (including the restrictions included in this Section 4 and in Section 8), and subject to the continuing and exclusive authority of the Board over the management of the Company, the Board (by virtue of its approval of this Agreement and authorization of the execution hereof by the officers of the Company) hereby delegates to the Advisor the authority to take, or cause to be taken, any and all actions and to execute and deliver any and all agreements, certificates, assignments, instruments or other documents and to do any and all things that, in the judgment of the Advisor, may be necessary or advisable in connection with the Advisor’s duties described in Section 3, including the making of any Investment that fits within the Company’s investment objectives, strategy and guidelines, policies and limitations as described in the Prospectus or Private Placement Memorandum and within the discretionary limits and authority as granted to the Advisor from time to time by the Board.

(b)    Notwithstanding the foregoing, any investment in an Investment that does not fit within the Investment Guidelines will require the prior approval of the Board or any duly authorized committee of the Board, as the case may be.

(c)    If a transaction requires approval by the Directors, the Advisor will deliver to the Directors all documents and other information required by them to properly evaluate the proposed transaction.

(d)    The prior approval of a majority of the Independent Directors not otherwise interested in the transaction and a majority of the Directors not otherwise interested in the transaction will be required for each transaction to which the Advisor or its Affiliates is a party.

(e)    The Board may, at any time upon the giving of notice to the Advisor, amend the Investment Guidelines or modify or revoke the authority set forth in this Section 4; provided, however, that such modification or revocation shall be effective upon receipt by the Advisor and shall not be applicable to investment transactions to which the Advisor has committed the Company or the Operating Partnership prior to the date of receipt by the Advisor of such notification.

The Advisor is hereby authorized to enter into one or more sub-advisory agreements with other investment advisors, including any Affiliate of the Advisor (each, a “Sub-Advisor”), pursuant to which the Advisor may obtain the services of the Sub-Advisor(s) to assist the Advisor in fulfilling any of its responsibilities set forth under Sections 3(e) and 3(g) hereunder, subject to the oversight of the Advisor and the Board.

(a)    The Advisor and not the Company or Operating Partnership shall be responsible for any compensation payable to any Sub-Advisor. Notwithstanding the foregoing, the Company shall reimburse the Advisor for any expenses properly incurred by the Sub-Advisor, to the extent such expenses would be reimbursable if incurred by the Advisor pursuant to the terms of Section 11 hereof, in order for the Advisor to timely reimburse the Sub-Advisor for such out-of-pocket costs.

(b)    Any sub-advisory agreement entered into by the Advisor shall be in accordance with the requirements of the Articles of Incorporation and other applicable federal and state law.

The Advisor may establish and maintain one or more bank accounts in the name of the Company and the Operating Partnership and may collect and deposit into any such account or accounts, and disburse from any such account or accounts, any money on behalf of the Company or the Operating Partnership, under such terms and conditions as the Directors may approve, provided that no funds shall be commingled with the funds of the Advisor; and the Advisor shall from time to time render appropriate accountings of such collections and payments to the Directors and to the auditors of the Company, as applicable.

The Advisor shall maintain appropriate records of all its activities hereunder and make such records available for inspection by the Directors and by counsel, auditors and authorized agents of the Company, at any time or from time to time during normal business hours. The Advisor shall at all reasonable times have access to the books and records of the Company and the Operating Partnership.

Anything else in this Agreement to the contrary notwithstanding, the Advisor shall refrain from taking any action which, in its sole judgment made in good faith, would (a) adversely affect the status of the Company as a REIT, (b) subject the Company or Operating Partnership to regulation under the Investment

Company Act, or (c) violate any law, rule, regulation or statement of policy of any governmental body or agency having jurisdiction over the Company or its Shares, or otherwise not be permitted by the Articles of Incorporation or Bylaws of the Company, except if such action shall be ordered by the Directors, in which case the Advisor shall notify promptly the Directors of the Advisor’s judgment of the potential impact of such action and shall refrain from taking such action until it receives further clarification or instructions from the Directors. In such event, the Advisor shall have no liability for acting in accordance with the specific instructions of the Directors so given. Notwithstanding the foregoing, the Advisor, its directors, officers, employees and members, and partners, directors, officers, members and stockholders of the Advisor’s Affiliates shall not be liable to the Company, the Directors, Stockholders, the Operating Partnership or the Unitholders for any act or omission by the Advisor, its directors, officers, employees, or members, and partners, directors, officers, members or stockholders of the Advisor’s Affiliates taken or omitted to be taken in the performance of their duties under this Agreement except as provided in Section 21 of this Agreement.

Subject to Section 8 of this Agreement and to restrictions advisable with respect to the qualification of the Company as a REIT, directors, managers, officers and employees of the Advisor or an Affiliate of the Advisor or any corporate parent of an Affiliate, may serve as a Director or officer of the Company, except that no director, officer or employee of the Advisor or its Affiliates who also is a Director or officer of the Company shall receive any compensation from the Company for serving as a Director or officer other than (a) reasonable reimbursement for travel and related expenses incurred in attending meetings of the Directors or (b) as otherwise approved by the Board, including a majority of the Independent Directors, and no such Director shall be deemed an Independent Director for purposes of satisfying the Director independence requirement set forth in the Articles of Incorporation. For so long as this Agreement is in effect, the Advisor shall have the right to nominate, subject to the approval of such nomination by the Board, three Affiliated Directors to the slate of Directors to be voted on by the Stockholders at the Company’s annual meeting of Stockholders; provided, however, that such number of director nominees shall be reduced as necessary by a number that will result in a majority of the Directors being Independent Directors. Furthermore, the Board shall consult with the Advisor in connection with (i) its selection of each Independent Director for nomination to the slate of Directors to be voted on at the annual meeting of Stockholders, and (ii) filling any vacancies created by the removal, resignation, retirement or death of any Director.

(b)    The Advisor shall receive the Advisory Fee as compensation for services rendered hereunder.

(c)    The Operating Partnership shall pay the Advisor an Advisory Fee comprised of two components: (1) a fixed component in an amount equal to 1/365^th of 1.25% of Operating Partnership NAV for each day (the “OP Fixed Component”); and (2) a performance component (the “OP Performance Component”) that is paid annually and calculated based on the OP Annual Total Return allocable to each class of Units. The Company shall also pay the Advisor an Advisory Fee comprised of two components: (1) a fixed component in an amount equal to 1/365^th of 1.25% of Company Separate NAV for each day (the “Company Fixed Component” and collectively with the OP Fixed Component, the “Fixed Component”); and (2) a performance component (the “Company Performance Component” and collectively with the OP Performance Component, the “Performance Component”) that is paid annually and calculated based on the Company Separate Annual Total Return allocable to each class of Shares.

(d)    The OP Performance Component will not be paid with respect to the Class A Units, the Class D Units, Class A-I Units, the Class M-I Units or the Class M Units, each of which is evaluated independently when calculating the OP Performance Component, for any calendar year in which the OP Annual Total Return allocable to the applicable class expressed as a percentage is less than or equal to 7.0% (the “Priority Return Percentage”). For each class of Units, the dollar amount of the OP Performance Component will equal 10.0% of the difference between (i) the OP Annual Total Return allocable to Class A Units, Class D Units, Class A-I Units, Class M-I Units or Class M Units, as applicable, and (ii) the amount required to provide Class A Unitholders, Class D Unitholders, Class A-I Unitholders, Class M-I Unitholders or Class M Unitholders, as applicable, an OP Annual Total Return equal to the Priority Return Percentage. In the event the Class A Unit NAV per Class A Unit, Class D Unit NAV per Class D Unit, Class A-I Unit NAV per Class A-I Unit, Class M-I Unit NAV per Class M-I Unit or Class M Unit NAV per Class M Unit decreases below $10.00 on any day during the measurement period, subject to adjustment pursuant to any Distribution, Unit split, recapitalization, or other similar change in the capital structure of the Operating Partnership (or Company, to the extent such change also affects the Unitholders), any subsequent increase in such NAV per Unit to $10.00 (or such other adjusted number) shall not be included in the calculation of the OP Performance Component with respect to that class. If the OP Performance Component is payable with respect to Class A Units, Class D Units, Class A-I Units, Class M-I Units or Class M Units pursuant to this Section 10(d), the Advisor will be entitled to such payment even in the event that the OP Annual Total Return to Class A Unitholders, Class D Unitholders, Class A-I Unitholders, Class M-I Unitholders or Class M Unitholders, as applicable (or any particular Unitholder), expressed as a percentage on a cumulative basis over any longer or shorter period has been less than the Priority Return Percentage. The Advisor shall not be obligated to return any portion of any Advisory Fee paid based on the Operating Partnership’s subsequent performance. The OP Performance Component may be earned in a given period for one or more of the Operating Partnership’s classes of Units.

(e)    The Company Performance Component will not be paid with respect to the Class A Shares, the Class D Shares, Class A-I Shares, the Class M-I Shares or the Class M Shares, each of which is evaluated independently when calculating the Company Performance Component, for any calendar year in which the Company Separate Annual Total Return allocable to the applicable class expressed as a percentage is less than or equal to the Priority Return Percentage. For each class of Shares, the dollar amount of the Company Performance Component will equal 10.0% of the difference between (i) the Company Separate Annual Total Return allocable to Class A Shares, Class D Shares, Class A-I Shares, Class M-I Shares or Class M Shares, as applicable, and (ii) the amount required to provide Class A Stockholders, Class D Stockholders, Class A-I Stockholders, Class M-I Stockholders or Class M Stockholders, as applicable, a Company Separate Annual Total Return equal to the Priority Return Percentage. In the event the Class A Share NAV per Class A Share, Class D Share NAV per Class D Share, Class A-I Share NAV per Class A-I Share, Class M-I Share NAV per Class M-I Share or Class M Share NAV per Class M Share decreases below $10.00 on any day during the measurement period, subject to adjustment pursuant to any stock dividend, stock split, recapitalization, or other similar change in the capital structure of the Company, any subsequent increase in such NAV per Share to $10.00 (or such other adjusted number) shall not be included in the calculation of the Company Performance Component with respect to that class. If the Company Performance Component is payable with respect to Class A Shares, Class D Shares, Class A-I Shares, Class M-I Shares or Class M Shares pursuant to this Section 10(e), the Advisor will be entitled to such payment even in the event that the Company Separate Annual Total Return to Class A Stockholders, Class D Stockholders, Class A-I Stockholders, Class M-I Stockholders or Class M Stockholders, as applicable (or any particular Stockholder), expressed as a percentage on a cumulative basis over any longer or shorter period has been less than the Priority Return Percentage. The Advisor shall not be obligated to return any portion of any Advisory Fee paid based on the Company’s subsequent performance. The Company Performance Component may be earned in a given period for one or more of the Company’s classes of Shares.

(f)    The Advisor shall, on a daily basis, (i) accrue a liability reserve account equal to the amount due for both the Fixed Component and the Performance Component, such accrual to be reflected in the NAV per Unit and NAV per Share calculations for such day; and (ii) calculate the OP Annual Total Return allocable to each class of Units and the Company Separate Annual Total Return allocable to each class of Shares, in each case prorated as of the end of such day, and, based on such calculation, adjust the balance of liability reserve accrual to reflect the estimated amount due on account of the Performance Component.

(g)    The Advisory Fee will accrue daily and is payable in cash. The Fixed Component is payable monthly in arrears (after the close of business and NAV calculations for the last Business Day for such month). The Performance Component is payable promptly after the audited financial statements for each calendar year become available, provided that if this Agreement or its term expires without renewal prior to December 31 of any calendar year, then the prorated Performance Component for such partial year shall be payable promptly after the Company files (i) its unaudited financial statements on Form 10-Q for the calendar quarter that includes the Termination Date, or (ii) in the case of a Termination Date that occurs during the fourth calendar quarter of a calendar year, its audited financial statements on Form 10-K for the year ended that includes the Termination Date. The Performance Component shall be payable for each calendar year in which this Agreement is in effect, even if the Agreement is in effect for less than a full calendar year. In the event this Agreement is terminated or its term expires without renewal, the Advisory Fee will be calculated and due and payable after the calculation of the Operating Partnership’s and Company’s NAV on the Termination Date. If the Advisory Fee is payable with respect to any partial calendar month or calendar year, the Fixed Component will be prorated based on the number of days elapsed during any partial calendar month and the Performance Component will be prorated based on the number of days elapsed during, and OP Annual Total Return or Company Separate Annual Total Return (as applicable) achieved, for the period of such partial calendar year.

(h)    In the event the Company or the Operating Partnership commences a liquidation of its Investments during any calendar year, the Advisor shall be paid the fixed component of the Advisory Fee from the proceeds of the liquidation and the performance component of the Advisory Fee will be calculated at the end of the liquidation period prior to the distribution of the liquidation proceeds to the Stockholders or Unitholders, as the case may be.

(a)    As required by the NASAA REIT Guidelines, the cumulative Selling Commissions, Dealer Manager Fees and Organizational and Offering Expenses paid by the Company attributable to any Public Offering will not exceed 15.0% of Gross Proceeds from the sale of Shares in the Primary Offering of such Public Offering.

(b)    In addition to the compensation paid to the Advisor pursuant to Section 10 hereof, the Company shall pay directly or reimburse the Advisor for all of the expenses paid or incurred by the Advisor in connection with the services it provides to the Company pursuant to this Agreement, and the Operating Partnership shall pay directly or reimburse the Advisor for all of the expenses paid or incurred by the Advisor in connection with the services it provides to the Operating Partnership pursuant to this Agreement. The Advisor shall determine in its reasonable discretion whether expenses reimbursable to the Advisor pursuant to this Section 11 have been incurred in connection with the services the Advisor provides to the Company or the services the Advisor provides to the Operating Partnership. The expenses that shall be paid directly or reimbursed by the Company or the Operating Partnership shall include, but shall not be limited to:

(i)    Organizational and Offering Expenses; provided that within 60 days after the end of the month in which a Public Offering terminates, the Advisor shall reimburse the Company to the extent the Organizational and Offering Expenses, Selling Commissions and Dealer Manager Fees borne by the Company attributable to such Public Offering exceed 15.0% of the Gross Proceeds raised in the completed Public Offering;

(ii)    DST Organizational and Offering Expenses paid or incurred by the Advisor or any of its Affiliates, except to the extent the Advisor or its Affiliates have agreed to receive a fee in lieu of reimbursement of such expenses;

(iii)    Acquisition Expenses incurred in connection with the selection and acquisition of Investments, including such expenses incurred related to assets pursued or considered but not ultimately acquired by the Company or the Operating Partnership, subject to limitations set forth in the Articles of Incorporation;

(iv)    the actual cost of goods and services used by the Company and obtained from entities not affiliated with the Advisor;

(v)    interest and other costs for borrowed money, including discounts, points and other similar fees;

(vi)    taxes and assessments on income of the Company or Investments, taxes as an expense of doing business and any other taxes otherwise imposed on the Company and its business, assets or income;

(vii)    costs associated with insurance required in connection with the business of the Company or by the Board;

(viii)    expenses of managing, improving, developing, operating and selling Investments, whether payable to an Affiliate of the Company or a non-affiliated Person;

(ix)    all expenses in connection with payments to the Directors for attending meetings of the Board and Stockholders;

(x)    expenses connected with payments of Distributions in cash or otherwise made or caused to be made by the Company to the Stockholders or by the Operating Partnership to the Unitholders;

(xi)    expenses of organizing, redomesticating, merging, liquidating or dissolving the Company or of amending the Articles of Incorporation or the Bylaws;

(xii)    expenses incurred in connection with the formation, organization and continuation of any corporation, partnership, joint venture or other entity through which the Company’s investments are made or in which any such entity invests;

(xiii)    expenses of providing services for and maintaining communications with Stockholders, including the cost of updating offering materials and the preparation, printing, and mailing annual reports and other Stockholder reports, proxy statements and other reports required by governmental entities;

(xiv)    expenses of all litigation or regulatory proceedings or investigations instituted or threatened against the Company;

(xv)    administrative service expenses, including but not limited to personnel and related employment costs incurred by the Advisor or its Affiliates in performing the services described in Section 3 hereof, including but not limited to reasonable salaries, bonuses and wages, benefits and overhead of all individuals whose primary job function relates to the Company’s business, provided that no reimbursement shall be made for costs of such employees of the Advisor or its Affiliates to the extent that such employees perform services for which the Advisor receives a separate fee and provided further that in the event that personnel costs are reimbursed for individuals who serve as executive officers of the Company, the Advisor shall cause the Company to include disclosures of the amount of such costs in its next quarterly or annual report filed with the Securities and Exchange Commission;

(xvi)    audit, accounting and legal fees and other fees or expenses for professional services relating to the operations of the Company;

(xvii)    fees or expenses of third parties for services provided to the Company, including, but not limited to, the services of third party property managers, leasing or brokerage agents, project managers, real estate and mortgage brokers, and architectural, engineering or other consultants or third party service providers engaged by the Advisor to assist it in performing its duties and responsibilities set forth under Section 3 hereof (except for any compensation payable to any Sub-Advisor pursuant to Section 5 hereof); and

(xviii)    all such fees incurred at the request, or on behalf of, the Board, the Independent Directors or any committee of the Board.

(c)    Expenses incurred by the Advisor on behalf of the Company or the Operating Partnership and payable pursuant to this Section 11 shall be reimbursed no less than monthly to the Advisor. The Advisor shall during each quarter (i) prepare a statement for each of the Company and the Operating Partnership documenting (A) the expenses of the Company or the Operating Partnership, as the case may be, and (B) the calculation of the Advisory Fee payable by the Company or the Operating Partnership, as the case may be, and (ii) deliver such statements to the Company and Operating Partnership respectively within forty-five (45) days after the end of each quarter.

(d)    Organizational and Offering Expenses incurred by the Advisor with respect to a Public Offering prior to the effective date of the Registration Statement relating to such Public Offering shall be reimbursed by the Company to the Advisor over a period of 36 months following the date such Registration Statement is declared effective by the Securities and Exchange Commission.

Should the Board request that the Advisor or any director, officer or employee thereof render services for the Company and the Operating Partnership other than set forth in Section 3, such services shall be separately compensated at such rates and in such amounts as are agreed by the Advisor and the Independent Directors, subject to the limitations contained in the Articles of Incorporation, and shall not be deemed to be services pursuant to the terms of this Agreement.

The Company shall not reimburse the Advisor at the end of any fiscal quarter for Total Operating Expenses that in the four consecutive fiscal quarters then ended (the “Expense Year”) exceeded (the “Excess Amount”) the greater of 2.0% of Average Invested Assets or 25.0% of Net Income (the “2%/25% Guidelines”) for such 12-month period unless the Independent Directors determine that such excess was justified, based on unusual and nonrecurring factors that the Independent Directors deem sufficient. If the Independent Directors do not approve such excess as being so justified, any Excess Amount paid to the Advisor during a fiscal quarter shall be repaid to the Company. If the Independent Directors determine such excess was justified, then, within sixty (60) days after the end of any fiscal quarter of the Company for which total reimbursed Total Operating Expenses for the Expense Year exceed the 2%/25% Guidelines, the Advisor, at the direction of the Independent Directors, shall cause such fact to be disclosed to the Stockholders in writing (or the Company shall disclose such fact to the Stockholders in the next quarterly report of the Company or by filing a Current Report on Form 8-K with the Securities and Exchange Commission within sixty (60) days of such quarter end), together with an explanation of the factors the Independent Directors considered in determining that such excess were justified. The Company will ensure that such determination will be reflected in the minutes of the meetings of the Board. All figures used in the foregoing computations shall be determined in accordance with GAAP applied on a consistent basis.

(a)    Relationship. Nothing herein contained shall prevent the Advisor or any of its Affiliates from engaging in or earning fees from other activities, including, without limitation, the rendering of advice to other Persons (including other REITs) and the management of other programs advised, sponsored or organized by the Advisor or its Affiliates; nor shall this Agreement limit or restrict the right of any director, officer, member, partner, employee, or stockholder of the Advisor or its Affiliates to engage in or earn fees from any other business or to render services of any kind to any other partnership, corporation, firm, individual, trust or association and earn fees for rendering such services. The Advisor may, with respect to any investment in which the Company is a participant, also render advice and service to each and every other participant therein, and earn fees for rendering such advice and service. Specifically, it is contemplated that the Company may enter into joint ventures or other similar co-investment arrangements with certain Persons, and pursuant to the agreements governing such joint ventures or arrangements, the Advisor may be engaged to provide advice and service to such Persons, in which case the Advisor will earn fees for rendering such advice and service.

(b)    Time Commitment. The Advisor shall, and shall cause its Affiliates and their respective employees, officers and agents to, devote to the Company and the Operating Partnership such time as shall be reasonably necessary to conduct the business and affairs of the Company and the Operating Partnership in an appropriate manner consistent with the terms of this Agreement. Each of the Company and the Operating Partnership acknowledges that the Advisor and its Affiliates and their respective employees, officers and agents may also engage in activities unrelated to the Company and the Operating Partnership and may provide services to Persons other than the Company or the Operating Partnership or any of their respective Affiliates.

(c)    Investment Opportunities. New investments shall be made by the Operating Partnership, not the Company, unless the Operating Partnership declines such investment opportunity. The Advisor shall use its commercially reasonable efforts to present to the Operating Partnership a number of potential investment opportunities appropriate for the portfolio of the Operating Partnership consistent with the

investment policies and objectives of the Company, but neither the Advisor nor any Affiliate of the Advisor shall be obligated generally to present any particular investment opportunity to the Company or Operating Partnership even if the opportunity is of a character that, if presented to the Company or Operating Partnership, could be taken by the Company or Operating Partnership. In the event an investment opportunity is located, the allocation procedure set forth in the Prospectus shall govern the allocation of the opportunity among the Operating Partnership (and, indirectly, the Company), on the one hand, and other clients of the Advisor, on the other hand; provided any changes to the procedure shall be presented in advance and approved by the Board, including a majority of the Independent Directors.

The Company and the Operating Partnership, on the one hand, and the Advisor on the other, are not partners or joint venturers with each other, and nothing in this Agreement shall be construed to make them such partners or joint venturers or impose any liability as such on either of them.

This Agreement shall continue in force through June 5, 2020, subject to an unlimited number of successive one-year renewals upon mutual consent of the parties. It is the duty of the Directors to evaluate the performance of the Advisor annually before renewing the Agreement, and each such renewal shall be for a term of no more than one year.

This Agreement may be terminated (i)immediately by the Company or the Operating Partnership for Cause or upon the bankruptcy of the Advisor or upon a material breach of this Agreement by the Advisor; provided, that such material breach is not capable of being cured or has not been cured within sixty (60) days after the giving of notice thereof by the Company to the Advisor; (ii) upon sixty (60) days’ written notice without Cause or penalty by a majority vote of the Independent Directors; or (iii) upon sixty (60) days’ written notice by the Advisor. The provisions of Sections 19 through 22 survive termination of this Agreement.

This Agreement may be assigned by the Advisor to an Affiliate with the prior written consent of the Company or the Operating Partnership, it being agreed that such consent shall not unreasonably be withheld or delayed by the Company or the Operating Partnership. The Advisor may assign any rights to receive fees or other payments under this Agreement to any Person without obtaining the consent of the Company or the Operating Partnership. This Agreement shall not be assigned by the Company or the Operating Partnership without the consent of the Advisor, except in the case of an assignment by the Company or the Operating Partnership to a corporation, limited partnership or other organization which is a successor to all of the assets, rights and obligations of the Company or the Operating Partnership, in which case such successor organization shall be bound hereunder and by the terms of said assignment in the same manner as the Company and the Operating Partnership are bound by this Agreement.

(a)    After the Termination Date, the Advisor shall not be entitled to compensation for further services hereunder except it shall be entitled to receive from the Company and the Operating Partnership

within thirty (30) days after the effective date of such termination all unpaid reimbursements of expenses and all earned but unpaid fees payable to the Advisor prior to termination of this Agreement, subject to the 2%/25% Guidelines to the extent applicable.

(i)    pay over to the Company and the Operating Partnership all money collected and held for the account of the Company and the Operating Partnership pursuant to this Agreement, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled;

(ii)    deliver to the Board a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board;

(iii)    deliver to the Board all assets, including all Investments, and documents of the Company and the Operating Partnership then in the custody of the Advisor; and

(iv)    cooperate with the Company and the Operating Partnership to provide an orderly management transition.

The Company and the Operating Partnership shall indemnify and hold harmless the Advisor and its Affiliates, including their respective officers, directors, partners and employees (the “Indemnitees,” and each an “Indemnitee”), from all liability, claims, damages or losses arising in the performance of their duties hereunder, and related expenses, including reasonable attorneys’ fees, to the extent such liability, claims, damages or losses and related expenses are not fully reimbursed by insurance, and to the extent that such indemnification would not be inconsistent with the laws of the State of Maryland, the Articles of Incorporation or the provisions of Section II.G of the NASAA REIT Guidelines.

The Advisor shall indemnify and hold harmless the Company and the Operating Partnership from contract or other liability, claims, damages, taxes or losses and related expenses including attorneys’ fees, to the extent that such liability, claims, damages, taxes or losses and related expenses are not fully reimbursed by insurance and are incurred by reason of the Advisor’s bad faith, fraud, willful misconduct, gross negligence or reckless disregard of its duties; provided, however, that the Advisor shall not be held responsible for any action of the Board in following or declining to follow any advice or recommendation given by the Advisor.

During the period commencing on the Effective Date and ending one year following the Termination Date, the Company and the Operating Partnership shall not, without the Advisor’s prior written consent, directly or indirectly, (i) solicit or encourage any person to leave the employment or other service of the Advisor or its Affiliates, or (ii) hire, on behalf of the Company or the Operating Partnership or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment the Advisor or its Affiliates. During the period commencing on the date hereof through and ending one year following the Termination Date, the Company and the Operating Partnership

will not, whether for their own account or for the account of any other Person, intentionally interfere with the relationship of the Advisor or its Affiliates with, or endeavor to entice away from the Advisor or its Affiliates, any person who during the term of the Agreement is, or during the preceding one-year period, was a tenant, co-investor, co-developer, joint venturer or other customer of the Advisor or its Affiliates.

(a)    Notices. Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communication is required by the Articles of Incorporation, the Bylaws, or accepted by the party to whom it is given, and shall be given by being delivered by hand, by courier or overnight carrier or by registered or certified mail to the addresses set forth herein:

Any party may at any time give notice in writing to the other parties of a change in its address for the purposes of this Section 23.

(b)    Modification. This Agreement shall not be changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing signed by the parties hereto, or their respective successors or assignees.

(c)    Severability. The provisions of this Agreement are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

(d)    Governing Law; Exclusive Jurisdiction; Jury Trial. The provisions of this Agreement shall be construed and interpreted in accordance with the laws of the State of Maryland without regard to the conflicts-of-law principles that would require the application of any other law. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Illinois and the Federal courts of the United States of America located in Chicago, Illinois for purposes of any suit, action or other proceeding arising from this Agreement, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or thereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in such courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts. Each of the parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of any such dispute. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

(e)    Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof, including the Third Amended and Restated Advisory Agreement. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.

(f)    Indulgences, Not Waivers. Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

(g)    Gender. Words used herein regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires.

(h)    Titles Not to Affect Interpretation. The titles of Sections and Subsections contained in this Agreement are for convenience only, and they neither form a part of this Agreement nor are they to be used in the construction or interpretation hereof.

(i)    Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.

[Signatures on following page.]

IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amended and Restated Advisory Agreement as of the date and year first above written.

Jones Lang LaSalle Income Property Trust, Inc.

By: /s/ C. Allan Swaringen        

C. Allan Swaringen    

President and Chief Executive Officer

JLLIPT Holdings LP

By: JLLIPT Holdings GP, LLC, its General Partner

By: Jones Lang LaSalle Income Property Trust, Inc., its sole Member and Manager

By: /s/ C. Allan Swaringen        

C. Allan Swaringen    

President and Chief Executive Officer

LaSalle Investment Management, Inc.

By:/s/ Jason B. Kern        

Jason B. Kern 
                President and Chief Executive Officer

Exhibit 10.2

SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

OF

JLLIPT HOLDINGS LP

A DELAWARE LIMITED PARTNERSHIP

OCTOBER 16, 2019

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

TABLE OF CONTENTS

EXHIBITS

EXHIBIT A – Notice of Exercise of Redemption Right

SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

OF

JLLIPT HOLDINGS LP

This Second Amended and Restated Limited Partnership Agreement of JLLIPT Holdings LP (this “Agreement”) is entered into as of October 16, 2019, by and among JLLIPT Holdings GP, LLC, a Delaware limited liability company, as the General Partner, Jones Lang LaSalle Income Property Trust, Inc. a Maryland corporation, as the Initial Limited Partner, the other Limited Partners party hereto from time to time. This Agreement shall supersede and replace the First Amended Agreement (defined below).

RECITALS:

WHEREAS, JLLIPT Holdings, LLC was formed on March 10, 2005 as a limited liability company under the laws of the State of Delaware and converted from a limited liability company to a limited partnership on March 27, 2017;

WHEREAS, the Partnership was previously governed by that certain amended and restated limited partnership agreement, by and between Jones Lang LaSalle Income Property Trust, Inc., as a limited partner of the Partnership, and JLLIPT Holdings GP, LLC, as the general partner of the Partnership, effective as of April 1, 2018 (the “First Amended Agreement”);

WHEREAS, the Partners desire to amend and restate the First Amended Agreement to reflect the terms set forth herein.

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

ARTICLE 1

DEFINED TERMS

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

“Act” means the Delaware Revised Uniform Limited Partnership Act, as amended from time to time, or any successor statute thereto.

“Additional Funds” has the meaning set forth in Section 4.4.

“Additional Securities” means any additional REIT Shares (other than REIT Shares issued in connection with a redemption pursuant to Section 8.5) or rights, options, warrants or

convertible or exchangeable securities containing the right to subscribe for or purchase REIT Shares, as set forth in Section 4.3(a)(ii).

“Administrative Expenses” means (i) all administrative and operating costs and expenses incurred by the Partnership and its Subsidiaries, (ii) those administrative costs and expenses of the General Partner and Initial Limited Partner, including any salaries or other payments to directors, officers or employees of the General Partner or the Initial Limited Partner, and any accounting and legal expenses of the General Partner or Initial Limited Partner, which expenses are expenses of the Partnership and not the General Partner or Initial Limited Partner, and (iii) to the extent not included in clause (ii) above, REIT Expenses; provided, however, that Administrative Expenses shall not include any administrative costs and expenses incurred by the General Partner or Initial Limited Partner that are attributable to assets that are not owned directly or indirectly by the Partnership.

“Advisor” means the Person appointed, employed or contracted with by the Initial Limited Partner and the Partnership and responsible for directing or performing the day-to-day business affairs of the Initial Limited Partner and the Partnership, including any Person to whom the Advisor subcontracts all or substantially all of such functions.

“Advisory Agreement” means the agreement between the Initial Limited Partner, the Partnership and the Advisor pursuant to which the Advisor will direct or perform the day-to-day business affairs of the Initial Limited Partner and the Partnership, as such agreement may be amended or renewed from time to time.

“Advisory Fees” means the fees payable to the Advisor pursuant to the Advisory Agreement.

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

“Aggregate Share Ownership Limit” has the meaning set forth in the Articles of Incorporation.

“Agreed Value” means the fair market value of a Partner’s non-cash Capital Contribution as of the date of contribution as agreed to by such Partner and the General Partner.

“Agreement” means this Second Amended and Restated Limited Partnership Agreement, as amended, modified supplemented or restated from time to time, as the context requires.

“Applicable Percentage” has the meaning provided in Section 8.5(b).

“Articles of Incorporation” means the Second Articles of Amendment and Restatement of the Initial Limited Partner filed with the Maryland State Department of Assessments and Taxation on September 27, 2012, as amended by the First Articles of Amendment filed with the Maryland State Department of Assessments and Taxation on May 9, 2013, as supplemented by the Articles Supplementary filed with the Maryland State Department of Assessments and Taxation on June 5, 2014, as further amended by the Second Articles of Amendment filed with the Maryland State Department of Assessments and Taxation on July 23, 2015, as further amended or supplemented from time to time.

“Assignee” means a Person to whom a Partnership Interest has been Transferred in a manner permitted under this Agreement, but who has not yet become a Substitute Limited Partner, and who has the rights set forth in Section 9.4 hereof.

“Attorney in Fact” has the meaning set forth in Section 8.2 hereof.

“Capital Account” has the meaning provided in Section 4.5.

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

“Carrying Value” means, with respect to any asset of the Partnership, the asset’s adjusted net basis for federal income tax purposes or, in the case of any asset contributed to the Partnership, the fair market value of such asset at the time of contribution, reduced by any amounts attributable to the inclusion of liabilities in basis pursuant to Section 752 of the Code, except that the Carrying Values of all assets may, at the discretion of the General Partner, be adjusted to equal their respective fair market values (as determined by the General Partner), in accordance with the rules set forth in Regulations Section 1.704-1(b)(2)(iv)(f), as provided for in Section 4.5. In the case of any asset of the Partnership that has a Carrying Value that differs from its adjusted tax basis, the Carrying Value shall be adjusted by the amount of depreciation, depletion and amortization calculated for purposes of the definition of Profit and Loss rather than the amount of depreciation, depletion and amortization determined for federal income tax purposes.

“Cash Amount” means an amount of cash per Partnership Unit equal to the applicable Redemption Price determined by the General Partner.

“Certificate” means any instrument or document that is required under the laws of the State of Delaware, or any other jurisdiction in which the Partnership conducts business, to be signed and sworn to by any of the Partners of the Partnership (either by themselves or pursuant to the power-of-attorney granted to the General Partner in Section 8.2) and filed for recording in the appropriate public offices within the State of Delaware or such other jurisdiction to perfect or maintain the Partnership as a limited partnership, to effect the admission, withdrawal, or substitution of any Partner of the Partnership, or to protect the limited liability of the Limited Partners as limited partners under the laws of the State of Delaware or such other jurisdiction.

“Class” means a class of REIT Shares or Partnership Units, as the context may require.

“Class A Conversion Rate” means the fraction, the numerator of which is the Net Asset Value Per Unit for each Class A Unit and the denominator of which is the Net Asset Value Per Unit for each Class M-I Unit.

“Class A REIT Shares” means the REIT Shares referred to as “Class A” shares in the Articles of Incorporation.

“Class A Unit” means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class A Unit as provided in this Agreement.

“Class A-I Conversion Rate” means the fraction, the numerator of which is the Net Asset Value Per Unit for each Class A-I Unit and the denominator of which is the Net Asset Value Per Unit for each Class M-I Unit.

“Class A-I REIT Shares” means the REIT Shares referred to as “Class A-I” shares in the Articles of Incorporation.

“Class A-I Unit” means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class A-I Unit as provided in this Agreement.

“Class D Conversion Rate” means the fraction, the numerator of which is the Net Asset Value Per Unit for each Class D Unit and the denominator of which is the Net Asset Value Per Unit for each Class M-I Unit.

“Class D REIT Shares” means the REIT Shares referred to as “Class D” shares in the Articles of Incorporation.

“Class D Unit” means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class D Unit as provided in this Agreement.

“Class M Conversion Rate” means the fraction, the numerator of which is the Net Asset Value Per Unit for each Class M Unit and the denominator of which is the Net Asset Value Per Unit for each Class M-I Unit.

“Class M REIT Shares” means the REIT Shares referred to as “Class M” shares in the Articles of Incorporation.

“Class M Unit” means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class M Unit as provided in this Agreement.

“Class M-I REIT Shares” means the REIT Shares referred to as “Class M-I” shares in the Articles of Incorporation.

“Class M-I Unit” means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class M-I Unit as provided in this Agreement.

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

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

“Common Share Ownership Limit” shall have the meaning set forth in the Articles of Incorporation.

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

“Deemed Reinvested Amount” means, with respect to any given Partnership Record Date, (A) the amount of distributions made by the Initial Limited Partner that are reinvested in REIT Shares issued by the Initial Limited Partner pursuant to the Initial Limited Partner’s distribution reinvestment plan, multiplied by (B) a fraction, the numerator of which is the aggregate Net Asset Value of all Partnership Units outstanding on such Partnership Record Date, and the denominator of which is the Value of all REIT Shares outstanding on such Partnership Record Date.

“Director” has the meaning set forth in the Articles of Incorporation.

“DRIP” shall have the meaning set forth in Section 5.10.

“DRIP Participant” shall have the meaning set forth in Section 5.10.

“DST Properties” means any real properties that meet the following criteria: (i) Delaware statutory trust beneficial interests in such properties have been sold by the Initial Limited Partner or any Affiliate of the Initial Limited Partner to third-party investors and (ii) such properties are being leased by the Initial Limited Partner or any Affiliate of the Initial Limited Partner from the Delaware statutory trust.

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

“Excepted Holder Limit” has the meaning set forth in the Articles of Incorporation.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute thereto.

“Final Adjustment” has the meaning set forth in Section 10.5(c)(ii) hereof.

“General Partner” means JLLIPT Holdings GP, LLC, a Delaware limited liability company, and any Person who becomes a substitute or additional General Partner as provided herein, and any of their successors as General Partner, in such Person’s capacity as a General Partner of the Partnership.

“General Partnership Interest” means any Partnership Interest held by the General Partner, other than any Partnership Interest it holds as a Limited Partner.

“Holder” means either (a) a Partner or (b) an Assignee owning a Partnership Interest.

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

“Initial Limited Partner” means Jones Lang LaSalle Income Property Trust, Inc., a Maryland corporation, in its capacity as a Limited Partner.

“Joint Venture” means any joint venture or partnership arrangement (other than the Partnership) in which the Partnership or any of its Subsidiaries is a co-venturer or partner established to acquire Real Properties.

“Limited Partner” means the General Partner in its capacity as a Limited Partner, the Initial Limited Partner, and any other Person identified as Limited Partner on the books and records of the Partnership, upon the execution and delivery by such Person of an additional limited partner signature page, and any Person who becomes a Substitute Limited Partner, in such Person’s capacity as a Limited Partner in the Partnership.

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

“Liquidating Event” has the meaning set forth in Section 11.1 hereof.

“Liquidator” has the meaning set forth in Section 11.2(a) hereof.

“Listing” means the listing of the shares of the Initial Limited Partner’s common stock on a national securities exchange. Upon such Listing, the shares shall be deemed “Listed.”

“Loss” has the meaning provided in Section 5.1(d).

“Net Asset Value” means (i) for any Partnership Units, the net asset value of such Partnership Units, determined as of the end of each business day as described in the Prospectus and (ii) for any REIT Shares, the net asset value of such REIT Shares, determined as of the end of each business day as described in the Prospectus.

“Net Asset Value Per Unit” means, for each Class of Partnership Unit, the net asset value per unit of such Class of Partnership Unit, determined as of the end of each business day as described in the Prospectus.

“Net Asset Value Per REIT Share” means, for each Class of REIT Shares, the net asset value per share of such Class of REIT Shares, determined as of the end of each business day as described in the Prospectus.

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

“Offer” has the meaning set forth in Section 7.1(b)(ii).

“Offering” means the offering and sale of securities, including without limitation REIT Shares, Units, or interests in a Delaware statutory trust.

“Partner” means any General Partner or Limited Partner.

“Partner Nonrecourse Debt Minimum Gain” means an amount with respect to each Partner’s nonrecourse debt (as defined in Regulations Section 1.704-2(b)(4)) equal to the Partnership Minimum Gain that would result if such partner nonrecourse debt were treated as a nonrecourse liability (as defined in Regulations Section 1.752-1(a)(2)) determined in accordance with Regulations Section 1.704-2(i)(3).

“Partnership” means JLLIPT Holdings LP, a Delaware limited partnership.

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

“Partnership Minimum Gain” has the meaning specified in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).

“Partnership Record Date” means the record date established by the General Partner for the distribution of cash pursuant to Section 5.2, which record date shall be the same as the record date established by the Initial Limited Partner for a distribution to its stockholders of some or all of its portion of such distribution.

“Partnership Register” has the meaning set forth in Section 4.1 hereof.

“Partnership Representative” has the meaning described in Section 10.5(a).

“Partnership Unit” means a fractional, undivided share of the Partnership Interests (other than the General Partnership Interest) of all Partners issued hereunder, including Class A Units, Class A-I Units, Class M Units, Class M-I Units and Class D Units. The allocation of Partnership Units of each Class among the Partners shall be maintained on the books and records of the Partnership.

“Partnership Year” means the fiscal year of the Partnership.

“Percentage Interest” means the percentage ownership interest in the Partnership of each Partner, as determined by dividing the Partnership Units owned by a Partner by the total number of Partnership Units then outstanding. The Percentage Interest of each Partner shall be maintained on the books and records of the Partnership.

“Person” means an individual, corporation, partnership, limited liability company, estate, trust (including a trust qualified under Sections 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other legal entity.

“Profit” has the meaning provided in Section 5.1(d) hereof.

“Property” means any Real Property, Real Estate Related Assets or other investment in which the Partnership holds an ownership interest.

“Prospectus” means the prospectus included in the most recent effective registration statement filed by the Initial Limited Partner with the Commission with respect to the applicable Offering, as such prospectus may be amended or supplemented from time to time.

“Publicly Traded” means having common equity securities listed or admitted to trading on any U.S. national securities exchange.

“Real Estate Related Assets” means any investments (other than investments in Real Property), directly or indirectly, by the Partnership in interests related to real property of whatever nature, including, but not limited to (i) mortgage, mezzanine, bridge and other loans on Real Property, (ii) equity securities or interests in corporations, limited liability companies, partnerships and other joint ventures having an equity interest in real property, real estate investment trusts, ground leases, tenant-in-common interests, participating mortgages, convertible mortgages or other debt instruments convertible into equity interests in real property by the terms thereof, options to purchase real estate, real property purchase-and-leaseback transactions and other transactions and investments with respect to real estate, and (iii) debt securities such as collateralized mortgage backed securities, commercial mortgages and other debt securities.

“Real Property” means real property owned from time to time by the Partnership or a subsidiary thereof, either directly or through Joint Ventures, which consists of (i) land only, (ii) land, including the buildings located thereon, (iii) buildings only or (iv) such investments the Initial Limited Partner and the Advisor mutually designate as Real Property to the extent such investments could be classified as Real Property. DST Properties shall also be deemed Real Property for purposes of this definition.

“Redemption” has the meaning set forth in Section 8.5 hereof.

“Redemption Price” means the Value of the REIT Shares Amount as of the end of the Specified Redemption Date.

“Redemption Right” has the meaning provided in Section 8.5(a).

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

“Regulatory Allocations” has the meaning set forth in Section 5.1(f).

“REIT” means a real estate investment trust as defined pursuant to Sections 856 through 860 of the Code and any successor or other provisions of the Code relating to real estate investment trusts.

“REIT Expenses” means (i) costs and expenses relating to the formation and continuity of existence and operation of the Initial Limited Partner and any Subsidiaries thereof (which Subsidiaries shall, for purposes of this defined term, be included within the definition of Initial Limited Partner), including taxes, fees and assessments associated therewith, any and all costs, expenses or fees payable to any director, officer, or employee of the Initial Limited Partner or service providers to the Initial Limited Partner (including service providers affiliated with the Advisor), (ii) costs and expenses relating to any public offering and registration of securities by the Initial Limited Partner and all filings, statements, reports, fees and expenses incidental thereto, including, without limitation, underwriting discounts and selling commissions applicable to any such offering of securities, any stockholder servicing fees, and any costs and expenses associated with any claims made by any holders of such securities or any underwriters or placement agents thereof, (iii) costs and expenses relating to any private offering of securities by the Initial Limited Partner and all statements, reports, fees and expenses incidental thereto, including, without limitation, underwriting discounts and selling commissions applicable to any such offering of securities, any stockholder servicing fees, and any costs and expenses associated with any claims made by any holders of such securities or any underwriters or placement agents thereof, (iv) costs and expenses associated with any repurchase of any securities by the Initial Limited Partner, (v) costs and expenses associated with the preparation and filing of any periodic or other reports and communications by the Initial Limited Partner under federal, state or local laws or regulations, including filings with the Commission, (vi) costs and expenses associated with compliance by the Initial Limited Partner with laws, rules and regulations promulgated by any regulatory body, including the Commission and any securities exchange, (vii) the management fee payable to the Advisor under the Advisory Agreement and other fees and expenses payable to other services providers of the Initial Limited Partner, (viii) costs and expenses incurred by the Initial Limited Partner relating to any issuing or redemption of Partnership Interests and/or REIT Shares, and (ix) all other operating or administrative costs of the Initial Limited Partner incurred in the ordinary course of its business on behalf of or in connection with the Partnership.

“REIT Payment” has the meaning set forth in Section 13.10 hereof.

“REIT Requirements” means the requirements for qualifying as a REIT under the Code and Regulations.

“REIT Share” means a share of common stock of the Initial Limited Partner (or successor entity, as the case may be), including Class A REIT Shares, Class A-I REIT Shares, Class M REIT Shares, Class M-I REIT Shares and Class D REIT Shares.

“REIT Shares Amount” means a number of REIT Shares having the same Class designation as the Class of Partnership Units offered for exchange by a Tendering Party and having an aggregate Value equal to the aggregate Net Asset Value of such Partnership Units; provided that in the event the Initial Limited Partner issues to all holders of REIT Shares rights, options, warrants or convertible or exchangeable securities entitling the stockholders to subscribe for or purchase REIT Shares, or any other securities or property (collectively, the “rights”), and the rights have not expired at the Specified Redemption Date, then the REIT Shares Amount shall also include the rights issuable to a holder of the REIT Shares Amount of REIT Shares on the record date fixed for purposes of determining the holders of REIT Shares entitled to rights.

“Related Party” means, with respect to any Person, any other Person whose ownership of shares of the Initial Limited Partner’s capital stock would be attributed to the first such Person under Code Section 544 (as modified by Code Section 856(h)(1)(B)).

“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor statute thereto. Reference to any provision of the Securities Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

“Selling Commissions” means any and all commissions payable to underwriters, dealer managers or other broker-dealers in connection with the sale of Units or securities which have converted into Units (including interests in any Delaware statutory trust).

“Service” means the United States Internal Revenue Service.

“Specified Redemption Date” means the first business day of the month following the month of the day that is 45 days after the receipt by the General Partner of the Notice of Redemption.

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

“Substitute Limited Partner” means any Person admitted to the Partnership as a Limited Partner pursuant to Section 9.3.

“Successor Entity” has the meaning set forth in Section 4.3(c)(ii).

“Survivor” has the meaning set forth in Section 7.1(c).

“Tax Advances” has the meaning set forth in Section 5.2(c).

“Tax Items” has the meaning set forth in Section 5.1(f)(ii).

“Tendered Units” has the meaning provided in Section 8.5(a).

“Tendering Party” has the meaning provided in Section 8.5(a).

“Termination Transaction” means any direct or indirect transfer of all or any portion of the Initial Limited Partner’s Partnership Interest or its interest in the General Partner in connection with, (a) a merger, consolidation or other combination involving the Initial Limited Partner or the General Partner, on the one hand, and any other Person, on the other hand, or (b) a sale, lease, exchange or other transfer of all or substantially all of the assets of the Initial Limited Partner not in the ordinary course of its business, whether in a single transaction or a series of related transactions, other than a transfer effected in accordance with Section 7.1.

“Transfer” has the meaning set forth in Section 9.2(a). “Transfers”, “Transferred”, and “Transferring” have correlative meanings.

“Unit Equivalent” means, on any given date, a REIT Share, or REIT Shares, or any portion of a REIT Share, of any given Class having the same Value as the Net Asset Value of one Partnership Unit of the same Class on such date.

“Value” means, for any Class of REIT Shares: (i) if such Class of REIT Shares are Listed, the average closing price per share for the previous 30 trading days, or (ii) if such Class of REIT Shares are not Listed, the Net Asset Value Per REIT Share for REIT Shares of that Class.

1.2.    Interpretation. The definitions in Section 1.1 shall apply equally to both the singular and plural forms of the terms defined. Wherever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine and neuter forms. For all purposes of this Agreement, the term “control” and variations thereof shall mean possession of the authority to direct or cause the direction of the management and policies of the specified entity, through the direct or indirect ownership of equity interests therein, by contract or otherwise. As used in this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” As used in this Agreement, the terms “herein,” “hereof” and “hereunder” shall refer to this Agreement in its entirety. Any references in this Agreement to “Sections” or “Articles” shall, unless otherwise specified, refer to Sections or Articles, respectively, in this Agreement. Any references in this Agreement to an “Exhibit” shall, unless otherwise specified, refer to an Exhibit attached to this Agreement, as such Exhibit may be amended from time to time. Each such Exhibit shall be deemed incorporated in this Agreement in full.

ARTICLE 2

PARTNERSHIP FORMATION AND IDENTIFICATION

2.1.    Formation. The Partnership was formed and continued as a limited partnership pursuant to the Act and all other pertinent laws of the State of Delaware, for the purposes and upon the terms and conditions set forth in this Agreement. Except as expressly provided herein to the contrary, the rights and obligations of the Partners and the administration and termination of the Partnership shall be governed by the Act. No Partner has any interest in any Partnership property, and the Partnership Interest of each Partner shall be personal property for all purposes.

2.2.    Name. The name of the Partnership is JLLIPT Holdings LP. The Partnership’s business may be conducted under any other name or names deemed advisable by the General Partner, including the name of the General Partner or any Affiliate thereof. The words “Limited Partnership,” “L.P.,” “Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purposes of complying with the laws of any jurisdiction that so requires. The General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Partners of such change in the next regular communication to the Partners (or, in the sole discretion of the General Partner, earlier); provided, that the name of the Partnership may not be changed to include the name, or any variant thereof, of any Limited Partner without the written consent of such Limited Partner.

2.3.    Principal Office and Registered Agent. The specified office and principal place of business of the Partnership shall be 333 West Wacker Drive, Chicago, Illinois 60606. The General Partner may at any time change the location of such office, provided the General Partner gives notice to the Partners of any such change. The name and address of the Partnership’s registered agent is Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808. The sole duty of the registered agent as such is to forward to the Partnership any notice that is served on him as registered agent. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner deems advisable.

2.4.    Partners.

(a)    The General Partner of the Partnership is JLLIPT Holdings GP, LLC, a Delaware limited liability company. Its principal place of business is the same as that of the Partnership.

(b)    The Limited Partners are the Initial Limited Partner and any other Persons identified as Limited Partners on the books and records of the Partnership. A Person shall be admitted as a Limited Partner of the Partnership at the time that (a) this Agreement or a counterpart hereof is executed by or on behalf of such Person and (b) such Person is listed by the General Partner as a Limited Partner of the Partnership in the Partnership Register.

2.5.    Term and Dissolution. The Partnership commenced upon the filing for record of the Certificate in the office of the Secretary of State of the State of Delaware on March 10, 2005 and shall continue indefinitely, unless the Partnership is dissolved pursuant to the provisions of Article 11 or as otherwise provided by law.

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

2.7.    Certificates Representing Partnership Units. At the request of a Limited Partner, the General Partner, at its sole and absolute discretion, may issue (but in no way is obligated to issue) a certificate specifying the number and Class of Partnership Units owned by the Limited Partner as of the date of such certificate. Any such certificate (i) shall be in form and substance as approved by the General Partner, (ii) shall not be negotiable and (iii) shall bear a legend to the following effect:

“This certificate is not negotiable. The Partnership Units represented by this certificate are governed by and transferable only in accordance with the provisions of the Second Amended and Restated Limited Partnership Agreement of JLLIPT Holdings LP, as amended from time to time.”

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

ARTICLE 3

PURPOSE AND BUSINESS OF THE PARTNERSHIP

3.1.    Purpose and Business.

(a)    The purpose and nature of the business to be conducted by the Partnership is (i) to conduct any business that may be lawfully conducted by a limited partnership organized pursuant to the Act, provided, however, that such business shall be limited to and conducted in such a manner as to permit the Initial Limited Partner at all times to qualify as a REIT, and in a

manner such that the Initial Limited Partner will not be subject to any taxes under Section 857 or 4981 of the Code (to the extent the Initial Limited Partner determines not being subject to such taxes is desirable), unless the Initial Limited Partner otherwise ceases to qualify as a REIT, (ii) to enter into any partnership, joint venture or other similar arrangement to engage in any of the foregoing or the ownership of interests in any entity engaged in any of the foregoing and (iii) to do anything necessary or incidental to the foregoing. In connection with the foregoing, and without limiting the Initial Limited Partner’s right in its sole and absolute discretion to qualify or cease qualifying as a REIT, the Partners acknowledge that the Initial Limited Partner intends to qualify as a REIT for federal income tax purposes and that such qualification and the avoidance of income and excise taxes on the Initial Limited Partner inures to the benefit of all the Partners and not solely to the Initial Limited Partner. Notwithstanding the foregoing, the Partners agree that the Initial Limited Partner may terminate its status as a REIT under the Code at any time to the full extent permitted under the Articles of Incorporation. The General Partner on behalf of the Partnership shall also be empowered to do any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code.

(b)    Notwithstanding any other provision in this Agreement, the General Partner shall cause the Partnership not to take, or to refrain from taking, any action that, in the judgment of the General Partner, in its sole and absolute discretion, (i) could adversely affect the ability of the Initial Limited Partner to satisfy the REIT Requirements, (ii) could subject the General Partner to any taxes under Code Section 857 or Code Section 4981 or any other related or successor provision under the Code, (iii) could violate any law or regulation of any governmental body or agency having jurisdiction over the Initial Limited Partner, its securities or the Partnership or (iv) could cause the Initial Limited Partner not to be in compliance in all material respects with any covenants, conditions or restrictions now or hereafter placed upon the Initial Limited Partner pursuant to an agreement to which it is a party, unless, in any such case, such action (or inaction) under clause (i), clause (ii), clause (iii) or clause (iv) above shall have been specifically Consented to by the Initial Limited Partner. The foregoing requirement, and all other requirements, limitations and/or restrictions set forth in this Agreement that are intended for the Initial Limited Partner to maintain compliance as a REIT (or that otherwise are intended to prevent any Taxes to be paid by the Initial Limited Partner while it has elected to be a REIT), shall be void and of no effect if the Initial Limited Partner otherwise shall have ceased to, or the Initial Limited Partner determines that the Initial Limited Partner shall no longer, qualify as a REIT.

(c)    The Partnership shall be a partnership only for the purposes specified in Section 3.1 hereof, and this Agreement shall not be deemed to create a company, venture or partnership between or among the Partners or any other Persons with respect to any activities whatsoever other than the activities within the purposes of the Partnership as specified in Section 3.1 hereof. Except as otherwise provided in this Agreement, no Partner shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Partnership,

its properties or any other Partner. No Partner, in its capacity as a Partner under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Partner, nor shall the Partnership be responsible or liable for any indebtedness or obligation of any Partner, incurred either before or after the execution and delivery of this Agreement by such Partner, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to and as limited by the terms of this Agreement and the Act.

3.2.    Representations and Warranties of the Partners

(a)    Each Partner that is an individual (including, without limitation, each additional Limited Partner or Substitute Limited Partner as a condition to becoming an additional Limited Partner or a Substitute Limited Partner) represents and warrants to, and covenants with, each other Partner that (i) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, (ii) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms.

(b)    Each Partner that is not an individual (including, without limitation, each additional Limited Partner or Substitute Limited Partner as a condition to becoming an additional Limited Partner or a Substitute Limited Partner) represents and warrants to, and covenants with, each other Partner that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), manager(s), committee(s), trustee(s), beneficiaries, directors and/or stockholder(s) (as the case may be) as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, charter or bylaws (as the case may be) or any material agreement by which such Partner or any of such Partner’s properties or any of its partners, members, beneficiaries, trustees or stockholders (as the case may be) is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, members, trustees, beneficiaries or stockholders (as the case may be) is or are subject, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms

(c)    Each Partner (including, without limitation, each additional Limited Partner or Substitute Limited Partner as a condition to becoming an additional Limited Partner or Substitute Limited Partner) represents, warrants and agrees that (i) it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances in

violation of applicable laws and (ii) it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment,

(d)    The representations and warranties contained in this Section 3.2 shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an additional Limited Partner or a Substitute Limited Partner, the admission of such additional Limited Partner or Substitute Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership.

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

(f)    Notwithstanding the foregoing, the General Partner may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.2(a), 3.2(b) and 3.2(c) above as applicable to any Partner (including, without limitation any additional Limited Partner or Substitute Limited Partner or any transferee of either), provided that such representations and warranties, as modified, shall be set forth in a separate writing addressed to the Partnership and the General Partner.

(g)    When a Person (such as a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or in some other representative capacity for another Person in acquiring and/or holding Partnership Interests, the representations made in this Section 3.2 shall be made by the beneficial owner of Partnership Interests held by the nominee.

ARTICLE 4

CAPITAL CONTRIBUTIONS AND ACCOUNTS

4.1.    Capital Contributions. The General Partner and the Limited Partners have made capital contributions to the Partnership in exchange for Partnership Interests as set forth in the books and records of the Partnership. The General Partner shall cause to be maintained in the principal business office of the Partnership, or such other place as may be determined by the

General Partner, the books and records of the Partnership which shall include, among other things, a register that contains the name, address, and number, Class and series of Partnership Units of each Partner (the “Partnership Register”) and that reflects periodic changes to the capital contributions made by the Partners and redemptions and other purchases of Partnership Units by the Partnership, and corresponding changes to the Partnership Interests of the Partners, without preparing a formal amendment to this Agreement. Any reference in this Agreement to the Partnership Register shall be deemed a reference to the Partnership Register as in effect from time to time. Subject to the terms of this Agreement, the General Partner may take any action authorized hereunder in respect of the Partnership Register without any need to obtain the consent or approval of any other Partner. No action of any Limited Partner shall be required to amend or update the Partnership Register. Except as required by law, no Limited Partner shall be entitled to receive a copy of the information set forth in the Partnership Register relating to any Partner other than itself.

4.2.    Class A Units, Class A-I Units, Class M Units, Class M-I Units and Class D Units. The General Partner is hereby authorized to cause the Partnership to issue Partnership Units designated as Class A Units, Class A-I Units, Class M Units, Class M-I Units and Class D Units. Each such Class shall have the rights and obligations attributed to that Class under this Agreement.

4.3.    Additional Capital Contributions and Issuances of Additional Partnership Interests. Except as provided in this Section 4.3 or in Section 4.4, the Partners shall have no right or obligation to make any additional Capital Contributions or loans to the Partnership. The Initial Limited Partner may contribute additional capital to the Partnership, from time to time, and receive additional Partnership Interests in respect thereof, in the manner contemplated in this Section 4.3.

(a)    Issuances of Additional Partnership Interests.

(i)    General. The General Partner is hereby authorized to cause the Partnership to issue such additional Partnership Interests in the form of Partnership Units for any Partnership purpose at any time or from time to time to the Partners (including the General Partner and Initial Limited Partner) or to other Persons for such consideration and on such terms and conditions as shall be established by the General Partner in its sole and absolute discretion, all without the approval of any Limited Partners, including but not limited to, Partnership Units issued in connection with the issuance of REIT Shares of, or other interests in, the Initial Limited Partner. Without limiting the foregoing, the General Partner is expressly authorized to cause the Partnership to issue Partnership Units (i) upon the conversion, redemption or exchange of any Debt, Partnership Units, or other securities issued by the Partnership, (ii) for such consideration as the General Partner may determine, (iii) in connection with any merger of any other Person into the Partnership or (iv) upon the contribution of property or assets to the Partnership. Upon the issuance of

any additional Partnership Interest, the General Partner shall, without the Consent of any other Partners, amend the Partnership Register as appropriate to reflect such issuance. Any additional Partnership Interests issued thereby may be issued in one or more Classes (including the Classes specified in this Agreement or any other Classes), or one or more series of any of such Classes, with such designations, preferences and relative, participating, optional or other special rights, voting and other powers and duties, including rights, powers and duties senior to Limited Partnership Interests, all as shall be determined by the General Partner in its sole and absolute discretion and without the approval of any Limited Partner, subject to Delaware law, including, without limitation, (i) the allocations of items of Partnership income, gain, loss, deduction and credit to each such Class or series of Partnership Interests; (ii) the right of each such Class or series of Partnership Interests to share in Partnership distributions; and (iii) the rights of each such Class or series of Partnership Interests upon dissolution and liquidation of the Partnership; provided, however, that no additional Partnership Interests shall be issued to the Initial Limited Partner unless:

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

(ii)    Upon Issuance of Additional Securities. Upon the issuance by the Initial Limited Partner of any Additional Securities (including pursuant to the Initial Limited Partner’s distribution reinvestment plan) other than to all holders of REIT

Shares, the Initial Limited Partner may contribute any net proceeds from the issuance of such Additional Securities and from any exercise of rights contained in such Additional Securities, directly and through the Initial Limited Partner, to the Partnership in return for, as the Initial Limited Partner may designate, Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights such that their economic interests are substantially similar to those of the Additional Securities; provided, however, that the Initial Limited Partner is allowed to use net proceeds from the issuance and sale of such Additional Securities to repurchase REIT Shares pursuant to a share repurchase plan. Without limiting the foregoing, the Initial Limited Partner is expressly authorized to issue Additional Securities for less than fair market value, and to cause the Partnership to issue to the Initial Limited Partner corresponding Partnership Interests, so long as the General Partner concludes in good faith that such issuance is in the best interests of the Initial Limited Partner and the Partnership. Without limiting the foregoing, if the Initial Limited Partner issues REIT Shares of any Class for a cash purchase price and contributes all of the net proceeds of such issuance to the Partnership as required hereunder, the Initial Limited Partner (or the General Partner, as the case may be) shall be issued a number of additional Partnership Units having the same Class designation and aggregate Net Asset Value as the issued REIT Shares the proceeds of which were so contributed.

(b)    Certain Deemed Contributions of Proceeds of Issuance of REIT Shares. In connection with any and all issuances of REIT Shares, to the extent that the Initial Limited Partner shall make Capital Contributions, directly or through the General Partner, to the Partnership of the proceeds therefrom, if the proceeds actually received and contributed by the Initial Limited Partner in respect of the REIT Shares the proceeds of which were so contributed are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid or incurred in connection with such issuance, then the Initial Limited Partner (or the General Partner, as the case may be) shall be deemed to have made Capital Contributions to the Partnership in the aggregate amount of the gross proceeds of such issuance and the Partnership shall be deemed simultaneously to have paid such offering expenses in accordance with Section 6.5 and in connection with the required issuance of additional Partnership Units to the Initial Limited Partner (or the General Partner, as the case may be) for such Capital Contributions pursuant to Section 4.3(a). In connection with any and all issuances of REIT Shares pursuant to the Initial Limited Partner’s distribution reinvestment plan, the Initial Limited Partner (or the General Partner, as the case may be) shall be deemed to have made Capital Contributions to the Partnership in the aggregate amount of the distributions that have been reinvested in respect of the REIT Shares issued by the Initial Limited Partner in return for an equal number of Partnership Units having the same Class designation as the issued REIT Shares.

4.4.    Additional Funding. If the General Partner determines that it is in the best interests of the Partnership to provide for additional Partnership funds (“Additional Funds”) for any Partnership purpose, the General Partner may (i) cause the Partnership to obtain such funds

by incurring Debt to any Person upon such terms as the General Partner determines to be appropriate (including making such Debt convertible, redeemable or exchangeable for Partnership Units), (ii) elect to have the General Partner or any of its Affiliates provide such Additional Funds to the Partnership through loans, purchase of additional Partnership Interests or otherwise (which the General Partner or such Affiliates will have the option, but not the obligation, of providing) or (iii) cause the Partnership to issue additional Partnership Interests and admit additional Limited Partners to the Partnership in accordance with Section 4.3.

4.5.    Capital Accounts. A separate capital account (a “Capital Account”) shall be established and maintained for each Partner in accordance with Regulations Section 1.704-1(b)(2)(iv), and a Partner shall have a single Capital Account with respect to all Partnership Interests held by such Partner. If (i) a new or existing Partner acquires an additional Partnership Interest in exchange for more than a de minimis Capital Contribution, (ii) the Partnership distributes to a Partner more than a de minimis amount of Partnership property or money as consideration for a Partnership Interest, (iii) the Partnership is liquidated within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g), or (iv) the Partnership grants a Partnership Interest (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Partnership, the General Partner may revalue the property of the Partnership to its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) in accordance with Regulations Section 1.704-1(b)(2)(iv)(f). When the Partnership’s property is revalued by the General Partner, the Capital Accounts of the Partners shall be adjusted in accordance with Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), which generally require such Capital Accounts to be adjusted to reflect the manner in which the unrealized gain or loss inherent in such property (that has not been reflected in the Capital Accounts previously) would be allocated among the Partners pursuant to Section 5.1 if there were a taxable disposition of such property for its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) on the date of the revaluation.

4.6.    Percentage Interests. If the number of outstanding Partnership Units increases or decreases during a taxable year, each Partner’s Percentage Interest shall be adjusted by the General Partner effective as of the effective date of each such increase or decrease to a percentage equal to the number of Partnership Units held by such Partner divided by the aggregate number of Partnership Units outstanding after giving effect to such increase or decrease. If the Partners’ Percentage Interests are adjusted pursuant to this Section 4.6, the Profits and Losses for the taxable year in which the adjustment occurs shall be allocated between the part of the year ending on the day when the adjustment occurs and the part of the year beginning on the following day either (i) as if the taxable year had ended on the date of the adjustment or (ii) based on the number of days in each part. The General Partner, in its sole and absolute discretion, shall determine which method shall be used to allocate Profits and Losses for the taxable year in which the adjustment occurs. The allocation of Profits and Losses for the earlier

part of the year shall be based on the Percentage Interests before adjustment, and the allocation of Profits and Losses for the later part shall be based on the adjusted Percentage Interests.

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

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

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

4.10.    No Preemptive Rights. Except as expressly provided in this Agreement, no Person, including, without limitation, any Partner or assignee, shall have any preemptive, preferential, participation or similar right or rights to subscribe for or acquire any Partnership Interest or to otherwise make an additional Capital Contribution.

ARTICLE 5    

PROFITS AND LOSSES; DISTRIBUTIONS

5.1.    Allocation of Profit and Loss.

(a)    General Allocations. The items of Profit and Loss of the Partnership for each fiscal year or other applicable period shall be allocated among the Partners in a manner that

will, as nearly as possible (after giving effect to the allocations under Section 5.1(b) and 5.1(f)) cause the Capital Account balance of each Partner at the end of such fiscal year or other applicable period to equal (i) the amount of the hypothetical distribution that such Partner would receive if the Partnership were liquidated on the last day of such period and all assets of the Partnership, including cash, were sold for cash equal to their Carrying Values, taking into account any adjustments thereto for such period, all liabilities of the Partnership were satisfied in full in cash according to their terms (limited with respect to each nonrecourse liability to the Carrying Value of the assets securing such liability) and the remaining cash proceeds (after satisfaction of such liabilities) were distributed in full pursuant to Section 5.2, minus (ii) the sum of such Partner’s share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain and the amount, if any and without duplication, that the Partner would be obligated to contribute to the capital of the Partnership, all computed as of the date of the hypothetical sale of assets. Notwithstanding the foregoing, the General Partner may make such allocations as it deems reasonably necessary to give economic effect to the provisions of this Agreement, taking into account facts and circumstances as the General Partner deems reasonably necessary for this purpose.

(b)    Regulatory Allocations. Notwithstanding any other provision of this Agreement:

(i)    Minimum Gain Chargeback. If there is a net decrease in Partnership Minimum Gain or Partner Nonrecourse Debt Minimum Gain (determined in accordance with the principles of Regulations Sections 1.704-2(d) and 1.704-2(i)) during any Partnership taxable year, the Partners shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to their respective shares of such net decrease during such year, determined pursuant to Regulations Sections 1.704-2(g) and 1.704-2(i)(5). The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(f). This Section 5.1(b)(i) is intended to comply with the minimum gain chargeback requirements in such U.S. Regulations Sections and shall be interpreted consistently therewith, including that no chargeback shall be required to the extent of the exceptions provided in Regulations Sections 1.704-2(f) and 1.704-2(i)(4).

(ii)    Qualified Income Offset. If any Partner unexpectedly receives any adjustments, allocations, or distributions described in U.S. Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate the deficit Capital Account balance created by such adjustments, allocations or distributions as promptly as possible; provided that an allocation pursuant to this Section 5.1(b)(ii) shall be made only to the extent that a Partner would have a deficit Capital Account balance in excess of such sum after all other allocations provided for in this Article 5 have been tentatively made as if this Section 5.1(b)(ii) were not in this Agreement. This

Section 5.1(b)(ii) is intended to comply with the “qualified income offset” requirement of the Code and shall be interpreted consistently therewith.

(iii)    Gross Income Allocation. If one or more Partners has a deficit Capital Account at the end of any fiscal year that is in excess of the sum of (i) the amount each such Partner is obligated to restore, if any, pursuant to any provision of this Partnership Agreement, and (ii) the amount each such Partner is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Partner shall be specially allocated items of Partnership income and gain in the amount of such excess as quickly as possible (in proportion to the amount of such deficit); provided that an allocation pursuant to this Section 5.1(b)(iii) shall be made only if and to the extent that a Partner would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article 5 have been tentatively made as if Section 5.1(b)(ii) and this Section 5.1(b)(iii) were not in this Partnership Agreement.

(iv)    Payee Allocation. If any payment to any person that is treated by the Partnership as the payment of an expense is recharacterized by a taxing authority as a Partnership distribution to the payee as a partner, such payee shall be specially allocated, in the manner determined by the General Partner, an amount of Partnership gross income and gain as quickly as possible equal to the amount of the distribution.

(v)    Nonrecourse Deductions. Nonrecourse Deductions shall be allocated pro rata based on the number of Partnership Units held by each Partner. “Nonrecourse Deductions” has the meaning specified in Regulations Sections 1.704-2(b)(1) and 1.704-2(c).

(vi)    Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable period shall be allocated to the Partner who bears the economic risk of loss with respect to the liability to which such Partner Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(j). “Partner Nonrecourse Deductions” has the meaning specified in Regulations Section 1.704-2(i)(2).

(vii)    Any special allocations of income or gain pursuant to Section 5.1(b)(ii) or Section 5.1(b)(iii) hereof shall be taken into account in computing subsequent allocations pursuant to Section 5.1(a) and this Section 5.1(b)(viii), so that the net amount of any items so allocated and all other items allocated to each Partner shall, to the extent possible, be equal to the net amount that would have been allocated to each Partner if such allocations pursuant to Section 5.1(b)(ii) or Section 5.1(b)(iii) had not occurred.

(viii)    Section 754 Adjustment. To the extent that an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code

Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Partner in complete liquidation of its interest in the Partnership, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Partners in accordance with their respective interests in the Partnership in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Partner(s) to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

(ix)    Excess Nonrecourse Liabilities. The Partnership shall allocate “nonrecourse liabilities” (within the meaning of Regulations Section 1.752-1(a)(2)) of the Partnership that are secured by multiple Properties under any reasonable method chosen by the General Partner in accordance with Regulations Section 1.752-3(a)(3) and (b). For purposes of determining a Partner’s proportional share of the “excess nonrecourse liabilities” of the Partnership within the meaning of Regulations Section 1.752-3(a)(3), each Partner’s respective interest in Partnership profits shall be equal to the relative Net Asset Value of the Partners’ Partnership Units, except as otherwise determined by the General Partner.

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

(d)    Definition of Profit and Loss. “Profit” and “Loss” and any items of income, gain, expense, or loss referred to in this Agreement shall be determined in accordance with the accounting method used by the Partnership for U.S. federal income tax purposes with the following adjustments: (i) all items of income, gain, loss or deduction allocated pursuant to Sections 5.1(b)(i) through (iii) shall not be taken into account in computing such taxable income or loss; (ii) any income of the Partnership that is exempt from U.S. federal income taxation and not otherwise taken into account in computing Profit and Loss shall be added to such taxable income or loss; (iii) if the Carrying Value of any asset differs from its adjusted tax basis for U.S. federal income tax purposes, any depreciation, amortization, gain or loss resulting from a disposition of such asset shall be calculated with reference to such Carrying Value; (iv) upon an

adjustment to the Carrying Value of any asset pursuant to the definition of Carrying Value (other than an adjustment in respect of depreciation, amortization or cost recovery deductions), the amount of the adjustment shall be included as gain or loss in computing such taxable income or loss; (v) if the Carrying Value of any asset differs from its adjusted tax basis for U.S. federal income tax purposes, the amount of depreciation, amortization or cost recovery deductions with respect to such asset for purposes of Profit and Loss shall be an amount which bears the same ratio to such Carrying Value as the U.S. federal income tax depreciation, amortization or other cost recovery deductions bears to such adjusted tax basis (provided that if the U.S. federal income tax depreciation, amortization or other cost recovery deduction is zero, the Partners may use any reasonable method for purposes of determining depreciation, amortization or other cost recovery deductions in calculating Profit and Loss; and (vi) except for items in (i) above, any expenditures of the Partnership not deductible in computing taxable income or loss, not properly capitalizable and not otherwise taken into account in computing Profit and Loss pursuant to this definition shall be treated as deductible items.

(e)    Tax Allocations.

(i)    All items of income, gain, loss, deduction and credit of the Partnership shall be allocated among the Partners for federal, state and local income tax purposes consistent with the manner that the corresponding constituent items of Profit and Loss shall be allocated among the Partners pursuant to this Partnership Agreement in the manner determined by the General Partner, except as may otherwise be provided herein or by the Code. Notwithstanding the foregoing, the General Partner may make such allocations as it deems reasonably necessary to give economic effect to the provisions of this Agreement, taking into account facts and circumstances as the General Partner deems reasonably necessary for this purpose.

(ii)    Section 704(c) Allocations. Notwithstanding Section 6.1(f)(i) hereof, for income tax purposes under the Code and the Regulations, each Partnership item of income, gain, loss and deduction (collectively, “Tax Items”) with respect to Property that is contributed to the Partnership with an initial Carrying Value that varies from its basis in the hands of the contributing Partner immediately preceding the date of contribution shall be allocated among the Partners for income tax purposes pursuant to Regulations promulgated under Code Section 704(c) so as to take into account such variation under any method approved under Code Section 704(c) and the applicable Regulations as chosen by the General Partner. In the event that the Carrying Value of any Partnership asset is adjusted to equal its respective fair market value, subsequent allocations of Tax Items with respect to such asset shall take account of the variation, if any, between the adjusted basis of such asset and its Carrying Value in the same manner as under Code Section 704(c) and the applicable Regulations and using the method chosen by the General Partner. Allocations pursuant to this Section 6.1(e)(ii) are solely for purposes of federal, state and local income taxes and shall not affect, or in any way be

taken into account in computing, any Partner’s Capital Account or share of Profit, Loss, or any other items or distributions pursuant to any provision of this Agreement.

(f)    Curative Allocations. The allocations set forth in Section 5.1(b) of this Agreement (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. The General Partner is authorized to offset all Regulatory Allocations either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss or deduction pursuant to this Section 5.1(f). Therefore, notwithstanding any other provision of this Section 5.1 (other than the Regulatory Allocations), the General Partner shall make such offsetting special allocations of Partnership income, gain, loss or deduction in whatever manner it deems appropriate so that, after such offsetting allocations are made, each Partner’s Capital Account is, to the extent possible, equal to the Capital Account balance such Partner would have had if the Regulatory Allocations were not part of this Agreement and all Partnership items were allocated pursuant to Sections 5.1(a).

(g)    Disregarded Entity. Notwithstanding anything in this Agreement to the contrary, for so long as the Partnership is treated as a disregarded entity for federal and applicable state and local income tax purposes, the provisions of Sections 5.1 (Allocation of Profit and Loss), 10.5 (Tax Elections; Special Basis Adjustments) and 11.3 (Deemed Contribution and Distribution) shall not apply.

5.2.    Distribution of Cash.

(a)    The Partnership shall distribute cash on a quarterly (or, at the election of the General Partner, more or less frequent) basis, in an amount determined by the General Partner in its sole and absolute discretion, to the Partners who are Partners on the Partnership Record Date with respect to such quarter (or other distribution period) in accordance with Section 5.2(b). The Partnership shall be deemed to have distributed cash to the Initial Limited Partner in an amount equal to the Deemed Reinvested Amount, and the Initial Limited Partner shall be deemed to have made Capital Contributions to the Partnership in the amount of the Deemed Reinvested Amount in return for a number of Partnership Units, of the same Class designation as the issued REIT Shares, determined by dividing the Deemed Reinvested Amount by the Net Asset Value of such Partnership Units on the applicable Partnership Record Date.

(b)    Except for distributions pursuant to Sections 5.8 in connection with the dissolution and liquidation of the Partnership, 5.2(c), 5.2(d), 5.3 and 5.4, all distributions of cash (including any deemed distributions pursuant to Section 5.2(a)) shall be made to the Partners in amounts proportionate to the aggregate Net Asset Value of the Partnership Units held by the respective Partners on the Partnership Record Date, except that the amount distributed per Partnership Unit of any Class may differ from the amount per Partnership Unit of another Class on account of expenses allocable to a specific Class as determined by the General Partner in good faith, including without limitation any selling commissions or ongoing servicing fees payable by the Partnership or any of its subsidiaries to broker-dealers with respect to any

particular Class of Partnership Units on account of such broker-dealers’ sales or servicing of Partnership Units of such Class.

(c)    To the extent the Partnership is required by law to withhold or to make tax payments (including interest and penalties thereon) on behalf of or with respect to any Partner (“Tax Advances”), the General Partner may withhold such amounts and make such tax payments as so required. All Tax Advances made on behalf of a Partner shall, at the option of the General Partner, (i) be promptly paid to the Partnership by the Partner on whose behalf such Tax Advances were made or (ii) 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. Whenever the General Partner selects the option set forth in clause (ii) of the immediately preceding sentence for repayment of a Tax Advance by a Partner, for all other purposes of this Partnership Agreement such Partner shall be treated as having received all distributions unreduced by the amount of such Tax Advance. Each Partner hereby agrees to indemnify and hold harmless the Partnership, the General Partner, the Initial Limited Partner and any member or officer of the Initial Limited Partner from and against any liability with respect to Tax Advances required on behalf of or with respect to such Partner. Each Partner shall furnish the General Partner with such information, forms and certifications as it may require and as are necessary to comply with the regulations governing the obligations of withholding tax agents, as well as such information, forms and certifications as are necessary with respect to any withholding taxes imposed by countries other than the United States and represents and warrants that the information and forms furnished by it shall be true and accurate in all respects. The amount of any taxes paid by or withheld from receipts of the Partnership (or any investment in which the Partnership invests that is treated as a flow-through entity for U.S. federal income tax purposes) allocable to a Partner from an Investment shall be deemed to have been distributed to each Partner to the extent that the payment or withholding of such taxes reduced distribution proceeds otherwise distributable to such Partner as provided herein.

(d)    In no event may a Partner receive a distribution of cash with respect to a Partnership Unit if such Partner is entitled to receive a cash distribution as the holder of record of a REIT Share for which all or part of such Partnership Unit has been or will be exchanged.

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

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

5.5.    Limitations on Return of Capital Contributions. Notwithstanding any of the provisions of this Article 5, no Partner shall have the right to receive and the General Partner shall not have the right to make, a distribution that includes a return of all or part of a Partner’s Capital Contributions, unless after giving effect to the return of a Capital Contribution, the sum of all Partnership liabilities, other than the liabilities to a Partner for the return of his Capital Contribution, does not exceed the fair market value of the Partnership’s assets.

5.6.    Amendments to Reflect Additional Partnership Units. In the event that the Partnership issues additional Partnership Units pursuant to the provisions of Article 4 hereof, the General Partner is hereby authorized, without the Consent of any other Partner, to make such revisions to this Article 5 and other provisions of this Agreement as it determines are necessary or desirable to reflect the issuance of such additional Partnership Units, including, without limitation, making preferential distributions and allocations to Holders of certain Classes of Partnership Units.

5.7.    Restricted Distributions. Notwithstanding any provision to the contrary contained in this Agreement, neither the Partnership nor the General Partner, on behalf of the Partnership, shall make a distribution to any Holder if such distribution would violate the Act or other applicable law.

5.8.    Distributions Upon Liquidation. Immediately before liquidation of the Partnership, Class A Units will automatically convert to Class M-I Units at the Class A Conversion Rate, Class A-I Units will automatically convert to Class M-I Units at the Class A-I Conversion Rate, Class M Units will automatically convert to Class M-I Units at the Class M Conversion Rate and Class D Units will automatically convert to Class M-I Units at the Class D Conversion Rate. Upon liquidation of the Partnership, after payment of, or adequate provision for, debts and obligations of the Partnership, including any Partner loans, and after payment of any accrued Advisory Fees, any remaining assets of the Partnership shall be distributed to each holder of Class M-I Units, ratably with each other holder of Class M-I Units, which will include all converted Class A Units, Class A-I Units, Class M Units and Class D Units, in such proportion as the number of outstanding Class M-I Units held by such holder bears to the total number of outstanding Class M-I Units then outstanding.

Notwithstanding any other provision of this Agreement, the amount by which the value, as determined in good faith by the General Partner, of any property other than cash to be distributed in kind to the Partners exceeds or is less than the Carrying Value of such property shall, to the extent not otherwise recognized by the Partnership, be taken into account in computing Profit and Loss of the Partnership for purposes of crediting or charging the Capital Accounts of, and distributing proceeds to, the Partners, pursuant to this Agreement.

To the extent deemed advisable by the General Partner, appropriate arrangements (including the use of a liquidating trust) may be made to assure that adequate funds are available to pay any contingent debts or obligations.

5.9.    Substantial Economic Effect. It is the intent of the Partners that the allocations under Sections 5.1(a), 5.1(b) and 5.1(f) (as and when applicable) have substantial economic effect (or be consistent with the Partners’ interests in the Partnership in the case of the allocation of losses attributable to nonrecourse debt) within the meaning of Section 704(b) of the Code as interpreted by the Regulations promulgated pursuant thereto. Article 5 and other relevant provisions of this Agreement shall be interpreted in a manner consistent with such intent.

5.10.    Reinvestment. Subject to legal, tax, regulatory or other similar considerations, each Limited Partner holding Partnership Units agrees to participate in the reinvestment program of distributions to the holders of Partnership Units (the “DRIP” and any participating Limited Partner, a “DRIP Participant”) unless otherwise agreed with the General Partner in writing. The following provisions shall apply to the DRIP and any Limited Partner’s participation therein:

(a)    Subject to Section 5.10(b)(v), the General Partner shall, on behalf of each DRIP Participant, pay to the Initial Limited Partner all distributions to be made to such DRIP Participant with respect to its Partnership Units in exchange for such DRIP Participant being issued REIT Shares of the same Class of Partnership Units held by such DRIP Participant with respect to which such distribution is being made. REIT Shares issued pursuant to the DRIP shall be purchased at the applicable Net Asset Value Per REIT Share on the date that the distribution is payable.

(b)    In connection with this Section 5.10, each Limited Partner agrees and acknowledges as follows:

(i)    The Partnership has designated the General Partner to administer the DRIP and act as agent for the DRIP Participants. The General Partner shall credit distributions to DRIP Participants and shall reinvest such distributions in REIT Shares of the same Class as the Partnership Units held by such DRIP Participant with respect to which such distribution is made.

(ii)    A DRIP Participant shall remain in the DRIP until such DRIP Participant withdraws from the DRIP in accordance with Section 5.10(b)(v) or the General Partner terminates or suspends the DRIP.

(iii)    A DRIP Participant shall, on the date that the distribution is payable, be deemed to have received a cash distribution from the Partnership and paid to the Initial Limited Partner the entire amount of such cash distribution that otherwise would have been received by such DRIP Participant in such distribution, in exchange for the Initial Limited Partner’s issuance of REIT Shares to such DRIP Participant (at the then-current Net Asset Value Per REIT Share). No interest shall be paid on cash distributions pending reinvestment in REIT Shares under the terms of the DRIP.

(iv)    No DRIP Participant shall have any authorization or power to direct the time or price at which REIT Shares shall be purchased. The total amount to be invested shall depend on the amount of any distributions paid on the number of Partnership Units owned by the DRIP Participant, as well as any withholding taxes paid on behalf of such DRIP Participant.

(v)    DRIP Participants may elect to withdraw from the DRIP with respect to the Partnership Units held in their account in the DRIP by providing 10 days’ prior written notice of such election to withdraw in a form acceptable to the General Partner and such election to withdraw shall be effective until rescinded by providing written notice of an election to reinstate participation in the DRIP in a form acceptable to the General Partner. Such written notice of such election to withdraw or be reinstated, as the case may be, must be received by the General Partner prior to the last day of the quarter in order for a Participant’s termination to be effective for such quarter (i.e., a timely termination notice will be effective as of the last day of the quarter in which it is timely received and will not affect participation in the DRIP for any prior quarter). Any transfer of Partnership Units by a DRIP Participant to a non-DRIP Participant will terminate participation in the DRIP with respect to the transferred Partnership Units. If a DRIP Participant requests that the Company repurchase all or any portion of the DRIP Participant’s Partnership Units, the DRIP Participant’s participation in the DRIP with respect to the DRIP Participant’s Partnership Units for which repurchase was requested but that were not repurchased will be terminated. If a DRIP Participant terminates DRIP participation, the Initial Limited Partner may, at its option, ensure that the terminating DRIP Participant’s account will reflect the whole number of REIT Shares in such DRIP Participant’s account and provide a check or other instrument of payment for the cash value of any fractional REIT Share in such account. Upon termination of DRIP participation for any reason, future distributions will be distributed to the Investor in cash.

(c)    This Section 5.10 shall not apply to any distributions to the General Partner or Initial Limited Partner made pursuant to Section 5.2(a).

ARTICLE 6    

RIGHTS, OBLIGATIONS AND
POWERS OF THE GENERAL PARTNER

6.1.    Management of the Partnership.

(a)    Except as otherwise expressly provided in this Agreement, the General Partner shall have full, complete and exclusive discretion to manage and control the business of the Partnership for the purposes herein stated, and shall make all decisions affecting the business and assets of the Partnership. Subject to the restrictions specifically contained in this Agreement

and without limiting any powers of the Advisor pursuant to the Advisory Agreement, the powers of the General Partner shall include, without limitation, the authority to take the following actions on behalf of the Partnership:

(i)    to acquire, purchase, own, operate, lease and dispose of any Property;

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

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

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

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

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

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

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

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

(x)    to file applications, communicate, and otherwise deal with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business, including the registration of any Class or series of the Partnership Units under the Securities Act or Exchange Act, and the listing of any debt securities of the Partnership on any securities exchange or trading forum;

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

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

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

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

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

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

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

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

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

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

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

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

(xxiii)    the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership, or any other Person in which the Partnership has a direct or indirect interest pursuant to contractual or other arrangements; and

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

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

(c)    Each of the Limited Partners agrees that the General Partner is authorized to execute and deliver any affidavit, agreement, certificate, consent, instrument, notice, power of attorney, waiver or other writing or document in the name and on behalf of the Partnership and to

otherwise exercise any power of the General Partner under this Agreement and the Act on behalf of the Partnership without any further act, approval or vote of the Partners or any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the execution of any such document or writing by an officer of the General Partner, in the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (1) the approval thereof by the General Partner, in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or writing is necessary, advisable, appropriate, desirable or prudent to conduct the business and affairs of the Partnership, exercise the powers of the Partnership under this Agreement and the Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or execution of such document in writing, and (3) the authority of such officer with respect thereto.

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

(e)    In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken (or not taken) by it, but shall be obligated to take such action as is necessary to ensure satisfaction of the REIT Requirements with respect to the Initial Limited Partner. To the fullest extent permitted by law, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of any income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement. Notwithstanding the foregoing, in connection with the acquisition of properties from Persons to whom the Partnership issues Partnership Interests as part of the purchase price, in order to preserve such Persons’ tax deferral, the Partnership may contractually agree not to sell or otherwise transfer the properties for a specified period of time, or in some instances, not to sell or otherwise transfer the properties without compensating the sellers of the properties for their loss of the tax deferral.

6.2.    Delegation of Authority. The General Partner may delegate any or all of its powers, rights and obligations hereunder to any Person, and may appoint, employ, contract or otherwise deal with any Person for the transaction of the business of the Partnership, which Person (which may include the Advisor) may, under supervision of the General Partner, perform any acts or services for the Partnership as the General Partner may approve. The General Partner is expressly authorized on behalf of the Partnership to cause the Partnership to enter into the Advisory Agreement.

6.3.    Indemnification and Exculpation of Indemnitees.

(a)    To the fullest extent permitted by law, the Partnership shall indemnify and hereby agrees to indemnify and hold harmless an Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, costs and expenses (including reasonable legal fees and expenses), judgments, fines, settlements, penalties and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, of any nature whatsoever, known or unknown, liquidated or unliquidated, that are incurred by any Indemnitee and that relate to the operations of the Partnership as set forth in this Agreement in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and constituted willful misconduct or gross negligence; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. The termination of any proceeding by settlement, judgment, order or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner that the Indemnitee believed to be in or not opposed to the best interests of the Partnership or that the Indemnitee’s conduct constituted fraud, willful misconduct, gross negligence, a material breach of this Agreement, a breach of its fiduciary duty or, with respect to any criminal action or proceeding, an Indemnitee had no reasonable cause to believe his conduct was unlawful. Any indemnification pursuant to this Section 6.3 shall be made only out of the assets of the Partnership.

(b)    Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the Partnership or any Subsidiary of the Partnership (including, without limitation, any indebtedness which the Partnership or any Subsidiary of the Partnership has assumed or taken subject to), and the General Partner is hereby authorized and empowered, on behalf of the Partnership, to enter into one or more indemnity agreements consistent with the provisions of this Section 6.3 in favor of any Indemnitee having or potentially having liability for any such indebtedness. It is the intention of this Section 6.3 that the Partnership indemnify each Indemnitee to the fullest extent permitted by law and this Agreement. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 6.3.

(c)    The Partnership shall reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in this Section 6.3 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.

(d)    The indemnification provided by this Section 6.3 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to which such Indemnitee is indemnified.

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

(f)    For purposes of this Section 6.3, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.3; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Partnership.

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

(h)    An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.3 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement and the Articles of Incorporation.

(i)    The provisions of this Section 6.3 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 6.3 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Partnership’s liability to any Indemnitee under this Section 6.3 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

(j)    It is the intent of the parties that any amounts paid by the Partnership to the General Partner pursuant to this Section 6.3 shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts.

6.4.    Liability and Obligations of the General Partner.

(a)    Notwithstanding anything to the contrary set forth in this Agreement, the General Partner shall not be liable for monetary damages to the Partnership or any Partners for losses sustained or liabilities incurred as a result of errors in judgment or of any act or omission not amounting to willful misconduct or gross negligence. The General Partner shall not be in breach of any duty that the General Partner may owe to the Limited Partners or the Partnership or any other Persons under this Agreement or of any duty stated or implied by law or equity provided the General Partner, acting in good faith, abides by the terms of this Agreement.

(b)    The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, itself, the Initial Limited Partner and the stockholders of the Initial Limited Partner, and that the General Partner is not under any obligation to consider the separate interests of the Limited Partners other than the Initial Limited Partner (including, without limitation, the tax consequences to Limited Partners or the tax consequences of some, but not all, of the Limited Partners) in deciding whether to cause the Partnership to take (or decline to take) any actions; provided, however, that the General Partner shall be obligated to take or refrain from taking such actions as necessary to ensure that the Initial Limited Partner is able to maintain its status as a REIT. In the event of a conflict between the interests of the Initial Limited Partner and its stockholders on one hand and the other Limited Partners on the other, the General Partner shall endeavor in good faith to resolve the conflict in a manner not adverse to either the Initial Limited Partner or its stockholders or the other Limited Partners; provided, however, that for so long as the Initial Limited Partner directly owns a majority interest in the Partnership, any such conflict that the General Partner, in its sole and absolute discretion, determines cannot be resolved in a manner not adverse to either the Initial Limited Partner or it stockholders or the other Limited Partners shall be resolved in favor of the Initial Limited Partner and its stockholders. The General Partner shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions, provided that the General Partner has acted in good faith.

(c)    Subject to its obligations and duties as General Partner set forth in Section 6.1 hereof, the General Partner may exercise any of the powers granted to it under this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents. The General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.

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

to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the Initial Limited Partner to continue to qualify as a REIT or the Partnership to be taxed as a partnership, (ii) to prevent the Initial Limited Partner from incurring any taxes under Section 857, Section 4981, or any other provision of the Code, (iii) to ensure that the Partnership will not be classified as a “publicly traded partnership” under section 7704 of the Code, (iv) for the Initial Limited Partner to otherwise satisfy the REIT Requirements or the Partnership to satisfy the “qualifying income” requirement of Code Section 7704(c), or (v) for any Affiliate to continue to qualify as a “qualified REIT subsidiary” within the meaning of Code Section 856(i)(2), is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to the Partners in such amounts as will permit the Initial Limited Partner to prevent the imposition of any federal income tax on the Initial Limited Partner (including, for this purpose, any excise tax pursuant to Code Section 4981), to make distributions to its stockholders and payments to any taxing authority sufficient to permit the Initial Limited Partner to maintain REIT status or otherwise to satisfy the REIT Requirements).

(e)    Any amendment, modification or repeal of this Section 6.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the General Partner’s liability to the Partnership and the Limited Partners under this Section 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when claims relating to such matters may arise or be asserted.

(f)    To the extent that, at law or in equity, the General Partner has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or the Limited Partners, the General Partner shall not be liable to the Partnership or to any other Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of the General Partner under the Act or otherwise existing at law or in equity to the Partnership or its partners, are agreed by the Partners to replace such other duties and liabilities of such General Partner.

(g)    To the fullest extent permitted by law and notwithstanding any other provision of this Agreement or in any agreement contemplated herein or applicable provisions of law or equity or otherwise, whenever in this Agreement the General Partner or the Liquidator is permitted or required to make a decision (i) in its “sole and absolute discretion,” “sole discretion” or “discretion” or under a grant of similar authority or latitude, the General Partner and the Liquidator, as applicable, shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest or factors affecting the Partnership or the Partners or any of them, or (ii) in its “good faith” or under another expressed standard, the General Partner shall act under such express standard and shall not be subject to any other or different standards. If any question

should arise with respect to the operation of the Partnership, which is not otherwise specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the General Partner is hereby authorized to make a final determination with respect to any such question and to interpret this Agreement in such a manner as it shall deem, in its sole discretion, to be fair and equitable, and its determination and interpretations so made shall be final and binding on all parties. The General Partner’s “sole and absolute discretion,” “sole discretion” and “discretion” under this Agreement shall be exercised consistently with the General Partner’s fiduciary duties and obligation under the implied contractual covenant of good faith and fair dealing under the Act.

(h)    Notwithstanding anything to the contrary in this agreement, it is understood and/or agreed that the term “good faith” as used in this agreement shall, in each case, mean “subjective good faith” as understood and interpreted under Delaware law; provided, however, that for the avoidance of doubt, any resolution of a conflict of interest between the Initial Limited Partner or the interests of stockholders of the Initial Limited Partner, on the one hand, and the Partnership or any Limited Partner on the other hand, in a manner favorable to the Initial Limited Partner or the interests of the stockholders of the Initial Limited Partner shall not be deemed a violation of such “subjective good faith” standard.

6.5.    Reimbursement of General Partner and Initial Limited Partner.

(a)    Except as provided in this Section 6.5 and elsewhere in this Agreement (including the provisions of Articles 5 and 6 regarding distributions, payments, and allocations to which it may be entitled), the General Partner shall not be compensated for its services as general partner of the Partnership.

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

6.6.    Outside Activities.

(a)    Subject to Section 6.7 hereof, the Articles of Incorporation and any agreements entered into by the General Partner, Initial Limited Partner or an Affiliate of either with the Partnership or any of its Subsidiaries, any officer, director, employee, agent, trustee, Affiliate or stockholder of the General Partner or the Initial Limited Partner shall be entitled to and may have, directly or indirectly, business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities substantially similar or identical to those of the Partnership. Neither the Partnership nor any of the Limited Partners shall have any rights by virtue of this Agreement in any such business ventures, interests or activities. None of the Limited Partners nor any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any such

business ventures, interests or activities, and neither the General Partner nor the Initial Limited Partner shall have any obligation pursuant to this Agreement to communicate or offer any opportunities or interest in any such business ventures, interests and activities to the Partnership or any Limited Partner, even if such opportunity is of a character which, if presented to the Partnership or any Limited Partner, could be taken by such Person, even if it may raise a conflict of interest with the Limited Partners or the Partnership. Neither the General Partner nor the Initial Limited Partner will be liable for breach of any fiduciary or other duty by reason of the fact that such party pursues or acquires for, or directs such opportunity or interest to another Person or does not communicate or offer such opportunity or interest to the Partnership.

(b)    No Limited Partner shall, by reason of being a Limited Partner in the Partnership, have any right to participate in any manner in any profits or income earned or derived by or accruing to the General Partner or the Initial Limited Partner and their respective Affiliates, or the respective members, partners, officers, directors, employees, stockholders, agents or representatives thereof from the conduct of any business other than the business of the Partnership or from any transaction in instruments effected by the General Partner, the Initial Limited Partner or their Affiliates or the respective members, partners, stockholders, officers, directors, employees or agents thereof for any account other than that of the Partnership.

6.7.    Transactions With Affiliates.

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

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

(c)    The Partnership may transfer assets to joint ventures, other partnerships, corporations or other business entities in which it is or thereby becomes a participant, and in which any of its Affiliates may or may not be a participant, upon such terms and subject to such conditions as the General Partner deems are consistent with this Agreement, applicable law, the Articles of Incorporation and the REIT status of the Initial Limited Partner.

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

the General Partner’s sole discretion, on terms that are fair and reasonable to the Partnership and in compliance with the Articles of Incorporation.

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

6.9.    Other Matters Concerning the General Partner.

(a)    The General Partner may rely in good faith and shall be protected from liability to the Partnership and the Partners in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.

(b)    The General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers, architects, engineers, environmental consultants and other consultants and advisers selected by it, and the General Partner shall be protected from liability to the Partnership and the Limited Partners for any act taken or omitted to be taken in good faith reliance upon the opinion of such Persons as to matters that the General Partner reasonably believes to be within such Person’s professional or expert competence.

6.10.    No Duplication of Fees or Expenses. The Partnership may not incur or be responsible for any fee or expense (in connection with an Offering or otherwise) that would be duplicative of fees and expenses paid by the General Partner or Initial Limited Partner.

6.11.    Reliance by Third Parties. Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner has full power and authority, without the consent or approval of any other Partner, or Person, to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any contracts on behalf of the Partnership, and take any and all actions on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner as if it were the Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner

hereby waives, to the fullest extent permitted by law, any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the General Partner in connection with any such dealing. In no event shall any Person dealing with the General Partner or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expediency of any act or action of the General Partner or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (ii) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (iii) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.

6.12.    Repurchases and Exchanges of REIT Shares.

(a)    Repurchases. If the Initial Limited Partner repurchases any REIT Shares (other than REIT Shares repurchased with proceeds received from the issuance of other REIT Shares), then the General Partner may cause the Partnership to purchase from the Initial Limited Partner a number of Partnership Units, having the same Class designation as the redeemed REIT Shares, with an aggregate Net Asset Value equal to the aggregate gross amount paid for such repurchased REIT Shares.

(b)    Exchanges. If the Initial Limited Partner exchanges any REIT Shares of any Class (“Exchanged REIT Shares”) for, or converts any REIT Shares of any Class to, REIT Shares of a different Class (“Received REIT Shares”), then the General Partner shall, and shall cause the Partnership to, exchange or convert Partnership Units (with an aggregate Net Asset Value equal to the aggregate Net Asset Value of such Exchanged REIT Shares) having the same Class designation as the Exchanged REIT Shares, for Partnership Units (with an aggregate Net Asset Value equal to the aggregate Net Asset Value of such Received REIT Shares) having the same Class designation as the Received REIT Shares on the same terms that the General Partner exchanged or converted the Exchanged REIT Shares.

ARTICLE 7    

CHANGES IN GENERAL PARTNER AND INITIAL LIMITED PARTNER

7.1.    Transfer of the General Partner’s Partnership Interest.

(a)    Except as provided in, or in connection with a transaction contemplated by Section 7.1(b), (c) or 7.4, the General Partner shall not transfer all or any portion of its General Partnership Interest or withdraw as General Partner without the consent of Limited Partners holding more than 50% of the Percentage Interests.

(b)    Except as otherwise provided in Section 6.4(b), this Section 7.1 or Section 7.4 hereof, the General Partner shall not engage in any merger, consolidation or other combination with or into another Person or sale of all or substantially all of its assets, (other than in connection with a change in the General Partner’s state of incorporation or organizational form) in each case which results in a change of control of the General Partner (a “Termination Transaction”), unless the consent of Limited Partners holding more than 50% of the Percentage Interests of the Limited Partners is obtained.

(c)    Notwithstanding Section 7.1(a), a General Partner may transfer all or any portion of its General Partnership Interest to (A) a wholly owned Subsidiary of such General Partner, (B) the Initial Limited Partner, or (C) any Person that is the owner of all of the ownership interests of such General Partner, and following a transfer of all of its General Partnership Interest, may withdraw as General Partner.

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

(a)    the Person to be admitted as a substitute or additional General Partner shall have accepted and agreed to be bound by all the terms and provisions of this Agreement by executing a counterpart thereof and such other documents or instruments as may be required or appropriate in order to effect the admission of such Person as a General Partner, and a certificate evidencing the admission of such Person as a General Partner shall have been filed for recordation and all other actions required by Section 2.5 in connection with such admission shall have been performed;

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

(c)    the Partnership has reasonably determined, based upon the advice of counsel to the Partnership, that (x) the admission of the person to be admitted as a substitute or additional General Partner is in conformity with the Act and (y) none of the actions taken in connection with the admission of such Person as a substitute or additional General Partner will cause (i) the Partnership to be classified other than as a partnership for federal tax purposes, or (ii) the loss of any Limited Partner’s limited liability.

7.3.    Removal of a General Partner. The General Partner may not be removed by the Partners, with or without cause, except with the consent of the General Partner.

7.4.    Restriction on Termination Transactions.

(a)    Neither the Initial Limited Partner nor the General Partner shall engage in, or cause or permit, a Termination Transaction, unless:

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

(ii)    as a result of such Termination Transaction all Limited Partners (other than the Initial Limited Partner and the General Partner) will receive for each Partnership Unit of each Class an amount of cash, securities, or other property equal to the greatest amount of cash, securities or other property paid in the Termination Transaction to a holder of one Unit Equivalent having the same Class designation as that Partnership Unit in consideration of such Unit Equivalent; provided that if, in connection with the Transaction, a purchase, tender or exchange offer (“Offer”) shall have been made to and accepted by the holders of more than 50% of the outstanding REIT Shares, each holder of Partnership Units shall be given the option to exchange its Partnership Units for the greatest amount of cash, securities, or other property which a Limited Partner holding Partnership Units would have received had it (1) exercised its Redemption Right and (2) sold, tendered or exchanged pursuant to the Offer the REIT Shares received upon exercise of the Redemption Right immediately prior to the expiration of the Offer; or

(iii)    the Initial Limited Partner is the surviving entity in the Termination Transaction and either (A) the holders of REIT Shares do not receive cash, securities, or other property in the Transaction or (B) all Limited Partners receive in exchange for their Partnership Units of each Class, an amount of cash, securities, or other property (expressed as an amount per Unit Equivalent) that is no less than the greatest amount of cash, securities, or other property (expressed as an amount per Unit Equivalent) received in the Termination Transaction by any holder of REIT Shares having the same Class designation as the Partnership Units being exchanged.

(b)    Notwithstanding 7.4(a), Initial Limited Partner and/or the General Partner may engage in, or cause or permit, a Transaction, if after such Transaction (i) substantially all of the assets of the successor or surviving entity (the “Survivor”), other than Partnership Units held by the Initial Limited Partner and General Partner, are contributed, directly or indirectly, to the Partnership as a Capital Contribution in exchange for Partnership Units with a fair market value equal to the value of the assets so contributed as determined by the Survivor in good faith and (ii) the Survivor expressly agrees to assume all obligations of the General Partner and Initial Limited Partner, as appropriate, hereunder. Upon such contribution and assumption, the Survivor shall have the right and duty to amend this Agreement as set forth in this Section 7.4(a). The Survivor shall in good faith arrive at a new method for the calculation of the Cash Amount and the REIT Shares Amount after any such merger or consolidation so as to approximate the existing method for such calculation as closely as reasonably possible. Such calculation shall take into account, among other things, the kind and amount of securities, cash and other property that was

receivable upon such merger or consolidation by a holder of REIT Shares of each Class or options, warrants or other rights relating thereto, and which a holder of Partnership Units of any Class could have acquired had such Partnership Units been exchanged immediately prior to such merger or consolidation. The Survivor also shall in good faith modify the definition of REIT Shares and make such amendments to Section 8.5 so as to approximate the existing rights and obligations set forth in Section 8.5 as closely as reasonably possible. The above provisions of this Section 7.1(c) shall similarly apply to successive mergers or consolidations permitted hereunder.

In respect of any Termination Transaction described in the preceding paragraph, the General Partner and Initial Limited Partner are required to use commercially reasonable efforts to structure such transaction to avoid causing the Limited Partners to recognize a gain for federal income tax purposes by virtue of the occurrence of or their participation in such transaction, provided such efforts are consistent with the exercise of the Board of Directors’ fiduciary duties to the stockholders of the Initial Limited Partner under applicable law

ARTICLE 8    

RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS

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

8.2.    Power of Attorney.

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

and in all other jurisdictions in which the Partnership may conduct business or own property; (b) all instruments that the Attorney in Fact deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement duly adopted in accordance with its terms; (c) all conveyances and other instruments or documents that the Attorney in Fact deems appropriate or necessary to reflect the dissolution and winding up of the Partnership pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (d) all conveyances and other instruments or documents that the Attorney in Fact deems appropriate or necessary to reflect the distribution or exchange of assets of the Partnership pursuant to the terms of this Agreement; (e) all instruments relating to the admission, acceptance, withdrawal, removal or substitution of any Partner pursuant to the terms of this Agreement or the Capital Contribution of any Partner; and (f) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges relating to Partnership Interests; and

Nothing contained herein shall be construed as authorizing the Attorney in Fact to amend this Agreement except in accordance with Sections 5.6 and Article 11 hereof or as may be otherwise expressly provided for in this Agreement.

(b)    The foregoing power of attorney is hereby declared to be irrevocable and a special power coupled with an interest, in recognition of the fact that each of the Limited Partners and Assignees will be relying upon the power of the Attorney in Fact to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive and not be affected by the subsequent Incapacity of any Limited Partner or Assignee and the Transfer of all or any portion of such Person’s Partnership Interest and shall extend to such Person’s heirs, successors, assigns, transferees and personal representatives. Each

such Limited Partner and Assignee hereby agrees to be bound by any representation made by the Attorney in Fact, acting in good faith pursuant to such power of attorney; and each such Limited Partner and Assignee hereby waives, to the fullest extent permitted by law, any and all defenses that may be available to contest, negate or disaffirm the action of the Attorney in Fact, taken in good faith under such power of attorney. Each Limited Partner and Assignee shall execute and deliver to the Attorney in Fact, within fifteen (15) days after receipt of the Attorney in Fact’s request therefor, such further designation, powers of attorney and other instruments as the Attorney in Fact deems necessary to effectuate this Agreement and the purposes of the Partnership. Notwithstanding anything else set forth in this Section 8.2, to the fullest extent permitted by law, no Limited Partner shall incur any personal liability for any action of the Attorney in Fact taken under such power of attorney.

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

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

8.5.    Redemption Right.

(a)    Subject to this Section 8.5 and the provisions of any agreements between the Partnership and one or more Limited Partners with respect to Partnership Units held by them, each Limited Partner other than the General Partner and Initial Limited Partner, after holding any Partnership Units for a period of at least twelve full months, shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem (a “Redemption”) all or a portion of such Partnership Units (the “Tendered Units”) in exchange (a “Redemption Right”) for the Cash Amount payable on, or, if determined by the Initial Limited Partner in its sole discretion, REIT Shares issuable on, the Specified Redemption Date. Any Redemption Right shall be exercised pursuant to a Notice of Redemption delivered to the Partnership (with a copy to the Initial Limited Partner) by the Limited Partner exercising the Redemption Right (the “Tendering Party”). Within 15 days of receipt of a Notice of Redemption, the Partnership will send to the Limited Partner submitting the Notice of Redemption a response stating whether the

Initial Limited Partner has determined the applicable Partnership Units will be redeemed for REIT Shares or the Cash Amount, or partially for REIT Shares and partially for a Cash Amount. In either case, the Limited Partner shall be entitled to withdraw the Notice of Redemption if (i) it provides notice to the Partnership that it wishes to withdraw the request and (ii) the Partnership receives the notice no less than two business days prior to the Specified Redemption Date.

No Limited Partner may deliver more than two Notices of Redemption during each calendar year. A Limited Partner may not exercise the Redemption Right for less than 1,000 Partnership Units or, if such Limited Partner holds less than 1,000 Partnership Units, all of the Partnership Units held by such Partner. The Tendering Party shall have no right, with respect to any Partnership Units so redeemed, to receive any distribution paid with respect to Partnership Units if the record date for such distribution is on or after the Specified Redemption Date.

(b)    If the Initial Limited Partner elects to redeem Tendered Units for REIT Shares rather than cash, then the Partnership shall direct the Initial Limited Partner to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms set forth in this Section 8.5(b), in which case, (i) the Initial Limited Partner, acting as a distinct legal entity, shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption Right, and (ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Initial Limited Partner in exchange for REIT Shares. The percentage of the Tendered Units tendered for Redemption by the Tendering Party for which the Initial Limited Partner elects to issue REIT Shares (rather than cash) is referred to as the “Applicable Percentage.” In making such election to acquire Tendered Units, the Partnership shall act in a fair, equitable and reasonable manner that neither prefers one group or class of Limited Partners over another nor discriminates against a group or class of Limited Partners. If the Partnership elects to redeem any number of Tendered Units for REIT Shares rather than cash, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Initial Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage. The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Initial Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares free of any pledge, lien, encumbrance or restriction, other than the Aggregate Share Ownership Limit (as calculated in accordance with the Articles of Incorporation) and other restrictions provided in the Article of Incorporation, the bylaws of the Initial Limited Partner, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the General Partner or Initial Limited Partner shall have any right to cause or require the Initial Limited Partner or the General Partner to register or qualify such REIT Shares with any federal or state securities agency under the Securities Act or to list such REIT Shares on any stock exchange. Notwithstanding the provisions of Section 8.5(a) and this Section 8.5(b), the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited under the Articles of Incorporation.

(c)    In connection with an exercise of Redemption Rights pursuant to this Section 8.5, the Tendering Party shall submit the following to the Initial Limited Partner, in addition to the Notice of Redemption:

(i)    A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Sections 856(a)(6) and 856(h) of the Code, of REIT Shares by (i) such Tendering Party and (ii) any Related Party and (b) representing that, after giving effect to the Redemption, neither the Tendering Party nor any Related Party will own REIT Shares in excess of the Aggregate Share Ownership Limit (or, if applicable the Excepted Holder Limit);

(ii)    A written representation that neither the Tendering Party nor any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption on the Specified Redemption Date;

(iii)    An undertaking to certify, at and as a condition to the closing of the Redemption on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and any Related Party remain unchanged from that disclosed in the affidavit required by Section 8.5(c)(1) or (b) after giving effect to the Redemption, neither the Tendering Party nor any Related Party shall own REIT Shares in violation of the Aggregate Share Ownership Limit (or, if applicable, the Excepted Holder Limit); and

(iv)    Any other documents as the Initial Limited Partner may reasonably require.

(d)    Any Cash Amount to be paid to a Tendering Party pursuant to this Section 8.5 shall be paid on the Specified Redemption Date; provided, however, that the General Partner may elect to cause the Specified Redemption Date to be delayed for up to an additional 180 days to the extent required for the Initial Limited Partner to cause additional REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount. Notwithstanding the foregoing, the General Partner agrees to use its best efforts to cause the closing of the acquisition of Tendered Units hereunder to occur as quickly as reasonably possible.

(e)    Notwithstanding any other provision of this Agreement, the General Partner shall place appropriate restrictions on the ability of the Limited Partners to exercise their Redemption Rights to prevent, among other things, (a) any person from owning shares in excess of the Common Share Ownership Limit, the Aggregate Share Ownership Limit and the Excepted Holder Limit, (b) the Initial Limited Partner from being “closely held” within the meaning of section 856(h) of the Code, and (c) as and if deemed necessary to ensure that the Partnership does not constitute a “publicly traded partnership” under section 7704 of the Code. If and when the General Partner determines that imposing such restrictions is necessary, the General Partner

shall give prompt written notice thereof to each of the Limited Partners holding Partnership Units, which notice shall be accompanied by a copy of an opinion of counsel to the Partnership which states that, in the opinion of such counsel, restrictions are necessary in order to avoid, as applicable: (a) any person from owning shares in excess of the Common Share Ownership Limit, the Aggregate Share Ownership Limit and the Excepted Holder Limit, (b) the Initial Limited Partner from being “closely held” within the meaning of section 856(h) of the Code, or (c) having the Partnership be treated as a “publicly traded partnership” under section 7704 of the Code. In addition to any other appropriate restrictions placed by the General Partner pursuant to this Section 8.5(e), no Tendering Party shall be entitled to consummate a Redemption if the ownership of or delivery of REIT Shares to such Tendering Party on the Specified Redemption Date by the General Partner would (i) cause the occurrence of any of the circumstances described in clauses (a) through (d) of the first sentence of this Section 8.5(e), (ii) cause the Initial Limited Partner to own, actually or constructively, 10% or more of the ownership interests in a tenant (other than a “taxable REIT subsidiary” (as defined in Section 856(l) of the Code)) of the Initial Limited Partner’s, the Partnership’s or a Subsidiary’s real property, within the meaning of Section 856(d)(2)(B) of the Code, or (iii) otherwise cause the Initial Limited Partner to fail to qualify as a REIT under the Code, including, but not limited to, as a result of any “eligible independent contractor” (as defined in Section 856(d)(9)(A) of the Code) that operates a “qualified lodging facility” (as defined in Section 856(d)(9)(D) of the Code) or a “qualified health care property” (as defined in Section 856(e)(6)(D)(i) of the Code) on behalf of a “taxable REIT subsidiary” (as defined in Section 856(l) of the Code) failing to qualify as such. The Initial Limited Partner, in its sole and absolute discretion, shall waive the restriction on redemption set forth in this Section 8.5(e), provided that the Tending Party has submitted such information, certification or affidavit as the Initial Limited Partner may reasonably require in connection with the application of the restrictions described in this Section 8.5(e). To the extent any attempted Redemption or exchange for REIT Shares would be in violation of this Section 8.5(e), it shall be null and void ab initio and such Tendering Party shall not acquire any rights or economic interest in any Cash Amount otherwise payable upon such Redemption or the REIT Shares otherwise issuable upon such exchange.

(f)    A redemption fee may be charged in connection with an exercise of Redemption Rights pursuant to this Section 8.5.

8.6.    Conversion Election.

(a)    If there is a broker of record with respect to any Class A Units, such broker of record may elect, at any time, on behalf of the holder of such Class A Units, to convert such Class A Units to Class M-I Units by delivering written notice of such election to the General Partner. If there is no broker of record with respect to any Class A Units, the holder of such Class A Units may elect, at any time, to convert such Class A Units to Class M-I Units by delivering written notice of such election to the General Partner.

(b)    Unless otherwise agreed in writing by the General Partner and holder of record of the applicable Class A Units, any conversion of Class A Units to Class M-I Units pursuant to this Section 8.6 shall become effective on the first day of the second full calendar month following the calendar month in which such notice was delivered to the General Partner.

8.7.    Outside Activities of Limited Partners. Subject to any agreements entered into pursuant to Section 6.7 hereof and any other agreements entered into by a Limited Partner or any of its Affiliates with the General Partner, the Partnership or a Subsidiary (including, without limitation, any employment agreement), any Limited Partner (other than the Initial Limited Partner) and any Assignee, officer, director, employee, agent, trustee, Affiliate, member or stockholder of any Limited Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities that are in direct or indirect competition with the Partnership or that are enhanced by the activities of the Partnership. Neither the Partnership nor any Partner shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner or Assignee. Subject to such agreements, none of the Limited Partners nor any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any business ventures of any other Person (other than the General Partner and the Initial Limited Partner), and such Person shall have no obligation pursuant to this Agreement, subject to Section 6.7 hereof and any other agreements entered into by a Limited Partner or its Affiliates with the General Partner, the Partnership or a Subsidiary, to offer any interest in any such business ventures to the Partnership, any Limited Partner, or any such other Person, even if such opportunity is of a character that, if presented to the Partnership, any Limited Partner or such other Person, could be taken by such Person.

ARTICLE 9    

TRANSFERS OF LIMITED PARTNERSHIP INTERESTS

9.1.    Purchase for Investment.

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

(b)    Each Limited Partner agrees that he will not sell, assign or otherwise transfer his Partnership Interest or any fraction thereof, whether voluntarily or by operation of law or at judicial sale or otherwise, to any Person who does not make the representations and warranties to the General Partner set forth in Section 9.1(a) above and similarly agree not to sell, assign or transfer such Partnership Interest or fraction thereof to any Person who does not similarly represent, warrant and agree.

9.2.    Restrictions on Transfer of Limited Partnership Interests.

(a)    Subject to the provisions of Section 9.2(b) and (c), no Limited Partner may offer, sell, assign, hypothecate, pledge or otherwise transfer all or any portion of his Limited Partnership Interest, or any of such Limited Partner’s economic rights as a Limited Partner, whether voluntarily or by operation of law or at judicial sale or otherwise (collectively, a “Transfer”) without the consent of the General Partner, which consent may be granted or withheld in its sole and absolute discretion. Any such purported transfer undertaken without such consent shall be considered to be null and void ab initio and shall not be given effect. The General Partner may require, as a condition of any Transfer to which it consents, that the transferor assume all costs incurred by the Partnership in connection therewith.

(b)    No Limited Partner may withdraw from the Partnership other than as a result of a permitted Transfer (i.e., a Transfer consented to as contemplated by clause (a) above or clause (c) below or a Transfer pursuant to Section 9.5 below) of all of its Partnership Interest pursuant to this Article 9 or pursuant to a redemption of all of its Partnership Units pursuant to Section 8.5. Upon the permitted Transfer or redemption of all of a Limited Partner’s Partnership Interest, such Limited Partner shall cease to be a Limited Partner.

(c)    Notwithstanding Section 9.2(a) and subject to Sections 9.2(d), (e) and (f) below, a Limited Partner may Transfer, without the consent of the General Partner, all or a portion of its Partnership Interest to (i) a parent or parent’s spouse, natural or adopted descendant or descendants, spouse of such descendant, or brother or sister, or a trust created by such Limited Partner for the benefit of such Limited Partner and/or any such person(s), of which trust such Limited Partner or any such person(s) is a trustee, (ii) a corporation controlled by a Person or Persons named in (i) above, or (iii) if the Limited Partner is an entity, its beneficial owners.

(d)    No Limited Partner may effect a Transfer of its Limited Partnership Interest, in whole or in part, without the consent of the General Partner, which may be withheld in its sole and absolute discretion, if, in the opinion of legal counsel for the Partnership, such proposed Transfer would require the registration of the Limited Partnership Interest under the Securities Act or would otherwise violate any applicable federal or state securities or blue sky law (including investment suitability standards).

(e)    No Transfer by a Limited Partner of its Partnership Interest, in whole or in part, may be made to any Person without the consent of the General Partner, which may be withheld in its sole and absolute discretion, if (i) in the opinion of legal counsel for the Partnership, the transfer would result in the Partnership’s being treated as an association taxable as a corporation (other than a qualified REIT subsidiary within the meaning of Section 856(i) of the Code and the General Partner determines such treatment would be in the best interest of the Partnership), (ii) in the opinion of legal counsel for the Partnership, it would adversely affect the ability of the Initial Limited Partner to continue to qualify as a REIT or subject the Initial Limited Partner to any additional taxes under Section 857 or Section 4981 of the Code, (iii) in

the opinion of legal counsel for the Partnership, the transfer would cause the Partnership not to qualify for the safe harbor described in Regulations Section 1.7704-1(h) (or such other guidance subsequently published by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code), or (iv) such transfer is effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code.

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

(g)    Any Transfer in contravention of any of the provisions of this Article 9 shall be void and ineffectual and shall not be binding upon, or recognized by, the Partnership.

(h)    Prior to the consummation of any Transfer under this Article 9, the transferor and/or the transferee shall deliver to the General Partner such opinions, certificates and other documents as the General Partner shall request in connection with such Transfer.

9.3.    Admission of Substitute Limited Partner.

(a)    Subject to the other provisions of this Article 9, an Assignee of the Limited Partnership Interest of a Limited Partner (which shall be understood to include any purchaser, transferee, donee, or other recipient of any disposition of such Limited Partnership Interest) shall be deemed admitted as a Limited Partner of the Partnership only with the consent of the General Partner and upon the satisfactory completion of the following:

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

(ii)    To the extent required, an amended Certificate evidencing the admission of such Person as a Limited Partner shall have been signed, acknowledged and filed for record in accordance with the Act.

(iii)    The Assignee shall have delivered a letter containing the representation set forth in Section 9.1(a) hereof and the agreement set forth in Section 9.1(b) hereof.

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

(v)    The Assignee shall have executed a power of attorney containing the terms and provisions set forth in Section 8.2 hereof.

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

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

(b)    For the purpose of allocating Profits and Losses and distributing cash received by the Partnership, a Substitute Limited Partner shall be treated as having become, and appearing in the records of the Partnership as, a Partner upon the filing of the Certificate described in Section 9.3(a)(ii) hereof or, if no such filing is required, the later of the date specified in the transfer documents or the date on which the General Partner has received all necessary instruments of transfer and substitution.

(c)    The General Partner shall cooperate with the Person seeking to become a Substitute Limited Partner by preparing the documentation required by this Section and making all official filings and publications. The Partnership shall take all such action as promptly as practicable after the satisfaction of the conditions in this Article 9 to the admission of such Person as a Limited Partner of the Partnership.

9.4.    Rights of Assignees of Partnership Interests.

(a)    Subject to the provisions of Sections 9.1 and 9.2 hereof, except as required by operation of law, the Partnership shall not be obligated for any purposes whatsoever to recognize the assignment by any Limited Partner of its Partnership Interest until the Partnership has received notice thereof.

(b)    Any Person who is the Assignee of all or any portion of a Limited Partner’s Limited Partnership Interest, but does not become a Substitute Limited Partner and desires to make a further assignment of such Limited Partnership Interest, shall be subject to all

the provisions of this Article 9 to the same extent and in the same manner as any Limited Partner desiring to make an assignment of its Limited Partnership Interest.

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

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

ARTICLE 10    

BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS

10.1.    Books and Records. At all times during the continuance of the Partnership, the Partners shall keep or cause to be kept at the Partnership’s specified office true and complete books of account in accordance with generally accepted accounting principles, including: (a) a current list of the full name and last known business address of each Partner and the Partnership Units held by each such Partner, (b) a copy of the Certificate of Limited Partnership and all Certificates of amendment thereto, (c) copies of the Partnership’s federal, state and local income

tax returns and reports, (d) copies of this Agreement and amendments thereto and any financial statements of the Partnership for the three most recent years and (e) all documents and information required under the Act. Any Partner or its duly authorized representative, upon paying the costs of collection, duplication and mailing, shall be entitled to inspect or copy such records during ordinary business hours.

10.2.    Custody of Partnership Funds; Bank Accounts.

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

(b)    All deposits and other funds not needed in the operation of the business of the Partnership may be invested in any manner determined by the General Partner in its sole discretion. The funds of the Partnership shall not be commingled with the funds of any other Person except for such commingling as may necessarily result from an investment permitted by this Section 10.2(b).

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

10.4.    Annual Tax Information and Report. The General Partner will endeavor to furnish within 120 days after the end of each fiscal year of the Partnership, to each person who was a Limited Partner at any time during a fiscal year of the Partnership, the tax information necessary to file such Limited Partner’s individual tax returns as required by law.

10.5.    Tax Elections; Special Basis Adjustments.

(a)    The General Partner shall act as or appoint the “partnership representative” within the meaning of Section 6223(a) of the Code (the “Partnership Representative”) and the equivalent for applicable state and local tax purposes. As Partnership Representative, the General Partner (or its appointee) shall have the right and obligation to take all actions authorized and required, respectively, by the Code for the Partnership Representative. The General Partner (or its appointee) shall have the right to retain professional assistance in respect of any audit of the Partnership by the Service and all out-of-pocket expenses and fees incurred by the General Partner (or its appointee) on behalf of the Partnership as Partnership Representative shall constitute Partnership expenses.

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

(c)    The Partnership Representative is authorized, but not required:

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

(ii)    in the event that a notice of final partnership adjustment (a “Final Adjustment”) is mailed to the Partnership Representative, to seek judicial review of such Final Adjustment, including the filing of a petition for readjustment with the United States Tax Court or the United States Claims Court, or the filing of a complaint for refund with the District Court of the United States for the district in which the Partnership’s principal place of business is located;

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

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

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

The taking of any action and the incurring of any expense by the Partnership Representative in connection with any such proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the Partnership Representative and the provisions relating to indemnification of the General Partner set forth in Section 7.3 hereof shall be fully applicable to the Partnership Representative in its capacity as such.

In the case of the payment by the Partnership of an assessed imputed underpayment, the Partnership Representative is authorized to allocate the assessed amount among the Partners in a manner it deems equitable in its sole discretion so that each Partner economically bears any taxes paid by the Partnership allocable to such Partners.

(d)    In the event of a transfer of all or any part of the Partnership Interest of any Partner, the Partnership, at the option of the General Partner, may elect pursuant to Section 754 of the Code to adjust the basis of the Partnership’s assets. Notwithstanding anything

contained in Article 5, any adjustments made pursuant to Section 754 of the Code shall affect only the successor in interest to the transferring Partner and in no event shall be taken into account in establishing, maintaining or computing Capital Accounts for the other Partners for any purpose under this Agreement. Each Partner will furnish the Partnership with all information necessary to give effect to such election.

10.6.    Reports to Limited Partners. As soon as practicable after the close of each fiscal year, but in no event later than the date on which the General Partner mails its annual report to holders of the REIT Shares, the General Partner shall cause to be mailed to each Limited Partner an annual report containing financial statements of the Partnership, or of the General Partner if such statements are prepared solely on a consolidated basis with the General Partner, for such fiscal year, presented in accordance with generally accepted accounting principles. The annual financial statements shall be audited by accountants selected by the General Partner.

ARTICLE 11    

DISSOLUTION, LIQUIDATION AND TERMINATION

11.1.    Dissolution. The Partnership shall not be dissolved by the admission of Substitute Limited Partners or additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the withdrawal of the General Partner, any successor General Partner is hereby authorized to, and shall, continue the business and affairs of the Partnership without dissolution. However, the Partnership shall dissolve, and its affairs shall be wound up, upon the first to occur of any of the following (each a “Liquidating Event”):

(a)    the occurrence of an event of withdrawal (as defined in the Act) with respect to a General Partner; provided, the Partnership shall not be dissolved and required to be wound up in connection with any of the events specified in this clause (A) if (1) at the time of the occurrence of such event there is at least one remaining general partner of the Partnership who is hereby authorized to and shall carry on the business of the Partnership, or (2) if at such time there is no remaining General Partner, if within 90 days after such event of withdrawal, Limited Partners holding more than 50% of the Percentage Interests agree in writing or vote to continue the business of the Partnership and to appoint, effective as of the date of withdrawal, one or more additional General Partners;

(b)    an election to dissolve the Partnership made by the General Partner, with the consent of Limited Partners holding more than 50% of the Percentage Interests;

(c)    entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Act; or

(d)    at any time there are no limited partners of the Partnership, unless the Partnership is continued without dissolution in accordance with the Act.

11.2.    Winding Up.

(a)    Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets and satisfying the claims of its creditors and the Holders. After the occurrence of a Liquidating Event, no Holder shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership’s business and affairs. The General Partner (or, in the event that there is no remaining General Partner or the General Partner has dissolved, become bankrupt within the meaning of the Act or ceased to operate, any Person elected by Limited Partners holding more than 50% of the Percentage Interests (the General Partner or such other Person being referred to herein as the “Liquidator”)) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall take full account of the Partnership’s liabilities and property, and the Partnership property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the General Partner, include shares of stock in the General Partner) shall be applied and distributed in the following order:

The General Partner shall not receive any additional compensation for any services performed pursuant to this Article 11 other than reimbursement of its expenses as set forth in Section 6.5.

(b)    Notwithstanding the provisions of Section 11.2(a) hereof that require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if the Liquidator determines that an immediate sale of part or all of the Partnership’s assets would be impractical or would cause undue loss to the Holders, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those

necessary to satisfy liabilities of the Partnership (including to those Holders as creditors) and/or distribute to the Holders, in lieu of cash, as tenants in common and in accordance with the provisions of Section 11.2(a) hereof, undivided interests in such Partnership assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Holders, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.

(c)    To the fullest extent permitted by law, if any Holder has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and allocations for all taxable years, including the year during which such liquidation occurs), except as otherwise agreed to by such Holder or as may otherwise be required with respect to the General Partner in its capacity as the general partner of the Partnership, such Holder shall have no obligation to make any contribution to the capital of the Partnership with respect to such deficit, and such deficit shall not be considered a debt owed to the Partnership or to any other Person for any purpose whatsoever.

(d)    In the sole and absolute discretion of the General Partner or the Liquidator, a pro rata portion of the distributions that would otherwise be made pursuant to this Article 11 may be:

manner and order of priority set forth in Section 11.2(a) hereof as soon as practicable.

(e)    The provisions of Section 6.4 hereof shall apply to any Liquidator appointed pursuant to this Article 11 as though the Liquidator were the General Partner of the Partnership.

11.3.    Deemed Contribution and Distribution. Notwithstanding any other provision of this Article 11, in the event that the Partnership is liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), but no Liquidating Event has occurred, the Partnership’s Property shall not be liquidated, the Partnership’s liabilities shall not be paid or discharged and the Partnership’s affairs shall not be wound up. Instead, for federal income tax purposes the Partnership shall be deemed to have contributed all of its assets and liabilities to a new partnership in exchange for an interest in the new partnership; and immediately thereafter, distributed Partnership Units to the Partners in the new partnership in accordance with their respective Capital Accounts in liquidation of the Partnership, and the new partnership is deemed to continue the business of the Partnership. Nothing in this Section 11.3 shall be deemed to have constituted a Transfer to an Assignee as a Substitute Limited Partner without compliance with the provisions of Section 11.4 hereof.

11.4.    Rights of Holders. Except as otherwise provided in this Agreement, (a) each Holder shall look solely to the assets of the Partnership for the return of its Capital Contribution, (b) no Holder shall have the right or power to demand or receive property other than cash from the Partnership and (c) no Holder shall have priority over any other Holder as to the return of its Capital Contributions, distributions or allocations.

11.5.    Notice of Dissolution. In the event that a Liquidating Event occurs or an event occurs that would, but for an election or objection by one or more Partners pursuant to Section 11.1 hereof, result in a dissolution of the Partnership, the General Partner or Liquidator shall, within thirty (30) days thereafter, provide written notice thereof to each Holder and, in the General Partner’s or Liquidator’s sole and absolute discretion or as required by the Act, to all other parties with whom the Partnership regularly conducts business (as determined in the sole and absolute discretion of the General Partner or Liquidator), and the General Partner or Liquidator may, or, if required by the Act, shall, publish notice thereof in a newspaper of general circulation in each place in which the Partnership regularly conducts business (as determined in the sole and absolute discretion of the General Partner or Liquidator).

11.6.    Cancellation of Certificate of Limited Partnership. Upon the completion of the liquidation of the Partnership cash and property as provided in Section 11.2 hereof, the Partnership shall be terminated, a certificate of cancellation shall be filed with the Secretary of State, at which time the Partnership shall terminate, all qualifications of the Partnership as a foreign limited partnership or association in jurisdictions other than the State of Delaware shall

be cancelled, and such other actions as may be necessary to terminate the Partnership shall be taken.

11.7.    Reasonable Time for Winding-Up. A reasonable time shall be allowed for the orderly winding-up of the business and affairs of the Partnership and the liquidation of its assets pursuant to Section 11.2 hereof, in order to minimize any losses otherwise attendant upon such winding-up, and the provisions of this Agreement shall remain in effect between and among the Partners during the period of liquidation; provided, however, reasonable efforts shall be made to complete such winding-up within twenty-four (24) months after the adoption of a plan of liquidation of the General Partner, as provided in Section 562(b)(2)(B) of the Code, if necessary, in the sole and absolute discretion of the General Partner or Liquidator.

ARTICLE 12    

PROCEDURES FOR ACTIONS AND CONSENTS OF PARTNERS; AMENDMENT OF AGREEMENT; MEETINGS

12.1.    Procedures of Actions and Consents of Partners Notices. The actions requiring Consent of any Partner or Partners pursuant to this Agreement or otherwise pursuant to applicable law, are subject to the procedures set forth in this Article 12.

12.2.    Amendment. The consent of the General Partner shall be required for any amendment to this Agreement. The General Partner, without the consent of any Limited Partner, may amend this Agreement for any of the following purposes:

other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;

Partner in its sole and absolute discretion) in connection with any merger or consolidation of the Partnership with and into the Initial Limited Partner or any wholly-owned subsidiary of the Initial Limited Partner, or any Transfer by the Initial Limited Partner of its interest in the Partnership to any wholly-owned subsidiary of the Initial Limited Partner;

Notwithstanding the foregoing, the following amendments and any other merger or consolidation of the Partnership shall require the consent of Limited Partners holding more than 50% of the Percentage Interests:

(a)    any amendment affecting the operation of the Redemption Right (except as provided in Section 8.5(d), 7.1(b) or 7.1(c)) in a manner adverse to the Limited Partners;

(b)    any amendment that would adversely affect the rights of the Limited Partners to receive the distributions payable to them hereunder, other than with respect to the issuance of additional Partnership Units pursuant to Section 4.3;

(c)    any amendment that would alter the Partnership’s allocations of Profit and Loss to the Limited Partners, other than with respect to the issuance of additional Partnership Units pursuant to Section 4.3; or

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

12.3.    Actions and Consents of the Partners.

(a)    Meetings of the Partners may be called only by the General Partner to transact any business that the General Partner determines. The call shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Partners entitled to act at the meeting not less than seven (7) days nor more than sixty (60) days prior to the date of such meeting. Partners may vote in person or by proxy at such meeting. Unless approval by a different number or proportion of the Partners is required by this Agreement, the affirmative vote of the General Partner and Limited Partners holding more than 50% of the Percentage Interests shall be sufficient to approve such proposal at a meeting of the Partners. Whenever the vote, consent or approval of Partners is permitted or required under this Agreement, such vote, consent or approval may be given at a meeting of Partners or may be given in accordance with the procedure prescribed in Section 12.3(b) hereof.

(b)    Any action requiring the Consent of any Partner or group of Partners pursuant to this Agreement or that is required or permitted to be taken at a meeting of the Partners may be taken without a meeting if a consent in writing or by electronic transmission setting forth the action so taken or consented to is given by Partners whose affirmative vote would be sufficient to approve such action or provide such Consent at a meeting of the Partners. Such consent may be in one instrument or in several instruments, and shall have the same force and effect as the affirmative vote of such Partners at a meeting of the Partners. Such consent shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified. For purposes of obtaining a Consent in writing or by electronic transmission, the General Partner may require a response within a reasonable specified time, but not less than fifteen (15) days, and failure to respond in such time period shall, to the fullest extent permitted by law, constitute a Consent that is consistent with the General Partner’s recommendation with respect to the proposal; provided, however, that an action shall become effective at such time as requisite Consents are received even if prior to such specified time.

(c)    Each Partner entitled to act at a meeting of the Partners may authorize any Person or Persons to act for it by proxy on all matters in which a Partner is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Each proxy must be signed by the Partner or its attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy (or there is receipt of a proxy authorizing a later date). Every proxy shall be revocable at the pleasure of the Partner executing it, such revocation to be effective upon the Partnership’s receipt of written notice of such revocation from the Partner executing such proxy, unless such proxy states that it is irrevocable and is coupled with an interest.

(d)    The General Partner may set, in advance, a record date for the purpose of determining the Partners (i) entitled to Consent to any action, (ii) entitled to receive notice of or vote at any meeting of the Partners or (iii) in order to make a determination of Partners for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than ninety (90) days and, in the case of a meeting of the Partners, not less than five (5) days, before the date on which the meeting is to be held. If no record date is fixed, the record date for the determination of Partners entitled to notice of or to vote at a meeting of the Partners shall be at the close of business on the day on which the notice of the meeting is sent, and the record date for any other determination of Partners shall be the effective date of such Partner action, distribution or other event. When a determination of the Partners entitled to vote at any meeting of the Partners has been made as provided in this section, such determination shall apply to any adjournment thereof

(e)    Each meeting of Partners shall be conducted by the General Partner or such other Person as the General Partner may appoint pursuant to such rules for the conduct of the meeting as the General Partner or such other Person deems appropriate in its sole and absolute discretion. Without limitation, meetings of Partners may be conducted in the same manner as meetings of the Initial Limited Partner’s stockholders and may be held at the same time as, and as part of, the meetings of the Initial Limited Partner’s stockholders.

ARTICLE 13    

GENERAL PROVISIONS

13.1.    Notices. All communications required or permitted under this Agreement shall be in writing and shall be deemed to have been given when delivered personally or upon deposit in the United States mail, registered, postage prepaid return receipt requested, to the Partners at the addresses maintained for each Partner on the books and records of the Partnership; provided, however, that any Partner may specify a different address by notifying the General Partner in writing of such different address. Notices to the Partnership shall be delivered at or mailed to its specified office.

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

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

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

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

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

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

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

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

13.10.    Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, with respect to any period in which the Initial Limited Partner has elected to be treated as a REIT for federal income tax purposes, to the extent that the amount to be paid, credited, distributed or reimbursed by the Partnership to the Initial Limited Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the Initial Limited Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3) that is not described in subsections (A) through (I) of Code Section 856(c)(2) or subsections (A) through (I) of Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as

selected by the General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to the Initial Limited Partner shall not exceed the lesser of: an amount equal to the excess, if any, of (i) four percent (4%) of the Initial Limited Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Partnership Year over (ii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the Initial Limited Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments or any amounts excluded from gross income pursuant to Section 856(c) of the Code); or

(a)    an amount equal to the excess, if any, of (i) twenty-four percent (24%) of the Initial Limited Partner’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Partnership Year over (ii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the Initial Limited Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments or any amounts excluded from gross income pursuant to Section 856(c) of the Code);

provided, however, that the REIT Payments in excess of the amounts set forth in clauses (a) and (b) above may be made if the General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the Initial Limited Partner’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a consequence of the limitations set forth in this Section 14.10, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the Initial Limited Partner’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Partnership Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 14.10 is to prevent the Initial Limited Partner from failing to qualify as a REIT under the Code by reason of the Initial Limited Partner’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 14.10 shall be interpreted and applied to effectuate such purpose.

13.11.    No Partition. No Partner nor any successor-in-interest to a Partner shall have the right while this Agreement remains in effect to have any property of the Partnership partitioned, or to file a complaint or institute any proceeding at law or in equity to have such property of the Partnership partitioned, and each Partner, on behalf of itself and its successors and assigns hereby waives any such right. It is the intention of the Partners that the rights of the parties hereto and their successors-in-interest to Partnership property, as among themselves, shall be governed by the terms of this Agreement and that the rights of the Partners and their respective

successors-in-interest shall be subject to the limitations and restrictions as set forth in this Agreement.

13.12.    No Rights as Shareholders

. Nothing contained in this Agreement shall be construed as conferring upon the Holders of Partnership Units any rights whatsoever as shareholders of the Initial Limited Partner or as members of the General Partner, including without limitation any right to receive dividends or other distributions made to shareholders of the Initial Limited Partner or to vote or to consent or receive notice as shareholders in respect of any meeting of shareholders of the Initial Limited Partner for the election of directors of the Initial Limited Partner or any other matter.

IN WITNESS WHEREOF, the parties hereto have hereunder affixed their signatures to this Agreement of Limited Partnership, all as of the date first set forth above.

GENERAL PARTNER:

JLLIPT Holdings GP, LLC

By: Jones Lang LaSalle Income Property Trust, Inc., its sole and managing member

By:/s/ C. Allan Swaringen            

Name: C. Allan Swaringen

Title: President & CEO

INITIAL LIMITED PARTNER:

Jones Lang LaSalle Income Property Trust, Inc.

By:/s/ C. Allan Swaringen            

Name: C. Allan Swaringen

Title: President & CEO

EXHIBIT A

NOTICE OF EXERCISE OF REDEMPTION RIGHT

In accordance with Section 8.5 of the Second Amended and Restated Limited Partnership Agreement of JLLIPT Holdings LP (the “Agreement”), the undersigned hereby irrevocably (i) presents for redemption Partnership Units in JLLIPT Holdings LP in accordance with the terms of the Agreement and the Redemption Right referred to in Section 8.5 thereof, (ii) surrenders such Partnership Units and all right, title and interest therein, and (iii) directs that the Cash Amount or REIT Shares Amount (as defined in the Agreement) as determined by the General Partner deliverable upon exercise of the Redemption Right be delivered to the address specified below, and if REIT Shares (as defined in the Agreement) are to be delivered, such REIT Shares be registered or placed in the name(s) and at the address(es) specified below.

Dated:

---

(Name of Limited Partner)

---

(Signature of Limited Partner)

---

(Mailing Address)

---

(City) (State) (Zip Code)

---

Signature Guaranteed by:

If REIT Shares are to be issued, issue to:

Name:                    

Social Security or
Tax I.D. Number:            

Exhibit 10.3

DEALER MANAGER AGREEMENT

     

JLL EXCHANGE TRS, LLC

Up to $500,000,000 in Units of Beneficial Interests

Dated October 16, 2019

 

LaSalle Investment Management Distributors, LLC
333 West Wacker Drive, Suite 2300

Chicago, Illinois 60606

 

Ladies and Gentlemen:

 

This letter confirms and comprises the agreement (this “Agreement”) between JLL Exchange TRS, LLC, a Delaware limited liability company (the “Company”), and LaSalle Investment Management Distributors, LLC, a Delaware limited liability company (the “Dealer Manager”), regarding the offer and sale, in one or more private placements (each, an “Offering” and collectively, the “Offerings”) exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Regulation D promulgated under the Securities Act (“Regulation D”), of up to $500,000,000 of units of beneficial interests (“Units”) in specific Delaware statutory trusts (each, a “Trust” and collectively, the “Trusts”), subject to the Company’s right to increase such amount in its sole discretion, pursuant to the terms and conditions of the DST Program Memorandum, as may be amended or supplemented from time to time (with all appendixes thereto, the “Memorandum”). The Company is a wholly-owned subsidiary of JLLIPT Holdings LP, a Delaware limited partnership (the “Operating Partnership”). The Operating Partnership is the entity through which Jones Lang LaSalle Income Property Trust, Inc., a Maryland corporation (“JLLIPT”), conducts substantially all of its business and owns substantially all of its assets. A Unit is a unit of beneficial ownership interest in a Trust that will beneficially own either (i) a series of Trusts, each of which will hold one commercial property (each, a “Property” and collectively, the “Properties”); or (ii) a Property directly. Information regarding each Property in which Units will be offered will be included in a property-specific supplement (the “Property Supplement”) to the Memorandum. Prior to the commencement of an Offering of Units in any particular Trust, such Trust shall execute a joinder agreement in the form attached hereto as Exhibit A, pursuant to which such Trust will join this Agreement and agree to be bound by the terms and conditions hereof.

  

1.    Exclusive Appointment of Dealer Manager.

1.1    On the basis of the representations, warranties and covenants herein contained, and subject to the terms and conditions herein set forth, the Company hereby appoints the Dealer Manager as its exclusive agent and dealer manager during the period commencing with the date hereof and ending on the Offering Termination Date (as defined in Section 1.2 below) (the “Offering Period”) to solicit, or cause to be solicited, purchasers of the Units on a “best efforts” basis through a private, limited offering exempt from registration under the Securities Act pursuant to Regulation D, and applicable state blue sky registration exemptions, upon the other terms and conditions set forth in the Memorandum. The Dealer Manager, in its sole discretion, is authorized to retain other registered broker-dealers (“Participating Broker-Dealers”) who are members in good standing of the Financial Industry Regulatory Authority, Inc. (“FINRA”) for the purpose of soliciting offers for the purchase of the Units pursuant to a Participating Dealer Agreement substantially in the form attached to this Agreement as Exhibit B (the “Participating Broker-Dealer Agreement”). The Dealer Manager

hereby accepts such agency and distributorship and agrees to use its best efforts to sell the Units on said terms and conditions.

1.2    It is understood that no sale of Units shall be regarded as effective unless and until accepted by the Company. The Company reserves the right in its sole discretion to refuse to sell any of the Units to any prospective purchaser. Units will be offered during a period commencing on the date of the first Property Supplement (“Effective Date”), and continuing until the earlier of: (i) the date that the maximum aggregate amount of Units is sold pursuant to the Offerings, subject to the Company’s option to increase the maximum aggregate amount of the Offerings in its sole discretion, or (ii) such date as Company otherwise terminates the Offerings, which it may do at any time in its sole discretion.

2.    Representations and Warranties of the Company.

 

The Company hereby represents and warrants to the Dealer Manager and each Participating Broker-Dealer with whom the Dealer Manager has entered into or will enter into a Participating Broker-Dealer Agreement that, as of the date hereof and at all times during the Offering Period (provided that, to the extent such representations and warranties are given only as of a specified date or dates, the Company only makes such representations and warranties as of such date or dates):

2.1    Good Standing; Qualification to Do Business. The Company is a limited liability company duly organized and validly existing under the laws of the State of Delaware, and is in good standing with the Delaware Division of Revenue, with full power and authority to conduct its business as described in the Memorandum and to enter into this Agreement and to perform the transactions contemplated hereby; this Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnity provisions contained in Section 8 of this Agreement may be limited under applicable securities laws. The Company has qualified to do business and is in good standing in every jurisdiction in which the ownership or leasing of its properties or the nature or conduct of its business, as described in the Memorandum, requires such qualification, except where the failure to do so would not have a material adverse effect on the business, properties, management, financial position, results of operations or cash flows of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).

 

2.2    Authorization and Description of Securities. The issuance and sale of the Units will have been duly authorized by the Company and applicable Trust, and, when issued and duly delivered against payment therefor as contemplated by this Agreement, will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, except the right of the Operating Partnership to acquire such Units in exchange for units of limited partnership interests in the Operating Partnership (“OP Units”) as described in the Memorandum (the “FMV Option”), and the issuance and sale of the Units by a Trust will not be subject to preemptive or other similar rights arising by operation of law, under the charter or bylaws of the Company or under any agreement to which the Company is a party or otherwise. The Units will conform in all material respects to the description of the Units contained in the Memorandum. Neither the Memorandum (as amended or supplemented, if applicable) nor the prospectus relating to a public offering from time to time of the Class A, Class M, Class A-I and Class M-I shares of common stock of JLLIPT (such prospectus, as the same may be supplemented or amended from time to time, and including the documents incorporated by reference therein, is referred to herein as the “JLLIPT Prospectus”)) (as amended or supplemented, if applicable), each as of its date (or as of the date of any such amendment or supplement, if applicable), contains any untrue statement of material fact or omits to state a

material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the foregoing provisions of this Section 2.2 will not extend to such statements contained in or omitted from the Memorandum or JLLIPT Prospectus which are based upon information furnished by the Dealer Manager in writing to the Company specifically for inclusion therein.

 

2.3    Absence of Defaults and Conflicts. The Company is not in violation of its certificate of formation or its limited liability company agreement as currently in effect and the execution and delivery of this Agreement, the issuance, sale and delivery of the Units, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the applicable Trust will not, as of the Effective Date, violate the terms of or constitute a default under: (a) the Company’s certificate of formation or limited liability company or the applicable Trust’s trust agreement; or (b) any indenture, mortgage, deed of trust, lease, or other material agreement to which the Trust or the Company is a party or to which the properties of either of the foregoing are bound; or (c) any law, rule or regulation applicable to the Trust or the Company; or (d) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Trust or the Company except, in the cases of clauses (b), (c) and (d), for such violations or defaults that, individually or in the aggregate, would not result in a Material Adverse Effect on the Company or the Trust.

 

2.4    Absence of Further Requirements. No filing with, or consent, approval, authorization, license, registration, qualification, order or decree of any court, governmental authority or agency is required for the performance by the Company of its obligations under this Agreement or in connection with the issuance and sale by a Trust of the Units, except such as may be required under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), rules of FINRA or applicable state securities laws.

 

2.5    Absence of Proceedings. Except as disclosed in the Memorandum (as amended or supplemented), there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Company at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

     

2.6    Possession of Licenses and Permits. The Company possesses adequate permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local and foreign regulatory agencies or bodies necessary to conduct the business now operated by it, except where the failure to obtain such Governmental Licenses, singly or in the aggregate, would not have a Material Adverse Effect or as otherwise disclosed in the Memorandum; the Company is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure to so comply would not, singly or in the aggregate, have a Material Adverse Effect or as otherwise disclosed in the Memorandum; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses to be in full force and effect would not have a Material Adverse Effect or as otherwise disclosed in the Memorandum; and the Company has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect or as otherwise disclosed in the Memorandum.

2.7    Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the Offering, any beneficial owner (as that term is defined under Rule 13d-3 under the Securities Exchange Act of 1934, as amended

(the “Exchange Act”)) of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, a “Company Covered Person” and, together, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”) except for a Disqualification Event (i) contemplated by Rule 506(d)(2) or (d)(3). The Company has exercised, and during the term of the Offerings will continue to exercise, reasonable care to determine whether any Company Covered Person, any Dealer Covered Person (as defined below) and any Participating Dealer Covered Person (as defined in the Participating Broker-Dealer Agreement) is subject to a Disqualification Event. The Company will immediately comply, to the extent applicable, with its disclosure obligations under Rule 506(e), and will immediately effect the preparation of an amended or supplemented Memorandum that will contain any such required disclosure and will, at no expense to the Dealer Manager (unless the Dealer Manager’s Disqualification Event or any Participating Broker-Dealer’s Disqualification Event is the sole reason for the required amended or supplemented Memorandum, in which case the Dealer Manager shall bear the cost of preparation and distribution of such amended or supplemented Memorandum), promptly furnish the Dealer Manager with such number of printed copies of such amended or supplemented Memorandum containing any such required disclosure, including any exhibits thereto, as the Dealer Manager may reasonably request.

3.    Covenants of the Company.

 

The Company covenants and agrees with the Dealer Manager that:

  

3.1    It will, at no expense to the Dealer Manager, furnish the Dealer Manager with such number of serially numbered copies of the Memorandum, including all amendments, supplements and exhibits thereto, as the Dealer Manager may reasonably request for the purposes contemplated by federal and state securities laws. It will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies of the following documents as the Dealer Manager may reasonably request: (a) this Agreement; (b) Property Supplements; (c) the JLLIPT Prospectus and (d) any other printed sales literature or other materials the use of which has been approved in writing by the Company.

 

3.2    If, during an Offering, any event occurs as a result of which, in the opinion of the Company, the Memorandum would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Dealer Manager will notify the Participating Broker-Dealers to suspend the offering and sale of the Units in accordance with Section 5.8 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Units and (b) has prepared any required supplemental or amended Memorandum as shall be necessary to correct such statement or omission.

   

3.3    The Company will apply the proceeds from the sale of the Units as stated in the Memorandum.

3.4    The Company will not conduct the Offerings or offer or sell any of the Units by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D.

3.5    The Company will prepare or cause to be prepared, executed and timely filed a Notice on Form D relating to the Offering (a) with the Securities and Exchange Commission (the “Commission”) under Regulation D and (b) with all applicable state securities regulatory agencies.

3.6    Subject to the Dealer Manager’s actions and the actions of others in connection with the Offering, the Company will comply with all requirements imposed upon it by Regulation D and other applicable securities laws, including applicable state blue sky registration exemptions.

3.7    The Company will notify the Dealer Manager in writing, promptly upon the occurrence of (i) any Disqualification Event relating to any Company Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Company Covered Person.

 

4.    Payment of Expenses and Fees.

 

4.1    Company Expenses. The Company agrees to pay all costs and expenses incident to each Offering, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, including expenses, fees and taxes in connection with (the following, collectively, “Organization and Offering Expenses”): (a) the preparation of the Memorandum, and the printing and furnishing of copies thereof to the Dealer Manager; (b) all fees and expenses of the Company’s legal counsel, independent public or certified public accountants and other advisors; (c) filing with FINRA of all necessary documents and information relating to the Offering and the Units; (d) the fees and expenses of any transfer agent or registrar for the Units and miscellaneous expenses referred to in the Memorandum; (e) all costs and expenses incident to the travel and accommodation of the personnel of the Company and the Company’s advisor, and the personnel of any sub-advisor designated by the Company’s advisor and acting on behalf of the Company; (f) the performance of the Company’s other obligations hereunder; and (g) certain costs and expenses incurred by the Company’s advisor, LaSalle Investment Management, Inc. (the “Advisor”), or the Dealer Manager incident to the Offerings, to the extent permitted pursuant to prevailing rules and regulations of FINRA, including expenses, fees and taxes incurred in connection with: (i) customary travel, lodging, meals and reasonable entertainment expenses incurred in connection with the Offerings; (ii) costs and expenses of conducting educational conferences and seminars, attending broker-dealer sponsored conferences, or educational conferences sponsored by the Company; (iii) customary promotional items; (iv) legal fees of the Dealer Manager; (v) reasonable bona fide due diligence expenses incurred by any Participating Broker-Dealer and reimbursed by the Dealer Manager to such Participating Broker-Dealer (provided that the Dealer Manager has obtained from any such Participating Broker-Dealer and provided to the Company a detailed and itemized invoice for any such due diligence expenses).

 

4.2    Dealer Manager Expenses. The Dealer Manager will pay for all of its own personnel costs and all expenses necessary for the Dealer Manager to remain in compliance with any applicable FINRA rules or federal or state laws, rules or regulations in order to participate in the Offering as a broker-dealer.

 

5.    Representations, Warranties and Covenants of the Dealer Manager.

 

The Dealer Manager hereby represents and warrants to, and covenants and agrees with the Company, as of the date hereof and at all times during the Offering Period (provided that, to the extent representations and warranties are given only as of a specified date or dates, the Dealer Manager only makes such representations and warranties as of such date or dates), as follows:

5.1    Good Standing; Qualification to Do Business. The Dealer Manager is a limited liability company duly organized and validly existing under the laws of the State of Delaware, and is in good standing with the Delaware Division of Revenue, with full power and authority to conduct its business as described in the Memorandum and to enter into this Agreement and to perform the transactions contemplated hereby; this Agreement has been duly authorized, executed and delivered by the Dealer Manager and is a legal, valid

and binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnity provisions contained in Section 8 of this Agreement may be limited under applicable securities laws.

 

5.2    Absence of Defaults and Conflicts. The Dealer Manager is not in violation of its certificate of formation or its limited liability company agreement as currently in effect and the execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement will not, as of the Effective Date, violate the terms of or constitute a default under: (a) the Dealer Manager’s certificate of formation or limited liability company; or (b) any indenture, mortgage, deed of trust, lease, or other material agreement to which the Dealer Manager is bound; or (c) any law, rule or regulation applicable to the Dealer Manager; or (d) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager.

5.3    Compliance with Applicable Laws, Rules and Regulations. The Dealer Manager represents to the Company that (a) the Dealer Managers is a member of FINRA in good standing, and (b) the Dealer Manager and its employees and representatives who will perform services hereunder have all required approvals, licenses and registrations to act under this Agreement. With respect to its participation and the participation by each Participating Broker-Dealer in the offer and sale of the Units (including, without limitation any resales and transfers of Units), the Dealer Manager agrees, and, by virtue of entering into the Participating Broker-Dealer Agreement, each Participating Broker-Dealer shall have agreed, to comply with any applicable requirements of the Securities Act and the Exchange Act, applicable state securities or blue sky laws, and the rules set forth in the FINRA rulebook, which currently consists of rules promulgated by FINRA, the National Association of Securities Dealers (“NASD”) and the New York Stock Exchange (collectively, the “FINRA Rules”).

 

5.4    AML Compliance. The Dealer Manager represents to the Company that it has established and implemented anti-money laundering compliance programs in accordance with applicable law, including applicable FINRA Rules, rules and regulations promulgated under the Exchange Act (“Exchange Act Regulations”) and the USA PATRIOT Act, specifically including, but not limited to, Section 352 of the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act,” and together with the USA PATRIOT Act, the “AML Rules”) reasonably expected to detect and cause the reporting of suspicious transactions in connection with the offering and sale of the Units. The Dealer Manager further represents that it is currently in compliance with all AML Rules, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the Money Laundering Abatement Act, and the Dealer Manager hereby covenants to remain in compliance with such requirements and shall, upon request by the Company, provide a certification to the Company that, as of the date of such certification (a) its AML Program is consistent with the AML Rules and (b) it is currently in compliance with all AML Rules, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the Money Laundering Abatement Act.

 

5.5    Accuracy of Information. The Dealer Manager represents and warrants to the Company that all information furnished to the Company by the Dealer Manager in writing expressly for use in the Memorandum does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

5.6    Recordkeeping. The Dealer Manager agrees to comply with the record-keeping requirements as may be required by the Company, any state securities commission, FINRA or the Commission, including but not limited to Exchange Act Regulations.

  

5.7    Customer Information. The Dealer Manager shall abide by and comply with (a) the privacy standards and requirements of the Gramm-Leach-Bliley Act of 1999 (“GLB Act”); (b) the privacy standards and requirements of any other applicable federal or state law; and (c) its own internal privacy policies and procedures, each as may be amended from time to time.

      

5.8    Suspension or Termination of Offering. The Dealer Manager agrees, and will require that each of the Participating Broker-Dealers agree, to suspend or terminate the offer and sale of Units in the Offering upon request of the Company at any time and to resume the offer and sale of Units in the Offering upon subsequent request of the Company.

 

5.9    Customer Complaints. The Dealer Manager hereby agrees to provide to the Company promptly upon receipt by the Dealer Manager copies of any written or otherwise documented customer complaints received by the Dealer Manager from Participating Broker-Dealers relating in any way to the Offering (including, but not limited to, the manner in which the Units are offered by any Participating Broker-Dealer), the Units or the Company.

5.10    Disqualification Events.

    

(a)    The Dealer Manager represents that neither it, nor any of its directors, executive officers, other officers participating in the Offering, general partners or managing members, or any of the directors, executive officers or other officers participating in the Offering of any such general partner or managing member (each, a “Dealer Covered Person” and, together, “Dealer Covered Persons”), is subject to any Disqualification Event except for a Disqualification Event (i) contemplated by Rule 506(d)(2) of the Securities Act and (ii) a description of which has been furnished in writing to the Company prior to the date hereof or, in the case of a Disqualification Event occurring after the date hereof, prior to the date of any offering of Units. The Dealer Manager has exercised reasonable care to determine (i) the identity of each person that is a Dealer Covered Person and (ii) whether any Dealer Covered Person is subject to a Disqualification Event.

(b)    The Dealer Manager will promptly notify the Company in writing of (i) any Disqualification Event relating to any Dealer Covered Person not previously disclosed to the Company in accordance with Section 5.8(a), and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Dealer Covered Person.

(c)    The Dealer Manager represents that it is not aware of any person (other than any Dealer Covered Person and any Participating Broker-Dealers which the Dealer Manager has entered into a Participating Broker-Dealer Agreement with) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of Units. The Dealer Manager will promptly notify the Company of any agreement or arrangement entered into between the Dealer Manager and such person in connection with such sale.

5.11    No General Solicitation. The Dealer Manager will not conduct an Offering or offer or sell the Units by means of: (i) any advertisement, article, notice or other communication mentioning any Offering, Units or Property published in any newspaper, magazine or similar medium, cold mass mailings, broadcast over television, radio or the internet, or an e-mail message sent to a large number of previously unknown

persons; (ii) any seminar or meeting, the attendees of which have been invited by any general solicitation or general advertising; or (iii) any letter, circular, notice or other written communication constituting a form of general solicitation or general advertising.

5.12    Other Offering Covenants.

(a)    During the course of an Offering, the Dealer Manager will not make any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make any statement, in light of the circumstances under which it was made, not misleading concerning the Offering or any matters set forth in or contemplated by the Memorandum or the Property Supplement.

(b)    During the course of an Offering and prior to the sale of Units, the Dealer Manager will provide, or will cause each Participating Broker-Dealer to provide, each offeree with a copy of the Memorandum and a copy of the applicable Property Supplement for the Property relating to such offer.

(c)    Until the termination of all Offerings, if the Dealer Manager has been provided with a supplement or amendment to the Memorandum or a Property Supplement, the Dealer Manager will promptly distribute such supplement or amendment to persons who previously received a copy of the Memorandum or Property Supplement from it and who it believes continue to be interested in participating in such Offering and will include such supplement or amendment in all deliveries of the Memorandum and Property Supplement after receipt of any such supplement or amendment.

(d)    The Dealer Manager will not make any oral or written representations on behalf of the Company other than those contained in the Memorandum or JLLIPT Prospectus unless the making of such representations has been approved by the Company in writing, nor will the Dealer Manager act as an agent of the Company or for the Company in any other capacity except as expressly set forth herein.

(e)    Except for the Participating Broker-Dealer Agreements and any other agreement approved in advance by the Company in writing, no agreement will be made by the Dealer Manager with any person permitting the resale, repurchase or distribution of any Units.

(f)    The Dealer Manager will furnish to the Company upon request a complete list of all persons and entities who have received a Memorandum and such parties’ addresses.

(g)    The Dealer Manager will comply with all applicable federal and state laws and regulations relating to the collection, maintenance and disclosure of non-public information provided by prospective investors in connection with their proposed investment in the Units.

(h)    The Dealer Manager shall, and shall cause each Participating Broker-Dealer, to recommend Units only to a prospective investor whom the Dealer Manager or Participating Broker-Dealer, as applicable, has reasonable grounds to believe is an Accredited Investor and otherwise meets the financial suitability and other purchaser requirements set forth in the Memorandum and the Property Supplements. During the course of an Offering, the Dealer Manager will comply, and shall direct each Participating Broker-Dealer who enters into a Participating Broker-Dealer Agreement with the Dealer Manager to comply with the provisions of all applicable rules and regulations relating to suitability of investors, including without limitation, the provisions of Regulation D, Rule 506 promulgated under the Securities Act and, if applicable, FINRA Rule 2111. The Dealer Manager shall direct each Participating Broker-Dealer who enters into a Participating Broker-Dealer Agreement with the Dealer Manager to make, or cause to be made, inquiries as required by this Agreement, the Memorandum, the Property Supplements or applicable law of all prospective

investors to ascertain whether a purchase of a Unit is suitable for the prospective investor. The Dealer Manager shall direct each Participating Broker-Dealer who enters into a Participating Broker-Dealer Agreement with the Dealer Manager to maintain in its files, for a period of six years following the termination of the Offering, appropriate documents disclosing the basis upon which the above determination of suitability was reached as to each subscriber.

6.    Sale of Units.

  

6.1    Compensation.

(a)    Selling Commissions. Subject to the waivers, discounts or other special circumstances described in or otherwise disclosed in the Memorandum, the Company will pay to the Dealer Manager selling commissions on each Unit sold of up to 5.0% of the gross purchase price per Unit as set forth in the Memorandum and applicable Property Supplement (the “Gross Price per Unit”), unless a reduced amount is agreed to in the Participating Broker-Dealer Agreement for the Participating Broker-Dealer which made that particular sale. The selling commissions payable to the Dealer Manager will be paid substantially concurrently with the sale of the applicable Units and may be reallowed by the Dealer Manager to Participating Broker-Dealers.

(b)    Dealer Manager Fee. The Company will pay to the Dealer Manager a fee (“Dealer Manager Fee”) on each Unit sold of up to 1.0% of the Gross Price Per Unit as of the date of purchase. The Dealer Manager may reallow a portion of the Dealer Manager Fee to Participating Broker-Dealers that meet certain thresholds of Units under management and certain other metrics. The Dealer Manager may also re-allow a portion of the Dealer Manager Fee to Participating Broker-Dealers as marketing fees or to defray other distribution-related expenses. Such reallowance, if any, shall be determined by the Dealer Manager in its sole discretion based on factors including, but not limited to, the level of services that each such broker-dealer performs, including ministerial, record-keeping, sub-accounting, stockholder services and other administrative services. The Dealer Manager’s reallowance of Dealer Manager Fees to Participating Broker-Dealers shall be described in Schedule 1 to the Participating Broker-Dealer Agreement with respect to a particular Participating Broker-Dealer. The Dealer Manager Fee payable to the Dealer Manager will be paid substantially concurrently with the sale of the applicable Units.

(c)    Investor Servicing Fee.

(i)Prior to the Operating Partnership’s exercise of the FMV Option with respect to any given Units, each Trust will pay to the Dealer Manager a fee that is calculated daily on a continuous basis from year to year (“Investor Servicing Fee”), equal to 1/365^th of 0.25% per annum of the net asset value (“NAV”) of the Units of such Trust for such day, determined separately with respect to each Trust as described in the Memorandum.

(ii)Following the Operating Partnership’s exercise of the FMV Option with respect to any given Units, with respect to all such Units that convert to and are classified as Class A OP Units (defined below), the Operating Partnership will pay to the Dealer Manager an Investor Servicing Fee that is calculated daily on a continuous basis from year to year, equal to 1/365^th of 0.85% per annum of the net asset value (“NAV”) of such Units. No Investor Servicing Fee will be payable with respect to any Units that convert to or are classified as Class M-I OP Units (defined below). “Class A OP Units” means limited partnership interests in the Operating Partnership that are classified and defined, in the limited partnership agreement of the Operating Partnership (“OP Agreement”), as “Class A Units.” “Class M-I OP Units” means

limited partnership interests in the Operating Partnership that are classified and defined, in the OP Agreement, as “Class M-I Units.”

(iii)Following the time, if any, that JLLIPT delivers, pursuant to the redemption provisions of the OP Agreement, Class A shares of its common stock in exchange OP Units which were previously exchanged for Units, JLLIPT will pay the Dealer Manager an Investor Servicing Fee equal to equal to 1/365^th of 0.85% per annum of the net asset value (“NAV”) of such Class A shares. No Investor Servicing Fee shall be payable with respect to any Class M-I shares of JLLIPT’s common stock delivered in exchange for OP Units which were previously exchanged for Units.

(iv)The Dealer Manager acknowledges and agrees that Units sold hereunder may be exchanged for either Class A OP Units or Class M-I OP Units pursuant to the Operating Partnership’s FMV Option. With respect to any given Unit, such Unit shall be exchangeable for Class A OP Units upon the Operating Partnership’s exercise of the FMV Option with respect to such Unit unless the Participating Broker-Dealer that sold such Unit has delivered to the Dealer Manager and the Operating Partnership a copy of an Election Notice (defined below) with respect to such Unit prior to the Election Deadline (defined below). “Election Notice” means a written election, in the form attached to the Participating Broker-Dealer Agreement as Exhibit B, pursuant to which the holder of Units indicates its desire that such Units shall be exchangeable for Class M-I OP Units. “Election Deadline” means, with respect to any given Unit, the date that is 30 calendar days prior to the date the Operating Partnership exercises the FMV Option with respect to such Unit. For the avoidance of doubt, an Election Notice will be considered timely delivered to the Operating Partnership only if the Operating Partnership receives such notice prior to the Election Deadline, and the date indicated on the Election Notice shall not be determinative in this respect.

(v)The Dealer Manager acknowledges and agrees that: (A) the OP Agreement provides for certain circumstances under which the holder of a Class A OP Unit or its broker of record may elect to cause such Class A OP Unit to convert to a Class M-I OP Unit, and (B) no Investor Servicing Fee shall be payable with respect to Class M-I OP Units, including without limitation Class M-I OP Units that were received in a conversion or exchange transaction for Class A OP Units. The Dealer Manager further acknowledges and agrees that shares of JLLIPT’s common stock designated as Class A shares may, as described in the charter of JLLIPT, convert to or be exchanged for Class M-I shares of JLLIPT’s common stock, and that no Investor Servicing Fee shall be payable with respect to any such Class M-I shares.

(vi)The full amount of the Investor Servicing Fee shall be payable unless the Dealer Manager notifies the Company that it has elected to waive a portion of the Investor Servicing Fee for any given period, in which event the agreed upon lesser Investor Servicing Fee shall be payable. The Dealer Manager may reallow a portion of the Investor Servicing Fee to Participating Broker-Dealers as marketing fees or to defray other distribution-related expenses. Such reallowance, if any, shall be determined by the Dealer Manager in its sole discretion based on factors including, but not limited to, the level of services that each such broker-dealer performs, including ministerial, record-keeping, sub-accounting, stockholder services and other administrative services. The Dealer Manager’s reallowance of Investor Servicing Fees to Participating Broker-Dealers shall be described in Schedule 1 to the Participating Broker-Dealer Agreement with respect to a particular Participating Broker-Dealer.

(vii)The Investor Servicing Fee shall be paid to the Dealer Manager on a quarterly basis in arrears.

(d)    Placement Fee. The Company will pay to the Dealer Manager a fee (“Placement Fee”) on each Unit sold of up to 1.0% of the Gross Price per Unit. The Placement Fee payable to the Dealer Manager will be paid substantially concurrently with the sale of the applicable Units.

6.2    Obligations to Participating Broker-Dealers. Selling commissions, Dealer Manager Fees and Investor Servicing Fees received by the Dealer Manager will be reallowed to the Participating Broker-Dealer who sold the Units giving rise to such selling commissions, Dealer Manager Fees or Investor Servicing Fees as described more fully in the Participating Broker-Dealer Agreement entered into with such Participating Broker-Dealer. The Company will not be liable or responsible to any Participating Broker-Dealer for direct payment of selling commissions, Dealer Manager Fees or Investor Servicing Fees to such Participating Broker-Dealer, it being the sole and exclusive responsibility of the Dealer Manager for payment of such selling commissions, Dealer Manager Fees and Investor Servicing Fees to Participating Broker-Dealers. Notwithstanding the foregoing, the Company, in its sole discretion, may act as agent of the Dealer Manager by making direct payment of selling commissions, Dealer Manager Fees or Investor Servicing Fees to such Participating Broker-Dealers without incurring any liability therefor.

  

6.3    Suitability; Offer and Sale of Units.

(a)    The Dealer Manager will limit investment in the Offering of the Units to persons whom the Dealer Manager has reasonable grounds to believe are “accredited investors” as defined in Rule 501(a) under the Securities Act and who also meet the investor suitability standards and minimum purchase requirements as may be established by the Company and set forth in the Memorandum or in any suitability letter or memorandum sent to the Dealer Manager by the Company.

(b)    To the extent that the Dealer Manager may recommend the purchase or sale of the Units to any offeree, the Dealer Manager or any person associated with the Dealer Manager shall:

(i)    have reasonable grounds to believe, on the basis of information obtained from the potential investor concerning the investor’s investment objectives, other investments, financial situation and needs, and any other information known by the Dealer Manager or an associated person, that: (A) the prospective investor is an “accredited investor” as that term is defined in Rule 501(a) under the Securities Act, and meets the other investor suitability requirements as may be established by the Company and set forth in the “Suitability Standards” section of the Memorandum and the minimum purchase requirements set forth in the Memorandum; (B) the prospective investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the applicable Trust, including, but not limited to, total loss of its investment, lack of liquidity, and other risks described in the Memorandum; and (C) an investment in the Trust is otherwise suitable for the prospective investor; and

(ii)    maintain in the Dealer Manager’s files, for a period of at least six years following the Offering Termination Date, information and documents disclosing the basis upon which the above determination of suitability was reached as to each investor.

(c)    The Dealer Manager will provide, or will cause each Participating Broker-Dealer to provide, each offeree with a copy of the Memorandum during the course of an Offering and prior to the sale, and advise each such offeree at the time of the initial offering to such offeree that the Company and/or its agents and consultants will, during the course of the Offering and prior to any sale, afford said offeree and his or her purchaser representative, if any, including the Dealer Manager or the Participating Broker-Dealer, the opportunity to ask questions of and to receive answers from the Company and/or its agents and consultants, concerning the terms and conditions of the Offering and to obtain any additional information

which is possessed by the Company, or may be obtained by the Company without any unreasonable effort or expense, which is necessary to verify the accuracy of the information contained in the Memorandum.

(d)    The Dealer Manager will comply in all respects with the subscription procedures and plan of distribution set forth in the Memorandum.

(e)    The Dealer Manager will furnish or cause to be furnished to the Company upon request a complete list of all persons who have been offered the Units by the Dealer Manager or any Participating Broker-Dealer.

(f)    By virtue of entering into a Participating Broker-Dealer Agreement with Participating Broker-Dealers, the Dealer Manager shall cause each Participating Broker-Dealer to agree to comply with all of the foregoing obligations.

 

7.    Submission of Subscription Agreements.

 

7.1    Each person desiring to purchase Units in the Offering will be required to complete and execute a subscription agreement in the form attached as Appendix A to the Memorandum (as amended or supplemented, the “Subscription Agreement”) and to deliver to the Dealer Manager or Participating Broker-Dealer, as the case may be, such completed and executed Subscription Agreement together with a check, draft, wire or money order (hereinafter referred to as an “instrument of payment”) in the amount of such person’s purchase, which must be at least the minimum purchase amount set forth in the Memorandum. Persons purchasing Units will be instructed by the Participating Broker-Dealer to make their instruments of payment payable to or for the benefit of the applicable Trust. The purchase price for subscriptions processed and accepted by the Trust will be as described in the Memorandum and applicable Property Supplement.

 

7.2    If the Participating Broker-Dealer receives a Subscription Agreement or instrument of payment not conforming to the instructions set forth in Section 7.1, the Participating Broker-Dealer shall return such Subscription Agreement and instrument of payment directly to such purchaser not later than the end of the second business day following receipt by the Participating Broker-Dealer. Subscription Agreements and instruments of payment received by the Participating Broker-Dealer which conform to the foregoing instructions shall be transmitted for deposit pursuant to one of the following methods:

 

(a)    where, pursuant to the internal supervisory procedures of the Participating Broker-Dealer, internal supervisory review is conducted at the same location at which Subscription Agreements and instruments of payment are received from purchasers, then, by noon of the next business day following receipt by the Participating Broker-Dealer, the Participating Broker-Dealer will transmit the Subscription Agreements and instruments of payment to the Company or to such other account or agent as directed by the Company; and

 

(b)    where, pursuant to the internal supervisory procedures of the Participating Broker-Dealer, final internal supervisory review is conducted at a different location (the “Final Review Office”), Subscription Agreements and instruments of payment will be transmitted by the Participating Broker-Dealer to the Final Review Office by noon of the next business day following receipt by the Participating Broker-Dealer. The Final Review Office will in turn by noon of the next business day following receipt by the Final Review Office, transmit such Subscription Agreements and instruments of payment to the Company or to such other account or agent as directed by the Company.

 

Notwithstanding the foregoing, with respect to any Units to be purchased by a custodial account, the Participating Broker-Dealer shall cause the custodian of such account to deliver a Subscription Agreement and instrument of payment for such account directly to the Company. The Participating Broker-Dealer shall furnish to the Company with each delivery of Subscription Agreements and instruments of payment a list of the purchasers showing the name, address, tax identification number, state of residence and dollar amount of Units purchased.

 

8.    Indemnification.

 

8.1    Indemnified Parties Defined. For the purposes of this Section 8, an entity’s “Indemnified Parties” shall include such entity’s officers, directors, employees, members, partners, affiliates, agents and representatives, and each person, if any, who controls such entity within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.

 

8.2    Indemnification of the Dealer Manager and Participating Broker-Dealers. The Company and each Trust will indemnify, defend (subject to Section 8.6) and hold harmless the Dealer Manager and the Participating Broker-Dealers, and their respective Indemnified Parties, from and against any losses, claims (including the reasonable cost of investigation), damages or liabilities, joint or several, to which such Participating Broker-Dealers or the Dealer Manager, or their respective Indemnified Parties, may become subject, under the Securities Act or the Exchange Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (a) in whole or in part, any material inaccuracy in a representation or warranty contained herein by the Company, any material breach of a covenant contained herein by the Company or a Trust, or any material failure by the Company or a Trust to perform its obligations hereunder or to comply with state or federal securities laws applicable to an Offering, or (b) any untrue statement or alleged untrue statement of a material fact contained (i) in the Memorandum or (ii) in any securities filing or other document executed by the Company or a Trust or, in either case, on its behalf specifically for the purpose of qualifying the Offering for exemption from the registration requirements of the securities laws of any jurisdiction or based upon written information furnished by the Company or the Trust under the securities laws thereof (any such application, document or information being hereinafter called a “Securities Application”), or (c) the omission or alleged omission to state a material fact required to be stated in the Memorandum or in any Securities Application or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, and the Company and each Trust will reimburse each Participating Broker-Dealer or the Dealer Manager, and their respective Indemnified Parties, for any legal or other expenses reasonably incurred by such Participating Broker-Dealer or the Dealer Manager, and their respective Indemnified Parties, in connection with investigating or defending such loss, claim, damage, liability or action; provided, however, that neither the Company nor any Trust will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished either (x) to the Company or the Trust by the Dealer Manager or (y) to the Company, the Trust or the Dealer Manager by or on behalf of any Participating Broker-Dealer expressly for use in the Memorandum or any Securities Application, but only if the party seeking indemnification furnished the written information on which the Company or the Trust relied. This indemnity agreement will be in addition to any liability which the Company and each Trust may otherwise have.

 

Notwithstanding the foregoing, the indemnification and agreement to hold harmless provided in this Section 8.2 is further limited to the extent that no such indemnification by the Company or a Trust of a Participating Broker-Dealer or the Dealer Manager, or their respective Indemnified Parties, shall be permitted under this Agreement for, or arising out of, an alleged violation of federal or state securities laws, unless one

or more of the following conditions are met: (a) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to the particular indemnitee; (b) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or (c) a court of competent jurisdiction approves a settlement of the claims against the particular indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Commission and of the published position of any state securities regulatory authority in which the securities were offered or sold as to indemnification for violations of securities laws.

Notwithstanding anything herein to the contrary, the extent of a Trust’s obligation to indemnify, defend and hold harmless any party hereunder shall be limited to the extent that the applicable losses, claims, damages or liabilities arise out of or are based upon the Offering of Units of such Trust.

 

8.3    Dealer Manager Indemnification of the Company and Trusts. The Dealer Manager will indemnify, defend and hold harmless the Company and each Trust and its Indemnified Parties from and against any losses, claims, damages or liabilities to which any of the aforesaid parties may become subject, under the Securities Act or the Exchange Act, or otherwise, insofar as such losses, claims (including the reasonable cost of investigation), damages or liabilities (or actions in respect thereof) arise out of or are based upon (a) in whole or in part, any material inaccuracy in a representation or warranty contained herein by the Dealer Manager, any material breach of a covenant or agreement contained herein by the Dealer Manager, or any material failure by the Dealer Manager to perform its obligations hereunder, (b) any untrue statement or any alleged untrue statement of a material fact contained in the Memorandum or (c) the omission or alleged omission to state a material fact required to be stated in the Memorandum or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that in each case described in clauses (b) and (c) to the extent, but only to the extent, that such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company or Trust by the Dealer Manager specifically for use in the preparation of the Memorandum, (d) any untrue statement or omission to state a fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading by the Dealer Manager or its representatives or agents in connection with the offer and sale of the Units, (e) any failure by the Dealer Manager to comply with applicable laws governing money laundry abatement and anti-terrorist financing efforts in connection with the Offering, including applicable FINRA Rules, Exchange Act Regulations and the USA PATRIOT Act, or (f) any other failure by the Dealer Manager to comply with any of the applicable provisions of the Securities Act, the Exchange Act, Regulation D or the rules and regulations thereunder or any applicable federal or state securities laws or regulations. The Dealer Manager will reimburse the aforesaid parties in connection with investigation or defense of such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which the Dealer Manager may otherwise have.

 

8.4    Participating Broker-Dealer Indemnification of the Company and Trusts. By virtue of entering into the Participating Broker-Dealer Agreements with the Participating Broker-Dealers, the Dealer Manager shall cause each Participating Broker-Dealer to agree to severally indemnify, defend and hold harmless the Company and each Trust, the Dealer Manager and each of their respective Indemnified Parties, from and against any losses, claims, damages or liabilities to which the Company, a Trust, the Dealer Manager, or any of their respective Indemnified Parties may become subject, as more fully described in each Participating Broker-Dealer Agreement.

 

8.5    Action Against Parties; Notification. Promptly after receipt by any indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify in writing the indemnifying

party of the commencement thereof and the omission to so notify the indemnifying party will relieve such indemnifying party from any liability under this Section 8 as to the particular item for which indemnification is then being sought to the extent that the indemnifying party is materially prejudiced by such omission, but not from any other liability which it may have to any indemnified party. In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled, to the extent it may wish, jointly with any other indemnifying party similarly notified, to participate in the defense thereof, with separate counsel. Such participation shall not relieve such indemnifying party of the obligation to reimburse the indemnified party for reasonable legal and other expenses (subject to Section 8.6) incurred by such indemnified party in defending itself, except for such expenses incurred after the indemnifying party has deposited funds sufficient to effect the settlement, with prejudice, of the claim in respect of which indemnity is sought. Any such indemnifying party shall not be liable to any such indemnified party on account of any settlement of any claim or action effected without the consent of such indemnifying party.

 

8.6    Reimbursement of Fees and Expenses. An indemnifying party under Section 8 of this Agreement shall be obligated to reimburse an indemnified party for reasonable legal and other expenses as follows:

 

(a)    In the case of the Company or a Trust indemnifying the Dealer Manager, the advancement of Company funds or Trust funds to the Dealer Manager for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought shall be permissible only if all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company or a Trust; (ii) the legal action is initiated by a third party who is not an owner of equity in the Company or the legal action is initiated by an owner of equity in the Company or the Trust acting in his or her capacity as such and a court of competent jurisdiction specifically approves such advancement; and (iii) the Dealer Manager undertakes to repay the advanced funds to the Company and the Trust, together with the applicable legal rate of interest thereon, in cases in which the Dealer Manager is found not to be entitled to indemnification.