AMENDMENT NO. 1
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
GRUBB & ELLIS HEALTHCARE REIT HOLDINGS, LP
THIS AMENDMENT NO. 1 TO AGREEMENT OF
LIMITED PARTNERSHIP OF GRUBB & ELLIS HEALTHCARE REIT HOLDINGS,
LP (this “ Amendment ”), dated as of
November 14, 2008, is entered into by and among Grubb &
Ellis Healthcare REIT, Inc., a Maryland corporation, as general
partner (the “ General Partner ”), and Grubb
& Ellis Healthcare REIT Advisor, LLC (referred to herein as the
“ Initial Limited Partner ” or the “
Advisor ”, as applicable).
W I T N E S S E T
H
WHEREAS, the General Partner and the
Initial Limited Partner formed Grubb & Ellis Healthcare REIT
Holdings, LP (the “ Partnership ”) as a limited
partnership pursuant to the Act by filing a certificate of limited
partnership with the Secretary of State of the State of Delaware on
April 20, 2006;
WHEREAS, the General Partner and the
Initial Limited Partner are parties to that certain Agreement of
Limited Partnership dated September 20, 2006 (the “
Agreement ”);
WHEREAS, the General Partner and the
Initial Limited Partner desire to amend the Agreement as herein
provided;
WHEREAS, the Agreement, as amended by
this Amendment shall be binding upon all Persons now or at any time
hereafter who are Partners;
NOW, THEREFORE, in consideration of
the mutual covenants and obligations set forth in this Amendment,
and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
1. Definitions .
(a) Amended Definitions.
The definitions of the following terms in the Agreement are deleted
in their entirety and replaced with the following:
1.4 “Advisor”
means Grubb & Ellis Healthcare REIT Advisor, LLC, the advisor
to the Partnership and the General Partner pursuant to the Advisory
Agreement.
1.5 “Advisory
Agreement” means that certain Amended and Restated
Advisory Agreement by and among the Advisor, the Partnership, the
General Partner and for limited purposes Grubb & Ellis Realty
Investors, LLC, dated as of November 14, 2008 and effective as
of October 24, 2008.
1.8 “Agreement”
means the Agreement of Limited Partnership of Grubb & Ellis
Healthcare REIT Holdings, LP, as originally executed, as amended by
this Amendment and as it may be further amended, modified,
supplemented or restated from time to time, as the context
requires.
1.32 “General
Partner” means Grubb & Ellis Healthcare REIT, Inc., a
Maryland corporation, and any successor as general partner of the
Partnership.
1.37 “Initial Limited
Partner” means Grubb & Ellis Healthcare REIT Advisor,
LLC.
1.63
“Partnership” means Grubb & Ellis Healthcare
REIT Holdings, LP, and any successor thereto.
(b) New Definitions. The
following defined terms are hereby added to the Agreement:
1.102 “Deferred Payment
Election” has the meaning set forth in
Section 5.1(e).
1.103 “Deferred Termination
Amount” has the meaning set forth in
Section 5.1(e).
1.104 “Included
Assets” means the Partnership Assets owned by the
Partnership as of the date of the Termination Event plus any
Partnership Assets acquired after the date of the Termination Event
for which the Advisor was entitled to receive an Acquisition Fee
(as defined in the Advisory Agreement) pursuant to
Section 8(a)(i) of the Advisory Agreement for services
rendered; provided, however, no assets shall be counted twice.
1.105 “Other Liquidity
Event” means a Liquidating Event, a liquidation, sale of
all or substantially all of the assets of the Partnership or the
merger of the Partnership with another entity where the
stockholders of the General Partner receive in exchange for their
shares of REIT Stock shares of a company that are traded on a
national securities exchange (“ Merger ”).
1.106 “Separate Asset
Value” has the meaning set forth in
Section 5.1(e).
1.107 “Self-Management
Program” has the meaning set forth in
Section 5.1(e).
2. Organizational Matters . Section 2.2
of the Agreement shall be deleted in its entirety and replaced with
the following:
2.2 Name
The name of the
Partnership is Grubb & Ellis Healthcare REIT Holdings, LP. The
Partnership’s business may be conducted under such name or
under any other name or names deemed advisable by the General
Partner, including the name of the General Partner or any Affiliate
thereof. The words “Limited Partnership,”
“LP,” “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, acting in its sole and
absolute discretion without the Consent of any Limited Partner, may
change the name of the Partnership. The General Partner shall
notify the Limited Partners of any such name change in the next
regular communication to the Limited Partners. Upon termination of
the Partnership or the termination, resignation or withdrawal of
the Initial Limited Partner as the Advisor, all of the
Partnership’s right, title and interest in and to the use of
the name “Grubb & Ellis Healthcare REIT Holdings,
LP” and any variation thereof, shall become the property of
the Initial Limited Partner, and if requested to do so by the
Initial Limited Partner, the Partnership shall change the name of
the Partnership to exclude the term “Grubb &
Ellis.” Neither the Partnership nor any Limited Partner other
than the Initial Limited Partner shall have any right or interest
in and to the use of any such name or mark.
3. Distributions . Section 5.1(e) of
the Agreement shall be deleted in its entirety and replaced with
the following:
(e)
Distribution to Advisor Upon Termination .
(i) Upon a
Termination Event, the Advisor shall no longer be entitled to any
distributions of the Advisor Participation in Sales Proceeds under
Section 5.1(c). If a Listing Event has not occurred as of the
date of a Termination Event, then the Advisor (in its capacity as
Partner) shall receive a distribution (the “ Termination
Amount ”), which shall be paid within five
(5) Business Days of the date of such Termination Event, in an
amount equal to 15% of the amount, if any, by which (A) the
Appraised Value of all of the Partnership Assets as of the date of
the Termination Event, less any indebtedness secured by such
assets, plus the cumulative distributions made to the General
Partner from the inception of the Partnership through the date of
the Termination Event, exceeds (B) the sum of (1) the Invested
Capital of the General Partner as of such date, and (2) the 8%
Return that has accrued with respect to the Invested Capital of the
General Partner from the inception of the Partnership through the
date of the Termination Event; provided, however , that, if
the Advisory Agreement is not renewed because the General Partner
has decided to pursue a self-management program (the “
Self-Management Program ”), then the Advisor, in its
sole discretion, may elect, within five (5) Business Days of
the date of such Termination Event, to forego a distribution of the
Termination Amount upon such Termination Event and instead elect
(“ Deferred Payment Election ”) to receive a
deferred termination amount (the “ Deferred Termination
Amount ”), which, notwithstanding any other provisions
herein to the contrary, shall exclude any new Partnership Assets
acquired and/or owned by the General Partner (either directly or
through third parties) after such Termination Event, other than the
Included Assets (the “ Separate Asset Value ”).
The Deferred Termination Amount, if any, shall be paid within five
(5) Business Days of the first to occur of (x) a Listing
Event or (y) an Other Liquidity Event, in an amount equal
to:
(A) if in connection with a
Listing Event, 15% of the amount, if any, by which (I) the
Appraised Value as of the Listing Date of the Included Assets, less
any indebtedness secured by such assets as of the Listing Date,
plus the cumulative distributions made to the General Partner and
to any Limited Partners (other than the Initial Limited Partner)
with respect to Partnership Units issued in connection with the
acquisition of the Included Assets fro
