Conversion of LTIP Units. (a) An LTIP Holder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into Limited Partnership Units; provided, however, that an LTIP Holder may not exercise the Conversion Right for fewer than one thousand (1,000) Vested LTIP Units or, if such LTIP Holder holds fewer than one thousand (1,000) Vested LTIP Units, all of the LTIP Holder’s Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 12.1. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 4.5 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a LTIP Holder may deliver a Redemption Notice pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.

Appears in 12 contracts

Samples: Limited Partnership Agreement (Hartman vREIT XXI, Inc.), Limited Partnership Agreement (Resource Innovation Office REIT, Inc.), Limited Partnership Agreement (Resource Real Estate Innovation Office REIT, Inc.)

Conversion of LTIP Units. (a) An LTIP Holder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into Limited Partnership Units; provided, however, that an LTIP Holder may not exercise the Conversion Right for fewer than one thousand (1,000) Vested LTIP Units or, if such LTIP Holder holds fewer than one thousand (1,000) Vested LTIP Units, all of the LTIP Holder’s Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 12.1. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 4.5 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a LTIP Holder may deliver a Redemption Notice pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders of such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.

Appears in 11 contracts

Samples: Limited Partnership Agreement (Cantor Fitzgerald Income Trust, Inc.), Limited Partnership Agreement (Rodin Income Trust, Inc.), Limited Partnership Agreement (Rodin Income Trust, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this section, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c) In order to~~ . To exercise ~~its~~ such LTIP Unitholder’s Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) substantially in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days ~~prior to~~ before a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f)) at least ~~thirty (30)~~ 30 days ~~prior to~~ before the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees ~~with the Partnership~~ that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such LTIP Unitholder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.05(b). ~~In order to~~ To exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days ~~prior to~~ before the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. (ed) A conversion of Vested LTIP Units for which ~~a holder~~ the LTIP Unitholder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, immediately ~~prior to~~ before the Common Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, ~~prior to~~ before such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 8 contracts

Samples: Limited Partnership Agreement (Medalist Diversified REIT, Inc.), Limited Partnership Agreement (Medalist Diversified REIT, Inc.), Agreement of Limited Partnership (CapRocq Core REIT, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, immediately prior to the Common Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 5 contracts

Samples: Limited Partnership Agreement (Pebblebrook Hotel Trust), Limited Partnership Agreement (Pebblebrook Hotel Trust), Limited Partnership Agreement (Pebblebrook Hotel Trust)

Conversion of LTIP Units. ~~(a) An~~ A. Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the Managing Member with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand (1,000) Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Membership Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition~~. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units~~. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Membership Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.6. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). B. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Member, to the extent attributable to its ownership of Vested LTIP Units, divided by (y) the ~~Limited Partnership~~ Membership Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit C to the ~~Partnership~~ Company (with a copy to the ~~General Partner~~Managing Member) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Managing Member has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.6.F) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the ~~General Partner~~ Managing Member of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.2. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.6.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 15.1.A relating to those ~~Limited Partnership~~ Membership Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Membership Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Membership Common Units by the ~~Partnership~~ Company shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Managing Member elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Membership Common Units under Section ~~8.5~~ 15.1.B by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units. The ~~General Partner~~ Managing Member shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Managing Member in its sole and absolute discretion, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ Membership Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.6.B. In order to exercise its right of Forced ~~Conversion~~Redemption, the ~~Partnership~~ Company shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit D to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.2. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Membership Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Managing Member certifying ~~its Limited Partnership~~ the number of Membership Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Member pursuant to Article 11 hereof may exercise the rights of such Member pursuant to this Section 4.6 and such Member shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.E and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Membership Common Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership~~ Company or the ~~General Partner~~ Managing Member shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Membership Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Membership Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Membership Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the ~~General Partner~~ Managing Member shall, immediately prior to the consummation of the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the ~~Partnership~~ Company were sold at the Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Managing Member in good faith using the value attributed to the ~~Partnership~~ Membership Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Membership Common Units, assuming such holder of ~~Limited Partnership~~ Membership Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Membership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the ~~General Partner~~ Managing Member shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Managing Member, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Membership Common Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Membership Common Unit would receive if such Membership Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company and the ~~General Partner~~ Managing Member under any Vesting ~~Agreement~~Agreement and any Equity Plan, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.6.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Membership Common Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Membership Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (BrightSpire Capital, Inc.), Limited Liability Company Agreement (Colony NorthStar Credit Real Estate, Inc.), Master Combination Agreement (Colony NorthStar, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Summit REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or Summit REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 4 contracts

Samples: Limited Partnership Agreement (Summit Hotel Properties, Inc.), Limited Partnership Agreement (Summit Hotel Properties, Inc.), Limited Partnership Agreement (Summit Hotel Properties, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. (b) A Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.2(c). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6(a) relating to those ~~Limited~~ Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Partnership Units under Section ~~8.5~~ 8.6(b) by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.2(c); provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph~~ Section 8.7. (bd) ~~above.~~ In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (e) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Partnership Units and remaining LTIP Units, if any, held by such Person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (f) For purposes of making future allocations under Section ~~5.1(e~~6.1(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited~~ Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited~~ Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited~~ Partnership Units, assuming such holder of ~~Limited~~ Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Partnership Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Partnership ~~Units~~ Unit would receive if such Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Company under any ~~Vesting Agreement~~LTIP Unit Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Partnership Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 4 contracts

Samples: Agreement of Limited Partnership (NetSTREIT Corp.), Agreement of Limited Partnership (NetSTREIT Corp.), Agreement of Limited Partnership (NetSTREIT Corp.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.7. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit D (with a copy to the General Partner) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.7 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.7(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.7 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner ~~shall~~may, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.7(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Ashford Hospitality Prime, Inc.), Limited Partnership Agreement (Ashford Hospitality Prime, Inc.), Limited Partnership Agreement (Ashford Hospitality Prime, Inc.)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A Unless otherwise provided in an LTIP Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 3 contracts

Samples: Agreement of Limited Partnership, Limited Partnership Agreement (Empire State Realty Trust, Inc.), Limited Partnership Agreement (Empire State Realty Trust, Inc.)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. ~~(b) A~~ B. Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) 4.2.C. In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6.A hereof relating to those ~~Limited~~ Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Partnership Units under Section ~~8.5~~ 8.6.B hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.2.C; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 8.7. D. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ E. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Partnership Units and remaining LTIP Units, if any, held by such Person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ F. For purposes of making future allocations under Section ~~5.1(e)~~ 6.1.C and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Partnership Unit Economic Balance. ~~(g)~~ G. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited~~ Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited~~ Partnership Units, assuming such holder of ~~Limited~~ Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Partnership Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Partnership ~~Units~~ Unit would receive if such Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Company under any ~~Vesting Agreement~~LTIP Unit Agreement and any Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7.G and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Partnership Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Colony Starwood Homes), Limited Partnership Agreement (Starwood Waypoint Residential Trust), Limited Partnership Agreement (Starwood Waypoint Residential Trust)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; ~~provided, however,~~ provided that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; ~~provided, however,~~ provided that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; ~~provided, however,~~ provided that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; ~~provided, however,~~ provided that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Parent REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; ~~provided,~~ provided that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or Parent REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Alpine Income Property Trust, Inc.), Limited Partnership Agreement (Alpine Income Property Trust, Inc.), Limited Partnership Agreement (Global Medical REIT Inc.)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A Unless otherwise provided in an LTIP Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner or the Parent elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder Common REIT Shares rather than cash, then such holder can have such Common REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(d) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 3 contracts

Samples: Second Amended and Restated Agreement of Limited Partnership (Trade Street Residential, Inc.), Second Amended and Restated Agreement of Limited Partnership (Trade Street Residential, Inc.), Limited Partnership Agreement (Trade Street Residential, Inc.)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. ~~(b) A~~ B. Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) 4.2.C. In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6.A hereof relating to those ~~Limited~~ Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Partnership Units under Section ~~8.5~~ 8.6.B hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.2.C; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 8.7. D. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ E. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Partnership Units and remaining LTIP Units, if any, held by such Person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ F. For purposes of making future allocations under Section ~~5.1(e)~~ 6.1.C and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Partnership Unit Economic Balance. ~~(g)~~ G. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited~~ Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited~~ Partnership Units, assuming such holder of ~~Limited~~ Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Partnership Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Partnership ~~Units~~ Unit would receive if such Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Company under any ~~Vesting Agreement~~LTIP Unit Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7.G and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Partnership Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (PennyMac Mortgage Investment Trust), Limited Partnership Agreement (PennyMac Mortgage Investment Trust)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one ~~thousand~~ hundred (~~1,000~~100) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one ~~thousand~~ hundred (~~1,000~~100) Vested LTIP Units, all of the LTIP Holder’s Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert held by such ~~interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b)~~holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP Unitholders shall not have the right to convert Unvested LTIP Units into OP Units until they become Vested LTIP Units; provided, however, that when an LTIP Unitholder is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting and such Conversion Notice, unless subsequently revoked by the LTIP Unitholder, shall be accepted by the Partnership subject to such condition. Subject to Section 8.7(c), the General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into OP Units. In all cases, the conversion of any LTIP Units into OP Units shall be subject to the conditions and procedures set forth in this Section 8.7. (cb) Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such Units into an equal number of fully paid and non-assessable OP Units, giving effect to all adjustments (if any) made pursuant to Section 4.6(a). In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 ten (10) nor more than 60 sixty (60) days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ (3rd) Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6(a) hereof relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ STAG REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6(b) hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.6(a); provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph~~ Section 8.7(b). (bd) ~~above.~~ In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (e) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such LTIP Unitholder immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (f) For purposes of making future allocations under Section ~~5.1(e~~6.1(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (g) If the ~~Partnership or~~ Partnership, the General Partner or STAG REIT shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ OP Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the ~~Partnership~~ OP Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ an OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any ~~Vesting Agreement~~LTIP Unit Agreement and the Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership Units~~ the OP Units; and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (STAG Industrial, Inc.), Agreement of Limited Partnership (STAG Industrial, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. (b) A Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.2(c). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6(a) relating to those ~~Limited~~ Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Partnership Units under Section ~~8.5~~ 8.6(b) by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.2(c); provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph~~ Section 8.7. (bd) ~~above.~~ In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (e) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Partnership Units and remaining LTIP Units, if any, held by such Person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (f) For purposes of making future allocations under Section ~~5.1(e~~6.1(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited~~ Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited~~ Partnership Units, assuming such holder of ~~Limited~~ Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Partnership Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Partnership ~~Units~~ Unit would receive if such Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Company under any ~~Vesting Agreement~~LTIP Unit Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Partnership Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Essential Properties Realty Trust, Inc.), Limited Partnership Agreement (Essential Properties Realty Trust, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.7. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5(a). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit D (with a copy to the General Partner) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.7 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.7(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.7 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner ~~shall~~may, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.7(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders. Notwithstanding the foregoing, the provisions of this Section 7.7 shall only apply to Class 2 LTIP Units if such Class 2 LTIP Units have been converted into LTIP Units in accordance with Section 7.8.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Stirling Hotels & Resorts, Inc.), Contribution Agreement (Ashford Hospitality Trust Inc)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ [100] Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ [100] Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The Partnership, at any time at the election of the General ~~Partner~~ Partner, shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.7. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice to the Partnership (a “Conversion Notice”) in the form attached as Exhibit C to ~~the Partnership~~ this Agreement (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date specified in such Conversion Notice (the “Conversion Date”~~) specified in such Conversion Notice~~); provided, however, that (i) if the effective date of a Transaction (as defined below in Section 4.7.F) is to occur prior to such date, then the Conversion Date shall be the Business Day immediately prior to such effective date; and (ii) if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6.A relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6.B by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.7.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable ~~holder~~ LTIP Unitholder in the form attached as Exhibit D to this Agreement not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.C and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. ~~(g)~~ F. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such ~~holder of Limited Partnership Units~~ OP Unitholder failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.7.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (MFResidential Investments, Inc.), Limited Partnership Agreement (Invesco Agency Securities Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (DLC Realty Trust, Inc.), Limited Partnership Agreement (DLC Realty Trust, Inc.)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units then held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.11. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.10. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that ~~exceeds~~ exceeds: (xi) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (yii) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in a form to be provided by the Partnership upon request (with a copy to the General Partner) not less than 10 ten (10) nor more than 60 days prior to ~~a date (~~the “Conversion Date~~”) specified in such Conversion Notice~~; ~~provided, however,~~ provided that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Common Unit Transaction or (y) the third (3rd) business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.11.B shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6 relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Federal Realty elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.6.B by delivering to such holder the REIT ~~Shares rather than cash~~Shares, then such holder can have the REIT Shares issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.10; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~this Section 4.11. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 days prior to ~~the~~ specified Conversion ~~Date specified in such Forced Conversion Notice~~Date. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1 and shall be revocable by the General Partner at any time prior to the Forced Conversion. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 may exercise the rights of such Limited Partner pursuant to this Section 4.11 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.7 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership or~~ Partnership, the General Partner or Federal Realty shall be a party to any ~~transaction~~ Extraordinary Transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Extraordinary Transaction which constitutes an Adjustment Event~~), in each case~~ ) as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.11.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i1) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership Units~~ the Common Units; and (ii2) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Federal Realty OP LP), Limited Partnership Agreement (Federal Realty OP LP)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand (1,000) Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. ~~The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units.~~ In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.7. (b) A Unless otherwise provided in an LTIP Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten (10) nor more than 60 sixty (60) days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.7(f)) at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ SFTY elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6(b) of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner and SFTY shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.7(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.3(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or ~~the General Partner~~ SFTY shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership , SFTY and the General Partner under any LTIP Award or Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.7(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Safety, Income & Growth, Inc.), First Amended and Restated Agreement of Limited Partnership (Safety, Income & Growth, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. (b) A Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.2(c). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit E to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ (3rd) Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6(a) relating to those ~~Limited~~ Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Partnership Units under Section ~~8.5~~ 8.6(b) by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.2(c); provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph~~ Section 8.7. (bd) ~~above.~~ In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit F to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (e) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Partnership Units and remaining LTIP Units, if any, held by such Person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (f) For purposes of making future allocations under Section ~~5.1(e~~6.1(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited~~ Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited~~ Partnership Units, assuming such holder of ~~Limited~~ Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Partnership Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Partnership ~~Units~~ Unit would receive if such Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Company under any ~~Vesting Agreement~~LTIP Unit Agreement and a Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Partnership Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Angel Oak Mortgage, Inc.), Limited Partnership Agreement (Angel Oak Mortgage, Inc.)

Conversion of LTIP Units. (a) An Section 4.05(a) of the Partnership Agreement is hereby deleted in its entirety and the following new Section 4.05(a) is inserted in its place: (a) Subject to the provisions of this section, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. In any such conversion, Vested C-LTIP Units shall be converted into C-Common Units and all other Vested LTIP Units shall be converted into Common Units that are not C-Common Units. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) Section 4.05(b) of the Partnership Agreement is hereby deleted in its entirety and the following new Section 4.05(b) is inserted in its place: (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. In any such conversion, Vested C-LTIP Units shall be converted into C-Common Units and all other Vested LTIP Units shall be converted into Common Units that are not C-Common Units. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). ; it being understood that, in the case of the conversion of C-LTIP Units, a holder’s Capital Account Limitation shall be determined by reference to such holder’s C-LTIP Units and not any other LTIP Units, and, in the case of the conversion of other LTIP Units (~~c) In order~~ other than C-LTIP Units), a holder’s Capital Account Limitation shall be determined by reference to such holder’s other LTIP Units and not any C-LTIP Units. To exercise ~~its~~ such LTIP Unitholder’s Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) substantially in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days ~~prior to~~ before a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f)) at least thirty (30) days ~~prior to~~ before the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees ~~with the Partnership~~ that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such LTIP Unitholder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) by delivering to such holder Class A REIT Shares or Class C REIT Shares, as applicable, rather than cash, then such holder can have such Class A REIT Shares or Class C REIT Shares, as applicable, issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) ~~The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”~~Section 4.05(c) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon Agreement is hereby deleted in its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted entirety and the ~~Limited Partnership Unit Economic Balance. (g~~following new Section 4.05(c) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), is inserted in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.place:

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Bluerock Residential Growth REIT, Inc.), Thirteenth Amendment to the Second Amended and Restated Agreement of Limited Partnership (Bluerock Homes Trust, Inc.)

Conversion of LTIP Units. (a) An LTIP Holder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into Limited Partnership Units; provided, however, that an LTIP Holder may not exercise the Conversion Right for fewer than one thousand (1,000) Vested LTIP Units or, if such LTIP Holder holds fewer than one thousand (1,000) Vested LTIP Units, all of the LTIP Holder’s 's Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 12.1. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 4.5 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a LTIP Holder may deliver a Redemption Notice pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s 's redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.such

Appears in 2 contracts

Samples: Limited Partnership Agreement (NorthStar Real Estate Income II, Inc.), Limited Partnership Agreement (NorthStar Real Estate Income II, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Class A Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Class A Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Class A Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Class A Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Class A Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Class A Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Class A Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Class A Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Class A Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Class A Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Class A Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Class A Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Class A Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Class A Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Class A Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Class A Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Class A Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Class A Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Class A Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Class A Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Class A Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Class A Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Class A Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Class A Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Class A Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Class A Common Unit Transaction or that would occur in connection with the Class A Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Class A Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Class A Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Class A Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Class A Common Unit Transaction in consideration for the ~~Limited Partnership~~ Class A Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Class A Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Class A Common Units, assuming such holder of ~~Limited Partnership~~ Class A Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Class A Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Class A Common Unit Transaction, prior to such ~~Transaction~~ Class A Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Class A Common Units in connection with such Class A Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Class A Common Unit would receive if such Class A Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Class A Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Class A Common Units in connection with the Class A Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Class A Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Class A Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Postal Realty Trust, Inc.), Limited Partnership Agreement (Postal Realty Trust, Inc.)

Conversion of LTIP Units. (a) An Subject to Section 4.07(b), an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Parent shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ an OP Unit would receive if such ~~holder of Limited Partnership Units~~ OP Unitholder failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.9. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit M (with a copy to the General Partner) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.9 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.9(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit N to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.9 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner ~~shall~~may, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.9(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Agreement of Limited Partnership (Ashford Hospitality Trust Inc), Agreement of Limited Partnership (Ashford Hospitality Trust Inc)

Conversion of LTIP Units. (a) An Subject to the provisions of this section, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c) In order to~~ . To exercise ~~its~~ such LTIP Unitholder’s Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) substantially in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days ~~prior to~~ before a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f)) at least ~~thirty (30)~~ 30 days ~~prior to~~ before the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees ~~with the Partnership~~ that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such LTIP Unitholder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.05(b). ~~In order to~~ To exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days ~~prior to~~ before the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. (ed) A conversion of Vested LTIP Units for which ~~a holder~~ the LTIP Unitholder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, immediately ~~prior to~~ before the Common Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, ~~prior to~~ before such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Bluerock Residential Growth REIT, Inc.), Limited Partnership Agreement (Bluerock Residential Growth REIT, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Xxxx Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Armada Hoffler Properties, Inc.), Limited Partnership Agreement (Armada Hoffler Properties, Inc.)

Conversion of LTIP Units. ~~(a) An~~ A. A LTIP ~~Holder~~ Unitholder shall have the right (the ~~“Conversion Right”~~"CONVERSION RIGHT"), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; ~~provided~~PROVIDED, ~~however~~HOWEVER, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand~~ three hundred (~~1,000~~300) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; ~~provided~~PROVIDED, ~~however~~HOWEVER, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.8. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b).~~ 4.2.C. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP ~~Units~~Xxxxx, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the ~~“Capital Account Limitation”~~"CAPITAL ACCOUNT LIMITATION")~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a ~~“Conversion Notice”~~"CONVERSION NOTICE") in the form attached as EXHIBIT A to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the ~~“Conversion Date”~~"CONVERSION DATE") specified in such Conversion Notice; ~~provided~~PROVIDED, ~~however~~HOWEVER, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.8A shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6A of the Partnership Agreement relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s 's redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.6B of the Partnership Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a ~~“Forced Conversion”~~"FORCED CONVERSION") into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.2.C; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 8.8.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a ~~“Forced Conversion Notice”~~"FORCED CONVERSION NOTICE") in the form attached as EXHIBIT B to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Section 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.8 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e~~6.1.B(iii) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. ~~(g)~~ F. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s 's assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “"Transaction”"), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a ~~“Constituent Person”~~"CONSTITUENT PERSON"), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Company under any Vesting ~~Agreement~~Agreement and the Plan (including without limitation pursuant to Section 3 of the Plan with respect to recapitalizations, mergers and substitute awards), the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.8.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Partnership Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Forty Seventh Amendment to Agreement of Limited Partnership (Boston Properties LTD Partnership), Forty Seventh Amendment to Agreement of Limited Partnership (Boston Properties Inc)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Series PR OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Series PR OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Series PR OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Series PR OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A Unless otherwise provided in an LTIP Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable Series PR OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ Series PR OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Series PR OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Series PR OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Series PR OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Series PR OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Series PR OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ Series PR OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership or the Transfer Agent with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Series PR OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Series PR OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Series PR OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Series PR OP Units, assuming such holder of ~~Limited Partnership~~ Series PR OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Series PR OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Series PR OP Unit would receive if such Series PR OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Series PR OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Series PR OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Empire State Realty OP, L.P.), Limited Partnership Agreement (Empire State Realty Trust, Inc.)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into Limited Partnership Units; provided, however, that an LTIP Holder may not exercise the Conversion Right for fewer than one thousand (1,000) Vested LTIP Units or, if such LTIP Holder holds fewer than one thousand (1,000) Vested LTIP Units, all of the LTIP Holder’s Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to ~~all~~ any adjustments ~~(if any)~~ made pursuant to Section ~~4.4(b). Notwithstanding the foregoing~~4.06; provided, that in no event may an LTIP Unitholder convert a ~~holder of Vested LTIP Units convert an amount~~ number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”), into OP Units. Notwithstanding the foregoing, a Holder may not exercise the Conversion Right for less than 1,000 Vested LTIP Units or, if such holder holds less than 1,000 Vested LTIP Units, all of the Vested LTIP Units held by such holder. LTIP Unitholders shall not have the right to convert Unvested LTIP Units into OP Units until they become Vested LTIP Units; provided, however, that when an LTIP Unitholder is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting and such Conversion Notice, unless subsequently revoked by the LTIP Unitholder, shall be accepted by the Partnership subject to such condition. In all cases, the conversion of any LTIP Units into OP Units shall be subject to the conditions and procedures set forth in this Section 4.07. (cb) In order to exercise ~~its~~ a Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit C to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. ~~For clarity, it is noted that the objective~~ The provisions of this ~~paragraph is~~ Section 4.07(b) are intended to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner or the Parent elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder Common REIT Shares rather than cash, then such holder can have such Common REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units~~. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence~~. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit D to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership or the Transfer Agent with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon the exercise of such ~~conversion~~Conversion Right. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner with respect to any LTIP Units held by such Assignee pursuant to this Section 4.07, and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner ~~in good faith~~ using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may ~~be (a “Constituent Person”)~~be, or an ~~affiliate~~ Affiliate of such a ~~Constituent~~ Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the ~~General Partner~~ Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 2 contracts

Samples: Second Amended and Restated Agreement of Limited Partnership (Gladstone Commercial Corp), Limited Partnership Agreement (GLADSTONE LAND Corp)

Conversion of LTIP Units. (a) An LTIP Holder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into Limited Partnership Units; provided, however, that an LTIP Holder may not exercise the Conversion Right for fewer than one thousand (1,000) Vested LTIP Units or, if such LTIP Holder holds fewer than one thousand (1,000) Vested LTIP Units, all of the LTIP Holder’s Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (~~10th~~I 0th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 12.1. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 4.5 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a LTIP Holder may deliver a Redemption Notice pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.

Appears in 2 contracts

Samples: Limited Partnership Agreement (NorthStar Senior Care Trust, Inc.), Limited Partnership Agreement (NorthStar Senior Care Trust, Inc.)

Conversion of LTIP Units. ~~(a) An~~ A. Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the Managing Member with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand (1,000) Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Membership Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition~~. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units~~. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Membership Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.6. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). B. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Member, to the extent attributable to its ownership of Vested LTIP Units, divided by (y) the ~~Limited Partnership~~ Membership Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit C to the ~~Partnership~~ Company (with a copy to the ~~General Partner~~Managing Member) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Managing Member has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.6.F) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the ~~General Partner~~ Managing Member of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.2. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.6.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 15.1.A relating to those ~~Limited Partnership~~ Membership Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Membership Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Membership Common Units by the ~~Partnership~~ Company shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company Table of Contents simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Managing Member elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Membership Common Units under Section ~~8.5~~ 15.1.B by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units. The ~~General Partner~~ Managing Member shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Managing Member in its sole and absolute discretion, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ Membership Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.6.B. In order to exercise its right of Forced ~~Conversion~~Redemption, the ~~Partnership~~ Company shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit D to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.2. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Membership Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Managing Member certifying ~~its Limited Partnership~~ the number of Membership Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Member pursuant to Article 11 hereof may exercise the rights of such Member pursuant to this Section 4.6 and such Member shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.E and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Membership Common Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership~~ Company or the ~~General Partner~~ Managing Member shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Membership Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Membership Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Membership Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination Table of Contents thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the ~~General Partner~~ Managing Member shall, immediately prior to the consummation of the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the ~~Partnership~~ Company were sold at the Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Managing Member in good faith using the value attributed to the ~~Partnership~~ Membership Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Membership Common Units, assuming such holder of ~~Limited Partnership~~ Membership Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Membership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the ~~General Partner~~ Managing Member shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Managing Member, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Membership Common Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Membership Common Unit would receive if such Membership Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company and the ~~General Partner~~ Managing Member under any Vesting ~~Agreement~~Agreement and any Equity Plan, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.6.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Membership Common Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Membership Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Master Combination Agreement (NorthStar Real Estate Income II, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the CH\2141662.3 LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Xenia REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner CH\2141662.3 pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or Xenia REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP CH\2141662.3 Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Xenia Hotels & Resorts, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.9. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit M (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.9 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.9(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit N to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.9 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership ~~Units shall be exchanged~~ Unxxx xxxxx xx xxchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner shall, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.9(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Ashford Hospitality Trust Inc)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “"Conversion Right”"), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 300 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.7. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “"Capital Account Limitation”")~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “"Conversion Notice”") in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “"Conversion Date”") specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.9.F) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6.A of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s 's redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6.B of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “"Forced Conversion”") into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.9.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “"Forced Conversion Notice”") in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.D and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership or~~ Partnership, the General Partner or the Parent shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s 's assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “"Transaction”"), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “"Constituent Person”"), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.7.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Vintage Wine Trust Inc)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ ARP REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or ARP REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (American Residential Properties, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “"Conversion Right”"), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “"Capital Account Limitation”")~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “"Conversion Notice”") in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “"Conversion Date”") specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming OP Unit Transaction (as defined ~~below~~below in 4.05(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such OP Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a OP Unit Transaction or (y) the third business day immediately preceding the effective date of such OP Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s 's redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “"Forced Conversion”") into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.05(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “"Forced Conversion Notice”") in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ OP Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s 's assets, but excluding any ~~transaction~~ OP Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “"OP Unit Transaction”"), then the General Partner shall, immediately prior to the OP Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the OP Unit Transaction or that would occur in connection with the OP Unit Transaction if the assets of the Partnership were sold at the OP Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the OP Unit Transaction (in which case the Conversion Date shall be the effective date of the OP Unit Transaction). In anticipation of such Forced Conversion and the consummation of the OP Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such OP Unit Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ OP Unit Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “"Constituent Person”"), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the OP Unit Transaction, prior to such OP Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such OP Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any OP Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the OP Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such OP Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Columbia Equity Trust, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one ~~thousand~~ hundred (~~1,000~~100) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one ~~thousand~~ hundred (~~1,000~~100) Vested LTIP Units, all of the LTIP Holder’s Vested LTIP Units. LTIP Holders shall not have the right to convert Unvested LTIP Units into Limited Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units. In all cases, the conversion of any LTIP Units into Limited Partnership Units shall be subject to the conditions and procedures set forth in this Section 4.5. (b) A holder of Vested LTIP Units may convert held by such ~~interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b)~~holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account ~~Limitation”~~Limitation “). LTIP Unitholders shall not have the right to convert Unvested LTIP Units into Common Units until they become Vested LTIP Units; provided, however, that when an LTIP Unitholder is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting and such Conversion Notice, unless subsequently revoked by the LTIP Unitholder, shall be accepted by the Partnership subject to such condition. Subject to Section 8.7(c), the General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Common Units. In all cases, the conversion of any LTIP Units into Common Units shall be subject to the conditions and procedures set forth in this Section 8.7. (cb) Subject to the Capital Account Limitation, a holder of Vested LTIP Units may convert such Units into an equal number of fully paid and non-assessable Common Units, giving effect to all adjustments (if any) made pursuant to Section 4.6(a). In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 ten (10) nor more than 60 sixty (60) days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third ~~business day~~ (3rd) Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ STAG REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.6(b) hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT ~~Shares~~ Xxxxxx issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.6(a); provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph~~ Section 8.7(b). (bd) ~~above.~~ In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (e) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such LTIP Unitholder immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (f) For purposes of making future allocations under Section ~~5.1(e~~6.1(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (g) If the ~~Partnership or~~ Partnership, the General Partner or STAG REIT shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the ~~Partnership~~ Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of ~~the~~ a Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any ~~Vesting Agreement~~LTIP Unit Agreement and the Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.7(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership Units~~ the Common Units; and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (STAG Industrial, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this section, an LTIP ~~Holder shall have the right~~ Unitholder, at such LTIP Unitholder’s option, at any time, may elect to convert (the “Conversion Right”~~), at its option, at any time to convert~~ ) all or a portion of ~~its~~ such LTIP Unitholder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units~~; provided, however, that an~~ . An LTIP ~~Holder~~ Unitholder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units~~; provided, however, that when a~~ . When an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, which shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of ~~fully paid~~ duly authorized and ~~non-assessable Limited Partnership~~ validly issued Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ such LTIP Unitholder’s Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice~~; provided, however, that if~~ . If the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A An LTIP Unitholder shall provide the Conversion Notice ~~shall be provided~~ in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees ~~with the Partnership~~ that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05 shall be free and clear of all liens. Notwithstanding anything ~~herein~~ in this Agreement to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date~~; provided, however, that the~~ . The redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such LTIP Unitholder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) by delivering to such holder REIT Shares rather than cash, then such ~~holder~~ LTIP Unitholder can have such REIT Shares issued to it such LTIP Unitholder simultaneously with the conversion of ~~its~~ such LTIP Unitholder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and the LTIP Unitholder shall reasonably cooperate ~~with an LTIP Holder~~ to coordinate the timing of the ~~different events described in the~~ foregoing ~~sentence~~event. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b); provided, that the~~ 4.04. The Partnership may not cause a Forced Conversion of any LTIP ~~Units~~ Units, however, that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.05(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion ~~Notice. A~~ Notice and the Partnership shall provide a Forced Conversion Notice ~~shall be provided~~ in the manner provided in Section ~~12.1~~12.01 hereof. (ed) A conversion of Vested LTIP Units for which ~~a holder~~ the LTIP Unitholder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder. As of such time, ~~as of which time~~ such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After ~~the~~ such a conversion of LTIP ~~Units as aforesaid~~Units, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ such LTIP Unitholder’s written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise, immediately prior to the Common Unit Transaction, ~~exercise~~ its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Legacy Healthcare Properties Trust Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Richmond Honan Medical Properties Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this section, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c) In order to~~ . To exercise ~~its~~ such LTIP Unitholder’s Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) substantially in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days ~~prior to~~ before a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f)) at least ~~thirty (30)~~ 30 days ~~prior to~~ before the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees ~~with the Partnership~~ that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such LTIP Unitholder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.05(b). ~~In order to~~ To exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days ~~prior to~~ before the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. (ed) A conversion of Vested LTIP Units for which ~~a holder~~ the LTIP Unitholder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, immediately ~~prior to~~ before the Common Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, ~~prior to~~ before such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (US Federal Properties Trust Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Priam Properties Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.9. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit M (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third business day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.9 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.9(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit N to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (e) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.9 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (f) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (g) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner shall, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.9(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Ashford Hospitality Trust Inc)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The Partnership, at any time at the election of the General ~~Partner~~ Partner, shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.7. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice to the Partnership (a “Conversion Notice”) in the form attached as Exhibit C to ~~the Partnership~~ this Agreement (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date specified in such Conversion Notice (the “Conversion Date”~~) specified in such Conversion Notice~~); provided, however, that (i) if the effective date of a Transaction (as defined below in Section 4.7.F) is to occur prior to such date, then the Conversion Date shall be the Business Day immediately prior to such effective date; and (ii) if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6.A relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6.B by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.7.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable ~~holder~~ LTIP Unitholder in the form attached as Exhibit D to this Agreement not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.C and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. ~~(g)~~ F. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such ~~holder of Limited Partnership Units~~ OP Unitholder failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.7.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Invesco Mortgage Capital Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition. The ~~General Partner~~ Manager shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.6. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form of Exhibit D (with a copy to the ~~General Partner~~Manager) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Manager has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the ~~General Partner~~ Manager of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.6 shall be free and clear of all liens. Notwithstanding anything ~~herein~~ in this Agreement to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.3 relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the ~~Partnership~~ Company shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Manager elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 7.3(b) by delivering to such holder ~~REIT Shares~~ shares of Ashford Inc. Common Stock rather than cash, then such holder can have ~~REIT Shares~~ such shares of Ashford Inc. Common Stock issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The ~~General Partner~~ Manager shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Manager, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.6(b). In order to exercise its right of Forced Conversion, the ~~Partnership~~ Company shall deliver a notice (a “Forced Conversion Notice”) in the form of Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Manager certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Member pursuant to Article IX may exercise the rights of such Member pursuant to this Section 7.6 and such Member shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership~~ Company or ~~the General Partner~~ Ashford Inc. shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to ~~herein~~ in this Agreement as a “Unit Transaction”), then the ~~General Partner shall~~Manager may, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the ~~Partnership~~ Company were sold at the Unit Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Manager in good faith using the value attributed to the ~~Partnership~~ Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the ~~General Partner~~ Manager shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Manager, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company, the Manager and ~~the General Partner~~ Ashford Inc., under any Vesting ~~Agreement~~Agreement and the Plan, the ~~Partnership~~ Company shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.6(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ashford Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Physicians Realty Trust)

Conversion of LTIP Units. ~~(a)~~ An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by ACTIVE 58772069v.4 the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 12.1. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 4.5 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a LTIP Holder may deliver a Redemption Notice pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Rouse Properties, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.9. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit M (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third business day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.9 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 of the Partnership Agreement relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) of the Partnership Agreement by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.9(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit N to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.9 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner shall, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.9(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Partnership Agreement for the benefit of the LTIP ~~Holders~~Unitholders. 7. The following Section 7.10 shall be appended to Article VII of the Partnership Agreement:

Appears in 1 contract

Samples: Third Amended and Restated Agreement of Limited Partnership (Ashford Hospitality Trust Inc)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand (1,000) Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. ~~The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units.~~ In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.7. (b) A Unless otherwise provided in an LTIP Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, a holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit B to the Partnership (with a copy to the General Partner) not less than 10 ten (10) nor more than 60 sixty (60) days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.7(f)) at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.7(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6(a) relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6(b) of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.7(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit C to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten (10) nor more than 60 sixty (60) days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.1. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI may exercise the rights of such Limited Partner pursuant to this Section 4.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.3(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). , provided, that nothing in this paragraph shall prevent the General Partner from determining to apply the same vesting conditions that applied to the underlying LTIP Units to the cash, securities, or other property received in connection with such exchange or conversion. (g) In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such ~~Transaction~~ Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. . (h) Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.7 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Op Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders.~~Unitholders

Appears in 1 contract

Samples: Agreement of Limited Partnership (Rayonier, L.P.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition. The ~~General Partner~~ Manager shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.6. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form of Exhibit D (with a copy to the ~~General Partner~~Manager) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Manager has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the ~~General Partner~~ Manager of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.6 shall be free and clear of all liens. Notwithstanding anything ~~herein~~ in this Agreement to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.3 relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the ~~Partnership~~ Company shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Manager elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 7.3(b) by delivering to such holder ~~REIT Shares~~ Ashford Inc. Common Stocks rather than cash, then such holder can have ~~REIT Shares~~ such Ashford Inc. Common Stocks issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The ~~General Partner~~ Manager shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Manager, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.6(b). In order to exercise its right of Forced Conversion, the ~~Partnership~~ Company shall deliver a notice (a “Forced Conversion Notice”) in the form of Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Manager certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Member pursuant to Article IX may exercise the rights of such Member pursuant to this Section 7.6 and such Member shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership~~ Company or ~~the General Partner~~ Ashford Inc. shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to ~~herein~~ in this Agreement as a “Unit Transaction”), then the ~~General Partner shall~~Manager may, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the ~~Partnership~~ Company were sold at the Unit Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Manager in good faith using the value attributed to the ~~Partnership~~ Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the ~~General Partner~~ Manager shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Manager, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company, the Manager and ~~the General Partner~~ Ashford Inc., under any Vesting ~~Agreement~~Agreement and the Plan, the ~~Partnership~~ Company shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.6(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ashford Inc)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership ~~or the General Partner~~ shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Cherry Hill Mortgage Investment Corp)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder ~~REIT~~ Parent Shares rather than cash, then such holder can have ~~REIT~~ such Parent Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, immediately prior to the Common Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Capterra Financial Group, Inc.)

Conversion of LTIP Units. The following new Section 4.10 shall be added to the Agreement: (a) An Subject to the provisions of this Section 4.10, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.10. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.09 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.10(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.05(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.05(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.09 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.10(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.10 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.10(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Hersha Hospitality Trust)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 300 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 300 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming OP Unit Transaction (as defined ~~below~~below in 4.05(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such OP Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a OP Unit Transaction or (y) the third business day immediately preceding the effective date of such OP Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.to

Appears in 1 contract

Samples: Limited Partnership Agreement (Midlantic Office Trust, Inc.)

Conversion of LTIP Units. ~~(a) An~~ A. Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the Managing Member with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Membership Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition~~. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units~~. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Membership Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.6. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). B. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Member, to the extent attributable to its ownership of Vested LTIP Units, divided by (y) the ~~Limited Partnership~~ Membership Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit C to the ~~Partnership~~ Company (with a copy to the ~~General Partner~~Managing Member) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Managing Member has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.6.F) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the ~~General Partner~~ Managing Member of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.2. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.6.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 15.1.A of this Agreement relating to those ~~Limited Partnership~~ Membership Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Membership Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Membership Common Units by the ~~Partnership~~ Company shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Managing Member elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Membership Common Units under ~~Section 8.5~~ 15.1.B of this Agreement by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units. The ~~General Partner~~ Managing Member shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Managing Member in its sole and absolute discretion, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ Membership Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.6.B. In order to exercise its right of Forced ~~Conversion~~Redemption, the ~~Partnership~~ Company shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit D to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.2. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Membership Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Managing Member certifying ~~its Limited Partnership~~ the number of Membership Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Member pursuant to Article 11 hereof may exercise the rights of such Member pursuant to this Section 4.6 and such Member shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.E and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Membership Common Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership~~ Company or the ~~General Partner~~ Managing Member shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Membership Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Membership Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Membership Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the ~~General Partner~~ Managing Member shall, immediately prior to the consummation of the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the ~~Partnership~~ Company were sold at the Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Managing Member in good faith using the value attributed to the ~~Partnership~~ Membership Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Membership Common Units, assuming such holder of ~~Limited Partnership~~ Membership Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Membership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the ~~General Partner~~ Managing Member shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Managing Member, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Membership Common Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Membership Common Unit would receive if such Membership Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company and the ~~General Partner~~ Managing Member under any Vesting ~~Agreement~~Agreement and any Equity Plan, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.6.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Membership Common Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Membership Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony NorthStar, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; ~~provided, however,~~ provided that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; ~~provided, however,~~ provided that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; ~~provided, however,~~ provided that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; ~~provided, however,~~ provided that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; ~~provided,~~ provided that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (RiverBanc Multifamily Investors, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Reven REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(f) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or Reven REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Reven Housing REIT, Inc.)

Appears in 1 contract

Samples: Limited Partnership Agreement (NorthStar Real Estate Income Trust, Inc.)

Conversion of LTIP Units. ~~(a) An~~ A. A LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Ordinary Units; provided, however, that an a LTIP ~~Holder~~ Unitholder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such LTIP ~~Holder~~ Unitholder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such LTIP Unitholder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Ordinary Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. ~~The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units.~~ In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Ordinary Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.8. ~~(b)~~ B. A ~~holder of~~ Partner holding Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Ordinary Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5. Notwithstanding the foregoing, in no event may a ~~holder of~~ Partner holding Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to ~~its~~ his or her ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Ordinary Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.8 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a Partner holding LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6.A relating to those ~~Limited Partnership~~ Ordinary Units that will be issued to such ~~holder~~ Partner upon conversion of such LTIP Units into ~~Limited Partnership~~ Ordinary Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Ordinary Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Ordinary Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership pursuant to Section 8.6.A simultaneously with such ~~conversion~~conversion (and without being subject to the twelve (12) month holding period set forth in Section 8.6.A), with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Ordinary Units under Section ~~8.5~~ 8.6.B by delivering to such ~~holder~~ LTIP Unitholder REIT Shares rather than cash, then such ~~holder~~ LTIP Unitholder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Ordinary Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Ordinary Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 8.8.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than ~~10 nor~~ ten (10) days and not more than 60 sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which ~~a holder~~ the LTIP Unitholder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Ordinary Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Ordinary Units and remaining LTIP Units, if any, held by such person immediately after such conversion. Any Additional Limited Partner pursuant to Article 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.8 and such Limited Partner shall be bound by the exercise of such rights by the Additional Limited Partner. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.2.C and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Ordinary Unit Economic Balance. ~~(g)~~ F. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Ordinary Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Ordinary Units shall be exchanged for or converted into the right, or the ~~holders such interests~~ Holders shall otherwise be ~~entitled,~~ entitled to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the ~~Partnership~~ Ordinary Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Ordinary Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a ~~holder~~ Holder of the same number of ~~Limited Partnership~~ Ordinary Units, assuming such ~~holder of Limited Partnership Units~~ Holder is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that ~~holders of Limited Partnership Units~~ Holders have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Ordinary Units in connection with such Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a ~~holder of Limited Partnership Units~~ Holder would receive if such ~~holder of Limited Partnership Units~~ Holder failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and the relevant terms of any applicable Stock Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.8.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Ordinary Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Ordinary Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Tarantula Ventures LLC)

Conversion of LTIP Units. The following new Section 4.11 shall be added to the Agreement: (a) An Subject to the provisions of this Section 4.11, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.11. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.10 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.11(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.05(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ HHTI elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.05(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above4.10 hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. The Partnership, at any time at the election of the General Partner may cause any Common Units converted from Vested LTIP Units to be submitted by the holder for redemption pursuant to the exercise of a Redemption Right set forth in Section 8.05, notwithstanding any holding period, on a Specified Redemption Date determined by the Partnership, by giving notice to the holder in the manner provided by Section 12.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.11 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(h) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.11(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Second Amendment to Third Amended and Restated Agreement of Limited Partnership (Supertel Hospitality Inc)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition. The ~~General Partner~~ Manager shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.6. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form of Exhibit D (with a copy to the ~~General Partner~~Manager) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Manager has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the ~~General Partner~~ Manager of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.6 shall be free and clear of all liens. Notwithstanding anything ~~herein~~ in this Agreement to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.3 relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the ~~Partnership~~ Company shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Manager elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 7.3(b) by delivering to such holder ~~REIT Shares~~ shares of Ashford Inc. Common Stock rather than cash, then such holder can have ~~REIT Shares~~ such shares of Ashford Inc. Common Stock issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Common Units. The ~~General Partner~~ Manager shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Manager, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.6(b). In order to exercise its right of Forced Conversion, the ~~Partnership~~ Company shall deliver a notice (a “Forced Conversion Notice”) in the form of Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Manager certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Member pursuant to Article IX may exercise the rights of such Member pursuant to this Section 7.6 and such Member shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership~~ Company, Ashford Inc., Ashford OAINC Inc. or ~~the General Partner~~ Ashford OAINC II Inc. shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to ~~herein~~ in this Agreement as a “Unit Transaction”), then the ~~General Partner shall~~Manager may, ~~immediately prior to the~~ in connection with such Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the ~~Partnership~~ Company were sold at the Unit Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Manager in good faith using the value attributed to the ~~Partnership~~ Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the ~~General Partner~~ Manager shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Manager, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company, the Manager, Ashford Inc., Ashford OAINC Inc. and ~~the General Partner~~ Ashford OAINC II Inc. under any Vesting ~~Agreement~~Agreement and the Plan, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.6(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ashford Inc.)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.7. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.7.F) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6.A of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.6.B of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.6; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.9.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.C and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership or~~ Partnership, the General Partner or the Parent shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.7.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Cogdell Spencer Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested 13 LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a 14 certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Summit Hotel Properties, Inc.)

Conversion of LTIP Units. (a) An Subject to Section 4.07(b), an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such LTIP Unitholder’s option, at any time to convert all or a portion of ~~its~~ such LTIP Unitholder’s Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A holder of Vested LTIP Units may convert such ~~interests~~ Vested LTIP Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ an LTIP Unitholder’s Conversion Right, a such LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such LTIP Unitholder so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ such LTIP Unitholder’s Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Parent elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder ~~REIT~~ Parent Shares rather than cash, then such ~~holder~~ LTIP Unitholder can have ~~REIT~~ such Parent Shares issued to it such LTIP Unitholder simultaneously with the conversion of ~~its~~ such LTIP Unitholder’s Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.06; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ such LITP Unitholder’s written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article XI hereof may exercise the rights of such Limited Partner pursuant to this Section 4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ such LTIP Unitholder’s LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the ~~General Partner~~ Parent shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ an OP Unit would receive if such ~~holder of Limited Partnership Units~~ OP Unitholder failed to make such an election. Subject to the rights of the Partnership ~~and~~ or the ~~General Partner~~ Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming OP Unit Transaction (as defined ~~below~~below in 4.05(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such OP Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a OP Unit Transaction or (y) the third business day immediately preceding the effective date of such OP Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder ~~REIT~~ Common Shares rather than cash, then such holder can have ~~REIT~~ such Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.05(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ OP Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ OP Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “OP Unit Transaction”), then the General Partner shall, immediately prior to the OP Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the OP Unit Transaction or that would occur in connection with the OP Unit Transaction if the assets of the Partnership were sold at the OP Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the OP Unit Transaction (in which case the Conversion Date shall be the effective date of the OP Unit Transaction). In anticipation of such Forced Conversion and the consummation of the OP Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such OP Unit Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ OP Unit Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the OP Unit Transaction, prior to such OP Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such OP Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Parent under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any OP Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the OP Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such OP Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Asset Capital Corporation, Inc.)

Conversion of LTIP Units. (a) An LTIP Holder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP Holders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a LTIP Holder is notified of the expected occurrence of an event that will cause its Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Holder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP Holder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ GIP REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have such REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner shall reasonably cooperate with an LTIP Holder to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Holder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (f) For purposes of making future allocations under Section ~~5.1(e~~5.01(f) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (g) If the ~~Partnership or~~ Partnership, the General Partner or GIP REIT shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self ~~tender~~ -tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which its LTIP Units will be converted into the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP Holder of such ~~election~~ election, and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP Holder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Holder (or by any of ~~its~~ such LTIP Holder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP Holders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Generation Income Properties, Inc.)

Conversion of LTIP Units. (a) An Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, subject to Section 4.07(b), an LTIP Unitholder shall have the right (the “"Conversion Right”"), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested Parity LTIP Units into ~~Limited Partnership~~ Class A OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested Parity LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested Parity LTIP Units, all of the Vested Parity LTIP ~~Holder’s Vested LTIP Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited Partnership~~ Class A OP Units until they become Vested Parity LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested Parity LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ such event and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested Parity LTIP Units into ~~Limited Partnership~~ Class A OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Class A OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.07. (b) A Unless otherwise provided in an LTIP Award or Vesting Agreement or by the General Partner with respect to any particular class or series of LTIP Units, a holder of Vested Parity LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable Class A OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.06(a). Notwithstanding the foregoing, in no event may a holder of Vested Parity LTIP Units convert ~~an amount~~ a number of Vested Parity LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of such Vested Parity LTIP Units, divided by (y) the ~~Limited Partnership~~ Class A OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “"Capital Account Limitation”")~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “"Conversion Notice”") in the form attached as Exhibit B to ~~the Partnership~~ this Agreement (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “"Conversion Date”") specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.07(e)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the ~~earlier~~ later of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner ~~provided~~ set forth in Section ~~12.1~~15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested Parity LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.06 of this Agreement relating to those ~~Limited Partnership~~ Class A OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Class A OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Class A OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder following the effective date in a position where, if he or she so wishes, the ~~Limited Partnership~~ Class A OP Units into which ~~its~~ his or her Vested Parity LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s 's redemption obligation with respect to such ~~Limited Partnership~~ Class A OP Units under Section ~~8.5~~ 8.06(b) of this Agreement by delivering to such holder ~~REIT Shares~~ Parent Class A Stock rather than cash, then such holder can have ~~REIT Shares~~ such Parent Class A Stock issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested Parity LTIP Units into ~~Limited Partnership~~ Class A OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested Parity LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “"Forced Conversion”") into an equal number of ~~Limited Partnership~~ Class A OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b~~4.06(a); provided, however, that the Partnership may not cause a Forced Conversion of any Vested Parity LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 4.07(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “"Forced Conversion Notice”") in the form attached to this Agreement as Exhibit C to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner ~~provided~~ set forth in Section ~~12.1~~15.01. (ed) A conversion of Vested Parity LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Class A OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, ~~a certificate~~ confirmation of the ~~General Partner certifying its Limited Partnership~~ number of Class A OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (ge) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Class A OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s 's assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Class A OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “"Transaction”"), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Class A OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Class A OP Units, assuming such holder of ~~Limited Partnership~~ Class A OP Units is not a ~~Person with which~~ constituent party to such merger or consolidation or the ~~Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which~~ acquiring party in any such ~~sale or transfer was made, as the case may be~~ Transaction (a “"Constituent Person”"), or an ~~affiliate~~ Affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Class A OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Class A OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ an Class A OP Unit would receive if such ~~holder of Limited Partnership Units~~ Class A OP Unitholder failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.07(e) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders whose~~ Unitholders if less than all of the LTIP Units held by such LTIP Unitholder will ~~not~~ be converted into ~~Limited Partnership~~ Class A OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ Class A OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Preston Hollow Community Capital, Inc.)

Conversion of LTIP Units. (ae) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units (as equitably adjusted to reflect any unit splits, combinations or the like with respect to the LTIP Units) or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition; provided, however, that such Conversion Notice shall not be valid if given more than 90 days prior to such vesting event and such Conversion Notice shall immediately terminate and become null and void should such vesting event not occur within the period of 90 days following delivery of such Conversion Notice (or such shorter period as the LTIP Unitholder may specify therein). The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.10. (bf) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.09 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit F to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Partnership Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 20 days prior to the effective date of such Common Partnership Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Partnership Unit Transaction or (y) the third business day immediately preceding the effective date of such Common Partnership Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.10(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.05 hereof relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until after the Conversion ~~Date~~Date and otherwise shall be subject in all respects to the restrictions and other provisions herein applicable to the redemption of Common Partnership Units. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted and which are eligible for redemption can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 8.05(b) hereof by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner and LTIP Unitholder shall in good faith cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dg) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an any LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.09 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.10(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit G to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. (eh) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.10 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fi) For purposes of making future allocations under Section ~~5.1(e~~5.01(m) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gj) If the Partnership or the General Partner shall be a party to (i) any ~~transaction (including without limitation a~~ merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or ~~reorganization~~reorganization (except any such transaction involving the Partnership or a subsidiary in which the Partnership Units outstanding immediately prior to such transaction continue to represent or are converted into or exchanged for Partnership Units or other securities of the surviving or resulting entity that represent, immediately after such transaction, at least a majority by voting power of the securities of the surviving or resulting entity or parent thereof), or (ii) any sale of all or substantially all of the Partnership’s assets, ~~but excluding any transaction which constitutes an Adjustment Event)~~but, in each ~~case~~ case, excluding any Adjustment Event and any Qualified ELRH Combination, as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Partnership Unit Transaction”), then the General Partner shall, immediately prior to the Common Partnership Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Partnership Unit Transaction or that would occur in connection with the Common Partnership Unit Transaction if the assets of the Partnership were sold at the Common Partnership Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Partnership Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Partnership Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Partnership Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Partnership Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Partnership Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Partnership Unit Transaction, prior to such Common Partnership Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Common Partnership Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Partnership Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.10(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Common Partnership Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Partnership Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.”

Appears in 1 contract

Samples: Agreement of Limited Partnership (Landmark Apartment Trust of America, Inc.)

Conversion of LTIP Units. ~~(a) An~~ A. A LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Ordinary Units; provided, however, that an a LTIP ~~Holder~~ Unitholder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such LTIP ~~Holder~~ Unitholder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such LTIP Unitholder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Ordinary Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. ~~The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units.~~ In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Ordinary Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.8. ~~(b)~~ B. A ~~holder of~~ Partner holding Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Ordinary Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5. Notwithstanding the foregoing, in no event may a ~~holder of~~ Partner holding Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to ~~its~~ his or her ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Ordinary Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit G to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.8 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a Partner holding LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.6.A relating to those ~~Limited Partnership~~ Ordinary Units that will be issued to such ~~holder~~ Partner upon conversion of such LTIP Units into ~~Limited Partnership~~ Ordinary Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Ordinary Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Ordinary Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership pursuant to Section 8.6.A simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Ordinary Units under Section ~~8.5~~ 8.6.B by delivering to such ~~holder~~ LTIP Unitholder REIT Shares rather than cash, then such ~~holder~~ LTIP Unitholder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Ordinary Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Ordinary Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 8.8.B. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit H to the applicable ~~holder~~ LTIP Unitholder not less than ~~10 nor~~ ten (10) days and not more than 60 sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. ~~(e)~~ D. A conversion of Vested LTIP Units for which ~~a holder~~ the LTIP Unitholder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Ordinary Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Ordinary Units and remaining LTIP Units, if any, held by such person immediately after such conversion. Any Additional Limited Partner pursuant to Article 11 hereof may exercise the rights of such Limited Partner pursuant to this Section 8.8 and such Limited Partner shall be bound by the exercise of such rights by the Additional Limited Partner. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.2.C and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Ordinary Unit Economic Balance. ~~(g)~~ F. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Ordinary Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Ordinary Units shall be exchanged for or converted into the right, or the ~~holders such interests~~ Holders shall otherwise be ~~entitled,~~ entitled to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the ~~Partnership~~ Ordinary Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Ordinary Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a ~~holder~~ Holder of the same number of ~~Limited Partnership~~ Ordinary Units, assuming such ~~holder of Limited Partnership Units~~ Holder is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that ~~holders of Limited Partnership Units~~ Holders have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Ordinary Units in connection with such Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a ~~holder of Limited Partnership Units~~ Holder would receive if such ~~holder of Limited Partnership Units~~ Holder failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and the relevant terms of any applicable Stock Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 8.8.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Ordinary Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Ordinary Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Dupont Fabros Technology, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Xxxxxxxxx REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or Xxxxxxxxx REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Ellington Residential Mortgage REIT)

Conversion of LTIP Units. ~~(a) An~~ A. Unless otherwise provided in an LTIP ~~Holder~~ Award or Vesting Agreement or by the Managing Member with respect to any particular class or series of LTIP Units, an LTIP Unitholder shall have the right (the “Conversion Right”), at its option, at any time to convert all or a portion of its Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Membership Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the ~~Partnership~~ Company a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the ~~Partnership~~ Company subject to such condition~~. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Limited Partnership Units~~. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Membership Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.6. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). B. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Member, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Membership Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit C to the ~~Partnership~~ Company (with a copy to the ~~General Partner~~Managing Member) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the ~~General Partner~~ Managing Member has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section 4.6.F) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the ~~General Partner~~ Managing Member of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.2. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the ~~Partnership~~ Company that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.6.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 15.1.A of this Agreement relating to those ~~Limited Partnership~~ Membership Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Membership Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Membership Common Units by the ~~Partnership~~ Company shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the ~~Partnership~~ Company simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Managing Member elects to assume the ~~Partnership~~Company’s redemption obligation with respect to such ~~Limited Partnership~~ Membership Common Units under ~~Section 8.5~~ 15.1.B of this Agreement by delivering to such holder Class A REIT Shares rather than cash, then such holder can have such Class A REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ Membership Common Units. The ~~General Partner~~ Managing Member shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. ~~(d)~~ C. The ~~Partnership~~Company, at any time at the election of the ~~General Partner~~Managing Member in its sole and absolute discretion, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced ~~Conversion~~Redemption”) into an equal number of ~~Limited Partnership~~ Membership Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.5; provided, however, that the ~~Partnership~~ Company may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above.~~ Section 4.6.B. In order to exercise its right of Forced ~~Conversion~~Redemption, the ~~Partnership~~ Company shall deliver a notice (a “Forced ~~Conversion~~ Redemption Notice”) in the form attached as Exhibit D to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~15.2. ~~(e)~~ D. A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the ~~Partnership~~ Company has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the ~~Partnership~~ Company with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Membership Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the ~~Partnership~~ Company shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the ~~General Partner~~ Managing Member certifying ~~its Limited Partnership~~ the number of Membership Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Member pursuant to Article XI hereof may exercise the rights of such Member pursuant to this Section 4.6 and such Member shall be bound by the exercise of such rights by the Assignee. ~~(f)~~ E. For purposes of making future allocations under Section ~~5.1(e)~~ 6.3.F and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Membership Common Unit Economic Balance. ~~(g)~~ F. If the ~~Partnership~~ Company or the ~~General Partner~~ Managing Member shall be a party to any transaction (including ~~without limitation~~ a merger, consolidation, ~~interest~~ unit exchange, ~~self~~ self-tender offer for all or substantially all ~~Limited Partnership~~ Membership Common Units or other business combination or reorganization, or sale of all or substantially all of the ~~Partnership~~Company’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Membership Common Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Membership Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “Transaction”), then the ~~General Partner~~ Managing Member shall, immediately prior to the consummation of the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the ~~Partnership~~ Company were sold at the Transaction price or, if applicable, at a value determined by the ~~General Partner~~ Managing Member in good faith using the value attributed to the ~~Partnership~~ Membership Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ Membership Common Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ Membership Common Units, assuming such holder of ~~Limited Partnership~~ Membership Common Units is not a Person with which the ~~Partnership~~ Company consolidated or into ~~with~~ which the ~~Partnership~~ Company merged or which merged into the ~~Partnership~~ Company or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Membership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the ~~General Partner~~ Managing Member shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the ~~General Partner~~Managing Member, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Membership Common Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Membership Common Unit would receive if such Membership Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership~~ Company and the ~~General Partner~~ Managing Member under any Vesting ~~Agreement~~Agreement and any Equity Plan, the ~~Partnership~~ Company shall use commercially reasonable efforts to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.6.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Membership Common Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Membership Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Colony Financial, Inc.)

Conversion of LTIP Units. The following new Section 4.11 shall be added to the Agreement: (a) An Subject to the provisions of this Section 4.11, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.11. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.10 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.11(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.05(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ HHTI elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.05(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above4.10 hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder 12.01 hereof and shall be ~~credited on~~ revocable by the ~~books and records of~~ General Partner at any time prior to the ~~Partnership with~~ Forced Conversion. The Partnership, at any time at the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate election of the General Partner ~~certifying its Limited Partnership~~ may cause any Common Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its converted from Vested LTIP Units ~~shall~~ to be ~~reduced, as of the date of conversion,~~ submitted by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer holder for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior redemption pursuant to the ~~Transaction,~~ exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights Redemption Right set forth ~~in the Agreement for the benefit of LTIP Holders.~~in

Appears in 1 contract

Samples: Third Amended and Restated Agreement of Limited Partnership (Condor Hospitality Trust, Inc.)

Conversion of LTIP Units. ~~(a)~~ An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP Units held by such holder. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. (b) A holder of Vested LTIP Units may convert such interests into an equal number of fully paid and non-assessable Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b). Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert an amount of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Limited Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”). (c) In order to exercise its Conversion Right, a LTIP Holder shall deliver a notice (a “Conversion Notice”) to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP Holders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the LTIP Holders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 12.1. Each LTIP Holder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 4.5 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a LTIP Holder may deliver a Redemption Notice pursuant to Section 8.5 relating to those Limited Partnership Units that will be issued to such holder upon conversion of such LTIP Units into Limited Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such Limited Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Holder in a position where, if he or she so wishes, the Limited Partnership Units into which its Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Limited Partnership Units under Section 8.5 by delivering to such holder REIT Shares rather than cash, then such holder can have REIT Shares issued to it simultaneously with the conversion of its Vested LTIP Units into Limited Partnership Units. The General Partner shall cooperate with an LTIP Holder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Rouse Properties, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D hereto to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction (as defined ~~below~~in Section 4.05(f) hereof) at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens, claims and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E hereto to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(e) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). . (g) In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such ~~Transaction~~ Common Unit Transaction, the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. . (h) Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Physicians Realty Trust)

Conversion of LTIP Units. ~~(a)~~ A. An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited~~ Partnership Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~8.7. ~~(b)~~ B. A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and non-assessable ~~Limited~~ Partnership Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b).~~ 4.2.C. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit G to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~15.1. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 8.7.B shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 8.6A of the Partnership Agreement relating to those ~~Limited~~ Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Partnership Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s 's redemption obligation with respect to such ~~Limited~~ Partnership Units under Section ~~8.5~~ 8.6B of the Partnership Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Partnership Units. The General Partner shall cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (d) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP Holder to be converted (a “Forced Conversion”) into an equal number of Limited Partnership Units, giving effect to all adjustments (if any) made pursuant to Section 4.4(b); provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP Holder pursuant to paragraph (b) above. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 12.1. (e) A conversion of Vested LTIP Units for which a holder has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Holder, as of which time such LTIP Holder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of an equal number of Limited Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP Holder, upon its written request, a certificate of the General Partner certifying its Limited Partnership Units and remaining LTIP Units, if any, immediately after such conversion. (f) For purposes of making future allocations under Section 5.1(e) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder that is treated as attributable to its LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Limited Partnership Unit Economic Balance. (g) If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, interest exchange, self tender offer for all or substantially all Limited Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of which Limited Partnership Units shall be exchanged for or converted into the right, or the holders such interests shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP Holder to be afforded the right to receive in connection with such Transaction in consideration for the Limited Partnership Units into which its LTIP Units will be converted into the same kind and amount of cash, securities, and other property (or any combination thereof) receivable upon the consummation of such transaction by a holder of the same number of Limited Partnership Units, assuming such holder of Limited Partnership Units is not a Person with which the Partnership consolidated or into with the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of Limited Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP Holder of such election and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of the LTIP Units held by such holder into Limited Partnership Units in connection with such Transaction. If an LTIP Holder fails to make such an election, such LTIP Holder (and any of its transferees) shall receive upon conversion of the LTIP Units held by it (or by any of its transferees) the same kind and amount of consideration that a holder of Limited Partnership Units would receive if such holder of Limited Partnership Units failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting Agreement, the Partnership shall use commercially reasonable efforts to cause the terms of the Transaction to be consistent with the provisions of this Section 4.5 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Holders whose LTIP Units will not be converted into Limited Partnership Units in connection with the Transaction that will (i) contain provisions enabling the LTIP Holders with outstanding LTIP Units after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to Limited Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of LTIP Holders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Provident Senior Living Trust)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “"Conversion Right”"), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 100 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ OP Units until they become Vested LTIP Units; provided, however, that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ OP Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ OP Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~‎4.07. (b) A holder of Vested LTIP Units may convert such ~~interests~~ Units into an equal number of fully paid and ~~non-assessable Limited Partnership~~ nonassessable OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~‎4.06. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ OP Unit Economic Balance, in each case as determined as of the effective date of conversion (the “"Capital Account Limitation”")~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “"Conversion Notice”") in the form attached as Exhibit ‎D to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “"Conversion Date”") specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Transaction (as defined ~~below~~below in Section ‎4.07(f)) at least ~~thirty (30)~~ 30 days prior to the effective date of such Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the ~~tenth (10th)~~ 10th day after such notice from the General Partner of a Transaction or (y) the third business day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~‎15.01. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ ‎4.07(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ ‎8.06(a) of this Agreement relating to those ~~Limited Partnership~~ OP Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ OP Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited Partnership~~ OP Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Corporation elects to assume the Partnership’s 's redemption obligation with respect to such ~~Limited Partnership~~ OP Units under Section ~~8.5~~ ‎8.06(b) of this Agreement by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited Partnership~~ OP Units. The General Partner shall reasonably cooperate with an LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “"Forced ~~Conversion”~~Redemption") into an equal number of ~~Limited Partnership~~ OP Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~‎4.06; provided, however, that the Partnership may not cause a Forced ~~Conversion~~ Redemption of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section ‎4.07(b). In order to exercise its right of Forced ~~Conversion~~Redemption, the Partnership shall deliver a notice (a “"Forced ~~Conversion~~ Redemption Notice”") in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced ~~Conversion~~ Redemption Notice. A Forced ~~Conversion~~ Redemption Notice shall be provided in the manner provided in Section ~~12.1~~‎15.01. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced ~~Conversion~~ Redemption Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ OP Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of OP Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article ‎XI hereof may exercise the rights of such Limited Partner pursuant to this Section ‎4.07 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~‎6.03(c) and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ OP Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Corporation shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ OP Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s 's assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ OP Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (~~each~~ any of the foregoing being referred to herein as a “"Transaction”"), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced ~~Conversion~~ Redemption with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced ~~Conversion~~ Redemption and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the ~~Limited Partnership~~ OP Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Transaction by a holder of the same number of ~~Limited Partnership~~ OP Units, assuming such holder of ~~Limited Partnership~~ OP Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “"Constituent Person”"), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ OP Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ OP Units in connection with such Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a OP Unit would receive if such OP Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Corporation under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Transaction to be consistent with the provisions of this Section ~~4.5~~ ‎4.07(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ OP Units in connection with the Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the OP Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Retail Opportunity Investments Partnership, LP)

Conversion of LTIP Units. (a) An LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ his or her option, at any time to convert all or a portion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units; provided, however, that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than one thousand (1,000) Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than one thousand ~~(1,000)~~ Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested ~~LTIP~~ Incentive Units into ~~Limited~~ Common Partnership Units until they become Vested LTIP Units; provided, however, that when a LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ his or her Unvested ~~LTIP~~ Incentive Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited~~ Common Partnership Units. In all cases, the conversion of any LTIP Units into ~~Limited~~ Common Partnership Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~7.7. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and ~~non-assessable Limited~~ non‑assessable Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~LTIP Unitholder, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited~~ Common Partnership Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ his or her Conversion Right, a LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) to in the ~~Partnership~~ form attached as Exhibit D (with a copy to the General Partner) not less than 10 3 Business Days nor more than ~~60 days~~ 10 Business Days prior to a date for conversion (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Unit Transaction (as defined below) at least thirty (30) days prior to the effective date of such Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Unit Transaction or (y) the third ~~business day~~ Business Day immediately preceding the effective date of such Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 7.7 shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Redemption Notice pursuant to Section ~~8.5~~ 7.4 relating to those ~~Limited~~ Common Partnership Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited~~ Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption of such ~~Limited~~ Common Partnership Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an a LTIP ~~Holder~~ Unitholder in a position where, if he or she so wishes, the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such ~~Limited~~ Common Partnership Units under Section ~~8.5~~ 7.4(b) by delivering to such holder REIT Common Shares rather than cash, then such holder can have such REIT Common Shares issued to it him or her simultaneously with the conversion of ~~its~~ his or her Vested LTIP Units into ~~Limited~~ Common Partnership Units. The General Partner shall cooperate with an a LTIP ~~Holder~~ Unitholder to coordinate the timing of the different events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an a LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited~~ Common Partnership Units, giving effect to all adjustments (if any) made pursuant to ~~Section 4.4(b~~Sections 4.3(d), 4.3(e) and 5.5; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b) above~~Section 7.7(b). In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~14.5. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited~~ Common Partnership Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited~~ the number of Common Partnership Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 7.7 and such Limited Partner shall be bound by the exercise of such rights by the assignee. (fe) For purposes of making future allocations under Section ~~5.1(e)~~ 5.5 and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited~~ Common Partnership Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or the Company shall be a party to any transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited~~ Common Partnership Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited~~ Common Partnership Units shall be exchanged for or converted into the right, or the holders of such ~~interests~~ Partnership Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Unit Transaction”), then the General Partner ~~shall~~may, immediately prior to the Unit Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Unit Transaction or that would occur in connection with the Unit Transaction if the assets of the Partnership were sold at the Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Unit Transaction (in which case the Conversion Date shall be the effective date of the Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Unit Transaction in consideration for the ~~Limited~~ Common Partnership Units into which ~~its~~ his or her LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Unit Transaction by a holder of the same number of ~~Limited~~ Common Partnership Units, assuming such holder of ~~Limited~~ Common Partnership Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an ~~affiliate~~ Affiliate of a Constituent Person. ~~In the event that~~ If holders of ~~Limited~~ Common Partnership Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Unit Transaction, prior to such Unit Transaction the General Partner shall give ~~prompt~~ written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited~~ Common Partnership Units in connection with such Unit Transaction. If an a LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held ~~by it~~ him or her (or by any of ~~its~~ his or her transferees) the same kind and amount of consideration that a holder of ~~Limited~~ a Common Partnership ~~Units~~ Unit would receive if such Common Partnership Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the ~~Partnership and~~ Partnership, the General Partner and the Company, under any Vesting ~~Agreement~~Agreement and the Plan, the Partnership shall use commercially reasonable ~~efforts~~ effort to cause the terms of ~~the~~ any Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 7.7(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited~~ Common Partnership Units in connection with the Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited~~ the Common Partnership Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Ashford Hospitality Prime, Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if the ~~General Partner~~ Company elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the Partnership or the General Partner shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Limited Partnership Agreement (Ellington Housing Inc.)

Conversion of LTIP Units. (a) An Subject to the provisions of this Section 4.05, an LTIP ~~Holder~~ Unitholder shall have the right (the “Conversion Right”), at ~~its~~ such holder’s option, at any time to convert all or a portion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units; provided, ~~however,~~ that ~~an LTIP Holder~~ a holder may not exercise the Conversion Right for ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units or, if such ~~LTIP Holder~~ holder holds ~~fewer~~ less than ~~one thousand (1,000)~~ 1,000 Vested LTIP Units, all of the ~~LTIP Holder’s~~ Vested LTIP ~~Units~~Units held by such holder. LTIP ~~Holders~~ Unitholders shall not have the right to convert Unvested LTIP Units into ~~Limited Partnership~~ Common Units until they become Vested LTIP Units; provided, ~~however,~~ that when a an LTIP ~~Holder~~ Unitholder is notified of the expected occurrence of an event that will cause ~~its~~ such LTIP Unitholder’s Unvested LTIP Units to become Vested LTIP Units, such ~~Person~~ LTIP Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of ~~vesting,~~ vesting and such Conversion Notice, unless subsequently revoked by the LTIP ~~Holder~~Unitholder, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into ~~Limited Partnership~~ Common Units. In all cases, the conversion of any LTIP Units into ~~Limited Partnership~~ Common Units shall be subject to the conditions and procedures set forth in this Section ~~4.5~~4.05. (b) A holder of Vested LTIP Units may convert such ~~interests~~ LTIP Units into an equal number of fully paid and non-assessable ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert ~~an amount~~ a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such ~~holder~~Limited Partner, to the extent attributable to its ownership of LTIP Units, divided by (y) the ~~Limited Partnership~~ Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “Capital Account Limitation”)~~. (c)~~ . In order to exercise ~~its~~ the Conversion Right, a an LTIP ~~Holder~~ Unitholder shall deliver a notice (a “Conversion Notice”) in the form attached as Exhibit D to the Partnership (with a copy to the General Partner) not less than 10 ten nor more than 60 days prior to a date (the “Conversion Date”) specified in such Conversion Notice; provided, ~~however,~~ that if the General Partner has not given to the LTIP ~~Holders~~ Unitholders notice of a proposed or upcoming Common Unit Transaction ~~(as defined below)~~ at least ~~thirty (30)~~ 30 days prior to the effective date of such Common Unit Transaction, then ~~the~~ LTIP ~~Holders~~ Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth ~~(10th)~~ day after such notice from the General Partner of a Common Unit Transaction or (y) the third ~~business day~~ Trading Day immediately preceding the effective date of such Common Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof. Each LTIP ~~Holder~~ Unitholder covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section ~~4.5~~ 4.05(b) shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of LTIP ~~Holder~~ Units may deliver a Notice of Redemption ~~Notice~~ pursuant to Section ~~8.5~~ 8.04(a) hereof relating to those ~~Limited Partnership~~ Common Units that will be issued to such holder upon conversion of such LTIP Units into ~~Limited Partnership~~ Common Units in advance of the Conversion Date; provided, ~~however,~~ that the redemption of such ~~Limited Partnership~~ Common Units by the Partnership shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP ~~Holder~~ Unitholder in a position where, if ~~he or she~~ such holder so wishes, the ~~Limited Partnership~~ Common Units into which ~~its~~ such holder’s Vested LTIP Units will be converted can be ~~redeemed by~~ tendered to the Partnership for redemption simultaneously with such conversion, with the further consequence that, if ~~the General Partner~~ Xenia REIT elects to assume the Partnership’s redemption obligation with respect to such ~~Limited Partnership~~ Common Units under Section ~~8.5~~ 8.04(b) hereof by delivering to such holder the REIT Shares ~~rather than cash~~Amount, then such holder can have the REIT Shares Amount issued to it such holder simultaneously with the conversion of ~~its~~ such holder’s Vested LTIP Units into ~~Limited Partnership~~ Common Units. The General Partner and LTIP Unitholder shall reasonably cooperate with ~~an LTIP Holder~~ each other to coordinate the timing of the ~~different~~ events described in the foregoing sentence. (dc) The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by an LTIP ~~Holder~~ Unitholder to be converted (a “Forced Conversion”) into an equal number of ~~Limited Partnership~~ Common Units, giving effect to all adjustments (if any) made pursuant to Section ~~4.4(b)~~4.04 hereof; provided, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such LTIP ~~Holder~~ Unitholder pursuant to ~~paragraph (b~~Section 4.05(b) ~~above~~hereof. In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached as Exhibit E to the applicable ~~holder~~ LTIP Unitholder not less than 10 ten nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section ~~12.1~~12.01 hereof and shall be revocable by the General Partner at any time prior to the Forced Conversion. (ed) A conversion of Vested LTIP Units for which a the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP ~~Holder~~Unitholder, as of which time such LTIP ~~Holder~~ Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of ~~an equal~~ the number of ~~Limited Partnership~~ Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such LTIP ~~Holder~~Unitholder, upon ~~its~~ his or her written request, a certificate of the General Partner certifying ~~its Limited Partnership~~ the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article IX hereof may exercise the rights of such Limited Partner pursuant to this Section 4.05 and such Limited Partner shall be bound by the exercise of such rights by the Assignee. (fe) For purposes of making future allocations under Section ~~5.1(e~~5.01(g) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account ~~balance~~ Balance of the applicable ~~holder~~ LTIP Unitholder that is treated as attributable to ~~its~~ his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the ~~Limited Partnership~~ Common Unit Economic Balance. (gf) If the ~~Partnership or~~ Partnership, the General Partner or Xenia REIT shall be a party to any ~~transaction~~ Common Unit Transaction (including without limitation a merger, consolidation, ~~interest~~ unit exchange, self tender offer for all or substantially all ~~Limited Partnership~~ Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any ~~transaction~~ Common Unit Transaction which constitutes an Adjustment Event), ) in each case as a result of which ~~Limited Partnership~~ Common Units shall be exchanged for or converted into the right, or the holders ~~such interests~~ of Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Common Unit Transaction”), then the General Partner shall, subject to the terms of any applicable Equity Incentive Plan or Vesting Agreement, exercise immediately prior to the ~~Transaction, exercise~~ Common Unit Transaction its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Common Unit Transaction or that would occur in connection with the Common Unit Transaction if the assets of the Partnership were sold at the Common Unit Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Common Unit Transaction (in which case the Conversion Date shall be the effective date of the Common Unit Transaction). In anticipation of such Forced Conversion and the consummation of the Common Unit Transaction, the Partnership shall use commercially reasonable efforts to cause each LTIP ~~Holder~~ Unitholder to be afforded the right to receive in connection with such Common Unit Transaction in consideration for the ~~Limited Partnership~~ Common Units into which ~~its~~ such LTIP Unitholder’s LTIP Units will be converted ~~into~~ the same kind and amount of cash, ~~securities,~~ securities and other property (or any combination thereof) receivable upon the consummation of such ~~transaction~~ Common Unit Transaction by a holder of the same number of ~~Limited Partnership~~ Common Units, assuming such holder of ~~Limited Partnership~~ Common Units is not a Person with which the Partnership consolidated or into ~~with~~ which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person. In the event that holders of ~~Limited Partnership~~ Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Common Unit Transaction, prior to such Common Unit Transaction the General Partner shall give prompt written notice to each LTIP ~~Holder~~ Unitholder of such ~~election~~ election, and shall use commercially reasonable efforts to afford ~~such holders~~ the LTIP Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by such holder into ~~Limited Partnership~~ Common Units in connection with such Common Unit Transaction. If an LTIP ~~Holder~~ Unitholder fails to make such an election, such ~~LTIP Holder~~ holder (and any of its transferees) shall receive upon conversion of ~~the~~ each LTIP ~~Units~~ Unit held by it such LTIP Unitholder (or by any of ~~its~~ such LTIP Unitholder’s transferees) the same kind and amount of consideration that a holder of ~~Limited Partnership Units~~ a Common Unit would receive if such Common Unit holder ~~of Limited Partnership Units~~ failed to make such an election. Subject to the rights of the Partnership and the General Partner under any Vesting ~~Agreement~~Agreement and any Equity Incentive Plan, the Partnership shall use commercially reasonable efforts to cause the terms of ~~the~~ any Common Unit Transaction to be consistent with the provisions of this Section ~~4.5~~ 4.05(f) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP ~~Holders~~ Unitholders whose LTIP Units will not be converted into ~~Limited Partnership~~ Common Units in connection with the Common Unit Transaction that will (i) contain provisions enabling the ~~LTIP Holders with outstanding~~ holders of LTIP Units that remain outstanding after such Common Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to ~~Limited Partnership~~ the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in ~~the~~ this Agreement for the benefit of the LTIP ~~Holders~~Unitholders.

Appears in 1 contract

Samples: Agreement of Limited Partnership (Xenia Hotels & Resorts, Inc.)

Common use of Conversion of LTIP Units Clause in Contracts